PLD 2004 Judgments

P L D 2004 Federal Shariat Court 1

Before Ch. Ejaz Yousaf, C. J. , Dr. Fida Muhammad Khan and Saeed‑ur‑Rehman Farrukh, JJ

ABDUL MAJID‑‑‑Petitioner

Versus

GOVERNMENT OF PAKISTAN‑‑‑Respondent

Shariat Petition No.1/I of 2003, decided on 5th November, 2003.

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

‑‑‑‑Preamble‑‑‑Arms Rules, 1924‑‑‑Constitution of Pakistan (1973), Art.203‑D‑‑‑Repugnancy to Injunctions of Islam‑‑‑Contention of the petitioner, inter alia, was that every citizen was entitled to protect his life and property and naturally he had to keep any kind of weapon for the purpose, therefore, there was no requirement for grant of licence for keeping of fire‑arm weapons, as envisaged by the West Pakistan Arms Ordinance, 1965 and Arms Rules, .1924 and levying of annual fee for the grant of licence in this connection was also opposed‑‑‑Validity‑‑‑Held, West Pakistan Arms Ordinance, 1965 and Arms Rules, 1924 having been duly made for the general welfare and security of Umma at large, were not against the Injunctions of Islam‑‑‑Ordinance and the Rules place no embargo on keeping of weapons for the purpose of self‑protection as well as protection of honour and property but, as highlighted in its Preamble itself, it only aims at consolidating the law relating to the sale, transport, bearing or possession of arms ammunition for military store, by making certain rules and regulations for the same‑‑‑Only purpose of the Ordinance and the Rules appears to regularize the possession of weapons etc. and thereby, check misuse of the same, so that the lives and properties of innocent people are properly safeguarded‑‑‑Levy of annual fee for the grant of licence in this connection was also not against the Injunctions of Islam‑‑‑Principles.

Al-Quran Verse 59,Sura 4(4:59); Verse 101, Surah 5;

Usul al Tashria al Islami, pp. 149; 160; CIA; Majallah, Art. 558; Verse 4:58); Al‑Tazir fi al‑Shariah al‑Islamiyyah, p.85 and PLD 1992 FSC 329 ref.

(b) Islamic jurisprudence‑‑‑

‑‑‑‑ Legislation in Islam ‑‑‑Ijtehad‑‑‑Shariah has given vast power to the Authorities in power to enact appropriate laws for the public welfare‑‑­Legislation in Islam, in fact, is mainly based on public welfare and Maslaha and every harm and corruption, in whatever form and whatever degree and proportion the same may be, should be removed and exterminated as far as possible‑‑‑If a permissible act becomes source of trouble and harm to the public, the same will be prohibited in the interest of public‑‑‑Principles.

Legislation in Islam, in fact, is mainly based on public welfare and "Maslaha". Imam Ghazali defines "Maslaha" (public welfare) as the establishment of a legal principle for which there is no evidence in the source, but which is recommended by reason as advantageous. The rightly guided Caliphs have also followed the principles of "Maslaha". The Muslim Jurists have relied upon various examples their rulings.

Islamic Shariah empowers the authorities in power to make legislation for all matters which are not specifically covered by the Injunctions of Islam, as contained in Holy Qur'an and Sunnah of the Holy Prophet The Holy Prophet has made it explicitly clear that Almighty Allah has revealed Commands for certain things but has left out many other matters for consideration by the Ummah to make laws for the same if they feel the necessity to do so. The only condition, particularly imposed and emphasized upon in this connection, is the requirement that the legislation must be in accordance with the Injunction of Islam and no law shall be enacted which is repugnant to such Injunctions.

The inference drawn from Verse 101 of Surah No.5 and Hadith is stated to be the fact that while some Injunctions were revealed. in respect of matters which are permanent in nature and scope and are not liable to be changed, some matters were left out to the discretion of Ummah so that, while keeping in view the principles and broad outlines contained in the permanent Injunctions, they should make laws according to their requirements, from time to time. This flexibility, based on the eternal principles, has made the Islamic System a solid rock to always stand the test of time everywhere. The institution of Ijtihad has played a vital role in the evolution of laws and making them progressive, modern and dynamic. Where there is no explicit provision in the Holy Qur'an and Sunnah, the legislative body may enact laws in respect of the same while keeping in view the general spirit of Islam. The Ummah may consider enactment of various laws according to the requirement of its people from time to time.

Wherever and in whatever matters the specific guidance is not available from the Qur'an, the Sunnah, or the conventions of the early periods of Companions of the Prophet, the Ummah is authorized to legislate, through their qualified representatives, in respect of the same according to their requirements. The principle governing such situations is that whatever has not been disallowed is allowed.

There are a number of legal maxims laying down rules for the application of the principle of "Maslahah": This principle defines the limit within which the rulers can exercise their administrative and political authority and take measures for the protection of the rights and freedom of the masses so as to establish law and order and maintain justice. The concept of justice is eternal but its dynamics may change in the changing circumstances. A certain law may be just in one time but may entail injustice at another time and in another context.

Another significant feature of Islamic legislation worth ­mentioning is that every harm and corruption, in whatever form and whatever degree and proportion it may be, should be removed and exterminated as far as possible.

Shariah has given vast power to the authorities in power to enact appropriate laws for the public welfare.

The ruling of a ruler over his subjects is based on their welfare.

Another basic principle which naturally follows in Islamic Sharjah is that if a permissible act becomes a source of trouble and harm to the public, it will be prohibited in the interest of the public.

Al‑Qur'an Verse 59, Sura 4(4:59); Verse 101, Surah 5;

Usul al Tashria al Islami, pp. 149; 160; Majallah, Art. 558; Verse 4:58); Al‑Tazir fi al‑Shariah al‑Islamiyyah, p.85 ref.

(c) Islamic jurisprudence‑‑‑--

‑‑‑‑ Administration of justice‑‑‑Concept of justice is eternal but its dynamics may change in the changing circumstances‑‑‑Certain law may be just in one time but may entail injustice at another time and in another context.

Petitioner in person.

Date of hearing: 5th November, 2003.

P L D 2004 Azad J&K 1

Before Muhammad Reaz Akhtar Chaudhry, J

KHAN MUHAMMAD KHAN‑‑‑Petitioner

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary, Muzaffarabad and 5 others‑‑‑Non‑Petitioners

Writ Petition No.86 of 2002, decided on 5th March, 2004.

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

‑‑‑‑S.44‑‑‑Writ jurisdiction‑‑‑" Aggrieved person"‑‑‑All writ petitions, except the writs of 'habeas corpus' and quo warranto' could be filed by aggrieved person, while writ of 'habeas corpus' andquo warranto' could be filed by any person‑‑‑Fundamental duty of petitioner invoking the extraordinary jurisdiction of High Court was to establish a direct or indirect injury caused to him or establish‑ a substantial interest in the subject‑matter of the proceedings‑‑‑When no direct or indirect injury was caused to petitioner and no substantial interestof his own was involved in the proceeding, then he could not be termed as an "aggrieved person" ‑‑‑Mere possibility or assumption, that a person could obtain the property if it would have not been allotted to other persons, would not create a right to him and he could not be termed as an "aggrieved person"‑‑‑ "Aggrieved person" would not mean a person who was deprived of a benefit which he might have obtained if some different order had been passed‑‑‑Person aggrieved must be a person who had suffered a loss or grievance, a man against whom some judgment had been pronounced, which had wrongly deprived him of something or wrongly refused him something to which he was entitled‑‑‑" Aggrieved person" within the meaning of S.44 of Azad Jammu & Kashmir Interim Constitution Act, 1974, would not mean a person having astricto senso' legal right even a person who had been deprived of benefits and privileges, by 'an illegal act or omission, could be termed as an "aggrieved person".

PLD 1978 (Rev) 28; PLD 1990 Karachi 9; 1993 CLC 1067; Mst. Noor Jehan Begum v. Doctor Abdul Samad 1987 SCMR 1577; Mst. Resham Jan v. Assistant Settlement Commissioner Lands PLD 1979 Pesh 75; Nisar Ahmed and others v. Additional Secretary, Food and Agriculture 1987 SCMR 389; 1995 CLC 1123; PLD 1865 Dacca 231; 1984 CLC 1146; PLD 1978 Lahore 273; Inayat Bibi etc. v. Assistant Settlement Commissioner etc. PLD 1978 Lah. 252 and Mian Fazal Din v. Lahore Improvement Trust, Lahore etc. PLD 1969 SC 223 ref.

(b) Azad Jammu and Kashmir Interim Constitution Act, (VIII of 1974)‑‑‑

‑‑‑‑S. 44‑‑‑Writ petition‑‑‑Maintainability‑‑‑Aggrieved person‑‑­Determination of‑‑‑Nothing was on record on the basis of which it could be said that petitioner was also entitled to allotment of disputed Khalsa land and that by allotment of said land to respondents/allottees, any right of petitioner had been violated‑‑‑Nothing also was on record on basis of which it could be said that he had any nexus with land which was allotted to respondents/allottees‑‑‑Nowhere in writ petition it was pleaded by petitioner as to how he had been aggrieved from the allotment made in favour of respondents/allottees‑‑‑Incumbent upon petitioner to state in the memo of writ petition that he was aggrieved from order of allotment passed in favour of allottees‑‑‑Writ petition did‑ not disclose the kind of loss petitioner had suffered due to allotment of respondents/allottees‑‑­Land in dispute was though a `Khalsa' land and all the villager owners were entitled to it under Azad Jammu and Kashmir Grant of Khalsa Waste Land As Shamlat‑Deh Act, 1966, but in writ petition, it had not been disclosed that petitioner was an owner in the village or not‑‑­Nothing was on record on the basis of which it could be said that petitioner was an owner in the village‑‑‑Petitioner having failed to establish himself as an aggrieved person, his petition was rightly dismissed.

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

‑‑‑Ss. 161 & 162‑‑‑Limitation Act (IX of 1908), Ss.3, 5 & 29‑‑‑Appeal before Commissioner against decision of Collector‑‑‑Limitation‑‑‑Period of limitation for filing appeal before Commissioner against decision of Collector, having been provided sixty days under S.162 of West Pakistan Land Revenue Act, 1967, appeal filed after expiry of nine years from order of allotment of land in dispute was time‑barred‑‑‑Limitation in the present case, was provided under a Special Law/West Pakistan Land Revenue Act, 1967, which did not contain that whole Limitation Act, 1908 would apply to proceedings under said Special Law, provisions of S.29 of Limitation Act, 1908, in circumstances would come into play whereby S.5 of Limitation Act, 1908 was excluded to the proceedings under West Pakistan Land Revenue Act, 1967 being Special Law‑‑­Powers under S.5 of Limitation Act, 1908 being not available to Commissioner for condonation of delay, he under S.3 of Limitation Act, 1908 was bound to dismiss appeal being hopelessly time‑barred‑‑­Commissioner, ,in circumstances, had rightly dismissed appeal being barred by time.

PLD 1978 (Rev) 28 and PLD 1978 (Rev.) 41 ref.

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

‑‑‑‑S. 164‑‑‑Suo Motu revisional jurisdiction, exercise of‑‑‑Contention of the, petitioner was that land in dispute which was `Chrand‑Ghair­-Mumkin' was reserved for grazing cattle and being so it could not be allotted to any person and it was incumbent upon the Commissioner to exercise Suo Motu revisional jurisdiction, was repelled on the ground that Commissioner was not duty bound to exercise Suo Motu jurisdiction‑‑‑Commissioner has discretion to exercise Suo Motu jurisdiction, even otherwise, under any law Commissioner was not legally bound to exercise suo motu jurisdiction‑‑‑Commissioner had not committed any error of law, by not exercising Suo Motu revisional jurisdiction in circumstances.

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

‑‑‑‑S.44‑‑‑Writ petition‑‑‑Point not raised earlier before Authorities below, could not be raised in extraordinary jurisdiction of High Court.

M. Tabassum Aftab Alvi for Petitioner.

Syed Nazir Hussain Shah Kazmi for Non‑Petitioners.

Date of hearing: 5th March, 2004.

JUDGMENT

This writ petition is addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act. 1974.

1. The succinct facts forming the background of the instant writ petition as stated in it are, that land measuring four Kanals and one Marla comprising Survey No.578/550 situated in Village Rangoli, Tehsil Dhirkot District Bagh was "Khalsa" land. Its allotment was sanctioned in favour of non‑petitioners No.5 and 6 on July 1st 1990, by the Collector of District Bagh. Subsequently, a mutation to this effect was sanctioned in their favour on September 24th 1990. The petitioner filed an appeal against the said order in the Court of learned Commissioner on November 17th, 1999. This appeal was entrusted to the learned Additional Commissioner for hearing and disposal, who dismissed the same being time‑barred, vide order, dated June 6th 2000. Feeling aggrieved from the said judgment, the petitioner (herein) filed a revision petition before the Board of Revenue, which was also dismissed. Hence, the instant writ petition.

2. This writ petition was admitted for regular hearing. Notices were issued to the non‑petitioners who, have filed their respective written statements etc. Arguments have been heard.

3. The learned counsel for the petitioner Mr. M. Tabassum Aftab Alvi, argue that the learned Commissioner has wrongly held that the petitioner (herein) obtained the copy of the impugned order on September 8th 1996. He submitted that the petitioner never obtained the said copy on the aforesaid date, rather it was obtained by some other person. In this respect, the record was summoned from the Court of learned Commissioner. It clearly contained that no copy was obtained by the present petitioner on the said date. It was next maintained by him, that the petitioner gained knowledge about the impugned order on November 15th 1999 and filed the appeal on November 17th 1999, without spoiling any further time, therefore, the appeal was well within time. He argued that the learned Commissioner and Boar, of Revenue have erroneously dismissed the appeal being time‑barred.

4. He further submitted that the land in dispute was reserved for grazing of cattle and it was "Chrand‑Ghair‑Mumkin" which could not be allotted to any person under any law, as such the basic order of allotment was void and it was the duty of the learned Commissioner to exercise the "suo motu" revisional jurisdiction and set aside the allotment order, but unfortunately this aspect of the case was not considered by him as well as by the Board of Revenue.

5. While controverting the arguments of the learned counsel for the petitioner, the learned counsel for the non‑petitioners argued that the petitioner was not an aggrieved person. He submitted that the writ petition did not disclose as to how the petitioner has been aggrieved from the impugned order. He further contended that there is nothing on the record, on the basis of which, it could be said that the petitioner was the owner in the Village, therefore, he could not be termed as an aggrieved person.

6. It was next submitted by him, that the land in question was sanctioned in favour of the non‑petitioners on July 1st 1990 and the first appeal was filed on November 17th, 1999 after a span of about nine years. It was hopelessly time‑barred. It was further contended by him, that section 162 of the West Pakistan Land Revenue Act, contained that limitation shall run from the date of the order and not from the date of knowledge. It was further contended by him, that the learned Commissioner had no jurisdiction to condone the limitation, because the powers under section 5 of the Limitation Act, were not available to him. He referred section 29 of the Limitation Act whereby the application of section 5 of the said Act was excluded. He referred PLD 1978 (Rev) 28 in support of his contentions.

7. I have taken into consideration the respective submissions of the learned counsel for the parties and perused the record made available alongwith the writ petition.

8. Under section 44 of the Azad Jammu and Kashmir Interim Constitution Act 1974, all the writ petitions, except the writs of habeas corpus and quo warranto, can be filed by an aggrieved person. While the writ of habeas corpus and quo warranto can be filed by any person. This view finds support from PLD 1990 Karachi 9 relevant page (73), which reads as under:‑‑

"I may also observe that under Article 199 except a writ or habeas corpus petition and a writ of quo warranto, which can be invoked by any person, the other writs can be prayed for by an aggrieved party".

1. It is the fundamental duty of the petitioner invoking the extra ordinary jurisdiction of the Court to establish a direct or indirect injury caused to him or establish a substantial interest in the subject‑matter or the proceeding. When no direct or indirect injury is caused to the petitioner or his no substantial interest is involved in the proceeding, then he could not be termed as an aggrieved person. This view finds support from 1993 CLC 1067 relevant page (1071), which is as under:‑‑

" 11. The grievance of the petitioners in substance was that the disputed house could not have been legally transferred to the answering respondents and that, in any case, it could only be legally disposed of by a public auction under the Displaces Persons (Compensation and Rehabilitation) Act, 1958. This argument, I am afraid, is not tenable, because the petitioners herein are not "aggrieved person" within the contemplation o. Article 199 of the Constitution of Islamic Republic of Pakistan. 1973. If an authority on the point is needed reference can be made to (1), Mst. Noor Jehan Begum v. Doctor Abdul Samad (1987 SCMR 1577) and (2) Mst. Resham Jan v. Assistant Settlement Commissioner Lands (PLD 1979 Pesh 75). In the precedent case of Mst. Noor Jehan Begum, their Lordship of the Supreme Court have held that Doctor Abdul Samad, respondent therein, had no locus standi to challenge the transfer in favour or the petitioners. Relying on Nisar Ahmed and others v. Additional Secretary, Food and Agriculture (1987 SCMR 389). the final conclusion was expressed in these words:‑‑

"Clearly, it is a sine qua non for invoking the writ jurisdiction of the High Court under Article 199 that the petitioner should be an aggrieved person. He must, therefore, establish a direct or indirect injury to himself and substantial interest in the subject­ matter of the proceedings. The stand of the petitioners throughout has been that they were tenants paying rent to the Evacuee Trust Board and never claimed the transfer of the property and indeed in law they were not so entitled. The writ petition was, therefore, rightly dismissed by the High Court and no ground for interference exists."

1. Similarly on the basis of possibility or assumption, that a person could obtain the property if it would have not been allotted to other person, does not create a right to him and he could not be termed as an aggrieved person. This view finds support from 1987 SCMR 1577 relevant page (1582), which is as follows:‑‑

"We do not agree. A mere possibility that a person could obtain, a property by making the highest bid if an evacuee property is disposed of by public auction does not give any such potential bidder a vested right in the property. The right of a person to bid in an auction is a right shared by him with every other citizen and the mere fact that the property, which is liable to be disposed of through auction is not so disposed of and the potential bidder deprived the opportunity of offering the highest bid at such an auction does not make him an "aggrieved person so as to give him a right to maintain a Constitution Petition."

1. The words "aggrieved person" do not mean a person who is deprived of a benefit which he might have obtained if some different order had been passed. A person aggrieved must be a person, who had suffered a loss or grievance. A man against whom some judgment has been pronounced, which has wrongly deprived him of something or wrongly refused him something to which he was entitled. This view finds support from 1995 CLC 1123 relevant page (1127), which reads as under:‑‑

"It is well‑settled by now that "a person aggrieved must be a person, who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongly deprived him of something, or wrongfully refused him something or wrongfully affected his title to something" (PLD 1965 Dacca 231). In the case under consideration the petitioner has neither suffered a legal grievance nor wrongfully deprived of something nor his title affected as such in our considered view he cannot be declared an aggrieved party and, therefore has no locus standi to invoke the extraordinary jurisdiction of this Court which is to be exercised with greater circumspection. "

It further finds support from 1984 CLC 1146 relevant page (1149), which reads as under:‑‑

"The examination of these principles and the relevant case‑law cited at bar would make crystal clear that for the proper application of these rules the existence of some legal and vested right in favour of the individual is a condition precedent because an individual cannot be termed as an "aggrieved person" or "affected person" unless the decision or order has wrongfully refused him something, which he had a right to demand."

1. An aggrieved person within the meaning of section 44 of the AJ&K Interim Constitution Act, 1974, did not mean a person having a "stricto sensu" legal right. Even a person who has been deprived of a benefit and privileges by an illegal act or omission can be termed as an aggrieved person. This view finds support from PLD 1978‑ Lahore 273 relevant page (280), which is as follows:‑‑

"21. Any "aggrieved party" within the meaning of Article 199 of the Constitution does not necessarily mean a person having a stricto sensu legal right. Even a person who is deprived of a benefit privilege etc. by an illegal act or omission can be considered as an aggrieved person. Reliance is placed on Mst. Inayat Bibi etc. v. Assistant Settlement Commissioner etc. PLD 1978 Lah. 252, which reads as under:‑­

"It is to be observed that the‑expression "aggrieved party" as occurring in paragraph (a) of clause (1) of Article 199 of the Constitution has a wide connotation, and it would even embrace a person who though suffering from no violation of a legal right, has been deprived of a benefit, privilege, liberty or franchise by an illegal act or omission of a public authority.

Reliance is also placed on Mian Fazal Din v. Lahore Improvement Trust Lahore etc. PLD 1969 SC 223 which reads as under:‑‑

"The right considered sufficient for maintaining a proceeding in writ jurisdiction is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which it not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise."

1. Now the question emerges, whether the petitioner could be termed as an aggrieved person? There is nothing on the record on the basis of which it could be said that the petitioner was also entitled to the allotment of this Khalsa land and by allotment of this land to the non­ petitioners Nos.5 and 6, any right of the petitioner has been violated. There is also nothing on the record on the basis of which it could be said that he has any nexus with the land, which was allotted to the non­ petitioners Nos.5 and 6.

2. I have minutely gone through the entire writ petition, nowhere in the writ petition it was, pleaded by the petitioner that how he has been aggrieved from the allotment of non‑petitioners Nos.5 and 6. While under law, it was incumbent upon him to state in the memo of writ petition, that how he was aggrieved from the impugned order. The writ petition did not disclose, that what kind of loss has been suffered by the petitioner due to the allotment of non‑petitioners Nos.5 and 6. No doubt that the land in dispute was a Khalsa land and all the village owners were entitled to it under the AJ&K Grant of Khalsa Waste Land as Shamilat­ Deh Act, 1966, but it stultifies me that even in the writ petition, it has not been disclosed that the petitioner is an owner in the village or not? There is nothing on the record on the basis of which it could be said, that the petitioner was an owner in the village. The petitioner has miserably failed to establish himself as an aggrieved person. The writ petition entails dismissal on this ground.

3. It would not be out of place to mention here that the land was allotted to the non‑petitioners Nos. 5 to 6 on 1‑7‑1990 by the Collector and in this respect a mutation was sanctioned on 24‑9‑1990. While the first appeal in the Court of Additional Commissioner was filed on 17‑11‑1999 after a span of nine years. The period of limitation for an appeal against the decision of Collector was provided in section 162 of the West Pakistan Land Revenue Act, under which., the appeal was to be filed within sixty days before the learned Commissioner. For having proper perception, I would like to reproduce the same, which reads as under:‑‑

"(162) Limitation for appeals.‑Save as otherwise provided by this Act, the period of limitation for an appeal under section 161 shall run from the date of the order appealed against and shall be‑

(a) thirty days, where the appeal lies to the Collector;

(b) sixty days, where the appeal lies to the Commissioner;

(c) ninety days, where the appeal lies to the Board of Revenue.

In the instant case, the appeal was not filed as required under section 162(b), but it was filed after nine years of the order, therefore, the learned Commissioner has dismissed the appeal being time‑barred. Now, the question emerges whether the learned Commissioner was competent to condone the limitation?

1. In the instant case, the limitation was provided under a special law, which did not contain that whole of the Limitation Act shall apply to the proceedings under such special law. When as such was not provided in the special law, then section 29 of the Limitation Act shall come into play, which reads as under:‑‑

"(29) Savings. [(1) Nothing in this Act shall affect section 25 of the Contract Act 1872.

(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local, law‑‑‑

(a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and

(b) the remaining provisions of this Act shall not apply.]

[(3)] Nothing in this Act shall apply to suits under the Divorce Act.

[(4)] Sections 26 and 27 and the definition of "easement" in section 2 shall not apply to cases arising in territories to which the Easements Act, 1882, may for the time being extend."

1. The aforesaid provisions clearly contain that where any special or local law prescribes a different period of limitation than the period prescribed in the First Schedule, of the Limitation Act, then section 3 or Limitation Act shall apply and for determining the period of limitation sections 4, 9 to 18 and 22 shall apply. The application of section 5 was excluded. While in a time‑barred appeal, the limitation could be condoned only under section 5 of the Limitation Act.

2. It would also not be out of place to mention here, that the aforesaid section 29(b) also clearly contained that the remaining provisions of this Act shall not apply, which means that except sections 3, 4, 9 to 18 and 22 of the Limitation Act, the remaining provisions of the said Act were not made applicable to the proceedings under the West Pakistan Land Revenue Act. Thus, section 5 of the Limitation Act was not applicable to the proceedings under the West Pakistan Land Revenue Act. The phrase "the remaining provisions of this Act shall not apply" occurring in 29 (2b) of Limitation Act has restricted the scope of section 5 of the Limitation Act. This view finds support from PLD 1978' Revenue 41 relevant page 50, which is as follows:‑‑

"As regards the point of limitation, it may be observed that there can be no condonation of delay under section 5 of the Limitation Act, where an appeal or application is filed under the provision of Land Revenue Act, 1967 which provides a special period of limitation of its own. Unless therefore, the case is brought under one of the exemptions of Part III of the Limitation Act which deals with computation of a period of limitation, the delay in filing an appeal or application for review cannot be excused by virtue of section 29 of Limitation Act read with section 167 of the Land Revenue Act, 1967."

It further finds support from PLD 1978 Revenue 28 relevant page 32, which reads as under:‑‑

"Section 167 of the Land Revenue Act, 1967 makes the provisions of the Limitation Act, 1908 applicable to appeals, reviews, or revisions, in the matter of computation of the period of limitation. This means that Part III of the Limitation Act which deals with computation of period of limitation shall apply to appeals under the Thal Development (Colonization) (Appeal and Revision) Rules, 1973. Part III, however, does not contain section 5 under which the period of limitation can be extended in certain cases. Apart from that section 29 of the Limitation Act which prescribes as to what portion of the Act shall apply to local and special laws in the absence of any directions in those laws themselves also does not extend the application of section 5 to the proceedings under these laws. It, therefore, follows that section 5: is not applicable to computation of a period for appeals under the Land Revenue Act and, a fortiori, under the Thal Development Authority (Colonization) (Appeal and Revision) Rules, 1973. The same view has been taken in Nawab Sir Meher Shah v. Lt. Dewan Sahib. Thus in the instant case the benefit of section 5 could not be taken for condonation of delay in filing the appeal before the Commissioner nor any section of Part III of the Limitation Act could be invoked in aid for that purpose. Therefore, the appeals before the Commissioner which were filed after about six years of the impugned orders without showing any ground on which exception from limitation could be claimed were not entertain able and should have been dismissed on the short ground of limitation."

It is to be noted that when the powers under section 5 of the Limitation Act were not available to the learned Commissioner for condonation of delay, then under section 3 of the Limitation Act, he was bound to dismiss the appeal being time‑barred. Therefore, he has rightly dismissed the appeal.

1. So far as the contention of the learned counsel for the petitioner is concerned that the land in dispute was "Chrand‑Ghair‑Mumkin" and was reserved for the grazing of cattle, therefore, it could not be allotted to any person and it was incumbent upon the learned Commissioner to exercise suo Motu revisional jurisdiction, has no substance for the reasons that the learned Commissioner was not duty bound to exercise suo Motu jurisdiction. It is entirely the discretion of the learned Commissioner to exercise the suo Motu jurisdiction, even otherwise under any law, he was not legally bound to exercise suo Motu jurisdiction. Therefore, it could not be said that he has committed any error of law, by not exercising the suo Motu revisional jurisdiction.

2. It is also pertinent to note that the case of the present petitioner before the learned Commissioner was not at all that the land in dispute was "Chrand‑Ghair‑Mumkin" I myself have gone through the contents or appeal filed before the learned Commissioner. Neither the appeal contained as such nor it was argued before the learned Commissioner. The learned counsel for the petitioner has raised this point before this Court for the first time. When basically, it was not the case of the petitioner that the land in dispute was "Chrand‑Ghair‑Mumkin" and i could not be allotted to any person, when now, he cannot raise this point in the extra ordinary jurisdiction of this Court.

3. Even otherwise, I have gone through the copy of Khasragirdawri, which has been appended with the writ petition, it also nowhere contained that the land in dispute was reserved for the purposes of grazing of cattle and it was "Chrand‑Ghair‑Mumkin", but in the Khasragirdawri, the kind of land has been mentioned as Chrand‑Ghair­Mumkin, which does not mean that it was reserved for the grazing of cattle. There are various kinds of land as Mera Awal, Mera Doim, Banjar Qadeem, Thanghar Chrand‑Ghair‑Mumkin Lipara and Takki etc. The kind of land in dispute was Chrand‑Ghair‑Mumkin, which does not mean that it was reserved for grazing of cattle, but it was capable for this purpose, but there is nothing on the record that it was reserved for this very purpose, but only its kind was Chrand‑Ghair‑Mumkin, therefore, this contention of the learned counsel for the petitioner that the land in dispute was reserved for grazing of cattle is without any substance.

In the light of what has been discussed above, finding no force in this writ petition, it is hereby dismissed.

H.B.T./8/AJ&K Petition dismissed.

P L D 2004 Azad J&K 12

Before Ghulam Mustafa Mughal, J

GHULAM HUSSAIN and another‑‑‑Appellants

Versus

Syed KHALIL HUSSAIN SHAH and 9 others‑‑‑Respondents/Pro forma Respondents

Civil Appeal No.74 of 2003, decided on 16th March, 2004.

(a) Interpretation of statutes‑‑‑

‑‑‑‑ Procedural law‑‑‑Amendment in procedural law would operate retrospectively unless Legislature had intended otherwise.

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

‑‑‑‑O. XXII, Rr.1 & 11‑‑‑Abatement of suit or appeal‑‑‑No abatement would take place if a party died after conclusion of arguments and before judgment.

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

‑‑‑‑O. I, R.10 & O.XXII, Rr.1, 4 & 11‑‑‑Second appeal‑‑‑Death of respondent‑‑‑Application for Impleading legal heirs of deceased respondent‑‑‑Date of death of deceased respondent was not mentioned in application by appellant for impleading legal heirs of deceased respondent‑‑‑Said application was vague.

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

‑‑‑‑O. XXII, R.4‑‑‑Suit filed against a dead person‑‑‑Suit against a dead person was a nullity in eye of law and could not be revived by impleading his legal heirs.

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

‑‑‑‑O. I, R.10 & O.XXII, R.1, 4 & 11‑‑‑Death of one of defendants in a suit‑‑‑Abatement of suit‑‑‑When there were two or more defendants in a suit or respondents in appeal and one of them was dead at the time of institution of the suit or appeal, then the suit or appeal, as the case may be, would not abate and O.XXII, R.4, C.P.C. would not be applicable‑‑­Name of dead person could be deleted under R.10 of O.I, C.P.C. subject to prescribed period of limitation‑‑‑When a suit or appeal had been filed against a sole defendant or respondent who was dead at the time of institution of the suit or appeal, the legal heirs of such a dead person could not be substituted and the suit or appeal could not be revived‑‑­Appeal, having been filed against a dead person, same was incompetent and liable to be dismissed.

2001 MLD 1955; 1992 SCMR 2184; 1992 SCMR 2334; 1999 SCR 355; PLD 2003 Lah 615, PLD 1993 Kar. 676; 1985 CLC 2555; Leave to Appeal No.77 of 1995; Muhammad Mehrban v. Abdul Majeed 2001 SCMR 1 and Khan Muhammad Khan's case 1999 YLR 550 ref.

Ch Khalid Rasheed for Appellants.

Raja Muhammad Siddique Khan for Respondents

ORDER

Ghulam Hussain appellant herein brought a suit for declaration and possession in respect of land comprising Khasra Nos.5180 and 5111 situated in village Patoyan, Tehsil Barnala District Bhimber in other Court of Senior Civil Judge Bhimber on 4‑10‑1999. It was averred that the shrine known as "Khanqah Peer Mongawali" is situated in the aforesaid village. It was claimed that plaintiffs are Sajjada Nasheen (successors to Saint) of the said shrine from immemorial period. The land comprising Khasra Nos.3562, 3563, 5111 and 5180, in all measuring 59 Kanals 18 Marlas is the property of shrine and the plaintiffs as well as proforma respondents are the owners of the said land. It was further averred that Auqaf Department took over the shrine vide its notification, dated 10‑3‑1981 and the same was withdrawn on 15‑9‑1989. The possession of the land was handed over to the respondent vide order, dated 21‑2‑1989. This order was cancelled on 13‑3‑1989. The order was challenged by the respondents through a writ petition before this Court, which was dismissed on 15‑7‑1990, however, on appeal, the apex Court vacated the order and observed that the dispute cannot be resolved in writ jurisdiction. It was alleged that in view of the observation of the apex Court, the present suit has been filed. It was averred that respondent has no concern whatsoever with the shrine as well as‑ its property and has taken the possession of the property with connivance of the Auqaf Department, therefore, a decree for possession may be passed to the extent of Number Khasra 5180 and 5111. Respondents have controverted the facts pleaded by the plaintiff through their written statement. The trial Court framed issues in light of the respective pleadings of the parties and after providing an opportunity of evidence, dismissed the suit of the appellant herein for want of proof. Feeling aggrieved by the judgment of the trial Court, appellant herein preferred an appeal before the District Judge Bhimber on 31‑3‑2003. The District Judge also concurred with the findings of the trial Court and dismissed the appeal on 12‑6‑2003, hence this second appeal.

Ghualm Hussain, appellant herein, preferred this second appeal on 9‑9‑2003. On 16‑12‑2003 an application for impleading the legal heirs of Syed Khalil Hussain Shah, was made. It is alleged in the application that after institution of the appeal the petitioner‑appellants came to know that the real respondent has died. It was requested that his legal heirs, as have been listed in the application, may be impleaded in the line of the respondents. The legal heirs of Syed Khalil Hussain Shah besides filing an application for dismissal of the appeal, also filed objections stating therein that the respondent died on 6‑6‑2003 and the application has been filed on 16‑12‑2003, which is hopelessly time­ barred. It was further alleged that Ruqqia Bibi, wife of Khalil Hussain Shah, who is sought to be impleaded, had died in 1985 and the legal heirs of one of the sons of the deceased namely Syed Zulqarnain Hussain Shah had been left over, therefore, the application is incomplete and the appeal merits dismissal.

Arguing on behalf of appellant Ch. Khalid Rasheed, the learned Advocate for the appellant, vehemently contended that the application is within limitation from the date of knowledge, therefore, there is no harm in impleading the legal heirs of the respondent. The learned Advocate strenuously argued that in view of the amendments in the Code of Civil Procedure, as have been adopted in Azad Jammu and Kashmir, the appeal has to proceed and question of abatement does not arise. The learned Advocate supported his submissions by placing reliance on 2001 MLD 1955, 1992 SCMR 2184, 2334 and 1999 SCR 355.

The arguments advanced on behalf of the appellant have been controverted by Raja Muhammad Siddique Khan, the learned Advocate for the legal heirs of Khalil Hussain Shah. The learned Advocate submitted that the appeal has been filed against a dead person, therefore, is a nullity in the eye of law and cannot be revived by deletion of the name of Khalil Hussain Shah or by impleading his legal heirs. In this regard the learned Advocate referred to and relied upon PLD 2003 Lah 615, PLD 1993 Karh 676, and 1985 CLC 2555. The learned Advocate submitted that application is vague as no date of knowledge is mentioned in the application, therefore, bare statement of the learned Advocate for the appellant, without support of any record, cannot be accepted. The learned Advocate also placed reliance on a judgment of the apex Court, in Civil Petition for leave to appeal No.77 of 1995, titled "Muhammad Mehrban v. Abdul Majeed", decided on 21‑3‑1995.

I have heard the learned Advocates for the parties and perused the record carefully. So far as the first contention of Ch. Khalid Rasheed, the learned Advocate for the appellant, that all the amendments in Code of Civil Procedure have been adopted in Azad Jammu and Kashmir, hence the question of abatement does not arise, is concerned, I have no quarrel with this submission. I am also conscious that amendment in Procedural Law operates retrospectively unless the legislature has intended otherwise. I am of the considered view that Order 22 of the Code of Civil Procedure is not applicable to the case in hand, therefore, it is not necessary to discuss these authorities separately. It is admitted position that respondent died on 6‑6‑2003. The First Appellate Court heard the arguments in appeal on 8‑5‑2003 and the judgment was announced on 12‑6‑2003. It means that respondent died after conclusion of the arguments and before pronouncement of the judgment, therefore, the abatement of appeal cannot be pressed. So far as the validity of the judgment and decree of the District Judge is concerned, it is celebrated principle of law that no abatement takes place if a party dies after conclusion of arguments and before the judgment. The contention of Raja Muhammad Siddique Khan, the learned Advocate, that application is vague and no date is mentioned to support the averment that appellant gained the knowledge of the death of the respondent on a particular date. It is simply stated that appellant came to know about the death of the respondent after the institution of the appeal. The arguments of the learned Advocate when judged in light of averment of the application, it becomes crystal clear that application fork impleading the legal heirs is vague. As no date is mentioned in the application, therefore, the rule of law laid down in Muhammad Mehrban's case supra, applies with full force. The relevant observation is as under:‑‑

'However, the petitioner chose only to aver in the writ petition that he came to know about the issuance of State‑Subject Certificate recently'. The ‑dictionary meanings of the wordrecently' are "not long past; that happened, appeared, began to exist, or existed lately". Obviously, the word `recent' is an ambiguous term and is not helpful in ascertaining the period of the knowledge of the petitioner about the certificate in question. "

The arguments of the learned Advocate for the respondents that the suit filed against a dead person is a nullity in the eye of law and cannot be revived by impleading his legal heirs, is supported by the authorities referred to and relied upon by him.

In PLD 2003 Lah 615, a learned Judge of the Lahore High Court opined that if a suit has been filed against the only defendant, who was dead at the time of institution, such suit shall be stillborn, non­existent, and a nullity in the eye of law, therefore, it could not be merely defective and thus, could not be revived by impleading the legal heirs of the deceased defendant. The learned Judge while coming to this conclusion has followed 2001 SCMR 1 and 1985 CLC 2555. The proposition also received the attention of the apex Court of Azad Jammu . and Kashmir in Khan Muhammad Khan's case 1999 YLR 550, wherein, the para. 5 of the judgment it has been observed as under:‑‑

"The High Court has dismissed the suit filed by the appellants, herein, on the ground that they had instituted the suit to which three of the defendants were dead before the institution of the suit and that they failed to file application for bringing their legal representatives on the record within 90 days. It may be observed here that it is not an application under Rule 4 of Order 22 of Civil Procedure Code which deals with the bringing legal representatives of a deceased defendant on the record who dies during the pendency of the suit; in the instant case it is admitted position of both the opposite parties that said defendants had died before the institution of the suit. Therefore, the case would be governed by Rule 10 of Order 1 and not by Rule 4 of Order 22 of the Civil Procedure Code. The learned counsel for the respondents could not justify the finding of the High Court that as the application for impleading legal heirs was not submitted within 90 days, they could not be brought on the record; not law has been cited in support of the proposition that there was any limitation prescribed for bringing legal representatives of a defendant who had died before the institution of the suit. It may be stated that if there are more than one defendants out of which some were dead before the institution of the suit, their legal representatives can be brought oft record in exercise of provision contained in Order 10, Rule 1 of the Civil Procedure Code subject to the point of limitation; the limitation against such heirs would start running from the date when they were impleaded."

Though the facts of the report are slightly different but the rule of law laid down in the report provides sufficient guidance for deciding the controversy in hand. The consensus is that when there are two or more defendants in a suit or appeal and one of them‑was dead at the time of institution of the suit, then the suit or appeal, as the case may be, will not abate, and the Order 22 Rule 4 will not be applicable. The name or the dead person can be deleted under Rule 10 of Order 1 of the Code or Civil Procedure subject to the prescribed period of limitation. But when a suit or appeal has been filed against a sole defendant who was dead at the time of institution of the suit or appeal, as the case may be, the legal heirs of such a dead person cannot be substituted and the suit or appeal cannot be revived. Besides the authorities referred to herein above, this view also lends support from a case reported in AIR 1927 Calcutta 880.

The upshot of the above discussion is that as the appeal has been filed against a dead person, therefore, is incompetent and is liable to be dismissed, I accordingly order.

H.B.T./4/AJ&K Appeal dismissed.

P L D 2004 Azad J&K 17

Before Sardar Muhammad Nawaz Khan, J

AQAL HUSSAIN‑‑‑Appellant

Versus

MUHAMMAD ASLAM KHAN‑‑‑Respondent

Civil Appeal No.66 of 2002, decided on 27th March, 2004.

(a) Azad Jammu and Kashmir Right of Prior Purchase Act (1993 B.K.)----

‑‑‑Ss. 20‑A, 6, 14 & 21‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.56‑C‑‑‑General Clauses Act (X of 1897), S.6‑‑‑Suit for pre‑emption ‑‑‑Superior right of pre‑emption ‑‑‑Improvement in' status ‑of vendee ‑‑‑Effect‑‑‑Plaintiff filed suit claiming superior right of pre­emption on ground of contiguity and right of easement attached to suit­land‑‑‑Defendant repudiated claim of plaintiff contending that he had improved his status after filing of suit by plaintiff and that after said improvement he having become co‑sharer in suit‑land, plaintiff had no right of prior purchase as against him‑‑‑Suit was dismissed by Trial Court on ground of said improvement in the status of defendant, but Appellate Court reversed findings of Trial Court on ground that under amended law in shape of S.20‑A of Azad Jammu and Kashmir Right of Prior Purchase Act, 1993, improvement in status of vendee after institution of suit, was not permissible, and decreed suit of plaintiff‑‑­Validity‑‑‑Any improvement in status of vendee after institution of suit by plaintiff, would not defeat the right of pre‑emptor as it was against Islamic Injunctions‑‑Section 20‑A of Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 was a new legislation keeping in view Islamic jurisprudence and it had affected pending cases‑‑‑Suit filed by plaintiff which was pending when said new legislation came into being, could not escape the effect of said new, legislation‑‑‑Alleged improvement in the status of vendee/defendant was not a right recognized by any enactment of law, but it was simply an intentional act of vendee/defendant or a natural event and it could not be given status of right accrued to a person in view of some old enactment and was not protected under S.6 of General Clauses Act, 1897‑‑‑Section 20‑A of Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 was a new legislation allowing a right of prior purchase to continue after institution of suit.

"Fazal‑Dad v. Khadim Hussain 1995 MLD 1299 and Muhammad Rashid v. Muhammad Khaliq 2001 CLC 1124 ref.

(b) Interpretation of Statutes‑‑‑

‑‑‑‑Legislation is always supreme‑‑‑Legislature could take away a right accrued under old law‑‑‑Intention of law maker however was to be kept in view and was to be gathered from the phraseology used in Legislation‑‑If a piece of Legislation was added or made part of statute and it appeared that the intention of law maker was not to affect the rights, liabilities and privileges available to a person under un­amended or repealed law, then definitely its application was prospective.

Sardar Khan for Appellant

Sardar Shahzad Khan for Respondent.

ORDER

This appeal arises out of the following facts:‑‑

1. Muhammad Aslam Khan respondent herein brought a suit for possession on the ground of right of prior purchase regarding suit‑land measuring 14 Kanals 13 Marlas out of Survey Nos. 421, 426, 427, 429, 430 and 437 total measuring 44 Kanals 6 Marlas in the Court of Sub ­Judge Pallandari against Aqal Hussain appellant herein on 20‑6‑1997. The sale‑deed under challenge was executed on 26‑2‑1997 for a consideration of Rs.2,50,000 however, according to pre‑emptor the actual price paid to the vendor was two lac only. The suit was brought on the ground of contiguity and right of easement attached to the suit ­land. The defendant‑appellant repudiated the claim put forwarded by the plaintiff‑respondent and contended that he was co‑sharer in the suit‑land therefore, the respondent had no right of prior purchase as against him. The trial Court after due process of law disallowed the suit on the ground of improvement in the status of vendee. The respondent challenged the Judgment and decree of the learned trial Judge before learned District with success. The learned District Judge observed that under amended law in shape of section 20‑A of Prior purchase Act the improvement in the status of vendee after the institution of the suit was not permissible therefore, the suit by the respondent was allowed.

2. The learned counsel for the appellant while assailing the findings of First Appellate Court submitted that the amendment in section. 20‑A of Prior Purchase Act took place on 20‑11‑1998 whereas the vendee had improved his status through a decree, dated 11‑8‑1997 on account of which he became a co‑sharer in the suit‑land therefore, through the improvement in the status of vendee, the learned trial Judge rightly disallowed the suit by respondent. He during his arguments relied upon a case law titled "Fazal‑Dad v. Khadim Hussain (1995 MLD 1299) ant contended that in view of settled law the amendment in section 20 of Right of Prior Purchase Act could not affect the improvement in the status made prior to the said amendment.

3. Conversely, the learned counsel for the respondent while controverting the arguments on the side of appellant argued that the improvement in the status of vendee after the institution of suit was not permissible as it was against injunctions of Islam. According to the learned counsel, the improvement in the status of vendee was not permissible in view of section 20‑A of Right of Prior Purchase Act and a case law titled "Muhammad Rashid v. Muhammad Khaliq 2001 CLC 1124.

4. The controversy here in this case is whether the improvement in the status of vendee after the institution of suit is permissible under law? The case law cited at Bar was examined carefully.

1st dealing with Fazal Dad's case, it may be observed that it deals with the categories of the persons who possessed right of prior purchase in view of un‑amended law (section 14 of Prior Purchase Act) and those recognized under amended law (substitution of section 14). The controversy in the present case, as stated earlier is whether a right available to a pre‑emptor under old law at the time of execution of sale ­deed or when the suit was instituted can be defeated through an amended law or repeal of law? It was held that the right accrued to a pre‑emptor under old law could not be taken away after the amendment in the law unless it is provided otherwise by the legislation. However, before concluding the judgment the following observation was made:‑‑

"Before parting, we may observe that in his argument Ch. Lal Hussain, the learned counsel for the contesting respondent, also argued, although not at length, that the concept that right of pre‑emption must exist at three stages was not well founded and he described it as a `step motherly treatment' to the pre‑emptors. Ch. Muhammad Yousaf, the learned Advocate General, who was present in the Court during arguments and on being invited as an amicus curiae, expressed the view that this concept had held the field for a long time without any dissent and, therefore, under the rule of stare decisis the concept may be kept intact. As is evident from the Judgment, occasion did not arise in the present case to examine the concept."

The above quoted paragraph of the precedent Judgment shows that the question of retention of Right of Prior Purchase at three stages was left to be resolved however, this controversy came before Hon'ble Supreme Court in the year 2002 in Muhammad Rashid case (2001 CLC 1124) in which the following observation was made:‑‑

"A careful study of the relevant details in the books of Islamic Jurisprudence makes it clear that the Muslim jurists are of the option that any improvement in the status of the vendee after the institution of the suit does not defeat the right of pre­emption, no matter whether the improvement was made by an intentional act of the vendee or has taken place according to some natural event, like succession".

The above noted observation of the apex Court shows that any improvement in the status of vendee after the institution of the suit does not defeat the right of pre‑emptor as it is against the Islamic injunction or we can say it is permissible before institution of the suit.

1. The case law cited at Bar makes it clear that legislation is always supreme. It can take away a right accrued in view of old law however, the intention of the law maker is kept in view and this is something) gathered from the phraseology used in the legislation. If a piece of legislation is added or made part of a statute and it appears that the intention of law maker is not to affect the rights, liabilities and privileges available to a person under un‑amended or repealed law then definitely its application is prospective. Here in this case, section 20‑A of Right of Prior Purchase Act is a new legislation keeping in view Islamic jurisprudence and it effects pending cases as it appears from its phraseology. The instant case was pending when this new legislation came into being therefore, it cannot escape the effect of new legislation in shape of section 20‑A of Prior Purchase Act. The learned counsel for the appellant laid much emphasis on the point that new legislation came into existence on 20‑11‑1998 whereas the vendee improved his status on 11‑8‑1997 therefore, this act of vendee was protected under section 6 of General Clauses Act and possibly under section 56‑C of the Constitution. However, I am unable to subscribe this view because new legislation in any form or shape unless otherwise provided protects right, liability or privilege recognized by an enactment through legislature. The improvement in the status of vendee is not a right recognized by any enactment of law but it is simply an intentional act of vendee or a natural event therefore, it cannot be given status of right accrued to a person in view of some old enactment as such it cannot be protected under section 6 of General Clauses Act. Had it been a right in view of some old enactment then certainly it could be protected after coming into force a new legislation.

2. No doubt there is consensus of Judicial Authorities that a pre­emptor is required to retain his preferential right at three stages i.e. al the time of execution of sale‑deed, institution of suit and decree by the trial Court yet it was so when there was no enactment disallowing improvement in the status of vendee during pendency of a suit. Section 20‑A of right of prior purchase Act is a new legislation allowing a right of prior purchase to continue after institution of suit Here in this case, no doubt the amendment in the shape of section 20‑A has taken place after improvement in the status of vendee yet the fact remains that the suit was pending when the new legislation came into existence. The language used in the amended Act clearly suggested to say that the improvement in the status of vendee after the institution of the suit is not permissible. As stated earlier, the improvement in the status is not al right recognized by any enactment therefore, it cannot be protected as of a right. The case law 1995 MLD 1299 is not helpful to the appellant because in the precedent case the controversy was about protection or defeat of a right available to a pre‑emptor in view of an old enactment. Improvement in the status is simply an intentional act of vendee or natural event not recognized as a right by Islamic Jurisprudence after the institution of the suit.

3. The result is that the appeal being without substance is hereby dismissed.

H.B.T./6/AJ&K Appeal dismissed

P L D 2004 Azad J&K 22

Before Muhammad Reaz Akhtar Chaudhry, J

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary, Muzaffarabad and others‑‑‑Appellants

Versus

MUHAMMAD ISHAQ and others‑‑‑Respondents

Civil Appeals Nos. 102 and 103 of 2003, decided on 18th March, 2004.

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

‑‑‑‑S. 18‑‑‑Reference of Court‑‑‑Limitation‑‑‑Powers of Reference Court‑‑‑Primary question requiring determination in the case was whether reference before Reference Court was time‑barred arid `Reference Court was duty bound to dismiss time‑barred reference‑‑­Validity‑‑‑Reference Court could not go beyond the terms of reference, but could only look into the questions which were specifically referred to it by Collector‑‑‑When question regarding limitation had not been considered by Collector, then Reference Court, could not look into question of limitation and said Court had no jurisdiction to determine question of limitation as it was entirely within the domain of Collector who had sent reference to Reference Court.

PLD 1998 SC (AJ&K) 30 and PLD 1998 SC 26 ref.

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

‑‑‑‑Ss. 4, 18 & 23‑‑‑Acquisition of land‑‑‑Determination of compensation‑‑‑Reference to Court‑‑‑Reference Court, while determining the price of acquired land, had to consider the matters provided in S.23 of Land Acquisition Act, 1894‑‑‑While determining the compensation of acquired land, provisions of Land Acquisition Act, 1894 were to be construed liberally in favour of public and strictly against Government‑‑­Fundamental purpose of Land Acquisition Act, 1894 was to provide complete indemnity to the owners‑‑‑Compensation of acquired land was a quid pro quo' and an equivalent in terms of money for the land with a view to fully reimburse and remedy the loss for expropriation of acquired land‑‑‑Whenever a land was acquired, the interest of the owners of land was to be safeguarded‑‑‑Principle for determining the compensation reflected anxiety of law giver to compensate adequately those who were deprived of property so as to givegold for gold' and not `copper for gold'‑‑‑Government should have more consideration for a citizen whose land if was not acquired compulsorily by Government, would be worth of million.

NLR 1991 (Rev.) 31 (sic); 1990 MLD 2158; AIR 1922 Cal. 386; PLD 1990 Lah. 472; 1981 CLC 556 and 1985 SCMR 165 ref.

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

‑‑‑‑Ss. 4, 11, 18 & 23‑‑‑Acquisition of land‑‑‑Determination of compensation‑‑‑Principles‑‑‑Compensation for acquired property must be fair and uniform as far as possible, while weighing evidence for determining the market value of the land‑‑‑Liberal attitude should be taken towards the person whose land was acquired‑‑‑While determining the compensation, the status of land acquired and its potentiality and its likelihood of development and improvement would be a criteria for determining the rate of compensation‑‑‑By `Potential value', means the value on account of the use to which land could be put in future‑‑­Reference Court had rightly enhanced compensation of acquired land keeping in view the potentiality and its likelihood for development and improvement as criteria for determining the rate of ,compensation.

PLD 1986 Kar. 164 and AIR 1964 Orisa 12 ref.

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

‑‑‑‑Ss.4, 5‑A, 6 & 23‑‑‑Acquisition of land‑‑‑Determination of compensation‑‑‑Value of the acquired land was to be determined on the basis of market value of land on the date of declaration under S.6 of Land Acquisition Act, 1894.

P L D 1992 FSC 398 ref.

(e) Word and phrases‑‑‑

‑‑‑‑"Potential value" ‑‑‑Meaning.

PLD 1990 Lah. 472 ref.

Reaz Naveed Butt, Addl. A.‑G. assisted by Muhammad Noor Ullah Qureshi for Appellants.

Syed Nazir Hussain Shah Kazmi for Respondents.

Date of hearing: 18th March, 2004.

P L D 2004 Azad J&K 30

Before Ghulam Mustafa Mughal, J

Ch. MUHAMMAD SALEEM and others‑‑‑Petitioners

Versus

COMMISSIONER MIRPUR DIVISION, MIRPUR and others‑‑‑Respondents

Writ Petitions Nos. 105, 127, 126, 125, 118 of 2003, decided on 17th March, 2004.

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

‑‑‑‑Ss.4 & 55‑‑‑Azad Jammu and Kashmir Land Acquisition Rules, 1994, Rr.6, 7 & 7‑A‑‑‑Acquisition of land‑‑‑Procedure‑‑‑Issuance of Notification under S.4, of Land Acquisition Act, 1894, was a sine qua non for initiation of proceedings for acquisition of property‑.‑Collector, after issuance of said Notification, had to report to the Commissioner, not later than 60 days from date of publication of said Notification and after receiving the report, Commissioner had to issue Notification under S.5 of Land Acquisition Act, 1894 within a period of one year from the date of publication of Notification under. S.4 of the Act‑‑‑If no Notification was issued by Commissioner within the period specified in Azad Jammu and Kashmir Land Acquisition Rules, 1994, Commissioner would immediately report the matter to Board of Revenue for extension of time‑‑‑In case of extension of time, Commissioner had to issue Notification under S.5 of Land Acquisition Act, 1894, within extended period, failing which proceedings would be deemed to have tome to an end.

PLD 1978 SC 190; 1989 CLC 508; PLD 1972 SC 271; PLD 1978 SC (AJ&K) 118; PLD 1991 SC 124; AIR 1958 Kerala 167; 1997 PLC (C.S.) 297; Nazar‑ul‑Hussain's case PLD 1990 Lah 472 and Muhammad Ashraf v. Nasreen Begum through Legal Heirs and 3 others PLD 1989 Lah. 69 ref.

(b) Administration of Justice‑‑‑

‑‑‑‑ If an action was to be taken in a particular manner, and was not taken in that manner, it would be deemed not to have been taken at all, which would mean that action so taken was without lawful authority‑‑‑If a, mandatory condition for exercise of jurisdiction before the Board, Tribunal or Authority, was not fulfilled, entire proceedings which followed, would be illegal and suffer from ‑want of jurisdiction‑‑‑Any order passed in continuation of those proceedings in appeal or revision, would equally suffer from illegality and would be without jurisdiction.

Ch. Muhalnmad Azam Khan and Ch. Khalid Rashid for Petitioners.

Ch. Muhammad Reaz Alam and Sardar Muhammad Raziq, Addl. A.‑G. for Respondents.

P L D 2004 Azad J&K 38

Before Sardar Muhammad Nawaz Khan, J

MUHAMMAD SHARIF KHAN and others‑‑‑Appellants

versus

Raja MUHAMMAD FARID KHAN and others‑‑‑Respondents

Civil Appeal No.80 of 2002, decided on 27th March, 2004.

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

‑‑‑‑S. 42‑‑‑Limitation Act (X of 1908), Art.113‑‑‑Suit for specific performance of contract‑‑‑Limitation‑‑‑Starting point‑‑‑Article 113 of Limitation Act, 1908 had two clauses and had provided three years of limitation for filing of a suit for specific performance of a contract; according to its 1st ‑clause, if a date was specified in the contract itself then starting point of limitation was the date so mentioned and plaintiff was required to file a suit for specific performance within three years from such date in case of a refusal on the part of vendor/defendant to perform contract‑ ‑‑Second clause of Art.113 of Limitation Act, 1908, had provided that when no such date was specified in the contract then the suit was to be filed within three years from the notice of refusal by opposite party‑‑‑Notice of refusal could be formal or informal‑‑‑When there was no formal notice of refusal by promisor/vendor, then refusal could be gathered from the conduct of promisor and the circumstances of the case‑‑‑Article 113 of Limitation Act, 1908, did not speak of period or time for specific performance, but it speaks of specification of a particular date.

(b) Interpretation of statutes‑‑‑

‑‑‑‑ interpretation of a provision of law besides other requirements, was always made primarily keeping in view the language used in it.

(c) Specific Relief Act (I of 1877)‑‑

‑‑‑‑S. 42‑‑‑Limitation Act (X of 1908), Art.113‑‑‑Suit for specific performance of contract‑‑‑Limitation‑‑‑Starting point of limitation‑‑­Article 113 of Limitation Act which had provided three years of limitation for filing of a suit for specific performance of a contract; had two clauses‑‑‑According to its 1st clause, if a date was specified in contract sought to be specifically performed itself, then‑ starting point of limitation would be such date as was mentioned in the said contract and plaintiff was required to file a suit for specific performance within three years from such date in case of a refusal‑‑‑Second clause of Art. 113 of Limitation Act, 1908 had provided that when no such date was specified in the contract, then suit was to be filed within three years from the notice of refusal by opposite party‑‑‑No particular date had been specified in contract sought to be performed, but only a period of one year was mentioned in it‑‑‑Clause 1st of Art.113 of Limitation Act, 1908, in circumstances was not attracted in the case filed by plaintiffs, but relevant clause would be second clause which had provided starting point of limitation from notice of refusal‑‑‑Plaintiffs in the present case had categorically pleaded that they had been demanding performance of contract by defendants, who on one pretext or the other had been evading registration of document and finally, after about seven years from execution of agreement to sell, categorically refused to fulfil his promise‑‑‑Such averment in plaint was found to have been substantiated satisfactorily through evidence on record‑‑‑Suit filed within three years from refusal of defendant, was within time and had rightly been decreed in favour of plaintiffs.

(d) Limitation Act (X of 1908)‑‑‑

‑‑‑‑Preamble, Ss.3, 5 & Art.113‑‑‑Nature, scope and application of Limitation Act, 1908‑‑‑Limitation Act, 1908 did not confer a right, but was only a regulatory enactment which regulated the rights of the parties‑‑‑Such regulatory provisions could not be allowed to extinguish vested right or curtailment of remedies unless all the conditions prescribed for curtailment were fully complied with in letter and spirit‑‑­Benefit of doubt, if any, should be given to the party who had acquired right of good consideration and not to one who was trying to back out from his commitment pocketing all the advantages and trying to shield himself behind the regulatory provisions of the statute and trying to deprive the other from the right acquired by him.

Sardar Khan for Appellants.

Said Hussain Kayani for Respondents.

P L D 2004 Azad (J&K) 43

Before Muhammad Reaz Akhtar Chaudhry, J

MUHAMMAD AFZAL and 2 others‑‑‑Petitioners

Versus

KHUSH‑HAL and another‑‑‑Respondents.

Revision Petition No.77 of 2003, decided on 6th April, 2004.

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

‑‑‑‑S. 8‑‑‑Civil Procedure Code (V of 1908), O. XIII, Rr.1, 2‑‑‑Suit for possession of land‑‑‑Production of documentary evidence ‑‑‑Principles‑‑­Defendants after closing of their evidence, filed application for production of copy of alleged registered gift‑deed executed in their favour, but said application was disallowed‑‑‑Validity‑‑‑Under provisions of O.XIII, R.1, C.P.C. no doubt it was the duty of parties to produce all documentary evidence of every description in their possession or power on the first date of hearing, but under provisions of O.XIII, R.2, C.P.C., even such document could be received at a subsequent stage of proceedings if a good cause was shown to the satisfaction of the Court for non‑production thereof and the Court felt that it was necessary for proper pronouncement of the judgment‑‑‑Court while considering such document, would not restrict itself to a particular line or scheme but would exercise its powers in each case according to the circumstances of such case‑‑‑Court would liberally construe O.XIII, Rr.1 & 2, C.P.C. because basic object and purpose of same was to administer and foster the justice‑‑‑Where prima facie, the authenticity or genuineness of a document, was beyond any doubt or suspicion, then it should be allowed, because a simple admission of a document, would not cause any harm as its reliability and effect had to be determined and while determining as such, it could be held that it was of no value, while in case of its rejection, its value or importance, would never be considered and its result could be an injustice‑‑‑Admission of a document was procedural law and procedure was only meant for doing proper and better justice.

(b) Administration of justice‑‑‑

‑‑‑‑ Rule of procedure‑‑‑All rules of procedure, were meant for the purpose of administration of justice and those should be subordinate to that very purpose‑‑‑Procedural law should be liberally adhered to because its basic object was to advance the cause of justice and not to defeat the ends of justice.

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

‑‑‑‑O. XIII, Rr.1, 2‑‑‑Production of document in Court ‑‑‑Principles‑‑­Provisions‑of O.XIII, R.1, C.P.C. contained that a party should produce all the documents in evidence on the first date of hearing‑‑‑First date of hearing would mean; the date on which the issues were framed; while R.2 of O.XIII, C.P.C. contained that no documentary evidence in power or possession of the party, which had 'not been ‑produced in accordance with the requirement of R.1‑, O.XIII, C.P.C.; would be, received at any subsequent stage, until and unless a good cause was shown to the satisfaction' of the Court for non‑production thereof‑‑‑Wisdom behind O.XIII, C.P.C. was to prevent the forged and fictitious documents and not to punish, for non‑production of the same in time‑‑Entirely discretionary with the Court‑to allow or reject a document‑‑‑Such discretion must be exercised, judicially according to circumstances of each case‑‑‑Fundamental purpose of R.1 of O.XIII, C‑P.C. was to exclude the forged and fictitious documents and to expedite the Trial but not to leave aside the genuine documents‑‑‑Any document, the genuineness of which was beyond any doubt could be allowed even at late stage‑‑‑When the Court found that a document was necessary for resolution of real controversy between parties, then it could not be disallowed, if its genuineness was beyond any shadow of doubt‑‑­Document which petitioners wanted to produce, was a registered gift-­deed according to which the executant of said gift‑deed had transferred land in dispute to petitioners by way of gift‑‑‑Said document being necessary for just decision of case its admission in evidence, could not be declined‑‑‑Trial Court was not justified to decline production of said gift‑deed.

PLD 1984 Lah. 139;1987 CLC 504 and PLD 1984 Azad J&K 41 ref.

Miss Nabeela Nazir for Petitioners.

Sh. Abdul Aziz for Respondents.

Date of hearing: 6th April, 2004.

P L D 2004 Azad J&K 49

Before Muhammad Reaz Akhtar Chaudhry, J

NAWAB DIN through Muhammad Liaquat, Attorney---Petitioner

versus

MUHAMMAD ISHAQUE and another---Non-Petitioners

Civil Revision No.42 of 2004, decided on 23rd June, 2004.

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

----S. 9---Jurisdiction of Civil Court---Determination of---Ouster of jurisdiction of Civil Court---Where the Court had to draw a presumption regarding jurisdiction of Civil Court, then it had to draw every presumption in favour of the jurisdiction of Civil Court---Any provision of law ousting the jurisdiction of Civil Court must be construed strictly and the ouster of jurisdiction of Civil Court was not to be inferred until and unless the words used in the Statute made it clear that basic intention of the Legislature was to take away the jurisdiction of Civil Court--­Jurisdiction conferred upon Civil Court under S.9, C.P.C. undoubtedly could be restricted or modified by the Legislature through law, but such law must be construed strictly.

2003 YLR 1788; 2000 SCR 211; PLD 1994 Pesh. 249; PLD 1983 Quetta 52; AIR 1965 AP 326; AIR 1962 Pb. 340; AIR 1942 Lah. 217; 1986 CLC 1301;1984 CLC 3216; 1980 CLC 713 ref.

(b) Interpretation of statutes---

----Intention of the Legislature---Court while interpreting a Statute, bad to consider the basic intention and purpose of the Legislature---Basic intention and purpose of the Legislature could be gathered from the words used in the Statute---Legislative purpose was the reason why the particular enactment was passed by the Legislature---Such reason could be to remedy some existing evil or to correct some defect in existing law or to create a new right or a new remedy---While considering the Legislative purpose, the Court had to resort to the circumstances existing at the time of enactment of law.

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

----Ss. 53 & 172(2)---Civil Procedure Code (V of 1908), S. 9---Specific Relief Act (I of 1877), S. 42---Jurisdiction of Civil Court---Ouster of jurisdiction---If any right of a person was affected by entries of Revenue Record, he could invoke jurisdiction of Civil Court---Section 53 of West Pakistan Land Revenue Act, 1967, conferred complete jurisdiction upon Civil Court regarding any right which had been affected by an entry in the record of rights or a periodical record, while S. 172(2)(vi) of West Pakistan Land Revenue Act, 1967 contained that a Civil Court would not have jurisdiction, regarding correction of entries in the record of rights, periodical record or register of mutation---Both the -provisions were contradictory---Provision S.53 of West Pakistan Land Revenue Act, 1967 had conferred complete jurisdiction upon the Civil Court regarding any entry affecting any right of a person while according to S. 172 of said Act, the correction of am entry in the record of rights or periodical record, was not cognizable by the Civil Court---Both the provisions of law being contradictory. presumption should be construed and made in favour of jurisdiction of Civil Court---Any provision of law ousting the jurisdiction of Civil Court must be construed strictly and ouster of the jurisdiction of Civil Court was not to be inferred, unless and until the words used in the Statute made it clear that intention of Legislation was to take away the jurisdiction of Civil Court---Present suit being a suit for declaration under S. 42 of Specific Relief Act, 1877, same was cognizable by Civil Court as laid down in S. 53 of West Pakistan Land, Revenue Act, 1967.

PLD 1983 Quetta 52 ref.

Muhammad Yunus Arvi for Petitioner.

Zafar Hussain Mirza for Non-Petitioners.

Date of hearing: 23rd June, 2004.

P L D 2004 Azad J&K 55

Before Muhammad Reaz Akhtar Chaudhry, J

FAZAL HUSSAIN ---Appellant

versus

ALI BEGUM and 41 others---Respondents

Civil Appeal No. 105 of 2003, decided on 25th June., 2004.

(a) Transfer of Property Act (IV of 1882)---

----S. 44--Transfer of property by a co-sharer---Only a co-sharer retaining the possession of specific survey number could transfer the same--If the co-sharer was not retaining the possession of specific survey number, then he could not transfer the whole of said survey number ---Co-sharer could only transfer his share from that specific survey number.

(b) West Pakistan Land Revenue Rules, 1968---

----S. 40---Alteration in Register Girdawri---Scope---No alteration could be made in register of Girdawri after Dhal Bach of the respective harvest had been drawn up, except with the sanction of Collector---When once Khasragirdawri was completed, then no change in the entry could be drawn without permission of the Collector.

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

----S. 147---Affirmation of partition privately effected ---Requirement--­Even private partition had to be affirmed by Revenue Officer and in case any partition had been made without intervention of Revenue Officer, the party had to apply and Revenue Officer, after receiving application, had to enquire into the case and if it was found that the partition had, in fact, taken place, then he could affirm it otherwise not.

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

----S. 42---Transfer of Property Act (IV of 1882), Ss. 44 & 122---Suit for declaration---Transfer of specific survey number through gift by one of the co-sharers from joint Khata---Specific survey numbers had been gifted by defendant while he was not retaining exclusive possession ,of said survey numbers and same remained under joint possession of plaintiff and others including the defendant---Defendant was not entitled to transfer said specific survey numbers through gift-deed; he was only entitled to transfer his share from those survey numbers---Even mutation sanctioned on basis of the gift-deed also contained joint possession, which would mean that donor was not in exclusive possession of land--­Judgment and decrees passed by Courts below were set aside and suit filed by plaintiff was decreed to the extent that gift-deed executed by defendant for specific survey numbers, was set aside and rest was kept intact only to the extent of the share of defendant from said survey numbers.

2000 CLC 1750; PLD 1979 SC(AJ&K) 242; PLD 1978 SC(AJ&K) 78; 1980 CLC 196; PLD 1987 Azad J&K 85 and 2000 SCR 17 ref.

Sardar Muhammad Azam Khan for Appellant.

Ch. Muhammad Sabir for Respondents.

Date of hearing: 25th June, 2004.

P L D 2004 Karachi 1

Before Muhammad Roshan Essani and Mushir Alam, JJ

Mst. AQILA BEGUM and another---Petitioners

Versus

PAKISTAN EMPLOYEES COOPERATIVE HOUSING SOCIETY LTD and others---Respondents

Constitutional Petitions Nos.D-1662 and D-1480 of 1999, decided on 28th May, 2003.

(a) Cooperative Societies Act (VII of 1925)--------

--------Ss. 54 & 70-A---Matter relating to Cooperative Society---Bar of jurisdiction---Essential conditions highlighted.

Section 54 read with section 70-A of Cooperative Societies Act, abdicates jurisdiction of the Court in respect of the matter in which jurisdiction to decide and dispose of the controversy rests either with Provincial Government, the Registrar or his nominee or any other person empowered under the Act of 1925 or the Rules or By-Laws framed thereunder. All acts, deeds, orders and actions taken by any functionary under Cooperative Societies Act, which may touch or relate to the business of Society and have direct bearing on any member or a person claiming through a member of the Society, if both such conditions are fulfilled, then effective remedy is provided under Cooperative Societies Act. Such bar of jurisdiction can effectively be invoked in a dispute, which relates or touches the business of Society, such dispute may be by and between the members, past members or any person claiming through or under such member or by such person against the past or present officer of the Society or inter se between Society and/or its Committee.

(b) Cooperative Societies Act (VII of 1925)-------

---------Ss. 54 & 70-A---Constitution of Pakistan (1973), Art. 199---­Matter relating to Cooperative. Society---Constitutional petition--­Maintainability---Party raising plea of availability of alternate and efficacious remedy to petitioner under Cooperative Societies, Act, 1925----­Mandatory conditions to be satisfied, stated.

Where maintainability of petition is challenged on premise of availability of efficacious and alternate remedy in the case of a Cooperative Society; party raising such plea has to demonstrate, firstly, that petitioner is member or is claiming through a member, secondly, that the matter in controversy touches or relates to the business of Society and lastly, that dispute is between member or person claiming through a member and Society or by and between the Committee of Society or between any of the said persons inter se. First mandatory and foremost condition to invoke jurisdiction under Cooperative Societies Act is that person must fall within the category or class of persons mentioned in section 54 thereof.

Samit Ali Khan v. Zainab Irshad PLD 1997 Kar. 450; Pakistan Employees Cooperative Housing Society Ltd., Karachi v. Mst. Anwar Sultana and another PLD 1969 Kar. 474; Mukhtar Baig and others v. Sardar Baig and others 2000 SCMR 45 and Muhammad Mushtaq Khan v. Pakistan Employees Cooperative Housing Society and others C.P. No.D-902 of 1983 ref.

(c) Transfer of Property Act (IV of 1882)--------

-----S. 8---Operation of transfer---Transferee could not derive better title and right than what was possessed by his predecessor i.e. transferor.

(d) Administration of justice-------

-------Matter remanded to domestic Tribunal by higher Court---Any attempt to side track the issue and decide matter in a manner not directed by higher Court would be a defiance of remand order---Civil Procedure Code (V of 1908), O.XLI, R.23.

Jameel Ahmad v. Saifuddin PLD 1994 SC 501 fol.

H.A. Rehmani and Mumtaz Ahmed Shaikh for Petitioners (in C.P. No. D-1662 of 1999).

Saifuddin, Ali Muhammad Memon, Nadeem Azhar Siddiqui, D.A.-G. and Sarwar Khan, Addl. A.-G. for Respondents.

Date of hearing: 6th February, 2003.

P L D 2004 Karachi 8

Before Zahid Kurban Alvi, J

SOBHO and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.S-90 of 2001, decided on 1st October, 2003.

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

----S. 302/34---Criminal Procedure Code (V of 1898), S.103--­Appreciation of evidence ---F.I.R. was lodged after a delay of two hours--­Eye-witnesses were admittedly. interested and closely related inter se whose version needed independent corroboration which was lacking--­Ocular evidence was contradictory---Weapons recovered from the accused were not sent to Ballistic Expert for opinion---Both the Mashirs being police personnel, recovery was in violation of S.103, Cr.P.C.---Ocular testimony having come from interested and closely related witnesses, reliance by the Trial Court on the same alone to justify conviction of the accused was against the well-settled principles of law--­Acquittal of some accused and conviction of others on the same set of evidence, by the Trial Court, in the absence of direct corroboratory evidence was unwarranted---Accused were given the benefit of doubt and acquitted in circumstances.

Muhammad Iqbal v. The State 1984 SCMR 930; Mehmood Ahmed v. The State 1995 SCMR 127; Haji Sattar Muhammad v. Muhammad Aslam 1990 PCr.LJ 1286; Amir Bux v. The State 1990 PCr.LJ 1765; Ziaullah v. The State 1993 SCMR 155; Rab Rakhio v. The State 1992 SCMR 793; Mansha v. The State 2001 PCr.LJ 1590; Habib-ur-­Rehman v. The State RLD 1994 Pesh. 126; Mir Hassan v. The State 1999 SCMR 1418; Mehrban v. Haji Abdul Hamid @ Majid PLD 1983 SC 117; Ghous Muhammad v. The State 1971 PCr.LJ 108; Mujahid Hussain v. The State 1995 SCMR 1573 and Mansha v. The State 1994 PCr.LJ 935 ref.

Muhammad Ayaz Soomro for Appellant.

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

Date of hearing: 21st May, 2003.

P L D 2004 Karachi 17

Before Muhammad Moosa K. Leghari, J

ABDUL HAMEED KHAN---Plaintiff

Versus

Mrs. SAEEDA KHALID KAMAL KHAN and others---Defendants

Suit No. 128 of 1981, decided on 30th September, 2003.

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

----O. VI, R. 14---Pleadings---Power of attorney---Authority to sign--­Proof---Non-mentioning of authority in plaint signing the same---Plaint was filed through attorney but such fact was not mentioned in the plaint--­Power of attorney was only annexed with the plaint but neither the power of attorney was mentioned in the list of documents filed nor it had been shown to be a document relied upon by the plaintiff--Effect---Annexing of the power of attorney alongwith Vakalatnama was not enough to conclude that the signatory was duly authorized to sign and verify the plaint as contemplated udder O.VI, R.14, C.P.C.---To prove the requirement of O.VI, R.14, C.P.C., the plaintiff should have pleaded by clearly stating in the body of plaint that the signatory was duly authorized to sign the plaint---When the same was not pleaded in the plaint, then the signatory of the plaint was not authorized to sign and verify the plaint--­Suit was not instituted competently and was dismissed in circumstances.

Basdeo v. John Smidt (1899) 22 All. 55 = 1899 AWN 172; Bisheshar Nath v. Emperor (1918) 40 All. 147; Secretary of State v. Dinshano Navrrji and another AIR 1925 Sindh 275; AIR 1925 Lah. 338; Messrs Gulf Air v. Messrs Shakil Air Express (Pvt.) Ltd. PLD 2003 Kar. 156 and Messrs Gotecon Trading Ltd. v. Government of Pakistan and others Suit No.209 of 1995 ref.

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

----O.VI, R.2---Signing of plaint---Material fact---Signing of plaint by duly authorized person was a material fact as required under O.VI, R.2, C.P.C.---Validity---All facts which though not necessary to establish the cause of action or defence but which the party to pleading was required to prove at trial are also material facts---Signing of plaint by duly authorized person is a "material fact" and the same has to be pleaded in the plaint.

PLD 1947 PC 180 rel.

(c) Civil Procedure Code (V of 1908)—

----O. VI, Rr. 2 & 14---Institution of suit competently---Proof---Name of attorney mentioned in title of plaint---Failure to state such fact in body of plaint---Effect---Mere, mention of the name of attorney in the title of the plaint is not enough to prove that the suit has been competently instituted---Title of suit cannot be treated as part of plaint as it is not covered by the verification appended to at the foot of the plaint.

AIR 1974 All. 413; Ch. Sultan Ahmad through Legal Heir and others v. Salima Begum and others PLD 1994 Lah. 111 rel.

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

----S. 42---Benami transaction---Proof---Plaintiff claimed to be owner of the suit property and alleged the defendant as only Benamidar---Original title documents were produced in evidence through defendant's witness--­Factum of possession of suit property with defendant was not denied--­Defendant had earlier got the plaintiff evicted from the suit properly--­Motive for Benami transaction as alleged by the plaintiff was not believable---Effect--Plaintiff failed to plead in the plaint to establish that he had purchased the property in the name of his daughter-in-law instead of his own sons through Benami transaction---No blood relation existed between the plaintiff and the defendant/Benamidar, except that the defendant was married to one of his sons---Suit was dismissed in circumstances.

Muhammad Sajjid Hussain v. Muhammad Anwar Hussain 1991 S C M R 703 ref.

A. Rauf for Plaintiff.

Abid S. Zuberi for Defendant No. 1.

Date of hearing: 10th September, 2003.

P L D 2004 Karachi 28

Before Muhammad Moosa K. Leghari, J

RIZWAN WAHID and others---Plaintiffs

Versus

PRESIDING OFFICER, SPECIAL COURT (OFFENCES IN BANK) and another---Defendants

Suit No.862 of 2002, decided on 30th September, 2003.

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

------Ss. 42 & 54---Declaration of title---Assailing of judgment passed by Criminal Court---Dispute was with regard to possession of suit property--­Plaintiffs asserted that the suit property was sold and possession was delivered to the buyer as major portion of consideration amount was received by the predecessor of the plaintiffs---Buyer disappeared and balance consideration amount remained unpaid, therefore, the plaintiffs recovered the possession---Criminal proceedings were initiated by the defendant Bank against the buyer for commission of fraud---Court, during the criminal proceedings, had found the Bank entitled to possession of the suit property as the same was purchased with the money of the defendant Bank---Criminal Court had provided ample opportunity to the plaintiffs to put forward their case, but they failed to satisfy the Court---Plea raised by the plaintiffs was that order of Criminal Court m determining the title was not conclusive---Validity---Hands of plaintiffs were soiled and they had Court with sly and -catty faces---Plaintiffs, from the beginning took unfair advantage and had manipulated the situation in their favour---Predecessor of plaintiffs having appropriated the larger portion of the sale consideration consequently they could not be declared the owners of the suit property---Judgment passed by Criminal Court had attained finality„ thus the same could not be questioned in the civil suit--­Declaratory relief being a discretionary relief, the same could not be granted to the plaintiffs approaching the Court with unclean hands or it would have clothed the suit or with an undeserving advantage or would have inflicted unjustified loss on the defendant-Bank---Plaintiffs had no legal character to maintain the suit and the same was dismissed in circumstances.

18 CWN 1146; ILR 27 Bom. 293; AIR 1971 SC 385; PLD 1970 SC 343; 1968 SCMR 509; PLD 1966 Lah. 953- and PLD 1986 Kar. 74 distinguished.

Ghulam Ali Khokhar for Plaintiffs.

Nemo for Defendants.

Date of hearing: 17th September, 2003.

P L D 2004 Karachi 33

Before Ghulam Nabi Soomro, J

SALMAN SHAHZAD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.638 of 2001, decided on 9th August, 2003.

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

----S. 497(2)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail, grant of---Further inquiry--­Accused remained in police custody for full one week and no explanation was forthcoming for not taking him to Magistrate for purpose of holding of the Identification Test---Accused had remained in custody, for about four months---Case of accused was covered under subsection (2) of S.497, Cr.P.C. for further inquiry---Accused was admitted, to bail, in circumstances.

1999 P Cr. L J 412; 1987 M L D 1003 and 1987 P Cr. L J 2423 ref.

Shahadat Awan for Applicant.

Javed Akhtar for the State.

P L D 2004 Karachi 35

Before Ata-ur-Rehman and S. Ali Aslam Jafri, JJ

EMIRATES INTERNATIONAL AIRLINES OF U.A.E., KARACHI and 29 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Defence, Islamabad and 6 others---Respondents

Constitutional Petition No. D-122 of 1998, decided on 21st August, 2003.

Contempt of Court Act (LXIV of 1976)-----

----S. 3---Contempt of Court---Application against contemners/ respondent-Authorities for violating Court's order which had declared the demand notice addressed to applicants as without lawful authority and at the same time one of the respondents which was required to perform its duties in the public interest within specified limits of its authority, was directed to restore water supply to applicants---Other respondent was directed to make appropriate arrangements for water supply and if necessary, approach the respondent for issuance of proper Notification--­Applicants had alleged that contemners came to the site alongwith Rangers and unlawfully disconnected main sewerage line of their property---Alleged contemner in his counter-affidavit though had admitted that sewerage line had been disconnected, but denied the allegation that while doing so any violation of Court's order had been made---Action taken by contemners, was not covered by order passed by Court and it could not be said that it had been violated---Applicant could have a fresh cause of action if any illegality had been committed by alleged contemners and for that applicants were at liberty to resort to legal remedies like filing of fresh petition or a civil suit.

Ikram Ansari for Petitioners.

Altaf Hussain for Respondent No.6.

Abdul Karim Khan for the Water Board.

Kazi Khalid, A.A.-G.

P L D 2004 Karachi 36

Before Muhammad Afzal Soomro, J

MUHAMMAD AHMED KHAN---Applicant

Versus

Raja FARHAT IQBAL and another---Respondents

Criminal Revision No.77 of 2003, decided on 25th August, 2003.

Pakistan Prison Rules-----

----R. 248(b)(iii)---Penal Code (XLV of 1860), S.302/34---Superior class in jail, entitlement to---Petitioner had impugned order of Sessions Judge whereby accused, who was convicted under S.302, P.P.C. was held entitled to superior class in jail where accused was presently confined--­Accused was simply a Graduate from Karachi University and neither any other qualification had been mentioned which could show that accused was an exceptionally highly educated or professionally qualified person nor any evidence was brought on record to show that accused had status of superior mode of life---Accused had not been reported to have been suffering from: serious disease which could have been an alternate ground for granting him better class in jail---High Court in exercise of its revisional jurisdiction, set aside order passed by Sessions Judge whereby superior class was granted to the accused in jail by misinterpreting provisions of R.248(b)(iii) of Pakistan Prison Rules.

Shahadat Awan for Applicant.

Sardaruddin for the State.

P L D 2004 Karachi 38

Before Rahmat Hussain Jafferi and Gulzar Ahmed, JJ

ALI DOST---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.D-771 of 2002, decided on 6th February, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.337(f)(v)---Bail, grant of---Two co-accused were let off by the police despite specific allegation of causing fire-arm injury on the chest of complainant was made against them--­Accused had been assigned the part of causing injury which was punishable with imprisonment of five years---Question of delay of more than one year in issuing final medical certificate was also creating suspicious circumstances which could be determined at the time of trial--­Vicarious liability of accused persons was yet to be determined at the time of the trial in view of investigation conducted by police where two co­ accused were let off---Accused was entitled for concession of bail, in circumstances.

Muhammad Ayaz Soomro for Applicant.

Ali Azher Tunio; Asstt. A.-G. for the State.

P L D 2004 Karachi 40

Before Muhammad Roshan Essani and Khilji Arif Hussain, JJ

MARBLE INTERNATIONAL (PVT.) LTD.--- Petitioner

Versus

KARACHI ELECTRICAL SUPPLY CORPORATION and others---Respondents

Constitutional Petition No.545 of 2003, decided on 16th May, 2003.

Electricity Act (IX of 1910)---

----S. 20---Constitution of Pakistan (1973), Art. 199--Constitutional petition ---Charge of theft of electricity---Petitioner had prayed that site inspection reports of Authorities be declared false, fabricated and of no legal consequences--- F.I.R lodged against petitioner alleged that raiding party, while raiding the place occupied by petitioner, had found theft of electricity occurring by dodging electricity meters installed in that place-­F.I.R. showed that place in question was factory whereas claim of petitioner was that he had nothing to do with the factory named in the F.I.R. nor the said factory ever existed there---Petitioner had further alleged that wrong facts had been mentioned in the F.I.R. and prior notice as provided under S.20 of Electricity Act, 1910 was never issued to him before the registration of F.I.R. Disputed question of facts raised in the Constitutional petition could not be investigated by High Court---Matter in dispute was already before competent forum, for adjudication where petitioner could approach and establish that his property was not involved in any manner and that factory named in the F.I.R. did not exist at the stated place and that he was in no manner associated with the said factory.

Munib Ahmed Khan for Petitioner.

Date of hearing: 30th April, 2003.

P L D 2004 Karachi 43

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

Messrs ATIF BUILDERS PVT. LTD. through Chief Executive---Petitioner

Versus

GOVERNMENT OF SINDH through Secretary, Ministry of Housing and Town Planning, Karachi and 2 others---Respondents

Constitutional Petition No.2514 of 1995, decided 2003.

Constitution of Pakistan (1973)---

-----Art. 199---Writ of mandamus, issuance of---Petitioners had alleged that they had deposited huge amount with the Authority long ago for allotment of land to them but planning of Scheme and other formalities for allotment were not being finalized---When the Development Authority transferred the land in question to the concerned Authority, petitioners were found not entitled to allotment/lease of land in question---Petitioners had indicated that they would be contented with refund of amount deposited by them--Despite matter with regard to refund of amount to petitioner was decided, but refund had not been made---Such type of in­action was ridiculous on part of the Authority to usurp money of citizens kept in trust and keep on refusing payment of acknowledged liability occurring more than sixteen years ago despite several orders of High Court in that behalf---Official Assignee of High Court was directed to attach immovable properties of the Authority unless a cheque was deposited in Court within specified -period---If the deposit was not made within specified period, order of attachment would become effective immediately and Authority would also be further liable to pay compensation at the rate of 14% per annum for any delayed payment of amount.

S. M. Sayeed, Chief Executive of Petitioners (present in person).

Dr. Kazi Khalid Ali, Addl. A.-G., Sindh for Respondent No.1.

S. Jamil Ahmad for Respondent No.2.

P L D 2004 Karachi 45

Before Muhammad Roshan Essani and Khilji Arif Hussain, JJ

MOOSA and others---Appellants

Versus

ZAFAR MUHAMMAD GAZNAVI and others---Respondents

High Court Appeal No.286 of 2002, decided on 16th May, 2003.

Civil Procedure Code (V of 1908)---

----S. 12(2) & O.XXIII, R. 3---Law Reforms Ordinance (XII of 1972), S.3---High Court Appeal---Suit for specific performance of agreement--­Compromise decree---Application for setting aside decree on ground of fraud---Defendant filed written statement in which he had admitted each and every allegation leveled by plaintiff against him---Within a month's time after filing of suit both plaintiff and defendant filed application under O.XXIII, R.3, C.P.C., in which it was requested to dispose of the suit and decree be passed in terms of compromise arrived at between the parties--­High Court, instead of passing decree in terms of alleged compromise, ordered that parties should appear before Official Assignee, who, after examining parties and examining record, would submit report about genuineness of the parties, suit properties and alleged agreement between the parties---Official Assignee after examining parties submitted report and plaintiff sought time to file objections to the said report---High Court, by its order directed the Authorities to be present in person with record pertaining to suit-land---Parties without drawing attention of the High Court about said order, obtained an order from the Court accepting compromise application---Government, on coming to know about the compromise decree Government filed application under S.12(2), C.P.C. to set aside the said decree' which was allegedly obtained by plaintiff and defendant by fraud and misrepresentation---High Court, with consent of plaintiff granted said application filed by Government and set aside consent decree with directions that suit be fixed for evidence---Defendant had filed appeal against said consent order in which it was alleged that same was passed without notice to him who was one of the beneficiary in compromise decree---Defendant had failed to produce any record to establish that suit-land which he had sold had been owned by him and that as to why he had given consent to pass consent decree just after one month of filing suit by plaintiff for enforcement of agreement executed about 22 years ago---Parties also failed to prove that sale consideration had been passed between them---High Court appeal by plaintiff was dismissed with direction that main suit should be disposed of within specified period.

Moula Bux Bhatti for Appellant.

Ghulam Abbas for Respondent No. 1.

Abbas Ali, Addl. A.-G. for Respondent No.2.

Date of hearing: 29th April, 2003.

P L D 2004 Karachi 48

Before Anwar Zaheer Jamali, J

Mst. SUGHRAN and 11 others---Petitioners

Versus

MUHAMMAD ISHAQUE and another---Respondent

Constitutional Petition No. 128 of 2003, decided on 29th May, 2004.

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

----Ss. 15(2)(vii) & 21---Constitution of Pakistan (1973), Art.l-99--­Constitutional petition---Bona fide and personal need of landlord --­Ejectment application filed by landlord on sole ground of his personal bona fide need in respect of shop in question was resisted by tenant on the ground that landlord in his cross-examination had himself admitted that he was working in post office as peon, though temporarily---Landlord had stated in cross-examination and which was also confirmed by other witnesses that service of landlord in post office as peon was purely temporary and that in the past also twice he was removed from service--­Such temporary engagement of landlord, could not be taken as his disqualification for seeking ejectment of tenant from rented shop for his personal bona fide need---Landlord was neither expected nor it was the spirit of law that till ejectment application filed by landlord on ground of his personal bona fide need was finally decided, landlord should sit idle or to maintain status quo to prove his bona fides---Contention of tenant that according to one of clauses of tenancy agreement, landlord would not be competent to eject tenant, was repelled because any condition provided in rent agreement which was in conflict with statutory provisions of Sindh Rented Premises Ordinance, 1979 or against Public Policy, was void and could not be enforced through or defended before any Court of Law--­Concurrent findings of Rent Controller and Appellate Court below being based on proper assessment of evidence on record, could not be interfered with by High Court in exercise of its Constitutional jurisdiction.

Fazal Azim and another v. Tariq Mahmood and another PLD 1982 SC 218; Saifullah v. Muhammad Bux and 2 others 2003 MLD 480 and Messrs Mehraj (Pvt.) Ltd. v. Miss Laima Saeed and others 2003 MLD 1033 ref.

Mansoorul Haq Ansari for Petitioner.

Anwar A. Khan for Respondent No.1.

P L D 2004 Karachi 52

Before Muhammad Roshan Essani and Khilji Arif Hussain, JJ

SINDH INDUSTRIAL TRADING ESTATES LTD.---Appellant

Versus

MUHAMMAD ILYAS and another---Respondent

High Court Appeal. No.74 of 2002, decided on 23rd April, 2003

Transfer of Property Act (IV of 1882)-----

----Ss.105 & 108---Law Reforms Ordinance (XII of 1972), S.3---High Court Appeal---Lease of property---Lessee of plot having died, his legal heirs who had obtained letters of administration in respect of assets left by the deceased lessee, approached the lessor to mutate their names in record m respect of the plot---Lessor instead of mutating plot in the names of legal heirs of the deceased lessee, filed application to recall Letter of Administration granted to legal heirs of the deceased in respect of the plot---High Court after hearing parties, dismissed application filed by the lessor and directed him to mutate plot in the names of legal heirs of deceased in accordance with law---Validity---Lessor had failed to point out any clause in lease deed whereby lessor had been authorized either to terminate the lease in case of death of lessee or that the right accrued to lessee could not be inherited by his legal heirs---Plot in question was one of the assets left by deceased which stood in the name of deceased lessee at the time of his death and his legal heirs would inherit the same with whatever right deceased had in it and if there was any defect in the title of said plot, legal heirs of deceased would inherit such defective title---Mere fact that plot had been mutated in the names of legal heirs of deceased, would not mean that defect, if any, initially attached to the same had been wiped off nor same would disentitle lessor to take action against legal heirs of the deceased lessee---Court, in the matter pertaining to letters of administration, had only determined question about the assets left by deceased and inherited by legal heirs, but merely because letters of administration had been issued, same would not tantamount to confirming title of legal heirs of deceased lessee---High Court in its order had observed that lessor could take necessary steps in accordance with law if there was violation of restrictive covenant or deceased lessee was not entitled to allotment/lease.

S.A. Samad Khan for Appellant.

Miss Sofia Saeed for Respondent No. 1.

Muhammad Sarwar Khan, Addl. A.-G., Sindh for Respondent No.2.

Date of hearing: 23rd April, 2003.

P L D 2004 Karachi 55

Before Muhammad Roshan Essani and Khilji Arif Hussain, JJ

MUHAMMAD SIDDIQUE---Petitioner

Versus

DIRECTOR-GENERAL, CIVIL AVIATION AUTHORITY and others---Respondents

Constitutional Petition Nu.231 of 2003, decided on 16th May, 2003.

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

----S. 28---Constitution of Pakistan (1973), Art.199---Constitutional petition---Easement right to use open place---Petitioner, who was one of the villagers, had claimed that villagers were using open place of land owned by the Authority and had right to use the same without any hindrance from the said Authority---Petitioner had sought relief that Authority be directed to re-open gate and entrance of said open place which had been closed by the Authority without any lawful reason--­Petitioner who invoked Constitutional jurisdiction ought to have established his legal right in respect of said open place, but he had no right of any nature in respect of land in dispute which admittedly belonged to the Authority---Petitioner, who had sought enforcement of his alleged easement right having failed to establish his legal right in respect thereof, his petition was liable to be dismissed---Petitioner, if had any grievance, proper remedy for him was to seek relief before another forum as disputed question of facts could not be entertained in exercise of Constitutional jurisdiction.

Ghulam Rasool Rind for Petitioner.

Faisal Kamal for Respondents.

Date of hearing: 23rd April, 2003.

P L D 2004 Karachi 57

Before Muhammad Roshan Essani and Khilji Arif Hussain, JJ

Syed ALLAUDDIN SHAH---Petitioner

Versus

SECRETARY INDUSTRIES, GOVERNMENT OF SINDH and others---Respondents

Constitutional Petition No.2048 of 1999, decided on 16th May, 2003.

Excise Duty on Minerals (Labour Welfare) (Sindh) Rules, 1969-----

----Sched.---Pakistan Mineral Concession Rules, 1960, Third Sched, [as amended]---Constitution of Pakistan (1973), Art.199 --- Constitutional petition---Imposing and collecting royalty on Rati/Bajri--- Petitioner who claimed to be President of Rati/Bajri Truck Owners Association, had contended that no royalty could be imposed and collected, on Rati/Bajri carried to Karachi on trucks as the Authority had not issued any Notification in that regard and that in Schedule of Excise Duty on Minerals (Labour Welfare) (Sindh) Rules, 1969 only `gravel Ord' had been mentioned whereas Rati and Bajri had not been mentioned in the said Schedule, at best Authority could recover royalty on gravel, but action of Authority collecting royalty on Rati/Bajri was without any lawful authority---Validity---Directorate of Mineral Development had issued a Letter/Notification No.MD/CDN-4(477)99/1.781-86 dated 25-6-1999 informing the decision of Government of Sindh for collection of royalty on. material including Rati/Bajri---Said Notification while authorizing collection of royalty on Rati and Bajri, had also fixed rates in that respect---Imposing royalty on Rati and Bajri, in view of the said notification, petitioner had no case to question collection of the royalty, especially when petitioner had not alleged that Notification inserting Rati and Bajri in the. Schedule had been issued without any lawful authority or any rules or regulations had been violated while issuing said Notification.

Nazeer Ahmed and 8 others v. Commissioner, Lahore Division, Lahore 2000 MLD 322 ref.

Zia Ahmed Awan for Petitioner.

Muhammad Sarwar Khan, Addl. A.-G., Sindh with Tanveer Azhar Siddiqui; Law Officer, Mines Labour Department.

P L D 2004 Karachi 60

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

NADIR KHAN---Petitioner

Versus

TOWN OFFICER (MUNICIPAL REGULATION), SHAH FAISAL COLONY, KARACHI and another---Respondents

Constitutional Petition No.2298 of 2001, decided on 16th September, 2003.

(a) Oath---

---- Statement on oath---Effect---Such statement is required to be given effect to unless rebutted by a statement on oath.

(b) Natural justice, principles of---

----Passing of order without giving opportunity of hearing---Principles--­Owing to urgency, an initial order, which is not completely destructive of the. affected person's rights, may be passed without hearing him--­Principles of natural justice stand fulfilled if the affected person is heard afterwards and the original position can be restored.

(c) Sindh Public Property (Removal of Encroachments) Act (V of 1975)-----

----Ss. 3, 4 & 5---Removal of encroachment order---Compliance---Taking of forcible action---Scope---Such action by way of demolition or ejectment can only take place after expiry of seven days from the service, of order when no review petition is preferred and in case such petition is made then after dismissal of the petition.

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

----Art. 204---Contempt of Court---Jurisdiction of High Court---Settling of private dispute---Applicant did not file affidavit-in-rejoinder for the reasons that there was possibility of compromise between the parties--­Validity---High Court appreciated amicable settlement of dispute but contempt jurisdiction of High Court could not be exercised for settling private scores---Application was dismissed in circumstances.

Muhammad Amin Lakhani for Petitioner.

Qazi Khalid Ali, Addl. A.-G.

Manzoor Ahmad for Respondents Nos.1 and 2.

Muhammad Ashraff Kazi for alleged Contemnor Zubair Ahmad Mughal.

P L D 2004 Karachi 63

Before Muhammad Roshan Essani and Khilji Arif Hussain, JJ

Baba M. ATIF SHAH TAJI and 4 others---Petitioners

Versus

Mst. SALIMA ZAHEEN and others---Respondents

Constitutional Petition No. 1744 of 2002, decided on 16th May, 2003.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.XXIII, R.I---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for declaration---Withdrawal of suit with permission to tile fresh one--­Plaintiff, during pendency of suit, filed application for withdrawal of suit with permission to file fresh suit on the same cause of action---Plaintiff in his application had stated that necessary amendments were required to be made in the light of decision taken by superior Courts in such-like matters---'trial Court accepted application of plaintiff holding that some formal defects were in the plaint, and that plaintiff had a right to withdraw the suit at any moment at any stage---Revision against order of Trial Court was also dismissed---Validity---Person who had not joined as party in proceedings could not question order passed by Courts below---Other defendants who were legal heirs of original defendant had themselves taken stand that after death of their father, suit against them had abated and thus they also could not question concurrent orders of Courts below--­In absence of any illegality or irregularity, concurrent orders passed by Courts below could not be interfered with by High Court in exercise of its Constitutional jurisdiction.

M. Ismail Kassim for Petitioners.

Fiazul Hassan Shah for Respondents Nos. 1 and 2.

Date of hearing 30th April, 2003.

P L D 2004 Karachi 66

Before Muhammad Roshan Essani and Khilji Arif Hussain, JJ

K.E.S.C. AND DISTRICT MUNICIPAL CORPORATION, KARACHI (CENTRAL) OR (CITY DISTRICT GOVERNMENT)---Appellant

Versus

ALLAH BAKHSH and another---Respondents

High Court Appeals Nos.202 and 160 of 2000, decided on 16th May, 2003.

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

----S. 1---Law Reforms Ordinance (XII of 1972), S. 3---High Court appeal---Fatal accident---Suit for recovery of amount of compensation--­Responsibility to pay decretal amount---Evidence on record having fully established that accident which resulted in death of deceased, was caused due to the negligence of defendant-Corporation, suit was decreed by High Court accordingly ---Defendant-Corporation, did not question quantum of damages determined by High Court, but in their respective High Court appeals they had put responsibility of accident and liability to pay amount of compensation on each other---Claim of Karachi Electric Supply Corporation was that pole causing the accident was installed within boundaries of park maintained by District Municipal Corporation and as such Karachi Electric Supply Corporation was not liable for damages, but Karachi Municipal Corporation alone was responsible to pay the compensation amount, on the other hand claim of Karachi Municipal Corporation was that Karachi Electric Supply Corporation alone was liable to compensate the plaintiff---Karachi Electric Supply Corporation was supposed to maintain electric installations and at the same time it was for Karachi Municipal Corporation to notify Karachi Electric Supply Corporation in case of any defect or any repairs required to said installations---Karachi Municipal Corporation had failed to notify Karachi Electric Supply Corporation about the defects in said electric pole which resulted in death of the deceased---Both defendants being public Corporations, were supposed to provide best possible facilities to the citizens which they failed to do---Both Corporations, in circumstances, were jointly liable to pay compensation---High Court had rightly decreed the suit jointly and severally against defendants.

Aamir Raza Naqvi for Appellant (in H.C.A. No. 160 of 2002).

Habibur Rasheed for Appellant (in H.C.A. N0.202 of 2000).

Ziaul Haque Makhdoom for Respondent.

Date of hearing: 25th April, 2003.

P L D 2004 Karachi 69

Before Muhammad Roshan Essani and Khilji Arif Hussain, JJ

Dr. MUHAMMAD SALIM and another--- Petitioners

Versus

MOHAMMAD HANIF and others---Respondents

Constitutional Petition No.D-460 of 2003; decided on 16th May, 2003.

Sindh Local Government Elections Ordinance (X of 2000)---

----S. 14(g)---Sindh Local Government Elections Rules, 2000, Rr. 71 & 83---Constitution of Pakistan (1973), Art.199---Constitutional petition--­Declaring election of returned candidate as void---Election Tribunal in exercise of powers under R.83 of Sindh Local Government Election Rules, 2000, declared the election of returned and duly notified candidates as void without framing any issue as to "whether returned candidates were in employment of Karachi Dock Labour Board or not" and "whether on account of such employment returned candidates were not qualified to contest election in terms of S. 14(g) of Sindh Local Government Elections Ordinance, 2000"---Two types of workers were with Karachi Dock Labour Board, one consisted of those who were under the direct employment with the said Board and another comprised of workers who though were registered as workers by the said Board so as to allow them to work at port, but they were not drawing salary from Karachi Dock labour Board and for all practical purposes their employers were stevedores---Issue, whether returned candidates were employees who would come within definition of Dock Workers who were directly under the employment of Karachi Dock Labour Board or was a Dock Worker under employment of some stevedores, was yet to be decided after framing of issues and providing opportunity of leading evidence---Election Tribunal, in circumstances had committed error of law: in passing order without providing opportunity to returned candidates to explain their position--­Order of Election Tribunal was set aside and case was remanded to decide the same in accordance with law.

Vera and others v. Messrs Kazi and Kazi Ltd. PLD 1990 SC 435 ref.

Rasheed A. Razvi for Petitioners.

Salahuddin Khan Gandapur for Respondents.

Date of hearing: 30th April, 2003.

P L D 2004 Karachi 73

Before Muhammad Ashraf Leghari, J

MUHAMMAD ASLAM---Applicant

Versus

GHULAM MUHAMMAD and another---Respondents

Criminal Revision No.95 of 1991, decided on 23rd April, 2003.

Criminal Procedure Code (V of 1898)---

----Ss. 435, 439 & 417(2)---Penal Code (XLV of 1860), S.302---Revision against acquittal ---Appeal against acquittal was provided under S.417, Cr.P.C., but complainant did not apply to Government for filing appeal against acquittal nor certificate in that respect was filed by complainant---Revision against acquittal was also filed after more than six months of acquittal---Prosecution witnesses had not supported the version of complainant---In absence of any discrepancy and illegality in the judgment of Trial Court, order of acquittal passed by Trial Court could not be interfered with---Revision against acquittal otherwise being incompetent, was dismissed.

Yar Muhammad v. The State 1992 SCMR 96 ref.

Shahadat Awan for Applicant.

I.A. Hashmi for Respondent No. 1.

Habibur Rasheed for the State.

Date of hearing: 15th April, 2003.

P LD 2004 Karachi 77

Before Saiyed Saeed Ashhad, C J and Ghulam Rabbani, J

PAKISTAN INTERNATIONAL AIRLINES CORPORATION---Petitioner

Versus

AIR MASTER (PVT.) LIMITED and another---Respondents

Constitutional Petition No.D-433 of 1993, decided on 25th November, 2003.

(a) Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order (I of 1983)---

----Arts.9 & 2(2)---General Clauses Act (X of 1897), S.21---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Review of order by Mohtasib---Maintainability---Principles---Jurisdiction, functions and powers of the Mohtasib---Scope---Complaint by Travelling Agents before Mohtasib was that the Airline (petitioner) had declined to concede to the request of complainant (Travelling Agents) 'o allow payment of a sum of money deducted by them on account of charging less fares on the tickets sold by them on V.I.P. fares---Order of the Mohtasib-showed that while dismissing/rejecting the complaint Mohtasib had gone though the contents of the complaint as well as the objections/reply filed by the petitioner (the other party) and .had duly considered them and observed that under the circumstances, no relief was extendable nor was any maladministration. made out ---Mohtasib in his said order, had further observed that in spite of being directed, the complainant's Advocate had, .failed to furnish rejoinder/comments to the objections/reply file' by the other party as a result of which the elaborate and convincing explanation given by the said other party for not extending the relief sought, had gone unrebutted---Application for review, was subsequently filed by the complainant before the Mohtasib praying for review of the order rejecting the complaint---Other party submitted its objection/reply to the said review application wherein they objected to the maintainability of the review on the ground that no such provision existed in the Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 and that Mohtasib vide his order had given a finding that there was no maladministration involved and no relief was extendable" and for making. an application for review, even if maintainable, it was incumbent on the complainant to show the existence of some new material of evidence, which was not in the possession of the complainant when proceedings before the Mohtasib were in progress, the nature of the said material-being such that had the same been produced before him at the earlier stage, then he would not have come to the conclusion to which he had reached, which the complainant had completely failed to establish ---Validity---Mohtasib, though had mentioned in his order of rejecting the complaint, that the complaint was rejected for non-prosecution on the part of the complainant, but that non-prosecution would not adversely affect his findings to the effect that "neither any rnaladministration was made out nor any relief was extendable" as the said findings hack been arrived at by him after going through the elaborate and detailed explanation given by the other party relating to the contents of the complaint which were not rebutted, though the complainant was called upon to submit point-wise rejoinder/comments to the explanation submitted by the other party---Recalling of the order rejecting the complaint by the Mohtasib would not amount merely to recalling an order passed for non-prosecution but would amount to setting aside an order which he had consciously and intentionally made after going through the entire material available before him---Findings given by the Mohtasib had been arrived at by him after application of mind with bona fide intention which did not render the said order illegal or irregular/erroneous so as to enable him to exercise the powers in pursuance of S.21, General Clauses Act, 1897 for recalling, rescinding, varying, modifying or cancelling the same---Held, act of the Mohtasib in entertaining the review petition and setting aside his findings was without jurisdiction and void ab initio as he had no authority to recall, rescind, modify or alter an order which he had passed after perusal and consideration of the material on record--Alleged decision, process, recommendation, act of omission or commission complained of, was not covered by the definition of maladministration thus 'ousting the jurisdiction of the Mohtasib to entertain the same---High Court, under its Constitutional jurisdiction, set aside the order of the Mohtasib reaching his order and restored the original order of dismissal of the complaint.

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

----Art.2(2)---Maladministration---Action of the Airline, in circumstances, in not conceding to the request of a - Travelling Agency in not allowing/making payment of a sum of money deducted by it on account of charging less fares on the tickets sold/issued by it on VIP .fares, was not covered by the definition of -maladministration as given in S.2(2) of the Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983.

It was the case of the Airline that Travelling Agent in selling the tickets at. 63% of the normal rate of the economy class tickets had misinterpreted the provisions of Circular dated 20-7-1987 as amended from time to time. It is pertinent to note that in its complaint dated 16-6-1991 addressed to the Wafaqi Mohtasib, Travelling Agent itself stated that the Airline informed it through its letter dated 7-8-1989 that as a result of the checking of the periodical sale returns a discrepancy had been observed as the fares had been undercharged but the case of Travelling Agent was that they had sold/issued tickets and charged fares relying on the instructions contained in the Circular dated 20-7-1987, which representation was rejected on the ground that another 'Circular dated. 20-4-1989 was issued which modified the practice of issuance of tickets as per the previous practice and there was no justification for issuance of the tickets by Travelling-Agent as per past practice. Travelling Agent in its complaint submitted that the instructions contained in the Circular dated 20-7-1987 were ambiguous which forced the Airline to modify/amend the same through Circular dated 22-5-1990. It was submitted, that in view of ambiguity in the Circular dated 20-7-1989 under-charging of the fares would appear to be an inadvertent, bona fide and unintentional act not warranting imposition of penalty on it by calling upon it to reimburse the loss resulting on account of undercharging the fares on the sale of tickets. Even if the contention to the above effect is admitted for the sake of argument; still the action of the Airline in calling upon Travelling Agent to reimburse the amount undercharged by-them on sale of its tickets would definitely not come within the, definition of maladministration so as to give jurisdiction to the Wafaqi Mohtasib to entertain the complaint. The Travelling Agent in support of its impugned action placed reliance on Circular dated 20-7-1987. The fact that this Circular was amended/modified by a subsequent Circular dated 20-7-1990 did not necessarily imply that the earlier Circular dated 20-7-1987 was ambiguous or vague which was the cause 'for undercharging the fares on sales of Airline's tickets by the Travelling Agent. Thus, Travelling Agency could not get rid of its liability for undercharging the fares from the customers on this presumption. It was incumbent on the Travelling Agent (respondent No.2) to point out before the Wafaqi Mohtasib the ambiguity or vagueness in the Circular dated 20-7-1987 acting on which it inferred that only 63% of the fares was to be charged on the sale of tickets in respect of the flights covered by the said Circular dated 20-7-1987. In the absence of such procedure it could not be said that the Circular dated 20-7-1987 suffered from ambiguity or vagueness which contributed to under-charging the price of the tickets by Travelling Agent. Travelling Agent could not be permitted to claim his innocence to plead that it was not at all at fault, and to allege that the act of the Airline in calling upon to make good/reimburse the loss accruing to it, due to undercharging of the fares, amounted to maladministration.

It was also doubtful whether on the basis of the facts and circumstances of the case the action of the Airline in not conceding to the request of Travelling Agent in not allowing/making payment of the sum of Rs.2,10,839 deducted by it on account of charging less fares on the tickets sold/issued by it on VIP fares would be covered by the definition of maladministration as given in section 2(2) of the P.O. 1 of 9983.

The office of the Wafaqi. Mohtasib was established primarily to provide relief to the aggrieved persons by diagnosing, investigating, redressing and rectifying any injustice done to a person through maladministration. If any decision, process, recommendation, act of omission or commission does not suffer from maldministration then the Wafaqi Mohtasib would not have the jurisdiction to entertain and investigate a complaint in relation thereto.

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

----Art.2(2)---Maladministration---Necessary ingredients elaborated.

From a bare perusal of the definition of maladministration as given in Article.2(2) of the Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 it is necessary that the decision, process, recommendation, act of omission or commission, to come within its scope, must not only be contrary to law; rules/regulations or a departure from the established practice or procedure but there should also be absence of bona fides and legality: In other words a decision, process, recommendation, act of omission or commission should be contrary to law, rules/regulations or a departure from. established practice or procedure with mala fide intention and for invalid reasons. The second category of decision, process, recommendation, act of omission or commission which would come within the definition of "maladministration" would be those acts which are perverse, arbitrary or unreasonable, unjust, biased, oppressive, or discriminatory. The third category of such decision, process, recommendation, act of omission or commission would be those which are based on irrelevant grounds. The fourth category of such decisions, processes, recommendations, acts of omissions or commissions would be which involve exercise of powers and those were exercised for corrupt motive or had been refused to be exercised for corrupt or improper motives. A separate category of maladministration emerging from the above definition is negligence, inattention, 11 delay, ' incompetence, inefficiency and inaptitude in the administration or discharge of duties and responsibilities.

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

----Preamble & Art.2(2)---Establishment of Office of Wafaqi Mohtasib (Ombudsman) ---Object---Maladministration---Essential ingredients of jurisdiction of Wafaqi Mohtasib---If any decision, process, recommendation, act of omission or commission does not suffer from maladministration then the Wafaqi Mohtasib would not have the jurisdiction to entertain and investigate a complaint in relation thereto.

The Office of the Wafaqi Mohtasib was established primarily to provide relief to the aggrieved persons by diagnosing, investigating, redressing and rectifying any injustice done to a person through maladministration. If any decision, process, recommendation, act of omission or commission does not suffer from maladministration then the Wafaqi Molitasib would not have the jurisdiction to entertain and investigate a complaint in relation thereto.

Z.A. Sulheri for Petitioner.

Shafi Muhammadi for Respondent No.2.

Sajjad Ali Shah, Standing Counsel for Respondent No.3.

Date of hearing: 11th November, 2003.

P L D 2004 Karachi 87

Before Zia Perwaz, J

Messrs ZIA ABBAS & SONS (PVT.) LTD. through Promoter/Director---Plaintiff

Versus

KARACHI DEVELOPMENT AUTHORITY, (KDA) through Director-General and 2 others---Defendants

Civil Suit No.955 of 2001, decided on 5th November, 2003.

Sindh Urban Land (Cancellation of Allotment, Conversion and Exchanges) Ordinance (III of 2001)-----

----Ss.3, 4 & 2(6)---Specific Relief Act (I of 1877), Ss.42 & 54---Transfer of Property Act (IV of 1882), Ss. 108(c), I 10 & I 1 1---Suit for declaration, mesne profits and injunction against the action of freezing of plots allotted to the plaintiffs---Cancellation of leases/allotment under Sindh Urban Land (Cancellation of Allotment, Conversion and Exchanges) Ordinance, 2001---Scope---Contention of the Authority canceling the lease/allotment was that plots in question were allotted to the plaintiffs as a favour in violation of rules and on insufficient consideration which was violative of the allotment rules for such plots and that plaintiffs had already disposed of two plots out of four allotted to them and the action now proposed to be taken was with regard to the plots available with the plaintiffs--­Authorities further contended that although there was no provision for any action for freezing of plots under the Rules or Bye-laws of the Karachi Development Authority, the impugned action was an initial and tentative step to the final action of cancellation of plots after, due opportunity was afforded to the plaintiffs according to the decisions of the Government of Sindh, that there was no mala fide intention on the part of the Authority and that the allotment was carried out in violation of the relevant rules and procedure being adopted at the relevant time and that the plots had been sold at the prevailing price fixed by the Karachi Development Authority and not at the market value---Validity---Held, effect of the promulgation of the Sindh Urban Land (Cancellation of Allotment, Conversion and Exchanges) Ordinance, 2001 was attracted to the present case---Provisions of Ss,3 & 4 of the said Ordinance had to bed read together---Section 3 of the said Ordinance provided that allotment of the State land at rates lower than the market value shall stand cancelled and such cancellation could take effect after market value, as defined under S.2(6) of the Ordinance at the relevant time, had been determined by the Committee constituted under S.,4(2) of the said -Ordinance---Provision of S.4(2) of the said Ordinance provided that even if the allotment was found to be in violation of the law or a ban on allotments, the sail Committee was still empowered to determine the amount of loss caused to the Government and call upon the person concerned to pay such amount within a specified time and even in such cases the allotment was not to be treated as void ab initio but the allottee could acquire ownership rights after payment of the amount of loss caused to the Government within the time specified by the Committee---Vested rights of the allottee were recognized by resort to the prescribed-procedure for determination of market value of the property at the time of allotment---High Court, in circumstances, observed that the plaintiff could take steps for enforcement of his rights on payment of the dues on the basis of the market price prevailing at the time of allotment as may be determined by the Authority (Committee) constituted under the Sindh Urban Land (Cancellation of Allotment, Conversion and Exchanges) Ordinance, 2001.

Pakistan through Secretary Ministry of Finances v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Haji Noor Muhammad and others v. Karachi Development Authority and 2 others PLD 1975 Kar. 373; Nasira Sutlana v. Habib Bank Ltd. and others PLD 1975 Kar. 608; Messrs Army Welfare Sugar Mills Ltd. v. Federation of Pakistan 1992 SCMR-1652; Khawaja Akbar Waheed v. Karachi Development Authority 1993 MLD 87; Qureshi Industries v. Karachi Development Authority PLD 1993, Kar. 553; Imdad Magsi and others v. KW&S.B and others PLD 2002 SC 728; Multiline Associates v. Ardeshir Cowas Jee and others 1995 SCMR 362; Rehan Hassan Naqvi v. Pakistan Defence Officers Housing Authority 2000 CLC 1535 and Syed Tariq Sohail v. D.H.A. 2001 YLR

The Commanding Officer, National Logistic Cell and another v Raza Enterprises and others 2003 CLC 719 rel.

Kamal Azfar for Plaintiff.

Muzaffar Imam for Defendant No. 1.

Ch. Muhammad Rafique, Addl. A.-G. for Defendant No.2.

Nemo for Defendant No.3.

Dates of hearing; 19th August and 5th November, 2003.

P L D 2004 Karachi 93

Before Sarmad Jalal Osmany, J

Mst. HALIMA BANO and 9 others---Plaintiffs

Versus

HABIB KHAN and 4 others---Defendants

Civil Suit No.731 of 1995, decided on 13th May, 2003.

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

----S. 1---Fatal accidents---Death by rash and negligent driving---Joint ownership of vehicle---Defendant had purchased the vehicle from Bank under Hire Purchase Agreement---Predecessor of plaintiffs died due to rash and negligent driving of one of the defendants while the vehicle was owned by the other defendant---Plea raised by the defendants was that as the vehicle was registered jointly in the name of the defendant and the Bank, therefore, the Bank was liable to pay the damages---Validity---As per the Registration Certificate on the record the Bank had only been mentioned as a banker and so also it had been clearly stated that the vehicle was purchased under Hire Purchase Agreement with the Bank--Bank was not the joint owner of the vehicle and the defendant was the only owner of the vehicle---Bank was not liable to pay any damages--­ Suit was dismissed to the extent of Bank in, circumstances.

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

---S. 1---Motor Vehicles Act (IV of 1939), Ss.94 & 95(2)(b)---Fatal accident---Liability of insurance company---Third party insurance cover-­-Scope---Predecessor of plaintiffs died due to rash and negligent driving of one of the defendants while the vehicle was owned by the other defendant---Plea raised by the defendants was that as the vehicle was insured, therefore, the insurance company was liable to pay the damages---Validity---All motor vehicles were to carry third party insurance cover---Insurance Policy under S.95(2)(b) of Motor Vehicles Act, 1939, was to cover any liability arising out of death or disability up to a maximum of Rs.20,000---Liability of insurance company was extended only to the extent which met the requirements of S.95 of Motor Vehicles Act, 1939---Insurance company was only liable to pay the damages to the extent of Rs.20,000 only---Suit was decreed accordingly.

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

----S. 1---Fatal accidents---Damages---Computation---Predecessor of plaintiffs died due to rash and negligent driving of one of the defendants while the vehicle was owned by the other defendant---Predecessor of plaintiffs, at the time of death, was 36 years of age, he was having good health and was earning Rs.6,000 per month---Effect---Average life expectancy in Pakistan. is 70 years---Deceased would have lived for another 34 years and he would have earned a total sum of Rs.24,48,000 (6000 x 12 x 34)---High Court added 20% to the amount as increment thus the grand total of compensation had come to Rs.29,37,600 and out of the grand total, High Court subtracted 1/6th as personal expenses of the deceased thus making a net balance amount of Rs.24,48,000---Decree was passed to the extent of net total jointly and severally against both the defendants i.e. the driver and the owner of vehicle alongwith 6% mark­up per annum from the date of filing of suit till payment of decretal amount---High Court directed that the decretal amount would be distributed among the plaintiffs per Islamic Law---Suit was decreed accordingly.

Muhammad Jaleel Siddiqui v. KTC 1994 CLC 1510 and Nisar Ahmad v. Uroos Fatima 1996 MLD 1913 ref.

Pakistan Steel Mills Corporation v. Malik Abdul Habib 1993 SCMR 848 fol

K.B. Bhutto for Plaintiff.

Nemo for the Remaining Defendants Nos. 1 to 4.

Badar Alam for Defendant No.5.

Dates of hearing: 10th December, 2001 and-28th February, 2002.

P L D 2004 Karachi 99

Before Muhammad Afzal Soomro, J

NAVEEDUDDIN KHOKHAR --- Petitioner

Versus

NISAR AHMAD MAHESAR and others---Respondents

Constitutional Petition No. S-799 and Civil Miscellaneous Applications Nos.439 of 2003 and 2305 of 2001, decided on 4th July, 2003.

(a) Prison Rules, 1978--

----Rr.140(1) & 217(2)---Constitution of Pakistan 1973) Art.199---Civil Procedure Code (V of 1908), S.114---Constitutional petition---Judgment passed by High Court in exercise of Constitutional jurisdiction under Art.199 of the Constitution---Review---Maintainability -Principles---At the time of dismissal of the main petition regarding remissions granted to accused persons, proper facts and law points were not considered--­Petitioner sought review of the judgment and in his review application. had mentioned legal points---Validity---Remission granted by Authorities to the accused persons was challenged on legal points and the same points were ~not properly brought before the High Court dismissing the Constitution petition---Review application was maintainable in circumstances.

Ahmed and others v. The State 2002 SCMR 1611 ref.

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

----S. 401(2)---Prison Rules, 1978, Rr. 140(1), 216 & 217(2)--­Remission, grant of---Accused persons convicted under Hadd or Qisas--­Non-payment of compensation to the legal representatives of the deceased---Failure to seek permission of Trial Court---Authorities while granting huge remission i.e. more than 18 years did not make reference to the concerned Trial Court for granting remission/releasing the accused persons but granted remission and released them---Accused persons had not paid the compensation amount to the legal representatives of the deceased and Daman amount to injured complainant ---Effect--Authorities were duty bound to inform the Trial Court about recovery of the amount before releasing the accused persons but same was not done and accused were released straightaway which seriously prejudiced the legal representatives of deceased and injured complainant as well as caused injustice to them---Authorities ignored that not only the appeal o` the accused persons was pending before High Court but revision of the petitioner against the accused persons for enhancement of sentence from life imprisonment to death Was also pending---Accused persons had served only 6 years 3 months' sentence and they had been granted remission for more than 18 years---Such remissions were illegal improper and the accused persons were remanded to jail to serve out the remaining sentences view application was owed in circumstances.

Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others PLD 1992 SC 595; Habib-ul-Wahab Al­ Khairi and others v. Federation of Pakistan through Secretary, Ministry of Justice, Law and Parliamentary Affairs. Islamabad PLD 1991 FSC 236; Inayat Bibi v. Amjad Ali and others 2001 PCr.LJ 1453; Muhammad r and others v. Abdul Qadir and 2 others 1998 PCr.LJ 921 and Ahmed and others v. The State PLJ 2002 SC 1010 ref.

Petitioner in person.

Respondents in person.

G.D. Shahani, Addl. A.-G. and Sher Muhammad Shar, A.A.-G. for the Official Respondents.

Date of hearing: 26th May. 2003.

P L D 2004 Karachi 109

Before Gulzar Ahmed, J

Syed JAMALUDDIN---Applicant/Accused

Versus

THE STATE---Respondent

Criminal Bail Application No.1351 of 2002, decided on 7th August, 2003.

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

----S. 498---Penal Code (XLV of 1860), Ss.420/409/506-B & 21--­Prevention of Corruption Act (II of 1947), S.2---Pre-arrest bail--­Maintainability and venue for filing application---Accused was a Controller of Examinations of the University of Karachi which; though a Corporation, was not set up and controlled by the Central Government, but rather was set up by the Provincial Government of Sindh---Employee of the University of Karachi, therefore, would not be covered by the later part of the definition of Public Servant as contained in S.2 of the Prevention of Corruption Act, 1947---Whatever functions were exercised by the accused were on behalf of the University and all property with which he might have dealt with was of the University and not of the Government---Accused, thus; was riot a public servant within the meaning of clause nine of S.21, P.P.C.---Order passed by the Special Judge, Anti-Corruption rejecting the bail application of the accused on the ground of having no jurisdiction in the matter was maintained being in accordance with law---Accused was directed to approach the appropriate Court for grant of further relief in accordance with law---Pre-arrest bail granted to accused was extended for a further period of fifteen days in order to enable him to approach the appropriate Court---Bail application was disposed of accordingly:

Anwar Aziz Choudhry v. The State 1991 SCMR 994 and Advocate-General and Ex-Officio Public Prosecutor v. Qazalbash 1984 PCr.LJ 1769 ref.

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

----S. 21, ninth clause---" Public servant" ---Employee of the University of Karachi is not a "public servant" within the meaning of ninth clause of S.21, P.P.C.

Anwar Aziz Choudhry v. The State 1991 SCMR 994 and Advocate-General and Ex-Officio Public Prosecutor v. Qazalbash 1984 PCr.LJ 1769 ref.

Mehmood Habibullah for Applicant.

Arshad Lodhi for the State.

Date of hearing: 7th August, 2003.

P L D 2004 Karachi 113

Before S. Ahmed Sarwana, J

ALL SINDH A/C NON-A/C PRIVATE TRANSPORT EMPLOYEES UNION through President---Petitioner

Versus

INSPECTOR GENERAL, MOTORWAY POLICE and others---Respondents

Constitutional Petition No. S-69 of 2003, decided on 11th April, 2003.

(a) National Highway Safety Ordinance (XL of 2000)--

----S. 79---Commission of offence---Option to contest or not to contest Ticket/Challan---Procedure---Person, who commits certain specified violation, under the new system, has been given an option under S.79 of National Highway Safety Ordinance, 2000, not to contest the Ticket/Challan and pay fine in the manner specified by the police officer on the Ticket or if the person wants to contest the same he is at liberty not to pay the fine mentioned in the Ticket/Challan and contest the same­--If the offender chooses to contest the Ticket/Challan and does not pay the fine within ten days, the police officer issuing the Ticket/Challan is­ authorized to take the registration or licence into custody and lodge a complaint against the offender before the Court having jurisdiction to try the offence---Option of accepting the charge and paying the fine provides the offender a chance to save his precious time and spare him from the hassle he would undergo in attending, to the penal proceedings arising out of the violation of the provision of National Highway Safety Ordinance, 2000.

(b) National Highway Safety Ordinance (XL of 2000)-----

----S. 58---Seizure of documents---Powers of Police Officer ---Scope--­Police Officer is not authorized to seize a licence or certificate of registration from any person under the provisions of S.58 of National Highway Safety Ordinance, 2000.

(c) National Highway Safety Ordinance (XL of 2000)-----

----Ss. 58, 82 & 97---West Pakistan Motor Vehicles Ordinance (XIX of 1965), S.114---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Seizure of documents---Powers of Police Officers---Grievance of the petitioner was that despite payment of penalty stated on Ticket issued to him by Highway Police, his driving licence was not returned--Plea raised by the Authorities was that the police officers had rightly seized the licence under the provision of Ss. 58, 82 & 97 read with S.114 of West Pakistan Motor Vehicles Ordinance, 1965---Contention of the petitioner was that the Police Officers had nowhere stated that they had reason to believe that the petitioner might abscond or otherwise would avoid the service of summons---Petitioner further contended that the .Police Officers, after, taking the licence, did not give him a written acknowledgement of seizure of the licence as required by S.114(3) of West Pakistan Motor Vehicles` Ordinance, 1965---Validity---Act of Police Officers in taking away the licence of the petitioner and not issuing a temporary acknowledgement of seizure was prima facie not in accordance with the provision, of S.114(3) of West Pakistan Motor Vehicles Ordinance. 1965---High Court warned the Police Officers to be careful in future and to act strictly in accordance with the, relevant provision of law in future---High Court further directed the Police Officers to pay compensation to the petitioner---Constitutional petition was allowed accordingly.

Khadim Hussain Thahim for Petitioner.

Masood A. Noorani, Addl. A.-G. alongwith Babar Mushtaq, S.P.O., Noorani Motorway Police Station, Dadu.

Date of hearing: 11th April, 2003.

P L D 2004 Karachi 119

Before Mushir Alam and S. Ali Aslam Jefri, JJ

FEDERATION OF PAKISTAN, MINISTRY OF INTERIOR FEDERAL SECRETARIAT, ISLAMABAD‑‑‑Petitioner

Versus

MUHAMMAD HARIS HASSAN and others‑‑‑Respondents

Criminal Revision No.80 of 2003 and Constitutional Petition No.D‑557 of 2003, heard op 19th June, 2003.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Superior Courts have the jurisdiction to review the proceedings and decision of administrative, executive, quasi‑judicial and Judicial Tribunals when their findings are not within the parameters laid down under the law or suffer from perversity either on account of misreading, non‑reading,‑inadmissibility of evidence or otherwise on score of jurisdiction‑‑‑Wide range of jurisdiction is conferred on superior. Courts to remedy all possible kinds of 'injustice where there is no adequate remedy available under any particular law.

PLD 1973 SC 24; PLD 1978 Quetta 131; PLD 1977 Kar. 855 and PLD 1986 Quetta 185 ref.

(b) Extradition Act (XXI of 1972)‑‑‑--

‑‑‑‑Ss. 12 & 13‑‑‑Jurisdiction‑‑‑Ultimate jurisdiction vests in the Federal Government to extradite or otherwise a fugitive offender‑‑‑Where nature of the offence appears to be trivial or' request for extradition is not made in good faith, or extradition is not in the interest of justice or for any other reasons it would be unjust or inexpedient to surrender the fugitive offender, Federation may not only stay the proceedings against him but may also direct, summons or warrant issued to be cancelled and may order his discharge despite the positive opinion of Enquiry Magistrate in favour of extradition‑‑‑Conversely where Federation is of the opinion that it is expedient to surrender the fugitive offender and the opinion of the enquiry Magistrate to discharge the fugitive offender appears to be perverse arid not in accordance with law, then only course open to the Federation is to challenge the opinion recorded by the Enquiry Magistrate.

Nasrullah Khan Henjra v. Government of Pakistan, Ministry of Interior and Narcotics Control, Islamabad PLD 1994 SC 23 and. Zulqarnain Khan alias Zulfiqar Ali Khan v. The Government of Pakistan 1990 MLD 1611 ref.

(c) Extradition Act (XXI of 1972)‑‑‑--

‑‑‑‑Ss. 8, 12 & 13‑‑‑Criminal Procedure Code (V of 1898), S.439‑-Extradition enquiry‑‑‑Revision petition‑‑‑Competency‑‑-Revision petition under S.439, Cr.P.C. is maintainable in High Court against the opinion expressed in the extradition inquiry by the Enquiry Magistrate.

Habib Bank Limited v. State 1993 SCMR 1853; Syed Manzoor Hussian Shah v. Syed Agha Hussain Naqvi and another 1983 SCMR 775; Muhammad Ayub v. Obaidullah 1999 SCMR 394; 1994 SCMR 77; PLD 1974 SC 139; PLD 2000 Kar. 74 and 1979 SCMR 32 ref.

(d) Extradition Act (XXI of 1972)‑‑‑--

‑‑‑‑Ss. 12 & 13‑‑‑Criminal Procedure Code (V of 1898), S.439‑‑­Constitution of Pakistan (1973), Art. 199‑‑.‑Constitutional petition‑‑­Extradition inquiry‑‑‑Revision under S.439, Cr.P.C.‑‑‑Maintainability‑‑­Federation of Pakistan being dissatisfied by the finding of the Enquiry Magistrate that no prima facie case was made out against the fugitive offender, had filed the Constitutional petition which was not maintainable as adequate remedy by way of revision was available to it‑‑‑Revision under S.439, Cr,.P.C. was maintainable against the opinion expressed in the extradition inquiry by the Enquiry Magistrate, before the High Court, which had treated and disposed of the Constitutional petition as Criminal Revision‑‑‑Accused was charged with kidnapping and first degree criminal sexual conduct by the Court of U.S.A. and to avoid trial in U.S.A. he had sought refuge in Pakistan, against whom extradition had been sought by the U.S.A. ‑‑‑Inquiry Magistrate had discharged the accused in the impugned inquiry report, inter alias on the ground of non­ availability of medical report‑‑‑High Court by consent had ordered that swab and blood samples of the accused duly sealed be sent to a Foreign Crime Lab. For examination and DNA matching with the semen sample already available with the prosecution (State of Michigan USA) and the report thereon be made available to the Inquiry Tribunal within eight, weeks‑7‑Impugned inquiry report was consequently set aside and the matter was remanded to the. Inquiry Tribunal with the direction to decide the same afresh on receipt of the said report after hearing the parties in accordance with law‑‑‑Revision petition was disposed of accordingly.

Hidayatullah v. Government of Sindh PLD 1993 Kar. 807; Sajjad Haider v. Government of Sindh‑PLD 1967 Lah. 938; Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223; Akhtar Mali v. Federation of Pakistan 1994 PCr. LJ 229; PLD 1973 SC 24; PLD 1978 Quetta 131; PLD 1977 Kar. 855; PLD 1986 Quetta 185; Nasrullah Khan Henjra v. Government of Pakistan, Ministry of Interior and Narcotics Control, Islamabad PLD 1994 SC 23; Zulqarnain Khan alias Zulfiqar Ali Khan v. The Government of Pakistan 1990 MLD 1611; Habib Bank Limited v. State 1993 SCMR 1853; Syed Manzoor Hussian Shah v. Syed Agha Hussain Naqvi and another 1983 SCMR 775; Muhammad Ayub v. Obaidullah 1999 SCMR 394; 1994 SCMR 77; PLD 1974 SC 139; PLD 2000 Kar. 74 and 1979 SCMR 32 ref.

Makhdoom Ali Khan, Attorney‑General for Pakistan alongwith Nadeem Azhar Siddiqui, D.A.‑G. and Yawar Faruqi for Petitioner.

S. Saeeduddin Nasir for Respondent No. 1.

Suleman Habibullah, A.A. ‑G. for Respondents Nos. 2, 3 and 4.

Date of hearing: 19th June, 2003.

P L D 2004 Karachi 130

Before Rahmat Hussain Jafferi, J

NOORUDDIN‑‑‑Applicant

Versus

BHOORO alias BHOORAL and another‑‑‑Respondents

Criminal Miscellaneous Application No.39 of 2003, decided on 28th July, 2003.

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

‑‑‑‑Ss. 169, 170 & 173‑‑‑Report of Police Officer‑‑‑Police in both the cases either under S.169, Cr.P.C. or S.170, Cr.P.C. is bound to submit the police report/challan as required under S.173, Cr.P.C.

Habib v. State 1983 SCMR 370 ref.

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

‑‑‑‑Ss. 561‑A & 439‑A‑‑‑Penal Code (XLV of 1860), Ss.457/380/511/337‑H(ii)‑‑ Quashing of the revisional order of Sessions Court‑‑‑Magistrate had simply ordered the police to adopt proper procedure as required under S.173, Cr.P.C. and to submit the challan within two days and he had not interfered with the opinion of the police at that stage‑-‑Police thereafter had submitted the challan in the Court and it was now for the Magistrate to exercise his powers under S.173(3), Cr.P.C., either to release the accused or to pass any other appropriate order‑‑‑Magistrate had committed no illegality in passing the aforesaid order which was legal and proper and having been passed in administrative capacity was not amenable to revisional jurisdiction of Sessions Court‑‑‑Impugned order passed by Sessions Court releasing the accused persons after setting aside the above mentioned order of the Magistrate was without jurisdiction and the same was quashed accordingly.

Bahadur v. State PLD 1985 SC 62; Arif Ali Khan v. State 1993 SCMR 187; Federation of Pakistan v. Malik Mumtaz Hussain 1997 SCMR 299; Maqbool Ahmed v. State 1999 PCr.LJ 1198; Muhammad Siddique v. State 1994 PCr.LJ 1137; Habib v. State 1983 SCMR 370 and Muhammad Alam v. Additional Secretary to Government of N.W.F.P. PLD 1987 SC 103 ref.

Abdul Rehman A. Bhutto for Applicant.

Ahsan Ahmed Qureshi for Respondent No. 1.

Ali Azhar Tunio, A.A.‑G: for the State.

Dates of hearing: 24th and 28th July, 2003.

P L D 2004 Karachi 133

Before S. Ali Aslam Jaferi, J

MUHAMMAD HUSSAIN alias SOOFI‑‑‑Applicant

Versus

THE STATE-‑‑Respondent

Criminal Miscellaneous Application No.48 of 2003, decided on 25th June, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 561‑A‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4‑‑‑Constitution of Pakistan (1973), Art.203DD‑‑‑Quashing of proceedings‑‑‑Statement of the co‑accused before the police was the only evidence against the accused in the case which was urged to be not admissible in evidence ‑‑‑Revisional powers under Art.203DD of the Constitution, no doubt, were available to the Federal Shariat Court and in such eventuality a revision petition was to be filed and Federal Shariat Court should not be bypassed, but High Court had the exclusive jurisdiction under S.561‑A, Cr.P.C. to quash the proceedings in all appropriate cases where there was no probability of conviction of accused even if the prosecution case was taken to be true‑‑‑Proceedings pending against the accused before the Magistrate were quashed in circumstances.

Ghulam Hussain v. State and 3 others 1997 PCr.LJ 1782; Muhammad Ramzan Baluch v. State 2001 PCr.LJ 1538 and Peeral alias Pir Bux v. State 1992 PCr.LJ 1842 ref.

Mushtaq Ahmed Leghari for Applicant.

Sher Muhammad Shar, A.A.‑G

P L D 2004 Karachi 136

Before Ghulam Nabi Soomro and Anwar Zaheer Jamali, JJ

JOHN BERNARD SENDER‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Jail Transfer Application No.21 of 2000, decided on 15th September 2000.

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

‑‑‑‑Ss. 72, 74, 45 & 76‑‑‑Jurisdiction to try offences under Control of Narcotic Substances Act, 1997‑‑‑All such offences which are punishable under Control of Narcotic Substances Act, 1997 are exclusively triable under the Narcotic Substances Act, 1997‑‑‑Principles.

All such offences which are punishable under the Control of Narcotic Substances Act of 1997, are exclusively triable under the Act of 1997.

From the reading of provisions of sections 45 and 76 of the said Act the scheme and intention of law makers become even more clear as section 45 of the Act denotes that the Courts established under the said Act shall have exclusive jurisdictions in respect of all offences under this Act while section 76 signifies that the provisions of the Act of 1997 have overriding effect on all other laws in force on the subject.

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

‑‑‑‑Ss. 76 & 49‑‑‑Customs Act (IV of 1969), Preamble‑‑‑Cognizance of case‑‑‑Alleged offence, though had been committed by the accused within the territorial limits of the Airport which fell within the territorial limits under the Customs Act, 1969, but as the territorial limits of Control of Narcotic Substances Act, 1997 had been extended to the whole of Pakistan, including the territorial limits of all the Airports in Pakistan, cognizance of crime under Control of Narcotic Substances Act, 1997 was rightly taken under the provision of the said Act as by virtue of its S.76, the Act had overriding effect on the other laws for the time being in force‑‑‑Case of the accused, therefore, had been rightly challaned before the Special Judge Narcotics, having the excusive jurisdiction in the matter.

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

‑‑‑‑S. 49‑‑‑Transfer of a case from one Special Court to another by the High Court‑‑‑Scope‑‑‑High Court, under S.49, Control of Narcotic Substances Act, 1997 had the competence to exercise jurisdiction for transfer of cases from one Special Court to another Special Court under the said Act and not to a Court (Special Court Customs) which had no jurisdiction in such matter‑‑‑Cognizance, in the present case, had rightly been taken under the Control of Narcotic Substances Act, 1997 and case had also been rightly challaned before a Court having jurisdiction in the matter‑‑‑High Court, in circumstances, declined to accept the application of the accused for transfer of the case from Special Court Narcotics to the Special Court Customs‑‑‑[Stephen Duglas Landane v. The Investigating Officer C.P. No.D‑1855 of 1999 dissented from].

Stephen Duglas Landane v. The Investigating Officer C.P. No.D‑1855 of 1999 dissented from.

Multiline Associates v. Ardeshir Cowasjee and others 1995 SCMR 362 fol.

Stephen Duglas Landane v. The Investigating Officer C.P. No.D‑1855 of 1999; Mrs. Rose Mari Morley v. Investigating Officer Customs PLD 1999 Kar. 336; Jamshed Ali v. The State 1988 PCr.LJ 881; The State v. Anwar Khattak PLD 1990 FSC 62; Muhammad Ashraf and others v. The State 1995 SCMR 626; Ismail A. Rehman v. Muhammad Sadiq and 3 others PLD 1990 Kar. 286 and Sakhi Dil Jan v. The State PLD 2000 Quetta 26 ref.

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

‑‑‑‑S. 49‑‑‑Customs Act (IV of 1969), Preamble‑‑‑Transfer of a case from a Special Court to another Special Court by the High Court under S.49, Control of Narcotic Substances Act, 1997‑‑‑Scope‑‑‑Division Bench of the High Court, in the present case, had taken the view that High Court under S.49, Control of Narcotic Substances Act, 1997 had the jurisdiction to transfer the case from one Special Court to another Special Court under the said Act and not to a Court (Special Court Customs under the Customs Act, 1969) which had no jurisdiction in the matter while another Division Bench of the same High Court had taken the contrary view‑‑‑Division Bench in the present case, directed the office that the matter may be placed before the Chief Justice of the High Court for constitution of a larger Bench to resolve these points.

Multiline Associates v. Ardeshir Cowasjee and others 1995 SCMR 362 fol.

Stephen Duglas Landane v. The Investigating Officer C.P. No.D‑1855 of 1999; Mrs. Rose Mari Morley v. Investigating Officer Customs PLD 1999 Kar. 336; Jamshed Ali v. The State 1988 PCr.LJ 881; The State v. Anwar Khattak PLD 1990 FSC 62; Muhammad Ashraf and others v. The State 1995 SCMR 626; Ismail a Rehman v. Muhammad Sadiq and 3 others PLD 1990 Kar. 286 and Sakhi Dil Jan v. The State PLD 2000 Quetta 26 ref.

Appellant produced in custody.

Syed Jalil Hashmi, A.A.‑G. for the State.

P L D 2004 Karachi 143

Before S. Ahmed Sarwana and Muhammad Mujeebullah Siddiqui, JJ

Dr. Syed RAZA GARDEZI and others‑‑‑Appellants

Versus

NAZAZ ALI and others‑‑‑Respondents

High Court Appeal No.289 of 2002, decided on 19th September, 2003.

(a) Limitation Act (IX of 1908)‑‑

‑‑‑‑S. 3‑‑‑Void order, erroneous order and decree obtained through fraud‑‑‑Starting point of limitation‑‑‑Period of limitation would apply to such orders and decrees, which would start running, when person adversely affected factually came to know about the same‑‑‑In all fairness terminus a quo should be fixed and date of knowledge of alleged void order must be independently established on sound basis.

Mrs. Zubaida Begum v. Mrs. S.T. Naqvi 1986 SCMR 261; Syed Imran Raza Zaidi v. Government of the Punjab 1996 SCMR 645; Muhammad Raz Khan v. Government of N.‑W.F.P. P.L.D 1997 SC 397; Ahmad Ali v. Government of N.‑W.F.P 1998 SCMR 183; Land Acquisition Collector v. Sarfaraz Khan PLD 2001 SC 514 and Fida Hussain v. Ghulam Sarwar 2002 SCMR 1554 fol.

(b) Law Reforms Ordinance (XII of 1972)‑‑‑

‑‑‑‑S. 3‑‑‑High Court (Lahore) Rules and Order, Vol. V, Chap. 1‑A, R.4‑‑‑Limitation Act (IX of 1908), Ss.5, 12(2), 14 & Art.151‑‑‑Sindh Chief Court Rules (O.S.), R.14(2)‑‑‑Intra‑Court Appeal by non‑party to suit‑‑‑Condonation of delay‑‑‑Exclusion of time spent in obtaining certified copy of impugned judgment and decree‑‑‑Plea of appellant was that he had been pursuing remedy in good faith to obtain such certified copy, thus, time consumed therein constituted sufficient cause‑‑­Validity‑‑‑Filing of such certified copy was not a requirement for filing High Court appeal‑‑‑Delay caused in obtaining such copy would not amount to sufficient cause‑‑‑Application for condonation of delay was silent about particular date on which appellant came to know about impugned judgment‑‑‑If date of making application for certified copy was taken as date of knowledge of appellant, even then appeal was hopelessly time‑barred due to absence of explanation as to why appeal was not immediately filed on receiving certified copy of judgment and decree‑‑­No sufficient cause had been shown for condoning delay‑‑‑Application under S.5 of Limitation Act, 1908 was dismissed, resultantly appeal stood dismissed as barred by time.

Abdul Karim v. Sheikh Muhammad PLD 1966 BJ 14; Jog Dhian v. Hussain and another AIR 1935 Lah. 328; Said Muhammad v. Goma PLD 1952 BJ 8 and Abdul Subhan v. Chief Settlement and Rehabilitation Commissioner 1987 MLD 2736 ref.

Ms. Rizwana Ismail for Appellants.

H.A. Rehmani for Respondents Nos. 1 to 5.

Date of hearing: 20th August, 2003.

P L D 2004 Karachi 152

Before Sarmad Jalal Osmany and Rahmat Hussain Jafferi, JJ

SALEEM RAZA‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.84 of 2003, decided on 16th September, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑National Accountability Ordinance (XVIII of 1999), S.10‑‑­Bail, refusal of‑‑‑Accused before joining service in Customs Department apparently had no sufficient source of income, but thereafter he had purchased valuable flats, bungalows and plots and he, his wife and his son were operating various Bank accounts in Pakistani and Foreign Currencies of large amounts‑‑‑Said properties were disproportionate to the known sources of income of the accused and, prima facie, the case was made out against him‑‑‑Stand taken by the accused that he had purchased the properties from the prizes received on prize bonds, remittances sent by his brothers from abroad and the amounts invested by him in the business, could not be gone into by the High Court at this stage as any finding thereon would prejudice the case of either party‑‑­Tentative assessment of the evidence available on record, however, had revealed reasonable grounds for believing that the accused was involved in the case‑‑‑Bail was declined to accused in circumstances.

Muhammad Rafiq v. Abdur Rehman 1979 SCMR 377; Karam Din v. Muhammad Sharif 1975 SCMR 230; Imtiaz Ahmed and another v. The State PLD 1997 SC 545; Criminal Petition for Leave to appeal No. 175 of 2002; Liaqat Ali v. The State PLD 1994 SC 172; Muhammad Din v. The State 1998 SCMR 1; Ghulam Ali v. State 2003 SCMR 597 and Zeeshan Kazmi v. The State PLD 1997 SC 267 ref.

Raza Hashmi for Applicant.

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

Date of hearing: 7th April, 2003.

P L D 2004 Karachi 160

Before Zahid Kurban Alvi and Sarmad Jalal Osmany, JJ

BADAR ALAM BACHANI and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Accountability Appeal No.D‑41 of 2001 and Criminal Accountability Revision Application No.D‑176 of 2001, decided on 10th September, 2003.

National Accountability Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑Ss. 9(a)/10(a)‑‑‑Appreciation of evidence‑‑‑Accused had adequately discharged the burden cast upon him of establishing that the agricultural property held by him in his own name comprising of 88 acres of land was legitimate‑‑‑Legitimacy of the prize bonds won by the wife of the accused and the use of the prize amount towards the purchase of another agricultural land had also been proved on record by the accused‑‑­Valuation of Rs.60,00,000 in respect of the Bungalow in question and its payment to the seller by the accused from the proceeds of the prize bonds money was accepted as true‑‑‑Prosecution had established beyond any doubt that the accused had failed to explain at least the source of Rs.86,43,835 being approximate excessive expenditure for the period 1983 to 2000 and was liable for the payment of this amount to the Government which was disproportionate to his known sources of income‑‑‑Accused had remained behind the bars continuously for a period of two years and eight months and his sentence of 8 years' R.I. was reduced to the imprisonment already undergone by him in circumstances‑‑‑Accused was directed to be released from jail on his payment of the amount of Rs.86,43,835 to the Government‑‑‑Sentence of fine as well as the forfeiture of the properties in question was remitted, but the sentence of accused with regard to his disqualification etc. was maintained‑‑‑Appeal was disposed of accordingly.

A.Q. Halepota and Muhammad Ashraf Qazi for Appellants.

Abdul Ghafoor Khan for the State.

Dates of hearing: 15th, 16th, 23rd August, 2002 and 20th January, 2003.

P L D 2004 Karachi 170

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

FUNFAIR (PVT.) LIMITED and another‑‑‑Petitioners

Versus

KARACHI DEVELOPMENT AUTHORITY and 2 others‑‑‑Respondents

Constitutional Petition No.D‑1066 of 1995, decided on 5th November, 2003.

(a) Karachi Development Authority Order, (5 of 1957)‑‑‑

‑‑‑‑Art. 52‑A‑‑‑Civil Procedure Code (V of 1908), S.9‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Allotment of amenity plot, for use of commercial‑cum‑amusement park‑‑‑Authority, after executing lease in favour of petitioner, allowed commercialization of entire plot subject to payment of necessary charges, which he partly deposited‑‑‑Authority later on alleged such plot to be an amenity plot and cancelled its allotment‑‑‑Contention of petitioner was that after lease, a right in rem had accrued in his favour, which could not be ‑disturbed arbitrarily and unilaterally‑‑‑Validity‑‑‑Subject plot could .be inferred to be an amenity plot from documents placed on record‑‑‑Recording of evidence and then its sifting and scrutiny of entire record was necessary for giving conclusive findings on such point‑‑‑After determination of status of plot being a disputed question of fact, other issues emanating therefrom and law applicable thereto, could be considered and decided‑‑­Amenity plot for park was a public property involving rights of millions of citizens‑‑‑Such issue required consideration on much wider plane and in perspective of a broader horizen keeping in view public interest at law as well as environmental issues‑‑‑Such issue was beyond the scope of petition under Art.199 of the Constitution and same could only be thrashed out in a properly constituted proceedings before a Civil Court‑‑­High Court dismissed Constitutional petition.

Amir Shah v. Ziarat Gul 1998 SCMR 593 ref.

(b) Maxim‑‑‑

‑‑‑‑"Secondum allegata et probata": A party can succeed according to what was alleged and proved.

Amir Shah v. Ziarat Gul 1998 SCMR 593 fol.

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

‑‑‑‑Art. 199‑‑‑Disputed questions of facts‑‑‑Such questions could not be decided in, exercise of Constitutional jurisdiction under Art. 199 of the Constitution.

Mushtaq A. Memon for Petitioners.

Nemo for Respondent No. 1.

Abbas Ali, A.A.‑G. for Respondent No.2.

Ms. Rizwana Ismail for Respondent No.3.

Date of hearing: 12th September, 2003.

P L D 2004 Karachi 191

Before Wahid Bux Brohi and Maqbool Baqar, JJ

KHADIM HUSSAIN ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No.D‑9 of 2004, decided on 29th January, 2004.

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

‑‑‑‑S. 497‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss.9(b) & 51(2)‑‑‑Bail‑‑‑Sessions Court by means of the impugned order had granted bail to the accused in the sum of Rs. one lac on furnishing security in the said amount‑‑‑Said order had been challenged on the ground that the Sessions Court while granting bail to the accused should not have asked for furnishing security‑‑‑Requirement of furnishing security in terms of S.51(2) of the Control of Narcotic Substances Act, 1997, did not contemplate that the bail amount be necessarily deposited in cash, Bank guarantee etc., but the requirement of security could also be satisfied by furnishing the document creating title to a property worth the bail amount‑‑‑Petition was disposed of with the said observation.

Criminal Bail Application No. 114 of 1999; Muhammad Yousuf v. The State 1968 MLD 2623 and Amir Sardar v. The State 1990 PCr.LJ 414 ref.

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

‑‑‑‑S. 51(2)‑‑‑Security‑‑‑Connotation‑‑‑Requirement of' furnishing security in terms of S.51(2) of the Control of Narcotic Substances Act, 1997, does not contemplate that the bail amount be necessarily deposited in cash, Bank guarantee etc., but the requirement of the security can also be satisfied by furnishing the document creating title to a property worth the bail amount.

Criminal Bail Application No. 114 of 1999; Muhammad Yousuf v. The State 1968 MLD 2623 and Amir Sardar v. The State 1990 PCr.LJ 414 ref.

Abdul Rehman Bhutto for Applicant

Gul Hassan Solanei for the State.

P L D 2004 Karachi 194

Before Sarmad Jalal Osmany and Wahid Bux Brohi, JJ

SAMEER SARWAR UMAIR‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Jail Special A.T.A. No.3 of 2000, decided on 28th October, 2003.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 365‑A‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7(1)(a)‑‑­Appreciation of evidence‑‑‑Judicial confession of accused though recorded belatedly after twenty days of his arrest could not negate its contents, as the same had been voluntarily made‑‑‑No doubt the said confession had been retracted, but it was corroborated by medical evidence, pointation to the police by the accused of the places where the deceased was confined and subsequently killed, matching of the crime empties secured from the scene of crime with the pistol recovered from the accused and the fact of the deceased having been last seen with the accused‑‑‑Demand for ransom was also made while the deceased was in the custody of the accused‑‑‑Deceased, thus, was kidnapped by the accused for no other reason than ransom‑‑­Conviction and sentence of death of accused were confirmed in circumstances.

Qadir Baksh v. The State PLD 1981 Kar. 581; Manzoor v. The State PLD 1973 Lah. 714; Tooh v. The State 1975 PCr.LJ 440; The State v. Muhammad Naseer 1993 SCMR 1822; Pinvo v. The State .PLD 1961 (W.P.) Kar. 720; Muhammad Rafique v. The State 1992 PCr.LJ 2119; Mst. Naseem Akhtar v. The State 1999 SCMR 1744; Haq Nawaz v. The State 2000 SCMR 785; Nasreen Akhtar v. The State 2000 SCMR 1635; Ahmed Hassan v. The State 2001 SCMR 505; Najeeba v. Ahmad Sultan 2001 SCMR 988; Tarique Mehmood v. The State 2002 SCMR 1493; Mst. Rubina Bibi v. The State 2001 SCMR 1914; The State v. Farman Hussain PLD 1995 SC 1 and Khan Muhammad v. The State 1999 SCMR 1818 ref.

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

‑‑‑‑S. 164‑‑‑Judicial confession‑‑‑Belated confession‑‑‑Delay in recording the confessional statement by itself cannot negate the same, if otherwise it is proved to have been yoluntarily made.

Ahmed Hassan v. The State 2001 SCMR 505 and Khan Muhammad v. The State 1999 SCMR 1818 ref.

S.K. Jatoi for Appellant.

Habib Ahmad, A.A.‑G. for the State.

Date of hearing: 5th March, 2003.

P L D 2004 Karachi 201

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

GHAUS BUX‑‑‑Appellant

Versus

THE STATE‑‑‑Respondents

Criminal Appeal No.211 of 2003, decided on 26th September, 2003.

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

‑‑-‑S. 9(c)‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.129, illus. (g)‑ Appreciation of evidence‑‑‑Principles‑‑‑Where a best piece of evidence is withheld by a party despite its availability, it is presumed to have some sinister motives behind it‑‑‑Even otherwise, a presumption under illus.(g) of Art. 129 of the Qanun‑e‑Shahadat, 1984, can fairly be drawn in the matter, against the said party.

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

‑‑‑‑S. 9(c)‑‑Appreciation of evidence‑‑‑Prosecution had not examined the private and independent Mashir available in the Court and instead had examined a police witness to prove the allegation against the accused‑‑‑Said private Mashir was not alleged to have been won over: or hostile to prosecution and had been given up solely on the ground that other Mashir was examined‑‑‑Prosecution, as such, had some sinister motive in withholding the said best piece of evidence‑‑‑Furthermore, a presumption under illustration (g) of Art.129 of the Qanun‑e‑Shahadat, 1984, could be raised that had the private Mashir been examined, he .would not have supported the prosecution case‑‑‑Chemical Analyser had received the sample of narcotic after more than seven months‑‑‑Letter under which the sample was sent did not bear the outward number of the police station and the date and the said defects were not explained, which appeared to have been concealed‑‑‑Investigating Officer did not know as to when the same was sent to Chemical Analyser‑‑‑Chemical Examiner's report, thus, itself being doubtful, prosecution could not get advantage from the other evidence available on record‑‑‑Accused was acquitted on benefit of doubt in circumstances.

Iltaf Hussain v. State 1996 SCMR 167; Jamil Shah v. The State 1997 SCMR 1494; Sultan Zari v. The State 1986 PCr.LJ 1723 and Muhammad Mushtaq v. The State PLD 2001 SC 107 ref.

Rana M. Shamim for Appellant.

Jawed Akhtar for the State.

Date of hearing: 26th September, 2003.

P L D 2004 Karachi 210

Before Anwar Zaheer Jamali and Muhammad Mujeebullah Siddiqui, JJ

GHULAM QADIR MAHESAR and others‑‑‑Appellants

Versus

THE STATE‑‑‑‑Respondent

Criminal Accountability Appeals Nos.71 to 74 of 2002, decided on 5th June, 2003.

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

‑‑‑‑Ss. 9/10 & 14‑‑‑Appreciation of evidence‑‑‑No substantive and reliable evidence had come on record to show involvement of the accused in the commission of the crime for which they had been charged‑‑‑Availability of a private "Chowkidar" at the two centres had been concocted by the prosecution to improve its case and conviction of accused by Trial Court on such shabby evidence in complete disregard of the settled principles of law for weighing the evidence of witnesses had resulted in gross miscarriage of justice‑‑‑Basic burden of proof having not been discharged satisfactorily by the prosecution, no adverse presumption could have been drawn against the accused as regards shifting of onus to them to disprove the allegations as contemplated under S.14 of the National Accountability Ordinance, 1999‑‑‑Accused had even placed on record the receipts for supply of wheat at the Wheat Procurement Centres to negate the case of prosecution‑‑‑Where Government Officers were found corrupt and dishonest, then for their corruption and malpractice, others against whom no involvement was proved, could not be made scapegoat or penalized‑‑‑Accused were acquitted in circumstances.

Abdul Aziz Memon v. The State 2003 YLR 617 and Syed Ali Nawaz Shah v. The State PLD 2003 SC 837 ref.

(b) Criminal trial‑‑‑

‑‑‑‑Witness‑‑‑Appreciation of evidence‑‑Court while weighing the evidence in a criminal case has to see whether the witness is a natural witness, a chance witness or a stranger and whether the facts deposed by him are from his personal knowledge or merely hearsay.

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

‑‑‑‑S. 14‑‑‑Presumption against accused‑‑‑Burden of proof‑‑‑Concept elucidated‑‑‑Basic onus, according to the fundamental rule of criminal administration of justice, always rests on the prosecution to prove the guilt of the accused and the special provision can neither be construed to mean that the said onus of the prosecution is shifted to the accused to prove his innocence, nor a presumption of guilt can be raised against him without discharge of initial burden by the prosecution‑‑‑Only exception to the aforesaid rule in special law can be that on the discharge of the initial burden of proving guilt by the prosecution through the evidence, the onus is shifted to the accused to disprove the allegation and if he fails to discharge his burden satisfactorily, then a presumption of guilt can be raised against him.

Abdul Aziz Memon v. The State 2003 YLR 617 and Syed Ali Nawaz Shah v. The State PLD 2003 SC 837 ref.

Ali Ahmed Junejo for Appellants.

Muhammad Anwar Tariq, DPGA, NAB for Respondent.

Dates of hearing: 4th and 5th June, 2003.

P L D 2004 Karachi 224

Before Wahid Bux Brohi and Muhammad Musa K. Leghari, JJ

REMESH UDESHI‑‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Accountability Appeals Nos. 1 and 2 of 2000, decided on 9th September, 2003.

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

‑‑‑‑Ss. 9/10‑‑‑Appreciation of evidence‑‑‑Mere floating of summary in violation of Government Rules of Business would be an irregular exercise of authority which might call for appropriate disciplinary action against the accused under the Service Laws, thereby rendering him liable to disciplinary proceedings in his capacity as a "civil servant", but his such action would not in any way fall within the mischief of "corruption or corrupt practice" as defined in the National Accountability Ordinance, 1999‑‑‑No evidence was available on record to infer that the accused had made any attempt to obtain any personal gain from the transactions and/or extended illegal gains to any one else‑‑‑Besides, it had been brought in evidence that the land was neither demarcated nor possession thereof was handed over to the accused beneficiary and the same stood restored to the Government‑‑‑Orders for grant of the lands had already been cancelled and the co‑accused who was the beneficiary was adequately penalized by way of forfeiture of a considerable amount deposited by him in the Government Treasury‑‑‑Prosecution had failed to establish the charge of corruption and corrupt practices against the accused‑‑‑Accused was acquitted in circumstances.

Aftab Ahmed Khan Sherpao's case PLD 2001 Pesh. 80 and M. Siddique‑ul‑Farooque v. The State PLD 2002 Kar. 24 ref.

Ramesh M. Udeshi v. The State PLD 2003 Kar. 423 distinguished.

Ms. Ismat Mehdi with Arshad Hussain for Appellant.

Muhammad Anwar Tariq, Dy. P.G.A. for the State.

Dates of hearing: 23rd, 29th January; 6th and 7th February, 2003

P L D 2004 Karachi 232

Before Sarmad Jalal Osmany and Wahid Bux Brohi, JJ

ABDUL QAYYUM and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Special Anti‑Terrorism Appeals Nos.47, 48, 52, 53; Special Anti ­Terrorism Acquittal Appeal No.58 of 2001 and Confirmation Case No.7 of 2001, decided on 21st October, 2003.

(a) Penal Code (XLV of 1860)‑‑‑-

‑‑‑‑S.396/34‑‑‑Anti‑Terrorism Act (XXVII of 1997), Ss. 6(d) & 12 and Sched. cl.2(a)(iii) & cl.2(c)‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13(d)‑‑‑Criminal Procedure Code (V of 1898), S.537‑‑­Appreciation of evidence‑‑‑Dacoity with murder‑‑‑Two accused were waiting in the jeep in which the culprits had travelled and the other three accused had carried the ground operation, as such the act of dacoity having been committed by five accused conjointly, S.396, P.P.C. was attracted‑‑‑Offence punishable under S.396, P.P.C. i.e., murder committed during dacoity, having been fully demonstrated under c1.2(a)(iii) of the Schedule to Anti‑Terrorism Act, 1997, on the day of occurrence, S.396, P.P.C. was not needed to be included in clause 2(c) of the said Schedule and its absence therefrom was immaterial‑‑‑Clause 2(a)(iii) of the Schedule being existent at the relevant time, jurisdiction of the Anti‑Terrorism Court was not questionable on the ground that S.396, P.P.C. was not mentioned in the Schedule‑‑‑Section 12 of the Anti‑Terrorism Act, 1997, having manifestly an overriding effect on all other laws, jurisdiction exclusively vested in the Anti‑Terrorism Court to try scheduled offences‑‑‑Trial Court, thus, had the jurisdiction in the case and the trial was not vitiated even on account of the defects in the charge‑‑‑Recovery of unlicensed pistols from the accused at different times from a different place in the absence of evidence of having .been used in the dacoity, did not constitute a scheduled offence and the trial of the same by the Anti‑Terrorism Court being without jurisdiction, their conviction under S.13(d) of the West Pakistan Arms Ordinance, 1965, was consequently set aside‑‑‑Other accused having been gravely misled by the charge framed by Trial Court under S. 13(d) of the West Pakistan Arms Ordinance, 1965, failure of justice had occasioned within the meaning of S.537, Cr.P.C. and his trial stood vitiated‑‑‑Conviction and sentence of the said accused under S.13(d) of the Arms Ordinance, 1965, were therefore, also set aside‑‑‑Judicial confession of accused having been recorded in accordance with law and being true and voluntary, carried evidentiary value and had been rightly used against its maker despite the fact that it was retracted‑‑‑Evidence of eye‑witnesses was trustworthy and believable who had identified the accused in the Court and three of them had rightly picked them in the identification test during investigation which coupled with the medical evidence had further supported the ocular testimony‑‑‑Judicial confession of one accused to the extent of his involvement was also a reliable and hard piece of evidence‑‑‑Prosecution case to the extent of Qatl‑i‑Amd committed during the course of dacoity had been proved against the accused beyond any doubt‑‑‑Convictions and sentences of death awarded to accused by Trial Court under S.396/34, P.P.C. were in accordance with law and the same were upheld in circumstances.

Bashir Ahmed v. State PLD 2002 SC 775; Asghar Ali v. State 1992 SCMR 2088; State v. Farman Hussian, P L D 1995 SC 1; Muneer Ahmed v. State 1998 SCMR 752; Jaspal Singh v. State of Punjab AIR 1997 SC 332; Abdul Ghafoor v. State 2000 SCMR 919; Dosa v. State 2002 SCMR 1578; Mir Hassan v. State 1999 SCMR 1418; Sohni v. Bahaduri PLD 1965 SC 111; Sharafat Ali v. State 1999 SCMR 329; Mehmood Ahmad v. State 1995 SCMR 127; Solat Ali Khan v. State 2002 SCMR 820; Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445; State v. Bashir PLD 1997 SC 408; Naseem Akhtar v. State 1999 SCMR 1744; KHAN Muhammad v. State 1999 SCMR 1818; Muhammad Ismail v. State 1995 SCMR 1615; Geedo v. State 1986 PCr.LJ 2192 Ghulam Sikandar's case PLD 1985 SC 11 and Faqir Ullah v. Khalil‑uz­-Zaman.1999 SCMR 2203 ref.

(b) Penal Code (XLV of 1860)‑‑‑--

‑‑‑S. 396/34‑‑‑Appreciation of evidence‑‑‑Related witness ‑‑‑Principle—­Testimony of witness is not to be discarded merely on the ground of his relationship with the victim or the complainant, if it is otherwise believable.

(c) Identification parade‑‑‑

‑‑‑Omission on the part of Magistrate while conducting an identification parade is an irregularity which should neither damage the entire process of identification test nor wash away the direct ocular evidence.

Solat Ali Khan v. State 2002 SCMR 820 ref.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 396‑‑‑Dacoity with murder‑‑‑Sentence‑‑‑Offence of dacoity accompanied with murder is to be viewed quite separately and since S.396, P.P.C. has a combined effect of Ss.302 & 149, P.P.C., the concept of immunity for those to whom no overt act is attributed, is misconceived.

Geedo v. State 1986 PCr.LJ 2192 ref.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 396/34‑‑‑Anti‑Terrorism Act (XXVII of 1997), S. 6(d)‑‑‑Criminal Procedure Code (V of 1898), Ss.417(1) & 342‑‑‑Appeal against acquittal‑‑‑Question regarding judicial confession of co‑accused involving the accused having not been put to the accused while recording his statement under S.342, Cr.P.C., the same could not be used against him‑‑‑Recovery of fire‑arm from the accused was of no consequence in the absence of evidence that it was used in the commission of the offence‑‑‑Recovery of Jeep used in the commission of the offence was not stated by the Investigating Officer to have been seized on the pointation of accused‑‑‑Basic and direct evidence relating to the identification of accused was badly missing in the case and it was not established beyond doubt that he was one of the persons associated with the dacoity as a driver of the Jeep in which the culprits had gone to the place of incident for dacoity‑‑‑Finding of acquittal recorded by Trial Court in favour of accused was maintained in circumstances.

Ghulam Sikandar's case PLD 1985 SC 11 and Faqir Ullah v Khalil‑uz‑Zaman 1999 SCMR 2203 ref.

A.Q. Halepota for Appellant (in Spl. Anti‑Terrorism Appeal No.52 of 2001).

Shaukat Hayat for Appellant (in Spl. Anti‑Terrorism Appeals Nos.47 and 48 of 2001).

M.R. Syed for Appellant (in Spl. Anti‑Terrorism Appeal No.53 of 2001 and for Respondent (in Spl. Acquittal Appeal No.58 of 2001).

Habib Ahmed, Asstt. A.‑G. Sindh for Appellant (in Spl. Acquittal Appeal No.58 of 2001 and for Respondent/State in above cited Appeals) assisted by Mir Nawaz Khan Marwat, for the Complainant in all the Appeals.

Dates of hearing: 14th, 18th, 20th, 26th 27th and 28th February and 6th March, 2003.

P L D 2004 Karachi 260

Before Muhammad Roshan Essani and Gulzar Ahmed, JJ

ABDUL JABBAR ‑‑‑ Petitioner

Versus

ADMINISTRATOR ABANDONED PROJECT ORGANIZATION and others‑‑‑Respondents

Constitutional Petition No. 1764 of 1999, decided on 25th October. 2003.

(a) Judgment‑‑‑

‑‑‑‑ Judgment "in rem" and judgment "in personam"‑‑‑Import.

The terms "in rem" and "in personam" are of Roman Law used in connection with actio, that is, actio on rem and actio in personam to denote the nature of actions, and with disappearance of the Roman forms of Procedure, each of the two terms "in rem" and "in personam to tagged with the word judgments to denote the end‑products of actions rem and actions in personam. Thus, according to the civil law an actin which a claim of ownership was made against all other persons action in rem and the judgment pronounced in such action judgment in rem and binding upon all persons whom the Court competent to bind, but if the claim was made against a particular person or persons, it was an action in personam and the decree was a decree in personam and binding only upon the particular person or persons against whom the claim was preferred or persons who were privies to them.

The point adjudicated upon in a judgment in rem is always as to the status of the res and is conclusive against the world as to that status, whereas in a judgment in personam the point, whatever it may be, which is adjudicated upon, it not being as to the status of the res, is conclusive only between parties or privies. A decision in rem not merely declares the status of the person or thing, but ipso facto renders it such as it is declared; thus, a decree of divorce not only annuls the marriage, but renders the wife feme sole: adjudication in bankruptey not only declares but constitutes the debtor bankrupt; a sentence in a prize Court not merely declares the vessel prize, but vests it in the captor.

Art. 41 of Qanun‑e‑Shahadat, 1984 does not use the term "judgment in rem", but it incorporates the law on the subject of judgments in rem, and makes them relevant not' only against strangers but also conclusive of certain matters such as whether a person was entitled to a legal character' or to any specific thing not as against any specified person but absolutely.

Judgment in rem are an exception to the rule of law that no man should be bound by the decision. of a Court of Justice unless he or those under whom he claims were parties to the proceeding in which it was given, This rule of lain is referable to the maxims of Roman Law namely, "Res inter alios judicata nullem inter alios prejudicium facet", of Res inter alios acta alteri nocere non debet". Such exception of the judgment in rem in the Roman Law was the foundation of the exception in English law. Art.41 of Qanun‑e‑Shahadat, 1984 is the foundation for the exception of judgment in rem in our corpus' juris. The reason why a judgment should not be used to the prejudice of a stranger is that he is denied the fundamental right to make a defence, or to examine or cross­examine witnesses or to appeal from a judgment which aggrieves him. This is the requirement of most manifest justice and good sense.

Pir Bakhsh v. The Chairman, Allotment Committee PLD 1987 SC 145 quoted.

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

‑‑‑‑S.12‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.41‑‑‑Suit for specific performance of agreement to sell‑‑‑Decree for specific performance of contract does not transfer title of the property‑‑‑such decree or judgment is not a judgment "in rem" but is a judgment "in personam" as there was no adjudication in regard to the status of res so as to render the proceeding an action in rem, that is, to make it a determination conclusive as to whether the party was entitled to the property not against any specified person but absolutely.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑-

‑‑‑Art.114‑‑‑Estoppel plea of‑‑‑Party pleading the estoppel has to show that the representation relied upon by him was genuine and not a forged or fabricated document.

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

‑‑‑‑Art. 41‑‑‑Judgment "in rem" and judgment "in personam"‑‑‑Import.

M.G. Dastagir for Petitioner.

Syed Tariq Ali for Respondents.

Date of hearing: 14th October, 2003.

P L D 2004 Karachi 269

Before Sabihuddin Ahmed and Amir Hani Muslim, JJ

ABDUL RAZZAK KHAMOSH‑‑‑Appellant

Versus

ABBAS ALI and others‑‑‑Respondents

High Court Appeals Nos.305 and 306 of 1999, decided on 4th November, 2003.

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

‑‑‑‑S.42‑‑‑Suit for declaration of right in property‑‑‑Finding beyond the pleadings and dismissal of the suit on said ground was unsustainable.

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

‑‑‑‑S.42‑‑‑Suit for declaration of right in property‑‑‑Mere agreement for sale of property does not create title in favour of the purchaser.

Habib‑ur‑Rehman v. Wahdania PLD 1984 SC 424 ref.

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

‑‑‑‑S.42‑‑‑Suit for declaration of right in property‑‑‑Mere agreement to sell property does not pass order title in favour of the buyer in the absence of a registered instrument and does not constitute a charge on the property in his favour for the amount paid.

Habib‑ur‑Rehman v. Wahdania PLD 1984 SC 424 fol.

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

‑‑‑‑S. 42‑‑‑Suit for declaration of right in property‑‑‑Provision of S.42, Specific Relief Act, 1877 does not require existence of title in favour of the plaintiff but a declaration with respect to any right as to any property could be sought‑‑‑Suit for declaration thus could be filed even though the title to property had not been perfected.

Mansoorul Arfin for Appellant (in H.C.A. No.305 of 1999).

Neel Keshav for Appellants (in H.C.A. No.306 of 1999).

Abbas Ali, Addl. A.‑G.

Aftab Alam for Respondent No. 6.

Arshad Iqbal for Respondent No.7.

Manzoor Ahmed for Respondent No.8.

Ms. Rukhsana Ahmed and Dilawar Hussain for Respondents Nos. 9 to 14.

Dates of hearing: 28th, 29th, 30th, 31st October and 4th November, 2003.

P L D 2004 Karachi 281

Before S. Ali Aslam Jafri, J

TRADING CORPORATION OF PAKISTAN SHAHRAH‑E‑FAISAL, KARACHI‑‑‑Plaintiff

Versus

Messrs CONTINENTAL CARGO SERVICES, SHAHRAH‑E‑LIAQUAT, KARACHI‑‑‑Defendant

Suit No.752 of 1989, decided on 23rd February, 2004.

Civil Procedure Code (V of 1908)—­

‑‑‑‑S. 151, O.VII, R.2, O.VIII, R.6‑‑‑Suit for recovery of amount‑‑­Defendant had entered into a contract with plaintiff for handling Rice Crop at the godown of plaintiff‑‑‑Defendant had executed and furnished a security in the sum of Rs.4,50,000 by depositing Special Saving Certificate for the said amount for performance of contract‑‑‑Plaintiff stated that the defendant having failed to perform his duties resulting in substantial loss to plaintiff, suit for recovery of amount of alleged loss was filed against the defendant‑‑‑Suit filed by plaintiff was dismissed where after defendant filed application to the effect that since suit filed by plaintiff had been dismissed, Certificates deposited by it as security, be ordered to be returned to it alongwith the profit earned thereon‑‑Validity‑‑‑Dismissal of suit would not automatically make defendant entitled for recovery of said amount in absence of any counter claim or set off on the part of defendant and any such decision in respect thereof in the suit‑‑‑Application filed by defendant, having no force was dismissed, in circumstances.

PLD 1983 SC 5; 1988 CLC 1575; 1986 MLD 754 and 1987 MLD 380 ref.

Samiuddin Sami for Plaintiff.

S. Saeed Hassan Zaidi for Defendant.

P L D 2004 Karachi 283

Before Ghulam Nabi Soomro and Muhammad Mujeebullah Siddiqui, JJ

MURAD BALOCH alias MICHAEL‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Special Anti‑Terrorism Jail Appeal No.7 of 2000, decided on 19th March, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7(1)(a)‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13(d)‑‑‑Appreciation of evidence‑‑‑Sentence, reduction in‑‑‑Accused had opted to press his appeal against his conviction only on the ground of severity of sentence and prayed for reduction of sentence from death to life imprisonment‑‑­Eye‑witnesses had very clearly stated in their depositions on oath that accused had fired at deceased who died .due to such fire‑arm injuries‑‑­Proposition that accused and his companion had come with sole purpose of committing robbery from complainant's shop, would not have much bearing in relation to the prayer of reduction of sentence‑‑‑Intention to kill, could be formed even at the spur of moment‑‑‑Shot was fired by accused at the time when he was running away from the scene and on seeing deceased in front of him, he fired shots from his pistol at him‑‑­Punishment under S.7(1)(a) of Anti‑Terrorism Act, 1997 at relevant time was death only‑‑‑In absence of: mitigating circumstances and in view of the legal position, sentence awarded to accused, could not be reduced.

Abdul Waheed Katpar for Appellant.

Habib Ahmad, A.A.‑G. for the State.

Date of hearing: 26th February, 2004.

P L D 2004 Karachi 287

Before Sabihuddin Ahmed and Amir Hani Muslim, JJ

ABDUL QADIR SAHAR‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Constitutional Petition No.D‑1356 of 2003, decided on 14th November, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑National Accountability Ordinance (XVIII of 1999), S.31‑A‑‑‑Bail, grant of‑‑‑Accused earlier was granted bail by Special Judge, Anti‑Corruption and his case was transferred to Accountability Court where he continued appearing on some dates, whereafter he discontinued to appear‑‑Surety amount of accused was forfeited and he was declared proclaimed offender and was convicted under S.31‑A of National Accountability Ordinance, 1999 and was sentenced‑‑‑On filing appeal against his conviction and sentence, order convicting accused was suspended by the High Court directing accused to surrender before National Accountability Court and accused surrendered himself accordingly and he was remanded to judicial custody of said Court‑‑­Bail application filed by accused was not pressed by him in view of statement of Deputy Prosecutor General to the effect that Trial Court would conclude trial within two months and bail application was disposed of in above terms‑‑‑Grievance, of accused in instant bail application was that Trial Court had failed to get trial concluded within stipulated period of two months and despite lapse of more than four months Trial Court could not examine seven prosecution witnesses out of fifty witnesses and that no likelihood was that trial would conclude before another two to three years‑‑‑Accused had contended that failure of Trial Court to get trial concluded within stipulated period of two months, itself had entitled him to bail‑‑‑Contention of accused was repelled in view of fact that direction in order of High Court to conclude trial within stipulated period, could not be treated as directory‑‑‑Even otherwise High Court in its order had stated that upon expiry of said stipulated period of two months, accused could be able to apply for bail and nowhere it was stated that accused would acquire a right to be enlarged on bail‑‑‑Bail could also be refused on merits because unexplained noticeable absconsion of accused, would disentitle him to concession of bail notwithstanding merits of the case‑‑‑Accused once having abused the concession and having failed to submit' any plausible explanation for such absconsion, was not entitled to grant of bail‑‑‑In peculiar circumstances of the case in which co‑accused had been granted bail, High Court had directed Accountability Court to conclude trial within three months by giving priority to the case of accused.

The State v. Mukhtar Awan 1991 SCMR 322 and Sher Ali v. The State 1998 SCMR 190 ref.

Mian Khan Malik for Petitioner.

Anwar Tariq, Dy. Prosecutor‑General NAB for the State.

Dates of hearing: 13th and 14th November, 2003.

P L D 2004 Karachi 290

Before Wahid Bux Brohi and Rahmat Hussian Jafferi, JJ

MUNIR AHMAD‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Special Anti‑Terrorism Jail Appeal No.7 of 2002, decided on 25 November, 2003.

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

‑‑‑‑Ss. 7(b) & 39‑B(2)(e) [as amended by Anti‑Terrorism (Amendment) Ordinance (XXXIX of 2001)]‑‑‑Penal Code (XLV of 1860), Ss.392/34‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑‑Jurisdiction to try case‑‑‑Transfer of case to ordinary Court from Anti‑Terrorism Court ‑‑‑Vehicle snatching was a "terrorist act", an offence triable by Anti‑Terrorism Court within meaning of S.6(d), of Anti‑Terrorism Act, 1997‑‑‑Section 6 of the Act was extensively amended through Anti­ Terrorism (Amendment) Ordinance, 2001, but amended S.6 did not include offence of vehicle‑snatching or lifting‑‑‑Case of vehicle‑snatching against accused by way of statutory provisions of S.39‑B(2)(e) of Anti ­Terrorism Act, 1997 as amended, stood transferred to ordinary Court, but Anti‑Terrorism Court despite said amendment during trial of case, continued with trial and delivered judgment‑‑‑Validity‑‑‑Trial of case before Anti‑Terrorism Court, in circumstances, was coram non judice and finding of conviction of accused followed by sentence rendered by said Court could not be sustained in law‑‑‑Conviction and sentence awarded to accused by Anti‑Terrorism Court under S.7(b) of Anti­ Terrorism Act, 1997 and S.392, P.P.C. were set aside‑‑‑Cases of offence of vehicle‑snatching/robbery and offence under S.13‑.D of West Pakistan Arms Ordinance, 1961 were bifurcated and were remanded to Trial Court for forwarding the same for trial in accordance with law by Court of competent jurisdiction.

Iftikhar Ali Hashmi for Appellant.

Habib Ahmed, Asstt. A.‑G.

P L D 2004 Karachi 293

Before Muhammad Roshan Essani and Amir Hani Muslim, JJ

GUL MUHAMMAD and another‑--‑Petitioners

Versus

GOVERNMENT OF SINDH through Secretary, Revenue, Government of Sindh, Hyderabad and 7 others‑‑‑Respondents

Constitutional Petition No.D‑37 of 1996, decided on 12th August, 2003.

(a) Land Reforms Regulation, 1972 (MLR 115)‑‑‑--

‑‑‑‑Paras 28 & 29‑‑‑West Pakistan Land Reforms Regulation, 1959 (M.L.R. 64), para. 19‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Agreement to sell resumed land on payment of instalments under Para. 19 of M.L.R. 64‑‑‑Petitioner as grantee of such land after repeal of M.L.R.. 64 claimed to be owner thereof since instalments had been waived by Para. 28 of M. L. R. 115‑‑‑Authority, after holding inquiry, cancelled grant on the ground that petitioner was not in physical cultivating possession of land and its use as houses was impermissible‑‑‑Validity‑‑‑Petitioner had participated in inquiry and had not disputed inquiry report, which was made basis of impugned order‑‑­Promulgation of M.L.R. 115 had not nullified effect of such sale agreement or conditions incorporated therein‑‑‑Provision of M.L.R. 115 had .only relaxed and/or waived condition of payment of instalments, while remaining other conditions of agreement intact‑‑‑Promulgation of M.L.R. 115 could not change status of land, which was in the nature of grant‑‑‑Question of possession being a question of fact, could not be decided in exercise of Constitutional jurisdiction‑‑‑Petitioner had not availed remedy of revision‑‑‑High Court would not sit in appeal against impugned orders by allowing petitioner to bypass available statutory remedy‑‑‑Jurisdiction exercised by authority was covered by law‑‑‑High Court dismissed Constitutional petition.

Ghulam Muhammad v. Sijawal Hussian 1990 MLD 2412 ref.

Khushi Muhammad v. Chief Land Commissioner 1993 SCMR 878 rel.

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

‑‑‑‑Art. 199‑‑‑Issue raised being in nature of factual controversy‑‑­Effect‑High Court would not entertain such controversy in exercise of Constitutional jurisdiction.

Aijaz Ali Hakro for Petitioners.

Masood Noorani, Addl. A.‑G. Sindh for Respondents Nos.1 to 5.

Jhamat Jethanand for Respondents Nos.6 to 8.

Date of hearing: 5th August, 2003.

PL D 2004 Karachi 298

Before Syed Zawwar Hussain Jaffery; J

MUHAMMAD ISMAIL alias MANTHAR‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 10 of 2004, decided on 10th March, 2004.

Penal Code (XLV of 1860)‑‑---

‑‑‑‑S. 295‑B‑‑‑Appreciation of evidence‑‑‑Allegation against accused was that he, after tearing the Holv Qur'an. set it on fire‑‑‑Complainant in his cross‑examination had deposed that the door of room of complainant where occurrence had taken place was open at the time of incident and that two prosecution witnesses had come on cries of the complainant‑‑­Said fact would mean that incident was not witnessed by the prosecution witnesses‑‑‑Complainant in his F.I.R. had admitted that accused and complainant were on good terms, but one and. a half month prior to lodging of F.I.R., complainant had restrained accused not to visit his house‑‑‑Complainant had not disclosed as on what actions their relations had become strained and why he had restrained the accused not to visit his house‑‑‑Apparently, there would have been some other motive to restrain accused from visiting house of complainant‑‑‑Accused belonged to the caste of complainant and prosecution witnesses‑‑‑Entire evidence showed that accused was already in the house of complainant and complainant after tearing the Holy Qur'an, set the same on fire and raised cries which attracted prosecution witnesses who advised complainant to lodge F.I.R. against accused who was not on good terms with them being their caste fellow‑‑‑Some family affairs between the parties had probably been converted by complainant into offence against I accused which was of sensitive nature and enmity between parties had been suppressed‑‑‑Doubt had been created with regard to prosecution story particularly from statement of prosecution witnesses showing their ignorance in respect of their presence at the time of alleged incident‑‑‑Testimony of Police Officials had become doubtful and complainant and two witnesses had contradicted each other regarding their presence and witnessing the incident‑‑‑No reason was given as to why accused had set Holy Qur'an on fire after tearing its pages‑‑‑Conviction and sentence recorded against accused by Trial Court, were set aside and he was acquitted of the charge and was set at liberty.

Ali Nawaz Dehraj for Petitioner.

Fazlur Rehman for the State.

Date of hearing: 23rd February, 2004.

P L D 2004 Karachi 304

Before Anwar Zaheer Jamali, J

Mrs. ZUBAIDA‑‑‑Plaintiff

Versus

CITY DISTRICT GOVERNMENT, KARACHI and others‑‑‑Defendants

Suit No. 1172 of 2003, decided on 9th December, 2003.

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

‑‑‑‑O. II, R.2 & O. VII, R.11‑‑‑Rejection of plaint‑‑‑Effect‑‑‑Rejection of plaint does not debar a party from filing a fresh suit on the same cause of action after removing such technical/legal objection.

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

‑‑‑‑S. 42‑‑‑Declaratory suit‑‑‑Maintainability‑‑‑Grievance of plaintiff was that defendants were denying facilities agreed to be provided at the time of leasing of the flat to her‑‑‑Validity‑‑‑Plaintiff being registered sub­ lessee of a flat in the suit plot could not be denied her right of seeking various reliefs against builder and subsequent buyer of a. portion of the suit plot‑‑‑Plaint was maintainable in circumstances.

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

‑‑‑‑S.42‑‑‑Registration Act (XVI of 1908), S.17‑‑‑Title over immovable property‑‑‑Right of transferee‑‑‑Scope‑‑‑Title of transferee is subject to all legal obligations of the transferor in respect of the property transferred‑‑‑Buyer cannot get a better title in the property than the one held by its seller.

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

‑‑‑‑O. XXXIX, Rr.1 & 2‑‑‑Interim injunction, grant of‑‑‑Indefeasible case in favour of plaintiff, decision of‑‑‑Validity‑‑‑For deciding fate of an application for grant of injunction under OXXXIX, Rr.1 and 2 C.P.C., in addition to examine question of irreparable loss and injury in case of refusal of injunction and balance of convenience, the Court has to see only a prima facie case and not a indefeasible case in favour of a party seeking injunction.

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

‑‑‑‑Ss. 42 & 54‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2‑‑‑Interim injunction, grant of‑‑‑Denial of facilities offered to lessee at the time of lease of suit property‑‑‑Plaintiff was sub‑lessee of a flat in residential apartments constructed by one of the defendants while the other defendant was purchaser of a portion of plot included in the area of the apartments‑‑‑Purchaser intended to construct the disputed portion which was reserved for amenities‑‑‑Validity‑‑‑Plaintiff and other sub­ lessees residing in the constructed block of the apartment over the suit plot would be deprived of their amenities. in case the purchaser would be given a free hand in respect of the sub‑divided suit plot, when the claim of the plaintiff in respect thereof was yet, to be decided with reference to the relief claimed in the suit‑‑‑Plaintiff had made out a prima facie case, balance of convenience was also in her favour and she would suffer irreparable loss and injury in case of refusal of injunction‑‑‑Interim injunction was granted in circumstances.

Abdul Razak v. Karachi Building Control Authority and others PLD 1994 SC 512 and Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2883 ref.

Muhammad Amin v. The State (2000 SCMR 1784); Haji Haroon Mandrah and another v. Abdul Rahim and others (2001 CLC 1312) and Din Muhammad Qureshi v. Government of Sindh and others (2003 CLC 245) distinguish.

Anwar Tariq and Muhammad Sharif for Plaintiffs.

Mrs. Zahida Naqvi for Defendant No.2.

Mrs. Surriya Rahim for Defendant No.4.

Date of hearing: 24th November, 2003.

P L D 2004 Karachi 312

Before Syed Zawwar Hussain Jaffery, J

GUL KHAN‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.1339 of 2003, decided on 24th November, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.382‑‑‑Bail‑‑‑Four prosecution witnesses running their business near the place of incident who were known to the parties and had been examined during the police investigation, had not supported the prosecution version in their affidavits‑‑‑Snatched articles and amount were not recovered from the accused during investigation‑‑‑Case was of two versions and it was yet to be determined by the Trial Court as to which of them was correct‑‑‑Bail was allowed to accused in circumstances.

Shahadat Awan for Applicant

Ms. Akhtar Rehana for the State.

M. Shafi Khan for the Complainant.

P L D 2004 Karachi 315

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

KHURRAM SHUJA ‑‑‑ Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.945 of 2003, deckled on 13th October, 2003.

Criminal Procedure Code (V of 1898)‑‑‑

----‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.408/420/468/471/109/34‑‑­Bail, grant of‑‑‑Accused apparently had knowingly participated in the forgery by way of opening fake account and accepting forged export documents‑‑‑Release of 75% of money on self‑introduced opening form was yet to be accounted for by the accused‑‑‑Offence allegedly committed by accused squarely involved banking business and was a scheduled offence‑‑‑Bail plea on tentative assessment of evidence was rejected accordingly‑‑‑Accused had volunteered to deposit the amount involved in the matter and instead of dismissing the bail application he was directed to be released on bail on depositing the said amount and furnishing surety in the same amount to the satisfaction of the Nazir of High Court‑‑‑Bail application was disposed of accordingly.

A. Habib Ahmed v. M.K.G. Scott Christian PLD 1992 SC 353 and Shamraiz Khan's case 2000 SCMR 157 ref.

Habibur Rahman for Applicant.

Khursheed Hashmi, Dy. A.‑G. for the State.

P L D 2004 Karachi 319

Before Ghulam Nabi Soomro and Muhammad Mujeebullah Siddiqui, JJ

MUHAMMAD DILAWAR KHAN and 2 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Special Anti‑Terrorism Appeal No.3 of 2003 and Confirmation Case No.1 of 2003, decided on 8th March, 2004.

(a) Penal Code (XLV of 1860)‑‑‑--

‑‑‑S. 302(b)/34‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7(a)‑‑­Appreciation of evidence‑‑‑Eye‑witnesses had failed to discharge the burden of giving reasonable excuse and explanation for withholding the evidence for a long period of five months which had made their testimony unreliable‑‑‑Evidence of the said witnesses was also fraught with contradictions, discrepancies and improbabilities which had remained uncorroborated‑Identification of accused in the identification test by the aforesaid eye‑witnesses, whose presence at the place of incident was highly doubtful, could not be relied upon‑‑Even otherwise, the presence of the Investigating Officer at the time of identification test and his association with the identification proceedings had made the test partial, for which he had been acting as Mashir and the same was ruled out of consideration‑‑‑Retracted judicial confession of accused having no independent corroboration could not form the basis for awarding capital sentence‑Accused were acquitted in circumstances.

Liaquat Hussain v. Federation of Pakistan 1999 SCMR 569; Nawab v. Crown AIR 1923 Lah. 391; Emperor v. Kallu AIR 1937 Qudh. 259; Anna and others v. Hyderabad State AIR 1956 Hyderabad 99; Noor Khan v. Haq Nawaz PLD 1982 FSC 265; Badaiulsanai Fi Tartibisharai by Kasani, Vol. VII, pp.46, 47; Tabyinul Haqaiq, Vol. III, p.187; Attaazir Fil Shariatil Islami, p.522; Sharah Fathul Qadeer, Vol 5, p.9; Tilka Hadood Ullah by Ibraheem Ahmed Alwaqafi, p.38; Taqadum (Shareh Fathul Qadeer, Vol. V. p.56 Attashiriul Janai Ul Islam by Abdul Qadir Audaa; Shaih ul Majella, Vol. V, p.178 (printed in Hams 1355 Hijra). Book XIV, Chap. II, Ss. 1660, 1663; Fatawa Alamgiri, p.339 and Almughni, Vol.X, p.187, Almuhalla, Vol, II, p.144 ref.

(b) Penal Code (XLV of 1860)‑‑‑--

---S. 302(b)/34‑‑Apprcciation of evidence‑‑Withholding of information by eye-witness---Principle—person aware of the commission of offence and withholding the information is an accomplice who provides protection to the accused‑‑‑Independent corroboration of the material particulars of the evidence of such a witness is a rule of law.

Nawab v. Crown AIR 1923 Lah. 391; Emperor v. Kallu AIR 1937 Qudh. 259; Anna and others v. Hyderabad State AIR 1956 Hyderabad 99; Noor Khan v. Haq Nawaz PLD 1982 FSC 265; ref.

(c) Islamic Jurisprudence‑‑‑--

‑‑‑‑Delay‑‑‑Taqadam‑‑‑In Islamic Fiqah delay in making a complaint in respect of penal offences is not favoured particularly in offences relating to Hudood‑‑‑Delay, which in Islamic Fiqah is referred to as "Taqadam", in making the complaint is either because the complainant wanted to suppress the commission of the crime or that he was motivated by feelings of hatred.

Badaiulsanai Fi Tartibisharai by Kasani, Vol. VII, pp.46, 47 ref.

(d) Islamic Jurisprudence‑‑‑

‑‑‑‑Confession, retraction of‑‑‑In Hadd matters it is open to accused to retract the confession not only during the trial but also before the execution of the sentence.

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

‑‑‑‑Art. 22‑‑‑Identification parade‑‑‑Investigating Officer and any police officer assisting him in the investigation of the case should have no access whatever either to the suspects or to the witnesses‑‑‑Value of identification test arranged by the Investigating Officer or his subordinates is inevitably liable to be called in question by the defence.

Azizullah K. Shaikh for Appellants.

Habib Ahmed, A.A.‑G. for the State

Date of hearing: 18th February, 2004.

P L D 2004 Karachi 343

Before Ghulam Nabi Soomro, J

KHURRAM MASIH‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1482 of 2003, decided on 19th December, 2003.

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

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV OF 1860), S.436/34‑‑‑Bail, grant of‑‑­Names of accused having not been mentioned in the F.I.R. delay in lodging the same was not fatal to prosecution case‑‑‑Delay in examination of prosecution witnesses by several weeks, however, was in favour of accused‑‑‑Accused had remained in custody for about ten months and he was no more required for the purpose of investigation‑‑­Guilt of the accused called, for further inquiry as envisaged under S.497(2), Cr.P.C.‑‑‑Accused was admitted to bail in circumstances.

Akhtar Jamal for Applicant.

Ms. Akhtar Rehana for the State.

Date of hearing: 19th December, 2003.

P L D 2004 Karachi 345

Before Ghulam Rabbani, J

MUHAMMAD SALEEM‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Bail Application No.89 of 2004, decided on 8th March, 2004.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Bail, grant of‑‑­Application for‑‑‑Mother of deceased had disclosed in her evidence that deceased was taken on relevant date by accused who was husband of deceased to show her, his clinic and that thereafter deceased did not return‑‑‑Another prosecution witness had deposed that he had seen both deceased and accused going together towards clinic of accused and after three days he came to know that deceased was missing‑‑‑Another prosecution witness had deposed that on relevant date he had seen deceased lying unconscious in the clinic of accused where he injected her a medicine meant for buffalo which prosecution witness had bought from some store on prescription of accused‑‑‑Evidence so brought on record had sufficiently established that deceased had gone with accused on relevant date where after she went missing and that clinic in which dead body of deceased was buried and subsequently was recovered, belonged to accused‑‑‑Said facts though tentatively, had prima facie, made out a case against accused‑‑‑Delay in lodging F.I.R., per se did not damage case of prosecution absolutely‑‑‑Fact that accused remained in abscondence for more than five years, had also not been denied‑‑­Bail application filed by accused being meritless, was dismissed.

Chowhary Iftikhar Ahmed for Applicant.

Shahdat Awan for the Complainant.

Abdul Jalil Zubedi for the State.

P L D 2004 Karachi 348

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

THE STATE‑‑‑Appellant

Versus

AHMED RASOOL and another‑‑‑Respondents

Criminal Acquittal Appeals Nos. 133, 134, 135, 169 of 2001 and 38 of 2002, decided on 18th December, 2003.

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

‑‑‑‑S. 404‑‑‑Appeal‑‑‑Right of appeal in criminal matters is not a natural right but is created by statute and it must be governed by the statute in conformity with which the offender is tried‑‑‑Such right has to be specifically provided for in the statute as it cannot arise by implication‑‑­Right of appeal is not a mere matter of procedure, but is a vested right which inheres in a party from the commencement of the action in the Court of first instance.

(b) Drugs Act (XXXI of 1976)‑‑‑--

‑‑‑‑Ss. 2 & 39‑‑‑Criminal Procedure Code (V of 1898), Ss.417 & 404‑‑­Appeal against acquittal not provided in Drugs Act, 1976‑‑‑Judgment of acquittal passed by the Drug Court is final by virtue of S.39 of the Drugs Act, 1976, which cannot be challenged except as otherwise provided under the said Act‑‑‑Provisions of the Criminal Procedure Code, 1898 relating to filing of appeal are not applicable as no right of appeal against judgment of acquittal is provided under Drugs Act, 1976‑‑‑State, therefore, has no right to file appeal against the judgment of acquittal passed by the Drug Court.

Habib Bank Ltd. v. State PLD 1988 Kar. 49 ref.

(c) Criminal trial‑‑‑--

‑‑‑‑Jurisdiction‑‑‑Appellate jurisdiction and revisional jurisdiction‑‑‑Distinction ‑‑‑Appellate jurisdiction and Revisional jurisdiction are two different subjects‑‑‑Under appellate jurisdiction entire case including its factual and legal aspects is to be re‑opened, whereas under revisional jurisdiction a limited scope is provided to the Court to examine the judgment passed by the lower Court.

Habib Ahmed, A.A.‑G. for the State.

Muneer Ahmed Bhatti, Mehmood A. Qureshi and Abid Hameed for Respondents.

Date of hearing: 9th December, 2003.

P L D 2004 Karachi 353

Before Ghulam Nabi Soomro and Muhammad Mujeebullah Siddiqui, JJ

Commodore (Retd.) Mirza ASHFAQ BAIG and others‑‑‑Appellants

Versus

THE STATE (NAB)‑‑‑Respondents

Criminal Accountability Appeals Nos.1 and 2 of 2004, decided on 11th March, 2004.

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

‑‑‑‑S. 9(a)(vi)‑‑‑Essentials‑‑‑Necessary ingredient in order to constitute an offence under S.9(a)(vi) of the National Accountability Ordinance, 1999, is the intention or purpose to gain any benefit or favour for such person or any other person and the inaction or omission is also in the same direction.

(b) Interpretation of statutes‑‑--

‑‑‑‑Preamble‑‑‑Preamble of a statute although is not a substantive part of the statute yet for ascertaining the intention of the Legislature Courts can look into its preamble.

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

‑‑‑‑S. 9(a)(vi)/10‑‑‑Appreciation of evidence‑‑‑Not an iota of evidence was available on record to show that any exorbitant price was paid for, the purchase of the three ships thereby causing any loss to the exchequer or PNSC‑‑‑No loss of any nature was caused as a result of the purchase transaction‑‑‑Record also did not show that any favour was done to anybody or was attempted to be done to any body for the purpose of any gain or benefit or any attempt was made or rendered in such direction by the accused‑‑‑Trial Court, thus, had misdirected itself in holding that the prosecution had succeeded in bringing home the guilt to the accused under S.9(a)(vi) of the National Accountability Ordinance‑‑‑In the absence of any evidence and finding on the point of any gain, benefit or favour or any attempt in this behalf to the accused or any other person, the impugned judgment of Trial Court was not sustainable‑‑‑Accused were acquitted accordingly.

Muhammad Siddique‑ul‑Farooq v. The State PLD 2002 Kar. 24; Akhtar Hussain Ansari v. The State 2003 PCr.LJ 473; Dr. Farooq Sattar v. The State PLD 2002 Lah. 95; Tariq Javed Afridi v. The State PLD 2002 Lah. 233 and M. Anwar Saifullah Khan v. The State PLD 2002 Lah. 458 ref.

Azizullah K. Shaikh and I.A. Hashmi for Appellants.

Muhammad Anwer Tariq, DPGA for NAB for Respondent.

Date of hearing: 4th March, 2004.

P L D 2004 Karachi 377

Before Ghulam Nabi Soomro and Muhammad Afzal Soomro, JJ

MUHAMMAD IQBAL SOLANGI‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1009 of 2003, decided on 18th September, 2003.

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

‑‑‑‑S. 497(2)‑‑‑National Accountability Ordinance (XVIII of 1999). S.9/10‑‑‑Bail‑‑‑Accused admittedly had voluntarily surrendered before law and he was allowed bail in his appeal against the sentence awarded to him under S.31‑A ‑of the National Accountability Ordinance subject to his appearance before the Trial Court‑‑‑Question whether the absence of accused from the Court was deliberate amounting to abscondence was sub judice in his appeal‑‑‑Allegation in the case appeared to be the preparation of fake permits whose originators were yet to be traced out‑‑‑Four accused in the case had already been acquitted‑‑‑Case of accused in circumstances, was one of further inquiry as contemplated under S.497(2), Cr.P.C.‑‑‑Accused was admitted to bail accordingly.

SBLR 2003 Sindh 1119; Muhammad Ibrahim v. Hayat Gul and others 1995 SCMR 382; State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322; Murad Khan v. Fozia Subhan and others PLD 1983 SC 82; Jamaluddin v. The State 1985 SCMR 1949 and Miran Bux v. The State PLD 1989 SC 347 ref.

Abdul Haleem Pirzada for Applicant.

M. Anwar Tariq, DPGA for NAB

P L D 2004 Karachi 380

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

HAJI‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.47 of 1999, decided on 14‑11‑2003.

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

‑‑‑‑S. 9(b)‑‑‑Appreciation of evidence‑‑‑Principles‑‑‑Any piece of evidence deposed in examination‑In‑chief, if not denied in cross‑examination, to be presumed to have been accepted as true by the other side.

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

‑‑‑‑S. 9(b)‑‑‑Appreciation of evidence‑‑‑Defence taken by accused was proved on record‑‑‑Recovery witnesses were, police officials having enmity with the accused and they had motive to implicate him falsely in the case and their deposition was not supported by any strong and independent corroboration‑‑‑Such evidence could not be safely relied upon‑‑‑Possibility of false implication of accused in the case, therefore, could not be ruled out‑‑‑Benefit of doubt was extended to accused in circumstances and he was acquitted accordingly.

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

‑‑‑‑S. 9(b)‑‑‑Appreciation of evidence‑‑Police witnesses‑‑‑Police officials are as good witnesses as any other citizen and unless any mala fides is established against them, their deposition cannot be brushed aside simply‑ on the bald allegation that they belong to Police Department.

Jamal Shah v. State 1997 SCMR 1494 and Muhammad Naeem v. State 1992 SCMR 1617 ref.

Jamal Shah v. State 1997 SCMR 1494 and Muhammad Naeem v. State 1992 SCMR 1617 ref.

Appellant to person.

Arshad Lodhi, A.A.‑G. for the State.

P L D 2004 Karachi 386

Before Ghulam Nabi Soomro, J

MASOOD KHAN‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.52 of 2004, decided on 6th April, 2004.

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

‑‑‑‑S. 426‑‑‑Penal Code (XLV of 1860), Ss.320 & 322‑‑‑Suspension of sentence‑‑‑Offence under S.320, P.P.C. was bailable whereas under S.322, P.P.C. it was non‑bailable, but both of them were compoundable ‑‑‑Sentence awarded to accused by Trial Court under 5.322, P.P.C., however, appeared to be illegal‑‑‑Was yet to be determined whether the accused could, under the law, be convicted and sentenced both under Ss.320 and 322, P.P.C. simultaneously‑‑‑Sentence awarded to accused was suspended in circumstances and he was released on bail accordingly.

Abdul Samad v. The State 1999 SD 432; Safdar Ali Shah v. The State 1997 MLD 961; Shah Hussain v. The State PLD 1995 Kar. 209; Muhammad Farooq v. The State Criminal Appeal No.60 of 2002 (unreported); Naseer Khan v. The State Criminal Appeal No.394 of 2002 (unreported); Rasheed Ahmed v. The State Criminal Appeal No. 177 of 2003 (unreported); Muhammad Anwar v. The State Criminal Appeal No.224 of 2003 (unreported) ref.

Muhammad Aziz Khan for Applicant.

Habib Rasheed for the State.

P L D 2004 Karachi 388

Before Ghulam Nabi Soomro, J

Dr. HASAN JALISI‑‑‑‑Applicant

Versus

THE STATE and 3 others‑‑‑Respondents

Criminal Revision Application No. 110 of 2003, decided on 2nd April, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), Ss.337‑F(i)/341/504/506(ii)--Application for cancellation of pre‑arrest bail‑‑‑Admittedly the offences were punishable between one month and seven years imprisonment and the accused would be entitled to post arrest bail tomorrow if they were sent to jail today ‑‑‑Challan had been submitted in the Trial Court where the accused were appearing regularly‑‑‑No concept of punishment exist in law without a finding of guilty and the accused deserved such benefit in the circumstances of the case‑‑‑Petition for cancellation of bail was dismissed accordingly.

Muhammad Ramzan v. Zafarullah and another 1986 SCMR 1380 ref.

Khawaja Naveed Ahmad for Applicant.

Ismat Mehdi, Advocate.

Habib‑ur‑Rasheed for the State.

P L D 2004 Karachi 389

Before Saiyed Saeed Ashhad, C.J. and Ghulam Rabbani, J

HILTON PHARMA (PVT) LTD.‑‑‑Petitioner

Versus

COLLECTOR OF CUSTOMS (APPG) through Assistant Collector, Customs, Karachi and 3 others‑‑‑Respondents

Constitutional Petition Na.890 of 1997, decided on 24th March, 2004.

Precedent‑--

‑‑‑‑ Earlier judgment of High Court challenged before High Court‑‑­Validity‑‑‑So long as impugned judgment was not set aside or modified, such judgment and observations made therein would be applicable to a petition/case involving similar issues and disputes.

Aziz A. Shaikh for Petitioner.

Raja Muhammad Iqbal for Respondents.

Sajjad Ali Shah Standing Counsel.

P L D 2004 Karachi 391

Before Muhammad Roshan Essani and Amir Hani Muslim, JJ

Mst. GHULAM SAKINA‑‑‑Petitioner

Versus

MEMBER (J), BOARD OF REVENUE, HYDERABAD and 4 others‑‑‑Respondents

Constitutional Petition No.D‑257 of 2002, decided on 4th September, 2004.

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

‑‑‑‑S. 39‑‑‑West Pakistan Land Revenue Act (XVII of 1967), Ss.42 & 44‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Suit for cancellation of registered general power of attorney‑ ‑Mutation of sale effected in favour of petitioner by general attorney of vendor‑‑­Respondent sought cancellation of mutation alleging power of attorney to be bogus‑‑‑Collector directed respondent to approach Civil Court for cancellation of power of attorney‑‑‑Respondent filed such suit, but during its pendency, he again made application to Collector for cancellation of mutation, which was allowed‑‑‑Validity‑‑‑Registered instrument could not be cancelled ‑without intervention of Civil Court of competent jurisdiction‑‑‑Revenue Authorities in law could not examine authenticity of any registered instrument in exercise of their powers under provisions of West Pakistan Land Revenue Act, 1967‑‑‑All proceedings before Revenue Authorities subsequent to filing of such suit were nullity in the eye of law‑‑‑Revenue Authorities in view of bar of S.39 of Specific Relief Act, 1877 could not pass impugned order in respect of sane issue pending before Civil Court‑‑‑High Court accepted Constitutional petition with directions to Trial Court to decide suit in accordance with law.

(b) Administration of justice‑‑‑--

‑‑‑‑ Public functionaries should discharge their duties honestly without accepting any influence from any quarter.

Ghulam Rasul Qureshi for Petitioner.

Masood Noorani, Addl. A.‑G.

Muhammad Younus H. Behan for Respondents.

Date of hearing: 3rd September, 2003.

P L D 2004 Karachi 395

Before Muhammad Roshan Essani and Amir Hani Muslim, JJ

NADIR HASSAN‑‑‑Petitioner

Versus

SADARUDDIN and 3 others‑‑‑Respondents

Constitutional Petition No.458 of 2002, decided on 12th August, 2003

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

‑‑‑‑O. IV, R.1, O.III, R.1 & O.V, R.3(2)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Presentation of plaint through counsel‑‑‑Direction of Trial Court for personal appearance of plaintiff at such stage without assigning any reason‑‑‑Validity‑‑‑Judicial Officers in law were required to dispense justice softly and swiftly without inviting difficulties for parties, unless a direction of such nature was indispensable‑‑‑Court had power to direct appearance of a party‑‑‑Trial Court could hear the counsel, if there was any need‑‑‑Direction of personal appearance of a party without assigning reason would be inconceivable ‑‑‑Revisional Court had misdirected itself by affirming such direction of Trial Court‑‑‑High Court accepted Constitutional petition, set aside impugned orders being without jurisdiction with direction to District Judge to entrust such case to any other Judicial Officer other than the one, who had passed impugned order.

(b) Administration of justice‑‑‑‑

‑‑‑‑Judicial Officer are expected to administer justice by adopting such procedure, which can bring comfort to litigants.

Syed Masood Ali for Petitioner

Kazi Munawwar Ali Amicus Curie

Masood Noorani, Addl. A.‑G

Date of hearing; 5th August, 2003.

P L D 2004 Karachi 399

Before Shabbir Ahmad and Khilji Arif Hussain, JJ

ABDUL MALIK K. LAKHA through Legal Heirs‑‑‑Appellants

Versus

ABDUL KARIM K. KARA‑--Respondent

High Court Appeal No. 130 of 2002, decided on 22nd April, 2004.

(a) Stamp Act (II of 1899)‑‑‑

‑‑‑Ss. 3 & 19‑‑‑Civil Procedure Code (V of 1908), O.XXXVII, Rr.1 & 2‑‑‑Foreign bill‑‑‑Affixing of stamp duty‑‑‑Principle‑‑‑Suit for recovery of amount was filed on the basis of negotiable instrument executed outside Pakistan‑‑‑Objection was raised that the bill had not beer, stamped by the plaintiff‑‑‑Validity‑‑‑Such bill required stamp duty under S.3 of Stamp Act, 1899, before it was accepted or presented for acceptance or payment or endorsed, transferred or otherwise negotiated in Pakistan‑‑‑Whereas S.19 of Stamp Act, 1899,` required that the first holder in Pakistan of any bill of exchange payable otherwise than on demand, or promissory note (foreign bills) to be stamped by duty, before the same was presented for acceptance, payment or endorsed, transferred or otherwise negotiated in Pakistan‑‑‑Both were charging sections, in first event, the promisee before the promissory note was presented for acceptance, payment, or endorses, transfers or otherwise negotiated and in the later case by first holder in Pakistan‑‑‑Plaintiff had not endorsed, transferred or otherwise negotiated the promissory note sued upon before presenting the same in Trial Court, the obligation to affix stamp had not arisen‑‑‑Objection was repelled in circumstances.

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

‑‑‑‑O. XXXVII, R.3‑‑‑Leave to appear and defend the suit‑‑‑Conditional order ‑‑Triable issue‑‑‑Plaintiff, on the basis of foreign bill, filed suit for recovery of amount mentioned in the promissory note‑‑‑High Court allowed the application for leave to defend the suit with the condition to deposit security in a sum of US $ 510,000,00‑‑‑Plea raised by the defendants was that the promissory note was executed by undue influence and another suit was already pending adjudication against the plaintiff covering the same cause of action‑‑‑Validity‑‑‑Such plea was a triable issue and defendants were entitled for leave to defend the suit unconditionally‑‑‑Although the affidavit filed with the application for leave to defend did not positively and immediately make it clear that the defendants had a defence, yet the same showed such state of facts as led to the inference that at the trial of the action the defendants might be able to establish a defence to the plaintiff's claim‑‑‑Plaintiff was not entitled to judgment and the defendants were entitled to leave to defend but in such a case the Court might, in its discretion, impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security‑‑‑Order of depositing the security was set aside by Division Bench of High Court ‑‑‑Intra‑Court Appeal was allowed accordingly.

Messrs Mechalee Engineers and Manufacturers v. Messrs Basis Equipment Corporation AIR 1977 SC 577 fol.

Ramsing alias Ramlal v. Parumal and another IX SLR 150; R. Kannusamy v. V.V.K. Samy & Co. Singapore and others AIR 1988 Mad. 336; Sint. Kiranmoyee Dassi v. Dr. J. Chatterjee (1945) 49 Cal. WN 246 and Fine Textile Mills Ltd. v. Haji Umar PLD 1963 SC 163 ref.

Arshad Tayebally for Appellants.

Ali Mumtaz Sheikh for Respondent.

Dates of hearing: 6th and 14th April, 2004.

P L D 2004 Karachi 407

Before Mushir Alam, J

TRADING CORPORATION OF PAKISTAN (PVT) LTD. SHAHRAH-E-FAISAL, KARACHI---Plaintiff

Versus

MURSHED ENTERPRISES and 2 others---Defendants

Suit No. 1056 of 1991, decided on 23rd December, 2003.

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

----Ss. 151 & 152---Imposing liability on bailee for loss of goods bailed---Essentials---Before imposing such liability, existence of contract of bailment between parties, loss of goods bailed, and failure of bailee to take reasonable care must be shown---Principles.

It is apparent from sections 151 and 152 of Contract Act, 1872 that the moment goods are delivered to the bailee, he assumes duty to take as much care of the goods bailed to him, as a man of ordinary prudence would have taken of his own goods. Unless, it is provided otherwise by way of any special contract, a bailee cannot be held responsible for the loss, destruction or deterioration of the goods bailed. If the bailee is able to demonstrate that he has taken as much care of the goods bailed to him as a man of ordinary prudence would have taken, then even if the loss, destruction or deterioration has taken place, he gets, statutory exoneration from any such liability by virtue, of section 152 of the Contract Act.

To foist the responsibility and impose liability as a bailee; it is to be shown that there was a contract of bailment either express or implied between the parties, that a loss, destruction, or deterioration of the goods bailed had occasioned; and lastly, the bailee had not taken as much care of the goods bailed to him as a man of ordinary prudence would have taken under a given circumstances.

When loss, destruction or deterioration has occurred initial burden is on the bailee who is custodian of warehoused goods to prove that he had taken such care as was expected from a person of ordinary prudence in similar circumstances. Once such burden is discharged, then the burden shifts on the owner of the goods to prove that the custodian of the goods was negligent in discharge of his statutory duty to take care, of the goods entrusted to him.

Burden of proof in. terms of section 151 of the Contract Act initially is on the bailee to show that he had taken proper steps and measures as may be expected from a person of ordinary prudence under the similar eventuality as was confronted by the bailee.

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

----S. 151---Degree of care to be taken by bailee of goods bailed--­Extent---Degree of such care would be that of a man of ordinary prudence, which may vary from case to case---Principles.

In terms of section 151 of the Contract Act, the degree of care, which a bailee assumes is that of a man of ordinary prudence. No hard and fast rules could be outlined for fixing of such degree of care. It may vary from case to case. The degree of care is also dependent on the nature, description, quality, and quantity of goods and so also nature of bailment contract.

Ordinarily a bailee is required to ensure that, (i) all reasonable precautions has been taken to avoid a risk, which reasonably could be foreseen. (ii) in case where a contingency has arisen then, it is to be seen that with what diligence and promptitude the bailee has acted to avert or minimize the loss. (iii) the promptitude he showed to apprise the bailor of the contingency encountered by him, to seek his opinion as to further course of action, (iv). To what extent bailee complied with the directions of the bailor after the bailee notified the contingency encountered by him.

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

----Ss. 73, 151 & 152---Bailment contract, breach of---Suit for damages by bailor ---Sugar stocked in godown hired, by bailor in low-lying area--­Loss/shortage of sugar due to rains alleged to be due to negligence of bailee---Plea of bailee was that rain water had entered through broken ventilators and joint of ceiling, for which he could not be held responsible---Validity---Evidence on record showed that bailee had earlier pointed to bailor the condition of godown and its missing window panes ---Bailee had notified bailor on very next day of rain and its adverse effect on sugar stored, over which bailor had asked Godown Owner to carry out necessary repairs ---Bailor in his letter addressed to Godown Owner and Insurance Company had acknowledged that all possible steps had been taken to sweep out water to minimize loss/damage---Report of Surveyor not challenged by bailor had given detail account of efforts made and measures taken by bailee to avert loss---Such report had confirmed such plea of bailee---Bailee had, thus, discharged initial burden imposed under S.151, Contract Act, 1872--­Burden had shifted to bailor to show that measures and steps taken by bailee were not reasonable or not expected from a man of ordinary prudence in order to avoid loss ---Bailor had not placed on record any material to show that bailee had failed to discharge his duty in terms of contract---Location of godown in low-lying area had contributed and aided in aggravating loss---Evidence on record showed that bailee had taken all reasonable precautions to protect sugar bailed with him--­Bailee, thus, could not be held responsible for loss occasioned on account of rain---Neither bailee had hired godown nor he was responsible to carrying out its repairs---Rain water had forced into godown for being situated below road level---Terms of contract had envisaged spillage, tearing of bags, re-stuffing or re-filling shifting from one godown to another---Sugar by nature was dissoluble---All such factors had contributed to loss and shortage in quality and quantity to certain degree, which was inevitable and inherent ---Bailor had failed to discharge his duty in mitigating loss as was required from a person of ordinary prudence by not carrying out repairs as notified by bailor and for failing to claim loss on account of rain in terms of Insurance Policy, Bailor had failed to show any special contract, whereby bailee could have been held responsible for such loss under all circumstances---Suit was dismissed in circumstances.

Messrs Mastersons through Partner v. Messrs Ebrahim Enter prizes and another 1988 CLC 1381; QBE Insurance Ltd.

Trustees of the Port of Karachi 1992 CLC, 904; Marine Cargo Claims by William Tetley, 2nd Edn., p.119 and Rice Export Corporation v. A.H. Corporation 2002 CLC 609 ref.

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

----Chap. IX [Ss. 148---181]---Bailment---Obligations of bailor not defined in Chap. IX of Contract Act, 1872---Effect---Such obligations could be inferred.

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

----S. 73---Breach of contract---Party claiming compensation or damages on account of such breach was bound to take steps to avert or mitigate loss---Principles.

Where a person claims some compensation or damages on account of breach of contract, then it is incumbent on him to take such appropriate measures and do all what is within his power to do in order to lessen, avert or mitigate such damages or loss.

PLD 1990 Kar. 395; 1999 CLC 483 and 1993 SCMR 441 rel.

S. Mamnoon Hassan for Petitioner.

Hamza I Ali for Respondents.

Date of hearing: 28th October, 2003.

P L D 2004 Karachi 434

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

MUHAMMAD SHER ---Appellant

Versus

THE STATE---Respondent

Cr. Appeal No. 378 of 2002, decided on 20th November, 2003.

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

----S. 9(c)---Appreciation of evidence---Prosecution had examined only police officials and private Mashir who though was with the police party and in his presence recovery was made, but was not examined to support statement of police officials---Police officials were as good witnesses as any other citizen, but when case entirely rested upon evidence of police officials and evidence of private and independent witness was available with prosecution, then prosecution should examine said private person so as to give full support to prosecution story in order to eliminate any false implication of accused---Prosecution did not assign any reason for not examining the said private Mashir; prosecution, in circumstances had withheld best piece of evidence without assigning any reason---If a best piece of evidence available with the party was withheld, then it would be .fair to presume that said party had some sinister motive behind it---Non­ examination of private Mashir would adversely affect prosecution story and testimony of police witnesses---Complainant/police officer did not make any entry in Station Diary to the effect that he and his party left C.I.A. Centre---Complainant had stated that he prepared Mashirnama at the place of incident, but Investigating Officer after going through said Mashirnama had stated that it was in the handwriting of one who was not member of police party when complainant party left C.I.A. Centre--­Apparently Mashirnama of arrest and recovery was not prepared at the place of incident---Possibility of false implication of accused thus could not be ruled out, in circumstances---Prosecution had failed to prove case against accused beyond any reasonable doubt---Accused was entitled for benefit of doubt and was acquitted of the charge.

Iltaf Husain v. State 1996 SCMR 167 ref.

(b) Criminal trial---

-----If a best piece of evidence---Police officials as witnesses---Police officials were as good witnesses as other citizens, but when case entirely rested upon evidence of police officers and evidence of private and independent witness was available with prosecution, then prosecution should examine said private person so as to give full support to prosecution story in order to eliminate any false implication of accused.

(c) Evidence---

---- If a best piece of evidence was available with the party, but same was withheld by said party, then it could fairly be presumed that said party had some sinister motive behind it.

Abdul Naeem Memon for Appellant. Jawed Akhtar for the State.

Date of hearing: 18th November, 2003.

P L D 2004 Karachi 439

Before Mushir Alam, J

Dr. Pro. HAROON AHMED --- Plaintiff

Versus

Messrs BRITISH AIRWAYS and 3 others --- Defendants

Suit No.530 of 2000, decided on 3rd March, 2004.

(a) Damages---

--------Kinds of---Action for damages, arising out of international contract of carriage by air, either on account of statutory liability under the Warsaw Convention as enacted through municipal law or breach of contract, or under general law of land or the tort, rules governing 'assessment and award of damages are common---Damages are usually considered under two heads viz. general or non-pecuniary loss or damages, that is physical injury, pain and suffering, impaired capacity for the enjoyment of life or lessened capacity and special or pecuniary damages that are actual, incidental and direct expense, capable of calculation in term of monetary value may it be on account of medical treatment, loss in business profit earning or otherwise.

Muhammad Ishaq v. Metropolitan. Corporation PLD 1996 SC 737; Pakistan International Airlines Corporation v. Ali Raza Rizvi 1996 CLC 627; Abdul Qadir v. S.K. Abbas Hussain PLD 1997 Kar 566 and Mrs. Rahat Ali v. Dr. Saeeda Rehman 2002 CLC 96 ref

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

----S. 73---Compensation for loss or damage caused by breach of contract---Consequential loss suffered on account of denied boarding--­Damages---Assessment---Provision of S.73, Contract Act, 1872 is instructive to assess the damages on account of breach, which naturally arose in the usual course of the event of breach of contract or failure to discharge obligations resembling those created by the, contract---Any remote or indirect loss or damage sustained by reason of such breach is not favoured by law---Illustration (r) to S.73, Contract Act, 1872 is quite illustrative in the context of the case as regard claim of refund of air fair as well as consequential loss suffered on account of denied boarding.

(c) Damages---

---- Burden of proof---Held, in action for damages either general or special, burden to prove is always on the plaintiff.

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

----S. 73---Denied boarding and breach of international contract of carriage by air---Damages---Quantum---Principles.

Plaintiff's case was that he is a doctor and a senior professor of Psychiatry, renowned nationally and internationally for his philanthropic work. Plaintiff claimed to be suffering from trigeminal pain had sought an appointment with a doctor abroad for 16-4-1999, was booked through the Airline for 14-4-1999, when reported at the check-in counter was declined boarding unjustly for extraneous consideration. His condition aggravated and he had to seek alternate medical treatment. The incident was also reported in widely circulated English Daily. The plaintiff and his son were denied boarding, not for want of 72-hours prior confirmation but for extraneous consideration The liability of a wrongdoer to compensate the injured is correlated to the duty he owes to others and where failure has occurred in performance or discharge of such duty or obligation or where for his act of omission and commission, other suffers. In the present case, the ticket with confirmed reservation when issued, International Contract of Carriage by air came into existence. When a confirmed ticket is issued it imposed a duty and obligation on the air carrier to carry the holder of a ticket to the contracted destination on the date and time as was specified therein. A carrier failing in its obligation to carry a holder of valid and confirmed ticket, without any just cause exposes itself to all the perils and consequences, may it be under the Warsaw Convention, law of the land or contract of carriage, or even tort as the case may be. Any person who is denied boarding, without just cause is bound to suffer financial loss beside mental stress, agony, pain and frustration and lot of inconvenience and humiliation. In the present case, on account of denied boarding, the plaintiff who was a sick person and had to obtain treatment abroad was certainly to suffer mental agony, distress and pain besides inconvenience. Such sufferings are the direct result of unjust denial and refusal to carry the plaintiff by the Airline. Where such suffering is a direct result of the act of omission or commission of wrongdoer and for failure to perform obligation under an international contract of carriage by air, the one who is denied boarding and is wronged is entitled to be compensated.

There is no yardstick to define principle for assessing damage in such case. The damage is meant to compensate a party who suffers an injury. It may be bodily injury, loss of reputation, business and also mental shock and suffering. So far nervous shock is concerned, it depends upon the evidence produced to prove the nature, extent and magnitude of such suffering, but even on that basis usually it becomes difficult to assess a fair compensation and in those circumstances it is the discretion of the Judge who may on facts of the case and considering how far the society would deem it to be fair sum, determine the amount to be awarded to a person who has suffered such damages. The conscience of the Court should be satisfied that the damages awarded, if not completely would sufficiently compensate the aggrieved person.

Physical injury to go with the plaintiffs avowed shock, torture and agony, at best may be reckoned to aggravate and compound the claim and to affect the quantum of damages rather its bare entitlement.

Keeping in view the condition of the plaintiff, who was a patient of trigeminal neuralgia .on account of aggravation of his ailment and non­ availability of treatment in Pakistan, had appointment in USA, was denied boarding his suffering and pain can very well be imagined. He had to wait for one month before he could seek treatment from the consultant abroad. In between, he had to suffer pain and undergo treatment from other doctor. Keeping in view, the status, position and medical condition of the plaintiff, a sum of US $ 500 per day for 30 days, would be a reasonable and fair compensation for denied boarding and breach of international contract of carriage by air.

Pakistan International Airlines Corporation's case CLC 1996 627 and Muhammad Ishauqe's case PLD 1996 SC 737 ref.

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

----S. 73, Illus. (r)---Carriage by Air (International Convention) Act (IX of 1966), First Schedule, Rr. 17(1), 19. 20, 21, 22, 25-A, 29, 30(2)--­Breach of contract---Tort---Denied boarding and breach of International Contract of carriage by air---Liability of carrier as regard the passenger--- Provisions of carriage by Air (International Convention) Act. 1966 not attracted---Principles---Maxim: Ubi Jus ibi remedium; where there is right there is remedy---Applicability---Where a carrier, his servant or agent disembarks a passenger or wrongfully denies him to board or embark, as happened in the present case, the air carrier could be held liable for failure to carry the passenger by air and so also consequences for the delay arising therefrom---Air carrier as a rule will be liable to refund the fare and pay damages and any incidental loss or expense and excess amount of fare, if any, paid to another carrier to reach the destination.

Liability of carrier as regards the passenger under the Convention, as adopted through Carriage by Air (International Convention) Act of 1966, is limited to certain specified incidence, occurrence or act of omission and commission on the part of carrier or their servants and agents. Statutory liability of a carrier, extends to damages that may be sustained in the event of (i) death, (ii) wounding or (iii) any other bodily injury suffered by the passenger, provided specified incidence, occurrence or happening took place on board of the air craft or in the course of any of the operation of embarkation or disembarkation and for the (iv) damages sustained by the delay in carriage by air of the passenger (See rules 17(1) & 19). The specified incidence, occurrence or happening may be referred to as "statutory wrong" which entails "statutory liability" in term of rule 22 up to a maximum limit of 250,000 Franc. However, where it is proved that, damage has occasioned from the act of omission either of the carrier or, of his servants or agents done with intent to cause damage or done recklessly with knowledge that damage would probably result, then limit of liability could not be availed.

An air carrier may seek exoneration from liability under the Convention, or putting in other words, under the Convention an air carrier may avail of following: "Statutory defence" against any claim arising out of "statutory wrong"

(1) The carrier and his servants or agents have taken all necessary measure to avoid the damages or that it was impossible for them to take such measure, (Rule 20 & 25-A).

(2) Carrier may be relieved or absolved of the liability or even it may claim mitigation in case negligence or the contributory negligence on the part of injured person, as the case may be, is proved, (Rule 21).

(3) Where the claim of damages is not brought within 2 years from the date of cause of action as specified in Rule 29.

(4) In case where Carriage is to be performed by various successive carriers, then the carrier who accepts the passenger or baggage or goods may only be liable and other carrier may seek discharge unless otherwise provided in the contract of carriage, [Rule 30(2)].

Burden to prove that such statutory defence or protection is attracted is always on the carrier. In the present case the defendant No.2 did not claim protection of any of the above statutory defences, but the defendant No.1 indeed took refuge and protection of Rule 30(2).

As regard the liability towards the passenger, the First Schedule of the Carriage by Air (International Convention) Act of 1966, determines the question of liability and the Second Schedule, the person by whom and to whom the liability is owned. The provisions of the Convention as adopted by the High Contracting State tend to ensure that the liability of carrier is governed by the terms of the Convention as adopted and reflected in municipal laws of each High Contracting parties (i.e. Ratifying State). In view of such adoption of convention by Pakistan, in terms of Rule 22, to the First Schedule, limit of financial liability for each passenger in respect of "statutory wrong" may extend to a sum of 2,50,000 Francs. Nevertheless, by special contract, the carrier and the passenger may agree to a higher limit of liability. Converse however is not true, no contract to relieve the carrier of the liability or that tends to fix lower liability can be sustained.

The carrier even by contract cannot exclude or limit its liability, if the damage is caused by the wilful misconduct or by such default as is, in the opinion of the Court, equivalent to wilful misconduct either on the part of the carrier or any of his servants or agents provided the servant or the agent did such act within the scope of employment or agency as the case may be. There is no reason why the defence akin to the statutory defence, as discussed above, could be availed of in cases where the wrong could not be classified strictly within the ambit of "statutory wrong" as defined under the Convention.

The closest of the liability that may clinch on the air carrier, in the present case is delay. Delay within the contemplation of the Convention is provided for in Rule 19.

From bare reading of R.19, it implies that consequence for the delay follows, where the carrier though carried the passenger, luggage or goods contracted but the delay occurred in such exercise of carriage by air: Rule 19 does not contemplate the delay on account of denied boarding or failure of the carrier to carry the passenger, luggage or goods at all.

In every contract of carriage by air, the carrier undertakes to carry the passenger and baggage on scheduled time and flight, and to use its best effort to carry the passenger and baggage with reasonable dispatch and care. Subject to the condition that, the passenger carries and holds all valid traveling documents permits or visa, ticket and arrives and reports at the check-in counter well in time to complete the departure procedure. Delay implies slowing down or consuming more than ordinarily and normally required time to reach at the destination in the course of carriage by air. By delay in terms of Rule 19, it implies that the passenger, baggage or goods were on board and the carrier failed to reach the destination within reasonable period of scheduled time or arrived late at the contracted destination, point or landed at some other destination causing delay to the passenger to reach at the contracted destination, may it be through same air carrier or alternate air carrier. The carrier could also be held liable for delay caused by the deliberate act of its employees, servants and agents. Examining present case closely, it becomes clear that it is not a case where delay occasioned during the course of carriage by air of the passenger luggage or goods. As statutory liability of delay could only be foisted on the carrier when it carries the passenger, baggage or goods and reaches at the destination much beyond the reasonable scheduled time without any just and lawful excuse and that such delay had occasioned in the course of carriage operation. In the present case the plaintiff and his son were denied boarding, despite having valid traveling documents including the confirmed reservation on the Airline for 14-4-1999. This is a clear-cut case of breach of contract. Such act of omission and failure to perform the contract of carriage by air does not squarely fall within the contemplation of the Convention.

From the scheme of the Convention as well as the Act of 1966, it appears that cases of breach of contract of the kind in hand are not contemplated therein. Thus it does not mean that where a wrong done, breach committed or injury inflicted is not within the contemplation of the Convention and the Act of 1966, the carrier is absolved of any liability, aftermath or consequence Applying age old legal maxim "ubi jus ibi remedium" (where there is right there is remedy). As to "statutory wrong" the Convention provides complete code as to rights and liabilities both of the carrier and the passenger However, any wrong, breach or mischief not within the contemplation of the Convention or the Act of 1966, same could be redressed either under law governing contract, in case of Pakistan under the Contract Act. 1872 or general law or even in appropriate cases under Tort.

The convention is silent, as regard liability of air carrier for the breach of contract of carriage. By this, it does not mean that air carrier is rendered absolved of all the liability in cases of breach of contract, occurrence of any wrong ether than "statutory wrong" Such would be anomalous position, there is no wrong without a remedy. Where any injury is caused or loss occurs during the course of or in furtherance of carriage by air that may not be within the contemplation of Convention, a passenger, consignee or any other person will always have a remedy against the carrier. Where statutory liability of air carried under the Convention terminates; realm of general law governing contractual obligation begins or where no remedy under general law of contract is available remedy under tort may be extended provided a case is made out.

The act of the Defendant denying boarding to the Plaintiff and his son is out of the purview of the "statutory wrong" therefore the statutory liability would not clinch on the carrier. This does not mean that Plaintiff is rendered helpless, general law will come to his rescue. Section 9 of the Code of Civil Procedure acknowledges inherent right of a person to bring any suit of civil nature and the Civil Court may take cognizance of all such cases unless expressly or impliedly barred. In the present case no implied or express bar was pleaded. The implied bar that could be inferred may be restricted only to the claim arising out of "statutory wrong." for which Convention is a complete code and, not otherwise. As observed above, case of the Plaintiff falls out of the ambit of "statutory wrong" nevertheless, carrier is liable for the wrong under the contract of carriage and general law of land.

Where a carrier, his servant or agent disembarks a passenger or wrongfully denies him to board or embark as happened in the present case, the air carrier could be held liable for failure to carry the passenger by air at all and so also consequences for the delay arising therefrom. The air carrier as a rule will be liable to refund the fare and so also damages and any incidental loss or expense and excess amount of fare. if any paid to another carrier to reach the destination. (See section 73 of the Contract Act. particularly illustration [r] thereto).

(f) Carriage by Air (International Convention) Act (IX of 1966)-----

----First Sched. Rr. 1(4) & 30---Contract Act (IX of 1872), Ss. 226 & 222---Liability of air carrier in case of international carriage by air where more than one carrier were involved in the carriage by air operation---In terms of Rr.1(4) & 30 Carriage by Air (International Convention) Act, 1966 more than one air carrier could perform a single international carriage by air operation, such carriage is referred to as carriage by successive air carriers---Once issuing air carrier issues a ticket further carriage over the line of another air carrier, it does so only as an agent of the carrying airline; who, for all intent and purposes, is the principal who is required to perform the contract of carriage---Such then becomes a contractual obligation of carrying/principal air carrier to honour the commitment under the contract of carriage, use reasonable care to carry the passenger without unreasonable delay---Where single air-carriage contract is to be performed by more than one air-carrier and any passenger, who suffers a wrong in the course of air-carriage, may initiate action only against the air carrier who was required to perform the carriage but failed to perform or against the carrier who performed the carriage during which, the statutory wrong (i.e. accident, injury or the delay occurred)---Liability may be limited to a carrier issuing the ticket for entire contracted journey spread over various destinations in different countries and is required to be performed by different carriers. provided issuing carrier took upon himself the liability for the whole journey---Carrying airline, therefore is obliged to indemnify the issuing airline or agents which includes travel agents, from and against all claims, demands, costs, expenses and liabilities arising from the carrying airline's failure to provide carriage pursuant to any ticket or MCO properly issued, completed or delivered by the issuing airline--­Principals.

The liability of air carrier in case of international carriage by air, where more than one carrier are involved in the carriage by air operation is contemplated under the Convention and Act of 1966.

Provision regulating international carriage by successive carrier is contained in Rule 1(4) and Rule 30.

In, terms of the Convention and Act of 1966, more than one air carrier could perform a single International Carriage by air operation. Such carriage is referred to as carriage by successive air carrier.

In cases where single air carriage contract is to be performed by more than one air-carrier and any passenger who suffers a wrong in the course of air carriage may initiate action only against the air carrier who was required to perform the carriage but failed to perform or against the carrier who performed the carriage during which, the statutory wrong (i.e. accident, injury or the delay occurred). The liability may be limited to, a carrier issuing the ticket for the entire contracted journey spread over various destinations in different countries and is required to be performed by different carriers, provided issuing carrier took upon himself the liability for the whole journey.

In addition to above provisions of the Convention and Act of 1966, all the international air carriers who operate air transportation services, are also members parties and signatories to the "IATA Inter­ airline Traffic Agreement-Passenger". This agreement, to which the Defendants are also party, incorporates Inter-airline liability towards each airline with reference to the passenger baggage and goods. The Agreement provides that each member of IATA may sell air transportation over the routes of the other.

In the present case the condition No.5 of the contract that was incorporated on the ticket issued by the Agent Airways for the carriage of the Plaintiff and his son reads as follows:

"An air carrier issuing a ticket for the carriage over the line of another air carrier does so only as an agent".

Above condition on the ticket is in consonance with Article 7.1 of the Inter-airline agreement, adopted through Resolution 780. The condition is not found to be in derogation with the provisions of Rule 1(4) and 30.

There is no reason not to apply the principle of liability or apportionment of liability of successive carrier in terms of Rule 1(4) and 30 of the Convention in cases of wrong that is not within the contemplation of Convention, as is in the present case of denied boarding. In a claim founded on the ground of breach of contract or denied boarding, the rights and obligations of the parties depend on the terms of contracts. Even otherwise both the agent Airways as well as the other Airlines are party to Resolution 780 which binds them contractually. Once issuing air carrier issues a ticket for the carriage over the line of another air carrier, it does so only as an agent of the carrying airline, who for all intent and purposes is the Principal who is required to perform the contract of carriage. It then becomes a contractual obligation of Carrying/Principal air carrier to honour the commitment under the contract of carriage, use reasonable care to carry the passenger without unreasonable delay.

In terms of contractual obligations under the Resolution 780, the condition No.5, of the Ticket, as well under section 226 of the Contract Act, the Airlines being a principal carrier was obliged to honour the contract of carriage entered on its behalf by the agent Airlways. It is the Airline that failed to perform and discharge its obligation under its contract, which is liable for the consequences and to make good the loss suffered by the Plaintiff on account of unjustified denied boarding.

Therefore, the carrying airline, as principal, is obliged to indemnify the issuing airline or agents which includes travel agents from and against all claims, demands, costs, expenses and liabilities arising from the carrying airline's failure to provide carriage pursuant to any ticket or MCO properly issued, completed or delivered by the issuing airline.

Indemnity is not available to the issuing Airline in case where the agency of the issuing airline stands terminated due to said airline's involvement in proceedings declaring it insolvent, bankrupt or seeking relief under applicable bankruptcy or insolvency laws, pursuant to Article 10.4.2 of the Inter-airline Agreement. No such incapacity as regard the Defendant was pleaded nor there is any material to infer the same. Even in terms of section 222 of the Contract Act, Principal i.e. the Airline would have been liable to indemnify the Agent Airways against the consequences of all the lawful acts done during the course of the agency. It is no body's case that the Agent Airways had acted without or beyond the authority or acted negligently or fraudulently.

Akhtar Hussain for Plaintiff.

Khalid Rehman for Defendant No. 1.

Nizam Ali Khan for Defendant No.2.

Nemo for Defendant No.3.

Data S. Shaikh for Defendant No.4.

Dates of hearing: 11th, 22nd, 28th April, 2003 and 9th February, 2004.

P L D 2004 Karachi 472

Before Muhammad Mujeebullah Siddiqui, J

TALUKA MUKHTIARKAR, LATIFABAD, HYDERABAD and another---Applicants

Versus

VAQAR MUHAMMAD SHAIKH and 2 others---Respondents

Revision Application No.4 of 2002, decided on 24th May, 2004.

Civil Procedure Code (V of 1908)---

----S.79 & O.XXVII---Constitution of Pakistan (1973), Art. 174---All suits against the Central Government have to be filed m the name of Pakistan and against a Provincial Government in the name of the Province---Service summons on Provincial Government through ADC-I and subsequent ex parte proceedings, culminating in ex parte judgment, was not in accordance with law---Ex parte judgments of the Trial Court, and the Appellate Court were not sustainable in law, which were set aside by the High Court in revision---Case was sent back to the Trial Court with the directions that the summons on the Province shall be served through Secretary Revenue and a fresh opportunity be provided to the Province to file written statement and thereafter de novo trial be held.

Province of Punjab v. Muhammad Hussain PLD 1993 SC 147 and Haji Abdul Aziz v. Government of Balochistan 1999 SCMR 16 fol.

Town Municipal Administration v. Rifat Hussain 2003 CLC 1370 ref.

Director-General, Coast Guards of Pakistan v, Fazle Ghani Khan, 1988 MLD, 586 distinguished.

Masood A. Noorani, Additional Advocate-General, Sindh for Applicants.

Naimatullah Soomro for Respondent No.1.

Date of hearing: 23rd April, 2004.

P L D 2004 Karachi 478

Before Wahid Bux Brohi and Maqbool Baqar, JJ

MUNEER AHMED and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.D-78 of 2003, decided on 18th March, 2004.

Anti-Terrorism Act (XXVII of 1997)---

---S. 7(iii)---Appreciation of evidence---Crime allegedly committed by the accused being an offence defined under S.6(d) and punishable under S.7(iii) of the Anti-Terrorism Act, 1997, as it stood on the day of occurrence, was triable by the Anti-Terrorism Court---Delay in lodging the F.I.R. had damaged the prosecution case---Offence had not taken ?lace in the manner as narrated by the prosecution---Unusual behaviour of the prosecution witnesses in tracking the wheel marks of the robbed motorcycle instead of going straight to the village of the culprits, had indicated that the culprits were not known to the complainant party--­Allegation of snatching the motorcycle by the accused, thus, was not free from doubt---Accused were extended the benefit of doubt and acquitted rut circumstances.

Sheral v. State 1999 SCMR 697; Muhammad Irshad v. State 1999 SCMR 1030; Inayatullah v. State 2002 PCr.LJ 34 and State v. Ismail 1992 MLD 182 ref

Mehram Ali's case 1998 SCMR 1156 and Abdul Karim's case 1999 MLD 3236 distinguished.

Sarfraz Khan Jatoi for Appellants.

Muhammad Ismail Bhutto for the State.

Dates of hearing: 5th and 11th March, 2004.

P L D 2004 Karachi 485

Before Wahid Bux Brohi and Maqbool Baqar, JJ

MUHAMMAD AMEEN---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.D-44 of 2003, decided on 12th March 2004.

Criminal Procedure Code (V or 1898)---

----S. 517---Control of Narcotic Substances Act (XXV of 1997), Ss.32 & 33---Disposal of the Vehicle connected with the commission of the offence of narcotics---Trial Court after conviction of the accused had directed the Truck used in the transportation of the narcotics to be confiscated to the State---Before passing the said order Trial Court had not given any notice to the owner of the Truck as to why the same be not confiscated---Applicant claiming himself to be the owner of the Truck had been verified to be its owner by the concerned Authority---Proviso to subsection (2) of S.32 of the Control of Narcotic Substances Act, 1997, permitted confiscation of the vehicle only when it was proved that its owner had the knowledge that the offence was being committed---Such point had to be determined in accordance with law after issuing a notice to the owner of the vehicle which was never issued in the case--­Impugned order being violative of the provisions of Ss.32 & 33 of the said Act was set aside and the matter was remanded to the Trial Court for fresh decision regarding the disposal of the said truck in accordance with law.

Safdar Ali Bhutto for Applicant.

Mushtaq Ahmed Kourejo for the State.

Date of hearing: 12th March, 2004.

P L D 2004 Karachi 488

Before Sarmad Jalal Osmany, J

FAUZIA MALIK ---Applicant

Versus

SANAULLAH and another---Respondents

Cr. Rev. No.69 of 2003, decided on 11th May, 2004.

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

----S. 491---Habeas corpus petition---Custody of minor---Power to issue directions of the nature of a habeas corpus in matters regulating the custody of minors---Extent and scope---Jurisdiction of High Court under S.491, Cr.P.C. being of a summary nature, factual controversies cannot be explored---Such jurisdiction, therefore, is to be used sparingly in guardianship matters as the plenary jurisdiction would rest with the Guardians Judge---However, in appropriate cases where it is, prima facie, established that the custody of a minor was removed unlawfully by either the husband or the wife, then certainly relief can be given under the provisions of S.491, Cr.P.C.---Right of guardianship (Hizanat) under Islamic Law in such matters cannot be equated to lawful custody which is a matter of fact.

Nisar Muhammad v. Sultan Zari PLD 1997 SC 852; Yasmeen Qamar v. Khalee quzzaman 1997 PCr.LJ 581; Naushabah Tabassum v. Ghulam Madni Shah 1987 PCr.LJ 1318; Naziha Ghazali v. The State 2001 SCMR 1782 and Farzana Sarwar v. The State 2001 YLR 1803 ref.

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

----S. 491---Habeas corpus petition---Custody of the minor---Applicant mother herself having given the custody of her minor son to the respondent father, custody of the minor with the father was not unlawful---Although according to the applicant the minor's custody was forcibly taken away from her, yet such fact was not established either by her own conduct or from the circumstances available on record---Even a police report was not filed by the applicant in this regard---Application for the custody of the minor was dismissed in circumstances.

Nisar Muhammad v. Sultan Zari PLD 1997 SC 852; Yasmeen Qamar v. Khaleequzzaman 1997 PCr.LJ 581; Naushabah Tabassum v. Ghulam Madni Shah 1987 PCr.LJ 1318; Naziha Ghazali v. The State 2001 SCMR 1782; Mst. Irfana Shaheen v. Abid Waheed PLD 2002 Lah.283; Muhammad Ramzan v. Federation of Pakistan 2001 MLD 1608 and Farzana Sarwar v. The State 2001 YLR 1803 ref.

Ashfaque Hussain for the Applicant.

Akhtar Hussain for Respondent No.1.

Mst. Akhtar Rehana for the State.

Dates of hearing: 14th, 22nd July, 2003, 10th and 12th April, 2004.

P L D 2004 Karachi 492

Before Sarmad Jalal Osmany and Amir Hani Muslim, JJ

Messrs A.R. BUILDERS (PVT.) LTD.---Appellant

Versus

FAISAL CANTONMENT BOARD and 4 others---Respondents

High Court Appeal No.7 of 2004, decided on 27th April, 2004.

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

----O. VI, Rr. 1, 7, O.VII, Rr. 7, 8, O.VIII, Rr. 1, 6 & 7---Plaint or written statement---Final or interim relief, grant of---Essential considerations---Courts are bound in law to confine themselves to reliefs sought and/or which flow from the facts pleaded in plaint---Denial of facts to written statement and pleading additional grounds in written statement would not authorize Court to enlarge scope of suit or relief sought therein by plaintiff---Party is at liberty to file a suit or a counter­claim in a suit in order to obtain a relief---Defendant by mere filing written statement would have no legal right to seek declaration in regard to a fact, which was not subject-matter of suit---Principles.

This is an established law that the Courts would not travel outside the scope of suit to grant either final or interim relief of the nature, which has no nexus with the facts pleaded in the plaint and/or relief sought in the suit. The denial of facts in the written statement and pleading additional grounds in written statement would not authorize the Court to enlarge the scope of suit, when plaintiff had not pleaded any such fact nor had sought relief of the nature. The Courts are bound in law to confine themselves to the reliefs sought and/or which flow from the facts pleading in the plaint.

A party is at liberty to file a suit and/or a counter-claim of a suit in order to obtain a relief but by merely filing of written statement, the defendant would have no legal right to seek declaration in regard to a fact, which was not subject-matter of the proceedings initiated by the plaintiff.

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

----O. VII, Rr. 7, 8, O.XIX, R.18 & O.XXXIX, R.7(1) --- Local inspection by Nazir of Court---Validity---Such inspection was not a substitute of evidence---Such inspection and filing of objections thereto by plaintiff would not make order of inspection lawful, if same was outside the scope of suit.

K.A. Wahab for Appellant.

Ashraf Ali Butt for Respondent No. 1.

Nazar Akbar for Respondents Nos. 3, 4 and 5.

Date of hearing: 13th April, 2004.

P L D 2004 Karachi 498

Before Muhammad Sadiq Leghari, J

SOHAIL MAJEED KARIM ---Petitioner

Versus

IIND FAMILY JUDGE, SOUTH KARACHI and others---Respondents

C.Ps. Nos. 715, 716 and 717 of 2003, decided on 26th March, 2004.

(a) Muslim Family Laws Ordinance (VIII of 1961)-----

----S.7---Divorce---Written notice of divorce---Limitation---Person having pronounced Talaq in any form, was required to give Chairman a written notice of his having done so. and would supply copy thereof to the wife---Such notice of Talaq to wife was a requirement of law and was mandatory---Absence of intimation to wife about notice of Talaq to Chairman would suspend the count of days till wife would get copy of notice or intimation thereof---In absence of proof of delivery of copy of divorce deed to wife, she would be deemed to have got intimation or notice about divorce deed only when defendant would make disclosure about it in his written statement.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

----S.5 & Sched ---Suit for maintenance---Since wife got intimation about notice of Talaq to .Administrator on 28-2-2001, time would start from that date and in that way ninety days having expired on 29-5-2001, Talaq would become effective from that date, and wife would be entitled to maintenance till 29-5-2001---Enhancement of rate of maintenance by Appellate Court was based upon proper reasoning and appreciation of material on record---Same would not suffer from any legal infirmity.

(c) West Pakistan Family Courts Act (XXXV of 1964)---

----S.5 & Sched.---Limitation Act (IX of 1908), Art.103---Suit for recovery of dower amount---Limitation---Starting point---Period of three years provided for recovery of dower amount under Art. 103 of Limitation Act, 1908, would start from the notice of divorce to concerned Council and wife.

Abdul Samad for Petitioner.

Adrian Ahmed for Respondents.

Date of hearing: 26th February, 2004.

P L D 2004 Karachi 502

Before Anwar Zahir Jamali, J

Hafiz SHAFATULLAH---Petitioner

Versus

Mst. SHAMIM JAHAN and another---Respondents

C.P. No.S-542 of 2002, decided on 8th March, 2004.

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

---Ss. 15(2)(vii) & 15---Bona fide personal need of landlord---Ground urged by landlady for ejectment of tenant from shop in question was that said shop was required in good faith for personal use of her son who was jobless and wanted to start his own business in the said shop---Claim of landlady of personal bona fide need of rented shop for her son, had not only remained consistent to her pleadings, but had also stood to the test of cross-examination---Mere fact that landlady owned other shops or some shop had fallen vacant during pendency of ejectment proceedings or that other sons of landlady were engaged in business of same nature which was teeing carried or, by tenant in the same locality, would not justify a conclusion that ejectment proceedings initiated by landlady were not bona fide---:ion of landlady for whom shop in question was sought to be required, appeared before Rent Controller and made a statement on oath about his need in respect of the shop---Nothing could be extracted from the son in cross-examination to dislodge such' claim---Payment of goodwill, allegedly made by predecessor-in-interest of tenant, was not a relevant consideration to dislodge claim of personal need of landlady--­Suitability for opening a business in anyone of the premises available to landlady entirely would depend upon her discretion and mere fact that she owned other premises, would not disentitle her from filing ejectment application on ground of personal need to select premises of her choice for such purpose---Appellate Court had rightly allowed application of landlady and findings of Appellate Court based on proper appreciation of evidence and not suffering from any legal infirmity, could not be interfered with.

Sabu Mal v. Kika Ram alias Heman Das 1973 SCMR 185; Malik Muhammad Ramzan v. Messrs General Iron Stores and another 1995 SCMR 1125; Messrs F.K. Irani & Co., v. Begum Feroz 1996 SCMR 1178 and Iqbal Book Depot and others v. Khatib Ahmed and 6 others 2001 SCMR 1197 ref.

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

----Ss. 15(2)(vii) & 21---Constitution of Pakistan (1973), Art.199-­Constitutional petition---Ejectment proceedings---Appeal against order of Rent Controller ---By conferring only one right of appeal under S.21 of Sindh Rented Premises Ordinance, 1979, Legislature in its wisdom seemed to have tried to shorten the span of litigation in rent cases and in such circumstances interference by High Court in exercise of its Constitutional jurisdiction under Art.199 of the Constitution in judicial orders passed by Tribunal of competence jurisdiction, merely on ground that another view of the matter was also possible, wound not serve any other purpose, but would add to the misery or prolonged litigation for the parties and would defeat the spirit and object of statute---No case for interference in judgment passed by Appellate Court having been made out, Constitutional petition, was dismissed.

Messrs Mehraj (Pvt.) Ltd. v. Miss Laima Saeed and others 2003 MLD 1033 ref.

I.A. Hashmi for Petitioner.

Shaik Muhammad Usman for Respondent No. 1.

Dates of hearing: 16th October, 2003 and 8th March, 2004.

P L D 2004 Karachi 508

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

YOUSIF LASSI and others---Appellants

Versus

THE STATE---Respondent

Cr. Appeals Nos.277 and 299 of 2003, decided on 6th April, 2004.

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

----S. 9(c)---Appreciation of evidence---Evidence of recovery of narcotics from the accused was consistent on each and every aspect of the case and the same was further supported by the Chemical, Examiner's report disclosing the material to be opium---Contradiction pointed out in the prosecution evidence and the improvements made therein being of minor nature, had not changed materially the version taken in the F.I.R.---Both the accused who were going on the motorcycle having opium in their possession had committed the offence of transporting the same in conspiracy, abetment and association with each other---Said offence was committed in series of the same transaction of possessing the opium---Opium could not have been transported unless the same would have been in possession of the persons who were transporting the same--­Joint trial of the accused in the case, therefore, was not illegal--­Conviction and sentence of accused were maintained in circumstances.

Md. Mosaddar v. The State PLD 1958 SC 131; Noor Muhammad v. The State PLD 1964 SC 120; Keshavlal v. Emperor AIR 1944 Bombay 306; Ghulam Farooq v. State 2000 MLD 1504 and Babulal v. Emperor AIR (25) 1938 PC 130 ref.

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

----Ss. 235 & 239---Trial for more than one offence and what persons may be charged jointly---" Same transaction"---Meaning---Difference of language exists between Ss.235 & 239, Cr.P.C. in which the words "same transaction" appear---Sate significant difference in the language is because under S.235. Cr.P.C. for bringing the case of joint trial, the offences must be committed by the same person in one series of facts so connected together as to form one and the same transaction, whereas under 5.239 (a) & (d), Cr.P.C the requirement is that the persons who are to be tried together should be accused of the same offence or of different offences committed in the course of the same transaction---In order to justify a joint trial under S.239(a) & (d), Cr.P.C. the allegation must be of the commission of different or same offences in the course of the same transaction---Possibly after recording the evidence Court reaches a conclusion that no offences were committed at all or that the offences were not committed in the course of the same transaction---Such finding would not affect the legality of the trial.

Md. Mosaddar v. The State PLD 1958 SC 131; Noor Muhammad v. State PLD 1964 SC 120 and Babulal v. Emperor AIR (25) 1938 PC 130 ref.

Sayed Suleman Badsha for Appellant (in Crl. Appeal No.277 of 2003).

Nasir Mehmood Mughal for Appellant (in Crl. Appeal No.299 of 2003).

Mehmood A. Rizvi, Special Prosecutor, A.N.F, for Respondent.

Dates of hearing: 17th and 23rd December, 2003.

P L D 2004 Karachi 515

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

INCOM ROCKWOOL (PVT.) LIMITED through Managing Director---Appellants

Versus

C.P.C. PAKISTAN (PVT.) LTD. through Chief Executive /Company Secretary and another---Respondents

High Court Appeal No.319 of 1998 (Out of pending Suit No. 1667 of 1997), decided on 10th May, 2002.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2--­Interim injunction, grant of---Prima facie case ---Encashment of guarantee---Plaintiff had entered into a contract to supply certain machinery to defendant---Advance payment guarantee/mobilization advance guarantee was issued by the defendant in favour of the plaintiff---Defendant unilaterally revoked the contract and intended to en-cash the guarantee issued by the plaintiff---Validity---Guarantee bond was not an unconditional bond so that the defendant could claim encashment of the same unilaterally---Defendant had to establish that the plaintiff had failed to perform any of his obligations under the agreement---Strong prima facie case existed in favour of the plaintiff and balance of convenience was also in his favour---Plaintiff had claimed damages as well from the defendant for the breach of contract---Grant or refusal of such relief could only be decided after recording of evidence--­High Court restrained the defendant from encashing the bank guarantee in respect of mobilization advance till the disposal of the suit---Interim injunction was granted in circumstances.

R.D. Harbottle (Mercantile) Limited and another v. National Westminister Bank Ltd. and others 1977(2) All ER 862; Messrs Banerjee and Banerjee v. Hindusthan Steel Works Construction Limited and others AIR 1986 Cal. 374; United Commercial Bank v. Bank of India and others AIR 1981 SC 1426; Messrs National Construction Ltd. v. Aiwan­e-Iqbal Authority PLD 1994 SC 311; Pakistan Engineering Consultants v. Pakistan International Airlines Corporation and another 1989 SCMR 379 and Pakistan Engineering Consultants v. Pakistan International Airlines Corporation and others 1993 CLC 1926 ref.

Qadir H. Sayeed for Appellant.

Khalil-ur-Rehman for Respondent No. 1.

Nemo for Respondent No.2.

Date of hearing: 30th April, 2002.

P L D 2004 Karachi 520

Before Sarmad Jalal Osmany and Amir Hani Muslim, JJ

MUHAMMAD HASSAN ---Applicant

Versus

THE STATE---Respondent

Bail Application No.88 of 2004, decided on 20th April, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/365-A/451/148/149--­Explosive Substances Act (XI of 1908), Ss.3/4---Anti-Terrorism Act (XXVII of 1997), S.7---Bail, refusal of-- -Complainant and three other eye-witnesses had implicated the accused by name to the case---Parties were not shown to be inimical against each other---Non-disclosure of the name of accused in the F.I.R. alone was no ground to release the accused on bail in the presence of sufficient incriminating material, prima facie, connecting him with offence---Rocket launchers and klashnikovs were allegedly used in the case killing one person on the spot while the other was abducted---Crime empties and pieces of the rocket launchers were recovered from the spot---Non-disclosure of the name of accused in the F.I.R. was insignificant when on the same day the complainant had named him besides the eye-witnesses implicating him in the crime---Presence of accused with klashnikov on the place of incident with other accused was sufficient to attract the provisions of S.34, P.P.C. and no specific role was required to be assigned to him in order to connect him with the commission of the offence---Bail was declined to accused in circumstances.

Shahzado v. The State PLD 2002 Kar. 402; Khalid Javed v. State 2003 SCMR 1419 and Anees-ur-Rehman v. The State PLD 2000 Lah. 110 ref.

A.Q. Halepota for Applicant.

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

Rasool Bux Palejo for the Complainant.

Date of hearing: 9th April, 2004.

P L D 2004 Karachi 525

Before Muhammad Mujeebullah Siddiqui, J

NOOR AHMED ‑‑‑Petitioner

Versus

VIITH ADDITIONAL DISTRICT JUDGE, HYDERABAD and 2 others‑‑‑Respondents

C.P. No.S‑186 of 2004, decided on 4th June, 2004.

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

‑‑‑‑S. 16(1)(2)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Tentative rent order‑‑‑Striking off defence of tenant‑‑‑Exercise in terms of subsection (1) of S.16 of Sindh Rented Premises Ordinance 1979, was to be made in every case of ejectment filed by landlord against tenant irrespective of grounds of ejectment taken therefor‑‑ ‑Contention that Rent Controller could pass a tentative rent order under 5.16(1) of Sindh Rented Premises Ordinance, 1979 only in case where ejectment,, was sought on the ground of default in payment of rent and that power could not be exercised if ejectment was sought on any other ground and that if no arrears of rent were due, the Rent Controller had no jurisdiction to pass tentative rent order for depositing future rent. was without substance‑‑‑Orders passed by two Courts below being with jurisdiction and there being no illegality, warranting interference of High Court in exercise of its Constitutional jurisdiction, Constitutional petition was dismissed being without substance.

Nasim Ahmed v. Senior Civil Judge and Rent Controller, PLD 1982 Kar. 210; Ali Muhammad v. Khalil Ahmed Allahwala 1985 CLC 1297; Mother Care N & M Home v. Syeda Raisa Fatima 1993 MLD 862; Rahimuddin v. Jalaluddin PLD 1991 SC 484; Razak Mill Stores v. Mian Chamebrs 1993 MLD 1557; Niazsons v. S.M. Younus 1992 MLD 400; Maula Bux Bhutto v. Muhammad Hussain 1993 CLC 277; Syed Khadim Hussain Abedi v. Mst. Geti Ara Begum 1984 CLC 68 and Syed Tahir Hassan Gardezi v. Abid Hussain Qureshi 1986 MILD 2980 rel.

Abdul Rehman Shaikh for Petitioner.

Date of hearing: 4th June, 2004.

P L D 2004 Karachi 532

Before Zia Parvez, J

LAL BA KHSH---Appellant

versus

THE STATE---Respondent

Criminal Revisions Nos.S-135, S-124, of 2003, S-2 of 2004 and C.Ps. Nos.S-303. S-329. S-330 of 2004, decided on 12th April, 2004.

Constitution of Pakistan (1973)---

----Art. 89(2)(a)---General Clauses Act (X of 1897), S. 6-A --- Criminal Procedure Code (V of 1898), Ss. 22-A [As amended by Code of Criminal Procedure (Third Amendment) Ordinance (CXXXI of 2002)]--­Amendment of statute/rule---Effect---Amendment brought by an amending Act, would continue to remain in .force after repeal of amending Act---Amendment once effected in a Statute would continue to be effective-l-After amendment had been made, the purpose of amending Act, was served and retaining same on the Statute book would amount to carrying dead weight---Repeal of such Act was an exercise synonymous' with the spring clearing of dead leaves---Such exercise was taken by Legislature periodically--President of Pakistan at the time of enactment enjoyed the powers to promulgate Code of Criminal Procedure (Third Amendment) Ordinance, 2002---Albeit all Ordinances of the President had been validated and powers to enact said Ordinance, were not available to the President---Question of effect of Art. 89 of Constitution was not necessary to be considered in the present case---Said point could be considered at a more appropriate juncture---Code of Criminal Procedure (Third Amendment) Ordinance, 2002 had served its purpose after promulgation and publication---Having effected such amendment, repeal or expiry of Ordinance, would not undo the amendment already made which continued to remain operative and which had now become a part of Criminal Procedure Code and would continue to remain in force.

Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others 2000 SCMR 1137; Muhammad Afzal Khan v. Excise and Taxation Officer and 2 others PLD 1984Pesh 215; Azam Ali and others v. The Custodian of Evacuee Property West Pakistan, Lahore and Mst. Khem Bai alias Ghulam Fatima PLD 1968 Lah. 148 and PLD 1994 Kar. 173 ref.

Gul Bahar Korai for Petitioner (in Criminal Revision No.S-135 of 2003).

Muhammad Aslam Glotar for Petitioner (in Cr. Rev. No.S-2 of 2004).

Abdul Karim Noonari for the Petitioner (in C.P. No.S-303 of 2004) .

Shaikh Amanullah for Petitioners (In C.Ps. Nos. 5,329 and S-330 of 2004).

Mujahid Hussain Rajput for Respondents (in Cr. Rev. No.S-124 of 2003).

Habibullah Shaikh and A.R. Farooque Pirzada as amicus curiae.

G.D..Shahani, Add. A.-G.

P L D 2004 Karachi 537

Before Muhammad Sadiq Leghari, J

MUHAMMAD YOUSAF JAMAL---Petitioner

versus

Mirza SABIR BAIG and others---Respondents

C.P. No.S-540 of 2003, decided on 28th January, 2004.

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

----S. 21---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Dismissal of appeal for non-prosecution---Application for restoration of appeal---Despite service of notice, neither appellant nor his counsel cared to appear in the Court--Appellate Court then fixed the appeal for hearing which by itself would mean that service was accepted as valid---Admittedly, neither appellant nor his counsel appeared before the Court on that date---Dismissal of appeal for non-prosecution in absence of the.-appellant and his counsel was legally justified---No legal embargo against dismissal for non-prosecution would stand in the way--­Application for restoration of appeal, in circumstances was dismissed for valid reasons and said order did not suffer from any legal or jurisdictional infirmity---No interference was warranted in exercise of Constitutional jurisdiction.

Yousuf v. Mst. Rabia PLD 1987 Kar. 185; Mst. Qamar Sultana alias Qamarunissa v. Abdul Hussain and another PLD 1982 Kar. 355; Sheikh Muhammad Akram and others v. Muhammad Iqbal and 18 others 1996 SCMR 1376 and Abida Riasat v. Sequira 1985 SCMR 1066 ref.

Sultan Ahmed Khan for Petitioner.

Ms. Mehjabeen Farzana for Respondents.

Date of hearing: 28th January, 2004.

P L D 2004 Karachi 539

Before Muhammad Sadiq Leghari, J

Messrs YOUSAF SONS---Petitioner

versus

Messrs MALKANI TRADING CO. and others---Respondents

C.P.S. No.894 of 2003, decided on 24th February, 2004.

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

----Art. 199---Constttutiona jurisdiction--- cope---Controversy regarding forged power of attorney being factual one, High Court in its Constitutional jurisdiction could not enter into the exercise of making inquiries in respect of such controversy.

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

----S. 2'(b)---Rent Controller---Status of Rent Controller as a Court--­Judicial proceedings---Rent Controller was a Court as he took the evidence and determined the rights of the parties within the scope of Sindh Rented Premises Ordinance, 1979---Miscellaneous Rent application was also judicial proceedings, in those proceedings also Rent Controller had to decide judicially as to who was entitled to withdraw the amount of rent deposited with him and to what extent---Rent Controller had also to take judicial decision as to whether Rent deposited with him was valid tender/offer of rent due and his finding in that respect was definite unless upset by Appellate forum---Rent Controller, in circumstances surely was a Court---Controversial power of attorney was used before Rent Controller and after being satisfied that same was forged one, he passed order for the prosecution of petitioner---Rent Controller being Court, could take cognizance of offence under S.193, P. P. C. or file complaint---Contentions that Rent Controller was not Court and could not order prosecution, were devoid of substance.

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

----S. 21---Appeal against order of Rent Controller ---Order passed by Appellate Court---Perusal of appellate order had clearly shown that Appellate Court had discussed the merits and held order of Rent Controller to have been passed competently and after that Appellate Court added 'that appeal was liable to be dismissed also for being not maintainable---Since the merits had also been considered and conclusions were drawn, order was deemed to have been passed on merits exercising Appellate jurisdiction which Appellate Court could legitimately exercise as order impugned through appeal was not an interlocutory one---Such was a final decision of a particular question/issue.

M.A. Awan for Petitioner.

P L D 2004 Karachi 543

Before Wahid Bux Brohi, J

YAKOOB through Legal Heirs---Applicants

versus

MUHAMMAD JUMAN alias ALLAH RAKHIO and others---Respondents

Civil Revisions Nos. 134 of 1989, 37 and 38 of 1994, decided on 19th March, 2004.

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

----S. 115---Revisional jurisdiction---Scope---Appellate .Court had, to a good extent, grappled with controversial points and had discussed the same, so also, the Trial Court had elaborately scrutinized, filtered and assessed the entire evidence on all issues---Each and every aspect had been attended to and the credibility of witnesses had been assessed on the basis of what was said in the examination-in-chief and what was elucidated in cross-examination---Format of the judgment of both Courts below, was not open to question---Findings on points of facts ren4ered by Trial Court and 'Appellate Court could not be interfered with by High Court in exercise of its revisional jurisdiction in absence of any misreading, non-reading of evidence or miscarriage of justice.

Nisar Abbas v. Manzoor Haider Shah PLD 1989 SC 568; Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal PLD 1987 SC 447; Hassan Shah v. Malook Shah 1987 CLC 2281; Yenkataraju v. Yedukondalu AIR 1958 Andh. Pra. 147; Ram Charan Das v. Girja Nandini Divi AIR 1966 SC 323; Mst. Husna Bano v. Faiz Muhammad Magsi 2000 CLC 709 ref.

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

----Art.133--If a particular version in evidence on a material point of fact would go unchallenged, same would be deemed to have been admitted.

(c) Pardanashin lady---

---- Interest of Pardanashin lady has to be strictly safeguarded by the Court and her consent should not roughly be presumed.

Mohan Lal K. Makhijani for Applicants.

Muhammad Anwar Durrani for Respondents.

Dates of hearing: 20th January and 18th February, 2004.

P L D 2004 Karachi 551

Before Muhammad Sadiq Leghari, J

DIRECTOR, TELEGRAPH STORES AND WORKSHOP and another---Applicants

Versus

SAIFUDDIN---Respondent

R.A. No.266 of 1994, decided on 12th March, 2004.

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

----O. VII, R. 2---Money suit---Limitation---Delay, condonation of---Suit for declaration and mandatory injunction earlier filed by plaintiff on same cause of action ultimately was dismissed by Supreme Court holding that suit was not maintainable as proper remedy in such a matter would be a suit for money decree---Earlier suit filed by plaintiff though was based on same cause of action, but he could not get desired result for improper frame and character of said suit---Plaintiff, in circumstances was entitled to benefit of S. 14 of Limitation Act, 1908 specially when he was not alleged to have not pursued the cause vigilantly.

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

----S. 115---Revision---Limitation---Filing of revision application much after expiry of 90 days as provided in S. 115, C.P.C. was not disputed and delay in filing revision application had not been explained as required by law---Revision application, was barred by limitation, in circumstances.

Akhlaque Ahmed Siddiqui for Applicants.

Muhammad Usman Qureshi for Respondent.

Date of hearing: 15th January, 2004:

P L D 2004 Karachi 555

Before Rehmat Hussain Jafferi, J

Malik ABDUL KADIR---Petitioner

Versus

ATIQUE ARMED through Legal Heirs and another---Respondents

Constitutional Petition No.956 of 2002, decided on 19th March, 2004.

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

----Preamble, S.29 & Art. 168---Penal Code (XLV of 1860), S. 41--­Sindh Rented Premises Ordinance, (XVII of 1979), S. 21---Limitation Act, 1908 was a general law which had laid down general rules of limitation applicable to all cases dealt with by said Act---Special Law was Law applicable to a particular subject as defined in S. 41 of P.P.C. and enacted for special cases which could also entertain special circumstances in conflict with general law laying down or applicable generally to all oases with which general law deals---Three different words were mentioned in S.29 of Limitation Act, 1908; viz. "Suit", "Appeal" and "Application" ---Said three words carried different meanings and connotations---" Suits" were different from "appeals" and vice versa, whereas suits and appeals would be quite different from Applications and vice versa---" Application" would be such which would not fall within the category of suit and appeal---When law makers had used three words in S.29 of Limitation Act, 1908, then it emphasized that implication of S.29 Limitation Act, 1908 would be applicable to three separate and different categories of subjects and rights accrued through filing of suit, appeal and application---For re-admitting art appeal, neither the suit nor the appeal was to be filed, but an application was required to be filed and that application would come within the meaning of word "Application" mentioned in S. 29 of Limitation Act, 1908---No time limit was fixed for filing an Application for readmission of appeal---No time for filing application for re-admission of appeal having been provided in Sindh Rented Premises Ordinance, 1979, S.29 of Limitation Act, 1908 would not be applicable in such situation--­Period of 30 days for filing an application for re-admission of appeal dismissed for want of prosecution, had been provided under Art. 168 of Limitation Act, 1908.

Yousif v. Fazal Kareem 1983 CLC-2219 and Kaushalya Rani v­. Gopal Singh AIR 1964 SC 260 ref.

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

----Preamble & S. 417---Nature , and scope of Cr.P.C.---Criminal Procedure Code, 1898 was a general Law laying down procedure generally for the trial of criminal cases, -but same also contained some special provisions of law in the shape of S. 417(4), Cr.P.C.---Some other provisions were also found in Cr.P.C. specifying a bar of time for particular class of cases, which were of special nature; for example Anti­-Terrorism Act, 1997, though was a. special law in respect of offences provided under P.P.C. and procedure provided under Criminal Procedure Code, but was a general law regulating the rights of particular class of offenders and cases regulating relationship of terrorists arid offences of terrorism, but it contained special provision specifying bar of time for filing of appeals.

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

----Art. 199---Constitutional jurisdiction---Scope---Order passed by Appellate Court below not suffering from any material irregularity or illegality, could not be interfered with by High Court, in exercise of its Constitutional jurisdiction.

Qalander Bux Phulpoto for Petitioners.

A.M. Mubeen Khan for Respondent.

Date of hearing: 20th February, 2004.

P L D 2004 Karachi 563

Before Zahid Kurban Alvi, J

ALI BAKHSH alias PHOTO---Applicant

Versus

THE STATE---Respondent

Cr.B.A. No.281 of 2003, decided on 30th May, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/324/504/34---Bail, grant of---Main role in F.I.R. had been attributed to co-accused---Direction was given to Trial Court to record evidence of material witnesses within three months, but two years had passed since said directions were issued and still no evidence was recorded as per direction of High Court---Bail was granted to accused, in circumstances.

Muhammad Ayaz Soomro for Applicant.

Syed Mehboob Ali Shah for the State.

P L D 2004 Karachi 564

Before Muhammad Afzal Soomro, J

MUHAMMAD RAHEEM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1501 of 2003, decided on 23rd December, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/34---Bail, grant of--­Nothing was on record against accused excepting the self-exculpatory confession of accused which had no evidentiary value---Accused was arrested five years after the incident took place---Accused having been able to make out a case for grant of bail to him he was admitted to bail.

Pervaiz Iqbal v. The State PLD 1976 Kar. 583; Wasim v. The State 2003 Cr.LJ 743; 2002 YLR 64 and Pir Mazharul Haq v. The State 1992 PCr.LJ 1910 ref.

Mahmood A Qureshi for Applicant:

Ms. Rehana Akhtar for the State.

P L D 2004 Karachi 566

Before Sarmad Jalal Osmany, J

ZAFAR IQBAL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.4 of 2004, heard on 27th January, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 395/337---Bail, grant of--­Affidavit---All the eye-witnesses had exonerated accused by submitting their affidavits in that respect and as per affidavit of complainant matter had been patched up between the parties---Ultimate conviction of accused having become doubtful accused was entitled to bail.

Mukhtar Ahmed v. The State 1999 PCr.LJ 1106; Muhammad Akram v. The State 1995 MLD 1826; Mst. Elahi alias Bibi v. The State 1997 PCr.LJ 1193 and Ghulam Ali v. the State 1997 SCMR 1411 ref.

Mehmood A. Qureshi for Applicant.

Attique Ahmed Siddiqui for the Complainant.

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

Date of hearing: 27th January, 2004.

P L D 2004 Karachi 568

Before Rahmat Hussain Jafferi, J

ASGHAR ALI alias ALI ASGHAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-580 of 2003, decided on 11th June, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/34---Bail, refusal of---Three persons participated in the commission of crime and out of 'said' three, two had been assigned role of causing fatal injuries to deceased--­Accused who was unidentified at the time of incident; but subsequently was identified in identification test, by complainant and prosecution witnesses, had been assigned the role of accompanying other two accused persons and reaching the place of incident---Accused was assigned the role of stopping the Rickshaw in which complainant and prosecution witnesses were sitting---Accused and co-accused brought out deceased and prosecution witnesses 'from the Rickshaw---Accused was further assigned the role of aiming his pistol at the prosecution witnesses with threats that they should not move otherwise they would be killed---All said facts showed that common intention existed between all three accused persons to commit offence of murder---Accused and his co­-accused, in circumstances were responsible for the commission of offence---Questions raised by accused with regard to identification and other matters, required deeper appreciation of evidence, which could be taken at the time of trial and at bail stage only tentative assessment of evidence was required to be made---Accused was not entitled to concession of bail in circumstances of case.

Lal Pasand v. The State PLD 1981 SC 142; The State of A.P v. M.V. Ramana Reddy AIR 1991 SC 1938; Rustam v. The State 1981 PCr. LJ 882; Shamsuddin v. The State 1997 PCr. W 150; Shafique Ahmed v. The State 2002 PCr.LJ 518; Mehmood Ahmad v. The State 1995 SCMR 127; The State v. Farman Hussain PLD 1995 SC 1; Yakoob Khan v. The State PLD 1996 SC 97 and Solat Ali Khan v. The State 2002 SCMR 820 ref.

Altaf Hussain Surahio for Applicant.

Muhammad Saleem Jasar for the Complainant.

Mushtaque Ahmed Kourejo for the State.

P L D 2004 Karachi 571

Before Muhammad Moosa K. Leghari and Khilji Arif Hussain, JJ

NUSRAT SHAH and 2 others---Appellants

Versus

THE STATE---Respondent

Cr. Jail Appeal No.77 of 2003, heard on 14th January, 2004.

Penal Code (XLV of 1860)---

----Ss. 392/34---Appreciation of evidence---Reduction in sentence--­Complainant had resiled from his earlier statement and was declared hostile---Police witnesses, however, attempted to prove prosecution case---In any case, the quantum of sentence awarded to accused seemed to be little bit excessive and thus was not sustainable in all fairness--­Since accused had already undergone imprisonment for nearly six years, it would meet ends of justice, if sentence was altered and reduced to that extent---Joint submission put forward by counsel for accused and State appeared to be just and reasonable---Conviction of accused was upheld, but sentence awarded to accused by Trial Court was modified to the extent of imprisonment already undergone by him.

Muhammad Iqbal Kalhoro and Ghulamullah Chang for Appellants.

Muhammad Azeem Panhwar for Respondent.

Date of hearing; 14th January, 2004.

P L D 2004 Karachi 573

Before Syed Zawwar Hussain Jaffery, J

ALLAHUDDIN KHAN---Petitioner

Versus

ZAMARUD JEHAN and another---Respondents

Constitutional Petition No. 150 of 2003, decided on 2nd April, 2004.

West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Dissolution of marriage on ground of Khula'--­Wife was entitled to claim dissolution of marriage by way of Khula' and also on any ground recognized as valid under Dissolution of Muslim Marriages Act, 1939 which included cruelty and non-maintenance---If Court would come to the conclusion that wife had been subjected to cruelty or she was not being maintained as provided by law, it could lawfully pass a decree for dissolution of marriage---Evidence on record had established that petitioner husband was extending cruelty towards respondent wife and she and her children were not being maintained by petitioner husband---Apart from that petitioner husband had suspected about the character of respondent wife and tried to scandalize her reputation and in that way had made her life miserable and she had developed hatred for petitioner husband---Trial Court, in circumstances had rightly dissolved marriage by way of Khula,'---In absence of any material illegality or infirmity in the judgment of Family Court, no case was made out for interference to set aside impugned judgment---Even otherwise, High Court while dealing with such matter, would not sit in appeal since its jurisdiction was limited to see whether impugned judgment/order had been passed without authority or was without jurisdiction.

Junaid Qureshi v. Judge, Family Court 2003 CLC 1001; Mst. Kaniz Fatima v. Ghulam Mustafa 1994 MLD 174; Amatullah Begum v. Munawar Akhtar, Advocate 1999 SCMR 1700; Syed Niyaz Ahmed v. The Joint Civil Judge and Family Judge 1983 CLC 3107; Aslam Chughtai v. Family Court Karachi and another 1984 CLC 822; .Baharoo v. Civil Judge/Family Judge, Lasbela and another 1985 CLC 806; Sona v. Mst. Ghulam Fatima PLD 1967 Pesh. 324; Dr. Akhlaq Ahmed v. Kishwar Sultana and others PLD 1983 SC 169 and Muhammad Shafi v. District Judge, Gujrat and another 1982 CLC 2057 ref.

Mrs. Shabnam Khursheed for Petitioner.

Ajmal Haider for Respondent No. 1.

Date of hearing; 11th March, 2004.

P L D 2004 Karachi 577

Before Sarmad Jalal Osmany and Muhammad Mujeebullah Siddiqui, JJ

BASHIR AHMED ---Appellant

Versus

THE STATE ---Respondent

Special Anti-Terrorism Appeal No.21 of 2003, decided on 9th March, 2004.

Penal Code (XLV of 1860)---

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Qanun-e­-Shahadat (10 of 1984), Art. 47---Juvenile Justice System Ordinance (XXII of 2000), S.5---Appreciation of evidence---Adult accused in the case were tried separately and were convicted and sentenced and their appeals had also been heard separately and conviction awarded to them had been upheld while their death sentence was converted into life imprisonment---Other accused, being juvenile; was tried separately under provisions of Juvenile Justice System Ordinance, 2000---Main prosecution witnesses in case of accused who were alleged kidnapee and complainant, the father of kidnapee, could not be examined for the reason that they had left the city and were not traceable and their statements recorded in the case against adult accused persons, were produced in case of Juvenile accused under Art, 47 of Qanun-e-Shahadat, 1984---Trial Court placed reliance on statements of kidnapee and his father complainant recorded against adult accused person, which was not warranted in law as the same did not fulfil conditions contained in Art.47 of Qanun-e-Shahadat, 1984---Even otherwise sentence of imprisonment could not be awarded to a juvenile---Conviction and sentence awarded to juvenile accused were set aside being not sustainable in law.

Mahmood A. Qureshi for Appellant.

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

Date of hearing: 9th March, 2004.

P L D 2004 Karachi 582

Before Azizullah M. Memon, J

MUHAMMAD MUNEER and another---Appellants

Versus

THE STATE---Respondent

Cr. Jail Appeals Nos. 19 and 25 of 2002, decided on 2nd June, 2004.

Penal Code (XLV of 1860)---

----S. 302(b)---Oaths Act (X of 1873), Ss.5 & 6---Appreciation of evidence---Magistrate who recorded confessional statement of co-accused had admitted in his cross-examination before the Trial Court that he had first administered oath to co-accused and then recorded her confessional statement---No reliance could be placed on judicial confession which was recorded after oath was administered to the maker thereof as same was in contravention of established practice and contrary to the provisions of Ss. 5 & 6 of Oaths Act, 1973---Such confessional statement was inadmissible in evidence---Recovery of weapon of offence allegedly made at the pointation of accused was full of doubt as mashir of alleged recovery was closely related to deceased who had further admitted that such mashirnamas were prepared at the Police Station---No evidence was available on record against accused excepting the statement made by co-accused against him---Accused could not be convicted for the offence on the basis of statement/confessional statement made by co-accused---Circumstantial evidence relied upon by prosecution which did not give a clear picture, could not be relied, upon---No person from the locality of the place of incident was made to act Mashir of Wardat for the recovery of dead body and the weapon of offence and Mashir, having made statement contradictory to the stand of Investigating Officer himself, his evidence could not be relied upon---Judgment of conviction and sentence passed by Trial Court against accused, was set aside and accused were held entitled to benefit of doubt---Accused were acquitted and were directed to be released.

PLD 1956 SC 420 and 1992 PCr.LJ 955 ref.

Mehmood A. Qureshi for Appellants.

Habib-ur-Rasheed, State Counsel for Respondent.

Date of hearing: 27th May, 2004.

P LD 2004 Karachi 589

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

ALI AKBAR SHAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.73 of 1993, decided on 3rd June, 2004.

Criminal Procedure Code (V of 1898)---

----Ss. 397, 369 & 561-A---Penal Code (XLV of 1860), Ss. 365-A/34--­Convictions and sentences passed in two separate cases---Application to run sentences concurrently---Accused alongwith others abducted a person for ransom purpose, a case under Ss. 365-A, 34, P P.C. was registered against accused---After about four and half months accused alongwith other abducted another person for ransom purpose and case was registered against accused under Ss. 365-A/34, P.P.C.---Later case was tried in which accused was convicted and sentenced for imprisonment for life---Accused was subsequently convicted in earlier case also and sentenced to imprisonment for life---Accused had filed application praying that sentence awarded to him subsequently be ordered to run concurrently with earlier sentence as provided under S. 397, Cr.P.C.--­Accused had further stated that as he had been convicted in two cases of similar nature and had remained in custody for 12 years, it was in the interest of justice that both the sentences should be made to run concurrently---Later decision in earlier case was given after more than five years from earlier decision---In appeal against later decision no order within the meaning of S. 397, Cr.P.C. was passed---Order within the meaning of S. 397, Cr.P.C. was required to be passed at the time of deciding the case or deciding the appeal and if for any reason or due to some inadvertent omission same was not passed, then same could be passed by High Court afterwards by exercising the powers under S.561-A, Cr.P.C.---However, after considering the gravity of offence in the case particularly the fact that accused had committed two offences or serious nature within a period of five months, accused did not deserve any leniency as he, despite knowing that sentence of said offence which was death or imprisonment for life, did not care for his future---Accused was himself responsible for his acts which had been proved against him and the Courts had found him guilty of commission of said offences---No justification was found in the case for ordering the sentence to run concurrently---Application of accused in that respect was dismissed, in circumstances.

Sikandar Ali v. State PLD 2003 Kar.260 and Bashir v. State PLD 1991 SC 1145 ref.

Petitioner in person.

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

Mehmood A. Qureshi: Amicus curiae.

Date of hearing: 5th May; 2004.

P L D 2004 Karachi 595

Before Muhammad Moosa K. Leghari, J

MUHAMMAD FAROOQ MARFANI---Plaintiff

Versus

ABDUL QADIR TAWAKAL and 7 others- --Defendants

Suit No. 1542 of 2001, decided on 31st May, 2004.

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

----O. VIII, R. 10---Failure of defendant to present written statement called for by the Court---Legislature having used word "may" and not "shall" in the provision of O. VIII, R. 10, C.P.C. Court has the discretion to pronounce judgment against the defendant in case he fails to file written statement---Court has to ensure, even when proceeding ex parte, that its decision is in accordance with the facts, which shall be ascertained with as much care as is possible in the absence of any contesting party---Plaintiff can succeed on the strength of his own case and not upon the weakness of the opponent's case.

Abdul Ghafoor and others v. M.B.R. and others 1989 MLD 4585; East and West Steamship Co. v. Queensland Insurance Co. PLD 1963 SC 663 and PLD 1958 PC 161 ref.

(b) Defamation---

----Necessary ingredients constituting defamation summarized.

The necessary ingredients constituting a defamation can be summarized as under:

(a) the allegations levelled against the plaintiff should be false, baseless and unfounded;

(b) the wordings used and the allegations levelled, on the face of , it, should have been defamatory and derogatory in nature;

(c) such allegations should have been published in widely circulated newspapers or spoken in a large gathering;

(d) the said publications made or wordings used should have been with malice without any reasonable excuse and justification;

(e) the allegations should have been directly attributed to the -plaintiff by specifically mentioning his name;

(c) Defamation---

----Damages, suit for---Where the plaintiff had ,not been able to substantiate his case for grant of damages on account of his reputation having been damaged in general public by the defendants, suit for damages for defamation would not be sustainable---Principles.

None of the ingredients constituting defamation was available in the present case either in the plaint or in the evidence adduced by the plaintiff; (i) it was the case of the plaintiff that the defendants had levelled certain false, baseless and unfounded allegations against the plaintiff, (ii) when there was no allegation alleged to have been levelled, no question of its being defamatory and derogatory in nature arose, (iii) it was also not the plaintiff's case that the defendants either published in widely circulated newspapers or stated in a large gathering that plaintiff was in any way involved in the criminal charges levelled against him, about his standing surety for defendant and then disappearance of said defendant, (iv) when admittedly no publicity had been made, no question .of its being made with malice would arise and lastly (v) plaintiff had not pleaded that any of the defendants had specifically named the plaintiff to be involved in the criminal charges attributed against the defendants or in the disappearance of defendant after he was released on bail.

Plaintiff in circumstances, had not been able to substantiate his case for grant of damages on account of his reputation having been damaged in the general public by the defendants.

(d) Damages---

----Suit for damages--- Plaintiff, in the present case, had stood surety for the defendant in the sum of Rs.84,00,000 and after his disappearance a penalty amounting to Rs.8,00,000 was imposed upon the plaintiff which he duly paid---In the absence of any rebuttal of such fact, the plaintiff was entitled to the recovery of the said amount of Rs.8,00,000---Plaintiff had specifically stated in the affidavit in evidence that defendant and three other persons (defendants in the case), had approached and persuaded him to furnish surety for the defendant and had given. undertaking and specific assurance to replace the surety furnished by the plaintiff with another surety and get the plaintiff discharged from the responsibility---Held, in circumstance, only defendant and three other said persons were severally and jointly liable to make payment of the amount of Rs.8,00,000 to the plaintiff---Suit was decreed in the sum of Rs.8,00,000 against the four defendants severally and jointly and keeping in view the facts of the case and the conduct of four defendants, they were also made liable to pay the .costs of the suit to the plaintiff.

Muhammad Amin Lakhani for Plaintiff.

Aftab Ahmed G. Nabi for Defendants.

Date of hearing: 27th May, 2004.

P L D 2004 Karachi 602

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

ARSHAD ALI --- Appellant

versus

THE STATE---Respondent

Spl. A.T. Appeals Nos. 69, 71, 72, 73, 79 and 80 of 2001 'and Confirmation Case No. 10 of 2001, decided on 30th December, 2003.

Penal Code (XLV of 1860)---

----Ss. 396/34---Anti-Terrorism Act (XXVII of 1997), S. 7---West Pakistan Arms Ordinance (XX of 1965), S. 13(d)---Appreciation of evidence---Version given by one of the prosecution witnesses with regard to number of accused was quite different from the version given by him in his statement made under S. 161, Cr.P.C.---Prosecution witness had changed the number of accused from 3 to 2 and omitted to show the presence of other witnesses at the place and time of incident though he showed their presence in his statement recorded under S. 161, Cr.P.C.--­Statement of said witness was recorded three days after occurrence and said delay required careful scrutiny of his evidence---Evidence of said witness was in conflict with initial story as described in F.I.R. and no explanation or reason had been assigned by said witness about changing the number of accused---Statements of all the four witnesses being different from each other, it was not known as to who was speaking the truth and on whose statement one should rely upon and that by itself was sufficient to create a doubt and dent in the prosecution story and every doubt was to be resolved in favour of accused---Prosecution had failed to prove identification tests of accused beyond any reasonable doubt--­Judicial Magistrate having mixed up same dummies in all identification tests, it was easy for the witnesses to pick out a new face appearing in the line of dummies in each test---Prosecution could not prove beyond reasonable doubt as to who committed incident---One single doubt appearing in evidence was enough to acquit accused---Offence under S.13(d) of West Pakistan Arms Ordinance, 1965 was triable by Antiterrorism Court if it was committed conjointly with offence triable by said Court---Accused in the present case were arrested seven days after the incident---No empties were recovered from the place of incident--­Weapons secured from the possession of accused had not been connected with commission of offence---Offence under S.13(d) of West Pakistan Arms Ordinance, 1965, having not been committed conjointly with offence, Anti-Terrorism Court had no jurisdiction to try said cases against accused---Case of prosecution being highly doubtful, accused were acquitted giving them benefit of doubt---Conviction and sentence awarded to accused by Trial Court, were set aside and they were released.

Tariq Bashir v. State PLD 1995 SC 34 ref.

Abdul Ghaffar Samo for Appellants (in Crl. Appeals Nos.69, 79 and 80 of 2001).

Mehmood A. Qureshi for Appellants (in Crl. Appeal No.71 and 72 of 2001).

Raza Hashmi for Appellants (in Crl. Appeal No.73 of 2001

Shahadat Awan for the Complainant.

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

Date of hearing :7th November, 2003.

P L D 2004 Karachi 614

Before Wahid Bux Brohi and Azizullah M. Memon, JJ

Moulana MUHAMMAD IBRAHIM ---Petitioner

Versus

FEDERATION OF PAKISTAN through Ministry of Finance and 3 others---Respondents

Constitutional Petition No.D-735 of 2003 and C.M.A. No.580 of 2004, decided on 9th August, 2004.

Civil Procedure Code (V of 1908)---

---S. 151 & O. XI, R.9---Constitution.of Pakistan (1973), Art. 199--­Constitutional petition---Dismissal of Constitutional petition due to absence of petitioner and his counsel---Application for restoration--­Petition was dismissed for non-appearance of petitioner and his counsel on the date of hearing---Petitioner on the very next date filed application for restoration of petition stating therein that non-appearance of petitioner and his counsel before High Court neither was deliberate nor intentional, but was due to bona fide unawareness about the date of hearing of the matter---Technically speaking, absence from the Court could not reasonably be explained by saying that date of hearing was not noted or it was not supplied by the office; it was a normal procedure that parties and their advocates were mentioned in the cause list which on publication and distribution was deemed to be sufficient notice--­Application for restoration of petition had been filed on the following day of passing order of dismissal of petition and applicant being a trust, catering for a large section of public, it would be expedient in the interest of justice if the matter be decided on merits as the Courts had always preferred decision of a cause on merits rather than passing an adverse order keeping in view the technicalities---Application for restoration of petition was allowed subject to payment of heavy cost.

Abdul Basit Zahid v. Modaraba Al-Tijarah 2000 MLD 2067; Muhammad Khan v. Shabarati PLD 1995 Kar. 267; Allah Bachai v. Fida Hussain 2004 SCMR 615; Muhammad Munawar v. Ch. Khurshid Alam 1978 SCMR 226 and Rasheed Ahmed v. Province of Punjab 2004 SCMR 707 ref.

S. Sitwat Hussain Niazi, for Petitioner

S. Zaki Muhammad, D.A.-G. for Respondent No.1.

Abdul Qadir Khan for Respondent No.2.

Anwar A. Siddiqui for Respondent No.3.

PLD 2004 Karachi 617

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

Syed AMIR AHMED HASHMI and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail- Applications Nos. 17 and 18 of 2004, decided on 2nd June, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Sales Tax Act (VII of 1990), S.37-A(3)---Bail, Grant of--­Loss to Government revenue had already been paid---Contention that the consignments having actually been exported, exporter were entitled to refund of sales tax paid while purchasing the goods from local market, could not be precisely controverted as final challan had not yet been submitted---Entire case depended on documentary evidence which had been collected and was in possession of prosecution---Commencement of trial was not yet in sight---Maximum punishment for the offence was five years' R.I. ---Genuineness or otherwise of the invoices was yet to be determined at the trial---Accused were admitted to bail in circumstances.

Saeed Ahmad v. State 1996 SCMR 1132; Sikandar A. Karim v. State 1995 SCMR 387; Imtiaz Ahmed v. State PLD 1997 SC 545; A.D.B:P. v. Abid Akhtar 2003 SCMR 1547 and Munir Muhammad v. State 1976 SCMR 145 ref.

Suhail Muzaffar and Kh. Shamsul Islam for Applicants.

Khursheed A. Hashmi for Respondent.

Date of hearing: 2nd June, 2004.

P L D 2004 Karachi 620

Before Sarmad Jalal Osmany and Amir Hani Muslim, JJ

Messrs A.G. PESTICIDES (PVT.) LTD. and another---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petitions Nos. D-796 of 1993 and D-2263 of 1994 decided on 14th June, 2004.

(a) Agricultural Pesticides Ordinance (II of 1971)---

----Ss. 4 & 5---Imports and Exports (Control) Act (XXXIX of 1950), S.3---Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Policies of Government, framing of ---Object---Estoppel against statute--Assurance by Government---Scope---Petitioner being manufacturer of pesticide namely Aluminium Phosphide sought banning import of the pesticide---Plea raised by the petitioner was that the Government had assured in a letter that the petitioner was entitled to exemption from import duty on raw material as well as protection of indigenous product against import of its product---Validity---Letters giving any assurance could not override either the provisions of Imports and Exports (Control) Act, 1950, or the provisions of Agricultural Pesticides Ordinance, 1971---Federal Government keeping in view the demand and or national requirement of import of different items, framed policies under S.3 of Imports and Exports (Control), Act, 1950---Policies of Government were framed and modified at times with the changed .circumstances---Such policies were normally framed by Federal Government after examining its requirements keeping in view the larger interest of public---Policies could not be framed to benefit individuals nor such directions could be given to Federal Government to frame its policies in a particular manner, in order to give effect to an assurance which the law did not recognize--No estoppel against statute and the Government, in law, was obliged to give effect to its policies, which it had framed to benefit the public at large---Government policies could not be challenged through writ petitions unless it was shown that the policy in question had violated a vested right guaranteed under the Constitution-­-Assurance by Government through its letters had no legal sanction and the same could not be made basis to seek relief of protection as claimed by the petitioner---Petition was dismissed in circumstances.

Pakistan v. Salahuddin PLD 1991 SC 546; Federation of Pakistan v. Ammar Textile Mills (Pvt.) Ltd. 2002 SCMR 510; M.Y. Electronics Industries (Pvt.) Ltd. v. Govt. of Pakistan 1998 SCMR 1404 and Muzaffar Khan v. Evacuee Trust Property 2002 CLC 1819 ref.

(b) Agricultural Pesticides Ordinance (II of 1971)--

----Ss. 4 & 5---National Tariff Commission Act (VI of 1990), S.4(a)--­Constitution of Pakistan (1973), Art.199---Constitutional petition Maintainability---Alternate efficacious remedy---Protection to indigenous industries---Petitioner being manufacturer of pesticide namely Aluminium Phosphide; sought banning .import of the pesticide---Plea raised by the petitioner was that the Government had assured it in a letter that the petitioner was entitled to exemption from import duty on raw material as well as protection of indigenous product against import of its product---Validity---Petitioner could approach National Tariff Commission under SA(a) of National Tariff Commission Act, 1990, to seek protection for indigenous industries---Complete procedure was provided under National Tariff Commission Act, 1990 which had entitled to party to seek protection---Where an alternate efficacious remedy available had not been availed by the petitioner, High Court in exercise of Constitutional jurisdiction would not permit him to seek such relief through Constitutional proceedings---Petition was dismissed in circumstances.

Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223; Al­-Samrez Enterprise v. Federation of Pakistan 1986 SCMR 1917; Pakistan v. Salahuddin PLD 1991 SC 546, Pakistan v. Hussain Ali PLD 1960 SC 310; Ghulam Nabi v. Province of Sindh PLD 1999 Kar. 372 and Bashiran v. Divisional Superintendent, Pakistan Railways 2001 CLC 1229 distinguished.

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

----Art 199---Constitutional jurisdiction of High Court---Scope---Where an alternate efficacious remedy available had not been availed by the petitioner, High Court in exercise of Constitutional jurisdiction would not permit him to seek such relief through Constitutional proceedings.

Munawwar Ghani for Petitioner and for Respondent No.3 (in C.P. No.D-2263 of 1994).

Syed Zaki Muhammad, Dy. Attorney-General.

Umer Soomro for Respondent No.5 (in C.P. No.D-796 of 1993).

Mazhar Shaikh for Respondent No.6 (in C.P. No.D-796 of 1993).

Syed Muhammad Jalaluddin Khaled, Asstt A.-G. Punjab for Respondent No.7 (in C.P. No.D-796) of 1993).

Date of hearing: 1st June, 2004.

P L D 2004 Karachi 631

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

THE STATE---Applicant

Versus

MUHAMMAD IRSHAD---Respondent

Criminal Miscellaneous Application No.40 of 2004, decided on 26th May, 2004.

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

----S. 516-A---Order for custody and disposal of property pending trial--­Expression "Produced before any Criminal Court" occurring in S.516-A, Cr.P.C.---Intent and import---Expression "produced before any Criminal Court" in S.516-A, Cr.P.C. should not be interpreted rigidly and narrowly but it should be interpreted liberally so as to cover the cases in which it is not possible or is at least difficult to physically produce the property before the Court---Court in such a situation may, instead of directing the property to be produced physically in the Court, direct that the property be put in charge of any person.

Basava v. State of Mysore AIR 1977 SC 1749 ref.

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

----S. 516-A---Order for custody and disposal of property pending trial--­Any property in control of the Court either directly or indirectly should be disposed of by the Court by a just and proper order regarding its disposal.

Basava v. State of Mysore AIR 1977 SC 1749 ref.

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

---S.516-A---Order for custody and disposal of property pending trial--­Expression "Produced before any Criminal Court" in S.516-A, Cr.P.C.---Connotation---Production before the Court does not mean physical custody or possession by the Court, but includes even control exercised by the Court by passing an order regarding the custody of the articles.

Basava v. State of Mysore AIR 1977 SC 1749 ref.

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

----Ss. 497(5) & 516-A---Control of .Narcotic Substances Act (XXV of 1997), S.9---Bail, cancellation of---Huge quantity of 10 kgs. of heroin was involved in the case which was kept in the property room of Anti-­Narcotic Force police as the Trial Court had no property room---Trial Judge himself had gone to the- Anti-Narcotic Force police station where the said heroin recovered from the accused was available, verified the same and prepared its samples which. had represented the whole property by virtue of the last proviso to S.516-A, Cr.P.C.---Property, thus, was under the control of the Court---Question of non-service of notice on the accused at the time of passing of order for the destruction of the property could be properly examined at the final disposal of the case in the light of the defence taken by him and the trend of cross-examination on the witnesses---Bail granted to accused by Trial Court was cancelled in circumstances.

Sayed Karim v. Anti-Narcotic Force PLD 2003 Kar. 606; Jamil Khan Afridi v. State 2004 MLD 542; Basava v. State of Mysore AIR 1977 SC 1749; Ali Muhammad v. State PLD 2003 SC 54; AIR 1963 Raj. 13; AIR 1942 Bam. 42; and 1972 PCr.LJ 604 ref.

Mehmood Alam Rizvi Special Prosecutor for the State.

Azizullah Shaikh for Respondent.

Date of hearing: 11th May, 2004.

P L D 2004 Karachi 638

Before Sabihuddin Ahmad and Muhammad Afzal Soomro, JJ

ASIM TEXTILE MILLS LTD. and other---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

Constitutional Petition No.755 of 2003, decided on 5th July, 2004.

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

----Ss. 25-A & 5(r)---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), Ss.7(4) & 4---Settlement of disputes--­Procedure---Amount of liability of a borrower has to be determined through judicial disposition by a Civil or a Banking Court and once such determination attains finality or is not disputed, the mechanism provided under the National Accountability Ordinance, 1999, can be invoked.

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

----Ss. 9, 10, 25-A & 5(r)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Payment of loans etc.---Settlement of disputes--­Stay of criminal proceedings---Accused had disputed the amount of liability and had alleged breach on the part of the respondent Bank in respect of the terms of loan facility, which had already filed a suit for recovery under the Banking jurisdiction---Respondent Bank having chosen to invoke jurisdiction of Court under one special legislation could not be permitted to change its track and invoke penal proceedings under another special legislation which would render the former proceedings infructuous---Proceedings initiated through the impugned show-cause notice under S.5(r) of the National Accountability Ordinance, 1999, against the accused were consequently stayed until final adjudication of the amount due against them by the judicial proceedings instituted by the Bank---Constitutional petition was disposed of accordingly.

Agricultural Development Bank of Pakistan v. Sanaullah Khan PLD 1988 SC 67; Abdul Shakoor Kaloodi v. The State 2003 PCr.LJ 626; Abdul Majid v. Governor State Bank of Pakistan and others C.P. No.D-24 of 2004; Criminal Accountability Appeal No.4 of 2001 and Brigadier (R) Mazharul Haq and another v. Messrs Muslim Commercial Bank Limited and another PLD 1993 Lah. 706 ref.

Akram Shaikh for Petitioners.

Nemo for Respondent No.1.

Shaukat Hayat for Respondent No.2.

Aijaz Mandviwala for Respondent No.3.

Date of hearing: 20th May, 2004.

P L D 2004 Karachi 644

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

SIKANDAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.68 of 2002, decided on 28th April, 2004.

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

----S. 9(b)---Qanun-e-Shahadat (10 of 1984), Art.129, Illus.(g)--­Appreciation of evidence---Recovery witnesses had made contradictory statements---Best piece of evidence of private and independent witness having been- withheld by the prosecution without assigning any cogent reason, presumption under Illus. (g) of Art. 129 of Qanun-e-Shahadat, 1984, could be drawn against the prosecution making its case doubtful--­Out of two packets sealed at the place of incident of the "Charas" recovered from the accused only one packet was sent to the Chemical Analyser by the Investigating Officer which had lessened the gravity of the offence and benefited the accused---Prosecution had failed to prove the case against the accused beyond any shadow of doubt which had been artificially created by the Investigating Officer and the Prosecutor---Accused was acquitted on benefit of doubt accordingly.

Ghous Bux v. State PLD 2004 Kar.201 and Iltaf Hussain v. State 1996 SCMR 167 ref.

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

---S. 9(b)---Qanun-e-Shahadat (10 of 1984), Art.129, Illus.(g)--­Appreciation of evidence---Principle---Withholding of the best piece of evidence available with a party gives rise to a presumption that it has some sinister motive behind it---In such a situation a presumption under Illus.(g) of Article 129 of the Qanun-e-Shahadat, 1984, can fairly be drawn that had the said piece of evidence been brought on the record, it would have been unfavourable to the said party.

Ghous Bux v. State PLD 2004 Kar.201 and Iltaf Hussain v. State 1996 SCMR 167 ref.

Abdul Shakoor A. Abbasi for Appellant.

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

Date of hearing: 28th April, 2004.

P L D 2004 Karachi 652

Before Muhammad Mujeebullah Siddiqui and Muhammad Afzal Soomro, JJ

MUHAMMAD AYAZ alias CHEENA and others---Appellants

Versus

THE STATE---Respondent

Special A.T.As. Nos. 15, 35 and 37 of 2002, decided on 6th August, 2004.

(a) Void Order----

----Judgment---Order/judgment without jurisdiction being void ab initio cannot be clothed with legality merely because it has been upheld in appeal or revision by inadvertence---Any super structure on such void order during the course of appeal or revision shall not have the effect of providing legal cover and an order or judgment without jurisdiction shall continue to be void and nullity in law, notwithstanding a per incuriam order or judgment in appeal or revision.

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

----Ss. 7 & 39-C(2)(e)---Penal Code (XLV of 1860), S.392/34--­Jurisdiction of Trial Court---Validity---Offences of vehicle snatching were no more triable by the Anti-Terrorism Courts after amendments introduced in the Anti-Terrorism Act, 1997, vide Ordinance XXXIX of 2001 dated 15-8-2001 and such Courts had ceased to have jurisdiction and with the insertion of S.39-C(2)(e) all such cases pending before the Anti-Terrorism Courts were required to be referred to the Sessions Courts having jurisdiction---Judgment passed by the Trial Court in the case, therefore, was without jurisdiction and the judgments of High Court disposing of the appeals at the instance of accused upholding the conviction recorded by a Court having no jurisdiction and reducing the sentence, were against the mandatory provisions of law rendering the judgments per incuriam---Judgments in appeals were consequently recalled and restored to the stage where they were on the dates of passing the same---Entire judgment of the Anti-Terrorism Court convicting all the three accused was set aside being without jurisdiction and the case was remanded to the Sessions Judge concerned for disposal according to law---Appeals were disposed of accordingly.

Farhan Zafar and others v. The State PLD 2002 Kar. 311; Ghazi Khan v. The State PLD 2003 Kar. 71; Crown v. Habibullah PLD 1952 Lah. 587; Raju v. Emperor AIR 1928 Lah. 462; Nagappa Vyankappa Sali v. Emperor AIR 1931 Bom.529; Emperor v. Rashbehari Singh AIR 1934 Pat. 551; Mallor v. Swire LR (1885) 30 Ch. D.239; Gulzar Hassan Shah v. Ghulam Murtaza PLD 1970 SC 335; Muhammad Hanif v. The, State PLD 1974 Kar. 22; Soomar v. The State PLD 1975 Kar. 80; Qaim Din v. The State 1977 PCr.LJ 546; Zulfiqar Ali v. The State PLD 1984 Lah. 461; Mst. Razia Bibi v. Muhammad Arshad 1994 MLD 1; Muhammad Shareef v. The State 1997 PCr.LJ 1195; Gul Muhammad v. The State 1999 SCMR 2765; Haji Khan Mir v. The State PLD 1968 Lah. 1066; Allah Rakha v. The State 2000 MLD 1932 and Maktul v. Mst. Manbhari AIR 1958 SC 918 ref.

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

----S. 561-A---Inherent jurisdiction of, High Court---Correction of error---Although according to the normal rule of the Criminal administration of justice an order or judgment once delivered attains finality and is not to be altered, reviewed or recalled, yet under exceptional circumstances in rare cases where no specific provision of law is available if High Court is satisfied that the earlier order or judgment is either without jurisdiction or against the mandatory provisions of law and has been delivered inadvertently and out of oblivion of the provision of law and if such order or judgment is left intact it would result in perpetration of manifest injustice, it may exercise its inherent jurisdiction under S.561-A, Cr.P.C. to correct the manifest error floating on the record without involving long drawn process of arguments or reinterpretation or re-examination of facts without any attempt to arrive at any other conclusion which is also possible in the facts and circumstances of the case.

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

----S. 561-A---Inherent powers of High Court---Exercise of such powers under the principle of "stare decisis"---Under the stare decisis rule a principle of law which has been settled by a series of decisions generally is binding on the Courts, and should be followed in similar cases---Said rule is based on expediency and public policy and although generally it should be strictly adhered to by the Courts, yet it is not universally applicable---However, a rider has been added that previous decision should not be followed to the extent that grievous wrong may result therefrom---Courts ordinarily will not adhere, to a rule or principle established by previous decisious which they are convinced is erroneous---Rule of stare decisis is not so imperative or inflexible as to preclude a departure therefrom in any case, but its application must be determined in each case by the discretion of the Court and previous decisions should not be followed to the extent that error may be perpetuated and grievous wrong may result.

Maktul v. Manbhari AIR 1958 SC 918 ref.

Muhammad Nasrullah Siddiqui (called absent) for Appellant.

All Appellants in person.

Habib Ahmed, A.A.-G. for Respondent.

Azizullah K. Shaikh: Amicus curiae.

Dates of hearing; 26th and 29th July; 2004.

P L D 2004 Karachi 670

Before Syed Zawwar Hussain Jafferi, J

GHULAM ALI ---Applicant

Versus

Moulvi KHAIR MUHAMMAD and 5 others---Respondents

Criminal Miscellaneous Application No.44 of 2003, decided on 10th October, 2003.

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

----Ss. 337-A(i)/337-F(i)/337-H(ii)/147/148/504/114---Criminal Proce­dure Code (V of 1898), Ss.190 & 561-A---Refusal to summon the accused placed in Column No.2 of Challan --- Validity --- F. I. R. had disclosed a prima facie commission of the alleged offence---Specific role played by each accused was not only mentioned in the F.I.R. but also in other evidence collected by the prosecution---Report of the police officer was not binding upon the Court---Trial Court had taken the cognizance of the whole case and not of a particular matter---Trial Court as well as the Revisional Court had only considered the defence version and the affidavits sworn by the defence witnesses, but had ignored the prosecution case for issuing the process-- against the accused persons whose names had been mentioned in the Column No.2 of the Challan--­Impugned judgments of 'both the Courts below refusing to summon the said accused were consequently set aside and accused were directed by High Court to appear before the Trial Court to face the trial in the case---Petition was accepted accordingly.

Safdar Ali v. Zafar Iqbal 2002 SCMR 63; Shah Murad and others v. State (Criminal Petition No. 105-K of 2002); Inayatullah v. State 1999 PCr.LJ 731; Falak Sher v. State PLD 1967 SC 425; Mohammad Akbar v. State 1972 SCMR 335; Saeed Mohammad Shah v. State 1993 SCMR 550; Raja Mohammad Afzal v. Ch. Mohammad Altaf Hussain 1986 SCMR 1736; Khushbakhtur Rehman v. State 1985 SCMR 1314; Mohammad Hanif v. State 1979 PCr.LJ 1078; Nur Illahi v. State PLD 1966 SC 708; Waqarul Haq alias Nithoo v. State 1988 SCMR 1428 and Muhammad Sharif v. State 1997 SCMR 304 ref.

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

----S. 190---Cognizance of offences by Trial Court---Scope---Trial Court can summon the accused placed in Column No.2 of the Challan to face the trial and is not required under the law to record evidence at the first instance to ascertain as to whether a prima facie case is made out against them.

Shah Murad and others v. State (Criminal Petition No.105-K of 2002); Falak Sher v. State PLD 1967 SC 425; Mohammad Akbar v. State 1972 SCMR 335; Saeed Mohammad Shah v. State 1993 SCMR 550; Raja Mohammad Afzal v. Ch. Mohammad Altaf Hussain 1986 SCMR 1736; Khushbakhtur Rehman v. State 1985 SCMR 1314 and Muhammad Hanif v. State 1979 PCr.LJ 1978 ref.

Ali Nawaz Ghanghro for Applicant.

Muhammad Ashique Dhamraho for Respondents Nos. 1 to 5.

Gul Hassan Solangi for the State.

P L D 2004 Karachi 676

Before Sarmad Jalal Osmany and Amir Hani Muslim, JJ

Messrs A. G. PESTICIDES (PVT.) LTD. ---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitution Petition No. D-483 of 2002, decided on 11th June, 2004

Agricultural Pesticides Ordinance (II of 1971)---

----S.12---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Agricultural Pesticides Technical Advisory Committee--­Tenure---Dispute was with regard to registration of pesticide in the name of respondent---Plea raised by the petitioner was that the period of sub­committee constituted by Technical Advisory Committee had lapsed, therefore, recommendation of registration of the pesticide by the sub­committee was illegal---Validity---Federal Government could constitute Agricultural Pesticide Technical Advisory Committee under the provisions of S.12(1) of Agricultural Pesticides Ordinance., 1971, comprising of Chairman, Vice-Chairmen and other members, and the Committee was to be notified in the official Gazette---No specific period had been provided under the provisions of S.12 of Agricultural Pesticides Ordinance, 1971, with regard to such official members and/or office-bearers of the Committee whereas non-official members of the Committee were to hold office for three years subject to their re­appointment as provided under S.12(5) of Agricultural Pesticides Ordinance, 1971---No provision, existed which provided that an official member and/or office-bearer either of the Committee or sub-committee had to be appointed and notified again after lapse of three years---Mere recommendation by sub-committee, after the lapse of time provided in the notification, would not nullify the recommendation of the Committee as the time stipulated in the notification and/or in S.12 of Agricultural Pesticides Ordinance, 1971, would not extend to the official members/office-bearers of either of the committee or sub-committee---In absence of non-official members of sub-committee, it was not provided under S.12 of Agricultural Pesticides Ordinance, 1971, that the recommendations by the sub-committee would have no legal sanction--­Recommendations of sub-committee for registration of pesticide in favour of respondent was proper, irrespective of the lapse of time provided under the notification---Petition was dismissed in circumstances.

Gohar Iqbal for Petitioner.

Syed Zaki Muhammad, Dy. Attorney-General for official Respondents.

Date of hearing: 1st June, 2004.

P L D 2004 Karachi 681

Before Muhammad Mujeebullah Siddiqui and Muhammad Afzal Soomro, JJ

KHAN MUHAMMAD ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 144 of 2002, decided on 30th July, 2004.

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

----Ss. 9(c), 20 & 21---Appreciation of evidence---Memo. of the place of incident was not prepared---Ownership of the place of recovery of narcotics was not established---Prosecution evidence was contradictory in material particulars qua the contents of the bag of narcotics which was opened by the Trial Court, for which no explanation was available with the Investigating Officer---Mandatory provisions of S.20 of the Control of Narcotic Substances Act, 1997, having been violated, Investigating Officer had no justification for exercise of discretion vested under S.21 of the said Act---Conviction and sentence of accused were not sustainable in fact and law and the same were set aside accordingly.

The State v. Hemjoo 2003 SCMR 881 ref.

Appellant in person.

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

Date of hearing: 30th July, 2004.

P L D 2004 Karachi 687

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

Dr. Syed MUHAMMAD KHALID MOIN and 3 others---Appellants

Versus

THE STATE---Respondent

Special A. T. Jail Appeal No. 81 of 2002 and Confirmation case No. 13 of 2002, decided on 3rd June, 2004.

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

----S. 365-A/34---Anti-Terrorism Act (XXVII of 1997), Ss.6(2)(c) & 7(ii)---West Pakistan Arms Ordinance (XX of 1965), S.13(d)--­Appreciation of evidence ---Abductees had fully supported the prosecution case giving details of the incident from the time of their abduction till their release who had seen the accused during their abduction and captivity---Accused were also identified in the identification test before the Magistrate---Bank employees had further identified the accused who had encashed the cheques---Prosecution witnesses had no reason for false implication of accused in the crime and their evidence inspired confidence---Circumstantial evidence of incriminating recoveries from the accused had also connected them with the commission of the offence---Conviction of accused under S.365-A/34, P.P.C. was consequently upheld---Two businessmen, father and the son, had been abducted by the accused and threatened to death---Son was tortured in -the presence of his father ---Abductees were forced to sign the cheques and to talk to the Manager of the Bank to encash the same---Ransom amount was received by the accused---Acts of the accused must have .created terror in the business community--­Defence pleas taken by accused without any support or corroboration could not be relied upon in the presence of overwhelming prosecution evidence---Sentence of death awarded to each accused was affirmed in circumstances with some necessary amendments in other convictions and sentences.

Sher Muhammad v. State 1972 PCr.LJ 537; Bakhshish Elahi v. State 1977 SCMR 309; Muhammad Sharif v. State 1991 SCMR 1622; Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452; Ameer Umar v. State 1976 SCMR 338; Rehmuddin v. State 1973 SCMR 327 and Muhammad Rafiq v. State 1979 SCMR 378 ref.

(b) Administration of criminal justice--

----Conviction---Accused would be liable for conviction for an offence which was an offence at the time of its commission.

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

----S. 367(5)---Contents of judgment---Provision of S.367(5), Cr.P.C. is mandatory---Reasons for awarding lesser sentence instead of death sentence are to be mentioned in the judgment.

Bakhshish Elahi v. State 1977 SCMR 309; Muhammad Sharif v. State 1991 SCMR 1622; Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452 ref.

(d) Criminal trial---

----Sentence---Passing of sentence---Purpose---Purpose of sentencing a person is that it should play a deterrent role for others preventing them from committing such type of offences.

Bakhshish Elahi v. State 1977 SCMR 309; Muhammad Sharif v. State 1991 SCMR 1622; Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452 ref.

(e) Criminal trial---

----Sentence---Legal sentence awarded by Trial Court is not required to be interfered with unless some question of principle is involved.

Ameer Umar v. State 1976 SCMR 338; Rehmuddin v. State 1973 SCMR 327 and Muhammad Rafiq v. State 1979 SCMR 378 ref.

Azizullah K. Sheikh, Muhammad Ilyas Khan and Abdul Qadir Halepota for Appellants.

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

Dates of hearing: 11th and 18th May, 2004.

P L D 2004 Karachi 705

Before Anwar Zaheer Jamali, J

RICE EXPORT CORPORATION---Plaintiff

Versus

INT. EXPORTS-- -Defendant

Suit No. 1176 of 1989, decided on 12th September, 2003.

Contract Act (IX of 1872)---

----Ss. 148, 149 & 15----Bailment contract---Shortfall in the handling of goods handled by the defendant was much below the well recognized standard and it was due to natural causes which were beyond the control of defendant and not due to any negligence or act or omission on his part---Plaintiff, being specialized in dealing with such transactions, and aware of all such eventualities, had not got incorporated any specific clause in the agreement to meet such situation---Plaintiff, in circumstances could not claim benefit of its own unfair, rather dishonest attitude---Shortage of goods being a natural incident of contract, defendant could not be saddled with the responsibility to meet such loss---Contractual obligation of the defendant was to have exercised all care in respect of stocks including its by-products entrusted to it---No breach, however, in the present case was of such obligation by the defendant and the shortfall of goods had occurred due to natural causes, which were beyond the control of the defendant, and, in circumstances defendant was not liable to make good any such loss or damage.

Messrs Rice Export Corporation v. Messrs A.H. Corporation and 3 others 2002 C LC 607 applied.

The Textile Trading Company v. Habib and others PLD 1956 Sindh 17; Qasim Ali Rajab Ali v. Municipal Corporation of Karachi PLD 1964 Kar. 108; Somar Purl v Shyam Narain Gir and others AIR 1954 Pat. 586; Punjab National Bank Limited and another v. S B. Chaudhary AIR 1943 Oudh 392; U Thin and others v. DAW HMU and another AIR 1937 Rang. 142; Michal Assely and others v. Messrs Abdul Sattar and Brothers PLD 1960 Kar. 346: Messrs Hafiz Abdul Aziz Yousufani and Company v. Messrs Rauf Oil Mills and Soap Industries PLD 1967 Kar. 714; Sri Narasimhaswami Namagiri Amman and Sri Ranganathaswami Temples by its Executive Officer P. Rangaraju v. Muthukrishna Lyengar AIR 1962 Mad. 244; Messrs Mastersons v. Messrs Ebrahim Enterprises and another 1988 CLC 1381; The Lahore Central Cooperative Bank Ltd. Lahore v. Messrs Haji Allah Dad Fida Hussain Merchants and Commission Agents 1987 CLC 1435; Q.B.E. Insurance Ltd. v. The Trustees of the Port of Karachi 1992 CLC 804 and Messrs Rice Export Corporation v. Messrs A.H. Corporation and 3 others 2002 CLC 607 ref.

Samiuddin Sami for Plaintiff.

Syed Saeed Hassan Zaidi for Defendant.

Date of hearing: 12th September, 2003.

P L D 2004 Karachi 716

Before Muhammad Mujeebullah Siddiqui and Muhammad Afzal Soomro, JJ

Syed KHALID RAZA and 2 others---Appellants

Versus

THE STATE---Respondent

Spl. A.T.As. Nos.9 and 10 of 2004, decided on 21st July, 2004.

Anti-Terrorism Act (XXVII of 1997)---

----Ss. 11G(1)(a) & 11F(5)(6)---Appreciation of evidence---Trial Court after conviction of accused had not awarded to them the sentences provided in law---Contents of the F.I.R. had been totally ignored by the Trial Court in which the accused were shown to be workers of an Organization which was not a proscribed Organization---Accused had been arrested without any iota of evidence of collecting or soliciting donation for any proscribed Organization which showed the mala fides of the police---Neither any mashirnamas of the place of incident in the cases were prepared, nor any explanation for such omission was furnished---Police had concocted totally false cases against the accused and the conduct of the Trial Court was even more' shocking--­Convictions and sentences of accused were not maintainable in law and the same were set aside---Accused were acquitted accordingly.

Muddasar v. The State 1996 SCMR 3 and Masho Khan v. The State 2002 PCr.LJ 1478 ref.

Nehal Hashmi and Muhammad Junaid Farooqui for Appellants (called absent).

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

Dates of hearing: 20th and 21st July, 2004.

P L D 2004 Karachi 728

Before Rahmat Hussain Jafferi and Maqbool Baqar, JJ

HABIB-UR-REHMAN UNAR and others---Petitioners

Versus

GOVERNMENT OF SINDH through Secretary Irrigation and Power Department and others ---Respondents

Constitutional Petitions Nos.D-72, D-711, D-74, D-75, D-77; D-78 of 2004, D-940 of 2002, D-529 and D-530 of 2003, C.M.A. No.248 of 2004 in C.P. No.D-212 of 2003, C.M.A. No.872 of 2003 in C.P. No.D-974 of 2002, C.M.A. No.807 of 2003 in C.P. No.D-976 of 2002, C.M.A. No.247 of 2004 in C.P. No.D-961 of 2002 and C.M.A. No.1982 of 2003 in C.P. No.D-149 of 2003, decided on 11th May, 2004.

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

----Art.199---Constitutional jurisdiction of High Court--- cope---High Court may make an order directing a person performing in Province, the functions in connection with the affairs of Federation, the Province or local authority, to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do; or declare that any act done or proceedings taken in the Province by such person or local authority has been done or taken without lawful authority and is of no legal effect---Proceedings under Constitutional jurisdiction are summary proceedings which are reserved for extraordinary cases where the exceptional powers of the Court are invoked.

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

----Art.199(1)(a)(i)---Writ of mandamus---Object and scope---Writ of Mandamus is usually to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers when there is no other adequate and specific legal remedy and without which there would be a failure of justice---Mandamus cannot confer a new authority and is neither a law nor a source of law.

The State of Pakistan v. Mehrajuddin PLD 1959 SC 147 ref.

(c) Constitution f Pakistan (1973)---

---Art. 199(1)(a)(i)---Writ of mandamus, invoking of---Locus standi--­Person claiming mandamus, in order to be entitled to receive, such person must at least have a clear legal right to the performance by the respondent of the particular duty sought to be enforced---Right founded purely on private contract, however clear it may be, is not enforceable by mandamus.

The State of Pakistan v. Mehrajuddin PLD 1959 SC 147 ref.

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

----Art.199(1)(a)(i)---Writ of mandamus---Duties of public officers--­Enforcement---Duty of public officer must be the one which is clearly defined, imposed or enjoined by law as a duty resulting from the office---Mandamus can be used only for the purpose of enforcing a public duty and not for the purpose of enforcing a liability---Writ of Mandamus only lies to enforce a substantive duty corresponding to a substantive right as distinguished from a duty corresponding to a remedial right under the law---Object of writ of Mandamus is to enforce plain, positive, specific and ministerial duty presently existing and imposed by law upon officer.

The State of Pakistan v. Mehrajuddin PLD 1959 SC 147 ref.

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

----Art.199(1)(a)(i)---Writ of mandamus, issuance of---Pre-conditions.

Following facts are required to be proved to exist before an order of mandamus can be issued:

(i) Petitioner must have a legal right to the performance by the public officer of the particular duty sought to be enforced.

(ii) The duty of public officer which is to be enforced, is plain, positive, specific and ministerial duty presently existing and imposed by law upon the officer.

(iii) No other adequate or specific legal remedy, available without which there would be a failure of justice.

Masdul Hassan v. Khadim Hussain PLD 1963 SC 203 ref.

(f) Ministerial act---

---- Connotation---Ministerial act is one which a person performs in a. given state of facts and in a prescribed manner in obedience to the mandate of legal authority, without regard to his own judgment on the propriety of the act being done.

Extraordinary Legal Remedies by Ferris ref.

(g) Ministerial act---

----" Ministerial act" and "judicial act" ---Distinction between ministerial and judicial and other official acts is, that where the law prescribes and defines the duty to be performed with such precision and certainty as, to leave nothing to the exercise of discretion or judgment, the act is ministerial; but where the act to be done involves the exercise of discretion or judgment in determining whether the duty exists, it is not to be deemed merely ministerial.

Extraordinary Legal Remedies by Ferris ref.

(h) Legal right---

----Meaning---Legal right is a right which is derived from law.

The State of Pakistan v. Mehrajuddin PLD 1959 SC 147 ref.

(i) Constitution of Pakistan (1973)---

----Arts.4, 25 & 173---Contract by Executive authority of State--­Principles.

In the field of contract, there are following two situations which should be kept in mind.

(i) Situation at the time of entering into contract.

(ii) Situation after the execution of contract.

On the State's executive powers under Art.173 of the Constitution, limitation or obligation is imposed by Arts.4 and 25 of the Constitution, therefore, equality of opportunity should be applied to matters of public contracts. State has a duty to observe equality. 'In a contract, an ordinary individual can choose not to deal with any person but the Government cannot choose to exclude persons by discrimination. At the stage of entering into a contract (situation No.i) the State acts purely in its executive capacity. State is bound by its obligations to individual citizens, which enter into every exercise of its Constitutional powers. Rule of law, which regulates the operation of organs of Government functionaries under the Constitution, is that all the Constitutional powers carry corresponding obligations with them. At such stage there should be no discrimination to exclude any person. If the State or its agents have executed a contract and entered into the field of contract (situation No.ii), then the relations are no longer governed by the Constitutional provisions but by the legally valid contract which determines rights and obligations of the parties inter se. When the State or its agents purporting to act within the field of contract perform any act, no question arises of violation of Arts.4 and 25 of the Constitution. In such field parties can only claim rights conferred upon them by contract and are bound by the terms of contract only unless some statute steps in and confers some special authority, power or obligation on the State in the contractual field which is separate from the contract.

Premji Bhai v. Delhi Development Authority AIR. 1980 SC 738 and Erusian Equipment and Chemical Ltd. v. State of West Bengal AIR 1975 SC 266 ref.

(j) Constitution of Pakistan (1973)---

---Art.199(1)(a)(i)---Constitutional petition---Maintainability---Writ of mandamus—Contractual liability---Enforcement---Alternate remedy non-availing of---Petitioners were awarded contracts which they had performed and received part payments but the authorities had not paid the balance payments---Authorities did not refuse to make payments of balance amount but payments were delayed for want of funds---One of the terms of work orders was that the payments would be made subject to the availability of funds---Plea raised by -the authorities was that the writ of mandamus could not be issued in case of contractual obligations--­Validity---Officials by themselves had no power to release the amounts unless Government provided the funds to them---As the required funds had not been provided by the Government, therefore, the officials could not be compelled through the orders of mandamus to perform their duties which were not within their powers---Adequate and specific remedy was provided by filing a suit for recovery of amount, specific performance of contract or damages---Petitioner failed to prove the points required for the issuance of order of mandamus---Constitutional petition to enforce the contractual obligation did not lie---Petition was dismissed in circumstances.

Muhammad Tufail Tarar v. Government of Punjab 1999 CLC 1937; United International Associates v. Province of Punjab 1999 MLD 2745; Mahmood Ali Butt v. Inspector-General of Police PLD 1997 SC 823; Owaisco v. Federation of Pakistan PLD 1999 Kar. 472, Pacific Multi National (Pvt.) v. IGP Police PLD 1992 Kar. 283(DB), Multilines Associates v. Ardeshir Cowasjee PLD 1995 SC 423 distinguished.

C.Ps. Nos. D-1003; D-780 of 2002; D-1005 of 2001; D-72 of 2003; 976; D-961 and D-462 of 2002 ref.

The State of Pakistan v. Mehrajuddin PLD 1959 SC 147; Muzaffaruddin v. Chief Settlement Commissioner 1968 SCMR 1136; Shamshad Ali v. Commissioner 1969 SCMR 122; Momin Motor Co. v. R.T.A. Dacca PLD 1962 SC 108; Abid Hussain v. Government of Sindh PLD 1984 Kar. 269; Premji Bhai v. Delhi Development Authority AIR 1980 SC 738; Har. Shankar v. The Deputy Excise and Taxation Commissioner 1975 SC 1121; Radhakrishna Agarwal v. State of Bihar AIR 1977 SC 1496; Lekhraj Sathramdas v. N.M. Shah AIR 1966 SC 334; Bachanidhi Rath v. State of Orissa AIR.,1972 SC 843; Divisional Forest Officer v. Bishwanth Tea Co. Ltd. AIR 1981 SC 1368; E.G.F. Co-operative Society y. Sipahi Singh AIR 1977 SC 2149; Punjab National Bank v. P.K. Nillal AIR 1989 SC 1076 and Province of the Punjab v. S. Muhammad Zafar Bukhari PLD 1997 SC 351 rel.

(k) Constitution of Pakistan (1973)---

----Art.204---Contempt of Court proceedings---Maintainability--­Petitioners were awarded contracts which they had performed and received part payments but the authorities had not paid the balance payments---Authorities did not refuse to make payments of balance amount but payments were delayed for want of funds---One of the terms of work orders was that the payments would be made subject to the availability of funds---Plea raised by the petitioners was that the authorities were guilty of contempt of Court---Validity---Officials were not competent to execute the orders as the performance depended upon providing funds through budget which was to be provided by the Government---Budget could be granted by taking into consideration several factors involving exercise of discretion and judgment and further considering many complex matters, such as financial constraints, availability of funds and so on---Contempt application was not maintainable and was dismissed in circumstances.

Islamic Republic of Pakistan v. Muhammad Saeed PLD 1961 SC 192 ref.

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

-----Art.204---Contempt of Court---Nature of proceedings---Official designations-- Application against official designations was filed without naming such officials---Validity---Contempt proceedings were to be filed against a person by name who had allegedly violated the order of the Court so that lie could be convicted if found guilty---Contempt application could not be filed against designations, therefore, the same was dismissed in circumstances.

Bhajandas Tejwani and Muhammad Haroon Memon for Petitioners.

Mumtaz Ali Siddiqui State Counsel (Finance Department) through Abdul Qadir Shaikh for Respondents:

Date of hearing: 10th March, 2004.

P L D 2004 Lahore 1

Before Mian Saqib Nisar, J

MOHSIN KHAN and 3 others---Petitioners

Versus

AHMAD ALI and 2 others---Respondents

Civil Revision No. 1469 of 1996, decided on 1st October, 2003.

(a) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)-----

----S. 2-A---Custom---Succession---Last male owner died in year 1926 leaving behind a daughter and widow---Mutation of inheritance giving whole estate of deceased to widow---Effect---Widow could have taken whole estate of deceased either as a widow under custom as limited owner or to the extent of 1/8th share under Islamic Law---Mutation giving whole estate to the widow would necessarily and essentially mean that she had got property not under Islamic Law, but as per custom---Had such not been under the custom, widow would not have got whole estate mutated in her favour---Widow, held, was not the limited owner.

(b) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)----

----S. 3---Gift of property by widow as limited owner---Validity---Such ownership would terminate on enforcement of S.3 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and property for purposes of inheritance would revert back to last male owner---Gift made before such law by widow as limited owner would be absolutely illegal and void for not being absolute owner of property- Distribution of share in estate left by last male owner would be on the basis of Islamic Law, according to which widow would get 1/8th share out of total estate, whereas ½ excluding 1/8th share would go to the daughter and remaining ½ to collateral.

Manzoor Ahmed Khan v. Nasrullah Khan 1999 YLR 27; Ghulam Zohra and others v. Faisal Farooq and others 2000 YLR 1971; Mst. Faiz Elahi v. Muhammad Anwar 2001 YLR 2174 and Mst Noor Fatima v. Shah A 2002 CLC 689 ref.

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

----S. 3---Suit by co-owner seeking share of inheritance---Limitation---For such co-owner, particularly in possession there was no limitation.

(d) Islamic Law---

----Inheritance---Limitation would not apply to enforcement of right of inheritance in estate of deceased predecessor.

Ghulam Ali and others v. Mst. Ghulam Sarwar and others PLD 1990 SC 1 fol.

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

----O. XXIII, R. 1(3)---Fresh suit after withdrawal of earlier suit without permission---Burden of proof---Contention of defendant was that fresh suit was barred in view of admission made by plaintiff's witness in cross ­examination as to filing and withdrawal of earlier suit---Validity---No further question had been put to such witness as to whether such withdrawal was with or without permission of the Court---Onus to prove such plea was on the defendant, who had failed to adduce any evidence to strictly establish that earlier suit was based upon same cause of action and had been withdrawn without permission of Court---In absence of plaint of earlier suit and order of Court fresh suit could not be held to be hit by O.XXIII, R.1, C.P.C.

Syed Ijaz Qutab for Petitioners

Syed Maqbool Hussain for Respondents.

Date of hearing: 1st October, 2003.

P L D 2004 Lahore 7

Before Syed Zahid Hussain, J

NASEER ALI SHAH---Petitioner

Versus

ABDUL GHANI --- Respondent

Civil Revision No. 163 of 2003, heard on 23rd September, 2003.

Tort---

---Defamation---Suit for recovery of damages---Quantum of damages--­Circulation of pamphlet containing some serious allegations against plaintiff like, very mean'police tout' and `enemy of humanity' was not denied by the defendant- Defendant was bound to prove correctness and verity of said allegations which per se were defamatory to person, character and reputation of plaintiff---No cogent and convincing evidence was produced by defendant to justify such defamatory remarks against plaintiff, except the assertion that plaintiff, who was a poet, also had been writing poems, some of which were considered by defendant as derogatory to him, but perusal of poems brought on record did not give any such impression---Even if said poems were derogatory, defendant could avail remedy qua the same instead of handing-out such a defamatory pamphlet about plaintiff---Appellate Court had rightly decreed the suit holding that no basis existed for leveling such allegations against plaintiff---Finding off Appellate Court based on evidence on record, could not be differed with---Dignity, honour and reputation of a person was most valuable asset one could possess and enjoy and it was not measurable or calculable in terms of money---Such a right, which was regarded by Constitution as fundamental, could not be allowed to be infringed or trampled---Suit amount of damages of Rs.25,000 awarded by Appellate Court, however, was reduced to Rs.15,000 which would vindicate and serve the ends of justice.

Aziz Ahmad Malik for Petitioner.

Malik Muhammad Qasim Joya for Respondent.

Date of hearing: 23rd September, 2003.

P L D 2004 Lahore 9

Before M. Bilal Khan, J

IRSHAD AHMED and others---Petitioners

Versus

DIRECTOR, ANTI-CORRUPTION, LAHORE and others---Respondents

Writ Petition No.255 of 2001, decided on 21st October; 2003.

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

----Ss. 420/468/409/109---Prevention of Corruption Act (II of 1947)., S.5(2)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R.---Manner in which the transaction regarding the sale of shop in question had taken place had raised a lot of doubts--­Prima facie, an attempt appeared to have been made to evade the Government revenues by executing and getting registered a gift deed--­Matter, thus, needed a thorough investigation---Defence offered by the accused did not present any special feature which could warrant quashing of F.I.R. which was an extreme step resorted to only in very rare cases--­High Court in its Constitutional jurisdiction declined to extend the 'protection of law to a person to retain a gain, privilege or benefit which, prima facie, appeared to have been acquired by manipulation etc.--­Constitutional petition was dismissed in circumstances.

Muhammad Riaz Akhtar v. Sub-Registrar and 7 others PLD 1996 Lah. 180; Muhammad Aslam v. Sub-Registrar and others 1995 CLC 674 and Abdul Haq and others v. Province of Sindh and others PLD 2000 Kar. 224 ref.

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

----Art. 199---Penal Code (XLV of 1860), Ss.420/468/409/109--­Prevention of Corruption Act (II of 1947), S.5(2)---Constitutional jurisdiction---High Court in exercise of its Constitutional jurisdiction does not extend the protection of law to a person to retain a gain, privilege or benefit which, prima facie, appears to have been acquired by manipulation etc.

Abdul Haq and others v. Province of Sindh and others PLD 2000 Kar. 224 ref.

Mirza Aziz-ur-Rehman for Petitioners.

Rana Muhammad Saleem for Respondent No.4.

Daud Khan, Inspector Anti-Corruption Establishment (in person).

P L D 2004 Lahore 12

Before Hian Saqib Nisar, J

Mst. BHAGAY---Petitioner

Versus

Mst. FATIMA BIBI---Respondent

Civil Revision No.544 of 1998, heard on 24th September, 2003.

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

--O. XLI, R.22 & S.115---Filing cross-objections by respondent in appeal and revision---When respondent in an appeal had not attacked the decree or sought its reversal or modification, but only intended to challenge findings of the Court below on one of the issues involved in the lis, he could always make oral submissions to assail findings on issue going against him---Said rule was primarily enunciated in matters relating to appeals---Cross-objections could also be filed in revisional proceedings---If cross-objections-were not filed by respondent, an analogy could safely be drawn to hold that while arguing a revision, respondent, who was not challenging the decree in his favour, but only the findings on a particular issue, could assail same during course of his oral submissions---High Court under S.115, C.P.C. could make such order in a case as it would think fit, which meant that in exercise of supervisory jurisdiction, if a material irregularity or error of jurisdiction would come to its notice, it could suo motu interfere in the interest of justice and correct findings of issue.

Khairati and others v. Aleem-ud-Din and others P L D 1973 S C 295 and Zakirullah Khan and others v. Faizullah Khan and others 1999 S C M R 971 ref.

(b) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----S. 3---Specific Relief Act (I of 1877), S.42---Inheritance---Termination of limited estate under custom---Suit for declaration---Original owner having died, his land was inherited by his three sons A, B & C, each having 1/3 share---'A' who was owner of 1/3 share in land, died and according to custom prevailing at the relevant time, his widow became limited owner of his land---On re-marriage of widow of A', her limited ownership extinguished and land of 'A' went to his daughter/plaintiff under custom---Said daughter also having married, according to custom, half of share of estate of 'A' was mutated in the name of his brother 'B' and other half in favour of widow of his other brotherC'---When B' also died his half share went to two widows of his deceased son and one of said widows gifted her share to defendants, daughters ofC' and widow of C' also gifted away her share to her daughter which had come to her as limited owner---Plaintiff/daughter ofA' in her suit had claimed that she being daughter of 'A' was entitled to her share in the estate left by her deceased father under Islamic Law on account of termination of estate of female limited owners under S.3 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962---Widow of C' who was limited owner, could not make gift of that part of share which she received on death of 'A' being widow of his brother 'C Gift made by her to defendants thus was invalid---BrotherB', who after death of A' and after re-marriage of widow of 'A', though had inherited land of 'A' under custom, but had become complete and full owner and for purposes of inheritance of his estate, it was hierarchy of his legal heirs, who would be entitled to his land and same would not revert back to his deceased brother 'A' on enforcement of S.3 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 which was only restricted to female limited owner and not to the males---Plaintiff being daughter ofA' was entitled to 5/16 share in estate of her deceased father and not 1/2 as claimed by her---Suit filed by plaintiff which was within limitation was decreed accordingly.

Murad v. Karam and others 1987 SCMR 2008 and Ghulam Ali and others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 ref.

Shafqat Mahmood for Petitioner.

Chaudhry Manzoor Hussain Basra for Respondent.

Date of hearing: 24th September, 2003.

P L D 2004 Lahore 17

Before Muhammad Sair Ali, J

MUHAMMAD RAMZAN---Petitioner

Versus

FATIMA and 30 others---Respondents

Writ Petition No.6065 of 1999, heard on 25th September, 2003.

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

---Ss. 96 & 115---Remedies of appeal and revision---Object and scope--­Converting of one remedy into the other---Principles---Any person submitting to the jurisdiction of the Court enjoying revisional as well as appellate powers should normally be allowed by such Court a contest on merits upon allowing free intra-Court conversion of remedies---Invocation of remedy of a revision petition or an appeal is regulated under the prescribed provisions of law and each has its well-defined legal parameters---In certain cases scope of one remedy can overlap or can be genuinely mistaken or can even otherwise be confused with the other--­Object of both the remedies is to bestow upon the litigant another tier to seek rectification of the orders/judgments/decrees assailed therein--Both the remedies are vehicles to have access to justice and to correct injustice or wrong occurring in adjudication of a subordinate Court---Object of law providing various remedies is to safeguard a legal right and to cure damage done to such right---Denial of anyone remedy is denial of right sought to be enforced---Court should allow conversion of revision into appeal without demur in absence of an insurmountable legal impediment---If a Court under law is the seat of revisional as well as appellate jurisdiction, denial of conversion by such Court, in absence of compelling reasons, amounts to stiffing the remedy otherwise guaranteed to a person under law---Conversion should not be taken to be bounty of Court---Same is a vested right of a litigant to avail the remedy to which he is entitled either through direct institution or through conversion, if the litigant has invoked the wrong remedy or the wrong law.

Muhammad Hanif v. Muhammad and others PLD 1990 SC 859 ref.

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

----Ss. 96 & 115---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Converting of revision into appeal---Grievance of the petitioner was that the Appellate Court had declined to convert his civil revision into appeal--- Reasons advanced by the Appellate Court for declining such conversion was non-affixing of documents with the civil revision---Validity---Such failure could not be categorized an insurmountable impediment to deny the right---Compliance with formalities or procedures could have been obtained subsequent to conversion or along with conversion---Appellate Court should have decided the revision as appeal by evaluating comparative merits of the case of the parties---Orders of Appellate Court were without jurisdiction, arbitrary, illegal, unjust and inequitable---High Court in exercise of Constitutional jurisdiction, converted the revision, filed by the petitioner, into appeal and remanded the appeal to Appellate Court for decision afresh---Petition was allowed accordingly.

Muhammad Hanif v. Muhammad and others PLD 1990 SC 859 and Abdul Aziz and others v. Sheikh Abdur Rehman and others PLD 1984 SC 164 ref.

Ch. Abdul Rehman Madni for Petitioner.

Mian Muhammad Ashraf Tanvir for Respondents Nos. 1 and 2.

Date of hearing: 25th September, 2003.

P L D 2004 Lahore 21

Before Muhammad Sair Ali, J

MUHAMMAD NAWAZ---Petitioner

Versus

BARKAT ALI --- Respondent

Civil Revision No.689 of 2003, heard on 24th September, 2003.

(a) Affidavit----

---- Counsel and client---Swearing of affidavit by counsel on behalf of his client---Impropriety---Deponent counsel should abstain from swearing such affidavit---Counsel has moral and legal duty to conduct himself above board as a counsel and not to become party in suit.

(b) Words and phrases--

----"Legal proceedings"---Meaning---All steps in action or suit to ensure progress of case for its ultimate adjudication are "legal proceedings" for being backed by due authorization and sanction of law.

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

----Art. 129(e)---Judicial proceedings---Setting aside of such proceedings on the basis of affidavits---Principles---Proceedings or case events written, recorded and signed during normal course of business by Judges of Courts are sanctimonious and conclusive unless otherwise proved through irrefutable evidence---Value and status attached to routine proceedings and orders recorded by a Civil Judge regarding ordinary case events in a trial cannot be lightly displaced by producing affidavits alleging proceedings to be wrong---Allegations of wrong recording of case events involve serious and complex ramifications---If the allegations were true, it would vitiate the trial and make the Judge presiding over the trial, liable to be proceeded against---To disregard or disbelieve proceedings of case events as wrongly and falsely recorded by a Judge, the Appellate or Revisional Court must have strong evidentiary basis and profound reasons---Civil Judges and all other Judges of subordinate Courts are as worthy of respect and honour in discipline of justice administration as those of any higher Court---Orders, judgments, decrees and proceedings of the Judges of subordinate judiciary are judiciously and legally examined by Courts of appeals, revision or superintendence ---Factual allegations should not be lightly accepted to label the proceedings of Court as wrongly recorded without taking evidence in an inquiry.

(d) Civil Procedure Code (V of J908)-----

----O. XIX, R.3---Affidavit---Admissibility---Procedure---Filing of counter-affidavit---Effect---Affidavit, ipso facto is not admissible in evidence and its contents cannot be accepted ipsi dixit without cross ­examination of deponent---Immaterial whether a counter-affidavit is filed by opposite side or not---Duty of Court is to call for record, direct cross ­examination of deponent and take evidence to form opinion.

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

----O. XVII, R. 3 & O. XIX, R.3---Qanun-e-Shahadat (10 of 1984), Art., 129(e)---Closing of evidence---Setting aside of judgment on the basis of affidavit---Despite many opportunities, the defendant failed to produce his evidence---Trial Court in exercise of powers under O.XVII, R.3, C.P.C. closed the right of defendant to produce evidence and the suit was decreed in favour of the plaintiff---Counsel for defendant filed his personal affidavit wherein he denied giving of the opportunities by the Trial Court---Appellate Court accepted the affidavit, allowed the appeal and remanded the case to Trial Court for recording of evidence and re­ decision of the case---Plea raised by the plaintiff was that the proceedings could not be set aside on the basis of affidavit especially when the deponent was not cross-examined---Validity---Affidavit of the deponent counsel was inadmissible and could not have been ipso facto relied upon by the Appellate Court to upset the conclusive proceedings of case events recorded by the Trial Court---As the defendant had failed to produce his remaining evidence in the suit, despite numerous adjournments allowed on his request, the Trial Court had validly exercised his discretion under O.XVII, R.3, C.P.C. to close the defendant's right to produce further evidence---Plaintiff had also proved his case through adequate and credible evidence which was duly and properly evaluated and appreciated by the Trial Court to pass a decree in favour of the plaintiff---Judgment passed by the Court was set aside and that of the Trial Court was restored.

Katta R. Venkatesayya and another v. Muhammad Ghouse Saheb AIR 1944 Mad. 45.0; Reg v. Aaron Mellor 27 LJNS 121; Muhammad Zaman v. Abdul Ghaffar and 3 others PLD 1980 Lah. 582; Muhammad Sharif and others v. Muhammad Safdar and others 1987 CLC 2482; Mian Inam Karim and others v. Mirza Israrul Qadir and others 1983 CLC 1648 and Ghulam Rasool v. Ch. Din Muhammad PLD 1967 Lah. 665 ref.

Miss Aliya Neelum for Petitioner.

Sardar Muhammad Ramzan for Respondent.

Date of hearing: 24th September, 2003.

P L D 2004 Lahore 31

Before Muhammad Akhtar Shabbir, J

USMAN ALI and 5 others---Petitioners

Versus

MEMBER (JUDICIAL-III), BOARD OF REVENUE, PUNJAB, LAHORE and 81 others---Respondents

Writ Petition No. 12742 of 2003, heard on 13th October, 2003.

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

----S. 163---Punjab Board of Revenue Act (XI of 1957), S.8---Review by Board of Revenue---Scope and extent---Mistake or error on the face of record---Meaning.

The scope of exercise of power of review in terms of Order XLVII, rule 1, C.P.C. and section 8 of Punjab Board of Revenue Act, 1957 was limited and interference would be made if Court was satisfied on discovery of new and important matter, which, after exercise of due diligence, was not within knowledge or could not be produced by concerned party at the time when decree was passed or order made on account of some mistake or error apparent on the face of the record, or for any other sufficient reason.

The provision of review is provided in section 163 of Land Revenue Act, and subsection (2) of this section of the Act envisaged that any person considering himself aggrieved by an order passed by a Commissioner, Collector or an Assistant Collector, and who, from the discovery of new and important matter of evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was passed or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the order passed against him, may-apply for a review of the order to the Commissioner, Collector or Assistant Collector, as the case may be, and such officer may modify, reverse or confirm any order "passed by himself or by any of his predecessor-in-office.

Section 8 of Punjab Board of Revenue Act, 1957, confers power of review on the Member, Board of Revenue subject to certain conditions contained in that section.

The powers of review of the Member Board of Revenue are same as conferred by Order XLVII; rule 1, C.P.C. and a decree or order can be reviewed on account of (1) discovery of new and important matter of evidence which, after due diligence, was not within his knowledge or could not be produced by him at the time when the order was passed or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of decree passed or order made against, him, may apply for a review of the judgment to the Court which had passed the same. (2) The discovery of new and important matter or evidence would mean that where important evidence having a material bearing upon the merits of the case is subsequently discovered, three courses are open to such party (i) it may apply for review of judgment after judgment has been pronounced, or (ii) it may apply for admission of fresh evidence before judgment is pronounced, or (iii) it may appeal from the judgment and apply for admission of additional evidence before the Appellate Court and a party applying for review under this ground should establish that there was no negligence on its part.

The mistake or error on the basis of record would mean such mistake or error may be one of law or fact and should be apparent on the face of the record, it should be self-evident from a perusal of the record itself, and should not require any extraneous evidence to establish it and it should be established without elaborate arguments. It should be so manifest and clear as cannot be permitted by any Court to remain on record and the error must also have a material bearing on the fate of the case.

Kalsoom Malik v. Assistant Commissioner 1996 SCMR 710 ref.

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

----O. XLVII, R. 1---"Review"---"Appeal"---Distinction illustrated.

There is a distinction between appeal and review. The points of distinction are as follows:--

"A review is not the same thing as, or a substitute for an appeal The two proceedings differ in very many particulars:

(i) The primary intention of a review is the reconsideration of the subject of the suit by the same Judge under certain conditions, while an appeal is a re-hearing by another Tribunal.

(ii) A point which may be good ground of an appeal may not be a good ground for an application for review. Thus, an erroneous view of evidence or of law is no ground for a review though it maybe a good ground for an appeal.

(iii) A review does not, of necessity, re-open questions already decided between the parties. The matter in issue is only re-opened when the application for review is accepted, while in the case of an appeal, the matter is re-opened as soon as an appeal is admitted."

Chitaley's Commentary on Rule 1, O.XLVII, C.P.C. quoted

(c) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)-----

----S. 10---West Pakistan Land Revenue Act (XVII of 1967), S.163--­Constitution of Pakistan (1973), Art.199---Constitutional petition--­Consolidation Scheme, after confirmation had been incorporated in the Record of Rights and all the three Consolidation Officers while passing the orders had examined the record and calculated the entitlement of the shareholders of the Wandas---Board of Revenue, while passing the review order against such Scheme had not assigned sufficient reasons, hence, the same being not in consonance with the provisions of law, was not sustainable which was declared ,by the High Court to have been passed illegally, without lawful authority and thus was of no legal effect.

Chudhary Inayat Ullah Khan for Petitioners.

Sardar Muhammad Aslam Sakhera for Respondents.

Date of hearing: 13th October, 2003.

P L D 2004 Lahore 38

Before Muhammad Ghani, J

SHAH MUQEEM PRESS CLUB---Petitioner

Versus

CHIEF MINISTER and others---Respondents

Writ Petition No. 12156 of 2003, decided on 22nd September, 2003

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

---------Arts. 199 & 248(1)---Constitutional petition against Chief Minister and Minster---Not maintainable as mandated by, Art. 248(1) of the Constitution.

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

----Arts. 199 & 248(1)---Punjab Financial Rules, Vol. I, R.8.15--­Earmarking of Government property for construction of Press Club and announcement of grant thereof by Chief Minister and Minister--­Constitutional petition challenging such action on basis of news item appearing in newspaper without producing any formal order in support thereof---Maintainability---Contention of petitioner was that without prior permission and. sanction of Board of Revenue, such property could not be given to the Press Club---Validity---No formal order had been placed on record---Constitutional petition conspicuously omitted mention of parting with such property---Authenticity, of news item could not be vouchsafed---Maintainability of such Constitutional petition thus would be questionable---Such contention would necessarily require holding of factual enquiry, which exercise could not be undertaken by the High Court in summary proceedings under Art. 199 of the Constitution---High Court dismissed the Constitutional petition in limine.

(c) Constitution of Pakistan (1973)--

---Arts. 120(1), 123(1) & 124---Punjab Financial Rule's, Vol. I, R.8.15--­Sanctioning of "grants-in-aid" to Press Clubs. Bar Associations, Cultural Associations and N.G.Os. etc., by Chief Minister and Minister--­Validity---Such grants would be covered by 8.8.15 of Punjab Financial Rules, under which Chief Minister and Minister had the power to sanction.

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

----Art. 199---Specific Relief Act (I of 1877), S.54---Civil Procedure Code (V of 1908), O.XXXIX, R.2(3)---Constitutional petition---Suit for injunction to restrain defendants from illegally establishing Press Club and to get the same registered---Issuance of certificate of registration by Registrar despite restraint order passed by Civil Court ---Validity--­Nothing was available on record in proof of service of the Registrar--­Order sheet showed that summons had been received back unserved---Suit was still pending---Alternate efficacious remedy under O. XXXIX, R.2(3), C.P.C., was available to the petitioner---Petitioner, if proved breach of restraint order, could be granted appropriate relief including restoration of status quo ante and such relief was not possible without recording of evidence, which exercise could not be undertaken in Constitutional jurisdiction---High Court dismissed the Constitutional petition in limine.

Raja Mehmood Akhtar for Petitioner.

Akhtar Ali Kureshe, A.A.-G. (on Court's call)

P L D 2004 Lahore 43

Before Mian Saqib Nisar, J

MUHAMMAD ZAFARULLAH KHAN and 3 others---Petitioners

Versus

HASAN MUHAMMAD and another---Respondents

Civil Revision No. 1267-D of 1997, heard on 10th October, 2003.

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss. 3, 6 & 13---Suit for pre-emption ---Superior right of pre-emption--­Making of Talbs---Four pre-emptors who filed suit for pre-emption were found having superior right by Trial Court and said finding of Trial Court had neither been challenged by the defendants in appeal nor by filing cross appeal nor verbally and same remained intact---Two of the pre-emptors had withdrawn from contesting suit and other two remained in field---Said two pre-emptors who had not withdrawn from the suit, could not be non ­suited on the ground that pre-emptors, who had withdrawn from contesting suit, had failed to establish the Talbs, though having right of pre-emption.

(b) Punjab Pre-emption Act (IX of 1991)-----

----Ss. 3, 6 & 13---Suit for pre-emption ---Doctrine of sinker, applicability of---Provision of S.3, Punjab Pre-emption Act, 1991, provided that if there were more than one pre-emptors and any one of them had failed to prove the Talbs', but otherwise, had a right of pre-emption, it was he who would be non-suited and case would proceed for remaining plaintiffs as if the pre-emptor failing to establish the Talbs was not a party to the proceedings---If, however, a co-plaintiff had no right of pre-emption, irrespective of the fact whether he had made and proved the Talbs, the principle ofSinker' would apply and the other plaintiff would also suffer entailing dismissal of their suit on account of joining alongwith them a stranger to the cause.

(c) Punjab Pre-emption Act (IX of 1991)---

----Ss. 3, 6 & 13---Civil Procedure Code (V of 1908), S.115---Suit for pre­emption ---Making of Talbs---Only one of the two plaintiffs had appeared as his own witness to state about making of Talb-e-Muwathibat, but such statement was not corroborated by any witness and as such the same had rightly been disbelieved by two Courts below---In absence of misreading or non-reading of evidence on record, case was not fit for interference in revisional jurisdiction by High Court as far as finding of Courts below on issue of Talb-e-Muwathibat, was concerned---When plaintiffs had failed to prove Talb-e-Muwathibat, making or otherwise of valid Talb-e-Ishhad, was immaterial.

Ch. Mushtaq Ahmad and Ch. Muhammad Zafar Iqbal for Petitioner.

Syed Muhammad Zain-ul-Abedin for Respondents.

Date of hearing: 10th, October, 2003.

P L D 2004 Lahore 47

Before Tanvir Bashir Ansari, J

BOSTAN---Petitioner

Versus

LAND ACQUISITION COLLECTOR, RAWALPINDI and 4 others---Respondents

Writ Petition No.79 of 1995, decided on 22nd September, 2003.

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

---S. 3(f)---Acquisition of land---"Public purpose''---Connotation----Anything which is useful to public in the sense of conferring some public benefit or conducive to some public advantage is a public purpose.

Federation of Pakistan v. Province of Punjab and 2 others 1993 SCMR 1673 and Dr. Muhammad Nasim Javed v. Lahore Cantonment Housing Society Ltd. and 2 others PLD 1983 Lah. 552 ref.

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

----Ss. 4, 5, 5-A, 17 & 41---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Acquisition of land---Public purpose--- Setting up of housing colony by Army Welfare Trust---Diverting from the object of acquisition of land---Grievance of land owners was that the trust was a society registered under Societies Registration Act, 1860, and the land acquired was for setting up of housing colony whereas in the notification under S.4 of Land Acquisition Act, 1894, it was stated that the land was acquired for defence purposes---Plea raised by the land owners was that the Authorities had deviated from the object of acquisition and setting up of housing society was not a "public purpose"---Validity---Army Welfare Trust, despite being a society registered under Societies Registration Act, 1860, undertakes a large number of welfare projects which are approved by different Directorates of General Headquarters---Land was acquired by the Trust under the instructions of Welfare and Rehabilitation (W&R), Directorate of General Headquarter's Adjutant General (A.G.) Branch--­Housing colony had extensive provision of a College, High and Primary Schools, Hospitals, Mosques, Community Centre, Stadium and Units of Utility Service including Banks and Post Office---No diversity of purpose existed between the object of acquisition as depicted in the notification under Ss.4 &17 of Land Acquisition Act, 1894, and the actual carrying out of the purposes of the acquisition by Army Welfare Trust---Purpose for which land was acquired was a "public purpose" and there was no deviation from the purpose---Authorities did not commit any illegality in issuance of notification under S.4 of Land Acquisition Act, 1894--Constitutional petition was dismissed in circumstances.

S. Sivaprakasa Mudahar v. The State AIR 1964 Mad. 115; Jatadhar Mitra and others v. The State AIR 1970 Cal. 90; Dau Dayal and others v. The State AIR 1966 All. 237; The Cooperative Zenith Industries Ltd. v. Mst. Qayyman and others 1984 SCMR 1196; Federation of Pakistan through G.M., Telegraph and Telephone Department v. Province of Punjab through Land Acquisition Collector and 2 others 1993 SCMR 1673 and Abdul Ghani and another v. Province of Balochistan and 2 others PLD 1982 Quetta 63 ref.

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

----Ss. 3(f) & 4---Acquisition of land for public purpose---Deviation from the purpose---Issuance of new notification under S.4 of Land Acquisition Act, 1894---When required---Where the main and overriding purpose remains the same, a minor diversion of public purpose does not require a fresh notification under S.4 of Land Acquisition Act, 1894.

Fazal Rahim and 6 others v. Commissioner, Peshawar Division and another PLD 1979 Pesh. 91 ref.

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

----Ss. 3(f) & 31---Acquisition of land by company--- Source of payment--­Compensation not made from public funds---Falling of such acquisition within the definition of public purpose---Validity---Although there may be cases where the acquisition of land by company may not strictly fall within the definition of "public purpose" e.g. it may confine to the purpose specific only to the company, yet where it is held that acquisition by company is for a public purpose, it would not be material if the compensation in whole or in part had been made by the company itself--­Primary determination of the purpose and not the source of payment of compensation is relevant---If the common denominator relates to the acquisition of land for public purpose, it does not make any difference whether the source of payment of compensation is the Government or the company itself.

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

----S. 41---Agreement between company and Provincial Government--­Non-execution of such agreement---Payment had been made and the land was transferred in the name of the Company---Validity---Question of execution of agreement had' merely assumed an academic status as the purpose of the execution of the agreement had been fulfilled---Such agreement was not required in circumstances.

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

----Ss. 6, 7(4) & 40---Inquiry by Provincial Government, non-conducting of---Grievance of land owners was that proper inquiry was not conducted by Provincial Government within the meaning of S.4q of Land Acquisition Act, 1894---Validity---Commissioner being satisfied with the urgency, authorized the issuance of notification under Ss. 6 & 7(4) of Land Acquisition Act, 1894---Land was validly acquired in circumstances.

(g) Words and phrases---

---" Public purpose"---Connotation.

Mian Abdul Wahid and another v. The Collector and 2 others PLD 1973 Lah. 739 rel.

Sh. Zamir Hussain for Petitioner.

Raja Muhammad Akram for Respondent No.4.

Tanvir Iqbal, Asstt. A.-G.

Date of hearing: 15th September, 2003.

P L D 2004 Lahore 56

Before M. Javed Buttar, J

MUHAMMAD SHAFI and 3 others---Petitioners

Versus

MEMBER (CONSOLIDATION) BOARD OF REVENUE, PUNJAB, LAHORE and 7 others---Respondents

Writ Petition No, 18023 of 1995, heard on 15th October, 2003.

(a) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)-----

----Ss. 15 & 10---Constitution of Pakistan (1973), Art. 199---Constitutional petition ---Finalization of Consolidation Scheme---Practice and procedure---Duty of Consolidation Officers---Non-compliance of requirements of law---Effect.

Allah Ditta through Legal Heirs and 5 others v. Hassan Din and 26 others 1994 CLC 1291; Hamand v. Member, Board of Revenue (Consolidation) and others 1993 MLD 267; Khan Muhammad and others v. Member (Consolidation), Board of Revenue, Punjab and others 1997 SCMR 410; Brig. Sadaat Ali Shah v. Muhammad Hanif and 3 others PLD 1993 Lah. 694; M.M. Ispahani Ltd. v. Haji Muhammad Sultan through his Heirs and Legal Representatives Arif Sultan and-others PLD 1961 SC 76; Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139; Federation of Pakistan through Secretary, Finance, Islamabad and 4 others v. Messrs Ibrahim Textile Mills Ltd. and others 1992 SCMR 1898 and Najabat Ali v. Bashir Ahmad and others PLD 1987 SC 16 ref.

(b) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)-----

----Ss. 15 & 10---Constitution of Pakistan (1973), Art. 199---Constitutional petition ---Finalization of Consolidation Scheme---Interference by Board of Revenue in the Scheme in revision---Competence---Board of Revenue, in the present case, while restoring the land to the respondents, same being their pre-consolidation ownership, had trusted and imposed upon the petitioners the land with which they had no connection and was not in their previous ownership and had nothing to do with the same--­Petitioners were given said land only on the ground that they had been resisting the claim of respondents by alleging that the allocation of said land to the respondents was not unjust---Validity---Such manner of imposing upon the petitioners the land was unjust and improper---Board of Revenue, in such a situation, ought to have remanded the case to the Consolidation Officer with a direction to pass fresh order in accordance with law after hearing all the concerned parties---Pre-consolidation owners of the land which was given to the petitioner by the Board of Revenue, were not party to the proceedings and they were never associated as such by any forums---Constitutional petition by the petitioners was accepted accordingly and order passed by the Member, Board of Revenue was set aside and the matter was remanded to the Consolidation Officer to confirm the Consolidation Scheme of the parties afresh, in accordance with law, after granting an opportunity of being heard to both the parties and while doing so, he was to keep in view the observations made by the High Court.

Allah Ditta through legal Heirs and 5 others v. Hassan Din and 26 others 1994 CLC 1291; Hamand v. Member, Board of Revenue (Consolidation) and others 1993 MLD 267; Khan Muhammad and others v. Member (Consolidation) Board of Revenue, Punjab and others 1997 SCMR 410; Brig. Sadaat Ali Shah v. Muhammad Hanif and 3 others PLD 1993 Lah. 694; M.M. Ispahani Ltd. v. Haji Muhammad Sultan through his Heirs and Legal Representatives Arif Sultan and others PLD 1961 SC 76; Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139; Federation of Pakistan through Secretary, Finance, Islamabad and 4.others v. Messrs Ibrahim Textile Mills Ltd. and others 1992 SCMR 1898 and Najabat Ali v. Bashir Ahmad and others PLD 1987 SC 16 ref.

A. K. Dogar for Petitioner.

M. D. Tahir for Respondents Nos.2 to 8.

Date of hearing: 15th October; 2003.

P L D 2004 Lahore 65

Before Rustam Ali Malik J

REHMAT ALI and others--- Petitioners

Versus

STATION HOUSE OFFICER and others---Respondents

Writ Petition No.8221 of 2003, decided on 22nd October, 2003.

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

----Ss. 406 & 506---Bonded Labour System (Abolition) Act (III of 1992), S.4(2)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R.---Amount in question, according to F.I.R. had been given to the accused by the respondents Brick Kiln owners as "Paishgi" (advance) for extracting labour from them and their companions---Description of the said "Paishgi" amount as "Amanat" in the F.I.R. would not change its nature and any such agreement or contract between the parties in that respect was void under S.4(2) of the Bonded Labour System (Abolition) Act, 1992---Admittedly two, motets prior to the registration of the case Habeas Corpus petition had been filed concerning the accused and their companions against the respondents and hence registration of F.I.R. against the accused on the application of the respondent was clearly mala fide and continuing with the proceedings of the criminal case would certainly be an abuse of the process of law resulting in wastage of time---Even on admitted facts no offence could be made out against the accused as the dispute was entirely of civil nature which- with ulterior motives had been converted into criminal proceedings---Since, the accused had also sought a declaration, that the registration of the F.I.R. was without lawful authority, therefore, filing a petition for a writ of certiorari was the most appropriate remedy---High Court in exceptional cases like the present one was competent to quash an F.I.R. and the ensuing proceedings, even if the challan might have been submitted before the Trial Court---Registration of the impugned F.I.R. and the proceedings initiated thereon were declared to be without arty lawful authority and were quashed accordingly.

Miraj Khan v. Gul Ahmad and 3 others 2000 SCMR 122; Iftikhar Ahmad and another v. S.H.O. and 2 others PLD 2001 Lah. 399: Darshan Masih alias Rehmatay and others v. The State PLD 1990 SC 513; Arif Rafique v The State 1992 PCr.LJ 679; Sheikh Mahmood Saeed and others v. Ameer Nawaz Khan and another 1996 SCMR 839 and Ghulam Muhammad v. Muzammal Khan and 4 others PLD 1967 SC 317 ref.

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

----Art. 199---Constitutional petition---Quashing of F.I.R.---High Court in exceptional cases can exercise jurisdiction without waiting for Trial Court to pass orders under S.249-A or 265-K, Cr.P.C. if the facts of the case so warrant---Main consideration to be kept in view would be whether the continuance of the proceedings before the trial forum would be a futile exercise, wastage of time and abuse of the process of Court or not, and if on the basis of facts admitted and patent on record, no offence can be made out, then it would amount to abuse of process of law to allow the prosecution to continue with the trial.

Miraj Khan v. Gul Ahmad and 3 others 2000 SCMR 122 ref.

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

----Ss. 561 & 249-A---Inherent jurisdiction of High Court---Power of Trial Court under S.249-A, Cr.P.C. is co-extensive with similar powers of High Court under S.561-A, Cr.P.C. and both can be resorted to and nothing can bar High Court for entertaining an application under S.561-A, Cr.P.C. in appropriate cases in its inherent jurisdiction.

Arif Rafique v. The State 1992 PCr.LJ 679 ref.

Muhammad Aslam Zar for Petitioners.

Waqar Hassan Mir for Respondent No.2.

M. Akbar Tarar, Addl. A.G.

P L D 2004 Lahore 70

Before Rustam Ali Malik, J

M. ARSHAD---Petitioner

Versus

THE STATE---Respondent

Writ Petition No. 11283 of 2003, decided on 30th October, 2003.

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

----Art. 199---Constitutional jurisdiction, exercise of---Quashing of F.I.R.---Court in order to quash an F.I.R. and the ensuing proceedings has to consider whether the same on the face of it is frivolous and whether the allegations as contained in the petition do not constitute an offence even if they are assumed to be correct---Court has also to see whether allowing the proceedings to continue on the basis of such F.I.R. would be an abuse of process of law and the accused could not be convicted on the allegations of the F.I.R. even if accepted as correct.

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

----Ss. 392 & 109---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Quashing of F.I.R. ---Investigation of the case was underway and in case challan was submitted against the accused in the Trial Court, they could avail of appropriate remedy by filing an application under S.249-A or 265-K, Cr.P.C.---Contents of F.I.R. even if assumed to be correct, the same did not indicate that no case was made out against the accused---No justification was available for quashing the F.I.R.---Petition was dismissed accordingly.

Muhammad Abid and others v. Nusrat Ali 2000 PCr.LJ 1847; Mst. Sabai and another v. The State and others 1988 PCr.LJ 1429; Abdul Aziz Sattar alias Abdul Aziz Abdul Sattar v. Khawaja Muhammad Ashraf and another PLD 1965 Dacca 315 and Sharif and 3 others v. The State 1972 P Cr.L J 94 ref.

Mst. Gulnaz Bibi v. Mian Muhammad Younas, S.-I. And 2 others 2003 MLD 1608; Muhammad Saleem v. Deputy Director, F.I.A./CBC Multan and another 2000 MLD 357 and Nazia Parveen and others v. S.H.O. and others 2000 SD 122 distinguished.

Sajid Mehmood Sheikh for Petitioner.

Khan Altaf-ur-Rehman for Respondent No.3.

P L D 2004 Lahore 73

Before Abdul Shakoor Paracha, J

PARKS PAKISTAN (PVT.) LTD.---Petitioner

Versus

D.G. EXCISE AND TAXATION---Respondent

Writ Petition No. 1149 of 2002, decided on 30th September, 2003.

(a) West Pakistan Entertainment Duty Act (X of 1958)-----

----S. 3-A [as added by Punjab Finance Act (VI of 1992), but deleted by Punjab Finance Ordinance (III of 2000)]---Duty on special classes of entertainments could be charged after deletion of S.3-A of West Pakistan Entertainment Duty Act, 1958.

(b) West Pakistan Entertainment Duty Act (X of 1958)-----

----Ss. 2(d) & 3---Entertainment duty on chair- lift, charging of--­Validity---Chair-lift was a joy ride---Such entertainment would fall within definition of "entertainment" as given under S.2(d) of West Pakistan Entertainment Duty Act. 1958 chargeable under S.3 thereof---Government would be at liberty to charge other duties including other entertainment duty; if any, under any other law or under West Pakistan Entertainment Duty Act, 1958.

Parks Pakistan (Pvt.) Ltd. v. Director, Excise and Taxation and others 1994 CLC 1034 rel.

Dost Muhammad Malik for Petitioner.

Raja Saeed Akram Khan, Asstt. A.-G.

P L D 2004 Lahore 77

Before Maulvi Anwarul Haq, J

Mst. NAZIR FATIMA ---Petitioner

Versus

NAZIM UNION COUNCIL, WARD NO.5, DHOKE HASSU, RAWALPINDI and another---Respondents

Writ Petition No.1862 of 2003, heard on 10th November, 2003.

West Pakistan Family Courts Act (XXXV of 1964)-----

----S. 5 & Sched.---Muslim Family. Laws Ordinance (VIII of 1961), Ss.7(3) & 8---Dissolution of marriage---Delegation of right to divorce by husband to wife---Exercise of said right---One of the conditions of the marriage between parties was that husband had delegated the right to divorce wife and entry to that effect was made in Column No.18 of Nikahnama---Wife in exercise of said right pronounced divorce upon herself for her husband and a notice was sent to Nazim Union Council concerned ---Nazim had intimated wife that husband being not ready to pronounce divorce, wife could approach the Court as he could not grant Khula and Nazim sent the case to the Family Court ---Nazim was oblivious of legal position as right of divorce could be lawfully delegated by husband to wife and that had happened in the present case and notice was sent by wife in compliance with the terms of Ss.7 & 8 of Muslim Family Laws Ordinance, 1961---Ninety days prescribed period having expired after receipt of notice issued by wife and re-conciliation being not possible between the parties, law as prescribed in Ss.7(3) & 8 of Muslim Family Laws Ordinance, 1961 would have its course ---Nazim would issue requisite document regarding receipt of notice and failure of re­conciliation within prescribed time.

Waqarul Haq Sheikh for Petitioner.

Tanvir Iqbal, A.A.-G. with Khalid Mahmood, Nazim for Respondent No. 1.

Date of hearing: 10th November, 2003.

P L D 2004 Lahore 79

Before Asif Saeed Khan Khosa and M. Bilal Khan, JJ

MUHAMMAD SHAHID FAROOQ alias SHAHDA --- Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1 in Criminal Appeal No.182-J of 2003, decided on 4th December, 2003.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.302/34, 109, 148 & 149--­Suspension of sentence---Accused had not caused any injury to any person during the alleged occurrence and he stood saddled with responsibility of indulging in ineffective firing only---Nothing had been recovered from possession of accused during investigation---Investigating Officer had found that accused was not armed with any weapon during the occurrence­--Accused had already spent more than two years in jail in connection with the case---Question regarding sharing of common intention by the accused with his co-accused also question regarding his vicarious liability for the offence allegedly committed by his co-accused were questions which would require serious re-consideration at the time of hearing of main appeal---Sentence of imprisonment passed against accused by Trial Court, was suspended and he was admitted to bail.

Anwar Hussian for Petitioner.

Miss Anila for the State.

Sadaqat Mehmood Butt for the Complainant.

P L D 2004 Lahore 80

Before Maulvi Anwarul Hud, J

Messrs HASHWANI HOTELS LIMITED through Mustansir Zakir, Financial Controller and others---Petitioners

Versus

CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD through Chairman---Respondent

Writ Petitions Nos. 201 of 1997, 1707 of 1998, 1522 of 1998, 744 of 1998, 3475 of 2001, 3578 of 2001, 52 of 2002 and 1358 of 2002, decided on 11th November, 2003.

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

----Ss. 49 & 51---Islamabad Land Disposal Regulations, 1993, Regln. 3--­Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Imposition of property tax---Petitioners who owned and operated hotel in Islamabad Capital Territory, had questioned imposition of property tax and its recovery by the Authority---Contention of petitioners was that they being not located in any of the areas mentioned under the heading "commercial" were to be treated as Industrial concern and be charged accordingly---Terms "industrial", "institution" or "commercial", had not been defined in the Rules framed by Federal Government for the imposition of property tax and recovery thereof---Till such time a statutory enactment including the hotels located in Islamabad Capital Territory in the term "industry" or "industrial" or "institution", was not made by Competent Authority, petitioners could not claim as a right to be charged as an industrial concern vis-a-vis said property tax.

M. Afzal Siddiqi, Ch. Ghazanfar Ali and Mahboob Alam for Petitioners.

Malik M. Nawaz for the State.

Date of hearing: 28th October, 2003.

P L D 2004 Lahore 83

Before Muhammad Sair Ali, J

Messrs EASTERN LEATHER COMPANY (PVT.) LTD. ---Petitioner.

Versus

Raja QAMAR SULTAN, SECTION OFFICER, GOVERNMENT OF PAKISTAN, ISLAMABAD and 4 others---Respondents

Writ Petition No.5893 of 2003, heard on 28th October, 2003.

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

----Art. 32---Constitution of Pakistan (1973), Art.199---Constitutional petition---Representation before President of Pakistan---Principles of natural justice---Applicability---Authorities filed representation against order passed by Wafaqi Mohtasib before the President of Pakistan which was accepted without notice to the petitioner and without affording him opportunity of hearing---Petitioner having been condemned unheard, order passed by the President had affected him adversely who was vested with right of participation in proceedings before the President of Pakistan being a necessary party---President of Pakistan, while performing functions under Art.32 of Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, was to act in quasi-judicial and not in administrative capacity which was totally distinguishable from the administrative actions--- Principles of natural justice having been violated in the case, order passed by the President of Pakistan was without lawful authority and of no legal effect and was set aside by High Court in Constitutional petition.

Federation. of Pakistan v. Muhammad Tariq Pirzada and 2 others 1999 SCMR 2744; Federation of Pakistan .v. Muhammad. Tariq Pirzada and 2 others 1999 SCMR 2189; Muhammad Saleem v. Federal-Tax Ombudsman and others Writ Petition No. 16946 of 2002 and Muhammad Hussain and another v. Federation of Pakistan 2003 Y L R 2793 ref.

Raja Amir Khan for Petitioner.

Khalid Jamil Khan for Respondent.

Date of hearing: 28th October, 2003.

P L D 2004 Lahore 86

Before Syed Zahid Hussain, J

Mst. RASHIDA BIBI and another--- Petitioners

Versus

BORDER AREA COMMITTEE through secretary, Board of Revenue, Punjab, Lahore and 3 others---Respondents

Writ Petition N9.100-R of 2003, heard on 4th December, 2003.

Constitution of Pakistan (1973)---

----Arts.4 & 199---Constitutional petition---Forcible dispossession from land---Restoration of possession---Protection of law---Predecessor of petitioners who was an ex-army personnel was allotted land in dispute which allotment had duly been implemented in public records arid mutation had also been sanctioned in the name of allottee---Grievance of petitioners, who were legal heirs of the deceased allottee, was that they had been forcibly dispossessed by and at the instance of Authorities--­Petitioners had prayed for restoration of their possession over the property in dispute duly allotted to their predecessor by Border Area Committee--­Allotment of land in dispute made in favour of the predecessor of petitioners was duly scrutinized and was found as legal and valid by Authority vide its order---Border Area Committee though was empowered to scrutinize allotment of allottee, but once such a power had been exercised by the Committee, which culminated into order that allotment in favour of allottee was legal and valid, exercise of that power over again would not be consistent with the legal position obtaining on the subject, rather same would erode the very essence of concept of finality of adjudicatory process---All actions of the State functionaries must have the backing of a contemporaneous law, failing which the action would be regarded as without jurisdiction and illegal---To enjoy the protection of law and to be treated in accordance with law, was the inalienable right of every citizen as enshrined in Art.4 of the Constitution which embodied safeguards of utmost importance to an individual, in the matter of his life, liberty, honour, reputation and property---Citizen could not be deprived of such protection and guarantees on the basis of any supposed assumption--­Allotment in favour of predecessor of petitioners having already been scrutinized by the Competent Authority which was the Border Area Committee, no jurisdiction and authority was vested in the 'respondent's authority to call in question either the factum of said allotment or the efficacy of orders passed by the Border Area Committee---Constitutional petition was accepted to the extent that dispossession of petitioners from the land in dispute was unwarranted and had no backing of contemporaneous law and action of dispossession was declared as of no legal effect.

Ch. Abdul Rashid for Petitioner.

Aamir Zahoor Chohan for Respondent No. 1.

Raja Jehanzeb Akhtar for Respondents Nos.2 and 3.

Fazal Miran Chohan, Addl.A.-G. for Respondent No.4.

Date of hearing : 4th December, 2003.

P L D 2004 Lahore 91

Before M. Javed Butter and Muhammad Muzammal Khan, JJ

MUHAMMAD ABDUL HAQ and 4 others--- Petitioners

Versus

M. SULEMAN KHAN---Respondent

Review Application No.41-C in Civil Revision No.879 of 1996, heard on 27th October, 2003.

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

----S. 114 & O.XLVII, R.1---Limitation Act (IX of 1908), Ss. 5, 12 & Art. 173---Constitution of Pakistan (1973), Art. 185(3)--Review petition barred by 20 days ---Condonation of delay---Exclusion of time spent in obtaining certified copy of impugned judgment for filing petition for leave to appeal before Supreme Court---Validity---Certified copy of judgment under review was not needed for filing review application---Petitioner had used such copies in filing petition before Supreme Court but had withdrawn, the same to file review application---Petitioner could not be given an furtherance period by condoning delay on bass of copies not obtained for filing review application---Delay in filing review ­application could not be condoned on the basis of certified copies obtained by petitioner for. Supreme Court use, but not for purpose of filing review, application---Cause for condonation of delay was not sufficient High Court dismissed review application as barred by limitation.

Ahmad Din v. Mst. Syran Bi and others 1980 SCMR 959 and A. Ghafoor v: Mst. Amina Fatima 1985 CLC 1801 ref.

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

----S. 114 & O.XLVII, R.1---Review petition-Can be filed without certified copy pf judgment under review- Time, if any, spent in obtaining certified copies, for such purpose call be excluded from period of limitation.

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

---S. 12(2)---Dismissal of revision petition in limine by High Court—­Review petition seeking annulment' of judgment and decree 'passed by Appellate Court--Not maintainable before High Court.

Ali Muhammad Brohi v. Haji Muhammad Hashim PLD 1983 Kar. 527;-Ghulam Sarwar v. Muhammad Hussain and others 1987 SCMR 1440; Mrs. Amino Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296 and Muhammad Iqbal and another v. Muhammad Alamgir and others 1990 SCMR 1377 ref.

Rana Muhammad Sarwar for Petitioners.

Ghulam Muhammad Mehr for Respondent.

Date of hearing: 27th October, 2003.

P L D 2004 Lahore 95

Before Ch. Ijaz Ahmad and Bashir A. Mujahid, JJ

MUHAMMAD ASHIQ and another---Appellants

Versus

NIAZ AHMAD and another---Respondents

Regular First Appeal No.7 of 2003, heard on 30th October, 2003.

(a) Stamp Act (II of 1899)-----

----Ss. 12, 33, 35, 36 & 61---Insufficiently stamped document---Objection to insufficiently stamped document could not be taken when it was already admitted---Provisions of S.35 of Stamp Act, 1899 no doubt, prohibited a Court from admitting in evidence an instrument which in its view was not duly stamped and also prohibited the Court from acting on such document, but if the Court had wrongly admitted such document, Appellate Court was prevented by S.36 of Stamp Act, 1899 for calling into question the admission in evidence of such an instrument, though it could have been wrongly admitted---Appellate Court. was bound to hold that admission of document or instrument was proper as nothing could be done at appellate stage---All' documents whether under-stamped or unstamped once admitted in evidence, would preclude any controversy on the point except to the extent permitted by S.61 of Stamp Act, 1899---Legislature in its wisdom having put S.36 of Stamp Act,--1899 after Ss. 12, 33 & 35 of the Act, latter would prevail over .the earlier provisions of law---Object of S.35 of Stamp Act, 1899 was not to invalidate the instruments not properly stamped; but to protect the public revenue.

Sohanlal Nihal Chand v. Ranghu Nath Singh AIR 1934 Lah. 606; Firm Sri Chand Sheo Parshad v. Lajja Ram AIR 1939 Lah.31; K.M.Muneer v. Mirza Rasheed Ahmad PLD 1963 Kar. 905; K.M.Muneer v. Mirza Rasheed Ahmad PLD 1964 Kar. 172; Sheikhupura Central Cooperative Bank Ltd. v. Ch. Tawaqal Ullah and another PLD 1977 Lah. 763; United Bank Limited v. Mian Abdul Khaliq PLD 1988 Lah. 225; Mirza Arif Baig v. Mubarak Ali PLD 1992 Lah 366; Malik Muhammad Akram v. Khuda Bakhsh 2000 CLC 795; Habib Bank Limited v. Messrs Qayyum Spinning Ltd. 2001 MLD 1351; Sirbuland v. Allah Loke 1996 SCMR 575; Fareed Akhtar Hadi v. Muhammad Latif Ghazi 1993 CLC 2015; Manzoor Ahmad Khan's case 1975 SCMRr 167; Haji Ghulam Mustafa v. Allah Bakhsh PLD 1963 Kar. 906; Kasim Kamber and others v. Chander Ban Wadhual and another PLD 1962 Kar. 253; Amin Jute Baling Company Ltd. v. Aminpur. Union Cooperative Multi Purpose Society Ltd. PLD 1961. Dacca 102; Abdul Hahim's case PLD 1961 Dacca 596; Muhammad Luqman's case- PLD 1994 Kar. 492; Messrs Rasheed Ullah v. Punjab Province and others 1995 CLC 1914; Fareed Akhtar's case PLD 1983 Kar. 375 and Union Insurance Company of Pakistan Ltd. v. Hafiz Muhammad Siddiq P L D 1978 SC 279 ref.

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

----O. XXXVII, Rr. 2 & 3---Stamp Act (II of 1899), Ss.12, 33, 35, 36 & 61---Suit for recovery of amount on basis of promissory note---Proof of execution of 'promissory note---Plaintiff had proved on record the execution of promissory note in question by producing two attesting witnesses and subscribe. thereof---Defendants also admitted before Trial Court that they were ready to settle the dispute with the plaintiff and that they would be ready to -pay disputed amount in easy instalments, but defendants had taken preliminary objection that promissory note was not properly stamped and stamps affixed thereon were not crossed--­Defendants did not raise any question with regard to objection taken by them in written statement from witnesses of plaintiff---Defendants had not stated any thing before Trial Court with. regard to the preliminary objection---Trial Court was justified to decide the issue in that respect against defendants---Making of 'payment in connection With promissory note would not require to be proved and it was sufficient if the execution of promissory note was either proved or admitted---In absence of any infirmity and illegality of judgment of Trial Court, same could not be interfered with in appeal.

Sherbaz Khan v. Mir Adam Khan PLD 2002 Pesh. 1 ref.

Rana Rashid Ikrarh Khan for Appellant.

Ch. Riasat Ali for Respondent.

Date of hearing: 30th October, 2003.

P L D 2004 Lahore 103

Before Mian Saqib Nisar and Jawwad S. Khawaja, JJ

Mst. NASEEMA, SALAHUDDIN and 2 others---Petitioners

Versus

Mst. DAULAT FATIMA and 4 others---Respondents

Civil Revisions Nos.972 of 2002, 475 of 1997 and Regular First Appeal No.804 of 2002, heard on 25th June, 2003.

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

----Ss. 12 & 35---Civil Procedure Code (V of 1908), Ss.2(2), 152, 148, O.XX, R.1 & O.XXI, Rr.34, 35---Suit - for .specific performance of agreement to sell immovable property---Court while passing decree in such suit fixed time for deposit of sale price and provided consequences of dismissal of suit in case of failure to comply with the decree---Extension of such time---Powers of Court---Scope---Such decree was not preliminary, but to all intents and purposes was final in nature---Court had no jurisdiction to extend the time under S.148, C.P.C., on principle of becoming functus officio---Such rule was not absolute, but subject to certain exceptions including situations beyond control of the decree-holder to comply with decree or the act of Court which impeded compliance thereof---When judgment and decree was corrected, then time provided in original decree for such deposit would start from the time, when the correction was allowed---Principles and exceptions illustrated.

Where a Court, while passing a decree in a suit for specific performance has directed plaintiff/decree-holder to make the deposit of balance consideration in the Court by a specified date, and the judgment and decree also provides the consequences of the dismissal of suit in case of the failure to comply with the decree, such decree to all intents and purposes, is final in nature and the Court does not retain any control over the litigation. Therefore, the Court has no jurisdiction under section 148, C.P.C. to extend the tinge on the principle of becoming functus officio. Decree passed .in suit for specific performance is not preliminary in nature, because under such decree, the Court has yet to confer title of the property upon decree-holder, and in certain cases to deliver the possession also, resultantly, until and unless the said objects are accomplished, the decree remains to be a preliminary.

The explanation to section 2(2), C.P.C. vividly provides that a decrees shall be preliminary, when further proceedings have to be taken before the Court before the suit can be completely disposed of, however, it shall be final, when such adjudication completely disposes of the suit. In the suit for specific performance, the issues Involved in the lis are finally and conclusively decided by a decree for the specific performance of immovable property, if granted to the plaintiff and the steps for the conferment of title and delivery of possession, if so required under the decree, are purely in the nature of the execution and satisfaction of the decree. If the decree, for specific performance is held to be preliminary in nature, then all the decrees, which require the conferment through the process of execution, shall be rendered preliminary. For example in a suit for simple possession of immovable property, which according to the settled law, is a final decree, but because the possession has to be delivered to decree-holder in pursuance thereof, shall also be a preliminary decree, which according to law is not. Therefore, once a decree in a suit for specific performance of an immovable property has been passed, which is conditional, in nature envisaging a direction to plaintiff/decree-holder to make the deposit of certain balance consideration in the Court by a specific date and in case of his failure to do the needful, the suit shall be deemed to have been dismissed, this means the decree is final and conclusive to all intents and purposes, as the Court had finally disposed of the matter, and nothing is left for further determination by the Court, therefore, the Court loses its control over the lis. Resultantly, if the condition of deposit of certain amount for the grant of decree is not fulfilled, the Court shall have no power under section 148, C.P.C., to extend the time as being functus officio. But this rule cannot be held to be absolute, but is subject to certain exceptions, which includes the situations beyond the control of decree-holder to comply with the decree or the act of the Court, which impedes the compliance thereof. In the present case, there were two major factors on account of which, the plaintiff/decree-holder could not meet the condition of the deposit by the given date. Firstly, the decree was passed in his absence and no notice as required by the judgment was issued to him of the judgment and decree passed, therefore, he was unaware of the decree and it was a circumstance beyond his control; secondly, though the judgment and decree purported that the deposit should be made by the plaintiff/decree-holder, but due to a conspicuous error, no direction was given to the defendant of the case, therefore, until and unless the judgment and decree was duly corrected, it was not possible for the plaintiff to have complied with the direction, resultantly,. on the discovery of the judgment and decree passed in his favour, the plaintiff moved an application for the amendment under section 152, which application was allowed by Civil Judge and the extension of time, which was an ancillary, but necessary consequence of the correction had to be allowed by Court enabling the decree-holder to ripe the fruits of the right earned by him. Thus,, the decree-holder was permitted to make the deposit, which period allowed was still within the time frame allowed under the original decree. Anyhow, irrespective of any extension in the period of time by the Court when decree was corrected, the- decree-holder was entitled to make the deposit within that period, which was fixed in the original decree and the same had accordingly been In the peculiar facts of the present case, while amending the judgment and decree, the Court could enlarge the time and was not functus officio. Moreover, the days provided in the original decree for deposit would start from the time, the correction in judgment and decree was allowed. Notwithstanding the extension of time, it is an admitted position that decree-holder had deposited the amount,within specifc time frame set out in the original decree, thus, he could not be said to have failed in compliance of the condition resulting into dismissal of his suit.

PLD 1966 SC 983; PLD 1-983 SC 243; 1992 MLD 31; 1998 CLC 55, PLJ 2002 Lah. 176; C.R. No.650 of 2001 (unreported); PLD 1994 Lah. 280; 2000 CLC 1633; PLD 199TSC 351; PLD 1999 SC 342; PLD 2001 SC 131; 1994 MLD 1820; 1992 CLC 1699; 1997 MLD 406; 1996 CLC 916; PLD 1987 SC 145; 1999 MLD 2140; 1999 SCMR 1633; 1997 SCMR 1796 and 2000 YLR 2760 ref.

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

----Ss. 148 & 152---Correction of judgment and decree as well as extension of time fixed therein---Notice to opposite-party ---Principles-­Court in equity while correcting judgment and decree can extend time waiving notice to other side---When case was not of correction, but was of extension of time, simpliciter, then same could not be granted without notice to the other side.

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

----S. 152---Court can correct error in judgment and decree at any time without notice to the other side.

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

---S. 2(12) & O,XXI, Rr. 34, 35---Specific Relief Act (I of 1877), S.12--­Decree in suit for specific performance of agreement to sell---Conferment of title of property upon decree-holder by Court through .execution ,and registration of sale-deed---Decree-holder's right to claim compensation from judgment-debtor for-use and occupation of property as he had been receiving rent from its tenant throughout---Judgment-debtor's plea was that his possession was protected on account of stay. order granted by Courts in different rounds of litigation at different stages initiated against such decree---Validity---Plaintiff upon conferment of title became entitled to possession of property---Proceedings initiated by judgment-debtor against such decree had terminated against him and in favour of decree­ holder---Possession of judgment-debtor to all intents and purposes, thus, would be wrongful within., meaning of S.2(12), C.P:C. as against decree-. holder (rightful owner of property), who. had been deprived of its, use and occupation due to initiation of such proceedings and obtaining of interim relief---Decree-holder, Held, was entitled to mesne profits---Principles.

Once the title of property is conferred upon decree-holder by the Court through the execution and registration of sale-deed, then he, under the decree and on the basis of such title, is entitled to possession of property, however, if judgment-debtor has agitated the matter in different proceedings and obtained interim relief to protect his possession, but those proceedings finally terminated against him and in favour of decree-holder, the possession of the former to all intents and purposes, would be wrongful within the meaning of section 2(,12), .C.P.C. as against the rightful owner of property, who has been .deprived of the use and occupation of the same due to the initiation of proceedings and the interim relief procured by judgment-debtor, who ultimately was found not entitled to the main relief.

Moreover, notwithstanding the definition in section 2(12), C.P.C., the judgment debtor in equity, is- also entitled to- the compensation, because it is settled principle of law that an act of the Court shall prejudice no one, therefore, when judgment-debtor seeks protection of the Court as an interim measure to his advantage he' also takes the risk of compensating the decree-holder if ultimately he fails in final decision. The said principle of equity cannot be applied to the advantage of-one and the disadvantage of the other, rather a balance has to be created, which in the facts and circumstances of present case, tilts in favour of the decree ­holder.

Khawaja Saeed-ur-Zafar for Petitioner.

Muhammad Iqbal Ghaznavi for Respondents.

Date of hearing 25th June, 2003.

P L D 2004 Lahore 115

Before Mian Sagib Nisar, J

MUHAMMAD AFZAL through Legal Heirs and others---Petitioners

Versus

RIAZ MAHMOOD, ADDITIONAL DISTRICT JUDGE, LAHORE and 8 others--- Respondents

Writ Petition No.22930 of 1998, heard on 24th October, 2003.

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

----S. 115---Constitution of Pakistan (1973), Art. 199---Constitutional petition to challenge order passed by Appellate Court in. exercise of revisional jurisdiction ---Maintainability---Ordinance Constitutional jurisdiction should not be exercise to interfere with revisional order--­Such rule is not absolute, but subject to exceptions---Impugned order, if based on gross misreading or non-reading of evidence or was perverse, could not be termed as erroneous on facts or law-rather same would be an order without jurisdiction and lawful authority, thus, Constitutional petition would be competent---Principles.

Ordinarily, Constitutional jurisdiction should not be exercised to interfere in the revisional orders but this is not an absolute rule, and if, the order of the revisional Court is based upon gross misreading and non-reading of the evidence, and the reasons given are absolutely perverse, not supported by the evidence on record, such order cannot be simply termed as "erroneous" on facts or law rather such order shall be an order without lawful authority.

Judicial forum in the dispensation of justice, has no authority to decide the rights of the parties according to its whims, caprice, institution or imagination. In performing the essential and primary obligation of doing justice, the Courts of law are supposed and duty bound to read, consider and conceive the evidence of the case, available on the record accurately.

Since the appraisal and appreciation of evidence and the drawing of the conclusion and giving the findings on the basis thereof, is within the domain of the Court even if, any error in this regard is committed by the Court, only for the reason that a different conclusion could be possible, the writ shall not be issued. However, if the facts duly. established and proved on the record that conclusions are totally misconceived, grossly misinterpreted misread and altogether ignored. it shall not be a case of erroneous finding of facts, but a finding without jurisdiction and lawful authority. Thus, in such situation, where the revisional order, suffers from the above. vices; the writ shall be competent, because a litigant. who is the victim of such injustice, cannot be left without remedy, on the ground of incompetency of the petition.

Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others 1991. SCMR 970; Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131; Muhammad Sami-Ullah Khan v. Additional District Judge and others PLD 2002 Lah.56 and Qamar-ud-Din v. Muhammad Din and others PLD 2001 SC 518 ref.

(b) Administration of justice-----

---- Judicial forum in dispensation of justice has no authority to decide rights of parties according to its whims, caprice, institution or imagination---Courts of law in performing essential and primary obligation of doing justice are supposed and duty bound to read, consider and conceive evidence of the case available on record accurately.

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

----Arts. 2(b)(c), 70 & 72---Oral evidence and documentary evidence--­Preference---Documentary evidence, if not disputed, must be given preference/credence over oral testimonies, which are otherwise vague and also shattered in cross-examination.

Malik Muhammad Azam Rasool for Petitioners.

Mian Tariq Sultan for Respondents.

Date of hearing: 24th October, 2003.

P L D 2004 Lahore 125

Before Muhammad Sair Ali, J

GHULAM ABBAS ---Petitioner

Versus

MANZOOR AHMED and another---Respondents

Civil Revision No. 1664-D of 2003, heard on 24th November, 2003.

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

--S. 115---Revision---Miscellaneous applications already fixed for hearing were likely to take almost as much time as decision of civil revision---High Court took up civil revision for decision on such date.

(b) Punjab Pre-emption Act (IX of 1991)---

-----S. 13(3)---Sending notice of Talb-i-Ishhad under registered cover acknowledgment due as prescribed in S.13(3) of Punjab Pre-emption Act, 1991---Object and proof of---Ordinary registered mail letter without an A.D., hypothetically, but not essentially, can at maximum be stretched to equate with refusal of vendee to receive registered mail letter---Purpose of prescribed mode of mail is to create a reliable evidence of sending notice, its receipt or deliberate refusal by vendee ---Registered mail letter alongwith acknowledment due, if. sent back to pre-emptor, then he in order to prove its transmission would have to tender in evidence refused envelope etc., and relevant record of the post office---Object of law would be taken to have been materially and substantially fulfilled, where through evidence of witnesses and post, office record, pre-emptor had successfully proved receipt of registered mail letter by vendee--­Principles.

(c) Punjab Pre-emption Act (IX of 1991)-----

----S. 13(3)---Qanun-e-Shahadat (10 of 1984), Art.76---Pre-emption suit--­Notice of Talb-i-Ishllad sent through ordinary registered post without acknowledgment due ---Vendee denied to have received such notice ---Pre­emptor produced in evidence witnesses, post office record and photo copy of such notice---Trial Court dismissed suit, but Appellate Court decreed the same---Validity---Requirement of sending notice of Talb-i-Ishhad in terms of S.13(3) of Punjab Pre-emption Act. 1991 had technically not been complied with---Non-compliance with such technicality had been met by pre-emptor by producing witnesses and record of post office ---Pre­emptor had successfully proved receipt of registered envelope by vendee ---Object of law had. thus, materially and substantially been fulfilled---Vested right of pre-emptor. in such circumstances could not be arid led or allowed to be defeated on mere absence of acknowledgement due with registered mail letter---Appellate Court after concluding that registered mail containing notice of Talb-i-Ishhad had been duly delivered to vendee, was justified in presuming that original notice was in the envelope delivered to him ---Vendee had not pleaded that registered mail envelope received by him did not contain any original notice of Talb-I-­Ishhed or was empty---Contention of non-production of original notice or its secondary evidence by pre-emptor could not reinforce case of vendee ---Impugned judgmenton such question met the requirements of justice and spirit of laid---High Court dismissed revision petition.

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

----S. 115---Powers of revision---Scope---Such powers could only be exercised in case of excess of jurisdiction or upon commission of material irregularity in impugned order.

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

----Art.76---Photocopy of document---Inadmissible in evidence.

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

----O.VIII, Rr. 3, 4 & 5---Evasive denial in written statement ---Effect--­Such denial would not amount to a-specific denial and could even be interpreted as an admission of contents of plaint.

(g) Pleadings----

----Parties have to adhere and abide by specific pleadings raised by them.

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

----O.VIII, Rr. 1 & 2---Written statement---Defendant could not be allowed to argue a case not pleaded by him in written statement.

Izhar-ul-Haq for Petitioner.

Ch. Naseer Ahmed Bhutta for Respondents

Date of hearing: 24th November, 2003.

P L D 2004 Lahore 130

Before Tassaduq Hussain Jilani and Raja Muhammad Sabir, JJ

PAKISTAN LAWYERS FORUM---Petitioner

Versus

FEDERATION OF PAKISTAN and 2 others---Respondents

Writ Petition No.8571 of 2002, decided on 29th December, 2003.

(a) Referendum Order [Chief Executive's Order No.12 of 2002]----

----Art. 3(3)---Constitution of Pakistan (1973), Arts.41(6) & 199--­Constitutional petition---Referendum---Vines of Referendum Order, 2002---Question was framed and a Referendum was held to solicit public opinion on the formulated question and as notified by the Election Commission, majority of the votes cast, were in the affirmative and General Pervez Musharraf was declared to have received democratic mandate from the people "to serve the nation as a President of Pakistan for a period of five years "---Contentions of the petitioner were that the Referendum was massively rigged and it had violated the sanctity of the ballot box and the same was, therefore, of no legal effect; that various newspaper reports and articles appended with the Constitutional petition warranted judicial notice of the High Court and said reports could be considered as evidence and that no further recording of evidence was called for in support of the allegations levelled- in the petition; that in a case of the type no quantification was necessary as the overall-effect of the newspaper reports and articles published by the leaders of different opinions proved beyond doubt that sanctity of the entire process stood eroded and something which was too apparent, did not need quantification; that the newspaper reports, press clippings. and various articles published in different newspapers after Referendum, were never specifically contradicted by the Election Commission of Pakistan which was indicative of the fact that the allegations levelled had been accepted; that the actions of the Government including that of Election Commission of Pakistan could be examined by the High Court in its Constitutional jurisdiction and that a Member of the Election Commission of Pakistan had rosined and in an interview lie categorically declared that Referendum was unconstitutional and said resignation was a further proof that the Referendum held was not only illegal but was conducted in a manner, which was unfair and lacked transparency ---Validity--­Referendum Order, 2002 was a validly promulgated Order of the Chief Executive which empowered the Chief Election Commissioner and the Election Commission of Pakistan to hold and conduct Referendum and this was not open to challenge on any ground or criteria laid down by the Supreme Court in Syed Zaffar Ali Shah's case reported as PLD 2000 SC 869---Nocomplaint was filed by an individual or political party and even the petitioner had not agitated the issues before the Election Commission, of Pakistan---High Court could take judicial notice of the newspaper reports and articles, inter alia, where the direct evidence was not available; where it was sought to be proved that person had notice of the contents of a newspaper report: where it was sought to be shown that a person was the author or otherwise responsible for the statement or article published in a newspaper which was to be used against him in cases of defamation, and if the issue/occurrence was rather old and eye-witnesses were either wanting or less reliable---Present case, in circumstances, would not fall in the said class of cases---Newspaper reports/articles annexed with the Constitutional petition covered hardly a few Polling Stations while there were 87,074 Polling- Stations with 1,63,641 Polling Booths, High Court therefore, could not pronounce judgment on the basis of reports with regard to a few Polling Stations and annul the entire result of Referendum over thousands of Polling Stations and could not give credence to a view or grant a prayer without due process of law and hasten a conclusion without evidence to back the carne---Election of a holder of a public office, therefore, could not be annulled or the incumbent of an office could not be disqualified on the basis of the press reports alone---Prayer made in tile Constitutional petition entailed factual inquiry calling for recording of evidence which exercise could only be undertaken by a Tribunal of plenary ,jurisdiction---Principles---No merit having been found in the Constitutional petition. High Court dismissed the same.

In terms of Article 3(3) of Referendum Order, 2002. a question was framed and a referendum was held to solicit public opinion on the said question on 30th April, 2002 and as notified by the Election Commission of Pakistan, majority of the votes cast, were in .the affirmative. General Pervaiz Musharraf was declared to have received democratic mandate from the people of Pakistan "to serve the nation as a President of Pakistan for a period of five years". The passage of the Referendum Order, 2002 the consequences flowing from the result of the Referendum and the manner in which Referendum was held, -enervated controversy and raised issues. This controversy broadly had three dimensions. firstly whether the Referendum Order, 2002 could have the effect of amending Article 41(6) of the Constitution of Islamic Republic of Pakistan, 1973. secondly, whether in event of answer to the question raised in the Referendum being in the affirmative. Could the incumbent of the office of the President of Pakistan be deemed to have been elected for a term of five years notwithstanding the mode of election provided in the Constitution and, thirdly, whether the Referendum held was fair and transparent. The Referendum Order, 2002 was a validly promulgated Order of the Chief Executive. The Referendum Order empowered the Chief Election Commissioner and the Election Commission of Pakistan to hold and conduct referendum and this was not open to challenge on any round or criteria laid down in Syed Zafar Ali Shah's case.

Although no complaint was filed by any individual or political party and even petitioner did not agitate this issue before the Election Commission of Pakistan, the Constitutional jurisdiction of High Court was invoked to give a declaration that the Referendum held was fraudulent and not fair. Petitioner sought to prove the allegations of rigging, on the basis of columns published in various newspapers/periodicals and newspaper reports, clippings of which were. appended with this petition. Even authors of those reports or the editors of the newspapers and periodicals were not sought to be summoned by the petitioner in proof of the allegations leveled. It was contended that the reports of the events were sufficient proof and High Court, in the Constitutional proceedings, could consider them as evidence relaxing the rule of hearsay.

A Court may take judicial notice of the newspaper reports and articles, inter alia. in the following circumstances:--

(i) Where the direct evidence is not available; .

(ii) where it is sought to be proved that a person had notice of the contents of a newspaper report;

(iii) where it is sought to be shown that a person is an author or otherwise responsible for the statement or article published in a newspaper which is to be used against him;

(iv) in cases of defamation;

(v) if the issue/occurrence is rather old and eye-witnesses are either wanting or less reliable.

The present case would not fall in the afore-referred classes of cases. It was not the publisher or a printer who was in the dock but the entire process of Referendum was sought to be annulled merely through newspaper reports and articles.

Even if some credence is given to the newspaper reports/articles, annexed with the Constitutional petition, they cover hardly a few Polling Stations whereas according to the written statement submitted by the Election Commission of Pakistan there were 87,074 Polling Stations with 1,63,641 Polling Booths. Some rigging may have taken place. The issue is not whether the manipulation or rigging did take place but the quantum of the rigging. Court could not pronounce judgment on the basis of reports with regard to a few Polling Stations and annul the entire result of Referendum spread over thousands of Polling Stations.

High Court could not give credence to a view or grant a prayer without due process of law and could not hasten a conclusion without evidence to back it.

The election of a "holder of a public office" could not be annulled or the incumbent of an office could not be disqualified on the basis of the press reports alone.

Prayer made entailed factual inquiry calling for recording of evidence which exercise could only be undertaken by a Tribunal of plenary jurisdiction.

Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others PLD 2000 SC 869; Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan 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; Bliagwati Charan Shukla v. Provincial Government, C.P. and Berar AIR 1947 Nag. 1; Watan Party through Punjab President Ladies Wing Tasneem Shaukat Khan v. Chief Executive/ President of Pakistan and another PLD 2003 SC 74; Pakistan Lawyers' Forum v. Federation of Pakistan and another PLD 200 3 Lah. 461; Mohtarma Benazir Bhutto v. President of Pakistan and 2 others PL.D 2000 SC 77; Khalid Malik and others v. Federation of Pakistan and others PLD 1991 Kar. 1; Qazi Hussain Ahmad. Ameer Jamaat-e-Islami Pakistan and others v. General Pervez Musharraf, Chief Executive and others PLD 2002 SC 853; Dunlop v. United States 165 US 486 41 Led. 799; Sher Muhammad v. The Crown PLD 1949 Lah. 510; American Jurisprudence, 2nd Edn., Vol. 29, published by the Lawyers Cooperative Publishing Company, Rochester, N.Y., Bancroft- Whitney Company, San Francisco, Calif 1967 p.885: Khawaja Ahmad Tariq Rahim v. The Federation of Pakistan PLD 1992 SC 646: Mian Muhammad Nawaz Sharif v. Federation of Pakistan PLD 1993 SC 473 and Mian Ziauddin v. Punjab Local Government Election Tribunal, Lahore and 2 others 1984 CLC 1544 ref.

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

----Art. 199---Judicial notice by the High Court---Scope---Newspaper reports and articles---Circumstances under which Court could take judicial notice of newspaper reports and articles enumerated.

A Court may take judicial notice of the newspaper reports and articles, inter alia, in the following circumstances--

(i) where the direct evidence is not available;

(ii) where it is sought to be proved that a person had notice of the contents of a newspaper report;

(iii) where it is sought to be shown that a person is an author or otherwise responsible for the statement or article published in a newspaper which is to be used against him;

(iv) in cases of defamation;

(v) if the issue/occurrence is rather old and eye-witnesses are either wanting or less reliable.

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

----Art. 199---Constitutional -jurisdiction of High Court---Scope---High Court cannot give credence to a view or grant a prayer without due process of law and hasten, a conclusion without evidence to back it.

(d) Election-----

---- Election of a "holder of a public office" could not be annulled or the incumbent of an office disqualified, on the basis of the press reports alone.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope--­Where the prayer made in the Constitutional petition entailed factual inquiry calling for- recording of evidence, High. Court declined interference, as such an exercise could only be -undertaken by A Tribunal of plenary jurisdiction.

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

----Art. 199---Constitutional jurisdiction of High Court ---Scope--­Filing of cases and issues which did not fall within the domain of High Court under its Constitutional jurisdiction were, to a certain extent part of a broad worldwide trend and could also be attributable to the country's specific phenomenon of institutional erosion.

(g) Democracy----

----Essentials---Democracy cannot be brought merely by noble thoughts, words or pronouncements---Democracy and rule of law cannot bloom and flourish in absence of other sustaining elements of civil society i.e. education, tolerance, eternal vigilance for rights, commitment to duty; a level of economic well being and a culture of values---Country and people have to determine the national priorities in accord with the aspirations and ideals they cherish and these ideals have to be backed by affirmative action---Dichotomy in thought and action is debasing and a recipe for ideals to go sour---Each individual has to contribute his/her bit. and each State institution has to play its, defined role, for it takes an effort, a people and a village to make a civil society.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope--­Court cannot make up for the loss of years homework not done, for the "road not taken" and for the lopsided priorities pursued---Judges sitting in the Constitutional proceedings cannot arrogate to themselves the role of .Platonic Guardians and act beyond the Constitution or get embroiled in the passions of the day---Court is under a mandate-to remain within the parameters of its lawful authority.

Makhdoom Ali Khan, Attorney-General for Pakistan, assisted by M.Pervaiz Akhtar Malik, Sher Zaman Khan and Muhammad Nawaz Bhatti, Deputy Attorney-General and Shahid Karim for Respondents.

Dates of hearing; 18th, 19th December,'2002; 3rd October; 21st November, 9th and 10th December, 2003.

P L D 2004 Lahore 145

Before Tassaduq Hussain Jilani, Raja A4uhammd Sabir and Asif Saeed Khan Khosa, JJ

PAKISTAN LAWYERS FORUM and others---Applicants

Versus

FEDERATION OF PAKISTAN and others---Respondents.

Review Application No. 169 of 2002 in re: Writ Petition No.4556 of 1998, decided on 20th October, 2003.

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

----S. 114 & O.XLVII, R.1---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Review application---Maintainability--­Guidelines---Review application is not to be entertained where attempt is made through such application to the main case or where re­consideration or re-appraisal of the same material is sought---Error pointed out through such application must have a material bearing upon the fate of the case indicating that but for such error the result of the case would have been different---Points not raised during the hearing of main petition cannot be made grounds for review---Merely because another view of the same matter was possible was never considered to be a valid ground for review---Mere judgment being erroneous, is not, by itself a valid ground for its review.

Faqir Muhammad Khan v. Mir Akbar Shah PLD 1973 SC 110; Mst. Bilqis Bibi v. Mst. Zainab Bibi and others 1989 SCMR 1008; Ahmad and 5 others v. The State 2002 SCMR 1611; Mirza Bashir Ahmad v. Abdul Karim 1976 SCMR 417; Principal, Nishtar Medical College, Multan v. Muhammad Iqbal Khan Niazi and 2 others 1979 SCMR 604; Zulfikar Ali Bhutto v. The State PLD 1979 SC 741; Jalal and 3 others v. Nazir Ahmad and 8 others 1980 SCMR 320; Mst. Zainab Khatoon and another v. Mst. Ghulam Fatima 1980 SCMR 331; Abdul Majeed and another v. Chief Settlement Commissioner and others 1980 SCMR 504; Colony Sarhad Textile Mills Ltd. v. Superintendent, Central Excise and Land Customs, Nowshera 1981 SCMR 867; Abdul Hamid Saqfi v. Service Tribunal of Pakistan and 22 others 1988 SCMR 1318; Manzoor Hussain v. Mst. Zohra Bibi PLD 1990 SC 924; Lt.-Col. Farzand Ali v. Province of West Pakistan 1980 SCMR 909; Mst. Hashmat Bibi and others -v. Gulzar Muhammad and others 1981 SCMR 316; Hussain v. Allah Bakhsh 1986 SCMR1155; Brig. H.H. Nawab Muhammad Abbas Khan Abbasi, Ameer of Bahawalpur v. The Government of Pakistan and others PLD 1984 SC 67; Muhammad Hanif v. Samar Gul and others 1986 SCMR 1179; Haji Muhammad Saifullah Khan v. The Federation of Pakistan and others PLD 1990 SC 79; Begum Razia Muttaqi and others v. State Life Insurance Corporation (Pakistan) and others 1981 SCMR 762; The Government of Punjab through Secretary, Education Department and another v. Board of Foreign Missions of the Presbyterian Church in the United States of America through Lahore Church Council PLD 1988 SC 382 rel.

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

----Arts.199, 203-D & 203-G--Constitutional petition ---Maintainability--­Declaration as to repugnancy to Injunctions of Islam---Petitioner had assailed privileges and perks' of Government Officials on the ground of the same being repugnant to Injunctions of Islam---Validity---Privileges and perks' were based upon some laws, rules or instructions etc. and for getting a declaration regarding their repugnancy to the Injunctions of Islam, the petitioner had to approach Federal Shariat Court under Art.203-D of the Constitution---Jurisdiction of High Court by virtue of the provisions of Art.203-G of the Constitution was ousted in that regard--­Petition was not maintainable in circumstances.

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

----S. 114 & O.XLVII, R.1---Constitution of Pakistan (1973), Art.199--­Review application---Judgment passed by High Court in exercise of Constitutional jurisdiction---Review petition---Petitioner sought declaration from High Court in exercise of jurisdiction under Art. 199 of the Constitution---High Court dismissed the petition---Petitioner filed the application for review of the judgment and wanted to re-argue the matter already decided by the High Court---Validity---Review application being devoid of merits was dismissed in circumstances.

Sharaf 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 v. Sharaf Faridi and others PLD 1994 SC 105; Faqir Muhammad Khan v. Mir Akbar Shah PLD 1973 SC 110; Zulfikar Ali Bhutto v. The State PLD 1979 SC 741; Abdul Ghaffar- and others v. Asghar Ali and others PLD 1998 SC 363; M.A. Ghani Soofi and Sons v. The Federation of Pakistan PLD 1957 Lah. 363; Sikandar Abdul Karim v. The State 1998 SCMR 908; The State v. Asif Adil and others 1997 SCMR 209; Haji Muhammad Ibrahim v. The Deputy Commissioner, Tharparkar and Ex-Officio Controlling Authority; Town Committee, Jamesabad at Mirpurkhas 1971 SCMR 63; Fazlul Quader Chowdhry and others .v. Muhammad Abdul Haque PLD 1963 SC 486 and Khan Asfandyar Wali and others v. Federation of Paksitan through Cabinet Division, Islamabad and others PLD 2001 SC 607 ref.

A.K. Dogar for Applicants.

Date of hearing: 30th September, 2003.

P L D 2004 Lahore 155

Before Tassaduq Hussain Jilani and M. Bilal Khan, JJ

FARRUKH JAVED GHUMMAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.432 of 2002, decided on 24th November, 2003.

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

----Ss.9(a)(v) & 14(c)---Qanun-e-Shahadat (10 of 1984). Art.2(4)--­Allegation of corruption and corrupt practices---Appreciation of evidence---Accused, holder of a public office, happened to he a landowner as well---Presumption against accused accepting illegal gratification--­Accused, in the present case, was convicted on the sole charge of acquisition of assets and properties disproportionate to his "known sources of income" within meaning of S.9(a)(v) of National Accountability Ordinance, 1999---"Known sources of income"---Connotation and evidentiary requirements---Duty of Investigation Officer---Presumption of guilt against the accused under S.14 of the Ordinance---Mode and burden of proof---Principles---Statement of accused under S.342, Cr.P.C.--­Evidentiary value---Statement of Investigating Officer---Extent of admissibility and relevance---Prosecution, in the present case, though had failed to discharge the- initial burden of proof yet the Trial Court convicted the accused not on the basis of any piece of evidence indicating that the accused had properties which were not commensurate with his "known sources of income" brought on record but on an inference drawn by the Trial Court from mutations of exchange of property---Validity---Court could raise the presumption, when the prosecution had succeeded in discharging its initial burden of proof and the accused had failed to raise a :presumption "unless contrary was proved" that the accused was guilty of .the offence with which he had been charged---Mere denial by the accused in a statement under S:342, Cr.P.C. or even a plausible explanation would not be enough to Prove "the contrary" within meaning of S.14(c) of the National Accountability, Ordinance, 1999 pr to discharge the onus which stood shifted on the accused---Statement of the accused, nevertheless, could not be brusher aside---Combined effect of Ss.9(a)(v) & 14(c) of the National Accountability Ordinance, 1999 and,Art.2(4), Qanun-e-Shahadat, 1984 would be that the statement/plea of the accused would be considered and treated as evidence for rebutting the presumption raised--­Presumption could only be rebutted if the statement of the accused was considered alongwith other circumstances/evidence brought on record provided sufficient proof within the meaning of Art.2(4) of the Qanun-e-­Shahadat, 1984 was brought on record---Accused, in his statement under 5.342, Cr.P.C. had submitted "Takhmeena Aamdan" prepared by Revenue Officers under the West Pakistan Land Revenue. Assessment- Rules, 1968 and his other source of income in detail---Trial Court, however, gave a gist of the statement of accused recorded under S.342, Cr.P.C. made a reference to the evidence led in defence but did not consider the, same and without any cogent reason refused to extend any credence to the same by holding "that no implicit reliance can be placed on the statement of defence witnesses as they are nothing more than self-serving statements"---Approach 'adopted by the Trial Court, in circumstances, was neither in accord with the mandate of law nor with the well established principles of appreciation of evidence---Defence plea corroborated by the evidence led in defence was a satisfactory account of sources of income of the accused with which he had acquired the assets and properties held by -him ---Prosecution having failed to discharge the onus of proof, the presumption of guilt raised against the accused and his conviction were therefore, not-warranted in law.

The accused in the present case, was convicted on the sole charge of acquisition of assets and properties disproportionate to his "known sources of income" within the meaning of clause(v) of subsection (a) of section 9 of the-National Accountability Ordinance, 1999.

The evidentiary requirement to prove the afore-referred charge was couched in sect-ion 14(c) of the said Ordinance.

The, provision of section 14(c) of the National Accountability Ordinance, 1999, though not unknown in special laws, is a deviation from the age old principle of the law of evidence that an accused is presumed to be innocent unless- proved otherwise by the prosecution. Here a presumption of guilt has been raised against the accused.

The presumption raised, one has to bear in mind, is a qualified one i.e. the trial Court would be justified in raising this presumption only when the prosecution succeeds in proving the basic ingredients of the charge. Thus the initial burden continues to be on the prosecution. To substantiate the charge, the prosecution has to prove the following facts:--

(i) The accused or any of his dependents or benamidars owns or possesses or has a right or title in assets or holds irrevocable power of attorney in respect of assets;

(ii) What are the "known sources of income" of the accused?

(iii) That the assets and properties acquired are disproportionate to the "known sources of income" of the accused.

The expression "known sources of income" means the sources of income known to the prosecution after thorough investigation of the case. Obviously the prosecution is not expected to know every detail of the income of the accused. But to bring a charge against some one under the law under consideration, the prosecution has to give details of the "known sources of income", compare it objectively with the assets etc., and only in case of the latter being disproportionate, can it file the reference. If the accused is holder of a public office, his salary, his allowances and other privileges like transport etc. are part of his known sources of real income. If, he happens to be a land owner as well, the agricultural income has to be included in his income. It is the duty of the Investigating Officer to thoroughly inquire into the ".known sources of income" of the accused and the latter has to be given full opportunity in this regard. Assessment of agricultural income may not be an easy task for the Investigating Officer for more than one reason. Firstly, in our rural culture book keeping is rarely done, secondly, there is no compulsion to do so as it is not a taxable income, thirdly, even if some one does it, he is. not expected to maintain the record for a decade and, fourthly, when the accused is holder of a public office, it is not an offence and he is not obliged to maintain the account to meet any future eventuality.

The only mode recognized in revenue law to assess the agricultural income of an estate or an individual is provided in Rule 3 of the West Pakistan Land Revenue Assessment Rules, 1968.

The prosecution, in the present case, never bothered to undertake the afore-referred exercise either during investigation or, trial and when High Court confronted the Special Prosecutor for NAB with the afore ­referred rules, he was in no position to deny its relevance.

The prosecution did, however, 'succeed in establishing the first limb of the charge i.e. acquisition of assets and properties. The 'accused admitted having acquired those assets. To prove the second limb of the charge i.e. "known sources of income", the only witness produced by the prosecution, was the Investigating Officer. According to this witness the agricultural income of the accused from 1986 to 1991 was Rs.24,15,845, the expenditure incurred during .this period was Rs.8,05,282 and net income was Rs.16,10,563. This was seriously objected to by the defence counsel during trial because, the documents/material on the basis of which the Investigating Officer made that assessment were not proved by the prosecution. The Investigating Officer sought to defend this assessment on the basis of "Jhar Paidawar" from 1986 to 1991. The document with regard to "Jhar Paidawar", was never brought on record: He conceded that it was a document prepared at the time of settlement to determine the produce of the land. In answer to a question, he failed to tell the year in which the settlement was carried out in the. District and when the "Jhar Paidawar" was prepared.

This lacuna in the prosecution case could not be filled by the statement of the Investigating Officer. His testimony was of no avail for proving the "known sources of income". Rather it further exposed the infirmities of the prosecution case in the following ways:--

(i) He admitted that there were kino orchards on the land of the accused but he made no efforts to assess their income and conceded that he did not record .the statement of any lease holder who obtained the said "kino" orchards on lease, nor of any official of the Agricultural Department about that.

(ii) He admitted that the accused remained Chairman of District `Council, Sargodha from 1089 to 1992 but he made no efforts to know how much salary or honoraria aid allowances were paid and what facilities he enjoyed in the sand capacity. Similarly, he conceded that he did not enquire into how much salary/honoraria and allowances were paid to the accused during the period he remained an MPA i.e. from 1985 to 1990 and 1990 to 1996.

(iii) He showed his ignorance that the accused had a dairy farm and that he obtained a loan for the said farm from Punjab Small Industries Corporation.

(iv) He did not record the statements of the accused's wife, his two sons and daughter, qua the properties in their names which are part of the charge-sheet and their respective incomes.

(v) The statement of the Investigating Officer is admissible and is relevant only insofar as he collects the material which is to be produced as evidence during, trial and records statements of those witnesses who ultimately depose in Court. However, during trial he cannot be a substitute for any of the above pieces of evidence. He cannot prove a document of which he is not the author, nor play proxy to the witnesses who are not produced during trial without any cogent reason. His statement, in the afore-referred circumstances, is merely an opinion, which is both irrelevant and inadmissible.

Although the prosecution failed to discharge the initial burden of proof yet the Trial Court convicted the accused not on the basis of any piece of evidence indicating that the accused had properties which were, not commensurate with the "known sources of income" brought on record but on an inference drawn by the trial Court from mutations of exchange.

In absence of any evidence on record to indicate that mutations of exchange were actually sales and the lands shown to have been given in exchange remained with the accused, the finding that those were "shady transactions" was rather conjectural. Even if those were actually sales, the object to show them as exchanges could be different i.e. it could be to avoid the pre-emption suits, and in any case the conclusion drawn that the acquisition of those properties was disproportionate to income is not borne out. from the evidence led by the prosecution. The accused did explain in detail about the sources of his income and led oral and documentary evidence to 'prove that.

When the prosecution has succeeded in discharging its initial burden of proof and the accused has failed to "satisfactorily account" for the same, then the Court has to raise a presumption "unless contrary is proved" that the accused is guilty of the offence with which he has been charged.

A mere denial by the, accused in a statement under section 342, Cr.P.C. or even a plausible explanation may not be enough to prove "the contrary" within the meaning of section 14(c) of the National Accountability Ordinance, 1999 or to discharge the onus which stands shifted on the accused under the provision under consideration.

The statement of the accused, nevertheless, cannot be brushed aside. The combined effect of sections 9(a)(v), 14(c) of National Accountability Ordinance, 1998 and Article 2(4) of the Qanun-e-Shahadat would be that the statement/plea of the accused may be. Considered and treated as evidence for rebutting the presumption. raised., However, that by itself, would not be sufficient to rebut me presumption raised. The presumption can only be rebutted if the statement of the accused is considered alongwith other circumstances/evidence thought on record to provide sufficient proof within the meaning of Article 2(4) of the Qanun­e-Shahadat, 1984.

The trial Court gave a gist of the 'statement of the accused recorded under section 342, Cr.P.C., and made a reference to the evidence' led in defence but did not, consider the same and without any cogent reason refused to extend any credence to the same by holding that "no implicit reliance can be placed on the statements of the defence witnesses as they are nothing more than self-serving statements": The approach adopted by the trial Judge was neither in accord with the mandate of law nor with the well-established principles of appreciation of evidence.

The accused in his statement under section 342, Cr.P.C. gave an explanation that he acquired those properties out of his own income. In this connection he referred to his agricultural income for which purpose he produced "Takhmeena Aamdan" prepared by the Revenue Officers under the West Pakistan Land Revenue Assessment Rules, 1968, the income from his "king" orchards, the salary and honoraria that he received as Member of the Provincial Assembly and-as Chairman of the District Council 1985 to 1996 and 1989 to 1992 respectively. The oral and documentary evidence led to prove accused's income, beside his own statement.

The defence plea corroborated by the evidence led in defence were sufficient to persuade the High Court to hold that the accused had given a satisfactory account of his sources of income with which he acquired the assets and properties held by him.

The prosecution had failed to discharge the onus of proof, the presumption of guilt raised against the accused and his conviction were, therefore, not warranted in law.

Moonda and others v. The State PLD 1958 SC (Pak.) 275; Farman Ali and 2 others v. The State 1992 SCMR 2055; C.S.D. Swami v. The State AIR 1960 SC 7 and Rameswar Prasad Upadhya v. State of Bihar AIR 1971 SC 2474 ref.

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

----Preamble---Accountability of holders of public office and eradication of corruption---High Court desired the need of System which could effectively address the said issues and provide ,W proper legal framework within which it could function as an independent judicial prosecution institution and independent and efficient Anti-Corruption Agency which was imperative-for detection, investigation and bringing the corrupt in the dock---Failure of Investigation Agency in the present case highlighted.

Accountability of holders of public office and eradication of corruption are laudable goals and are issues of concern, worldwide. However: no country and no system can effectively address these issues unless it has a proper legal framework within which independent judicial and prosecutorial institution can function. An independent and efficient Anti-Corruption Agency is also imperative for detection, investigation and bringing-the corrupt in the dock. Without such institutional arrangements; the Courts may-not be in an ideal position to bring the accused to justice and even the most corrupt may get away with whatever they do. This crucial, aspect has been brought into focus in the instant case and one can appreciate how the missing links and omissions in the prosecution case could prove fatal. For instance, the best evidence available with regard to the sources of income of the accused was not brought on record by the Investigating Officer, no revenue official was examined by the prosecution and no document was exhibited with regard to sources of income either. Similarly, the charge with regard to evasion of stamp duty and taxes was not seriously pursued and against the acquittal from such charge no appeal was filed. High Court declined to comment on the merits of this aspect lest it reflects a bias. In absence of evidence on record, Courts cannot paint some one black and some white on conjectures or rhetoric alone. Courts of law are not supposed to fender moral judgments.

M.A. Malik for Appellant.

Muhammad Hussain Chhachhar, Special Attorney for NAB.

Dates of hearing: 3rd March; 28th April; 9th June; 7th July; 9th September; 20th, 21st and 22nd October, 2003.

P L D 2004 Lahore 182

Before Tassaduq Hussain Jilani and Bashir A. Mujahid, JJ

AKHTAR ALI ‑‑‑Petitioner

Versus

JUDGE SPECIAL COURT (OFFENCES IN BANKS), PUNJAB LAHORE and 3 others‑‑‑Respondents

Writ Petitions Nos.14103, 15685 and 16077 of 2003, decided on 31st December 2003.

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

‑‑‑‑Ss. 9 & 16‑A‑‑Penal Code (XLV of 1860), Ss.409/420/467/468/466/471/477‑A & 109‑‑‑Prevgntion of Corruption Act (II of 1947), S.5(2)‑‑­Criminal Procedure Code (V of 1898), S.5‑‑‑Constitution of Pakistan (1973), Art, 199‑‑‑Constitutional petition‑‑Corruption and corrupt practices‑‑‑Transfer of cases‑‑‑Powers of the Chairman ‑‑‑Scope‑‑­Accused, in the present case, alongwith officials of the Bank had manipulated the record of the Foreign Exchange Section of the Bank and thereafter embezzled an amount of over rupees eighteen million‑‑­Allegation against the accused persons was that they withdrew US Dollors from the relevant accounts against deposit of Pakistan rupees; US Dollors were sold in the open market and differential amount collected owing to the variation in the official rate and kerb rate was pocketed by them‑‑‑Matter, was initially investigated by the Federal Investigation Agency and Challan was filed‑‑‑Case 'Was pending trial before the Judge Special Court (Offences in Banks), When on a letter from the Chairman, National Accountability Bureau was sent to the National Accountability Court established under the National Accountability Ordinance,' 1999‑‑‑Order of transfer of the case to the National Accountability Court was impugned on the grounds that at the stage when the Judge Special Court (Offences in' Banks) had commenced the trial, Chairman National Accountability Bureau could not have transferred the case to the 'Accountability Court; that the powers conferred under S.46‑A of the National Accountability Ordinance, 1999 were arbitrary and that S.16‑A(a) of the Ordinance was inconsistent with S.16‑A(g)‑‑‑Validity‑‑‑Allegations levelled, if found true, did make out a case under S.9(a) of the National Accountability Ordinance, 1999‑‑­Reference in the face of said allegations could have been validly filed in the Accountability Court directly and no exception could have been taken to the same‑‑‑Extent of power of the Chairman under S. 16-A, National Accountability Ordinance, 1999 were not anomalous‑‑‑Power of the Chairman, National Accountability Bureau to have a case transferred from an ordinary Court to the Special Court, provided the matter involved in the case was an offence under the National Accountability Ordinance, 1999 was only an enabling provision to live effect to the other substantive provisions of the Ordinance‑‑‑Provision : of S.5, Criminal Procedure Code, 1898 itself created an exception for offences under the special law‑‑‑Chairman, National ,‑Accountability Bureau had the power to transfer a case from any Tribunal or Court to a Court established under the National Accountability Ordinance, 1999‑‑‑Accused had no vested right to be tried by a particular Court‑‑‑If a bare reading of the allegations levelled, prima facie, made out a case to be tried by a Special Court to which it was sought to be transferred then no exception could ,be taken‑‑‑Principles‑‑‑Special status and powers of the Chairman, National Accountability Bureau detailed.

The petitioner, in the present case, alongwith officials, of the Bank were accused of having manipulated the record of the Foreign Exchange Section of the said Bank and thereafter embezzled an amount of over rupees eighteen million. It was alleged that the petitioner and other accused withdrew US Dollars from the relevant accounts against deposit of Pakistani rupees; US Dollars were sold in the open market and differential amount collected owing to the variation in. the official rate and kerb rate was pocketed by them. The matter ways initially investigated by FIA and challan was filed. The case was pending trial before the Judge Special Court (Offences in Banks) when ‑on a letter from the Chairman, NAB it was sent to the National Accountability Court established under the National Accountability Ordinance, 1999. The afore‑referred allegations, if found true, did make out a case under section 9(a) of the NAB Ordinance.

The reference in the face of the afore‑referred allegations could have been validly filed in the Accountability Court directly and no exception could have been taken to it. The order of transfer had been impugned fundamentally on the grounds that, firstly, at a stage when the Judge Special Court (Offences in Banks) had commenced the trial, Chairman, National Accountability' Bureau could not have transferred the case to the Accountability Court and, secondly, the powers conferred under section 16A of the National Accountability Ordinance, 1999 were arbitrary and, thirdly, section 16-A(a) was inconsistent with section 16‑A(b).

The Chairman of the National Accountability Bureau under the law enjoys a special status and powers. The appointment is made under section 6 of the Ordinance by the President. Under section 12 he has the power to seize the property of any person accused 'of an offence under NAB Ordinance, subject of course, to the confirmation by the Court. Under section 16A of the Ordinance he has the power to transfer a case from any Tribunal or Court to a Court established under the NAB Ordinance. Under section 18 he has the power to initiate reference against a person. Under section 19 he can 'call for any information from any office or person or a Banking institution. Under section 22 he has the power to `inquire into' and investigate any suspected offence which appears to him, on reasonable grounds, to involve serious offence under this Ordinance and has been referred to him or of his own accord. Under section 24 he has the power to direct arrest of any person accused of an offence under the NAB Ordinance. Under section 25 he has been authority to accept bargain of the accused before the case is sent up to Court. Under section 26 he can tender a full or conditional pardon to a person who discloses the circumstances within his knowledge relating to the offence in question. Under section 27 he had the power to requisition' documents and information in connection with any matter pending before .the NAB. Under section 28 he has the power to make certain appointments in the NAB hierarchy.

The extent of the Chairman power under section 16‑A of the NAB Ordinance did not appear to be anomalous.

The law has created a special, procedure for investigation and conduct for trial of offences under the Ordinance. The power of the Chairman, National Accountability Bureau to have a case transferred from an, ordinary Court to the special Court, provided it is an offence under the National Accountability Ordinance, 1999, is only an enabling provision to give effect to the other substantive provisions of the Ordinance. The Criminal Procedure Code itself creates an exception for offences under the special law.

The accused has no vested right to be tried by a particular Court. If a bare reading of the allegations leveled, prima facie, make out a case to be tried by a Special Court to which it is, sought td be transferred, then no exception can be taken to it. Any other interpretation would lead to an anomalous situation and result in parallel proceedings.

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

‑‑‑‑Ss.6, 12, 16‑A, 18, 19, 22, 24, 25, 26, 27 & 28‑‑‑Chairman of the National Accountability Bureau under the law enjoys a special status and powers.

The Chairman of the National Accountability Bureau under the law enjoys a special status and powers. The appointment is made under section 6 of the Ordinance by the President. Under section 12 he has the power to seize the property of any person accused of an offence under NAB Ordinance, subject of course, to the confirmation by the Court. Under section 16‑A of the Ordinance he has the power to transfer a case from any Tribunal or Court to a Court established under the NAB Ordinance. Under section 18 he has the power to initiate reference against a person. Under section 19 he can call for any information from any office or person or a Banking Institution. Under section 22 he has the power to `inquire into' and investigate any suspected offence which appears to him, on reasonable grounds, to involve serious offence under this Ordinance and has been referred to him or of his own accord. Under section 24 he has the power to direct arrest of any person accused of an offence under the NAB Ordinance. Under section 25 he has been authorised to accept bargain of the accused before the case is sent up to Court. Under section 26 he can tender a full or conditional pardon to a person who discloses the circumstances within his knowledge relating to the offence in question. Under section 27 he has the power to requisition documents and information in connection with any matter pending before the NAB. Under section 28 he has the power to make certain appointments in the NAB hierarchy.

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

‑‑‑‑S. 16‑A‑‑‑Transfer of cases‑‑‑Extent of powers' of the Chairman, National Accountability Bureau under S.16‑A, National Accountability Ordinance, 1999 were not anomalous.

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

‑‑‑‑Ss.16‑A, 22 & 24‑‑‑Transfer of case‑‑‑Law has created a special procedure for investigation and conduct for trial of offences under National Accountability Ordinance, 1999‑‑‑Power of the Chairman, National Accountability Bureau under S.16‑A of the Ordinance, to have a case transferred from an ordinary Court to the Special Court, provided it was an offence under the Ordinance, is only an enabling provision to give effect to the other substantive provisions of the Ordinance‑‑­Provision of S.5, Criminal Procedure Code, 1898 "s created an exception for offences under special law.

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

‑‑‑‑Ss. 16, 46‑A & 22‑‑‑Trial of offences‑‑‑Jurisdiction‑‑‑Transfer of case‑‑Accused has no vested right to be tried by a particular Court‑‑‑If a bare reading of the allegations levelled, prima facie, make out a case to be tried by a Special Court to. which it is sought to be transferred, then no exception can be taken to the same and any other interpretation would lead to an anomalous situation and result in parallel proceedings.

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

‑‑‑‑S. 16‑A‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Transfer of a case by the Chairman, National Accountability Bureau under S.16‑A of the Ordinance‑‑‑Judicial review‑‑‑Scope‑‑‑Order of the Chairman, National Accountability Bureau, passed under the. National Accountability Ordinance, 1999 is subject to judicial review if it is violative of any provision of the Ordinance or the Constitution but an accused cannot be given the right to challenge such an order as of right merely on the ground that he does not want to be tried by the Accountability Court‑‑‑Chairman has to pass an order only if an offence, under the Ordinance, is made out, and if it is not, then the High Court retains its power to interfere under Art.199 of the Constitution‑‑­Expression "the Chairman may apply to any Court of law or Tribunal" appearing in S.16‑A(a) of the Ordinance does not include the Constitutional Courts including' the High Court‑‑‑Provision of S.16‑A(a) would apply only in cases where both the Courts i.e. the Court where the case is pending and the Court to which it is sought to be transferred, are in the same Province but if two Provinces are involved then S.16‑A(b) would come into play.

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

‑‑‑‑S.16‑A‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Vires of S.16‑A, National Accountability Ordinance, 1999‑‑‑Provision of S. 16‑A of the Ordinance was not ultra vires the Constitution as nothing was shown to indicate that the said provision was hit by any fundamental rights given in the Constitution.

(h) Interpretation of Constitution‑‑‑-

‑‑‑‑ While interpreting a particular provision of law or Constitution, a Constitutional Court has to be watchful not to interpret the same in a manner, which would make the provision redundant or meaningless and Court cannot question the legislative wisdom either as long as the said provision is neither discriminatory nor offends against any other Article of the Constitution.

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

‑‑‑‑S. 16‑A(c)‑‑Order of transfer of case by the Chairman, National Accountability Bureau to the Accountability Court under S. 16‑A of the Ordinance‑‑‑Accused, under S.16‑A(c) of the Ordinance was on equal footing and can move for transfer of case and has a right to challenge the order of transfer to the Accountability Court on the ground that the offence in question is not under the National Accountability Ordinance, 1999.

Khan Asfandyar Wali and others v: Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607 ref.

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

‑‑‑‑S.16‑A‑‑‑Transfer of case‑‑‑Powers of the Chairman, National Accountability Bureau to order transfer of case under S. 16‑A of the Ordinance‑‑‑Object and scope.

Notwithstanding anything contained in any other law for the time being to force, the Chairman NAB may apply to any Court of law or Tribunal for transfer" of the case involving a scheduled offence pending before such Court or Tribunal and. on receipt of such application such Court or Tribunal shall transfer the said case to any Court established under the Ordinance. The object of the special law is to expedite the disposal of cases involving corruption, corrupt practices, misuse of powers, misappropriation of property and matters, connected thereto under the Ordinance, and to avoid procedural delays and technicalities. The language of the provision unequivocally reflects the intention of the Legislature that the provision is self‑contained and. self‑ executor leaving no option for the Court before whom cases involving scheduled offences are pending but to transfer the same. It is rather imperative to accede to such request unless it can be shown to the satisfaction of the Court that the offence against the accused‑ does not fall amongst the offences included in the Schedule On no other ground can a Court turn down a request for transfer of a pending case to Accountability Court on an application made by the Chairman NAB under the Ordinance. This being the position in law, and the object of the Legislature, contention that the transferee Court in all fairness and reasonableness ought to have given notice of transfer to the petitioners was repelled. It is not the requirement of law under the Ordinance that such order can be passed only after notice to the accused. Intention of the Legislature is rather patently clear and certain from the non obstante clause at the commencement of the provision. In fact the provision has the overriding effect over general law.

Civil Petitions for Leave to Appeal Nos.957‑K of 2001 and 44‑K of 2002 fol.

Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607; Read v. Smith 1959 NZLR 996; Principles of Judicial Review by De Smith, Woolf and Jowells; Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others PLD 2000 SC 869; Government of Sindh through the Chief Secretary and others v. Khalil Ahmad and others 1994 SCMR 782; Dr. Tariq Nawaz and another v. Government of Pakistan through the Secretary, Ministry of Health, Government of Pakistan, Islamabad and another 2000 SCMR 1956 and Pakistan Muslim League(Q) and others v. Chief Executive of Islamic Republic of Pakistan and others PLD 2002 SC 994 ref.

Syed Zahid Hussain Bokhari for Petitioner (in Writ Petition No. 14103 of 2003).

Syed Talib H. Rizvi and Syed Taffazzul H. Rizvi for Petitioner (in Writ Petition No. 15685 of 2003).

Nemo for Petitioner (in Writ Petition No. 16077 of 2003).

Makhdoom Ali Khan, Attorney‑General for Pakistan assisted by Malik M. Pervaiz Akhtar, Sher Zaman Khan, Muhammad Nawaz Bhatti, Malik Waqar Saleem, Deputy Attorney‑Generals and Shahid Karim (on Court's Call).

Waqar Hassan Mir, Deputy Prosecutor‑General, NAB assisted by Ali Tipu Khan for NAB:

Dates of hearing: 18th November and 8th December, 2003.

P L D 2004 Lahore 199

Before Asif Saeed Khan Khosa and M.A. Shahid Siddiqui, JJ

BASHARAT ALI ‑‑‑Petitioner

Versus

SPECIAL JUDGE, ANTI‑TERRORISM COURT‑II, GUJRANWALA‑‑ Respondent

Writ Petition No. 15843 of 2003, decided on 14th January, 2003.

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

‑‑‑‑S. 6 [as substituted by Anti‑Terrorism (Amendment) Ordinance (XXXIX of 2001)]‑‑‑"Terrorism"‑‑‑Concept‑‑‑Currently no definition of `terrorism" is available in the customary international law‑‑‑"Terror" as a manifestation of horror, shock or disgust, is known to human society and civilization since times immemorial but "terrorism" as an 'ism' or an articulated pattern of thought and activity, is relatively of a recent origin‑‑‑" Terrorism" and "terror"‑‑‑Distinction‑‑‑Test to determine whether a particular act is "terrorism" or not is the motivation, object, design or purpose behind the act and not the consequential effect created by such act‑‑‑"Terrorism", in this context has to be understood as a species different and apart from terror, horror, shock, fear, insecurity, panic or disgust created by an ordinary crime‑‑‑History of recent "terrorism" in the world and an insight into how the world has understood and tried to define the same may be a significant help and of critical importance in appreciating the true meanings and import of the term "terrorism".

Terror, as a manifestation of horror, shock or disgust, is known to human society and civilization since times immemorial but terrorism, as an 'ism' or an articulated pattern of thought and activity, is relatively of a recent origin.

Terror and terrorism are concepts quite distinct from each other and the quintessence of the two notions is not difficult to distil. Terror as a manifestation of fright, dread, fear or insecurity is a consequential effect created by an act that may not necessarily be motivated to create such an effect whereas terrorism is an activity designed to create such an effect of terror. The critical difference between the two is the design and purpose understood in the criminal, jurisprudence as mens rea. In the case of terror the act, or the actus reus, is not motivated to create fear and insecurity in the society at large but the same is actuated with a desire to commit a private crime against targeted individuals, etc.

and the fear and insecurity created by the act to the society at large is only an unintended consequence or a fall out thereof whereas in the case of terrorism the main purpose is creation of fear and insecurity in the society at large and the actual victims are, by and large, not the real targets. Every crime, no matter what its magnitude or extent, creates some sort of fear and insecurity in some section of the society but every felony or misdemeanour cannot be branded or termed as terrorism. As against that an act of terrorism designed to create fear and insecurity in the society at large may or may not succeed in achieving the desired effect but nonetheless it can be accepted as nothing but terrorism because of the object or purpose behind such act. Thus, the real test to determine whether a particular act is terrorism or not is the motivation, object, design or purpose behind the act and not the consequential effect created by such act. In this context terrorism has to be understood as a species different and apart from terror, horror, shock, fear, insecurity, panic or disgust created by an ordinary crime. The history of recent terrorism in the world and an insight into how the world has understood and tried to define the same may be of significant help and of critical importance in appreciating the true meanings and import of the term `terrorism'.

There is currently no definition of terrorism available in the customary international law.

Another academic attempt to define terrorism indicates that the essence of the activity is the use of, or threat to use violence. According to this definition an activity that does not involve violence or a threat of violence will not be defined as terrorism (including non‑violent protest-­strikes, peaceful demonstrations, tax revolts, etc.). It is maintained that the aim of the activity is always political, i.e. the goal is to attain political objectives like changing the regime, changing the people in power, changing social or economic policies, etc. In the absence of a political aim the activity in question will not be defined as terrorism. A violent activity against civilians that has no political aim is, at most, an act of criminal delinquency, a felony, or simply an act of insanity unrelated to terrorism. Some scholars tend to add ideological or religious aims to the list of political aims. The advantage of this definition is that it is as short and exhaustive as possible. The concept of 'political aim' is sufficiently broad to include all the considerations which may be relevant. This approach takes notice of the fact that the targets of terrorism are generally civilians as it exploits the relative vulnerability of the civilian, 'underbelly'‑--‑the tremendous anxiety, and the intense media reaction evoked by attacks against civilian targets. The proposed definition emphasizes that terrorism is not the result of an accidental injury inflicted on a civilian or a group of civilians who stumble into an area of violent political activity but it stresses that this is an act purposely directed against Civilians This is why, as mentioned above, political expert George Lopez from the University of Notre Dame defines terrorism as "a form of political violence that by design violates some of the society's accepted moral and legal codes, is often ruthlessly destructive, and it often reflects a detailed strategy that uses horrific violence to‑push political goals.

Out of the various facets of the world view about terrorism one factor is constant and that is that in order to qualify as terrorism an act must be designed to achieve a political and a larger objective and the same is not primarily directed against the actual victims themselves who are treated merely as `collateral damage'. It is also quite evident that the extent of the actual damage caused or injuries inflicted by the act is not the determinative factor in this regard.

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

‑‑‑S. 6‑‑‑"Terrorism"‑‑‑History of terrorism as it is known today traced.

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

‑‑‑‑S. 6 ‑[as substituted by Anti‑Terrorism (Amendment) Ordinance (XXXIX of 2001)]‑‑‑"Terrorism"‑‑‑Definition and scope‑‑‑Intent and motivation behind the action would be the determinative of the issue irrespective of the fact whether any fear and insecurity was actually created or not‑‑‑Action can be termed as "terrorism" if the use or threat of that action is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or if such action is designed to create a sense of fear or insecurity in society, or the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause‑‑‑Creating fear or insecurity in the society is not by itself "terrorism" unless the motive itself is to create fear or insecurity in the society and not when fear or insecurity is just a byproduct, fall out or an unintended consequence of a private crime‑‑­Emphasis of the Legislature appears to be on the motivation and objective and not on the result‑‑‑Mere shock, horror, dread or disgust created or likely to be created in the society does not transform a private crime into "terrorism" but "terrorism" as an "ism" is totally different concept which denotes commission of a crime with the object and purpose of destabilizing the society or Government with a view to achieve objectives which are political in the extended sense of the word; such an approach appears to be in harmony with the emerging international perception about terrorism according to which, the aim of the activity is always political, i.e. the goal is to attain political objectives like changing the regime, changing the people in powers, changing social or economic policies, etc.‑‑‑In the absence of a political aim, the activity in quest will not be defined as terrorism‑‑‑Violent activity against civilians that has not political aim is, at most, an act of criminal delinquency, a felony, or simply an act of insanity unrelated aims to the list of political aims‑‑‑High Court observed that in view of such conceptual transformation even the interpretations of "terrorist act" or "terrorism" rendered by the Courts in Pakistan in the past on the basis of the earlier law may, require revisiting and reinterpretation so as to be in line with the newly‑introduced definition and concept of terrorism‑‑‑Principles.

The core and essence or the pith and substance of a `terrorist act' defined by Anti‑Terrorism Act, 1997 was striking terror in the people or any section of the people or alienating any section of the people or adversely affecting harmony among different sections of the people. The emphasis appeared to be on the gravity of the offence and its effect upon the general populace rather than on the actual motivation behind the act.

The above mentioned definition of a `terrorist act' contained in section 6 was subsequently amended through‑the Anti‑Terrorism (Second Amendment) Ordinance, 1999.

Through this amendment the focus on the effect of the action was extended to a potential or likely effect besides the actual effect of the action and the focal point still remained the effect of the action rather than the incentive or inspiration behind the same.

White providing in the amended section 6 that "in, order to, or if the effect of his actions will be to, strike terror or create a sense of fear and insecurity in the people, or any section of the people, does any act or thing‑‑‑" the Legislature never specified the motivation for that "act or thing" on the part of the perpetrator which propelled or prompted him to commit a terrorist act. Thus, the actus reus was itself considered to be determinative if the same was intended to create fear and insecurity, etc. in the public at large, had the effect of creating such fear and insecurity, etc. or had a potential for creating such fear and insecurity, etc. According to this definition what was of paramount consideration was the effect of the act, whether actual, intended or potential, and not the design or the purpose behind that act. It was in that context that the Supreme Court of Pakistan had interpreted the provisions of section 6 of this Act in Many cases, that an act was to be considered a terrorist act if its effect, whether actual, intended or potential, was to create fear and insecurity, etc. in the society at large.

On August 15, 2001 the Anti‑Terrorism Act, 1997 was drastically amended through the Anti‑Terrorism (Amendment) Ordinance, 2001 (Ordinance No. XXXIX of 2001). Through the amending Ordinance the Schedule of the Act containing various offences to be tried under the said Act was done away with and the term 'terrorist act' with its definition contained in section 6 of the Act was substituted and replaced by the term `terrorism' with the definition thereof.

The definition of `terrorism' introduced in Pakistan in 2001 through the latest amendment in the Anti‑Terrorism Act, 1997 proceeds on lines somewhat similar, if not identical, to the corresponding definitions contained in the relevant laws of Northern Ireland, United Kingdom, United States of America, Australia and India.

The similarities, nay resemblances, in the definitions of a `terrorist act' or 'terrorism' enacted in Northern Ireland, United Kingdom, United States of America, Australia, India and Pakistan are too striking to be merely coincidental and, therefore, in the lager interests of global harmony and communion their interpretations ought also not be different.

The resume of legislative developments in the field of terrorism in Pakistan shows that with different laws and definitions of terrorist act or terrorism the emphasis has been shifting from one criterion to another including the gravity of the act, lethal nature of the weapon used, plurality of culprits, number of victims, impact created by the act and effect of fear and insecurity brought about or likely to be created in the society by the action. The last definition of a 'terrorist act' contained in section 6 of the Anti‑Terrorism Act, 1997 squarely focused on the effect of fear and insecurity intended to be created by the act or actually created by the act or the act having the potential of creating such an effect of fear and insecurity in the society. It, however, appears that subsequently the Legislature did not feel convinced of the aptness or correctness of that definition and resultantly the erstwhile definition of a terrorist act' contained in section 6 of the Anti‑Terrorism Act, 1197 was repealed and a totally fresh and new definition of 'terrorism' was introduced through an amended section 6 of the Anti‑Terrorism Act, 1997 and this was accomplished through the Anti‑Terrorism (Amendment) Ordinance, 2001 (Ordinance No. XXXIX of 2001) promulgated on 15‑8‑2001. The Legislature had probably realized by then that an effect of an act may not always be a correct indicator of the nature of such an act as every crime, especially of violence against person or property, doe's create some sense of fear and insecurity in some section of the society and a definition of terrorism based upon the magnitude or potential of an effect created or intended to be created or having a potential of creating would necessarily require a premature, speculative and imaginary quantification of the effect so as to determine the nature of the act in order to decide about the jurisdiction criminal Court to try such an act. That surely was an insure test and the result of such a premature, speculative and presumptive test could vary from Court to Court and from Judge to Judge reminding a legal scholar of the Star Chamber and the early days of a Court of Equity in England where equity was said to vary with the size of the Chancellor’s foot. The new definition ofterrorism' introduced through the amended section 6 of the Anti‑Terrorism Act, 1997 as it stands today appears to be the most comprehensive and the clearest definition of terrorism' introduced in our legal system thus far. It appears that in, its quest for an apt and appropriate definition of terrorism and after stumbling through various, approaches in that regard the Legislature in our country has finally hit upon a definition of terrorism which is not only closest to its real meaning but the same is also in accord with the international perceptions about the same. The earlier emphasis on the speculative effect of the act has now given way to a clearly defined mens rea and actus reus. The amended section 6(1)(b) now specifies thedesign' and section 6(1)(c) earmarks the 'purpose' which should be the motivation for the act and the actus reus has been clearly mentioned in section 6(2)(a) to (n) and now it is only when the actus reus specified in section 6(2) is accompanied by the requisite mens rea provided for in section 6(1)(b) or (c) that an action can be termed as 'terrorism'. Thus, it is no longer the fear or insecurity actually created or intended to be created or likely to be created which would determine whether the action qualifies to be termed as terrorism or not but it is now the intent and motivation behind the action which would be determinative of the issue irrespective of the fact whether any fear and insecurity was actually created or not. After this amendment in section 6 an action can now be termed as terrorism if the use or threat of that action "is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect" or if such action is designed to "create a sense of fear or insecurity in society" or the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause. Now creating fear or insecurity in the society is not by itself terrorism unless the motive itself is to create fear or insecurity in the society and not when fear or insecurity is just a byproduct, a fall out or an unintended consequence of a private crime. In the last definition the focus was on the action and its result whereas in the present definition the emphasis appears to be on the motivation and objective and not on the result. Through this amendment the Legislature seems to have finally appreciated that mere shock; horror, dread or disgust created or likely to be created in the society does not transform a private crime into terrorism but terrorism as an 'ism' is a totally different concept which denotes commission of a crime with the object and purpose of destabilizing the society or government with a view to achieve objectives which are political in the extended sense of the word. This approach appears to be in harmony with the emerging international perception about terrorism according to which, "the aim of the activity is always political, i.e. the goal is to attain political objectives like changing the regime, changing the people in power, changing social or economic policies, etc. In the absence of a political aim, the activity in quest will not be defined as terrorism. A violent activity against civilians that has no political aim is, at most, an act of criminal delinquency, a felony, or simply an act of insanity unrelated to terrorism. Some scholars tend to add ideological or religious aims to the list of political aims". This metamorphosis in the anti­terrorism law in the country has brought about a sea change in the whole concept as it has been understood in the past and it is, therefore, of paramount importance for all concerned to understand this conceptual modification and transformation in its true perspective. In view of this conceptual transformation even the interpretations of a terrorist act' orterrorism' rendered by Courts in Pakistan in the past on the basis of the earlier law may, require revisiting and reinterpretation so as to be in line with the newly introduced definition and concept of terrorism.

Keeping in view the latest definition of 'terrorism' contained in section 6 of the Anti‑Terrorism Act, 1997, mere gravity or brutal nature of an offence does not provide a valid yardstick for branding the same as terrorism. In order to qualify as terrorism the motivation behind the offence has to be political in the extended sense of the word and, as provided in the United Kingdom Law, "the use or threat is made for the purpose of advancing a political, religious or ideological cause" and the act has to be designed to destabilize the society at large. The history of crimes in the human society is replete with macabre, gruesome and horrifying offences shocking the society at large yet such crimes were never treated or accepted as terrorism because the motivation was personal and private. As against that even an unsuccessful attempt at sabotage of public supplies or services has readily been accepted as terrorism because the purpose behind the act is to destabilize the society at large. Even a petty theft in a house in a street is likely to create a sense of insecurity in the people living in that street, a rape of a young girl is bound to send jitters in every family having young girls living in the relevant locality, a murder in the vicinity surely creates a grave sense of fear in the inhabitants of the area, a bloodbath in furtherance of an on­going feud shocks the society as a whole, a massive fraud in a bank may send shockwaves throughout the banking and financial sectors and an offence committed against a member of any profession may render the other members of that profession feeling vulnerable and insecure. But all such offences are ordinary crimes distinguishable from terrorism because for the former the motivation is personal and private whereas for the latter the purpose has to be to destabilize the society at large. In this backdrop a premature, speculative, presumptive and imaginary quantification of the effect of an action so as to determine the nature of the act as terrorism or not appears to be an unsure and subjective test and it would be safer and consistent to revert to the principle of nexus carved out by the Supreme Court of Pakistan which is not only now a statutory requirement but the same is also consistent with the first major enunciation of the relevant law by our Supreme Court and that too by a Bench larger than any other Bench deciding any of the other cases.

"Terrorism" is one of the manifestations of increased lawlessness and cult of violence. Violence and crime constitute a threat to an established order and are a revolt against a civilized society. "Terrorism" has not been defined nor is it possible to give a precise definition of "terrorism' or lay down what constitutes "terrorism". It may be possible to describe it as use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. There may be death, injury, or destruction of property or even ‑deprivation of individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is to overawe the Government or disturb harmony of the society or "terrorise" people and the society and not only those directly assaulted, with a view to disturb even tempo, peace and tranquillity of the society and create a sense of fear and insecurity. ‑‑‑‑‑‑‑ Even though the crime committed by a terrorist' and an ordinary criminal would be overlapping to an extent but then it is not the intention of the Legislature that every criminal should be tried under the Special Act, where the fall out of his, activity does not extend beyond the normal frontiers of the ordinary criminal activity. Everyterrorist' may be a criminal but every criminal cannot be given the label of a terrorist' only to set in motion the more stringent provisions of Special Act. The criminal activity, in order to ‑ invoke Special Act, must be committed with the requisite intention as contemplated by the said Act ‑‑‑‑‑‑‑‑‑‑‑‑‑ it follows that an activity which is sought to be punished under the Special Act has to be such which cannot be classified as a mere law and order problem or disturbance of public order or even disturbance of the, even tempo of the life of the community of any specified locality but is of the nature which cannot be tackled as an ordinary criminal activity under the ordinary penal law by the normal law enforcement agencies because the intended extent and reach of the criminal activity of theterrorist' is such which travels beyond the gravity of the mere disturbance of public order even of a `virulent nature' and may at times transcend the frontiers of the locality and may include such anti‑national activities which throw a challenge to the very integrity and sovereignty of the country in its democratic polity‑‑‑‑‑‑.Thus, unless the act complained of falls strictly within the letter , and spirit of the relevant provisions of Special Act and is committed with the intention as envisaged by that provision by means of the weapons etc. as are enumerated therein with the motive as postulated thereby, an accused cannot be tried or convicted for an offence under the Special Act. When the extent and reach of the crime committed with the intention as envisaged by Special Act transcends the local barriers and the effect of the criminal act can be felt in other States or areas or has the potential of that result being felt there, the provisions of Special Act would certainly be attracted. Likewise, if it is only as a consequence of the criminal act that fear, terror or/and panic is created but the intention of committing the particular crime cannot be said to be the one strictly envisaged by the Special Act, it would be impermissible to try or convict and punish an accused under the Special Act. The commission of the crime with the intention to achieve the result as envisaged by the Special Act and not merely where the consequence of the crime committed by the accused creates that result, would attract the provisions of the Special Act. Thus, if, for example, 'a person goes on a shooting spree and kills a number of persons, it is bound to create terror and panic in the locality but if it was not committed with the requisite intention as contemplated by the Special Act, the offence would not attract the Special Act. On the other hand, if a crime was committed with the intention to cause terror or panic or to alienate a section of the people or to disturb the harmony etc. it would be punishable under the Special Act, even if no one is killed and there has been only some person who has been injured or some damage etc. has been caused to the property, the provisions of the Special Act would be squarely attracted. ‑‑‑‑‑‑‑ There could be some cases where the Designated Courts have charge‑sheeted and/or convicted an accused person under Special Act even though there is not even an iota of evidence from which it could be inferred, even prima facie; let alone conclusively, that the crime was committed with the intention as contemplated by the provisions of the Special Act merely on the statement of the investigating agency to the effect that the consequence of the criminal act resulted in causing panic or terror in the society or‑in a section thereof. Such orders result in the misuse of the Special Act ‑‑‑‑‑‑‑­Thus, the true ambit and scope of the provision of Special Act is that no conviction can be recorded unless the evidence led by the prosecution establishes that the offence was committed, with the intention as envisaged by the Special Act by means of the weapons etc. as enumerated in the relevant provision and was committed with the motive as postulated by the said provision. Where it is only the consequence of the criminal act of an accused that terror, fear or panic is caused, but the crime was not committed with the intention as envisaged by the Special Act to achieve the objective as envisaged by the relevant provision an accused should not be convicted for an offence under the Special Act. To bring home a, charge under the Act, the terror or panic etc. must be actually intended with a view to achieve the result as envisaged by the relevant provision and not be merely an incidental fall out or a consequence of the criminal activity. Every crime, being a revolt against the society, involves some violent activity which results in some degree of panic or create some fear or terror in the people or section thereof, but unless the panic, fear or terror was intended and was sought to achieve either of the objectives as envisaged in the Act, the offence would not fall, stricto sensu, under the Special Act.

One cannot help noticing that the cases pertained to offences committed for private purposes with no motivation to destabilize the society at large were all adjudged by the Supreme Court to be cases of terrorist acts or terrorism on the basis of a presumptive and. speculative quantification of the effect that the relevant actions could have created in the society. In all such cases, the change brought about by the new definition of terrorism' with its resultant shifting of focus from the effect of the action to the design or purpose behind the action had not been noticed and all those cases had been decided on the basis and on the yardstick of the principles provided for by the earlier definition of aterrorist act'. In the said cases the gravity of the offence with its resultant actual, intended or potential effect on the people at large was considered as the measure for determining whether the act constituted terrorism or not. The mind‑set inherited in the background of the Summary Military Courts, Speedy Trial Courts and Special Courts for Suppression of Terrorist Activities, which were different Courts constituted at different stages in the past for separate and special handling of offences of grave nature, may take some time to be dispelled and it may take a while to appreciate and realize that an act terrorism' is not just a grave offence but it is a class and species apart and this class or species has to be understood in its true and correct perception and perspective otherwise every serious offence may be found by one Judge or the other to involve terrorism depending subjective assessment of the potential of the act to create fear or insecurity in some section of the society. Such an approach, may not be Wholesome as it may ultimately result in every case of a serious offence landing in a Special Court and thereby rendering the ordinary Courts substantially redundant. It ought not to be lost sight of that the Legislature's repeal of the Suppression of Terrorist Activities (Special Courts) Act, 1975, doing away with the Schedule of the Anti‑Terrorism Act, 1997 and also its retraction from theeffect' through the fresh definition of terrorism' cannot be without any significance or purpose. That drastic change of the definition manifestly indicated a change of meanings and of focus and such a change has to be given its proper effect. After all if the newly introduced termterrorism' is still to be interpreted in the same manner as the erstwhile term terrorist act' then there was hardly any occasion or need for the Legislature to amend the definition and to bring, about any change in the existing law in that regard. The legacy and interpretations pertaining to the Suppression of Terrorist Activities (Special Courts) Act, 1975 and of the original provisions of the Anti‑Terrorism Act, 1997 have now to be shrugged off so as to correctly understand the new definition ofterrorism' introduced through the latest amendment in the latter Act. The subject‑matters of the Suppression of Terrorist Activities (Special Courts) Act, 1975 and the Anti‑Terrorism Act, 1997 were "different" and their respective applicability was "governed by different criteria".

Ordinary crimes are not to be dealt with under the Act. A physical harm to the victim is not the sole criterion to determine the question of terrorism.

An act of terrorism is a preplanned and organized system of intimidation. Its requisites and attributes are that such act and its effects are made known to the people and widely circulated with exaggeration. It is neither hidden nor disguised. It means an act which is committed with the sole object to terrorise the people and to feel them insecure.

If any offence is committed to avenge an enmity or dispute or to settle a score on account of any known and visible reasons in the conduct of human being or a crime is committed in relation to the life, liberty, property, honour and dignity of any person which is taken by the society as a normal crime or a criminal act of ordinary nature, it remains confined to the commission of an offence simpliciter and does hot amount to terrorism.

An act of private revenge based upon a personal vendetta is not to be treated as an act of terrorism which is a species apart.

However, it appears that in the last few years the said principle has either been side tracked or placed on the back burner in our country and the law is not only being stretched in a different direction but the same is also often being misapplied and misused by the police and the subordinate Courts. An appropriate and correct restatement of the relevant law for its proper application is, therefore, not only necessary but also a crying need so that the relevant law may be saved from being derailed from its real objectives.

Mumtaz Ali Khan Rajban and another v. Federation of and others PLD 2001 SC 169; Muhammad Mushtaq v. Ashiq and others PLD 2002 SC 841; Mst. Raheela Nasreen v. The State ands another 2002 SCMR 908; Muhammad Amin v. The State SCMR 1017; Zia Ullah v. Special Judge, Anti‑Terrorist Court, Faisalabad and 7 others 2002 SCMR 1225; State through Advocate­ General, N.W.F.P. Peshawar v. Muhammad Shafiq PLD 2003 SC 224; Naeem Akhtar and others v. The State and others PLD 2003 SC 396; Sh. Muhammad Amjad v. The State PLD 2003 SC 704; Mst. Najam‑un‑Nisa v. Judge, Special Court 2003 SCMR 1323; Abdul Ghafoor Bhatti v. Muhammad Saleem and others 2003 SCMR 1934; Mehram Ali and others v. Federation .of Pakistan and others PLD 1998 SC 1445; Jamat‑i­-Islami Pakistan through Syed Munawar Hassan, Secretary‑General v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs PLD 2000 SC 111; Ch. Bashir Ahmad v. Naveed Iqbal and 7 others PLD 2001 SC 521; Jahangir Akhtar Awan and 2 others v. The State and 8 others PLD 2000 Kar. 89; Sh. Muhammad Amjad v. The State 2002 PCr.LJ 1317; Muhammad Afzal and others v. S.H.O. and others 1999 PCr.LJ 929; Mazhar v. The State PLD 2003 Lah. 267; Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bimraj Bijia and others AIR 1990 SC 1962; Usmanbhai Dawoodbhai Memon v. State of Gujrat (1988) 2 SCC 271; Kartar Singh v. State of Punjab (1994) 3 SCC 569; Hitenda Vishnun Thakur and others v. State of Maharashtra and others AIR 1994 SC 2623; Haji Abdullah khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690; Pir Bakhsh v. The Chairman, Allotment Committee and others PLD 1987 SC 145; Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213; Khawaja Auto Cars Limited. V. Haji Sharif Khan 1996 CLC 1337; Muhammad Rafique and 16 others v. Sultan Bakhsh and another PLD 1991 Kar. 320; Subedar v. Mian Inam Elahi and others PLD 1989 Lah. 309 and Fazal Muhammad Chaudhri v. ch. Khadim Hussain and 3 others 1997 SCMR 1368 ref.

(d) Precedent‑‑‑

‑‑‑‑ Conflict between two decisions of the same Court‑‑‑Decision of larger Bench to prevail.

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

‑‑‑‑S. 6 [as substituted by Anti‑Terrorism (Amendment) Ordinance (XXXIX of 2001)]‑‑‑Penal Code (XLV of 1860), Ss.302/324/452/436/148/149‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Terrorism‑‑‑Motive set up in the F.I.R. was an on‑going murder fued between the parties and a refusal of the complainant party to enter into a compromise with the accused party in a recent case of a murderous assault‑‑‑Challan in the case, after the completion of the investigation, was submitted before the Anti‑Terrorism Court‑‑‑Petitioner submitted application before the Trial Court under S.23, Anti‑Terrorism Act, 1997, seeking transfer of the case to a Court of ordinary jurisdiction claiming that the case did not involve terrorism as defined in S.6, Anti­Terrorism Act, 1997 but the application was dismissed‑‑‑Petitioner had contended that circumstances of the case did not attract the definition of "terrorism" contained in S.6 of the said Act‑‑‑Validity‑‑‑Held, despite the brutality displayed by the culprits and the consequent horror, shock, fear and insecurity likely to be created by the savagery perpetrated by the offenders, same did not appear to be a case of "terrorism" as the motive for the alleged offences was nothing but personal enmity and private vendetta and the motivation on the part of the accused party was not to overawe or intimidate the Government, etc. or to destabilize the society at large or to advance any sectarian cause etc. ‑‑‑Intention of the accused party did not depict or manifest any "design" or "purpose" as contemplated by the provisions of S.6(1)(b) or (c), Anti‑Terrorism Act, 1997 and, thus, the actus reus attributed to it was not accompanied by the necessary mens rea so as to brand its actions as "terrorism" triable exclusively by a Special Court constituted under the Anti‑Terrorism Act, 1997‑‑‑High Court, allowed the Constitutional petition of the accused persons and impugned order of the Anti‑Terrorism Court was declared to be without lawful authority and of no legal effect and the same was set aside‑‑‑Application filed by the petitioner before the Anti‑Terrorism Court for transfer of the case to the Court of ordinary jurisdiction was accepted and petitioner's case was declared to be triable by a Court of ordinary jurisdiction‑‑‑Judge of the Anti‑Terrorism Court was directed by the High Court to transmit the record of the petitioner's case to the District and Sessions Judge of the relevant District forthwith for further proceedings in the matter‑‑‑High Court further directed the office to send copy of the present judgment to the Presiding Officer of all the Special Courts constituted under the Anti‑Terrorism Act, 1997 in the Province of the Punjab for their information and guidance.

The State of U.P. v. Ram Chandra Trivedi AIR 1976 SC 2547; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Jamat‑i‑Islami Pakistan through Syed Munawar Hassan, Secretary‑General v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs PLD 2000 SC 111 and Ch. Bashir Ahmad v. Naveed Iqbal and 7 others PLD 2001 SC 521 ref.

Ch. Fawad Hussain assisted by Muhammad Asif Ismail for Petitioner.

Muhammad Sohail Dar, Asstt. A.‑G. for Respondents Nos.1 and 3.

Ras Tariq Chaudhry, Advocate for Respondent No. 2.

Dates of hearing: 12th, 13th and 14th January, 2004.

P L D 2004 Lahore 249

Before Muhammad Ghani, J

MUHAMMAD AKRAM‑‑Petitioner

Versus

Mst. SHAHIDA PARVEEN and others‑‑‑Respondents

Writ Petition No. 10880 of 2003, decided on 21st November, 2003.

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

‑‑‑‑S. 7‑‑‑Civil Procedure Code (V of 1908), O.VI, R.1‑‑‑Plaint‑‑‑Suit decreed "as prayed for"‑‑‑Scope‑‑‑Words "as prayed for" being important would be read in conjunction with prayer clause of the plaint.

(b) Words and phrases‑‑‑

------"As prayed for" ‑‑‑Connotation.

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

‑‑‑‑Ss. 5, Sched. & 13 Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Suit for recovery of dowry articles or in­ alternative price thereof‑‑‑Defendant's plea was that plaintiff was not given any dowry at the time of marriage‑‑‑Suit was decreed as prayed for‑‑‑Executing Court through Local Commission found restitution of such articles impossible, thus, directed the recovery price thereof‑‑­Defendant's plea was that such direction was without jurisdiction as decree did not find mention of money payable by him in the alternative‑‑­Validity‑‑‑Words "as prayed for" were important, which had to be read in conjunction with prayer clause of the plaint, wherein while seeking decree for recovery of dowry articles, prayer in alternative for price thereof had been made‑‑‑Local Commissioner's report showed that most of such articles were either‑missing or destroyed or damaged, while some did not belong to the plaintiff‑‑‑Defendant had produced some articles before the Local Commission offering delivery thereof, but plaintiff had refused to accept same for not being articles under claim‑‑­Plea raised in written statement was that the defendant had no intention to part with any article of dowry belonging to plaintiff‑‑­Appointment of Local Commission was for satisfaction of defendant, though there was no need of its appointment after defendant having once denied to be in possession of any dowry articles‑‑­Executing Court had, thus, rightly directed defendant to pay cost/value of dowry articles‑‑‑High Court dismissed Constitutional petition in limine.

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

‑‑‑‑O. XX, R.10 & O.XXI, R.31‑‑‑Decree for movable property or in alternative for price thereof‑‑‑Effect‑‑‑Giving of an alternate remedy would not give decree‑holder any option to refuse to take delivery of property and insist upon money portion of the decree.

Venkatrao v. Mallapar AIR 1959 Mys. 164 fol.

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

‑‑‑‑S. 5 & 13 Sched.‑‑‑Suit for recovery of dowry articles‑‑‑Defendant can opt either to deliver such articles or pay value thereof.

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

‑‑‑‑O. XXI, R.31‑‑‑Execution of decree for specific movable property‑‑­Scope‑‑‑Allowing judgment‑debtor to determine the manner in which alternative judgment of property or its value to take effect would render provisions of O.XXI, R.31, C.P.C. nugatory or even otiose.

Haribara Iyar v. Narayanan Elayathe 26 TLJ 1301 and Shevaprasad v. Prayagkumari AIR 1935 Cal. 39 ref.

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

‑‑‑‑S. 17‑‑‑Civil Procedure Code (V of 1908), O.XX, R.10‑‑‑Provisions of O.XX, R.10, C. P. C. stricto senso do not apply to proceedings in the Family Court in view of the provisions of S.17 of the West Pakistan Family Courts Act, 1964.

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

‑‑‑‑O.XX, R.10‑‑‑Provisions of O.XX, R.10, C.P.C.‑‑‑Scope‑‑‑Plaintiff entitled to delivery of specific movable can sue for delivery thereof or their value or damages‑‑‑Court is not invariably bound to decree only claimed articles‑‑‑Where possession or existence of articles is denied by defendant, then Court would not be bound to pass decree for delivery thereof in first instance and in alternative only for their value.

Kashee Nath v. Deb Kristo Ramany Doss 16 WR 240 ref.

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

‑‑‑‑S. 13‑‑‑Decree for recovery of dowry articles or in alternative price thereof‑‑‑Defendant had denied to be in possession of dowry articles‑‑­No need of appointing Local Commission in such situation‑‑‑Duty of Executing Court to straightaway execute decree for money.

Ikram‑ud‑Din Khan for Petitioner.

Respondent No. 1 in person.

P L D 2004 Lahore 255

Before Muhammad Sair Ali, J

MUHAMMAD ZOFIGAN‑‑‑Appellant

Versus

MUHAMMAD KHAN and 49 others‑‑‑Respondents

Regular Second Appeal No.204 of 1988; decided on 14th November, 2003.

(a) Benami transaction‑‑‑

‑‑‑‑Suit by minor challenging sale of his land by father‑‑‑Plaintiff's plea was that suit‑land was gifted to him by his mother having inherited same from her father; that he was minor at the time of sale, which was not contracted by him nor did he receive sale price thereof nor did he mutate land to the defendants‑‑‑Defendants' plea was that such sale was made in their favour by minor's father as real owner, while minor was its ostensible owner‑‑‑Onus of issue relating to status of plaintiff's father as real owner was on the defendants‑‑‑Plaintiff's witnesses including plaintiff supported his claim, but not a single question was asked from them by defendants during cross‑examination regarding actual purchase/ownership or ostensible ownership of suit‑land‑‑‑Plaintiff produced in evidence mutation of gift in his favour by his mother, Jamabandi and Khasra Girdawari reflecting his name therein‑‑­Defendants failed to prove that suit‑land was in fact purchased by plaintiff's father, who actually paid its sale price and got same transferred in his wife's name as Benami owner, which she subsequently gifted to plaintiff upon instructions and desire of her husband‑‑‑Defendants did not summon plaintiff's father or mother as witnesses to prove their plea of Benami‑‑‑Plaintiff's father and mother had never claimed to be real owners of suit‑land‑‑‑Held, plaintiff was not ostensible owner of suit‑land, but was its real owner.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑‑S. 11‑‑‑Transfer of Property Act (IV of 1882), S.7‑‑‑Sale of minor's property by his father‑‑‑Validity‑‑‑Vendor was not of 18 years age to be sui juris to validly enter into sale contract‑‑‑Such sale was void ab initio having been contracted during incapacity of vendor, thus, had no legal existence‑‑‑No rights or liabilities would arise in favour of vendee from such void transaction‑‑‑Such contract could neither be enforced nor set up as a valid defence plea to claim thereunder a right or title‑‑‑Invalidity of such transaction arose from a legal incapacity, which was, thus, incurable‑‑‑Such sale was void and not voidable.

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

‑‑‑‑S. 41‑‑‑Contract Act (IX of 1872), S.2(g)‑‑‑Protection under S.41 of Transfer of Property Act, 1882 would not extend to transactions void ab initio.

(d) Contract Act (IX of 1872)‑‑-

‑‑‑‑S. 11‑‑‑Transfer of Property Act (IV of 1882), S.7‑‑‑Qanun‑e­-Shahadat (10 of 1984), Art. 118‑‑‑Sale of minor's property by his father as natural guardian‑‑‑Validity‑‑‑Such sale would be invalid, unless expressly proved to be for benefit or welfare of minor‑‑‑Onus would lie on vendee to so prove.

Sher Baz Khan and 73 others v. Mst. Malkani Sahibzadi Tiwana and 2 others PLD 1996 Lah. 483 and Muhammadan Law, para. 362 by D.F. Mulla fol.

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

‑‑‑‑Ss. 8 & 42‑‑‑Limitation Act (IX of 1908), Ss. 6, 8 & 142‑‑‑Contract Act (IX of 1872), S.11‑‑‑Suit for declaration and possession challenging sale of minor's property made by his father during minority‑‑‑Limitation‑‑‑Sale mutation was sanctioned on 6‑12‑1972‑‑­Plaintiff ceased to be minor on 30‑3‑1974‑‑‑Suit was filed on 31‑7‑1977‑‑‑Trial Court decreed the suit, but Appellate Court dismissed same‑‑‑Validity‑‑‑Plaintiff under S.8 of Limitation Act, 1908 could treat date of cessation of his minority (i.e. 31‑7‑1977) as starting point of limitation and he being entitled to benefit of S.6 of Limitation Act, 1908 could institute suit within six years from such cessation‑‑‑Plaintiff's suit was not for declaration only, but was also for recovery of possession for which period of limitation under Art.142 of the Limitation Act, 1908 was 12 years‑‑‑Suit was within period of limitation from 6‑12‑1972 (i.e. date of sale) and also from 30‑3‑1974 (i.e. date of attainment of majority by plaintiff)‑‑‑‑High Court allowed appeal, set aside impugned judgment and decree and upheld that passed by Trial Court, resultantly suit stood decreed.

Moolchand and 9 others v. Muhammad Yousaf (Udhamdas) and 3 others PLD 1994 SC 462 and Kasem Molla v. Fajel Shek and others PLD 1952 Dacca 347 ref.

(f) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Ss. 6 & 8‑‑‑Suit by person under legal disability‑‑‑Limitation‑‑‑Such person ;on attainment of majority or cessation of disability could file suit within period of limitation provided in the First Sched. of Limitation Act, 1908, if such period had not expired‑‑‑Where such period had expired, then he had a maximum period of three years from attainment of majority/cessation of disability to file suit‑‑‑Such person had a right to sue within ordinary period of limitation computable from original cause of action without invoking provisions of Ss.6 & 8 of the Limitation Act, 1908 after cessation of his minority‑‑‑Provisions of Ss.6 & 8 of Limitation Act, 1908 did not oblige such person to mandatorily sue within three years of cessation of disability, as same' would amount to divest him of larger period of limitation, if available to him for his particular suit under ordinary period of limitation prescribed in First Sched. of Limitation Act, 1908.

Moolchand and 9 others v. Muhammad Yousaf (Udhamdas) and 3 others PLD 1994 SC 462; Kasem Molla v. Fajel Shek and others PLD 1952 Dacca 347 and Rustamji on Law of Limitation ref.

Muhammad Rashid Bhatti for Appellant.

Ch. Zafar Iqbal and Ch. Mushtaq Ahmad Khan for Respondents.

Date of hearing: 3rd October, 2003.

P L D 2004 Lahore 266

Before M.A. Shahid Siddiqui and Nasim Sabir Ch., JJ

FAZAL RAHIM‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.1 of 2003 in Criminal Appeal No.553 of 2003, decided on 20th November, 2003.

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

‑‑‑‑S. 426‑‑‑Suspension of sentence pending appeal‑‑‑Death sentence, suspension of‑‑‑High Court has the power to suspend the sentence of death of a convict under S.426, Cr.P.C. and to release him on bail till the decision of his main appeal.

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

‑‑‑‑S. 426‑‑‑Penal Code (XLV of 1860), S.302(b)‑‑‑Suspension of sentence‑‑‑High Court was competent to suspend the sentence of death under S.426, Cr.P.C. awarded to accused by Trial Court‑‑Accused was neither armed with any weapon, nor he had caused any injury to the deceased and admittedly he was only brick-batting alongwith other, co­accused on the complainant party‑‑‑Trial Court had acquitted other nine co‑accused and had only selected the accuse responsible for the murder of the deceased‑‑‑Trial Court had clearly erred in law as well as on facts while convicting and awarding capital punishment to the accused‑‑‑Cases had to be decided after application of judicial mind in view of the evidence produced by the parties and the law applicable therein and not on account of fertile imagination of the Presiding Officer who had first propounded several probabilities regarding the commission of offence, but thereafter picking up one probability held the accused liable for murder of the deceased which was not in consonance with the well-­established principles concerning safe administration of criminal justice‑‑‑Conviction and sentence of accused could not be maintained on the basis of such evidence by any stretch of imagination‑‑‑Accused was rotting in the death cell and his appeal was not likely to be heard in the near future‑‑‑Conviction and. sentence of accused were suspended in circumstances and he was released on bail accordingly.

1978 SCMR 149; 1968 SCMR 1064; 1979 SCMR 270; 1971 SCMR 657 and 1979 PCr.LJ 1104 ref.

Ch. Nazir Ahmad Sanghera for Petitioner.

Mian Nazar Hussain Bhatti for the Complainant.

Wasim Khan Bhatti for the State.

P L D 2004 Lahore 270

Before Mian Saqib Nisar and Syed Sakhi Hussain Bokhari, JJ

LAHORE DEVELOPMENT AUTHORITY through Director‑General and 2 others‑‑‑Appellants

Versus

NAIMAT SALEEM TRUST through Authorised Representative and another‑‑‑Respondents

Intra‑Court Appeal No. 1082 of 2001, decided on 4th November, 2003.

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

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Purchase of land by Trust established for disabled children after issuance of notification under S.4 of Land Acquisition Act, 1894‑‑­Validity‑‑‑Acquisition of land could be made for public purpose‑‑­Purpose of God is holier, nobler, greater and higher than public purpose‑‑‑No public purpose, howhighsoever, could match with purpose of God‑‑‑Respondent Trust had established a charitable school for disabled children‑‑‑Before such land could finally vest in the Authority, respondent Trust had been created and such land was purchased and had become part of Waqf‑‑‑Such Waqf property being already dedicated for pious and charitable purpose, which vested in God could not be acquired‑‑‑Sales in favour of respondent Trust being after notification under S.4 of the Act would have no material effect on their validity‑‑­Trustees of respondent had undertaken not to alienate such land in any manner and always to use same for purpose of school‑--‑High Court directed that its judgment shall form part of trust deed of respondent, and that any alienation intended by Trust, if made without permission of District Judge (being a Qazi in matter of Waqf property) would be null and void.

Sahibzada Mansoor Ahmad v. Chief Administrator, Auqaf and others 1993 MLD 2529 ref.

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

‑‑‑‑S. 4---Land intended to be acquired‑-‑Such land could validly and legally, be transferred or alienated even after issuance of notification under of Land Acquisition Act, 1894.

F.K. Abbasi v. M.I. Malik 1985 CLC 1603 and Administrator, Thal Development v. Muhammada and others 1995 MLD 794 rel.

Muhammad Rasheed Ahmad for Appellants.

Muhammad Shahzad Shaukat for Respondents.

P L D 2004 Lahore 275

Before Mansoor Ahmed, J

MEMOONA JAVED HASHMI‑‑‑Petitioner

Versus

S.S.P., ISLAMABAD and 2 others ‑‑‑Respondents

Criminal Miscellaneous No.51‑H of 2003, decided on 17th November, 2003.

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

‑‑‑‑S. 491(b)‑‑‑"Illegally"‑‑‑Connotation‑‑‑Expression "illegally" used in S.491(b). Cr.P.C. connotes an act which is contrary to law or prohibited by law and resort thereto led to detention of a detenu.

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

‑‑‑‑S. 491‑‑‑‑Penal Code (XLV of 1860), Ss.131/124‑A/468/469/471/ 500/505/109‑‑‑Habeas corpus petition‑‑‑Police on the basis of a complaint disclosing reasonably the commission of a cognizable offence had registered a case against the accused (alleged detenu) which was taking its own course‑‑‑Question whether an offence was made out from the contents of the F.I.R. and the material placed by the complainant before the Station House Officer of Police/Investigating Officer was the subject‑matter of investigation and any observation about these facts was not proper and appropriate as the same might cause serious prejudice to either of the parties‑‑‑Police was vested with the jurisdiction to act on the information in respect of cognizable offences and after registering the case to proceed with the investigation‑‑‑Physical remand of the accused had been obtained by the police and now he was in Jail on judicial remand‑‑‑Police, prima facie had acted in accordance with law‑‑‑Arrest and detention of accused, thus, was not illegal‑‑‑Habeas corpus petition was misconceived and was dismissed accordingly‑‑‑‑Request for converting the petition into a bail application was not tenable because for seeking bail proper remedy was provided under Ss.497 & 498, Cr.P.C. and the High Court while regulating its jurisdiction had to act in a manner whereby normal scheme of law was not disturbed.

Farooq Bedar v. Inspector‑General of Police PLD 1969 Lah. 1020 distinguished.

Government of Sindh v. Raeesa Farooq 1994 SCMR 1283; Mst. Razia Shaheen v. The State PLD 1997 Lah. 659; Mst. Meeran Mai v. Station House Officer PLD 2001 Lah. 459 ; 1999 PCr.LJ 592; Muhammad Sadiq v. S.H.O. 1999 PCr.LJ 1439; Muhammad Sadiq v. S. H. O., P.S. Saddar, Arifwala 1999 PCr.LJ 1786; Wajid Abbas v. Raja Waheed, Sub‑Inspector 1999 PCr.LJ 194; Zabih Ullah v. S.H.O. 1999 MLD 399; Mst. Fatima v. Kamil Shah and others 1996 PCr.LJ 3.25; Arbab Khan v. The State 1996 PCr.LJ 703 and Mst. Bachino v. Abdul Hakim, A.S.I. PLJ 1976 Lah. 155 ref.

Ch. Aitzaz Ahsan, Syed Zafar Ali and Razzaq A. Mirza for Petitioner.

Syed Shabbar Raza Rizvi, A.‑G. Punjab alongwith Syed Sajjad Hussain, Tanvir Iqbal Khan and Raja Saeed Akram, A.A.‑Gs.

Munir Ahmad Bhatti for Respondents.

P L D 2004 Lahore 284

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD YOUSUF‑‑‑Petitioner

Versus

DIRECTOR, ANTI‑CORRUPTION ESTABLISHMENT PUNJAB, LAHORE and 5 others‑‑‑Respondents

Writ Petition No.3555 of 2003, heard on 28th October, 2003.

(a) Punjab Anti‑Corruption Establishment Rules, 1985‑‑‑

‑‑‑‑Rr. 19 & 15(2)(b)‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑F.I.R. registered under the parent law cannot be quashed for violation of the Rules framed thereunder‑‑‑Punjab Anti‑Corruption Establishment Rules, 1985, being not an act of legislation and having been made by the Executive Authority cannot override the parent law and if F.I.R. is lodged without following the said Rules the same cannot be quashed merely because of the said reason.

Mirza Muhammad Iqbal and others v. Government of Punjab PLD 1999 Lah. 109; Shafaqat Hussain and another v. Malik Sarfraz and another 2000 PCr.LJ 1995; PLD 1996 Lah. 916; PLD 1996 Lah. 454; 1996 MLD 1874; PLD 1997 Lah. 692 and 1981 SCMR 1101 ref.

(b) Prevention of Corruption Act (II of 1947)‑‑‑

‑‑‑‑S. 5(2)‑‑‑Penal Code (XLV of 1860), S.511‑‑‑Punjab Anti‑Corruption Establishment Rules, 1985, Rr. 7, 19 & 15(2)(b)‑‑‑Constitution of Pakistan 1973), Art.199‑‑ Constitutional petition‑‑‑F.I.R. having been registered against the accused without conducting preliminary inquiry in contravention of the Punjab Anti‑Corruption Establishment Rules, 1985, had been quashed by the Director, Anti‑Corruption‑‑‑Validity‑‑‑Punjab Anti‑Corruption Establishment Rules, 1985, being not an act of legislation and having been made by the Executive Authority could not override the parent law and the F.I.R. registered without following the said Rules could not provide any right to the accused for the quashment of the same‑‑‑Purpose of the inquiry as required under R. 7 of the said Rules was only to ascertain the identity of the complainant or informer and genuineness of the complaint or, information‑‑‑Nature of allegations made in the case required immediate action, and any delay therein in the garb of fulfilment of legal requirements could tantamount to loss of incriminating evidence‑‑‑No prejudice had been caused to the accused due to non‑initiation of the preliminary inquiry‑‑‑Even after the registration of the case accused was to be provided an opportunity to rebut the allegations during the investigation‑‑‑Allegations levelled by the complainant against the accused were supported by documentary evidence‑‑‑Case against the accused was still at investigation stage and the Director had no occasion to exercise powers under R.19 of the Punjab Anti‑Corruption Establishment Rules, 1985, which were not mandatory in nature and under the garb of the same he could not exercise the judicial powers and assume the role of Court‑‑‑Provisions of R. 19(3) of the Rules did not provide any alternate remedy to the aggrieved person against the orders of the Director passed in the exercise of his suo motu powers and as such the Constitutional petition was maintainable‑‑­Impugned order passed by the Director, Anti‑Corruption quashing the F.I.R. registered against the accused was consequently declared to be without any lawful authority and was set aside‑‑‑Constitutional petition was accepted accordingly.

Mirza Muhammad Iqbal and others v. Government of Punjab PLD 1999 Lah. 109; Shafaqat Hussain and another v. Malik Sarfraz and another 2000 PCr.LJ 1995; PLD 1996 Lah. 916; PLD 1996 Lah. 454; 1996 MLD 1874; PLD 1997 Lah. 692 and 1981 SCMR 1101 ref.

Malik Muhammad Lateef Khokhar for Petitioner.

Muhammad Qasim Khan, A.A.‑G. for Respondents Nos. 1 to 6.

Ch. Pervaiz Aftab for Respondent No. 5.

Date of hearing: 28th October, 2003.

P L D 2004 Lahore 290

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

Mst. SHAHNAZ BEGUM‑‑‑Petitioner

Versus

MUHAMMAD SHAFI and others‑‑‑Respondents

Writ Petition No.2224 of 2003, heard on 14th January, 2004.

(a) Dowry and Bridal Gifts (Restriction) Act (XLIII of 1976)‑‑‑

‑‑‑‑Ss. 2(A) & 3‑‑‑West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Bridal gift‑‑‑"Dowry"‑‑‑Definition‑‑‑Articles of dowry, bridal gifts, presents or all the other movable properties are the belongings of bride and the husband if deprives her of the same, she has the right to recover all these articles even though the same were given in contradiction of provisions of S.3 of the Dowry and Bridal Gifts (Restriction) Act, 1976‑‑‑Bride can always recover the articles of dowry and Wari given to her by the bridegroom or the bridegroom side at the time of marriage‑‑‑Bridal gift given by the husband is the absolute property of the wife and it could not be snatched away from her.

Masud Sarwar v. Mst. Farah Deeba 1988 CLC 1546 and Ghulam Rasul v. Judge Family Court 1991 CLC 1696 fol.

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

‑‑‑‑S.5 & Sched.‑‑‑Civil Procedure Code (V of 1908), O.XX, R.1‑‑­Qanun‑e‑Shahadat (10 of 1984), Art.133‑‑‑Affidavit without production of the deponent in Court and without giving an opportunity of cross‑examination to the other side by the Court will have no evidentiary value‑‑‑Mere affirmation or denial of a fact in written statement would not be legal proof of fact‑‑‑Party against whom an affidavit is produced is entitled to have deponent put in witness‑box and to cross‑examine him‑‑­If the deponent is not produced for cross‑examination, the affidavit, in such circumstances, loses all its force as a probative piece of evidence and cannot be acted upon.

Zafar Mirza v. Mst. Naushina Amir Ali PLD 1993 Kar. 775; Atta Ullah Khan Malik v. The Custodian, Evacuee Property West Pakistan and others PLD 1964 SC 236; The President v. Justice Shaukat Ali PLD 1971 SC 585 and Rehmat Ullah v. Tufail Hussain and others 1987 CLC 792 fol.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art.75‑‑‑West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Primary evidence of a document means the document itself produced for the inspection of the Court and when the document is an affidavit the deponent is to appear and verify that he has given the affidavit and then it is the opposite parties right to cross‑examine the deponent of the affidavit in respect of the statement of facts given in the affidavit‑‑‑Without production of the deponent in Court to verify the affidavit no reliance can be placed on an affidavit, which will remain as a piece of paper and not part of evidence‑‑‑Where the Courts below did not order the production of deponent, rather in a very carefree way observed that "the parties do not want to cross examine the deponents of the affidavits" without even directing the appearance of deponents in the Court to verify whether they had given the affidavits or not, the Courts committed error of jurisdiction while discussing the affidavits on the record, which were merely the pieces of papers and had no force as probative piece of evidence, as the deponents of affidavits were neither produced nor cross‑examined or re‑examined under the provisions of West Pakistan Family Courts Act, 1964 nor under the provisions of Qanun‑e‑Shahadat, 1984‑‑‑Judgment and decree passed by the Trial Court and that of the Appellate Court were set aside and case was remanded to the Trial Court to decide the same, afresh after keeping in view the relevant law in respect of evidence produced by way of affidavits and decide the case within two months of receipt of the judgment of the High Court.

Rana Muzaffar Hussain for Petitioner.

Muhammad Farooq Qureshi Chishti for Respondents Nos. 1 to 3.

Nemo for Respondent No.4.

Date of hearing: 14th January, 2004.

P L D 2004 Lahore 295

Before Abdul Shakoor Paracha, J

PAKISTAN MOTORS TRANSPORT FEDERATION (REGD.) through Ch. Munir Ahmad, Member Governing Body, Pakistan Motors Transport Federation and another‑‑‑Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice, Islamabad and 3 others‑‑‑Respondents

Writ Petition No.3401 of 2002, heard on 15th December, 2003.

West Pakistan Motor Vehicles Ordinance (XIX of 1965)‑‑‑

-‑‑Ss. 2(2) & 95‑‑-Criminal Procedure Code (V of 1898), Ss.51, 516-A, 517 & 523‑‑‑Release of public transport vehicle involved in accident cases or in commission of any offence or taken into custody by police under S.51, Cr.P.C.‑‑‑Imposition of condition of producing original owner and local surety‑‑‑Validity‑‑‑Person entitled to custody of such vehicles‑‑‑Principles stated.

Public transport vehicles involved in accident cases should be released within 48 hours per provision of section 95 of Motor Vehicles Ordinance, 1965 and in any case neither "Superdari" is necessary nor order of the Court is required and the condition of producing the original owner and local surety equivalent to the value of the vehicle cannot be imposed. Public transport vehicle involved in accident cases can be handed over to the person, if he is owner, within the meaning of section 2(2) of Motor Vehicles Ordinance, 1965 or from whose possession the vehicle has been recovered.

All three provisions of section 95 of Motor Vehicles Ordinance, 1965 and sections 523 and 516‑A, Cr.P.C. have been enacted to cater different situations. Under section 95 of Motor Vehicles Ordinance, 1965, the vehicle, bus or wagon, which is not involved in commission of any offence or the same is not taken under section 51, Cr.P.C. the owner or the applicant cannot be directed to, furnish surety for release of the vehicle as the same has to be returned to the person entitled to its custody. But if the vehicle has been taken in possession by police under section 51, Cr.P.C. or alleged to have been stolen or found under suspicion of the commission of any offence or is used for commission of any offence regarding which inquiry is pending before the Court, then it would be released by the competent Court by passing an order under section 516, Cr.P.C. and for final disposal of the property, an order of the Court under section 517, Cr.P.C., would be required at the time of decision of the case.

Muhammad Rashid and others v. The State PLD 1991 Kar. 200; Rana Muhammad Salim v. The State 1992 PCr.LJ 750 and Karachi Bus Owners Association and another v. Inspector‑General of Police and 2 others 1995 P.Cr.LJ 608 ref.

Shaukat Rauf Siddiqui for Petitioners.

Syed Sajjid Hussain Shah, A.A.‑G. and Raja Saeed Akram Khan, A.A.‑G. for Respondents.

Date of hearing: 15th December, 2003.

P L D 2004 Lahore 300

Before Muhammad Akhtar Shabbir, J

ATTA MUHAMMAD‑‑‑Petitioner

Versus

MUHAMMAD BAKHSH and another‑‑Respondents

Civil Revision No. 1490 of 2003, decided on 1st December, 2003.

(a) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑Ss. 5, 6(1)(a) & 13‑‑‑Civil Procedure Code (V of 1908), O.XLI, R.22‑‑‑Pre‑emption suit‑‑‑Sale of land falling in four Khatas through single transaction/mutation‑‑‑Both pre‑emptors claimed to be co‑sharers in suit‑land‑‑‑Trial Court dismissed suit on preemptors' failure to prove Talbs, but Appellate Court decreed the suit‑‑‑Validity‑‑‑Revenue Record showed that one pre‑emptor was co‑sharer in two Khatas, while in other two Khatas, other pre‑emptor was co‑sharer‑‑‑Both pre‑emptors were not co‑sharers in all four Khatas‑‑‑Pre‑emptors in order to succeed in their claim had to prove their preferential right in each Khatas at three stages; on date of sale, on date of institution of suit and on date of passing of decree ‑‑‑Vendee by filing separate appeal or cross‑objection had not challenged findings of Trial Court on issue of superior right of pre­emption ‑‑‑Pre‑emptors could not establish their superior rights of pre­emption being co‑sharers in all Khatas‑‑‑Courts below had not considered such important documentary evidence‑‑‑High Court accepted revision petition and set aside impugned judgment/decree while restoring that passed by Trial Court.

Hasil and another v. Karam Hussain Shah and others 1995 SCMR 1385; Allah Ditta and others v. Said 2000 SCMR 1257; Malik Mitha v. Jamal Din and 2 others PLD 1990 Lah. 186; Jalal Khan v. Muhammad Banaras and 2 others 1988 CLC 414 and Khuda Dad v. Ahmad Khan 1988 CLC 25 rel.

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

‑‑‑‑O. XLI, R.33 & S.100‑‑‑Party claiming equitable relief‑‑‑Non‑filing of appeal by such party‑‑‑Effect‑‑‑Filing of appeal by such party not necessary‑‑‑Appellate Court had power to vary or reverse decree of lower Court in favour of a party failing to prefer appeal‑‑‑Where Trial Court failed to take stock of important legal point, then Appellate Court could interfere with judgment and decree passed against a person, who had not challenged same in appeal‑‑‑High Court under S.100, C.P.C., could set aside judgment of Appellate Court in such situation.

Mahboob Alam v. Mir Zaman and others PLD 1974 Lah. 218 rel.

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

‑‑‑‑Ss. 96, 100 & 115‑‑‑Revision petition‑‑‑Provisions of first appeal and second appeal would apply to revision petition mutatis mutandis.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction of High Court‑‑‑Scope‑‑‑High Court in exercise of such jurisdiction would interfere to correct errors of lower Court‑‑‑Findings based on misreading, misconstruction, non‑reading of evidence could be set aside in revision.

Shabbir Ahmad and others v. Khushi Muhammad and others 1993 CLC 2316; Muhammad Bakhsh and 4 others v. Province of the Punjab and 2 others 1994 SCMR 1836; Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568 and Jan Muhammad Khan v. Shah Mir Hussain and others 1985 SCMR 2029 rel.

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

‑‑‑‑O.XLI, R.33‑‑‑Power of Appellate Court‑‑‑Scope‑‑‑Party to suit could not be made to suffer by mistake of Court‑‑‑Where Court did not correctly appreciate evidence on record and came to a wrong conclusion, then duty of Appellate Court was to correct conclusion on basis of evidence on record‑‑‑Duty of Appellate Court was to correct error committed by Trial Court and pass judgment, which the Trial Court should have passed.

Hafiz Khalil Ahmed for Petitioner.

Sarfraz Hussain for Respondents.

Date of hearing: 1st December, 2003.

P L D 2004 Lahore 305

Before Tanvir Bashir Ansari, J

SEEDS HIGH SCHOOL through Project Director‑‑‑Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary of Ministry of Law and Justice, Islamabad and 2 others‑‑‑Respondents

Writ Petition No.2155 of 2003, heard on 23rd December, 2003.

(a) Capital Development Authority Ordinance (XXIII of 1960)‑‑‑

‑‑‑‑S. 51‑‑‑Islamabad Residential Sectors Zone (Building Control) Regulations, 1993, R.5‑‑‑Constitution of Pakistan (1973), Arts. 18, 25 & 199‑‑‑Constitutional petition‑‑‑Using building in residential sector for purpose of school since April, 2003‑‑‑Notice to petitioner by Authority to desist from such non‑conforming use of building‑‑‑Contention of petitioner was that school having been started prior to 1999 was shifted to present location in April, 2003 was protected under the policy of the Authority‑‑‑Validity‑‑‑Petitioner upon such ground could challenge policy of relaxation of Authority‑‑‑Petitioner's claim was not correct as she had not disclosed identity of premises, wherein school was functioning prior to December, 1999 despite clear denial of such fact by the Authority‑‑‑Authority had acted tit concurrence with Private School Association of Islamabad in formulating classification of pre‑1999 and post‑1999 schools alongwith embargo that no new schools in residential sectors would be opened‑‑‑Such criteria was lawful and reasonable‑‑­Petitioner could not escape responsibility incurred by such association, even if not its member‑‑‑High Court dismissed Constitutional petition.

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

‑‑‑‑Art. 18‑‑‑Expression "lawful trade, business or profession" as used in Art. 18 of the Constitution‑‑‑Connotation‑‑‑Word "lawful" trade, business or profession is sufficient to qualify such right‑‑‑Trade, business or profession can be hedged to the extent of a lawful prohibition imposed upon the same by law, whereafter such trade or business would become unlawful.

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

‑‑‑Art. 4‑‑‑Word "Law" as used in Art.4 of the Constitution‑‑­Connotation‑‑‑Such word does not refer‑to statute law only‑‑‑Body of principles recognized and applied by the State in administration of justice would equally be recognized as law as contemplated in Art.4 of the Constitution.

Administration of justice by Salmond rel.

(d) Capital Development Authority Ordinance (XXIII of 1960)‑‑‑

‑‑‑‑Preamble‑‑‑Islamabad Residential Sectors Zone (Building Control) Regulations, 1993‑‑‑Regulations were not ultra vires of Capital Development Authority Ordinance, 1960‑‑‑Such Regulations had force of law as possessed by C.D.A. Lay‑Out Plans and instruments such as C.D.A. Master Plans under Capital Development Authority Ordinance, 1960.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 25‑‑‑Unequal treatment‑‑‑Validity‑‑‑Mere differentiation and in­equality of treatment would not per se amount to discrimination‑‑­Selection or differentiation must be shown to be unreasonable or arbitrary.

(f) Wrongful act‑‑‑

‑‑‑‑ Not only two wrongs, but even numerous wrongs plus one, cannot make a right.

Ardeshir Cowasjee and 9 others v. Muhammad Naqi Nawab and 5 others PLD 1993 Kar. 631 fol.

(g) Capital Development Authority Ordinance (XXIII of 1960)‑‑‑

‑‑‑‑S. 51‑‑‑Islamabad Residential Sectors Zone (Building Control) Regulations, 1993, R.5‑‑‑Using building in residential sector for purpose of school‑‑‑Notice to petitioner by the Authority to desist from such non­conformist use of building‑‑‑Contention of petitioner was that no action had been taken against the other schools‑‑‑Validity‑‑‑Non‑taking of action against some schools would give no right to the petitioner to operate in a residential sector, if same was otherwise prohibited.

Ardeshir Cowasjee and 9 others v. Muhammad Naqi Nawab and 5 others PLD 1993 Kar. 631; Mrs. Naz Shaukat Khan and 3 others v. Mrs. Yasmin R. Minhas and another 1992 CLC 2540; Arif and another v. Jaffar Public School through Principal/Administrator and 8 others 2002 MLD 1410 and Bashiran and others v. Divisional Superintendent, Pakistan Railaways, Zarghoon Road, Quetta and others 2001 CLC 1229 ref.

Muhammad Munir Peracha for Petitioner.

Malik Muhammad Nawaz for C.D.A./Respondent No.2.

Munawar Akhtar for Respondents/Applicants (in C.M.1072 of 2003).

Date of hearing: 23rd December, 2003.

P L D 2004 Lahore 312

Before Tassaduq Hussain Jilani, J

LIAQUAT ULLAH KHAN KHATAK and 5 others‑‑‑Petitioner

Versus

HAFEEZ AKHTAR and 9 others‑‑‑Respondents

Writ Petition No.7907 of 2002, heard on 15th December, 2003.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 8(1)‑‑‑Non‑service of notice‑‑‑Petitioner filed objection with regard to arbitration agreement and was pursuing such matter before Civil Court and High Court at all stages‑‑Validity‑‑‑Objection with regard to non-­service of notice under S.8 of Arbitration Act, 1940 would be of no avail.

PLD 1970 Lah. 398 ref.

1991 MLD 1438 and 1999 CLC 1005 rel.

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

‑‑‑‑Art.199‑‑‑Concurrent orders passed by Courts below‑‑‑Interference‑‑­Validity‑‑‑Interference with such orders would not, be warranted in Constitutional jurisdiction of High Court, if same are neither arbitrary or against record nor suffering from any jurisdictional defect.

Sardar Sami Hayat for Petitioners.

Syed Hamid Ali for Respondents.

Date of hearing: 15th December, 2003.

P L D 2004 Lahore 316

Before Muhammad Ghani, J

Mian ARIF MEHMOOD‑‑‑Petitioner

Versus

Mst. TANVIR FATIMA and another‑‑‑Respondents

Writ Petition No. 12493 of 2003, heard on 27th January, 2004.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Tribunal which is invested with the jurisdiction to decide a particular matter, does not have the jurisdiction to decide it "rightly" or "wrongly" because the condition of the grant of jurisdiction is that the Tribunal should decide the matter in accordance with the law‑‑‑When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly‑‑‑When the Tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction, and therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the Constitutional jurisdiction on the ground that it is in excess of jurisdiction.

Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal PLD 1987 SC 447 fol.

(b) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S.7(3) & (5)‑‑‑Divorce pronounced by the husband upon the wife having not been revoked, had become effective after the expiry of ninety days from the date of receipt of notice by the Nazim/Chairman, Arbitration Council in view of S.7(3)(5), Muslim Family Laws Ordinance, 1961.

Muhammad Ashraf Qazi v. Mst. Hamida Khanum NLR 1980 Civil (Lahore) 205; Amanullah v. Eidat Shah 1984 PCr.LJ 1352 and M. Zakria Khan v. Aftab Ali Khan PLD 1985 Lah. 319 fol.

(c) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S. 9‑‑‑Maintenance‑‑‑Ex‑wife, after the dissolution of marriage can recover maintenance from ex‑husband by filing 'an application under S. 9, Muslim Family Laws Ordinance, 1961‑‑‑Principles.

Ghulam Jilani v. Deputy Commissioner/Collector, Sialkot 1991 CLC 1813; Muhammad Najeeb v. Mst. Talat Shahnaz 1989 SCMR 119; Muhammad Abdur Rashid v. Mst. Shazia Parveen and others 1987 MLD 766; Muhammad Banaras v. Chairman, Union Council, Chak Malak, Tehsil and District Chakwal and others 1991 MLD 112; Rashid Ahmad Khan v. Mst. Nasim Ara and others PLD 1968 Lah. 93; Riffat Ibrar v. Mst. Shehla Sabri PLD 1994 Lah. 148; Muhammad Saleem v. Mst. Zeba Abdul Hameed 1995 MLD 988 and Muhammad Ashraf v. Mst. Bushra Shaheen PLD 1995 Lah. 44 ref.

(d) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑Ss. 9 & 7‑‑‑Maintenance‑‑‑Nazim/Chairman, Arbitration Council had awarded maintenance till the decision of the application on 30‑8‑2002 and for future also‑‑‑Marriage having stood dissolved on 28‑2‑2002, wife could lawfully claim maintenance till then as well as for the Iddat period‑‑‑Wife, in circumstances, was entitled to the maintenance from 25‑5‑2000 when she had been deserted by the husband to 27th of June, 2002 when her Iddat period expired.

Muhammad Abdul Rashid v. Mst. Shazia Parveen 1987 MLD 766; Muhammad Najeeb v. Mst. Talat Shahnaz 1989 SCMR 199; Mansoor Tariq Khan v. Mst. Nafeesa 1999 CLC 305 and Asad Ali v. Judge, Family Court, Lahore 1995 MLD 172 ref.

(e) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S. 9‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Application for maintenance allowance by wife‑‑‑Notice to the husband‑‑‑Service‑‑‑Impugned decision of the Arbitration Council categorically mentioned that in the first instance, notice was sent to the husband through registered post, but despite receipt of notice he did not turn up, whereafter he was served through proclamation in the local daily for his appearance before the Arbitration Council, but he elected not to appear‑‑‑Husband, in his revision had pleaded non‑receipt of the notice and lack of knowledge of the proceedings before the Arbitration Council‑‑‑District Officer (Revenue), in his orders had recorded the finding of fact that service on the husband was sufficient service under the law and Chairman Arbitration Council was quite justified to proceed against the husband ex parte in circumstances‑‑‑Husband had failed to show that "the said finding of the District Officer (Revenue), as Revisional Authority, was not sustainable, being not supported by evidence on record‑‑‑Contention of the husband that he had been condemned unheard inasmuch as he had neither been served with any notice, nor he had even otherwise knowledge of the proceedings before the Arbitration Council, therefore, was repelled by the High Court in circumstances.

Muhammad Najeeb v. Mst. Talat Shahnaz and 2 others 1985 CLC 649 and Muhammad Ashraf v. Mst. Bushra Shaheen PLD 1995 Lah. 44 ref.

(f) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S.9‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑ Maintenance‑‑‑Application of wife for maintenance for the period she was deserted by the petitioner/husband‑‑‑Contention of the husband was that the wife had herself chosen to stay away from him and thus was not entitled to maintenance‑‑‑Validity‑‑‑Record had shown that the petitioner/husband was already having a wife and children from her; respondent/wife was left in the lurch, she knew nothing with regard to his married status as well as about his exact age; husband must have come to his own conclusion in not insisting upon incompatible parties (two ladies) jealous of each other, to live together and thereby making life a hell not only for them but for him as well and the two ladies were kept apart, not allowing them to know each other or even their abode‑‑­Husband, in circumstances, should have no grouse against the second wife as no one could blame her because the husband's first wife was probably a virago and for that reason he himself had to stay away from her‑‑‑Times have changed and hardship which wives were prepared to endure in the past, were not prepared to tolerate now‑‑‑Second wife/respondent, therefore, in the peculiar facts and circumstances of the present case, could not be held to be at fault and she was not disentitled for maintenance by living apart from the husband.

(g) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S.9‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑ Maintenance allowance to wife‑‑‑Quantum‑‑‑Factors to be considered by Court‑‑‑Principles‑‑‑Quantum of maintenance for wife had been fixed by the Arbitration Council and modified by the Revisional Authority‑‑‑Husband, in the present case, had a wife before his marriage with the second wife; he also had children from the first wife; second wife, in her petition before the Arbitration Council had mentioned that he had provided a mobile phone to his first "secret" wife and that he had himself told her, on more than one occasion, that he had the intention to educate his children from the first wife in convent school; husband had married a second wife, leaving his first wife and children; not only that, he had deserted and subsequently divorced the second wife who had given birth to a son also, out of her wedlock with him; wife had contended that present was the fit case for penalizing such an irresponsible husband and the only way the Court could help in such circumstances was to compel the husband to pay a heavy premium for the luxury of wives, one after the other, and the punishment should be exemplary in order to have a deterrent effect on the society‑‑‑Effect‑‑­Held, in the absence of any challenge to the amount of maintenance fixed by the Chairman, Arbitration Council as upheld by the Revisional Authority, High Court could not increase the same suo motu in the exercise of its Constitutional jurisdiction‑‑‑No error of approach or jurisdictional defect having been found in the impugned decisions, regarding interference in Constitutional jurisdiction, wife was legally entitled to claim maintenance, she having been divorced by the husband‑‑‑Portion of the original order which was untenable in law was declared as without lawful authority by the High Court and decree to that extent was modified, whereas the portion of the order which was sustainable was kept intact.

A plain reading of section 9, Muslim Family Laws Ordinance, 1961 means that a husband has to maintain his wife "adequately" and if he has more wives than one, he must maintain them "equitably". Therefore, the maintenance should not be bare minimum sustenance allowance but a convenient provision in consonance with what the husband can afford as also what are the needs of the wife. It is not the meeting of the mere wants by way of sustenance because in these days of inflationary trend and the constant rise in the cost of living index, it is bound to work hardship on the wife. A person taking on the responsibility of marriage has to maintain his wife, and it is in all cases necessary to ascertain the visible means and the earning capacity of the husband. Therefore, in fixing the maintenance, the Court has to take into consideration not only the needs of the wife but also the paying capacity and circumstances of the husband who is liable to pay maintenance. Whereas to insist upon conformance to the principle of bare minimum sustenance allowance, particularly in a case where the husband is in affluent circumstances, would be not only inequitable but unjustified, if upon consideration of visible income of the husband, he is found to be able to pay a little more to keep up the wife going on an even keel, it cannot be said that the Court would thereby be pampering a wire who seeks to live apart from the husband. However, the maintenance allowance should neither be too heavy so as to tempt the wife to stay away from her husband, neither too meagre so as to leave her high and dry. The balance has to be struck. The amount of maintenance payable to a wife should not be so small as to simply keep her body and soul together. It has to be an amount which could be enough to keep her at least financially in comfort, particularly in these days of high and rising prices. In regard to determining what is required by the wife, the Court has to steer clear of the two extremes viz. it must not give maintenance to a wife which would keep her in luxury and would make judicial separation profitable, and also impede any future reconciliation. It must also steer clear of the other extreme, viz. penuriousness. Steering clear of these two extremes the Court must see whether the amount to be fixed as maintenance would be liberal or illiberal. If this is kept in view, may be the couple will see the error of their ways and might get reconciled and lead a happy domestic life, unless they have already parted ways, as is the present case.

The question of quantum of maintenance is a matter primarily in the discretion of the trial Court which has to take into consideration several factors, like the status of the family, the earning capacity, commitments of the husband, and what is required by the wife to maintain herself. In the present case, the wife has led evidence to show that the husband is possessed of considerable assets and income. Since the husband has remained ex parte before the Arbitration Council there is nothing on record to controvert the evidence adduced by the wife. Even in his revision petition and the writ petition, the husband has not thrown a successful challenge to the evidence produced by the wife. Moreover, it is not the case of the husband that the wife is a lady who, belongs to a class who go out for work for earning their livelihood. Since the husband had not entered appearance before the Arbitration Council and was proceeded against ex parte, there is nothing on record to dislodge the evidence produced by the wife. The husband has not brought on record even the evidence produced before the Arbitration Council by him. In the circumstances, it cannot be said that any material piece of evidence has been misread or excluded from consideration.

Undeniably, the husband had a wife before his marriage with the second wife. He had also children from the first wife. It is mentioned in the petition filed by the wife before the Arbitration Council that he had provided a Mobile Phone to his first "secret" wife, and that he had himself told her, on more than one occasion, that he had the intention to educate his children from the first wife in Convent School. The husband has married a second wife, leaving his first wife and children. Not only that, he has deserted and subsequently divorced the second wife who has given birth to a son also, out of her wedlock with him. In the circumstances, wife has contended that it is a fit case for penalizing such an irresponsible husband and the only way the Court could help in such circumstances is to compel the husband to pay a heavy premium for the luxury of wives, one after the other, and the punishment should be exemplary in order to have a deterrent effect on society. However, the absence of any challenge to the amount of maintenance fixed by the Chairman, Arbitration Council as upheld by the revisional authority, High Court cannot, or at least it should not, increase the same suo motu in the exercise of its Constitutional jurisdiction.

Upon considering the entire pros and cons of the matter, no error of approach or jurisdictional defect has been found in the impugned decisions, requiring interference in Constitutional jurisdiction subject, of course, to what has been mentioned above about the period for which the wife was legally entitled to claim maintenance, she having been divorced by the husband.

The portion of the original order which is untenable in law can be declared as without lawful authority and the decree to that extent can be modified, whereas the portion of the order which is sustainable can be kept intact.

Asad Ali v. Judge, Family Court, Lahore 1995 MLD 172 ref.

Malik Muhammad Azam Rasool for Petitioner.

Iqbal Hameed‑ur‑Rehman for Respondent No. 1.

Date of hearing: 27th January, 2004.

P L D 2004 Lahore 330

Before Muhammad Muzammal Khan, J

Mst. ZAINAB KHATOON‑‑‑Petitioner

Versus

AMIR ABDULLAH KHAN‑‑‑Respondent

Civil Revision No. 1590 of 2003, decided on 12th December, 2003.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 79 & 81‑‑‑Execution of document admitted or not denied‑‑­Effect‑‑‑Execution of such document need not to be proved‑‑‑Admission of document would be sufficient proof of its execution and no further proof would be needed in terms of Art.79 of Qanun‑e‑Shahadat Order, 1984.

(b) Witness‑‑‑

‑‑‑‑ Advocate as witness‑‑‑Advocate not related to party in any degree could not be believed to have deposed falsely being a highly educated and well placed person in the society.

(c) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 26‑‑‑Qatiun‑e‑Shahadat (10 of 1984), Arts. 79 & 81, West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.‑‑‑Suit for recovery of money payable to wife under agreement on divorce by husband‑‑­Husband through agreement undertook to pay certain amount to wife in. case of divorce or second marriage by him without her consent‑‑‑Wife after divorce by husband filed such suit‑‑‑Husband pleaded that wife through subsequent agreement had relinquished her rights under original agreement‑‑‑Trial Court decreed the suit, but Appellate Court dismissed the same‑‑‑Validity‑‑‑Subsequent agreement containing admission of execution of original agreement would be enough proof that husband had executed same and no further proof would be needed in terms of Art.79 of Qanun‑e‑Shahadat, 1984‑‑‑Original agreement was not in restraint of marriage, but was a contingent agreement increasing amount of prompt dower in case wife was divorced against her wishes or husband contracted second marriage‑‑‑Husband under law was competent to increase dower amount after marriage and original agreement was of such nature, which could be enforced against him‑‑Impugned judgment and decree being tainted with material illegality and irregularity was not sustainable at law‑‑‑High Court accepted revision and set aside impugned decree, resultantly judgment and decree of Trial Court would stand revived.

Emperor v. Po Thin AIR 1914 Lower Burma 156(1); Mst. Nazar Rauf and 3 others v. Dr. Riaz Ahmed and another PLD 1988 Lah. 390 and Muhammad Ali v. Ayesa Khatun AIR 1916 Cal. 761 ref.

(d) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 26‑‑‑West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.‑‑‑Provision of S.26 of Contract Act, 1872‑‑‑Scope‑‑‑Such provision would not cover documents creating partial or indirect restraints on marriage in the sense not restricting marriage though adversely making liable to do some thing or pay some amount in lieu of marriage‑‑‑Agreement to pay to wife a specified amount in case of, divorce or remarriage would not be in restraint of marriage and could not be considered as void being violative of such provision.

Emperor v. Po Thin AIR 1914 Lower Burma 156(1) and Muhammad Ali. v. Ayesa Khatun AIR 1916 Cal. 761 ref.

Haji Malik Muhammad Qasim Joyia for Petitioner.

Amir Abdullah Khan Niazi for Respondent.

P L D 2004 Lahore 335

Before Muhammad Ghani, J

INTERNATIONAL COLLEGE OF COMMERCE‑‑‑Petitioner

Versus

UNIVERSITY OF PUNJAB‑‑‑Respondent

Writ Petition No.297 of 2004, decided on 9th January, 2004.

(a) University of the Punjab Act (IX of 1973)‑‑‑

‑‑‑‑S.35‑‑‑Constitution of Pakistan (1973), Arts.19, 199 & 18‑‑‑Constitutional petition‑‑‑Freedom of trade, business or profession‑‑­Establishment and administration of an educational institution‑‑‑Refusal of University to affiliate educational institution‑‑‑Not violation of fundamental right of ‑ the person establishing such educational institution‑‑ ‑Citizen is not prohibited from establishing and administering an educational institution of his own choice‑‑‑Right to establish an educational institution is not an absolute right and is subject to such law as may be made by the State in the interest of general public‑‑­Establishing an, educational institution can, by no stretch of imagination, be treated as practising any "profession" -‑Contention was that the educational institution so created, would be rendered nugatory if affiliation was denied by the University and that establishment of educational institution would be of no utility unless the same was affiliated to the University for the purpose of conferment of degrees on the students‑‑‑Validity‑‑‑When an institution applies to a University to be affiliated, it has to conform to the measures prescribed by the concerned University‑‑‑Conditions precedent for affiliation are meant for uniformity, efficiency and excellence in educational courses and do not violate any fundamental right‑‑‑Principles.

A citizen is not prohibited from establishing and administering an educational institution of his own choice. But establishing educational institutions can, by no stretch of imagination, be treated as practising any profession. Teaching may be a profession but establishing an institution, employing teaching and non‑teaching staff, procuring the necessary infrastructure for running a school or college is not practising profession. It may be anything but not practising a profession. Assuming, however, that a person or body of persons has a right to establish an educational institution even then this right is not an absolute one. It is subject to such law as may be made by the State in the interest of general public. On these premises, the question, which arises for consideration is whether a person who has the right to establish and administer an educational institution of his choice, has a fundamental right to affiliation. The contention of the petitioner is that the right of the petitioner to establish an educational institution of his choice will be rendered nugatory if affiliation is denied, and that the establishment of the college by him would be of no utility unless the same is affiliated to the University for the purpose of conferment of degrees on students.

No prohibition to lay down reasonable standards as conditions precedent to affiliation, can be conceived either against the Legislature, or the University to frame similar regulations if the same are designed as to make it an effective vehicle for imparting education.

The right 'to establish and administer an educational institution plainly does not include the right to maladministration. Section 35 of the Act has been enacted to vouchsafe, inter alia, that no such educational institution is housed in unhealthy surroundings; that it does not fall below the standards of excellence expected of educational institutions, and is compelled to keep in steps with others. If a request is made for the affiliation of an educational institution, it is implicit in the request that the educational institution would abide by the regulations which are made by the University granting affiliation. The University can always prescribe regulations and insist that they should be complied with before it would grant affiliation to an educational institution. To deny the power of making regulations to the University concerned would result in robbing the concept of affiliation of its real essence. No institution can claim affiliation until it conforms to a certain standard. The fact that the institution is of the prescribed standard indeed inheres in the very concept of affiliation. Affiliation is a facility sought by an educational institution and granted by the University for the purpose of enabling the students of that particular educational institution to sit for an examination to be conducted by the University in the prescribed subjects and to obtain a degree conferred by the University. For that purpose, the students have to be coached in such a manner that they attain excellence in respect of, the standards of education prescribed by the University. That is the price of affiliation. For this reason, it is permissible for the University to prescribe regulations which must be complied with before an institution can seek and retain affiliation. Affiliation of an educational institution could be regulated, laying down permissible standards, observance of which could be made a condition precedent to the according of affiliation.

There is no fundamental right to affiliation. Recognition or affiliation is essential for a meaningful exercise of the right to establish and administer educational institutions. Recognition may be granted either by the Government or any other authority or body empowered to accord recognition. Similarly, affiliation may be granted either by the University or any other academic or other body empowered, to grant affiliation to other educational institutions......The institution has to seek such recognition or affiliation from the appropriate agency. Grant of recognition and/or affiliation is not a matter of course nor is it a formality. Admission to the privileges of a University is a power to be exercised with great care, keeping in view the interest of the general public and the nation. It is a matter of substantial significance....The private educational institutions merely supplement the effort of the State in educating the people. It is not an independent activity. It is an activity, to supplement to the principal activity carried on by the State. No private educational institution can survive or subsist without recognition and/or affiliation. The bodies which grant recognition and/or affiliation are the Authorities of the State. In such a situation, it is obligatory, in .the interest of general public, upon the authority granting recognition or affiliation to insist upon such conditions as are appropriate to ensure not only education of requisite standard but also fairness and equal treatment in the matter of students. Since the recognizing/affiliating authority is the State it is under an obligation to impose such conditions as part of its duty. It cannot allow itself or its power and privileges to be used unfairly. The incidents attaching to the main activity, attach to supplemental activity as well. Affiliation/recognition is, not there for anybody to get it gratis or unconditionally. No Government Authority or University is justified or is entitled to grant recognition/affiliation without imposing such conditions.

The right to seek education could be classified as fundamental right as it is relatable right to life. A person has a right to establish an institution but it does not carry a right to have it recognized. For purposes of recognition it has to conform to the condition laid down in the relevant law and the same cannot be dubbed as unreasonable restriction.

The citizens should be enabled not only to become literate but also to improve their educational proficiency. It is, however, equally imperative that the institutions which come in this field, should play their role in a befitting manner. Mere fleecing of people desirous to achieve excellence or providing them short‑cuts to obtain high degrees, without requisite knowledge, cannot be countenanced. Heavy responsibility, therefore, falls on the shoulders of the functionaries of the University to ensure that affiliation is granted to only such institutions as can deliver goods in a perfect and laudable manner. If any institution is found lacking in this behalf, the University Authorities will be justified in refusing affiliation thereto. It is discretionary with the University to grant or withhold affiliation and if discretion is exercised judiciously, it cannot be taken exception to by any one.

Thus, if the Affiliation Committee had found that any of the requirements laid down in the rule had not been fulfilled by the institution and then on the basis of its report in this regard, the Committee had refused affiliation to the institution the orders of the Committee in the matter did not suffer from any jurisdictional defect and would not warrant interference in exercise of Constitutional jurisdiction.

It was not only the right of the University but also its duty to make sure that the institutions, satisfied necessary requirements for obtaining affiliation, and if they had failed to comply with those requirements, the University was justified to refuse to grant affiliation to them.

Unni Krishanan, J.P. and others v. State of Andhra Pradesh and others AIR 1993 SC 2178; Rahimyarkhan College of Education v. Islamia University, Bahawalpur 1996 CLC 64; Rahimyarkhan College of Education v. Islamia University 1996 SCMR 341 ref.

(b) University of the Punjab Act (IX of 1973)‑‑‑

‑‑‑‑S.15(3)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Question as to scope and extent of emergency powers of Vice-­Chancellor under S.15(3), University of the Punjab Act, 1973 was left open by the High Court to be examined in proper proceedings when such an occasion arises.

Sh. Mushtaq Ali for Petitioner.

Dr. A. Basit, Legal Advisor of Punjab University (On Court's call.)

P L D 2004 Lahore 349

Before Mrs. Fakhar‑un‑Nisa Khokhar, J

ZAFAR HUSSAIN ‑‑‑Petitioner

Versus

Begum FARZANA NAZLI and others‑‑‑Respondents

Writ Petition No. 17425 of 2003, herd on 17th February, 2004.

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

‑‑‑‑S. 17‑A‑‑‑Interim order of maintenance allowance‑‑‑Scope‑‑‑Parties, at any stage of the proceedings of a suit for recovery of maintenance allowance, for children can make request to the Family Court for interim maintenance allowance, which will be considered by the said Court and the father shall have a responsibility to deposit maintenance allowance from the day of passing of order by the Court.

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

‑‑‑‑S. 17‑A‑‑‑Interim order for maintenance allowance‑‑‑Period for determination‑‑‑Scope‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Rate of maintenance and computation of period for grant of maintenance are entirely two vital questions, which depend on evidence of parties and after appraisal of evidence of the parties, Court has to determine the period for which the maintenance allowance be granted to the children and the Court has also to decide the rate of maintenance allowance as established by the evidence, keeping in view the means of the father‑‑‑Held, spirit of the provision of S.17‑A, West Pakistan Family Courts Act, 1964 has no retrospective effect for computation of period from the date of institution of suit rather the same will start from the date of passing of the order‑‑‑High Court modified the rate and the order of the Family Court for maintenance allowance to be paid by the father on a specified date of each month after passing of the order by the Family Court till final determination of the suit‑‑­Determination of interim maintenance allowance for children shall have no bearing on the final determination of maintenance allowance by the Family Court after appraisal of entire evidence.

Muhammad Iqbal Chaudhry for Petitioner.

Ch. Ihsan Sabri for Respondents.

Date of hearing: 17th February, 2004.

P L D 2004 Lahore 351

Before Muhammad Sair Ali, J

Messrs METROPOLE CINEMA PVT. LTD. through Managing Director and others‑‑‑Petitioners

Versus

GOVERNMENT OF PUNJAB through Secretary, Excise and Taxation Department, Lahore and 4 others‑‑‑Respondents

Writ Petitions Nos.5954, 6050 to 6052, 6091, 6092, 8172, 8173, 8191 and 8515 of 2003, heard on 23rd December, 2003.

(a) West Pakistan Entertainments Duty Act (X of 1958)‑‑

----Preamble, Ss.2(a), (d), (f), 3, 4 & 5‑‑‑Constitwion of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Issues which required decision by Court were whether entertainment duty could be levied, imposed and demanded from the petitioners for the period when the cinema houses remained closed and did not provide any entertainment to cinema goers and secondly, whether additional entertainments duty could be competently claimed from the petitioners by the Authorities under the law‑‑‑Principle that the Authorities could not levy and demand entertainment duty when no entertainment took place, was inferred by reference to certain definitions and the charging provisions of West Pakistan Entertainment Duty Act, 1958.

(b) West Pakistan Entertainments Duty Act (X of 1958)‑‑‑

‑‑‑Preamble‑‑‑Object of West Pakistan Entertainments Duty Act, 1958‑‑­Object of the Act was expressed in its Preamble‑‑‑Intent of the statute was clearly and unambiguously expressed as the levy of a duty on admission to entertainments.

(c) West Pakistan Entertainments Duty Act (X of 1958)‑‑‑

‑‑‑‑S. 2(a), (d) & (f)‑‑‑Principle that the Authorities cannot levy and demand entertainments duty when no entertainment takes place, was inferred by reference to definitions of 'admission to an entertainment', 'entertainment' and 'payment for admission' as provided under Ss.2(a), (d) & (f) of the Act respectively.

(d) West Pakistan Entertainments Duty Act (X of 1958)‑‑‑

‑‑‑‑Ss. 3, 4 & 5‑‑‑Principle that the Authorities cannot levy and demand entertainment duty when no entertainment takes place was inferred by reference to charging S.3 read with Ss.4 & 5 of the Act.

(e) West Pakistan Entertainments Duty Act (X of 1958)‑‑‑

‑‑‑‑Preamble, Ss.2(a), (d) (f), 3, 4 & 5‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Charging provisions and the definition clauses of the Act when read together clearly and effectively gave statutory force to the object of the Act as expressed in the Preamble‑‑­Said provisions unambiguously unfolded the meaning of the Act that entertainment duty was leviable only on the payment for admission to an entertainment, which could be an exhibition, performance, amusement, game or sport to which persons, on payment, were admitted‑‑­Entertainment was the keyword‑‑‑Magnet attracting entertainments duty was the event of entertainment‑‑‑Charging and recovery provisions of the Act were only set into motion when proprietor of a place of entertainment allowed interested persons admission to an entertainment upon payment or otherwise through tickets‑‑‑Where place of entertainment was closed and tickets were not issued for admission the charging provisions would not apply and the entertainment duty could not be charged‑‑‑Entertainment duty would not be leviable when place of entertainment was closed‑‑‑Said principle was further reinforced from the absence of any provision in the Act that entertainment duty would be levied irrespective of the fact whether entertainment was provided or, not in the place of entertainment.

(f) West Pakistan Entertainments Duty Act (X of 1958)‑‑‑

‑‑‑‑Ss. 3 & 5(2)‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Notification by the Authorities, legality of‑‑­Vires‑‑‑Notification by the Authorities that no rebate on account of closure of cinema would be allowed except due to natural, calamities notified by the District Administration‑‑‑Validity‑‑‑In the absence of any provision in the West Pakistan Entertainments Duty Act, 1958 that entertainment duty shall be levied irrespective of whether entertainment was provided or not in the place of entertainment, the Authorities had been conferred with no power under S.5 read with S.3 of the Act to charge the duty each day of the period of closure of cinema house when neither entertainment took place nor was any person admitted for such purpose‑‑‑Such a view was illogical and irrational that all possible periods of closure of the cinema houses or places of entertainment could have been adjusted while fixing the rates of entertainment duty in terms of the said notification of the Authorities‑‑‑All situations, exigencies, occasions and eventualities that may lead to the closure of the cinema could not be visualized or comprehended by the application of ordinary or even extraordinary prudence‑‑‑All eventualities that may arise in the normal course of events, were not always attributable to the nature to qualify as 'natural calamities' in the opinion of the District Administration‑‑‑Proprietor of a place of entertainment or cinema house may decide to discontinue his place of business of entertainment by closing the place‑‑Different factors such as financial, social, religious, moral, political or legal enumerated by the High Court that may bring about temporary or permanent closure of the place of entertainment‑‑­Legislature had not imposed any embargo, terms or conditions in the West Pakistan Entertainments Duty Act, 1958 for the temporary or permanent closure of a place of entertainment, thus, the said notification by the Authorities was found to be beyond the scope of the provisions of the Act and was declared to be ultra vires the law.

(g) West Pakistan Entertainments Duty Act (X of 1958)‑‑‑

‑‑‑‑Ss. 3, 4, 5 & 6‑‑‑Sales Tax Act (VII of 1990), S.34‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Imposition of additional entertainment duty through notification, legality of‑‑‑Vires‑‑­"Penalty" and "additional entertainment duty", distinguished‑‑‑Analogy of Sales Tax Act, 1990, S.34‑‑‑Applicability‑‑‑Imposition of additional entertainment duty in case of default by the proprietors of the cinema houses in payment of entertainment duty in time was not provided for under the West Pakistan Entertainments Duty Act, 1958‑‑‑Sections 4, 5 & 6 of the Act authorized collection anti imposition of penalty for certain non‑payments or non‑compliance of provisions, however, imposition of the penalties was not automatic as the Act mandatorily provided for an opportunity of hearing to the person on whom the penalty was being imposed‑‑‑Scope of the penalty provisions could not be enlarged or interpreted to include imposition, levy or charge of additional entertainment duty‑‑‑Imposition of penalty was a punishment for the offence while charge of additional entertainment duty was an additional duty to be recovered in cases of delay in payment of normal entertainment duty‑‑‑Authorities had no powers to impose additional entertainment duty through notification when the statute did not confer any such power upon them‑‑‑Neither Ss.3, 4, 5 & 6 of the Act permit or authorize the Government to impose additional entertainment duty or an entertainment duty in case of a default in payment of the entertainment duty by the proprietor of the cinema‑‑‑In the absence of an express provision providing for the levy of additional entertainment duty as in S.34 of the Sales Tax Act, 1990, the Government of the Punjab or any of its functionaries had no authority to levy, charge or demand the same‑‑­Notification levying an additional entertainment duty in case of default in payment of entertainments duty was declared to be repugnant to and ultra vires of the provisions of the West Pakistan Entertainments Duty Act, 1958.

Dr. Sohail Akhtar for Appellants.

Mrs. Salma Malik, A.A.‑G. with Syed Riaz Hussain, Incharge Legal Cell for Respondents.

Date of hearing: 23rd December, 2003.

P L D 2004 Lahore 365

Before Sh. Abdul Rashid, J

MUHAMMAD NAWAZ---Petitioner

Versus

THE STATE ---Respondent

Criminal Miscellaneous No.5756-B of 2003, decided on 9th December, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/11---Bail, grant of---Accused had allegedly married the younger sister of his wife without having divorced her and thus was committing Zina with her younger sister--Marriage of the accused with the sister of his wife under the Muhammadan Law was not void but was irregular and the issues of such marriage would be legitimate---Accused, therefore, could not be held to be committing Zina with his second wife---Second marriage of the accused would become valid on his divorcing the first wife whom he had already claimed to have divorced--­Accused seemed to have committed no offence---Bail was granted to accused in circumstances.

Mian Muhammad Arif for Petitioner.

Rana Imtiaz Ahmad Khan for the State.

P L D 2004 Lahore 368

Before Muhammad Farrukh Mahmud, J

SHAMSHAD AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 12 of 2003, heard on 11th November, 2003.

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

----Ss. 398/149, 353/149 & 324/149/148---Anti-Terrorism Act (XXVII of 1997) Ss.7(b) & 7(h)---Appreciation of evidence---Occurrence had taken place during midnight---Accused were not previously known to prosecution witnesses---Police party could not possibly see the faces of the accused running away in the Jungle from the police vehicle--­Complainant did not name or identify the accused during trial---Accused were not stated to have fired at the police---Weapons recovered, at the instance of accused were not sent to Forensic Science Laboratory--­Accused were acquitted in circumstances.

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

----Ss. 398/149, 353/149, 324/149, 148 & 393---Anti-Terrorism Act (XXVII of 1997), Ss.7(b) & 7(h)---Appreciation of evidence---Accused was apprehended on the night of occurrence in an injured condition and he in his statement did not challenge the time of incident---Although the accused had allegedly fired twice at the police party with a Repeater Gun, yet the fires did not hit either the police party or the police vehicle---Not a single crime empty was recovered from the scene of occurrence to substantiate the prosecution theory that the police had been firing at the accused in self-defence---Both the parties, thus, had suppressed the truth and the Court was to draw its own inference after sifting the evidence---No police encounter appeared to have taken place and the story about it was developed later on--Accused was acquitted accordingly of all the charges on which he was convicted, but he was now convicted under S.393, P.P.C.---Accused was in Jail for the last more than eleven months and had sustained two injuries on his shoulder and leg resulting into fracture of both the bones---Sentence of accused was reduced to the imprisonment already undergone by him in circumstances.

Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502 and Shahid Raza and another v. The State and another 1992 SCMR 1647 ref.

Hafiz Shahid Nadeem for Appellant.

Ahmad Mansoor Chisthti, A.A.-G. assisted by M.A. Farazi for the State.

Date of hearing: 11th November, 2003.

P L D 2004 Lahore 376

Before Mian Saqib Nisar, J

K.B. THREADS (PVT.) LIMITED through Chief Executive and others---Petitioners

Versus

ZILA NAZIM, LAHORE (AMIR MEHMOOD) and others ---Respondents

Writ Petitions Nos.9402, 9403, 12943, 12944 and 12945 of 2003, heard on 21st January, 2004.

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

----S. 144---Punjab Prohibition of Dangerous Kite-Flying Activities Ordinance (LIX of 2001), Preamble---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Initiation of action by the Provincial Government and Zila Nazim under S.144, Cr.P.C. preventing the petitioners from manufacturing and selling, etc. the products usable in kite-flying---Validity---Innocent pastime of yesterday, had undoubtedly, become a menace for the society, the daily reported accidents, injuries and deaths caused on account of the activity of kite-flying were scaring and fun of few had become the hazard of large number of people which was a matter of concern, for the people, who were in authority and directly responsible for protecting the life, safety and property of citizens---Such object, however, could not be achieved in terms of S.144, Cr.P.C. by preventing the petitioners from manufacturing and selling etc. the products usable in kite-flying---Where the situation had been in vogue .since long, which was the position prevailing in the .present case for the last more than a decade, permanent solution should have been found to meet the problem by making a law, rather than allowing the Zila Nazim and the Government to exercise the power under S.144, Cr.P.C. which could not be used to prevent the petitioners from conducting their business---Authorities, in circumstances, should have brought a change in the existing law on the subject or to legislate fresh law but no action against the petitioners could be taken under S.144, Cr.P.C.---Principles.

Some years ago, the kite-flying in a particular season and specially on the "Basant" day, was considered as an innocent pastime and was a Cultural Festivity of Lahorites. But today, the activity has extended to almost whole of the year and involves hazards and serious implications, such as the grave threat to the life and the property of the citizens. Since the last few years, with the celebration of night Basant; an aerial firing, loud music, use of metal and 'chemical wire/cord; flying of kites in the open places and parks, has caused annoyance to the public at large, and is a clear intrusion and violation of the citizens' right of privacy and their peace and tranquillity. The tripping, interruption and short-circuiting of the electric supply has become rampant and a routine, which is causing damage not only to WAPDA's equipments, inflicting colossal loss, but also to the essential home appliances of the common man, which he, during these hard times of financial crunch, may not have the capacity of seeking repairs or the replacement. Thus, the innocent pastime of yesterday, has undoubtedly become a menace for the society today; the daily reported accidents, injuries and deaths caused on account of the above activity are scaring. The fun of few, has become the hazard of large number of the people. A person even at his home, which is considered to be the safest place for him, may get his throat cut or get electrocuted for no fault or negligence on his part. Out of the total population of the city of Lahore, a maximum 15% to 20%, may be involved in the kite-flying, however, the remaining have been made the hostage and sufferers of this menace. It is a publicly known fact that, on account of the substantial harm and loss to the life and property, various N.G.Os, and other social organizations, have been raising hue and cry and drawing the attention of the people in power. Appeals are being published by WAPDA in the newspapers requesting to give up the use of metallic wire. But still the situation did not improve. This obviously is and should be a matter of concern for the people, who are in authority and directly responsible for protecting the life, safer and property of the citizen.

Perhaps, it was to discharge the above obligation, that the Zila Nazim of Lahore initiated the action under section 144 Cr.P.C and issued notification which action may be commendable otherwise. But the first question is, if such object can be achieved in terms of section 144, Cr.P.C. by preventing the petitioners from manufacturing and selling, etc. the products usable in kite-flying. Because, it is an important rule for the dispensation of justice, that even a most laudable purpose cannot be allowed to be achieved otherwise than in accordance with law, and certainly not by transgressing the authority under the law. Besides, the more important question is about the violation of the fundamental rights, the answer to the first question for the following reasons is in the negative:--

(i) The action permissible and warranted by section 144, Cr.P.C. is transitory in nature, which is meant to cater for a temporary situation or to facilitate the stop-gap arrangement till proper and legal measures are taken to safeguard and preserve the life and the property of the public, etc. The power conferred upon the Zila Nazim and the Government is section 144, Cr.P.C. is to meet a grave situation which has erupted or is likely to erupt and if no measures are immediately taken, it may cause the situations mentioned in section 144, Cr.P.C. Obviously, in this scenario, it is duty of the Zila Nazim and also the Provincial Government to prevent and control such situation, and the emergency action, which can be taken under the law definitely is through the exercise of the powers under section 144; Cr.P.C. But if the situation has been in vogue since long, which was the position prevailing in the present case for the last more than a decade, a permanent solution should be found to meet the problem by making a law, rather allowing the Zila Nazim and the Government to exercise the powers under section 144, Cr.P.C. which cannot be used to prevent the petitioners from conducting their business etc.

(ii) It is a publicly known fact that for the last many years, dangerous kite-flying has been causing great annoyance to the public at large; this activity has been causing accidents and the casualties in the city and also damage to the public and private properties. It was with the object of preventing the perils of the activity that the Government had earlier issued the Ordinance LIX of 2001, which clearly establishes that the situation was neither urgent nor emergent but was prevailing since long. This also is clear from the newspaper clippings appended along with the petitions and from the press conference of the Nazim. Therefore, it was important for the authorities to have brought a change in the existing law on the subject or to legislate fresh law. But no action against the petitioners could be taken under section 144, Cr.P.C.

(iii) The first notification was issued by the Nazim on 30-6-2003, but it was signed a day later, therefore, not only it was technically wrong, but also shows the predisposed mind of the. Zila Nazim and therefore, is a colourable exercise of the jurisdiction. Moreover, the first notification of the Nazim had lapsed after two days and was not in force, when the notification dated 4-7-2003 was issued by the Government. Thus in the light of the spirit of the provisions of section 144(6), Cr.P.C, it is only an in-force notification of the Nazim, which could be extended. Therefore, the Government had no jurisdiction to revive a dead action, and there is nothing on the record, if the notification of the Government was applied retrospectively and the same could be so applied under the law.

(iv) As stated earlier, the action contemplated by section 144, Cr.P.C, is emergent, temporary and stop-gap in nature, to meet the situation provided in that section. In the present case, the ban was imposed by the Zilla Nazim for two days, which was initially extended for two months by the Government. Thereafter, it was never lifted till the last notification of the Government dated 20-1-2004, which was issued during the pendency of these, petitions and seems to be for allowing the celebration of Basant, otherwise there was no change in the situation. But before that the Zilla Nazim and the Government in routine kept on issuing successive notifications, without assessing the situation after lifting the ban for even a single day or making efforts for the legislation on the subject. Thus, in such circumstances, the re-­promulgation of the ban through repeated notifications on the face of it is the misuse and abuse of authority by the authorities which cannot be termed in law as the proper exercise of jurisdiction.

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

----S. 144---Powers under S.144, Cr.P.C.---Nature and scope---Action permissible and warranted by S.144, Cr.P.C. is transitory in nature, which .is meant to cater for a temporary situation or to facilitate the stop­gap arrangement till proper and legal measures area taken to safeguard and preserve the life and the property of the public, etc.---Power conferred upon the Zila Nazim and the Government in S.144, Cr.P.C. is to meet a grave situation which has erupted or is likely to erupt and if no measures are immediately taken, it may cause the situations mentioned in S. 144, Cr.P.C.

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

----Chap. 1 [Arts. 8 to 28], Arts. 199 & 184---Fundamental Rights--­Meanings, nature, scope and significance highlighted---Fundamental Rights are most superior and special in nature and cannot be interfered with without having strict recourse to the law and that too subject to the condition provided for the exercise of these rights---Superior Courts, by means of Arts.199(2) and 184(4) of the Constitution have been made responsible to provide remedy to those citizens, whose rights have been encroached by the State, or its functionaries---Principles.

The fundamental rights are primordial in nature, which are imperative and essential for the very existence, development, progress, prosperity of the citizen of the State, and are necessary for the growth and expression of their personalities. These are basic in character because, they enable a citizen to chalk out his own life in the manner he likes the best; these are the rights which a citizen possesses as a creature of the nature, and are natural in form. However, for the precise identification, extent, guarantee and the enjoyment of such rights in an ordered democratic society, such as ours; the whole nation entered into a contract and by a unanimous resolution endorsed the right in the Constitution of 1973; on account of the above, the political powers of the State stood security for the sanctity and inviolability of these rights; enabling the citizen to successfully resist the political authority in the State and assert his rights in the case of breach. The provisions of Article 4 of the Constitution, have made these rights inviolable and inalienable by conferring a right upon every individual to be dealt with in accordance with law and by specifically providing that "No person shall be prevented from or be hindered in doing that which is not prohibited by law".

It has been made the duty of the State to protect, respect, safeguard, ensure and to facilitate the exercise of these rights. And in case of any violation, and encroachment thereof, the judiciary specially the superior courts of the country by means of Article 199(2) and 184(4), have been made responsible to provide remedy to those citizens, whose rights have been encroached by the State, or its functionaries.

The importance of the fundamental rights can also be gauged from the provisions of Article 8 of the Constitution, which declare that any existing law, which is inconsistent with these rights shall be void, and further prohibit the State from enforcing any law which takes away or abridges such rights.

The political institutions and social structure rest on the theory that all men have certain rights of life, liberty and the pursuit of happiness, which are unalienable, fundamental and inherent. When these "unalienable" rights are protected by Constitutional guarantees, they are called "fundamental" rights because they have been placed beyond the power of any organ of the State, whether executive or legislative to act in violation of them. They can be taken away, suspended or abridged only in the manner which the Constitution provides.

The above, to some extent, has highlighted the importance of the fundamental rights in a democratic set-up, as established in Pakistan, where the independence of the judiciary is the part of the basic structure of the Constitution and the judiciary is functioning to act as a watchdog and to supervise that such rights are safeguarded and protected. It is thus clear that the fundamental rights are most superior and special in nature and cannot be interfered with without strict recourse to the law and that too subject to the conditions provided for the exercise of these rights.

Fundamental Rights and Constitutional Remedies in Pakistan by Syed Sharif ud Din Pirzada 1966, 6th Edn., Chap. 1, p.4 quoted.

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

----S. 144---Constitution of Pakistan (1973); Art.18 --- Constitutional petition---Freedom of trade, business or profession---Initiation of action by the Provincial Government and Zila Nazim under S.144, Cr.P.C. preventing the petitioners from manufacturing and selling etc. the products usable in kite-flying---Validity---No qualifications had been prescribed for the conduct of trade and profession by the petitioners; trade and business of the petitioners had not been declared unlawful or prohibited and no licence for the manufacturing and the sale of the goods in question by the petitioners was required---Trade and business of the petitioners, in circumstances, having not been circumscribed by any qualification and not prohibited or forbidden by any law, the petitioners had a fundamental right to conduct their business and the trade in question---Notifications to the extent of the petitioners banning, suspending, prohibiting their business and storage, transportation of their goods, were declared as illegal and ultra vires and thus were set aside by the High Court.

(e) Constitution of Pakistan (1973)--

----Arts. 18, 199 & 184---Interpretation and scope of Art.18 of the Constitution---Freedom of trade, business or profession---Judicial review-- Scope---Every citizen shall have the right to choose and conduct any profession, occupation, trade or business, but subject to the requisite qualifications, if any, prescribed bylaw in that behalf and further that such profession etc. has not been declared unlawful or forbidden by any law---Validity of such prescribed qualifications or the prohibition can still be examined by the superior Courts in exercise of the power of the judicial review, on the touchstone of other fundamental rights, including Art. 18 and other provisions of the Constitution and the law.

The plain reading of Article 18 of the Constitution shows that it consists of two parts. The first, which confers upon a citizen a right to choose his profession and business etc. and is objected towards enabling the citizen to explore and adopt the best course for his future and the means of his living and earning; and the best for the expression and recognition of his skill and ability. However, this right is not absolute and unqualified, rather the Article itself permits the State through proper legal means to impose certain qualification for the exercise of the right, without possessing which, it cannot be so exercised. For example, a doctor or a lawyer for practising in their relevant fields, essentially needs the degree of M.B.,B.S. or LL.B. Such qualification may also be prescribed for a person who intends to conduct a particular business or trade, which may involve some special skill and the expertise. The second part of the Article, permits only such profession or the business, etc. which is "lawful", meaning thereby that any unlawful profession, etc. shall not be protected under this provision. The expression "lawful" appearing in the Article has been used in contradistinction to the word "unlawful" and shall aptly mean as follows:

"Legal; warranted or authorized by the law; having the qualifications prescribed by law; not contrary to nor forbidden by the law; not illegal.

The principal distinction between the terms "lawful" and "legal" is that the former contemplates the substance of law; the latter the form of law. To say of an act that it is "lawful" implies that it is authorized, sanctioned, or at any rate not forbidden by law."

Proviso to Article 18 creates an exception to the right and permits the State to enforce and regulate the trade of the profession by a licensing system; control the monopoly for a free competition and restricts any trade/business exclusively to be conducted by the State itself.

Every citizen shall have the right to choose and conduct any profession, occupation, trade or business, but subject to the requisite qualifications, if any, prescribed by the law in that behalf and that further such profession etc, has not been declared unlawful or forbidden by .any law. The validity of such prescribed qualifications or the prohibition can still be examined by the superior Courts in exercise of the power of the judicial review, on the touchstone of other fundamental rights, including Article 18 and other provisions of the Constitution and the law.

Black's Law Dictionary, 8th Edn., p.885 ref.

(f) Words and phrases---

----"Unlawful"---Connotation.

Black's Law Dictionary, 8th Edn., p.885 ref.

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

----S. 144---Constitution of Pakistan (1973), Arts.4, 8, 18 & 199--­Constitutional petition---Freedom of trade, business or profession--­Initiation of action by the Provincial Government and Zila Nazim under S.144, Cr.P.C. preventing the petitioners from manufacturing and selling etc. the products usable in kite-flying---Validity---Authority vested in the Government under S.144, Cr.P.C. is more in the nature of an administrative character and it is unimaginable in view of the position and the importance of the fundamental rights, that the administrative authority can be invoked to suspend or interfere with those rights, particularly in view of Arts. 4 & 8 of the Constitution which provide that said rights are inviolable and even the State has been prohibited to make any law inconsistent with the free exercise of said rights and even the existing laws impinging upon the rights have been declared void---Zila Nazim and the Government thus cannot directly or indirectly, in exercise of power under S. 144, Cr.P.C. interfere, curb, forfeit, suspend or take away the fundamental rights of the petitioner under Art.18 of the Constitution---Notification by the said Authorities, in that behalf, therefore, were issued in clear breach of the petitioner's right as mentioned in Art. 18 of the Constitution, and on said account were declared by the High Court to be violative of said rights and nullity in the eyes of law---Principles---High Court further observed that none of the kite-flyers having approached the High Court nor it being a fundamental right of any citizen to fly kites, the present judgment in no manner, should be considered as declaring, the notification with regard to the prohibition of kite-flying as illegal etc.

The authority vested in the Government and the competent authority under section 144, Cr.P.C. is more in the nature of an administrative character and it is unimaginable in view of the position and the importance of the fundamental rights, that the administrative authority can be invoked to suspend or interfere with these rights. This is so, particularly in view of the Articles 4 and 8 of the Constitution, which provide that these rights are inviolable and even the State has been prohibited to make any law inconsistent with the free exercise of these rights and even the existing laws impinging upon the rights have been declared void. In this manner, the supremacy of the Parliament to make the law has been made subservient to the fundamental rights of the citizen. Thus how it is possible that the Zila Nazim and the Government, could directly or indirectly, in exercise of the power under section 144, Cr.P.C. interfere, curb, forfeit, suspend or take away the fundamental rights of the petitioners under Article 18 of the Constitution, the notifications are in clear breach of the petitioner's right mentioned above and on this account, are declared to be violative of fundamental rights and nullity in the eyes of the law.

None of the kite-flyers had approached the High Court, nor it was a fundamental right of any citizen to fly kites, resultantly, the present judgment in no manner, should be considered as declaring the notifications with regard to the prohibition of kite-flying, as illegal etc.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Relief in the Constitutional jurisdiction under Art. 199 of the Constitution on the principles of discretion was not to-be refused in the case where the fundamental rights had been visibly violated.

Nawab Syed Raunaq Ali and. others v. Chief Settlement Commissioner and others PLD 1973 SC 236 ref.

(i) Constitution of Pakistan (1973)---

----Arts. 199(2) & 184---Constitutional jurisdiction of High Court--­Scope---Ex debito justitiae, rule of---Applicability---Provisions of Arts. 199(2) & 184 of the Constitution, have saddled the superior Courts with the responsibility to enforce the fundamental rights in case of a complaint about their violation---Aggrieved citizen, on the basis of the rule ex debito justitiae as a matter of right can claim the redressal of his grievance and for the enforcement of his fundamental rights and there is little room for the discretion left in such cases.

S.M. Masud and M. Nasim Kashmiri for Petitioners.

Shabbar Raza Rizvi, A.-G., Punjab, Tahir Mehmood Gondal, A.A.-G. and Kh. Muhammad Afzal for Respondent No. 1.

Umar Ata Bandial Amicus curiae.

Date of hearing: 21st January, 2004.

P L D 2004 Lahore 395

Before Sardar Muhammad Aslam, J

Mrs. KHURSHID BEGUM---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, RAWALPINDI and 2 others---Respondents

Writ Petition No.3060 of 2003, heard on 15th January, 2004.

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

----S.12---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Interpretation of S.12, Guardians and Wards Act, 1890---Production of minor---Interim custody---Legality---Pre-condition of urgency, requirement of-- Grievance of the petitioner that interim custody of the minor was given to the mother by the Guardian Judge despite the fact that welfare of the minor lay with the paternal grandmother who was of sound financial position and that in the absence of pre-condition of urgency, power under S.12 of Guardians and Wards Act, 1890 could not have been exercised---Validity---No bar was placed upon the Guardian Judge, who had parental jurisdiction over the minor, to exercise power under S. 12(1) of the Act even in the absence of urgency---Section 12 of the Act called for liberal interpretation and the interim arrangement for the custody of minors could not be fettered with a pre-condition of urgency.

Muhammad Sadiq Butt v. Mst. Khalida Parveen PLD 1967 Kar. 645; Mirza Muhammad Yousaf v. Razia Sultana PLD 1974 Note 80 at p.125; Zulfiqar Ahmad v. Qaiser Sattar and 2 others 1988 CLC 1741 and Mst. Rani Begum v. The Additional District Judge (East Karachi) 1989 CLC 1419 distinguished.

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

----S. 12--Constitution of Pakistan (1973), Art.199---Constitutional petition---Interim custody---Object of---Factors to be considered for granting interim custody---Production of minor---Preference to real mother---Overriding and paramount consideration of handing over the interim custody of a minor under S.12 of Guardians and Wards Act, 1890 was the welfare of the minor---Guardian Judge while granting interim custody under S.12 of the Act should take into account the consideration of the age, sex and welfare of the minor---Minors of tender age require love and affection of their real mother, who has not married and so preference cannot be given to paternal grandmother instead--­None else could look the minor better than the real mother as there was no substitute and parallel to mother's love and affection.

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

---S. 12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Production of minor---Interim custody, legality of---Once the Guardian Judge had exercised its jurisdiction in granting the interim custody under S.12 of Guardians and Wards Act, 1890, the same should be allowed to stay, unless there were compelling circumstances to change the same.

Ch. Muhammad Ashraf Gujjar for Petitioner.

Raja Imtiaz Ahmad Kiani for Respondents.

Date of hearing: 15th January, 2004.

P L D 2004 Lahore 399

Before Sh. Hakim Ali, J

MUHAMMAD FAROOQ---Petitioner

Versus

JUDGE FAMILY COURT and another---Respondents

Writ Petition No. 125 of 2003, decided on 29th January, 2004.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199--­Constitutionai petition---Family Court, powers of---Khula'---Decree of dissolution of marriage---Validity---Contention of the husband was that as no 'Rukhsati' had taken place, therefore, no question of hatred of the wife with him could arise to make it a ground for dissolution of marriage ---Family Court had ample power to decide through his judicial conscience whether the hatred that had developed between the parties was to such an extent that they would not live within the limits of law--­Family Court's coming to the conclusion that the relations between the parties were strained due to some occurrence, incident, litigation or repulsion having developed within the mind, of the wife, would be enough to dissolve marriage between the parties---Validity---No illegality was found in the decree of the Family Court.

Zulfiqar Ahmad v. Judge Family Court and others 2003 CLC 1954; Aali v. Additional District Judge-I, Quetta and another 1986 CLC 27; Muhammad Abbasi v. Mst. Samia Abbasi and others 1992 CLC 937; Rehmat Ullan v. Mst. Shamim Akhtar 1989 CLC 3; Siddiq v. Mst. Sharfan PLD 1968 Lah. 411; Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97; Mst. Daulan v. Muhammad Hayat 2002 YLR 3247; Muhammad Amin v. Judge Family Court, Multan and another 2000 MLD 52; Mst. Surria Bibi v. Additional District Judge, Khanpur and others 1997 CLC 1317; Shakila Bibi v. Muhammad Farooq and another 1994 CLC 230; M. Ramzan v. Additional District Judge, Jhang and another 1991 CLC Note 284 at p.218; Abdul Rasul v. Mst. Shah Jehan Begum NLR 1986 SO 58; Ghulam Muhammad v. Mst. Noor Bibi 1985 CLC 2540 and Ghulam Sarwar v. Mst. Muniran and others 1984 CLC 1688 ref.

(b) West Pakistan Family Courts Act (XXXV of 1964)--

----S. 5 & Sched.---Divorce---Khula'---hatred----Reasons for hatred leading to Khula'---Disliking, hatred,' abomination, 'detestation, repulsion or revulsion could created by any single incident---Criteria should not be that a woman who had not lived with her husband could not develop hatred---Family Court should judge hatred from the facts and circumstances of the case as well as from the appearance of the parties during the conciliation efforts and should satisfy its judicial conscience as to whether marriage bond between the parties could any longer be sustained and if not it should annul the contract of marital tie.

(c) West Pakistan Family Courts Act (XXXV of 1964)--

----S. 10---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Framing of issues, failure of---Rights, of husband in case of Khula'---Delivery of benefits of marriage---Contention of the petitioner was that the Family Court had failed to frame an issue with regard to the benefits delivered by the husband to the wife in consideration of the marriage---Duty of the Family Court to frame such an issue in order to ascertain whether the wife had received any benefits of marriage which she was bound to return on Khula' and the extent of it---Islamic right provides wife to seek dissolution of marriage on the basis of Khula' and the same is with husband's right to get back the benefits delivered to her in consideration of the marriage.

Zulfiqar Ahmad v. Judge Family Court and others 2003 CLC 1954; Aali v. Additional District Judge-I, Quetta and another 1986 CLC 27; Muhammad Abbasi v. Mst. Samia Abbasi and others 1992 CLC 937; Rehmat Ullah v. Mst. Shamim Akhtar 1989 CLC 3; Siddiq v. Mst. Sharfan PLD 1968 Lah. 411; Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97; Mst. Daulan v. Muhammad Hayat 2002 YLR 3247; Muhammad Amin v. Judge Family Court, Multan and another 2000 MLD 52; Mst. Surria Bibi v. Additional District Judge, Khanpur and others 1997 CLC 1317; Shakila Bibi v. Muhammad Farooq and another 1994 CLC 230; M. Ramzan v. Additional District Judge, Jhang and another 1991 CLC. Note 284 at p.218; Abdul Rasul v. Mst. Shah Jehan Begum NLR 1986 SO 58; Ghulam Muhammad v Mst. Noor 1985 CLC 2540; Ghulam Sarwar v. Mst. Muniran and others 1984 1688 ref.

Zafar Ali Hashmi for Petitioner.

Hameed uz Zaman for Respondent No.2.

P L D 2004 Lahore 404

Before Syed Jamshed Ali and Muhammad Ghani, JJ

Sh. SALEEM ALI ‑‑‑Appellant

versus

Sh. AKHTAR ALI and 7 others‑‑‑Respondents

I.C.A. No.2‑C of 1997 in C.O.No. 2‑C of 1986, decided on 8th March, 2004.

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

‑‑‑‑S.3(1)‑‑‑Arbitration Act (X of 1940), Ss.14(2) & 41‑‑‑Intra‑Court appeal‑‑‑Maintainability‑‑‑Conditions‑‑.‑Contention was that an Intra-­Court appeal was competent only if a decree was passed or a final order was made by Single Judge of High Court in exercise of "original civil jurisdiction", while impugned order in the present case was passed under the provisions of Arbitration Act, 1940 and appeal against an order setting aside an award being competent under S.39(1)(iv) of the Arbitration Act, 1940, Intra‑Court appeal was not maintainable‑­Validity‑‑‑Held, application under S.14(2) of Arbitration Act in the present case, was originally filed in the Court of Senior Civil Judge but was transferred to the original side of the High Court‑‑‑Proceedings commencing on an application under S.14(2) were in the nature of civil proceedings, and by virtue of $.4I of the Arbitration Act, 1940 the provisions of C.P.C. had been made applicable, not only to the proceedings before the Court, but also to an appeal under the said ‑Act‑‑‑Upon transfer of the application under S.14(2), Single Judge of High Court, while dealing with the matter, exercised "civil original jurisdiction" and therefore, intra‑Court appeal was competent.

(b) Administration of justice‑‑‑

‑‑‑‑ Party cannot be non‑suited on the ground that the provision of law under which the proceedings have been instituted has been inadvertently misquoted.

(c) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 3(a)‑‑‑Arbitration agreement‑‑‑Such agreement need not necessarily be 'incorporated in a formal document, it can be included by incorporating a clause in a contract‑‑‑Arbitration agreement may be spelt out from correspondence or letters exchanged between the parties or on the basis of their statements, or even those of their counsel‑‑‑Such an agreement need not be signed by the parties.

Abdul Aziz Cotton Ginning Factory v. Ali Muhammad Abdullah and Co. PLD 1966 (W.P.) Kar. 197; Province of Punjab and another v. Messrs Industrial Machine Pool, Lahore PLD 1978 Lah. 829; Shamim Akhtar v. Najma Baqai PLD 1977 SC 644; Muhammad Hussain v. Ghulam Rasool 1983 SCMR 231 and Messrs Tribal Friends Co. v.. Province of Balochistan 2002 SCMR 1903 ref.

(d) Arbitration‑‑‑

‑‑‑‑ Party having submitted to the jurisdiction of the arbitrators and having allowed them to deal with the matter, taking a chance of the decision being favourable to him, had acquiesced in the arbitrators proceedings‑‑‑Such party could not be permitted to lie by and participate in the arbitration proceedings, and if the final determination/award would go against hint, he should attack the very authority of the arbitrators to arbitrate on an objection which he never took before the arbitrators‑‑‑Position of course, would have been different if he had participated in the proceedings under protest which was not the position in the present case‑‑‑Contention of the said party that oral protest was made, could not be given effect to in the absence of anything on record to show that any such protest was made.

Matson v. Trower (1824) Ry & Mood 17:. 171 ER 927; Cairncross v. Lorimer (1860) 3 Macq. 827: 7 Jur NS 149; Chowdhri Murtaza Hossein v. Mussammat Bibi Bechunnissa (1876) 3 Ind App 209; Donald Compbell & Co. v. Jeshraj Girdhari Lal AIR 1920 PC 123; Abdul Shakur v. Muhammad Yousaf AIR 1921 Allah. 64; Okland Metal Co. Ltd. v. D. Benian & Co. Ltd. (1953) 2 Q.B. 261; State of Orissa v. Messrs Consolidated Construction Company AIR 1981 Orissa 166 and Muhammad Rafique v.Qamar Ali 2003 MLD 52 ref.

(e) Estoppel, rule of‑‑‑

‑‑‑‑Representation, in order to attract the rule of estoppel, need not always be a representation of a physical fact, but may as well be the representation of an attitude or a state of mind‑‑‑State of a man's mind was as much a matter of fact as the state of his digestion.

(f) Arbitration‑‑‑

‑‑‑‑ Objection to award‑‑‑General principle that where a Court inherently lacked jurisdiction, mere consent of parties could not confer the jurisdiction, had no application to arbitration proceedings where the arbitrator was a person appointed by agreement between the parties.

Matson v. Trower (1824) Ry & Mood 17: 171 ER 927; Cairncross v. Lorimer (1860) 3 Macq. 827: 7 Jur NS‑149; Chowdhri Murtaza Hossein v. Mussammat Bibi Bechunnissa (1876) 3 Ind App 209; Donald Compbell & Co. v. Jeshraj Girdhari Lal AIR 1920 PC 123; Abdul‑Shakur v. Muhammad Yousaf AIR 1921 Allah. 64; Okland Metal Co. Ltd. v. D. Benian & Co. Ltd. (1953) 2 Q. B. 261; State of Orissa v. Messrs Consolidated Construction Company AIR 1981 Orissa 166 and Muhammad Rafique v. Qamar Ali 2003 MLD 52 ref.

(g) Arbitration‑‑‑

‑‑‑‑ Objection to award ‑‑‑Estoppel and acquiescence, principle of‑‑­Applicability‑‑‑ Scope‑‑‑Principle of estoppel and acquiescence would be aptly attracted where a party having consented to arbitration by a person and having participated in the proceedings before him subsequently attempted to challenge his jurisdiction as an arbitrator‑‑­When a man had been silent when in conscience be ought to have spoken, he shall be debarred from speaking when conscience required him to be silent.

Matson v. Trower (1824) Ry & Mood 17: 171 ER 927; Cairncross v. Lorimcr (1860) 3 Macq. 827: 7 Jur NS 149; Chowdhri Murtaza Hossein v. Mussammat Bibi Bechunnissa (1876) 3 Ind App 209; Donald Compbell & Co: v. Jeshraj Girdhari Lal AIR 1920 PC 123; Abdul Shakur v. Muhammad Yousaf AIR 1921 Allah. 64; Okland Metal Co. Ltd. v. D. Benian & Co. Ltd. (1953) 2 Q.B. 261; State of Orissa v. Messrs Consolidated Construction Company AIR 1981 Orissa 166 and Muhammad Rafique v. Qamar Ali 2003 MLD 52 ref.

(h) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 35‑‑‑Applicability of S.35, Arbitration Act, 1940‑‑‑Prerequisites enumerated‑‑‑If all the prerequisites were fulfilled, further proceedings in a pending reference would be rendered invalid‑‑‑Where, in a case, the subject‑matter of the civil suit did not cover all the items of dispute referred to the arbitration and clearly reflected in the arbitration agreement and parties to the arbitration agreement and properties involved were distinct and different, provision of S.35, Arbitration Act, 1940 would not be attracted.

The prerequisites for application of section 35 of the Arbitration Act, 1940 are (1) that the whole of the subject‑matter of the reference should also be subject‑matter of the suit; (2) that the parties should be the same and (3) that a notice of the filing of the suit has been given to the Arbitrator. If all these prerequisites are fulfilled, further proceedings in a pending reference would be rendered invalid. So far as the present case was concerned, the subject‑matter of the civil suit did not cover all the items of dispute referred to arbitration and clearly reflected in the Arbitration Agreement.

The parties to the arbitration agreement and the civil suit were distinct and different, and so was the property.

Contentions that the expression "when legal proceedings upon the whole of the subject‑matter of the reference have been commenced" meant that whole of the subject‑matter should be "identical", could not be accepted on plain reading of section 35 of the Act. In the ordinary dictionary, the word "whole" means entire, complete, not less than, a thing complete in itself. Therefore, in order to attract the provisions of section 35, it was necessary that the subject‑matter of the suit should be exactly the same as in the' dispute before‑the Arbitrator.

(i) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S.35‑‑‑Effect of legal proceedings on arbitration‑‑‑Expression "when legal proceedings upon the whole of the subject‑matter of the reference have been commenced"‑‑‑Meanings‑‑‑Word "whole" means entire, complete, not less than, a thing complete in itself.

(i) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 30‑‑‑Setting aside of award‑‑‑Misconduct; kinds of‑‑‑"Legal misconduct" and "moral misconduct"‑‑‑Meanings‑‑‑What constitutes misconduct‑‑‑Award is not a Divine word; it is neither impregnable nor exempt from judicial scrutiny‑‑‑Award can be nullified and set aside in view of S.30(a), Arbitration Act. 1940 if an arbitrator has "mis-conducted himself or the proceedings "‑‑‑When a person is appointed by two parties to exercise judicial duties, there has to be uberrima fides on the part of all the parties concerned in relation to his selection and appointment‑‑‑Every disclosure which might in the least affect the minds of those who are proposing to submit their disputes to the arbitrament of any particular individual ought to be made, so that each party may have every opportunity of considering whether or not to make a reference to him‑‑‑If an arbitrator is indebted to one of the parties at the time of the reference or becomes so indebted after the reference, and in either case does not disclose the fact to the other party, such party would be entitled to revoke the reference upon discovery of fact, and any award made by such arbitrator would be invalid on the ground of judicial misconduct‑‑‑Known interest, however, does not disqualify a person from acting as arbitrator, and if the parties, with full knowledge of the facts, select a person as arbitrator who is not an impartial person, the Court will not release them from the bargain upon which they agreed, however, improvident it may consider it, so long as the Court is satisfied that he knew or should have known what kind of bargain he was entering into.

An Award is not a Divine word. It is neither impregnable nor exempt from judicial scrutiny.

An award can be nullified and set aside in view of the statutory provision contained in clause (a) of section 30, Arbitration Act, 1940 if an Arbitrator has "mis-conducted himself or the proceedings". "Misconduct" contemplated by section 30(a) is thus of two kinds, legal and/or moral.

"Legal misconduct" means misconduct in the judicial sense of the word, for example, some honest, though erroneous, breach of duty causing miscarriage of justice; failure to perform the essential duties which are cast on an arbitrator; and any irregularity of action which is not consistent with general principles of equity and good conscience. Though not bound by the technical rules of evidence, but it an arbitrator acts arbitrarily or unreasonably, the award will be invalid. If the procedure adopted by any arbitrator is opposed to natural justice, inasmuch as he does not hear both the parties fairly, or records evidence in the absence of either party, the Award will be a nullity in the eye of law. If the award suffers from ambiguity, or the arbitrator does not determine all the matters referred to him for arbitration, then too the award cannot be sustained. If the arbitrator has ignored important evidence, or has returned a verdict which is in conflict with the evidence on record, the award will be set aside. An error of law apparent on the face of the award, relevant and material to the decision of the dispute, is also a ground to scrap the same. If irregularities in Procedure can be proved, which would amount to no proper hearing of the matter in dispute, that would be misconduct sufficient to vitiate the award, without any imputation on honesty or impartiality of the arbitrator. And, if there is an indication of gross negligence or recklessness on the face of the award that might also amount to a form of misconduct on the part of the arbitrator, because that might, by itself, be sufficient to show that there was no proper hearing of the matter. To sum up, an arbitrator misconducts the proceedings when (i) there is a defect in the Procedure followed by him; (ii) commits breach and neglect of duty and responsibility; (iii) acts contrary to the principles of equity and good conscience; (iv) acts without jurisdiction or exceeds it; (v) acts beyond the reference; (vi) proceeds on extraneous circumstances; (vii) ignores material documents; and (viii) bases the award on no evidence. These are some of the omissions and commissions which constitute legal L misconduct or, in other words, that an arbitrator has mis-conducted the proceedings within meaning of clause (a) of section 30 of the Arbitration, Act, 1940.

It is difficult to define exhaustively and exactly what amounts to "misconduct" on the part of an arbitrator. The expression is of wide import, and it means that which is misconduct by any standard. In a case of arbitration where the parties entrust their fate into the hands of an arbitrator, he becomes a Judge in the case. Therefore, it is essential that there must be abundant good faith, and the arbitrator must be absolutely disinterested and impartial, as he is bound to act with scrupulous regard to the ends of justice An arbitrator must be a person who stands indifferent between the parties. If an arbitrator is related to one of the parties which fact is not disclosed to the other party at the time the agreement is entered into, the award can successfully be challenged as invalid on the ground of misconduct of the arbitrator. An arbitrator should in no sense consider himself to be the advocate of the. cause of party appointing him, nor is such party deemed to be his client. He should refrain from identifying himself with the interest of such party and from looking forward to further employment as arbitrator, an office which carries emoluments. Where an arbitrator does an act in disregard of propriety and cause of proportion, it is not merely misconduct in the legal or technical sense but is grossly improper and inconsistent with the plain duty of an arbitrator seriously disposed to settle a dispute referred to him for arbitration. He should have no interest, direct or remote, in the subject‑matter of the controversy. It is imperative that an arbitrator should always scrupulously avoid any course of action which even remotely bears the complexion of his having put himself into a position where it might be said against him that he had received a pecuniary inducement which might have had some effect on his determination of the matters submitted to his adjudication as this is a matter of so tender a nature that even the appearance of evil in it is to be avoided. An arbitrator, being in loco judicis has to act honestly and legally throughout the, proceedings. There is universal agreement amongst jurists of all countries that it is of the first importance that judicial tribunals should be honest, impartial and disinterested. This rule applies in full force to arbitral to tribunals, subject only to this exception, that the parties who are free to choose their own tribunal may, provided they act with full knowledge though this exception in its turn is subject to a statutory exception which gives parties who have so chosen a locus poenitentiae in certain circumstances. But apart from this exception, arbitrators who are in all other respects suitably qualified are disqualified by dishonesty, partiality or interest.

Therefore, where a person is appointed by two parties to exercise judicial duties, there should be uberrima fides on the part of all the parties concerned in relation to his selection and appointment and every disclosure which might in the least affect the minds of those who are proposing to submit their disputes to the arbitrament of any particular individual ought to be made, so that each party may have every opportunity of considering whether or not to make a reference to him. Further, if an arbitrator is indebted to one of parties at the time of the reference or becomes so indebted after the reference, and in either case does not disclose the fact to the other party, such party would be entitled to revoke the reference upon discovery of fact, and any award made by such arbitrator would be invalid on the ground of judicial misconduct. However, a known interest does not disqualify a person from acting as arbitrator, and if the parties, with full knowledge of the facts, select an arbitrator who is not an impartial person, the Court will not release them from the bargain upon which they agreed, howsoever, improvident it may consider it, so long as the Court is satisfied that he knew or should have known what kind of bargain he was entering into. These principles are so well‑engrafted in the judicial precedents that there can be no two opinions about the same.

(k) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S. 9‑‑‑Parties, in the present case, had executed a formal arbitration agreement that in the event of any party had cause of grievance against the decision of their mediator, the matter shall be referred to the arbitration of the arbitrators‑‑‑Appointment of arbitrators, thus, was kept alive, and parties being not satisfied with the decision rendered by the mediator, arbitrators were approached to, arbitrate in. the matter‑‑­Nothing, therefore, was objectionable if the arbitrators had conducted some proceedings consequent upon the verbal agreement between the parties which was, later on, affirmed through a formal written arbitration agreement.

Habib & Sons v. Virak Co. PLD 1957 (W.P.) Kar. 245 ref.

(l ) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S.30‑‑‑Setting aside of award‑‑‑Misconduct‑‑‑Contention of one of the parties was that one arbitrator sold his property to one of the contesting parties in the dispute, which, recoiled adversely on the impartiality of the said arbitrator and amounted to misconduct‑‑­Validity‑‑‑Transaction of sale purchase of the property had not preceded the pronouncement of the award, but took place about a year and a half thereafter‑‑‑Award in question, in circumstances, was not vitiated by reason of the alleged misconduct‑‑‑Arbitrator, therefore, could not at all, be attributed misconduct, so as to render the award shorn of efficacy, nor the same could be set aside.

(m) Arbitration Act (X of 1940)‑‑­

‑‑‑‑S.30‑‑‑Setting aside of an award on the ground of misconduct‑‑­Principles.

An arbitrator should not exhibit a behaviour, even after pronouncement of Award, which might give a cause of apprehension to anyone of the parties to the reference that he was in collusion with the other party, or his opponent. There must be purity in the administration of justice, as well as in administration of quasi‑justice as are involved in the adjudicatory process before the arbitrators. Once an arbitrator enters in an arbitration, he must not be guilty of any act which can possibly be construed as indicative of partiality, unfairness or bias. Bias, signifies a real likelihood of an operative prejudice, whether conscious or unconscious. Once it is established that the arbitrator was actually biased, the award has to be set aside. Likewise, the fact that the arbitrator has any dealing with one of the parties does afford a real likelihood of an operative prejudice on his part, and the existence of such relationship with one of the parties, unknown to the other, may induce the Court to set aside the award. If the arbitrator has an undisclosed or concealed personal interest in either of the parties then that can be a ground for setting aside the award, provided the fact of the arbitrator having such interest or bias is established. But once misconduct is pleaded by a party, he has got to give particulars thereof and merely a vague and bald statement cannot be a substitute for proof. The facts which constitute the misconduct must be specifically stated. The burden of establishing misconduct is on the party alleging it. Where partiality or wrong doing is alleged against an arbitrator, it has got to be established beyond doubt, the presumption always being in favour of the award. It is not the function of the Court, at least not of the Appellate Court, to resort to a combing process as this would tantamount to impeachment of the Award by the Court itself which function the Court need not arrogate to itself. Moreover, the Court is not entitled to make a roving and sifting investigation of the record and proceedings before the arbitrator and constitute itself a regular Court of Appeal from the Award. The Courts are always extremely slow in finding faults with an Award. In the present case, the mere suspicion or whims of a party could neither be a good reason nor constituted a valid ground to ascribe lack of judicial detachment and impartiality to the two former Chief Justices of two High Courts of the country. Doubtless, a party may not be required to prove a cast‑iron case in order to bring home the charge of misconduct, but the facts and circumstances should be such as to convince the conscience of a reasonable person that the fountain of justice has not remained unsullied and unpolluted. Also, there must be reasonable evidence of a real likelihood of bias but certainly mere flimsy ground‑elusively generated and morbid suspicions cannot be permitted to form a ground of attack. The apprehension must be judged from a healthy, reasonable and average point of view, and only the apprehension of an average honest man can be taken note of. Vague suspicions of whimsical, capricious and unreasonable people cannot be made the standard to regulate the Court's vision.

Kh. Saeed‑uz‑Zafar assisted by Nasrullha Khan Babar for Appellant.

Dr. Sohail Akhtar for Respondent No. 1.

Sh. Murtaza Ali Respondent No.2 (in person).

Respondents Nos. 3, 4, 6 and 7: Ex parte.

Ghulam Murtaza Bhatti, for Respondent No.8.

Dates of hearing: 9th, 11th, 15th December, 2003; 12th to 15th; 19th to 22nd and 26th January, 2004.

P L D 2004 Lahore 483

Before Sh. Abdul Rashid and M. Bilal Khan, JJ

Messrs SHIFA LABORATORIES (PVT.) LIMITED through Chief Executive‑‑‑Appellant

Versus

REGISTRATION BOARD, MINISTRY OF HEALTH, GOVERNMENT OF PAKISTAN through Director‑General and others‑‑‑Respondents

Intra‑Court Appeal No.396 of 2003 in Writ Petition No.21589 of 2002, heard on 4th March, 2004.

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

‑‑‑‑S. 3‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Intra Court Appeal‑‑­Pharmaceutical raw material‑‑‑Quota, increase in‑‑‑Appellant was allowed to manufacture injections of the medicine of which he was previously preparing tablets‑‑‑Such permission was granted on the condition that the appellant would not demand increase in quota of raw, material namely `Buprenorphine'‑‑‑Later on the appellant sought increase in quota on the ground that other manufacturers had been given more raw‑ material‑‑‑Increase in quota was refused by the authorities and the order was maintained by Judge in Chambers of High Court‑‑‑Authorities informed the Court that two million injections could be manufactured out of existing quota of 468 grams of the raw material and the appellant did not deny the information of the authorities‑‑‑Contention of the authorities 'was that the raw material was a psychotropic substance listed in Sched. III of the United Nations Convention on Psychotropic Substances, 1971, and Pakistan was a signatory‑‑‑Authorities further contended that the injections were being used by drug addicts all over the country, otherwise the number of the legitimate users was very limited, as the injection was used by the patients who were terminally ill especially the patients afflicted with cancer‑‑‑Validity‑‑‑Appellant was not able to point out any illegality in the order passed by Judge in Chambers of High Court in exercise of Constitutional jurisdiction‑‑‑As such the order of the High Court was well‑reasoned and comprehensive and Division Bench of High Court declined to take a different view than the one taken by the Judge in Chambers ‑‑‑Intra‑Court Appeal was dismissed in circumstances.

Muhammad Saleem Shahnazi for Appellant.

Dr. Danishwar Malik, Deputy Attorney‑General and Dr. Ahmad Mahmood Mumtaz, Federal Inspector of Drugs for Respondents.

P L D 2004 Lahore 448

Before Iftikhar Muhammad Chaudhry, C J

MUHAMMAD USMAN QAYYUM‑‑‑Petitioner

versus

B.I.S.E. and others‑‑‑Respondents

Writ Petitions Nos. 15481 and 21839 of 1997, decided on 10th February, 2004.

(a) Constitution of Pakistan (1973)‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Educational Institution‑‑‑ Issuance of charge‑sheet to the examinee on the ground of adopting unfair means in the examination‑Decision by Committee during pendency of Constitutional petition‑‑‑Effect‑‑‑Developments taking place during pendency of lis could not be excluded from consideration, rather notice should be taken thereof‑‑‑Objection as to maintainability of Constitutional petition on such ground was repelled.

(b) Administration of justice‑

‑‑‑‑ Subsequent events‑‑‑Development taking place during pendency of lis could not be excluded from consideration, rather notice should be taken thereof.

(c) Educational institution‑

------Charge of unfair means against examinee ‑‑‑Initial allegation levelled by Chief Secrecy Officer of the Examining Board was about disparity between stitches of questioned answer books and of those supplied by the Board, and that signatures thereon of Deputy Superintendent of the Examination Centre were fake‑‑‑Such Officer later on stated that God knows, whether such answer books were replaced during office hours or in the Examination Centres or in the transit from Centres to office; but again stated that number of stitches of answer books were less than the stitches of Board's answer books‑‑‑Board finding student guilty lodged F.I.R. against him and initiated proceedings on the charge of using unfair means‑‑‑Validity‑‑‑Such was an inherent contradiction in the plea of star Witness of the Board‑‑‑Board itself was not certain as to when and where alleged replacement of answer books had taken place‑‑‑Difference in number of stitches alone could not be a ground for holding examinee guilty of unfair means‑‑‑According to Board, there was foolproof system for security of answer books in Board's Office‑‑‑Police during investigation of F.I.R. lodged by Board had found the examinee innocent and signatures of Deputy Superintendent genuine‑‑‑Board had not alleged that Superintendent was in connivance with examinee ‑‑‑If alleged substitution had taken place either during transit or in Secrecy Branch of the Board then genuine signatures of Deputy Superintendent could not have been obtained thereon‑‑‑Record showed conduct of Board's authorities was not beyond doubt ‑‑‑Mala fides attributed by examinee to functionaries of Board were not without substance‑‑‑Examinee had an excellent bright academic career before as well as after such fateful year‑‑‑Present case was devoid of any valid basis and was based on no evidence at all‑‑‑High Court accepted Constitutional petition and declared such proceedings and verdict of guilty recorded against examinee to be illegal and without lawful authority, with the result that same stood quashed‑.‑Constitution of Pakistan (1973), Art. 199.

National Steel Re‑rolling Mills ‑v. Province of West Pakistan 1968 SCMR 317, Virasat Ullah v. Bashir Ahmed 1969 SCMR 154; Muhammad Mahmood Ali v. Pakistan 1984 CLC 142; Mir Nabi Bakhsh Khan Khoso v. Branch Manager, NBP 2000 SCMR 1017; Masood Pervaiz v. the Disciplinary Committee, University of the Punjab, Lahore 1982 SCMR 1084; Muhammad Nadeem Anwar and others v. Islamic University, Bahawalpur and others KLR 1999 CC 65; Akhtar Ali v. University of the Punjab 1979 SCMR 549, Board of Intermediate and Secondary Education, Sargodha v. Muhammad Rafique PLD 1991 SC 231; Rahat Siddiqui v. Board of Intermediate and Secondary Education, Lahore 1977 SCMR 213; Faiza Malik v. Chairman, Board of Intermediate and Secondary Education PLD 1992 SC 324; Nasir Saeed v. Federal Board of Intermediate and Secondary Education, Islamabad 1998 SCMR 710; Muhammad Naveed Akhtar v. The Vice‑Chancellor, University of the Punjab and others 1999 MLD 2288; Salman Riaz Chaudhry v. Board of Intermediate and Secondary Education, Lahore 1999 YLR 1229; Haider Ali v. Board of Intermediate and Secondary Education 1999 YLR 1243; Syed Amir Ali Shah and others v. Islamic University, Bahawalpur 1998 CLC 1941; Muhammad Yasin v. Chairman, Board of Intermediate and Secondary Education, Sargodha 2000 CLC 885; Malik Habibur Rehman v. Siddique Ahmed Khan PLD 1972 Lah. 8; Muhammad Kamran Asghar v. Board of Intermediate and Secondary Education, D.G. Khan 1999 YLR 1019; Farukh Din v Government of Sindh PLD 2000 Kar. 154; Mst. Jameela Kausar v. Board of Intermediate and Secondary. Education 2003 SCMR 153: Ahmad and 3 others v. University of Engineering and Technology PLD 1981 SC 464 and Board of Intermediate and Secondary Education, Peshawar v. Miss Salma Atta Ullah PLD 1999 SC 909 ref.

Shagufta Begum v. The Income Tax Officer PLD 1989 SC 360 and Samar Pervaiz v. Board of Intermediates and Secondary Education, Lahore PLD 1971 SC 838 rel.

(d) Educational institution‑‑‑

‑‑‑‑Charge of unfair means against examinee ‑‑‑Burden of proof‑‑‑Burden of establishing and bringing home such charge would remain on the Examining Board‑‑‑Mere suspicions could not be permitted to be a good reason to hold examinee guilty of unfair means‑‑‑Facts and circumstances 'should be such as to convince the conscience of Court about involvement of examinee ‑‑‑Vague suspicions could not be made standard to regulate the Court's vision‑‑‑Constitution of Pakistan (1973), Art.199

Samar Pervaiz v. Board of Intermediate and Secondary Education, Lahore PLD 1971 SC 838 rel.

Azam Nazir Tarrar for Petitioner.

Sh. Shahid Waheed for Respondents.

Date of hearing: 10th February, 2004.

P L D 2004 Lahore 471

Before Muhammad Muzammal Khan, J

NOOR SHAH GULL KHAN and another‑‑‑Petitioners

Versus

HAZRAT GULL KHAN‑ ‑‑Respondent

Civil Revision No.250 of 2004, decided on 19th February, 2004.

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

‑‑‑‑Ss. 42 & 54‑‑‑Transfer of Property Act (IV of 1882), Ss.54‑‑­Contract Act (IX of 1872), S.2(h)‑‑‑Suit for declaration of title and permanent injunction‑‑‑Agreement to sell‑‑‑Defendant claimed to be in possession of half of suit land under agreement to sell by plaintiff‑‑­Courts below concurrently decreed suit‑‑‑Validity‑‑‑Plaintiff had proved his title to entire land by producing registered sale‑deed‑‑‑Agreement to sell would not create any title‑‑ ‑Defendant being beneficiary of alleged agreement had to prove sale transaction incorporated therein‑‑‑Execution of agreement to sell by plaintiff had not been proved‑‑‑Alleged agreement prepared two decades back had never seen maturity in form of sale‑deed‑‑‑.Marginal witnesses of agreement were close relatives of defendant‑‑‑Statements of defendant's witnesses were self contradictory and opposed to agreement‑‑‑Merely by producing marginal witnesses, transaction of sale between parties independent of alleged agreement would not stand proved‑‑‑Defendant could not prove lawful sale in his favour by paying price of land and transfer of possession thereunder‑‑­Concurrent findings of facts of Courts below were not suffering from misreading or non‑reading of evidence‑‑‑Impugned judgments were immune from interference in revisional jurisdiction‑‑‑High Court dismissed revision petition.

Muhammad Anwar v. Nabi Hussain 1991 CLC Note 47 at p.34; Nawab Din v. Ghulam Qadir and 9 others 1994 MLD 1275; Siraj Din v. Mst. Jamilan and another PLD 1997 Lah. 633; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291; Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818; Sirbaland v. Allah Loke and others 1996 SCMR 575 and Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim and 27 others 2001 SCMR 1493 rel.

(b) Transfer of Property Act (IV of 1882)‑‑‑--

‑‑‑‑Ss. 53‑A & 54‑‑‑Agreement to sell would not create any title.

M. Ghulam Muhammad v. Custodian of Evacuee Property, Lahore and others PLD 1966 Lah. 953; Sh.Nazir Ahmed v. Haji Ghulam Hussain and others 1985 CLC 7; Cap. Dr. Abdul Wahab v. Province of Punjab and another 1986 MLD 2049 and Sh. Manzoor Ahmad and others v. Mst. Iqbal Begum and others 1989 SCMR 949 rel.

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

‑‑‑‑Ss. 42 & 54‑‑‑Suit for declaration and permanent injunction‑‑‑Plaintiff claiming to be owner in possession of property filed such suit for restraining defendant from claiming any title thereto‑‑‑Maintainability‑‑­Such suit was neither bad under law nor hit by S.42 of Specific Relief Act, 1877‑‑‑Plaintiff was not required to ask for relief of possession‑‑‑In such like suit, transferees from plaintiff, if any, were neither necessary nor proper parties as same was not a suit for partition of joint property.

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

‑‑‑‑S. 42‑‑‑Suit for declaration‑‑‑Such suit could be maintained by one of the owners against third party claiming adverse title.

Habib and others v. Mst. Hakam Bibi and others PLD 1955 Lah. 31.; Hassain Ali Mondal v. Khoka Mulla (Minor) and others PLD 1964 Dacca 739 and Khalique Ahmad v. Abdul Ghani and another PLD 1973 SC 214 rel.

Qazi Muhammad Arshad Bhatti for Petitioners.

P L D 2004 Lahore 475

Before Maulvi Anwarul Haq, J

SAJID HUSSAIN SHAH‑‑‑Petitioner

Versus

GHULAM RUKKIA and another‑‑‑Respondents

Writ Petition No.407 of 2004, decided on 19th February, 2004.

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

‑‑‑‑S. 14‑‑‑West Pakistan Family Courts Rules, 1965, R.22‑‑‑Appeal‑‑­Document or statement worded as cross‑objection filed by respondent in Appellate Court praying thereby for modification of decree ‑‑‑Effect‑‑­Word "appeal" would mean a complaint made to superior Court against a decision of subordinate Court with prayer to set aside or modify same‑‑‑Effect of appeal would be that cause stood removed for purpose of deciding soundness of decision of subordinate Court‑‑‑Respondent had prayed for modification of decree in such document‑‑‑Notwithstanding such nomenclature used in such document, respondent would be deemed to have filed appeal under S.14 of West Pakistan Family Courts Act, 1964.

(b) Words and phrases—

‑‑‑‑"Appeal"‑‑‑Meaning.

Ziafat Hussain Cheema for Petitioner.

P L D 2004 Lahore 478

Before Syed Zahid Hussain, J

JEHANGIR BADAR‑‑‑Petitioner

Versus

FEDERATION and others‑‑‑Respondents

Writ Petition No. 1701 of 2004, decided 13th February, 2004.

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

‑‑‑‑S. 2‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Writ of mandamus‑‑‑Maintainability‑‑‑Departmental remedy non‑availing of‑‑‑Exit from Pakistan‑‑‑One time permission to travel abroad‑‑‑Name of petitioner who was facing trial in Accountability Court was on Exit Control List and he sought one time permission to travel abroad‑‑‑Contention of the authorities was that the petitioner without first approaching the competent authorities approached High Court in Constitutional jurisdiction‑‑‑Validity‑‑‑Petitioner had traveled abroad in the past as well after the permission was granted‑ by the Government‑‑­Petitioner could have applied for permission before instituting the instant Constitutional petition which could have received due consideration by the competent authorities‑‑‑Petitioner had rushed to High Court in haste without first approaching and enabling the competent authority to consider his request and to grant or refuse him the permission‑‑‑High Court advised the petitioner to first approach the competent authorities for permission to travel abroad‑‑‑Petition being in the nature of writ of mandamus was premature in circumstances.

Munir Ahmad Khan for Petitioner

Sher Zaman Khan, Dy. Attorney‑General for Pakistan.

P L D 2004 Lahore 480

Before Abdul Shakoor Paracha, J

ABDUL RAZZAQ ‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1017‑B of 2004, decided on 5th April, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.336/382/337‑F/148/149‑‑­Bail‑‑‑What had actually happened prior to the occurrence was yet to be determined‑‑‑Nothing incriminating had been recovered from the accused‑‑‑Three months delay in lodging the F.I.R. was not explained‑‑­Nine or ten persons had been nominated in the F.I.R.‑‑‑Case of accused needed further inquiry within the meaning of S.497(2), Cr.P.C.‑‑­Primary punishment, prima facie, awardable to accused would be payment of Arsh amounting to 1/2 of the Diyat prescribed by the Government‑‑‑Sentence of imprisonment, if any, likely to be awarded to accused would be as Tazir‑‑‑Bail was allowed to accused in circumstances.

Bashir v. The State 1995 PCr.LJ 412 ref.

Aish Bahadur Rana for Petitioner.

Malik Muhammad Aslam Khokhar for the State.

P L D 2004 Lahore 486

Before Syed Zahid Hussain, J

GHULAM MUHAMMAD and others‑‑‑Petitioners

Versus

MEMBER, BOARD OF REVENUE and others‑‑‑Respondents

Civil Miscellaneous Nos.1 and 2 of 2001 in Writ Petition No. 114‑R of 1989, decided on 16th March, 2004.

Civil Procedure Code (V of 1908)‑‑‑--

‑‑‑‑S. 151 & O.IX, R.13‑‑‑Limitation Act (IX of 1908), S.5‑‑­Constitution of Pakistan (1973), Art. 199‑‑‑Dismissal of Constitutional petition for non‑prosecution‑‑‑Application for restoration of petition and condonation of delay‑‑‑Case was of gross negligence and indolence on part of applicants as for a long time from the year 1994 till the year 2001, they failed to pursue the matter or enquire about the fate thereof by taking appropriate steps in the matter‑‑‑Law though favoured adjudication on merits, but the aspect of accrual of valuable rights due to expiry of limitation in favour of other side, could not be ignored and brushed aside‑‑‑Law required explanation for the delay of each day, which was lacking in present case‑‑‑No good cause had been made out for non‑appearance/non‑representation by applicants on relevant date or for condoning the delay in the matter‑‑‑Applications for restoration of dismissed Constitutional petition and for condonation of delay, were dismissed.

Awan Muhammad Hanif Khan for Petitioners.

Fazal‑e‑Milan Chowhan, Addl. A.‑G.

P L D 2004 Lahore 488

Before Syed Zahid Hussain, J

BASHIR AHMED‑‑‑Petitioner

Versus

ABDUL WAHID‑‑‑Respondent

Civil Revision No.265 of 2004, decided on 24th February, 2004.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction‑‑‑Concurrent findings of inferior Courts‑‑‑Effect of‑‑‑Judgments by Trial and Appellate Courts provided reasons of transfer of the suit property in favour of respondent/ plaintiff‑‑‑As, there were concurrent findings by all the Courts regarding the fact of transfer in favour of the respondent; therefore, it was not open for the petitioner to challenge or agitate it in revision.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction‑‑‑Scope‑‑‑Suit for possession and compensation for the use and occupation of certain property was filed by the respondent/plaintiff in the trial Court‑‑‑Petitioner/defendant objected to transfer of said property in favour of the respondent‑‑‑Steps were, accordingly, taken by the petitioner before the Settlement Authorities in 1983, to dispute the said transfer‑‑‑Such was a belated move on part of the petitioner as the settlement laws were already repealed by that time‑‑­Accordingly, reports secured from the defunct Settlement Authorities after the repeal of the settlement laws were of no effect, as they were not capable of impairing the rights so accrued in favour of the respondent‑‑­Petition, in the circumstances, was dismissed.

Ali Muhammad v. Haji Hussain and 2 others PLD 1975 Kar. 971 and Dost Muhammad v. Member, Board of Revenue (Settlement and Rehabilitation Wing) and others 1991 SCMR 84 ref.

M. Shahid Maqbool Sheikh for Petitioner.

P L D 2004 Lahore 490

Before Mian Saqib Nisar, J

PROVINCE OF PUNJAB through COLLECTOR, GUJRANWALA and 2 others‑‑‑Petitioners

Versus

Mst. GHAZALA SYED and 2 others‑‑‑Respondents

Civil Revision No.325 of 1996, heard on 16th February, 2004.

(a) Punjab Land Acquisition Rules, 1983‑‑--

‑‑‑‑R. 7‑‑‑Land Acquisition Act (I of 1894), Ss.4, 5, 5‑A & 17(4)‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Superior Court judgment application of‑‑‑Acquisition process against the land of the: respondent was initiated by the Authorities in 1989 through notification under S.4 of Land Acquisition Act, 189.4‑‑‑Subsequent notifications were issued by the said Authorities„ under S.17(4) of the Act dispensing with notifications under, S.5 & 5‑A of the Act‑‑‑Award was announced by the Authorities against the respondent‑‑‑Respondent's suit in the Civil Court challenging the said acquisition was allowed on the ground that the time limit provided under R.7 of Punjab Land Acquisition Rules, 1983 was not complied with‑‑‑Appeal was filed by the Authorities against the decision of the Civil Court but it failed‑‑‑Revision petition‑‑‑Contention of the Authorities was that the provisions of R.7 of Punjab Land Acquisition Rules, 1983 were declared ultra vires of the Land Acquisition Act, by virtue of a judgment of the superior Court passed in 1996, therefore, if the process of acquisition was not completed within one year, it did .not affect or invalidate the acquisition and moreover as the judgment was declaratory in nature, it had a retrospective effect‑‑­Validity‑‑‑Decree was passed in favour of the respondent by the Civil Court in 1993 and the appeal of the petitioner was dismissed in 1995 by the Appellate Court, when the said R.7 was intact‑‑‑As the matters were decided in favour of the respondent earlier to the judgment passed in 1996, therefore, the same would not destroy and nullify the right of the respondent‑ Retrospective effect of judgment‑‑‑Where the respondent had earned two decrees in his favour, the judgment shall not act retrospectively at the revision stage ‑‑‑Principle‑‑‑Lis between the parties should be decided on the basis of substantive law, which was applicable when the lis commenced and when the matter was decided by the Court of first instance‑‑Said judgment declaring R.7 as ultra vires was much after the right was earned by the respondent in shape of two decrees, therefore, such rule even if declared unlawful, the same would have no application to the case.

Allah Ditta and others v. Province of Punjab PLD 1997 Lah. 499 ref.

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

‑‑‑Ss. 5 & 17(4)‑‑‑Punjab Land Acquisition Rules, 1983, R.7‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Commissioner, powers of‑‑­Acquisition process against the land of the respondent was initiated by the Authorities‑‑‑Notifications were issued by the Commissioner under S.17(4) of the Land Acquisition Act, 1894 dispensing with notifications under Ss.5, & 5‑A of the Act‑‑‑Respondent's suit in the Civil Court challenging the said acquisition was allowed on the ground that the time limit provided to the Commissioner for acquisition under R.7 of Punjab Land Acquisition Rules, 1983 was not complied with‑‑‑Appeal was filed by the Authorities against the decision of the Civil Court but it failed‑‑­Revision petition‑‑‑Contention of the petitioners that the notification under S.17(4) was an independent power of the Commissioner and in spite of the issuance of notification under S.5 of the Act, for which period of one year was provided under said R.7, the Commissioner, could dispense with the notification even after the lapse of one year‑‑­Validity‑‑‑Provisions of S.17(4) did not empower the Commissioner with an unlimited authority for an indefinite period of time to issue notification under the same section‑‑‑Commissioner, in order to dispense with the notification under S.5 of the Act, should have taken necessary steps under S.17(4) before the expiry of the period of one year‑‑‑No error, in the circumstances, was found in the judgments and decrees of the Courts below to call for interference under revisional jurisdiction.

Sh. Shahid Waheed and Mian Muhammad Athar, State Counsel for Petitioner.

Waqar Azeem and Muhammad Pervaiz Jalab for Respondents.

Date of hearing: 16th February, 2004.

P L D 2004 Lahore 494

Before Mian Saqib Nisar, J

Dr. NISAR ALI KHAN and another‑‑‑Appellants

Versus

P.I.A. through Chairman and another‑‑‑Respondents

Second Appeal from Orders Nos.56 and 174 of 2003, heard on 24th and 25th February, 2004.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑--

‑‑‑‑Ss. 13(3) & 15‑‑‑Transfer of Property Act (IV of 1882), S.107‑‑­Registration Act (XVI of 1908), Ss.17 & 49‑‑‑Tenancy through unregistered document‑‑‑Legality‑‑‑Landlords contended that since the tenancy was created for one year through an unregistered document, therefore, it did not create or purport to create valid tenancy for a period beyond one year‑‑‑Validity‑‑‑Such tenancy could only be created through a registered document under S.107 of the Transfer of Property Act, 1882 and Ss. 17 & 49 of the Registration Act, 1908‑‑‑Where there was an agreement of tenancy, between the parties, which covered the period beyond one year and was not registered, it was to be considered as a tenancy valid for less than one year, and for the remaining period, the agreement shall have no legal effect.

M.K. Muhammad and another v. Muhammad Abu Bakar 1993 SCMR 200 and Habib Bank Ltd. v. Dr. Muhammad Ali Siddiqui 1991 SCMR 1185 ref.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑--

‑‑‑‑S. 13(3), first proviso‑‑‑Interpretation of S.13(3), first proviso of the West Pakistan Urban Rent Restriction Ordinance, 1959‑‑‑Bonafide personal need of landlord‑‑‑Section 13(3), first proviso of the Ordinance refers to contracts of tenancy which are valid in law and are for specified period agreed upon between the landlord and tenant‑‑‑When on account of the consequences of non‑registration the contract of tenancy became invalid, there was no bar against the landlord to seek the eviction of tenant even before the period stipulated in the agreement, because such a condition would be of no legal effect‑‑‑Agreement of tenancy, in the present case, was unregistered, therefore, S.13(3), first proviso of the Ordinance, could not come into play and deter the landlords, to seek eviction of tenant on the ground of personal requirement.

M.K. Muhammad and another v. Muhammad Abu Bakar 1993 SCMR 200 and Habib Bank Limited v. Dr. Muhammad Ali Siddiqui 1991 SCMR 1185 ref.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑--

‑‑‑Ss. 13(3) & 15‑‑‑Transfer of Property Act (IV of 1882), S.107‑‑­Registration Act (XVI of 1908), Ss.17 & 49‑‑‑Tenancy through unregistered document‑‑‑Legality‑‑‑Contention of the landlords was that the tenancy in question was created through an unregistered document for one year, therefore, it did not create or purport to create a valid tenancy for a period of 11 months‑‑‑Tenants contended that the agreement of the tenancy having been acted upon, therefore, even if it was invalid after one year's period, yet it could still be considered as valid for the purpose of creating tenancy for a longer period mentioned in the agreement‑‑‑Validity‑‑‑Contention of the tenants, was repelled on the ground that it would give an unfair opportunity to the parties to come up with similar pleas after entering into such agreements for longer period without getting them registered which would also render the provisions of law requiring compulsory registration of the instruments constituting tenancies beyond 11 months and its consequences as nugatory.

(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑Ss. 13(3) & 15‑‑‑Transfer of Property Act (IV of 1882), S.107‑‑­Registration Act (XVI of .1908), Ss.17 & 49‑‑‑Tenancy through unregistered document‑‑‑Legality‑‑‑Contention of the landlords was that the tenancy in question was created through an unregistered document for one year, therefore, it did not create or purport to create the valid tenancy for a period of 11 months‑‑‑Tenants objecting that the landlords had knowledge about the unregistered tenancy agreement of longer duration at the time of transfer of ownership of the building to them by earlier landlords‑‑‑Validity‑‑‑Non‑registration of tenancy agreement of one year had made the same invalid and unenforceable under the law, therefore, it did not create or purport to create any right of tenancy in favour of the tenants for more than 11 months‑‑‑Landlords were not debarred to seek eviction of the tenants under any principle of lave including the rule of estoppel.

(e) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑--

‑‑‑‑Ss. 13(3) & 15‑‑‑Transfer of Property Act (IV of 1882), S.107‑‑­Registration Act (XVI of 1908), Ss.17 & 49‑‑‑Tenancy through unregistered document‑‑‑Legality-‑‑Contention of landlords was that the tenancy was created for one year through an unregistered document, therefore, it did not create or purport to create the valid tenancy for a period of 11 months‑‑‑Contention of the tenants was that tenancy agreement could be used for a collateral purpose‑‑‑Validity‑‑‑Question of tenancy being for a fixed period of time or otherwise, was not a collateral purpose, rather it was a matter about the creation of legal rights of the parties to the agreement‑‑‑Enforcement and implementation of the terms and conditions of such agreement, by no means could be said to be a collateral purpose.

(f) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑--

‑‑‑‑Ss. 13(3) & 15‑‑‑Transfer of Property Act (IV of 1882), S.107‑‑­Registration Act. (XVI of 1908), Ss. 17 & 49‑‑‑Bona fide personal need of landlord‑‑‑Tenancy through unregistered document ‑‑‑Legality‑‑­Landlords were specialist doctors and they required the premises to establish a clinic for practicing their business‑‑‑Landlords had no other property in possession to conduct their business according to their professional skill‑‑No factors existed which militated against bona fide personal requirement of landlords ‑‑‑Ejectment order was passed against the tenants, in circumstances.

Ch. Khurshid Ahmad for Appellants.

Ghulam Haider Al‑Ghazali for Respondents.

Dates of hearing: 24th and 25th February, 2004.

P L D 2004 Lahore 501

Before Tanvir Bashir Ansari, J

Malik MUHAMMAD SIDDIQUE and 6 others‑‑‑Appellants

Versus

MUHAMMAD HANIF and another‑‑‑Respondents

First Appeal from Order No. 103 of 2002, heard on 23rd January, 2004.

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

‑‑‑‑Preamble & S.17‑‑‑Civil Procedure Code (V of 1908), S.141‑‑‑Rent Controller while acting' under provisions of Cantonments Rent Restriction Act, 1963 was not bound to follow procedure as provided by P.C. and frame any formal issue.

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

‑‑‑‑S. 17‑‑‑Ejectmenc petition on ground of personal need and damage to snort‑‑ ‑Respondent denied relationship of landlord and tenant between parties‑‑‑Rent Controller framed, solitary issue regarding such relationship and after rendering findings thereon in favour of petitioner accepted ejectment petition‑‑‑Validity‑‑‑Rent Controller had not followed consistent procedure and had omitted to frame issues regarding alleged personal need and damage‑‑‑Such omission was material inasmuch as it had misled respondent in assuming that only issue in field was relating to such relationship, thus, he had not cross‑examined petitioner regarding his statement in respect of personal need‑‑‑Finding of Rent Controller regarding existence of relationship of landlord and tenant was unexceptionable‑‑‑Framing of one issue and non‑framing of other issues was a material irregularly resulting in miscarriage of justice‑‑‑Rent Controller had not rendered any finding upon question of personal need and damage‑‑‑No question of default in payment of rent was involved‑‑­Respondent could not be straight away ordered to be evicted after finding of Rent Controller upon issue of such relationship alone‑‑‑High Court accepted appeal, set aside impugned order and remanded case to Rent Controller with directions to frame all relevant issues arising out of pleadings of parties and decide same after giving them opportunity to produce evidence.

Sardar Muhammad Ghazi for Appellants.

Zaheer Ahmed Qadri for Respondents.

Date of hearing; 23rd January, 2004.

P L D 2004 Lahore 504

Before Asif Saeed Khan Khosa and Ch. Iftikhar Hussian, JJ

MUHAMMAD AMIR KHAN and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.63‑J of 2000, Criminal Revision No.240 of 1999 and Murder Reference No. 170 of 1999, heard on 7th April, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑F.I.R. was lodged with great promptitude specifically nominating the accused with the role of having caused the fatal fire‑arm injury on the chest of deceased‑‑‑Occurrence had taken place in broad‑daylight at a bus stop in close proximity of many shops‑‑‑Complainant and the other eye‑witnesses had made straightforward and consistent statements inspiring complete confidence unanimously pinpointing the accused a the sole perpetrator of the murder of the deceased‑‑‑Accused at different stages, prior to his making statement under S.342, Cr.P.C. had not seriously denied his presence and participation in the alleged occurrence and his causing of the fatal fore‑arm injury to the deceased‑‑‑Motive set up by the prosecution was amply established‑‑‑Ocular testimony was fully corroborated by medical evidence and the motive‑‑‑No mitigating circumstances favouring reduction in sentence of accused was found on record‑‑‑Conviction and sentence of death of accused were upheld in circumstances.

Masood Mirza, assisted by Bashir Abbas Khan for the Appellant (in Criminal Appeal No.63‑J of 2000).

Syed Ehtesham Qadir Shah for Petitioner (in Criminal Revision No.240 of 1999).

S.D. Qureshi for the State.

Syed Ehtesham Qadir Shah for the Complainant.

Date of hearing: 7th April, 2004.

P L D 2004 Lahore 511

Before Asif Saeed Khan Khosa, J

MUHAMMAD SHARIF‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2412‑B of 2004, decided on 14th April, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)‑‑‑Pre‑arrest bail‑‑‑Accused allegedly had committed Zina-­bil‑Jabr with the victim lady which was witnessed by the complainant and two other witnesses‑‑‑Prior to the alleged occurrence accused had lodged an F.I.R. and also instituted a private complaint against the said complainant and the two eye‑witnesses of the present case for theft of some trees in which they were summoned as accused and the case was fixed for prosecution evidence‑‑‑Application filed by the aforesaid three persons under S.249‑A, Cr.P.C. in the complaint case had been dismissed‑‑‑Civil suit as well as a contempt petition filed by the present caucused against the same complainant' and eye‑witnesses were also pending in the Civil Court‑‑All the above mentioned proceedings were pending at the time of registration or the present F.I.R. against the accused and it was none other than tire same complainant and the eye­witnesses, who were inimical towards the accused, who now were attracted to witness the present occurrence‑‑‑No witness from inside the house of occurrence or from the houses situated in the immediate proximity had come forward to depose about the present occurrence—­Medico-legal examination of the alleged victim did not reflect any injury on any part of her body and the report of the Chemical Examiner regarding her vaginal swabs was in the negative‑‑‑Victim was statedly a married lady of 35 years of age and a mother of five children, whereas the accused was 55/60 years old and a married man having seven children‑‑‑Cumulative effect of all the aforesaid, factors had created an impression of mala fide implication of accused in the case‑‑‑Recovery of the pistol from the accused's possession, even if effected, was legally inconsequential and liberty of a citizen was too precious and sacrosanct to be sacrificed at the altar of an inconsequential recovery‑‑‑Arrest of the accused in the case with such a background was unconscionable‑‑Ad­ interim pre‑arrest bail allowed to accused was confirmed accordingly.

Muhammad Asif Ismail with Petitioner in person.

Abdul Aziz Sindhu for the State.

Aftab Hussain Bhatti for the Complainant.

P L D 2004 Lahore 515

Before Mian Saqib Nisar, J

Malik MUHAMMAD ZUBAIR and 2 others‑‑‑Petitioners

Versus

Malik MUHAMMAD ANWAR and 2 others‑‑‑Respondents

Civil Revision No. 1793‑D of 1993, heard on 5th March, 2004.

(a) Transfer of Property Act (IV of 1882)‑‑‑--

‑‑‑‑S. 41‑‑‑Benami transaction‑‑‑Ingredients‑‑‑Suit for declaration was filed by the petitioners claiming that they were co‑owners through succession of a disputed property which was put benami through a sale­ deed in the name of one of the respondents who was their brother, but in truth their deceased father was the owner of the same‑‑‑Suit of the petitioners was decreed by the trial Court‑‑‑Decree was set aside in appeal on the ground that the suit was filed by the petitioners after a long time of the execution of the sale‑deed and that too after the death of their father‑‑‑Validity‑‑‑In order to ascertain if the transaction was benami or not, there were five important ingredients that needed to be proved, namely the motive, source of money with which the property was purchased, the possession of the property, the conduct of the parties as to how the property was dealt with and possession of the original title documents.

(b) Transfer of Property Act (IV of 1882)‑‑‑--

‑‑‑‑S. 41‑‑‑Benami transaction‑‑‑Ingredients, proof of‑‑‑Petitioners failed to state and prove the motive behind purchasing the property in the name of the respondent, who was found to be minor at the time of the sale‑‑­Ingredient of motive was found not of much significance as respondent was son of the deceased owner and it, was a common practice in the society to purchase properties in the names of wife and children for no specific reasons‑‑‑Sufficient evidence was provided by the petitioners through witnesses that the said property' was purchased by the deceased owner and the name of the respondent was only put as a benamidar‑‑‑Regarding possession both the parties claimed their possession through a tenant, who neither appeared in the Court nor was examined, and therefore, presumption of withholding the evidence, was drawn against the respondent‑‑‑Even the documents of title which the respondent claimed to be in his possession were not produced on the pretext that they were lost‑‑‑Cause of action accrued to the petitioners only after the death of their father when the respondent declined to give them their share by the property‑‑‑Appellate Court, in circumstances, had not applied its judicial mind to the evidence on record to find out whether the ingredients of the benami transaction were present or not‑‑‑Decree of the trial Court was upheld.

(c) Transfer of Property Act (IV of 1882)‑‑‑--

‑‑‑‑S. 41‑‑‑Benami transaction‑‑‑Ingredient of motive, proof of‑‑­Objection of the respondent was that petitioner had failed to prove the ingredient of motive in order to make it a benami transaction‑‑­Validity ‑‑‑Property was purchased by the deceased father in the name of the respondent who was minor at the time of the transaction and had no visible source of income, moreover, there was no intention of any gift to him by his father, nor was such a case ever pleaded by the respondent‑‑­Motive of the benami transaction became irrelevant in circumstances.

Al‑Haaj Muhammad Rafique v. Mst. Khalida Shehzadi 2003 CLC 559 distinguished.

Ms. Farida Malik and others v. Dr. Khalida Malik 1998 SCMR 816 ref.

Farooq Amjad Mir for Petitioners.

Ch. Muhammad Bashir Goraya for Respondents.

Date of hearing: 5th March, 2004.

P L D 2004 Lahore 521

Before Tassaduq Hussain Jilani, J

ABDUL KHALIQ and 8 others‑‑‑Petitioners

Versus

ASSISTANT COLLECTOR/NOTIFIED OFFICER, DISTRICT BAKHAR and 11 others‑‑‑Respondents

Writ Petition No.5966 of 1998, heard on 24th February, 2004.

(a) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)‑‑--

‑‑‑‑S. 3‑‑‑Colonization of Government Lands (Punjab) Act (V of 1912), Settlement Scheme, para.29‑‑‑Constitution of Pakistan (1973). Art.199‑‑‑Constitutional petition‑‑‑Allotment of land to evacuee claimant in satisfaction of pending units as per judgment of Supreme Court‑‑‑Petitioner as tenant under Temporary Cultivation Scheme claimed that such land belonging to Provincial Government and not being available with Notified Officer for allotment could not be allotted to respondent under Rehabilitation Settlement Scheme‑‑­Validity‑‑‑Such land initially belonging to Central Government had been purchased by Provincial Government, when same was allotted to respondent in satisfaction of his pending units‑‑‑Evacuee claim of respondent had not been challenged‑‑‑Reference to para.29 of Rehabilitation Settlement Scheme would not be of any avail‑‑‑No exception could be taken to such allotment‑‑‑Petitioner being in cultivating possession under Temporary Cultivation Scheme could not make a grievance against its allotment under a permanent scheme‑‑­Petitioner had no vested right‑‑‑High Court dismissed Constitutional petition.

Khuda Bakhsh v. Member (Colonies), Board of Revenue and 2 others 1981 SCMR 1134 rel.

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

‑‑‑‑S. 10‑‑‑Allotment of State land under a permanent scheme‑‑‑Effect‑‑­Tenant in cultivating possession of such land under a Temporary Cultivating Scheme could not make a grievance against its allotment under a permanent scheme.

Khuda Bakhsh v. Member (Colonies), Board of Revenue and 2 others 1981 SCMR 1134 rel.

Rana Muhammad Sarwar for Petitioners.

Mian Shah Abbas Iqbal for Respondents Nos.4 to 9.

Raja Abdul Rahman, Asstt. A.‑G. for the State.

Date of hearing: 24th February, 2004.

P L D 2004 Lahore 527

Before Asif Saeed Khan Khosa and Ch. Iftikhar Hussain, JJ

MUHAMMAD SHAFIQUE and others‑‑‑Appellants

Versus

THE STATE and others‑‑‑Respondents

Criminal Appeals Nos. 901 of 1998; Murder Reference No.214 of 1999 and Criminal Revision No.261 of 1999, heard on 30th March, 2004.

Penal Code (XLV of 1860)‑--

‑‑‑‑S. 302(b) & 100‑‑‑Appreciation of evidence‑‑‑Sentence, reduction in ‑‑‑F.I.R. had been lodged with reasonable promptitude specifically nominating the accused as the only person responsible for firing and killing the deceased‑‑‑Occurrence had taken place during daylight‑‑­Ocular testimony was completely reliable and was corroborated by medical evidence, motive set up in the F.I.R. and the recovery of pistol from the accused which had matched with all the four crime empties secured from the place of occurrence‑‑‑Accused in his statement recorded under S.342, Cr.P.C. had admitted killing of the deceased at the date, time and place alleged by, the prosecution, but maintained to have done so in exercise of his right of private defence after initial aggression on him by the complainant party in which many injuries were caused to him‑‑‑Accused had failed to establish that the deceased was "the assailant" so as to extend the right of private defence to him to cause the death of the deceased within the purview of S.100, P.P.C.‑‑‑Conviction of accused was maintained in circumstances‑‑‑Prosecution had not brought the whole truth on the record as a result of which the immediate cause of the murder of the deceased had remained shrouded in mystery‑‑­Death sentence of accused was reduced to imprisonment for life accordingly.

Bakhtiar Ali Sial for Appellants.

Nazir Ahmad for the State.

Mr. Muhammad Afzaal Siddiqui for the Complainant.

Dates of hearing: 29th and 30th March, 2004.

P L D 2004 Lahore 536

Before Tassaduq Hussain Jilani, J

MUHAMMAD ASLAM---Petitioner

Versus

MUHAMMAD HAYAT and others---Respondents

Criminal Revision No.65 of 2004, heard on 10th March, 2004.

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

----S. 302/34---Juvenile Justice System Ordinance (XXII of 2000), S.7--­Determination of age of accused---Matter for determination of the age of accused had been referred to the Medical Board with consent of the parties---Over-writing in the relevant column of the Birth Register of the accused had not been seriously disputed by the complainant---Medical Board had not only relied upon the Radiologist's report but had also independently examined the accused to arrive at the conclusion--­Impugned order whereby the Sessions Court while holding the accused to be a juvenile in terms of Juvenile Justice System Ordinance, 2000, had directed him to be tried separately, did not suffer from any illegality or material irregularity to warrant interference by High Court in its revisional jurisdiction---Revision petition was dismissed accordingly.

Muhammad Ajmal v. State through Advocate-General, Punjab PLD 2003 SC 1; Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and others PLD 2003 SC 849 and Mehboob Ahmad v. The State and 2 others.2002 PCr.LJ 2034 distinguished.

Naseer Ahmad v. The State PLD 2000 SC 813 and Umar Hayat v. Jahangir and another 2002 S C M R 629 ref.

Malik Muhammad Qasim Joyia for Petitioner.

Masood Mirza for Respondent No. 1.

Khurshid Anwar Bhinder, Addl. Advocate-General.

Date of hearing: 10th March, 2004.

JUDGMENT

This Criminal Revision is directed against the order dated 7-1-2004 passed by the learned Additional Sessions Judge, Sargodha vide which, while holding that respondent/accused Muhammad Hayat to be a juvenile in terms of Juvenile Justice System Ordinance, 2000, was directed to be tried separately.

P L D 2004 Lahore 536

Before Tassaduq Hussain Jilani, J

MUHAMMAD ASLAM‑‑‑Petitioner

Versus

MUHAMMAD HAYAT and others‑‑‑Respondents

Criminal Revision No.65 of 2004, heard on 10th March, 2004.

Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑S. 302/34‑‑‑Juvenile Justice System Ordinance (XXII of 2000), S.7‑‑­Determination of age of accused‑‑‑Matter for determination of the age of accused had been referred to the Medical Board with consent of the parties‑‑‑Over‑writing in the relevant column of the Birth Register of the accused had not been seriously disputed by the complainant‑‑‑Medical Board had not only relied upon the Radiologist's report but had also independently examined the accused to arrive at the conclusion‑‑­Impugned order whereby the Sessions Court while holding the accused to be a juvenile in terms of Juvenile Justice System Ordinance, 2000, had directed him to be tried separately, did not suffer from any illegality or material irregularity to warrant interference by High Court in its revisional jurisdiction‑‑‑Revision petition was dismissed accordingly.

Muhammad Ajmal v. State through Advocate‑General, Punjab PLD 2003 SC 1; Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and others PLD 2003 SC 849 and Mehboob Ahmad v. The State and 2 others.2002 PCr.LJ 2034 distinguished.

Naseer Ahmad v. The State PLD 2000 SC 813 and Umar Hayat v. Jahangir and another 2002 S C M R 629 ref.

Malik Muhammad Qasim Joyia for Petitioner.

Masood Mirza for Respondent No. 1.

Khurshid Anwar Bhinder, Addl. Advocate‑General.

Date of hearing: 10th March, 2004.

JUDGMENT

This Criminal Revision is directed against the order dated 7‑1‑2004 passed by the learned Additional Sessions Judge, Sargodha vide which, while holding that respondent/accused Muhammad Hayat to be a juvenile in terms of Juvenile Justice System Ordinance, 2000, was directed to be tried separately.

1. Facts in brief are that a case (vide F.I.R. No. 105 dated 2‑8‑2002, under section 302/34, P.P.C. Police Station Jhawarian, District Sargodha) was registered for the murder of Muhammad Yar. None was named as an accused. However, during investigation two accused were challaned, namely, Muhammad Hayat (respondent) and co ­accused Muhammad Farooq. The former moved an application that he was below of eighteen years of age, the matter was referred to the Medical Superintendent, D.H.Q. Hospital, Sargodha who constituted a Medical Board and in terms of the report dated 2‑12‑2003, the Radiologist opined as under:‑‑

"Considering X‑Ray of hand, wrist, elbow, shoulder, pelvis, knee, ankle, clavicle, the radiological age in my opinion is about seventeen years".

In the same report, the Medical Board consisting of Medical Superintendent (Chairman), Chief Physician and Radiologist (members), held as under:‑‑‑

"Considering general appearance and the report of Radiologist, the Board is of the unanimous opinion that the age of Muhammad Hayat son of Qari Mehboob Elahi is about seventeen (17) years".

Learned trial Court, gave preference to the afore‑referred reports and passed the impugned order, hence this revision.

1. Learned counsel for the petitioner, in support of this petition, submitted as under:‑‑

(i) That respondent Muhammad Hayat is above eighteen years of age and he has wrongly been declared as a person below eighteen years;

(ii) That the report of the Medical Board is not binding on the Courts while determining the question of age and has to prefer the birth certificate, if available on record.

In support, of the submissions he relied on Muhammad Ajmal v. State through Advocate‑General, Punjab PLD 2003 SC 1; Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and others PLD 2003 SC 849 and Mehboob Ahmad v. The State and 2 others 2002 PCr.LJ 2034.

1. Learned counsel for respondent Muhammad Hayat defended the impugned order. According to him, the Medical Board was constituted with the consent of the parties, as there was some over‑writing in the relevant column of the Birth Register, which was being relied upon by the prosecution. He added that when two views are possible, it is a settled principle of law that the view, which favours the accused, has to be given preference. In support of the submissions made, he placed reliance on Naseer Ahmad v. The State PLD 2000 SC 813 and Umar Hayat v. Jahangir and another 2002 SCMR 629.

2. I have heard learned counsel for the parties, have given anxious consideration to the submissions made and have also gone through the precedent case‑law cited at the bar.

3. The observation of the learned trial Court in the impugned order that the matter was referred to the Medical Board for determination of age of respondent Muhammad Hayat, with consent, has not been controverted by the petitioner's learned counsel. Even the contention of respondent's learned counsel that there was some over‑writing in the relevant column of the Birth Register has not been seriously disputed by petitioner's learned counsel while arguing his case. Moreover, section 7 of the Juvenile Justice System Ordinance, 2000 mandates as under:‑‑‑

"7. Determination of age.‑‑If a question arises as to whether a person before it is a child for the purposes of this Ordinance, the Juvenile Court shall record a finding after such inquiry which shall include a medical report for determination of the age of the child."

1. The Medical Board not only relied upon the report of the Radiologist but also independently examined respondent Muhammad Nayat to arrive at the conclusion referred to in para. 2 above.

7‑A. The precedent case‑law to which reference has been made by petitioner's learned counsel is of no avail to him as the facts and circumstances of the instant case are distinguishable. In Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and others (PLD 2003 Supreme Court 849), the august Supreme Court decided a civil matter. No opinion of the Medical Board, with regard to the age of the person in question was produced in evidence and in those circumstances the Court preferred the entries made in the Birth Register and Matriculation Certificate qua the age of the said person. In Mehboob Ahmad v. The State and 2 others (2002 PCr.LJ 2034), the judgment of the august Supreme Court reported in Muhammad Rafique, v. The State (1987 PCr.LJ 1360), was relied upon but the latter judgment would not be of much help to the petitioner as it is an observation in a bail matter decided much prior to the promulgation of the Juvenile Justice System Ordinance, 2000. Even in the said case, the Court was persuaded to grant the accused bail on account of tender age as both, the Medical Certificate given by the Police Surgeon and, the Certificate about the entry in the Register of Birth maintained by the KMC indicated that he was below eighteen years of age. Muhammad Ajmal v. State through Advocate‑General Punjab (PLD 2003 SC 1) is also distinguishable as the august Supreme Court upheld the concurrent judgments of the Courts below dismissing convict's bail and the question of the Medical Board's opinion, with regard to the age of the accused, was not a moot point.

1. The case‑law relied upon by respondent Muhammad Hayat's learned counsel, is more relevant to the facts and circumstances of the instant case. In Naseer Ahmad v. The State (PLD 2000 SC 813), it was held as under:‑

" …………… It may further be noticed that mere reliance on the School Leaving Certificate by the trial Judge as also by the learned Single Judge of the High Court was not enough to come to a definite conclusion as to the age of the minor at the time of the commission of the offence. Additionally for that purpose, the ossification test or any other medical test should have also been got conducted and the age of the convict appellant determined in accordance there with and then decided the case accordingly".

Similarly, in Umar Hayat v. Jahangir and another (2002 SCMR 629), the august Supreme Court observed that " ……………. In any case, by now it is well‑settled law that where two views are possible, the view in favour of the accused is normally to be accepted".

1. For what has been discussed above I do not find any illegality or material irregularity in the impugned order to warrant interference in the revisional jurisdiction of this Court. The petition, having no merit, is accordingly dismissed.

N.H.Q./M‑170/L Petition dismissed.

P L D 2004 Lahore 539

Before M. Javed Buttar and Muhammad Muzammal Khan, JJ

JOSHUA CHIGBOGU‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.2195 of 2003, heard 10th February, 2004.

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

‑‑‑‑S. 9(c)‑‑‑Appreciation of evidence‑‑‑Evidence of recovery of heroin from the accused was consistent and inspired confidence‑‑‑Recovery witnesses had no enmity or ill‑will towards the accused‑‑‑Defence version was wild, baseless and an afterthought‑‑‑Huge quantity of heroin could not have been falsely planted on the accused‑‑‑Control of Narcotic Substances Act, 1997, is a special law and it did not make any distinction between a "foreigner" and a "local" and was applicable to both‑‑‑Lenient dealing with foreigners in the matter of sentence would amount to encouraging the foreigners to indulge in narcotics smuggling in the country‑‑‑Law would cease to be deterrent for foreigners if they were sentenced leniently and such a distinction would defeat the objectives of law‑‑‑Accused had already been dealt with too leniently by the Trial Court‑‑‑Conviction and sentence of accused were upheld in circumstances.

Obie Funs Emanuel v. The State 1991 PCr.LJ 1705, Khushnood Ahmad v. The State 1991 PCr.LJ 1920, Seleh Dowson v. The State 1991 PCr.LJ Note 123 at p. 89 and Ahmad Kabir v. The State 1983 PCr.LJ 2299 and Haji Naik Muhammad v. The State 2001 PCr.LJ 1160 ref.

Abdul Lateef Chaudhry for Appellant.

Ch. Muhammad Suleman, A.A.‑G. for the State.

Date of hearing: 10th February, 2004.

P L D 2004 Lahore 545

Before Syed Zahid Hussain, J

SHEERAZ AZIZ CHEEMA‑‑‑Petitioner

Versus

PUNJAB PUBLIC SERVICE COMMISSION, through Secretary and 2 others‑‑‑Respondents

Writ Petition No. 17566 of 2003, heard on 16th March, 2004.

(a) Punjab Public Service Commission Ordinance (II of 1978)---

‑‑‑‑S. 7‑‑‑Punjab Public Service Commission Regulations, 1987, Reglns. 27 & 30‑‑‑Punjab Public Service Commission Manual of Policy Decisions‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Competitive Examination for post of Assistant Sub‑Inspector of Police held by Public Service Commission‑‑‑Disallowing additional marks for additional qualification of LL.B. on account of declaration of result of LL.B. Examination after closing date‑‑‑Validity‑‑‑Closing date for submission of application forms was 15‑7‑2002‑‑‑Petitioner in application form had disclosed that result of his LL.B. Examination was awaited‑‑‑Petitioner had been found eligible and had qualified written test‑‑‑Petitioner had been interviewed on 29‑5‑2003 and had produced at that time detailed marks of LL.B. Examination bearing date 18‑11‑2002 at its bottom‑‑‑Result of LL.B. Examination had been declared on 10‑7‑2002, but petitioner was not aware of the same‑‑‑Petitioner had produced letter from University about declaration of result on 10‑7‑2002 i.e. before closing date of 15‑7‑2002‑‑‑Public Service Commission, in case of doubt thereabout, could have verified factual position from University, which had not been done‑‑‑Mere a representation in application form being based on lack of information and contrary to reality, could not be given so much weight‑‑‑If result had been declared before closing date and petitioner had acquired additional qualification, then he could not be denied benefit of additional marks for such reason‑‑‑Policy of awarding additional marks for higher qualification was still operative‑‑‑Such a beneficial policy had to be construed in a manner, which would advance its underlying object and purpose, but could not be applied in a manner to deprive a person of his due right‑‑‑High Court accepted Constitutional petition with observations that claim of petitioner would be dependent upon verification of facts from University and finding of Commission.

Dr. Muhammad Nazir Khan v. Government of Punjab and others 1997 CLC 354 rel.

(b) Administration of justice‑‑‑---

‑‑‑‑ Too much adherence to technicalities, which impede the cause of justice, cannot be countenanced by the Court.

Mushtaq Ahmad Mohal for Petitioner.

Fazal Miran Chohan, A.A.‑G. with Manzoor Hussain Bhatti Director Legal and Abdul Razzaq Dy. Director Legal Punjab Public Service Commission for Respondent.

Date of hearing: 16th March, 2004.

P L D 2004 Lahore 549

Before Sardar Muhammad Aslam, J

Allama Syed SAJID ALI NAQVI‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.4/B of 2004, decided on 25th March, 2004.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/109/427/148/149‑‑­Bail, grant of‑‑‑Allegation against the accused admittedly was of hatching conspiracy to cause murder of the deceased‑‑‑Evidence of conspiracy ­furnished by the prosecution witnesses in their statements recorded under S.161, Cr.P.C. needed further inquiry as it was yet to be determined whether their claim of hearing the accused directing his co‑accused to do away with the deceased and that he would bear the expenses as well as facilitate their escape abroad could have been discussed at that juncture of time‑‑‑Deceased was an eminent figure and religious scholar of the country‑‑‑Accused too being the head of the Tehrik would not have hatched the conspiracy in presence of other persons and that too in the house of another prominent political leader to murder the deceased‑‑­Conspirators/abettors apparently do not discuss such matters in an open public assembly and take utmost care to keep the same a secret to the maximum extent‑‑‑Statements regarding conspiracy were recorded belatedly without any explanation for the delay‑‑‑Bail could not be withheld as punishment‑‑‑Trial was to commence shortly‑‑‑Deceased according to F.I.R. was informed of the alleged conspiracy, but this fact was neither brought to the notice of the Government nor any report was made to this effect‑‑‑Accused could not be kept as hostage to secure the arrest of some of the accused who were still at large‑‑‑Accused was admitted to bail in circumstances.

Syed Amanullah Shah v. The State and another PLD 1996 SC 241; Manzoor and 4 others v. The State PLD 1972 SC 81; Abdullah Khan v. Abdul Qayyum and another 1996 SCMR 493; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Abdul Khaliq v. The State 1996 SCMR 1553; Malik Muhammad Iqbal v. Syed Abid Hussain Shah and 9 others 2000 PCr.LJ 1171 and Muhammad Ismail v. Muhammad Refique and another PLD 1989 SC 585 ref.

Syed Mazhar Ali Naqvi, Syed Zulfiqar Abbas Naqvi, Sardar Zaheer Ahmad Khan, and Syed Nayab Haider Gardezi for Petitioner.

Sardar Tariq Masood Khan, Basharat Ullah Khan for the Complainant.

Raja Saeed Akram, Asstt. A.‑G. for the State.

P LD 2004 Lahore 554

Before Mian Muhammad Najam‑uz‑Zaman, and Asif Saeed Khan Khosa, JJ

MUHAMMAD ALI and others‑‑‑Appellants

Versus

THE STATE and others‑‑‑Respondents

Criminal Appeals Nos. 1368 of 1999, 900, 923 of 2002, Criminal Revision No.1032 of 2002 and Murder References Nos.501‑T of 1999 and 63‑T of 2002, decided on 18th May, 2004.

(a) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑Ss. 302(b)/149, 324/149, 337‑F(v)/149 337‑L(2)/149 & 148‑‑‑Anti­ Terrorism Act (XXVII of 1997), S.7‑‑‑Appreciation of evidence‑‑­Accused party on having received information about the murder of a member of their party by the complainant party, rushed to the "Dhari" in dispute and launched a concerted and premeditated attack upon the unarmed complainant party, not in exercise of right of private defence and not by way of a free fight, but by way of a vengeful retribution and retaliation‑‑‑Occurrence had taken place in broad‑daylight‑‑‑F.I.R. had been lodged with reasonable promptitude with specific nomination of accused and attribution of definite roles to each of them therein ‑‑‑Eye­witness had consistently deposed about the presence and participation of accused in the main occurrence‑‑‑Availability of an injured‑eye­witness at the spot at the relevant time was quite obvious‑‑‑Motive set up by the prosecution revolving around the dispute between the parties over the "Dhari" had not been denied or controverted by the accused in their statements recorded under 5.342, Cr.P.C.‑‑‑Medical evidence had supported the ocular testimony to great extent ‑‑‑Abscondence of one accused had corroborated the prosecution case against him‑‑‑Actual participation of accused in the occurrence with common object was, thus, established on record‑‑‑Convictions and sentences of accused were upheld in circumstances with some alterations and modifications.

Muhammad Amin v. The State 2002 SCMR 1017; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Manzoor and others v. The State and others 1992 SCMR 2037; Sh. Muhammad Aslam v. Shaukat Ali alias Shauka 1997 SCMR 1307 and Ghulam Abbas v. Mazhar Abbas and another PLD 1991 SC 1059 ref.

Bashir Ahmed v. The State and another 2004 SCMR 236 and Niaz Ahmad v. The State PLD 2003 SC 635 distinguished.

(b) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑S. 302‑‑‑Anti‑Terrorism Act (XXVII of 1997), Ss.6/7 ‑‑‑ Crime and punishment‑‑‑Offences under S.302, P.P.C. and Ss.6/7 of the Anti ­Terrorism Act, 1997, are quite distinct and separate from each other.

Muhammad Amin v. The State 2002 SCMR 1017 ref.

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

‑‑‑‑Ss. 6/7‑‑‑Appreciation of evidence‑‑‑Conviction and sentence‑‑­Validity‑‑‑No witness belonging to the complainant party had uttered even a single word about any fear and insecurity created in the society at large on account of the criminal activity of the accused party, nor the Investigating Officer had collected any evidence in this behalf‑‑­Motivation on the part of the accused party was a retaliation after the murder of their one member by the complainant party which was based purely upon a personal and private grievance having no nexus with the objects of the Anti‑Terrorism Act, 1997‑‑‑Conviction and sentence of accused under Ss.6/7 of` the Anti‑Terrorism Act, 1997, recorded by the Trial Court were consequently set aside and they were acquitted of the said charge accordingly.

Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 ref.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 324/149 & 337‑F(v)/149‑‑‑Appreciation of evidence‑‑‑Conviction in absence of statement of the injured witness‑‑‑Absence of the minor victim's statement before the Trial Court stood satisfactorily explained and accounted for and the factum of sustaining of injuries by him at the hands of the accused party stood amply proved through ocular account supported by the medical evidence‑‑‑Convictions and sentences of accused under Ss.324/149 and 337‑F(v)/149, P.P.C. were upheld in circumstances.

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

‑‑‑‑S. 345‑‑‑Penal Code (XLV of 1860), Ss.302(b)/149 & 324/149‑‑­Compromise‑‑‑Complete compromise in a case of Ta'zir may not be accepted by the Court as the matter of compounding of an offence statutorily requires the approval of the Court and in the circumstances of a given case such an approval may not be granted by the Court.

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

‑‑‑‑S. 345‑‑‑Penal Code (XLV of 1860), Ss.302(b)/149 & 324/149‑‑‑Partial compromise‑‑‑Effect‑‑‑Partial compromise cannot be given effect to in a case of Ta'zir as far as the matter of compounding of the offence is concerned, but the matter of sentence being entirely a different matter, lies within the jurisdiction and discretion of the Trial Court.

Sh. Muhammad Aslam v. Shaukat Ali alias Shauka 1997 SCMR 1307 ref.

(g) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑S. 302(b)/149‑‑‑Sentence‑‑‑Mitigating circumstances‑‑‑Accused had committed the murder of the deceased in hot blood and not in cold blood which was a direct result of provocation offered to the accused party by the complainant party itself‑‑‑Retaliation by the accused party was a result of an impulsive reaction but it had overacted‑‑‑Secondly, it was not clear as to who had caused the fatal injury to the deceased‑‑‑Death sentence awarded to each accused was reduced to imprisonment for life in circumstances.

Ghulam Abbas v. Mazhar Abbas and another PLD 1991 SC 1059 ref.

(h) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b)/149, 324/149, 337‑F(v)/149, 337‑L(2)/149 & 148‑‑­Appreciation of evidence‑‑:Accused according to prosecution case itself had only caused an injury on the back of right hand of the deceased which was not supported by medical evidence‑‑‑No other injury to and other person had been attributed to accused‑‑‑No weapon had been recovered from the accused‑‑‑Accused was not directly connected with the motive set up by the prosecution‑‑‑Benefit of doubt was extended to accused in circumstances and he was acquitted accordingly.

Syed Zahid Hussain Bukhari for Appellants (in Criminal Appeal No. 1368 of 1999).

Mian Abdul Qayyum Anjum for Appellant (in Criminal Appeal No.900 of 2002).

Mrs. Erum Sajjad Gul for Appellant (in Criminal Appeal No.923 of 2002).

Rana Naeem Sarwar for Appellant (in Criminal Revision No. 1032 of 2002).

Mian Aftab Farrukh for the Complainant.

Mrs. Erum Sajjad Gul for the State.

Syed Zahid Hussian Bukhari for Respondent (in Criminal Appeal No.923 of 2002).

Dates of hearing: 11th, 12th, 13th, 17th and 18th May, 2004.

P L D 2004 Lahore 577

Before Syed Zahid Hussain, J

Syed FAZAR HUSSAIN and others‑‑‑Petitioners

Versus

SHABAN and others‑‑‑Respondents

Civil Miscellaneous No.3‑C of 2001 in Regular Second Appeal No.258 of 1982; Regular Second Appeals. Nos.210, 211 of 1985, decided on 27th April, 2004.

(a) Punjab Pre‑emption Act (I of 1913)‑‑‑--

‑‑‑S. 22‑‑‑Civil Procedure Code (V of 1908), S.151 & O.XX, R.14‑‑­Suit for pre‑emption ‑‑‑Delay in depositing sale price, condonation of‑‑­Extension of time‑‑‑Trial Court had directed the pre‑emptors to deposit the sale price within a specified period, but they failed to do so‑‑­Application was filed by the pre‑emptors for extension of time for deposit of the said sale price‑‑‑Validity‑‑‑Composite decree was passed by the Trial Court under O.XX, R.14, C.P.C. fixing the time for deposit of pre‑emption money ‑‑‑Pre‑emptors were required to make the deposit of sale price within the specified time‑‑‑Had the pre‑emptors complied with the decree they would have succeeded but since they failed to make deposit, the suit was to be dismissed and the same decree was to go for the benefit of the vendee‑‑‑Application of the pre‑emptors was dismissed, in circumstances.

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

‑‑‑‑S. 22‑‑‑Pre‑emption suit‑‑‑Power of the Court to extend time for deposit of sale price‑‑‑In appropriate cases where, the fault, act or omission was wholly attributable to the Court or its official, the Court could extend time for deposit of sale‑price in order to relieve party from oppression and injustice.

Subah Sadiq Klasoon and Shaukat Ali Mehr for Petitioners.

Ch. Riasat Ali for Respondents.

P LD 2004 Lahore 582

Before Syed Zahid Hussain, J

JEHANGIR BADAR‑‑‑Appellant

Versus

FEDERATION OF PAKISTAN‑‑‑Respondent

Writ Petition No.4503 of 2004, decided on 16th April, 2004

Exit From Pakistan (Control) Ordinance (XLVI of 1981)‑‑--

‑‑‑‑S.2‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Exit from Pakistan‑‑‑One time permission to travel abroad‑‑­Pendency of criminal case‑‑‑Petitioner's name' was on exit control list and he was also facing trial in National Accountability Court‑‑‑Petitioner sought‑ one time permission to travel abroad for performance of Umra and visit to United Kingdom on the invitation for launching ceremony of his book‑‑‑Despite pendency' of the reference in. Accountability Court, the petitioner had been granted such permission by the Government itself in past which was availed by him twice and he returned within the stipulated period‑‑‑Besides other near relations, the petitioner had three children who were acquiring education from the institutions in Pakistan‑‑‑Effect‑‑‑Apparently there was no possibility of absconsion of the petitioner rather the two permissions and opportunities 'availed by him would show that he would return if so allowed to go abroad‑‑­Apprehension of the Authorities regarding delay in decision of reference could be taken care of by restricting the duration of the stay of the petitioner abroad and his undertaking not to prolong the pending proceedings against him‑‑‑High Court, in appropriate case, could grant permission despite pendency of the matter‑‑‑High Court granted one time permission to the petitioner to visit abroad for 20 days‑‑‑Petition was disposed of accordingly.

Anwar Saifullah Khan, Ex‑Senator v. Passport and Immigration Officer, Government of Pakistan and 3 others 1998 SCMR 1343 fol.

S.M. Masood and Munir Ahmed Khan for Petitioner.

Tariq Shamim, Standing Counsel for the Federation with Javed Habib, Section Officer, Ministry of Interior Islamabad for the State.

P L D 2004 Lahore 585

Before Syed Zahid Hussain, J

MUHAMMAD NAZIR ‑‑‑ Petitioner

Versus

AHMAD DIN and 5 others‑‑‑Respondents

Civil Revision No. 1642 of 1999, heard on 23rd April, 2004.

(a) Pleadings‑‑

‑‑‑‑ Any assertion made in the pleadings, if controverted by other side could not be taken as a fact established unless so proved.

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

‑‑‑‑‑S. 42‑‑‑Limitation Act (IX of 1908), Art. 120‑‑‑Suit for declaration‑‑­Limitation‑‑‑Plaintiff had himself stated that 20 years back he asked the defendant to give him his land, but defendant refused to do so telling that plaintiff had no such claim‑‑‑Suit filed after 20 years in view of admission as to denial of his title by defendant, was per se time‑barred‑‑­Limitation for a declaratory suit under Art.120 of Limitation Act, 1908 would run from the date the right to sue accrued‑‑‑Limitation which started running against plaintiff had expired long before the institution of suit‑‑‑Courts below, in circumstances had rightly dismissed the suit being barred by time.

Province of the Punjab through Member Board of Revenue (Residual Properties), Lahore and others v. Muhammad Hussain through legal Heirs and others PLD 1993 SC 147; Muhammad Raz Khan v. Government of N.‑W.F.P. and another PLD 1997 SC 397; Sayed Sajid Ali v. Sayed Wajid Ali PLD 1975 BJ 29 and S. Sharif Ahmed Hashmi v. Chairman, Screening Committee 1978 SCMR 367 ref.

Ch. Muhammad Abdullah for Petitioner.

Nemo for Respondents Nos. 1 to 3.

Fazal Miran Chohan, Addl. A.‑G. for Respondents Nos.4 and 6.

Miss Gulzar Butt for Respondent No.5.

Date of hearing: 23rd April, 2004.

P L D 2004 Lahore 588

Before Maulvi Anwarul Haq, J

NASRULLAH‑‑‑Petitioner

Versus

DISTRICT JUDGE, MIANWALI and 2 others‑‑‑Respondents

Writ Petition No.6219 of 2004, decided on 28th April, 2004.

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

‑‑‑‑S.5 & Sched‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑-Suit for recovery of value of dowry articles and compensation for divorce‑‑‑Suit for recovery of compensation for divorce filed by wife was resisted by husband on ground that Family Court had no jurisdiction to grant that relief‑‑‑Husband had claimed that he had divorced the lady because of her bad character‑‑‑Evidence on record had shown that husband had made false accusation against the lady as he had no evidence to offer for the same‑‑‑No particulars were given as to how he had accused the lady to be of a bad character‑‑­Divorce, in circumstances was pronounced by husband without giving any reason against the lady‑‑‑Schedule appended to West Pakistan Family Court Act, 1964 was amended and item No.9 was added to the effect "Personal property and belonging of a wife" which by all means vested the lady with a right to bring an action against the husband to claim compensation for divorce pronounced upon her without any justification‑‑‑Husband became :indebted to the lady in the said amount the moment said condition became operative‑‑‑Even if such debt was conditional or contingent, would fall within the meaning of actionable claim‑‑‑Claim of the lady to said amount accruing to her upon an unjustified divorce, by all means was a property and fell within item 9 of Schedule read with S.5 of West Pakistan Family Courts Act, 1964‑‑‑Appellate Court, in circumstances had not acted without lawful authority while decreeing said claim of respondent.

Haji Malik Muhammad Qasim Joyia for Petitioner

P L D 2004 Lahore 591

Before Tassaduq Hussain Jilani, J

MUHAMMAD ARSHAD LATIF---Petitioner

Versus

CIVIL JUDGE and 3 others---Respondents

Writ Petition No.4843 of 2003, decided on 22nd April, 2004.

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

----S. 403---Maxim: "Nemo debet bis vexari pro una et eadem causa"--­Connotation---Provision of S.403, Cr.P.C. is based on the Latin maxim Nemo debet bis vexari pro una et eadem causa (no person should be twice disturbed for the same cause) which has led to the development of two common law principles of equity, namely, autre fois acquit (acquitted formally) and autre fois convict (convicted formally).

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

----S. 403---Double jeopardy, principle of---Applicability---Pre-condition enlisted:

Basically following pre-conditions are required to attract S.403, Cr.P.C:--

(i) there must have been earlier trial of the accused seeking protection against second trial for the offence charged;

(ii) the facts alleged in the earlier trial were the same sought to be proved in the second prosecution/trial;

(iii) the trial must have been conducted by a Court of competent jurisdiction; and

(iv) the trial must have ended in a judgment of conviction or acquittal.

If accused is not the same, the charge is not the same and the facts alleged are distinguishable, then the protection of section 403 Cr.P.C cannot be extended and it cannot be contended that the second trial amounts to double jeopardy.

Muhammad Ikram and others v. The State PLD 1965 (W.P.) Lah. 461 and Ch. Tanveer Khan v. Chairman, National Accountability Bureau and others PLD 2002 SC 572 rel.

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

--------S. 403---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of judicial inquiry proceedings---Double jeopardy, principle of---Maxim autre fois acquit (acquitted formally) and autre foil convict (convicted formally)---Applicability---Petitioner was complainant in the case registered against murder of three persons---Subsequently, respondent being sister of one of the victims of the incident alleged that it was a fake police encounter in which her brother was murdered by the petitioner---High Court directed the concerned Magistrate to inquire into the matter---In the inquiry conducted by the Magistrate, the petitioner was found guilty of the offence of murder as alleged by the respondent and the District and Sessions Judge directed the police authorities to register a case against the petitioner---Plea raised by the petitioner was that the case had already been decided by Court of competent jurisdiction thus the petitioner had protection of S.403, Cr.P.C.---Validity---Facts alleged were never an issue in the earlier trial---Murder charge was never framed for the murder of three persons killed in the occurrence and the petitioner and none of the persons who were sought to be made an accused in the complaint filed by the respondent were ever tried in the earlier case---Murder of three persons and the evidence sought to be produced by the respondent in the complaint was also different--­Principles of autre fois acquit (acquitted formally) and autre fois convict (convicted formally) were not attracted in the case---Order passed by the District and Sessions Judge was neither illegal nor it reflected any jurisdictional defect to call for interference in Constitutional jurisdiction of High Court---Petition was dismissed in circumstances.

Muhammad Ikram and others v. The State PLD 1965 (W.P.) Lah. 461 and Ch. Tanveer Khan v. Chairman; National Accountability Bureau and others PLD 2002 SC 572 rel.

Muhammad Shah Gul for Petitioner.

Muhammad Javed Ghani for Respondent No.4

Khurshid Anwar Bhinder, Addl. A.-G.

Date of hearing: 30th March, 2004.

P L D 2004 Lahore 599

Before Muhammad Ghani, J

MUHAMMAD FIAZ---Petitioner

Versus

GOVERNMENT OF THE PUNJAB and others---Respondents

Writ Petition No.5700 of 2002, decided on 8th March, 2004.

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

----S. 5-A [as added by Punjab Finance Act (VII of 1998)]---Constitution of Pakistan (1973), Arts.199, 4, 8, 25 & Preamble---Constitutional petition ---Vires of S.5-A, Urban Immovable Property Tax Act, 1958--­Contentions of the petitioners were that S.5-A of Urban Immovable Property Tax Act, 1958 which was the source of power for the valuation tables was bad for want of guidelines; that the Act was over-board, rather too bald; that the Act lent itself to nakedness; that the Act conferred un channeled and arbitrary discretion on the Government and being patently violative of the Preamble as well as Arts. 4, 8 & 5 of the Constitution, the same was liable to be struck down, even on the ground of excessive impermissible delegation of legislative power of Provincial Assembly of the Province of Punjab and that the valuation tables prepared pursuant to S.5-A of the Act besides being equally bad, were discriminatory in nature and were, therefore, liable to be scrapped--­Validity---If sections 3-A and 5-A are read together, the main, rather the only object sought to be achieved is the well-being of the common man for whose larger benefit, valuation tables have been prepared, without unreasonable classification; persons in similar circumstances and properties situated alike having been taxed alike---Section 5-A Urban Immovable Property Tax Act, 1958 is intra vires the legislative power of the Provincial Legislature, and neither the said Act offends against any existing provision of the Act nor is violative of any of the Fundamental Rights of the petitioners as guaranteed by the Constitution---Guidelines exist in the scheme and provisions of the Act and S.5-A do not confer blanket, unguided, uncanalised, vague and vagarious power on the Provincial Government---No valid exception can be taken to the valuation tables prepared and notified by the Government of the Punjab in the valid exercise of its power derived from S.5-A of the said Act---Section 5-A of Urban Immovable Property Tax Act, 1958 therefore, is not liable to be struck down on the ground of being ultra vires or impermissible delegation of power---Principles.

Petitioners, in the present case, have challenged the vires and constitutionality of the newly-added section 5-A of the Urban Immovable Property Tax Act (No. V of 1958), which was the source of power for the impugned valuation tables, by contending that it was bad for want of guidelines; it was over-board, rather too bald; it lent itself to nakedness; it conferred un-channeled and arbitrary discretion on the Government, and being patently violative of the Preamble of the Constitution as well as its Articles 4, 8 and 25, the same is liable to be struck down, even on the ground of excessive or impermissible delegation of legislative power of Provincial Assembly of the Province of Punjab. It was further contended that the valuation tables prepared pursuant to section 5-A, besides being equally bad, were discriminatory in nature and were, therefore, liable to be scrapped.

A perusal of section 5-A would reveal that by its enactment, Provincial Government has been authorized to prepare and notify "valuation tables" which may serve as the basis for determining the "annual value" of the lands and buildings liable to levy of property tax. Thus, the legislature has made its intention clear that the primary purpose of enactment of section 5-A is to determine the annual value of the lands and buildings, and the valuation tables to be prepared by the Government, in exercise of its power under the newly-introduced provision, are to serve as basis for such determination, the valuation tables prepared by the Government in exercise of this power have laid down criteria for determination of tax for different categories of properties, both for commercial and residential use. It has been left to the assessing authority concerned to determine as to which category a particular property situate within a particular locality belongs. Once the category in which a property falls is identified, tax has to be levied according to the uniform formula chalked out in the valuation table concerned. It is in this background that the vires of section 5-A are to be examined keeping in view the principles enunciated on the subject from time to time.

No frontal attack has been made on the competence of the Provincial Legislature to legislate on the subject. Firstly, the vires of section 5-A have been assailed on the ground that the legislature has abdicated its own legislative power and conferred on the Government an unguided, unbridled, uncanalised, vague, vagarious and blanket power to prepare and notify valuation tables, without there being any guidelines having been provided by the legislature itself for the purpose. If section 5-A falls, 'the valuation tables must fall, because the stream cannot rise higher than the source.

Legislative function consists of the determination of the legislative policy and its formulation as a binding rule of conduct and cannot be delegated by the legislature. The legislature must retain in its own hands the essential legislative functions and what can be delegated is the task of subordinate legislation necessary for implementing the purpose and objects of the Act. The increasing complexity of moderation, administration, the difficulty of passing complicated measures through the method of parliamentary debate and discussion, and the number of details and technical matters which must of necessity be provided for in statutes, have led to an increase in the practice of entrusting power to executive or other agencies to make subordinate or ancillary legislation. By entrusting that power to the Government, the legislature does not delegate its essential legislative functions. While testing the vires of a statute, no abstract standard, no general pattern and no hard and fast rule can be set down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the statute, the extent or urgency of the evil sought to be remedied thereby, the applicability of the statute in generality to all in similar circumstances or the exercise of pick and choose by it and thereby landing on discrimination, and the prevailing conditions at the time, should enter into the judicial verdict. In view of the analysis of the a provisions of sections 3, 5 and 5-A, it cannot be said that there are no guidelines in the scheme and provisions of the Act: that section 5-A confers blanket, unguided, auncanalised, vague and vagarious power on the Provincial Government. Every possible effort should be made by the Court to save the law rather than to scuttle it. Viewed in the above perspective and tested on the touchstone of principles enunciated in the decisions, particularly of the Supreme Court of Pakistan, it cannot be held that section 5-A of the Act is ultra vires any provision of the Constitution, the legislative power of the Provincial Assembly, or any other provision of the Urban Immovable Property Tax Act, 1958. Section 5-A of the Act is not liable to be struck down on the ground of impermissible delegation of power.

The question here is whether section 5-A, as introduced by the Punjab Finance Act (No.VII of 1998), offends against any provision of the Constitution or the existing Federal Statute. No frontal attack has peen made on the power of the Provincial Legislature to have enacted section 5-A. However, the contention is that whereas in the existing section 5 of die 1958-Act, a Federal Statute, it was provided that the "annual value of any land or building shall be ascertained by estimating the gross annual rent at which such land or building together with its appurtenances and any furniture that may be let for use or enjoyment with such building might reasonably be expected to be let from year to year" less allowances etc., mentioned therein, but the provisions of section 5-A making "valuation tables" as the basis for ascertaining "annual value" was a clear departure therefrom; hence not sustainable being violative of section 5 of the Act. The precise submission is that the expression used in section 5 of the Act, viz: "annual value of any land or building shall be ascertained by estimating the gross annual rent" means nothing more than the annual rent which an owner/landlord is actually receiving from the tenant and not that which a property is reasonably expected to fetch. The argument at the first blush looked to be attractive, but when examined in depth, it loses significance. Even when a vigorous break with the past and smooth reconciliation with a radical Constitutional value-set are the object, and the art of reading down and reading wide is used, being permissible by jurisprudence of statutory construction as a part of interpretational engineering, there is no reason for implying a limitation in terms as is contended for since the legislature itself has not thought it fit to impose any.

The case of the petitioners themselves is that the Urban Immovable Property Tax Rules, 1958, having been framed under section 23 of the Act, the same have statutory force. A plain reading of clause (e) of Rule 6 of the Rules makes it indubitably clear that "gross annual rent" is not restricted only to the "earned" rent, but it also includes which "could reasonably be earned" Clause (f) further clarifies that it is competent for the assessing authority to take into consideration "such other data as may be available" for the purposes of determining "the gross annual rent at which any property in the rating area may reasonably be expected to, be let from year to year, if in its opinion the average gloss annual rent of such property ascertained under clause (e) be not fair or reasonable when compared with such rent of any other property in that locality." Ex facie, the object of this provision in the Rules could not be a verbal excursion, but a meaningful exercise so that clever owners of the properties, in active connivance with their tenants, should not successfully hoodwink the assessing authority by deliberately showing the rent ridiculously low, thereby frustrating the whole intent and purpose of the statute.

Section 5-A cannot be struck down on the ground of impermissible delegation of legislative power.

Section 5-A does not offend against any other provision of the Act, let, alone section 5 and, therefore, the same cannot be scrapped.

Even when section 5-A of the Act has been held to be a good law, that does not preclude any affected person from challenging the valuation tables on the grounds that the same are arbitrary, discriminatory and unrelated to the purposes and the guidelines available in the Act. The law may be good, but if the act performed thereunder suffers from such a vice that it does not conform to the provision of law itself, the same cannot be saved. In other words, if the valuation tables intended ostensibly to combat an evil, are misused for a perverse, ulterior or extraneous object, section 5-A would not serve as a shield to the valuation tables. In such an event, even though section 5-A is upheld as a valid piece of legislation, the valuation tables cannot be saved, and will be sentenced to death.

Upon proper construction of section 5 of the Act read with rule 6 of the Rules, the "annual value" of any land or building is not necessarily the actual rent received by the owner of the land or building, and if rent is fixed bona fide by the owner and represents actual rentability of the land or building that would be an important factor for the assessing authority to consider, but the rent received by the owner cannot, in all circumstances, be a conclusive proof of previous annual value as contemplated by the Act read with the Rules. Neither section 5-A nor the impugned valuation-tables, prepared thereunder, can be struck down.

Section 5-A is a valid piece of legislation, and so are the valuation tables prepared pursuant thereto.

Out of the property tax collected from the tax-payers, only a negligible percentage is retained by the Government which can hardly be sufficient to meet the expenditures spent by the Government itself in connection with the collection thereof. The major chunk of the tax collected is diverted to the local bodies for utilisation on development programmes undertaken by such local bodies for the well-being of the common man. It is thus a beneficial legislation. While construing such a legislation, the Court has to show a complete consciousness and deep awareness of the growing requirements of the society, the increasing needs of the nation, the burning problems of the day, and the complex issues facing the people which, the legislature, in its wisdom, through beneficial legislation, seeks to solve. The judicial approach has to be dynamic rather than static, pragmatic and not pedantic, and elastic rather than rigid. The Court should take into consideration the changing trends of economic thought, the temper of the times, the living aspirations and feelings of the people. While acting as a sentinal on the qui vive to protect fundamental rights guaranteed by the Constitution to the citizens of the country, the Court has to strike a just balance between the fundamental rights and the larger and broader interests of society, so that when such a right clashes with the larger interest of the society, it must yield to the latter. Moreover, when the legislature, in its wisdom, considers necessary to solve human problems, even the text of reasonableness has to be viewed in the context of the issues faced by the legislature. Every attempt has to be made to further the social interest which the legislature proposes to promote. In such circumstances, the Court does not function in vacua, but as a part of the society trying to achieve a social concord, and to further material progress of the community as a whole. None but those who live in Ivory Towers can refuse to look at the realities of life as well as the ground realities dealing with such a case, regressive in nature. The law may be blind, but the Judges are not. Of Judges, no one should expect that they shall sit as mute spectators. Let a message go to all those who have inculcated a fixed habit of evasion of taxes, that in their wealth, weak and poor have a share They must contribute ungrudgingly towards the welfare of down-trodden classes needy, poor, deserving and common man in the society. Of late an irretrievable trend has been seen that rich have gone the richer, and the poor driven to below poverty level. It is a misnomer that only Courts administer social justice, whereas every citizen, if he is in affluent circumstances, must ensure that within his own sphere he must divert his resources towards channalising social justice Even if false notions of bigwigs may no; permit their conscience to see the common man on an even keel, at least respectable place in the society can be ensured for him. Let us not make them a symbol of contempt in the society. It is no denying the tact that the legislature is in the best position to understand and appreciate the needs of the people to brink about social reforms for the upliftment of the backward and the weaker sections of the society and for the improvement of the lot of poor people. The Court may interfere with the process only when the enactment is found to be beyond the legislative competence, because there is always 2 presumption in favour of constitutionality of a statute and the burden is on him who attacks it, to show that there has been a clear violation of the Constitutional principles.

If sections 3-A and 5-A are read together, the in, rather the only object sought to be achieved is the well-being of the common man for whose larger benefit, valuation tables have been prepared, without unreasonable classification; persons in similar circumstances and properties situated alike having been taxed alike.

Held, section 5-A of the Urban Immovable Property Tax Act (No.V of 1958) is intra vires the legislative power of the Provincial Legislature, and neither it offends against any existing provision of the Act nor is violative of any of the fundamental rights of the petitioners as guaranteed by the Constitution. Similarly, no valid exception can be taken to the valuation tables prepared and notified by the Government of the Punjab in the valid exercise of its power derived from section 5-A.

Panama Refining Co. v. Ryan 293 US 388; Schechter Poultry Corporation v. United States 295 U.S. 495; Corporation of Calcutta and another v. Liberty Cinema AIR 1965 SC 1107, New Manek Chowk Spg. & Wvg. Mills Co. Ltd. v. Municipal Corporation of the City of Ahmedabad and others AIR 1967 SC 1801; Messrs Devi Das Gopal Krishan and others v. State of Punjab and others AIR 1967 SC 1895; Messrs Galan Trading Co. (Pvt.) Ltd. v. Mill Mazdoor Sabha AIR 1967 SC 691; Fehey v. Mallonee 332 US 245; St. Louis, I.N.& S.R. Co. v. Taylor 210 US 281; Mckinly v. United States 249 US 397; Wayman v. Southard 23 U.S. 10; Cincinnati, W. & Z. Co. v. Commissioner (1852) 1 Ohio St.77; Field v. Clarke, 143 US 649; J.W. Hampton v. United States (1927) 72 Law Ed 624 = 276 US 394; United State v. Shreveport Grain Elevator & Co. 287 US 77; United States v. Rock Royal Cooperative Inch. 307 US 533; Sunshine Anthractie Coal Company v. Adkins 310 US 381; Yakus v. United-States 321 US 414; Mutual Film Corporation v. Idustrial Commission of Ohio 236 US 230; American Trucking Association v. United States 344 US 298; Arisona v. California 373 US 546; Minnesota Ex el. Railroad & Warehouse Commission v. Chicago, Milwankee and St. Paul Railway Co. 38 Minn 28 = 137 NW 782; American Jurisprudence 2nd and Corpus Juris Secondum, S.43; 42 American Jurisprudence, p.336; 16-Corpus Juris Secondum, p.562; Administrative Law and Government, 1960 Edn., p.55; (1916) 41 ABAR 368, AIR 1951 SC 332; Harishankar Bagla v. State of Madhya Pradesh AIR 1954 SC 465; Raj Narain Singh Chairman, Patna Administration Committee AIR 1954 SC 569; Bhatnagars & Co. Ltd. v. The Union of India and others AIR 1957 SC 478; Western India Theatres Ltd. Municipal Corporation Poona AIR 1959 SC 586; Hamdard Dawakhana (Waqf), Lal Khan v. Union of India AIR 1960 SC 554; Vasantla Maganbhat Sanjanwala v. State of Bombay AIR 1961 SC 4; Swadeshi Cotton Mills Co Ltd. v. State Industrial Tribunal U.P. and others AIR 1961 SC 1381; Jyoti Pershad v. Administrator for the Union Territory of Delhi AIR 1961 SC 1602; Banarsi Das Bhanot v. State of Madhya Pradesh AIR 1958 SC 909; Municipal Board, Hapur v. Raghuvendra Kripal AIR 1966 SC 693; Municipal Corporation of Delhi v. Birla Cotton Spinning and Weaving Mills AIR 1968 SC 1232; Hodge v. The Queen (1884) 9 AC 117; East and West Steamship Company v. Pakistan PLD 1958 SC (Pak.) 41; Sheikh Muhammad Ismail and others v. The Chief Cotton Inspector and others PLD 1961 SC 178; Province of East Pakistan v. Sirajul Haq Patwari PLD 1966 SC 854; Zaibtun Textile Mills Ltd. v. Central Board of Revenue PLD 1983 SC 358;Mian Anwar-ul­Haq Ramay v. Federation of Pakistan 1992 MLD 2135; Elahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582; Emirates Bank International; PJSC v. Excise and Taxation Officer and another PLJ 2002 Kar. 84; Weems v United States (1909) 54 L.Ed., 793, p.801; Rafia Ahmad v. Excise and Taxation Officer 1992 SCMR 1941; Lyallrur Cotton Mills Ltd.. v. The Commissioner, Sargodha Division and one her 1976 SCMR 615; Federation of Pakistan v. Muhammad Saifullahnhan PLD 1989 SC 166 and Golden Industries Ltd. v. Province of Sindh PLD 1983 Kar. 76 analysed.

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

----Arts. 77, 4, 8, 18, 24 & 25---Tax to, be levied by law only---Broad­ based principles.

Elahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582 quoated.

(c) Interpretation of statutes--

----Every possible effort has to be made by the Court to save the law rather than to scuttle the same.

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

----Art. 199---Constitutional petition ---Vires of a statute---Judicial approach---Principles.

Alamgir for Petitioners.

Syed Shabbar Raza Rizvi, A.-G., Punjab assisted by Ch. Aamir Rehman, Addl. A.-G., Tahir Mehmood Gondal, A.A.-G. and Mrs. Erum Sajjad Gul for Respondents.

M. Saleem Sahgal for Respondent/Department.

Dates of hearing: 9th to 13th, 16th to 20th and 23rd to 27th February, 2004,

P L D 2004 Lahore 668

Before Tassaduq Hussain Jilani, J

FAISAL AFZAL SHEIKH---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and others---Respondents

W. Ps. Nos. 13322 and 13323 of 2003, decided on 11th March, 2004.

(a) West Pakistan Family Court Act (XXXV of 1964)---

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Suit for recovery of dowry articles- --Decree for payment of money in lieu of dowry articles passed by Family Court was upheld by Appellate Court---Validity---Defendant had not challenged list of articles annexed with plaint---Value of articles as stated by witnesses of plaintiff had not been challenged by defendant in cross-examination--­Defendant had not denied factum of car brought by plaintiff alongwith ornaments at the time of marriage---Plaintiff had alleged in plaint sale of car by defendant and misappropriation of its sale proceeds by him--­Defendant had not produced evidence in rebuttal to show that plaintiff herself had sold car ---In absence of such evidence, concurrent findings of fact of Courts below could not be interfered with in Constitutional jurisdiction of High Court------Defendant had not prayed in Constitutional petition for return of such articles---If defendant wanted to return such articles, there was nothing to prevent him---Courts below had taken note of every material evidence brought on record---High Court dismissed Constitutional petition in circumstances.

Muhammad Akram v. Mst. Tasnim Akhtar 1987 CLC 106 and Major Milton Godwin Shamas v. Mst. Crenza Samuel NLR 1985 SCJ 128 rel.

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

----Art. 133---Cross-examination---Where certain part of examination-in­-chief was not challenged, then same would be deemed to have been admitted as true by other party.

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

----Art. 199---Finding of fact arrived at by Courts below---Interference by the High Court---Validity---High Court in exercise of Constitutional jurisdiction could not sit as a Court of appeal against such finding.

Ijaz Hussain Chadhar for Petitioner.

Ahmad Waheed Khan for Respondent No.3.

Date of hearing: 3rd March, 2004.

P L D 2004 Lahore 673

Before Tassaduq Hussain Jilani, J

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman, WAPDA House, Lahore and 2 others---Petitioners

versus

Chaudhry MUHAMMAD HANIF and 2 others---Respondents

W.P. No.990 of 1995, decided on 22nd April, 2004.

(a) Electricity Act (IX of 1910)---

----Ss. 26(6) & 26-A---Constitution of Pakistan (1973), Art. l99--­Constitutional petition---Advisory Board of the Government allowed respondent's application filed under S.26(6) of Electricity Act, 1910 on the ground that, the electricity meter installed at the respondent's premises was fast and directed that the excess amount charged through electricity bill by the Authority eversince the installation of the said meter should be refunded---Authority through Constitutional petition challenged such order of the Advisory Board---Validity---Respondent had never challenged the accuracy of the meter since its installation and had not made any complaint to Authority in this regard until the reference was made under S.26(6) of the Electricity Act, 1910---Report of technical committee was on record which proved that the meter way tampered with---In the presence of the said report it was not a simple case of a defective meter to be pursued under S.26(6) of the Act, but action had to be taken under S.26-A of the Act for which remedy was the civil Court---Advisory Board had not correctly appreciated the point that the jurisdictional facts were non-existent and proceedings under S.26(6) of the Act were not maintainable---Advisory Board, thus, did not appreciate the import of S.26(6) of the Act, ignored the material evidence available on record and passed the order without jurisdiction--­Petition was allowed in circumstances.

Water and Power Development Authority and others v. Mian Muhammad Riaz and another PLD 1995 Lah. 56 ref.

(b) Electricity Act (IX of 1910)---

----Ss. 26(6) & 26-A---Comparison of Ss.26(6) and 26-A, Electricity Act, 1910---Provisions of Ss.26(6) and 26-A of Electricity Act, 1910, catered for two different situations: If it was a case of defective meter and issuance of incorrect bill, the case would fall within S.26(6) of the Act and a remedy would be available before the Electric Inspector; however, if it was dishonest abstraction on account of any of the modes enumerated in S.26-A of the Act, the remedy would lie with the civil Court.

Muhammad Ilyas Khan for Petitioners.

Mian Mehmood Rashid for Respondents.

Dates of hearing: 24th, 25th and 26th March, 2004

P L D 2004 Lahore 686

Before M. Javed Buttar, Ch. Ijaz Ahmad and Syed Jamshed Ali, JJ

Messrs CRESCENT JUTE PRODUCTS LTD. through Director---Petitioner

Versus

GOVERNMENT OF THE PUNJAB, AGRICULTUE DEPARTMENT through Secretary, ---Respondents

W. Ps. Nos. 16590, 18549, 13676, 19732, 13677 of 1998, 8137, 8138, 18550, 20805, 20806, 1466, 15800 of 1999, 4866, 4867 of 2000, 12582, 7247, 17314 of 2002, decided on 17-6-2004.

(a) Punjab Agricultural Produce Markets Ordinance (XXIII of 1978)---

----S. 2(b)---Contention was that phrase "any place in the notified market area" in S.2(b), Punjab Agricultural Produce Markets Ordinance 1978 be read as a "place in the market in the notified market area"---Validity--­Nothing could be added to a statute to re-write the same because it would be a plain violence to the enactment and against accepted principles of interpretation---Had the intention of the legislature been to confine it to the "market", it would have been so stated by the Legislature.

(b) Interpretation of statutes---

---- Nothing could be added to a statute to re-writ the same because it would be a plain violence to the enactment and against accepted principles of interpretation.

(e) Punjab Agricultural Produce Markets Ordinance (XXIII of 1978)---

----Ss. 2(b), 6 & 19---"Ddaler"---Levy of market fee ---Scope---Any place referred to in S. 2(b), Punjab Agricultural Produce Markets Ordinance, 1978 could be the premises of a mill or any other place set up for the purchase or sale of agricultural produce by any manufacturing unit---Section 6 of the Ordinance had made it optional for a person to apply for a licence to work as dealer---Provisions of S. 6 however, become mandatory the moment a person indulged-in sale or purchase of an agricultural produce---Liability to pay market fee was that of a "dealer" and not-necessarily of a dealer who had obtained a licence under S. 6---Apart from the dealers licence contemplated by S. 6 of the Ordinance, licences were issued to a number of other persons such as the brokers, weighment, measures, surveyors, warehouse men, changer, paledars, boriots, tolas, takriwala, rehriwala under S.9 f the Ordinance but no market fee was payable by them---Principles.

The definition of the expression "dealer" in Punjab Act V of 1939 was wider. It contemplated setting up or establishing any place within the notified market areas for sale and purchase or purchase and sale of such agricultural produce. The words in the definition of `dealer' in section 2(aa) of Act No. V "notified under' subsection (1) of section 4 or purchases or sells such agricultural produce" were, omitted from the definition of "dealer" in Punjab Ordinance XXIII of 1978. However, the omission of the aforesaid words from section 2(b) of Punjab Ordinance XXIII is of no significance. "Any place" referred to in section 2(b) of Ordinance No XXIII, could, therefore, be the premises of a mill or any other place set up for the purchase or sale of agricultural produce by any manufacturing unit. As far as section 6 is concerned, its language makes it optional for a person to apply for a licence to work as a dealer. As long as he is not engaged in sale or purchase of agricultural produce, he will be under no obligation to obtain a licence but the moment a person indulges in sale or purchase of an agricultural produce, provisions of section 6 become mandatory. It may also be noted here that liability to pay market fee is that of a "dealer" and not necessarily of a dealer who has obtained a licence under section 6. This appears to be reason that while section 19 of Punjab Act of 1939 provided levy of market fee on a licensee section 19 of Ordinance XXIII of 1978 makes a "dealer" liable There could be yet another reason for the amendment, in section 19 of Ordinance XXIII of 1978 i.e. that apart from the dealers licence contemplated by section 6, licences are issued to a number of other persons such as the brokers, weighment, measurers, surveyors, warehouse men, changer, paledars, boriots, tolas, tnkeriwala, rehriwala under section 9 but no market fee is payable by them.

(d) Punjab Agricultural Produce Markets Ordinance (XXIII of 1978)---

----S. 9---Market Committee, duties of---Market Committee shall enforce the provisions of the Ordinance and the Rules and bye-laws made thereunder in the notified market area and on establishment of a market to provide facilities for the persons visiting it---First part of S. 9 clearly contemplates that, the provisions of the Ordinance and the rules will be enforceable and applicable even when no market is established.

(e) Punjab Agricultural Produce Market (General) Rules, 1979---

---R. 79--Punjab Agricultural Produce Markets Ordinance (XXIII of 1978), S.19---Object and purpose of R. 79 Punjab Agricultural Produce Market (General) Rules, 1979---Conduct of business---Rule 79 though contemplates a restriction on sale or purchase of agricultural produce in the market premises, yet the Rule is only regulatory and prospective in operation and is not repugnant to Punjab Agricultural Produce Markets Ordinance, 1978---Object of the Rule appears to be not to permit parallel markets in the notified market area---Rule 79 does not affect the liability of payment of market fee under S. 19 of Punjab Agricultural Produce Markets Ordinance, 1978.

(f) Punjab Agricultural Produce Markets Ordinance (XXIII of 1978)---

----S. 2(b)(a) & 19---Punjab Agricultural Produce Markets (General Rules, 1979, Rr.79 & 8---Constitution of Pakistan (1973), Art. 199---Constitutional petition---"Agricultural produce"---"Dealer"--­Definitions---Liability to pay market fee---Scope---Petitioners running manufacturing units involving sugarcane, cotton and jute which are "agricultural produce" as defined in S. 2(a) of the Punjab Agricultural Produce Markets Ordinance 1978 are "dealers" as defined in S. 2(b), Punjab Agricultural Produce Markets Ordinance, 1978---Liability to pay market fee is not dependent upon the purchase places being licensed or approved or not, but on the purchase being within a notified market area.

(g) Punjab Agricultural Produce Markets Ordinance (XXIII of 1978)---

----S. 9(1)---Punjab Agricultural Produce Markets (General) Rules, 1979, R. 79---Duties of Market Committee---Conduct of business---Facilities are to be provided in a market for the persons visiting the same in connection with purchase and sale etc. of agricultural produce---One of the purposes for which market fund created under S. 20 of the Ordinance could be spent is advance of loans to the other Market Committees in the District for carrying out development projects with the previous sanction of the Government---Market Committee is therefore rendering service to satisfy the principle of quid pro quo.

(h) Punjab Agricultural Produce Markets Ordinance (XXIII of 1978)---

----Ss 2(a)(d) & 19---Constitution of Pakistan (1973), Art. 142(c) read with Federal Legislative List Items No. 48, 49 & 54---Agricultural produce--Levy of market fee---Subject-matter of the imposition of fees on the agricultural produce does not fall substantially within any of the Legislative List, therefore, in view of Art. 142(c) of the Constitution, Provincial Assembly could legislate/make the laws with respect to matters not enumerated in either the Federal Legislative List or the concurrent Legislative List.

(i) Constitution of Pakistan (1973)---

---Art. 189---Decision of Supreme Court of Pakistan to the extent same decides a question of law or is based upon or enunciates a principle of law is binding on all Courts and authorities---Decision on a question of law by the Supreme Court even in per incuriam was binding on the High Courts---What is binding, therefore, is a decision on a question of law--­Decision referred to in Art. 189 is not necessarily one given after the grant of leave.

(j) Punjab Agricultural Produce Markets Ordinance (XXIII of 1978)---

----Preamble---West Pakistan Sugar Factories Control Act (XXII of 1950), Preamble---Sugarcane Act (XV of 1934), Preamble---Both West Pakistan Sugar Factories Control Act, 1950 and Sugarcane Act, 1934 do not operate to exclude applicability of the Punjab Agricultural Produce Markets Ordinance, 1978.

(k) Punjab Agricultural Produce Markets Ordinance (XXIII of 1978)---

----Ss. 19 & 35---Levy of market fee---Contention was that in the absence of Rules framed under S. 19 of the Punjab Agricultural Produce Markets Ordinance, 1978 the market fee could not be levied ---Validity-­No rules, held, were required to be separately framed under S. 19 of the Ordinance---Principles.

The contention that in the absence of rules framed under section 19 of Ordinance the market fee could not be levied, has no merit because the rule making power is conferred on the Punjab Government by section 35 of Ordinance and clause (XIX) specifically authorizes "prescribing any matters in respect of which fee shall be payable under the Ordinance, fixation of the amount of such fee and mode of payment and recovery thereof". Section 19 only subjects it to the framing of the rules by the Government and not necessarily u separate set of rules under section 19.

(l) Punjab Agricultural Produce Markets Ordinance (XXIII of 1978)---

----S. 19(c)---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Levy of market fee on an agricultural produce extracted after being subjected to manufacturing or processing--­Principally, if fee is paid on sugarcane in a notified market area of a particular Market Committee then the product i.e. sugar will not be liable to any fee in the same notified market area---Such being, however, a question of fact, could not be determined in Constitutional proceedings---If any of the petitioners claimed exemption from payment of fee on the basis of S. 19(c) of the Ordinance, he would have to agitate the issue before the concerned authorities---Principles.

In the present case the departmental representative in attendance on behalf of the Market Committee explained that in case no market fee was paid on the purchase of sugarcane only then the product will be liable to levy of fee. Under section 19(c) fee is not leviable in respect of any "subsequent transaction, sale or purchase within the same notified area of an agricultural produce extracted after being subjected to manufacturing processing". What is prohibited by section 19(c) is the fee on the resale and purchase of agricultural produce within the same notified market area. In principle High Court agreed that in case market fee is paid on sugarcane in a notified market area of a particular Market Committee then the product i.e. sugar will not be liable to any fee in the same notified market area. This is however, a question of fact and cannot, be determined in writ proceedings. If any of the petitioners claims exemption from payment of fee on the basis of section 19(c) of Ordinance XXIII, he will have to agitate the issue before the concerned authorities.

(m) Punjab Agricultural Produce Markets Ordinance (XXIII of 1978)---

----S. 19---Punjab Agricultural Produce Markets (General) Rules, 1979, R.36(8)---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Levy of market fee---"Buying" and "selling" in the notified market area attracts levy of market fee---Terms "buying" and "selling", have not been defined in the Ordinance---Rule 36(8), Punjab Agricultural Produce Market (General) Rules, 1979 provides as to when agriculture produce shall be deemed to have been "bought" or "sold"---While clause (a) of the said Rule operates independently, clauses (b)(c) referring to the weighment and delivery of agricultural produce in pursuance of a sale agreement do not operate independently--­If neither of the three eventualities as described in R. 36(8), takes place within the notified market area, the market fee will not be levied, however, such question will require a factual inquiry and to claim exemption from market fee on the basis that agricultural produce is not "bought or sold" within the notified market area, the petitioners have to satisfy the concerned authorities.

(n) Punjab Agricultural Produce Markets (General) Rules, 1979---

----R. 36(8)---Punjab Agricultural Produce Markets Ordinance (XXIII of 1978), Ss. 19 & 35---Levy of market fee---Vires---Market fee is leviable when the agricultural produce is bought or sold---Rule 36(8) of the Rules, however, has created a legal fiction as to when an agricultural produce is bought or sold---Rule 36(8) is a subordinate legislation but is backed by S. 35, Punjab Agricultural Produce Markets Ordinance, 1978---Rule 36(8), Punjab Agricultural Produce Markets (General) Rules, 1979 is only explanatory as to when sale and purchase for the purpose of Punjab Agricultural Produce Markets Ordinance, 1978 shall be deemed to have taken place and is not ultra vires of S. 19, Punjab Agricultural Produce Markets Ordinance 1978---Clause (a) of R.36(8) operates independently, cls.(b) & (c) of the said rule referring to the weighment and the delivery of agricultural produce in pursuance of a sale agreement do not operate independently.

(o) Punjab Agricultural Produce Markets (General) Rules, 1979---

----R. 36(8)---Punjab Agricultural Produce Markets Ordinance (XXIII of 1978); S. 19 Levy of market duty---Weighment of agricultural produce in pursuance of an agreement, both being within the notified area, is part of delivery and, therefore, does not offend against the expression "bought or sold"---Rule 36(8) therefore is not ultra vires of S. 19 of the Ordinance.

(p) Punjab Agricultural Produce Markets (General) Rules, 1979--

----R. 79---Restriction on sale and purchase of agricultural produce within the market premises and not outside the same has not the effect of denuding the concerned Market Committee of its powers to impose market fee on the transactions of sale and purchase of agricultural produce in the notified market area.

(q) Punjab Agricultural Produce Market Ordinance (XXIII of 1978)---

---Ss. 2(d) & 19---Punjab Agricultural Produce Markets (General) Rules, 1979, R.36(8)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Levy of market fee---Validity---High Court while dismissing the Constitutional petitions observed that if any of the petitioners claimed available exemption for levy of market fee on the basis of S. 19 of the Ordinance or on the ground that sale purchase did not take place in the notified area, they would have to, raise their claims before the concerned Market Committee, and they would be entitled to hearing and production of such evidence as they might like to adduce.

Solvex Pakistan Limited v. Market Committee Multan 1999 CLC 49; Agricultural Market Committee v. Shalimar Chemical Works Ltd. AIR 1997 SC 2502; Black's Law Dictionary 5th Edn; Law Lexicon and Judicia Dictionary by Venkataramaiya's 10th End.; Shorter Oxford English Dictionary 3rd Edn.; Administrator Market Committee Kasur and 3 others. v. Muhammad Sharif 1994 SCMR 1048; Kewal Krishan Pera. v. State of Punjab AIR 1980 SC 1008; Nishat Tek Limited, Lahore v. The Federation of Pakistan through Secretary, Education, Islamabad and 3 others PLD 1994 Lah. 347; Messrs Saif Textile Mills Limited v. Pakistan through Secretary, Finance (Finance Division), Islamabad and 3 other .PLD 1998 Pesh. 15; Sheikh Muhammad Ismail & Co. Ltd., Lahore v. The Chief Cotton Inspector, Multan Division, Multan and others PLD 1966 SC 388; Sohail Jute Mills Ltd. and others v. Federation of Pakistan through Secretary, Ministry of Finance and others PLD 1991 SC 329; Ravi Textile Mills Ltd. v. Federal Government of Pakistan through its Secretary, Ministry of Education, Islamabad and 2 others 1995 MLD 243; Sind Glass Industries Limited v. Chief Controller of Import and Export, Islamabad and 2 others 1990 CLC 638; Messrs Nishat Mills. v. Federation of Pakistan and others 1997 MLD 314; Shahtaj Sugar Mills Limited v. Province of Punjab through Secretary, Food, Civil Secretariat, Lahore and 3 others 1998 CLC 1912; Biafo Industries v. Federation of Pakistan 2000 CLC 170; Collector of Customs and others v. Sheikh Spinning Mills 1999 SCMR 1402; Government of North-West Frontier Province through Secretary Agriculture and others v. Rahimullah and others 1992 SCMR 750; Messrs Fatima Enterprises Ltd. v. The Federation of Pakistan through Secretary, Education, Ministry of Education, Islamabad and others 1999 MLD.2889; Matiari Sugar Mills v. Government of Sindh PLD 1999 Kar. 424; Hyesons Sugar Mills Ltd., Karachi v. Market Committee, Khanpur and another PLD 1976 Lah. 1334; Messrs Kohinoor Sugar Mills Ltd., Lahore v. Market Committee, Jauharabad, District Sargodha and another PLD 1974 Lah. 1284; Shah Muhammad and 4 others v. Kasur Market Committee, Kasur and 12 others PLD 1973 Note 142 at p.215; Province of West Pakistan v. Muhammad Hayat and 31 others PLD 1980 BJ. 23; Ch. Muhammad Ismail v. D.C. District Collector, Muzaffargarh and another 2000 CLC 1296; Noon Sugar Mills v. Market Committee and others PLD 1989 SC 449; Messrs Pfizer Laboratories v. Federation of Pakistan PLD 1998 SC 64; Pakistan Flour Mills Association v. Government of Sindh 2003 SCMR 162; Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213; Kh. Ahmed Tariq Rahim v. The Federation of Pakistan Ministry of Law and Parliamentary Affairs and another PLD 1992 SC 646; Khawaja Muhammad Yousuf v. Federal Government 1999 SCMR 1516; The Province of East Pakistan and others v. Siraj-ul-Haq Patwari and others PLD 19,66 SC 854; Pir Rashid-ud-Doola v. The Chief Administrator Auqaf West Pakistan PLD 1971 SC 401; Hari Krishna v. Union of India AIR 1966 SC 619; Federation of Hotel and Resturant v. Union of India AIR 1990 SC 1637; Messrs Rashid Bhais (Pvt.) Ltd. Company v. Secretary Government of Punjab E.T.O. and others PLD 2000 hah. 20; Messrs Pakistan Telecommunication Company Ltd. through General Manager (South) v. Government of the Punjab through Secretary, Excise and Taxation Lahore and another 2002 CLD 1010; Adam Ghee Sugar Mills Ltd. v. Market Committee Bhakkar and another PLD 1977 Lah. 115; Constitutional Law of Pakistan by Shabbar Raza Rizvi p.671, Vol. 1; Messrs Prame Chand Ram Lal v. The Punjab State 1970 PLJ 432; Market Committee Dhariwal v. British India Corporation Ltd. 1976 PLJ 522; Dr. Muhammad Sharif Mutaqi and 10 others v. Muslim Insurance Co. Ltd. Lahore PLD 1973 Notes 75 at page 78; Messrs Fabric Electric Lamps Manufacturing Ltd. and others v. Chairman District Council, Peshawar and others 1986 CLC 533; Dr. Mehmood-ur-Rehman Faisal v. Secretary Ministry of Law, Justice and Parliamentary Affairs, and 6 others PLD 1992 FSC 195; Mirpur Khas Sugar Mills Ltd. v. Government of Sindh through Chief Secretary Sindh and 2 others 1993 SCMR 920 and Bhawani Sugar Mills Ltd. v. Market Committee, Badin and another PLD 1983 Kar. 1 and Ghaus Muhammad v. The State and another PLD 1978 Lah. 1235 ref.

Syed Mansoor Ali Shah assisted by Ms. Saima Amin Khawaja for Petitioner.

Syed Shabbar Raza Rizvi, A.-G. Punjab assisted by Tahir Mehmood Gondal, A.A.-G. and Ms. Erum Sajjad Gul for Respondent No. 1.

Badar-ul-Amir for Respondent No.2.

Dates of hearing: 31st October, 2003, 13th February, 5th, 15th, 16th, 17th, 18th, 29th, 30th March, 2004, 1st, 12th, 14th, 15th, 19th and 20th April, 2004.

P L D 2004 Lahore 717

Before Syed Zahid Hussain, J

Mst. KISHWAR BIBI and others---Petitioners

Versus

Mst. FAZAL BIBI and 2 others---Respondents

Civil Revision No.748 of 2000, heard on 19th May, 2004.

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

----O. XLI, Rr.16 & 30---Specific Relief Act (I of, 1877), S.42--­Affording opportunity of hearing to parties in appeal, requirement of--­Suit for declaration filed by the plaintiffs, to declare certain mutations in favour of the defendants based on a gift deed to be forged documents, was dismissed by the Trial Court---Appeal preferred by the plaintiffs against the said dismissal was successful---Contention of the defendant was that they were not afforded opportunity of hearing by the Appellate Court and the matter was hurriedly disposed of and as such material illegality and irregularity was committed by the Appellate Court in deciding the appeal---Validity---Record showed that the Appellate Court proceeded to decide the appeal on merits without hearing the defendants, so much so, that even the written arguments of the defendants were not on the file---Such a disposal of appeal was not contemplated by law as the procedure for hearing of appeals as provided under O.XLI, Rr.16 & 30, C.P.C. was to be followed in deciding the same---Word `hearing' appearing in O.XLI, Rr.16 & 30, C.P.C.---Interpretation---Disposal of appeal in the circumstances, was without hearing of the defendants and thus the impugned judgment of the Appellate Court was set aside.

(b) Administration of justice--

----Justice delayed is justice denied, but there is equally the other aspect of the matter that some times justice hurried is justice buried---Court being charged with the duty of administering justice is expected to maintain a balance, so that neither the matter is delayed unnecessarily not it is disposed of such a hasty manner that it may be violative of basic principles of law.

Ali Akbar Qureshi for Petitioners.

Aslam Zia and Mian Ghulam Rasool for Respondents Nos. 1 and 2.

Date of hearing; 19th May, 2004.

P L D 2004 Lahore 722

Before Ali Nawaz Chowhan, J

NATIONAL FIBERS LTD. and another---Plaintiffs

Versus

PAKISTAN through Secretary Privatization Commission, Ministry of Finance, Islamabad---Defendant

C.O.S. No.20 of 2000, heard on 6th May, 2004.

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

----S. 20 & 30---Application to file arbitration agreement in the Court--­Setting aside of award---Reference in an agreement to arbitration of a dispute was primarily a bilateral act and the award itself was also an agreement enforceable in law---Court, before whom an award was submitted, would not act as a Court of appeal for examining the validity of the award as it enjoyed a limited scope for exercising its powers for setting it aside on the grounds given by Arbitration Act, 1940 itself i.e. misconduct on the part of Arbitrator or any illegality committed by him---Court could not re-appraise the evidence, rather the error or infirmity, if any, should appear floating on the surface of the award and should be discoverable by going through it---Where reasons recorded by Arbitrator were impugned as perverse, the perversity in the reasoning had to be substantiated with reference to the material considered by Arbitrator in the award.

Champsey Bhara and Company v. Jivrajh Balloo Spinning and Weaving, Company Ltd. AIR 1923 PC 66; Joint Venture KG/Rist v. Federation of Pakistan PLD 1996 SC 108; Khan Brothers and Associates v. Director-General Foods, Government of Pakistan 1998 CLC 1671; Zakaullah Khan v. Federation of Pakistan PLD 1998 Lah. 132; World Circle Limited v. State Cement Corporation of Pakistan (1997 CLC 212; Quality Builders Ltd. v. Karachi Metropolitan Corporation 1999 CLC 1777; Ghee Corporation of Pakistan (Pvt.) Ltd. v. Broken Hill Proprietary Co. Ltd. PLD 1999 Kar. 113; Abdullah Traders v. Trading Corporation of Pakistan 1999 CLC 2047; Income Services v. Sui Gas Transmission PLD 1993 Kar. 429; burga Parasad Chamina's case PLD 1949 PC 187; S. Zahir Hussain v. Province of Sindh 1981 CLC 379; -Premier Insurance Co. v. Aijaz Ahmad 1981 CLC 3.11; Ghulam Abbas v. Karachi Port Trust PLD 1987 SC 393 and PLD 1987 SC 461; Chatur Bugh v. Raghubeer Dayal 12 MIA 112 = 1 Ind. Jur. N.S.69 = 2 Suth PCJ 390; Sheo Narain v. Bala Rao AIR 1932 All. 348 and Chatur Bugh v. Raghubee Dayal AIR 1914 All. 314 ref.

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

----Ss. 15, 17, 20, 21 & 30---Civil Procedure Code (V of 1908), O.XXIII, R.I---Filing of arbitration agreement in the Court---Setting aside of award---Withdrawal of suit---Making award rule of the Court---'Contents of the award did not show any infirmity and it was neither sketchy nor presumptive on the part of Arbitrator---In fact act of retraction simplicitor on the part of plaintiffs reflected a conduct showing their inability to substantiate the objections on merits---Unsuccessful attempt of withdrawal of the suit had been made by plaintiffs to make the award controversial---Such concession could not be allowed to plaintiff---Held, that award would remain enforceable and suit could not be withdrawn---Award having been made rule of the Court on the basis of which a decree was to be prepared for further action in accordance with law which would burden plaintiffs with consequences, pecuniary or otherwise.

Mumtaz Hussain Malik for Plaintiffs.

Raja Muhammad Akram for Respondent.

Date of hearing: 6th May, 2004.

P L D 2004 Lahore 726

Before Tanvir Bashir Ansari, J

IBRAR --- Petitioner

Versus

SAFDAR HUSSAIN MALIK, JUDGE, A.T.A. Court II, RAWALPINDI and 3 others---Respondents

Writ Petition No. 1460 of 2003, heard on 10th May. 2004.

Penal Code (XLV of 1860)---

----Ss. 302/324/148/144---Anti-Terrorism Act (XXVII of 1997) Ss. 6, 7 & 23-- Constitution of Pakistan (1973), Art. 199-Constitutional petition---Transferring case from the Court of Judge, Special Court, Anti­ Terrorism, to Ordinary Court---Case initially was lodged under provisions of Penal Code, but occurrence having taken place in Mosque, D.S.P. (Legal) added S.7 of Anti-Terrorism Act, 1997 and case was transferred to Special Court Anti-Terrorism---Application of accused for transferring case from Court of Special Judge of Anti-Terrorism to Ordinary Court was dismissed by Special Court---Deceased allegedly was done to death for motive that he was allegedly involved in murder of father of accused and later on was acquitted---Alleged motive of occurrence had shown that case was of personalized enmity between complainant party and accused party---Same could not, in circumstances be said with any certainty that accused party had deliberately chosen the venue of Mosque or the time of Jumma prayers for committing said offence---Any act of violence whether it involved single or multiple murders, had to be viewed in the context of purpose and object of lave which governed the trial of such offence---Law had certainly created and maintained a distinction between the act of terrorism which in its nature inhered in a deliberate element and .purpose of striking terror in the mind of general public for the ulterior and conjoint purpose as enunciated in S.6(1)(b) of Anti-Terrorism Act, 1997 or disjointly as specified in S.6(1)(c) of said Act---Act of terrorism caused by an unknown hand and for apparently unknown reasons and causing wide spread damage to life, limb or property, could justifiably be called a terrorist act subject to provisions of Special Law--Act to fall within the purview of Anti-Terrorism Act, 1997, must be an offence with the primary object of causing panic amongst the general public or a particular section of Society in order to restrain them from going about their normal and routine activity or to, achieve any object enunciated in S. 6(1)(b) of said Act,--Where however, an act stemmed from enmity which was identifiable between tile definite set of complainant arid accused, the panic or terror as a consequence of said act would not by itself be sufficient to bring the said act within the pale of Anti-Terrorism Act, 1997---Determining factor would not be the criminal act itself, but the fact whether it was coupled with mense rea, intention or object to commit an act of terrorism---Was rather premature to assume that accused had purposely selected venue of Mosque and timing of Jumma prayers for taking revenge against deceased---Reasons addressed for attraction of Ss.6 & 7 of Anti-Terrorism Act, 1997 to the case, were based on conjectures surmises and assumptions which were not supported by any material on record---Impugned order of Judge Special Court, Anti-Terrorism, Whereby application of accused was dismissed, was set aside by High Court holding that' case against accused, was liable to be transferred to ordinary Court for trial.

Ch. Bashir Ahmad v. Naveed Iqbal and 7 others PLD 2001 SC 521 and Muhammad Mushtaq v. Muhammad Ashiq and others PLD 2002 SC 841 ref.

Malik Rab Nawaz Noon for Petitioner.

Sardar M. Ishaque Khan for the Complainant.

Raja Saeed Akram, A.A.-G.

Date of hearing: 10th May, 2004.

P L D 2004 Lahore 733

Before Tassaduq Hussain Jilani and Muhammad Sayeed Akhtar, JJ

PROVINCE OF PUNJAB and others---Appellants

Versus

Miss ANAM ALI BHATTI and others---Respondents

I.C.A. No.136 of 2004 and W.P. No.2564 of 2004; heard on 15th April, 2004.

(a) Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976)---

----Ss. 3, 10, 11, 12 & 21---Federal Board of Intermediate and Secondary Education Act (LXVIII of 1975), Ss. 3 & 4---Federal Supervision of Curricula Text Books and Maintenance of Standards of Education Act (X of 1976), Preamble & S. 3---Constitution of Pakistan (1973), Arts. 25, 37, 143 & 199---Examination Reforms and Internal Assessment System for Classes 9, 10, 11 & 12 (2002-2003)---Intra-Court appeal--­Contentions were that reforms introduced in Punjab did not provide any choice in answering the questions and each candidate was to be tested through uniform question papers and the Federal Board of Intermediate and Secondary Education provided choice in answering the questions; such was a disparity and discrimination between the candidates registered and appearing in the forthcoming examinations of the Boards in the Punjab and the Federal Board which was violative of Art. 25 of the Constitution---Validity--- Punjab Board of Intermediate and Secondary Education Act, 1976 and Federal Board of Intermediate and Secondary Education Act; 1975 were two independent statutes having no conflict with each other, Article 143 of the Constitution, therefore, was not attracted as students had no vested right to be governed by any particular statute or set of rules---Boards had been vested with powers to regulate conduct of examinations, they enjoyed complete autonomy in that regard and Legislature did not intend that all the Boards of Intermediate and Secondary Education in whole of the country should follow the Scheme/set of Rules framed by Federal Boards of Intermediate and Secondary Education regarding setting question papers and Examination Reforms---Internal Assessment System approved by the Government of Punjab was necessary to improve standard of excellence of different examinations---Candidates appearing in the examinations to be held by the Punjab Boards were being treated alike and no discrimination among them had taken place---No law or rules existed under which the Punjab Boards could be directed to frame their question papers as per the policy of the Federal Board---Principles.

The grievance in the present case was that the reforms introduced in Punjab do not provide any choice in answering the questions. Each candidate is to be tested through uniform question papers. Whereas the Federal Board of Intermediate and Secondary Education Islamabad provides choice in answering the questions. It is a disparity and discrimination between the candidates registered and appearing in the forthcoming examinations of the Boards of Intermediate and Secondary Education, Punjab and the Federal Board of Intermediate and Secondary Education, Islamabad and that the same is violative of Article 25 of the Constitution of Islamic Republic of Pakistan.

All the Boards of Intermediate and Secondary Education in Punjab work under the Punjab Boards of Intermediate and Secondary Education Act, 1976. Section 10 of the same Act invests the Board with certain powers.

Government of Punjab is the Controlling Authority of-the Boards under section 11 of the same Act. Similarly section 12 invests the Controlling Authority with certain powers.

All the eight Boards of Intermediate and Secondary Education in Punjab established under the Act of 1976, have adopted the Examination Reforms and Internal Assessment System' approved by the Government of Punjab, Education Department. The students are to be assessed for their learning/achievements on the basis of their knowledge, comprehension, application arid analysis. The model papers issued by the Boards of Punjab and the Federal Board of Intermediate and Secondary Education, Islamabad display a disparity between them. The Model Papers issued by the Federal Board clearly provide choice to the candidates appearing in the examination to be held by it. Whereas, the model papers issued by the Punjab Boards as perExamination Reforms' do not give any choice to the students in answering the questions. Every Board has its own scheme of studies and rules for the Intermediate Examination. The Scheme of studies for the Intermediate Examination provides for the subject groups the number of subjects, their weightage in terms of marks, number of papers for a subject, the duration of each paper and the number of question papers. It is within the domain of each Board to prepare the scheme for holding examinations and setting of question papers aiming a testing the ability of the candidate to apply his knowledge in solving the practical problems. The Boards of Punjab have adopted a uniform policy in order to improve the standard of education. Federal Board operates under Federal Board of Intermediate and Secondary Education Act. 1975. No discrimination is being meted out to the students of the Punjab Boards. The Punjab Boards of Intermediate and Secondary Education Act, 1976 and Federal Board of Intermediate and Secondary Education Act, 1975 are two independent statutes having no conflict with each other. In these circumstances Article 143 of the Constitution of Islamic Republic of Pakistan, 1973 will not be attracted. No student has a vested right to be governed by any particular statute or set of rules. The Boards have been vested with powers to regulate conduct of examinations, they enjoy complete autonomy in that regard. The Examination Reforms and Internal Assessment System approved by the Government of Punjab was necessary to improve standard of excellence of different examinations. If the contention is accepted then all the Boards of Intermediate and Secondary Education in whole of the Country will have to follow the Scheme/Set of Rules framed by Federal Board of Intermediate and Secondary Education, Islamabad regarding setting question papers which is not the -intention of the Legislature.

The preamble to Federal Supervision of Curricula Text Books and Maintenance of Standards of Education Act, 1976 envisages the object of the Act to provide for building up of national cohesion by promoting social and cultural harmony and designing curricula relevant to the nation's changing economic needs, compatible with the basic national ideology and providing massive shift from general education to more purposeful agro-technical education; and to make provision for Federal supervision of curricula, text books for various classes and maintenance of standards of education. Such object had been reinforced by section 3 of the same Act. The adoption of the uniform "Examination Reforms" by the Punjab Boards of Intermediate and Secondary Education is a step towards attaining the aforementioned objects. The said Act nowhere provides that the Punjab Boards of Intermediate and Secondary Education are not free to frame their own Scheme/Rules for framing the question papers. It is purely within the domain of the Punjab Boards of Intermediate and Secondary Education to set the question papers with or without choice Holding it otherwise would infringe the principle of Provincial autonomy and the Principles of Policy under Article 37(b) of the Constitution of Islamic Republic of Pakistan, 1973.

The concept of equal protection before law" and "equality before law" means that all persons similarly situate or similarly placed are to be treated alike. The reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis.

A law tray be Constitutional even though it relates to a single individual if, on account of some special circumstances, or reasons applicable to him and not applicable to others, that single individual is treated as a class by himself.

Although area-wise classification on the basis of local circumstances for applying different laws may be justified, it must be intended to achieve a lawful, rational and reasonable object which may not run contrary to the fundamental rights guaranteed by the Constitution and principles of justice and equality: The law should have real next with the object.

The candidates appearing in the examination to be held by the Punjab Boards of Intermediate and Secondary Education are being treated alike and no discrimination among them has been pointed out. There is no law or rule under which the Punjab Boards of Intermediate and Secondary Education can be directed to frame their question papers as per Policy of the Federal Board of Intermediate and Secondary Education, Islamabad.

Rana Saeed Ahmad v. Controller Bahauddin Zakariya University, Multan 1995 MLD 1848; Rana Saeed Ahmad v. Controller of Examination, Bahauddin Zakariya University, Multan 1996 SCMR 792; Mumtaz Ali Bohio and 24 others v. Federal Public Service Commission through Chairman at Islamabad and another 2002 SCMR 772; Government of Pakistan through Secretary Ministry of Commerce and another v. Zameer Ahmad Khan PLD 1975 SC 667; Zameer Ahmad Khan v. Government of Pakistan and another 1978 SCMR 327; Muhammad Saleem and 3 others v. Federal Public Service Commission through Chairman, Islamabad and 2 others 2003 MLD 1133; Airleague of PIA Employees, Union and another v. Federation of Pakistan/The President/Chief Executive and another 2003 PLC (CS) 145; (sic) Ahmad Ghuman v. Government of Pakistan and others PLD 2002 Lah. 521; 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; Miss Mobeen-Sheikh and others v. Federation of Pakistan and others 1998 SCMR 2701,. I.A. Sehrwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others 1991 SCMR 1041 and Government of Balochistan through Additional Chief Secretary v, Azizullah Memon and 16 others PLD 1993 SC 341 ref.

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

----Art. 25---Equal protection of law---Concept---"Equal protection of law" and "equality before law" means that all persons similarly placed are to be treated alike---Reasonable classification is permissible but the same must be founded on reasonable distinction or reasonable basis.

I. A. Sehrwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others 1991 SCMR 1041 and Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341 ref.

Sh. Shahid Waheed, Ch. Khurshid Anwar Bhinder, Addl. A.-G. and Ch. Irshad Ullah Chatha for Appellants.

Ch. Abdul Sattar for Respondent No. 1.

Date of hearing: 15th April, 2004.

P L D 2004 Lahore 744

Before Tassaduq Hussain Jilani, J

Begum KHURSHIDA SHORISH and another---Petitioners

Versus

PROVINCE OF THE PUNJAB through Secretary Local Government and 6 others---Respondents

W. P. No. 14611 of 2002, decided on 13th May, 2004.

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

----Art.199---Constitutional petition---Maintainability---Food Street/Out Cafe, establishment of---Grievance of the petitioner was that public street could not be used for establishing Food Street/Out Cafe---Validity--­Public street was meant for the collective use of the public and it could not be put to any other use---No one had a right to stall, fence, launch a project and create obstruction or make encroachment of any kind on a public street---Local authority, with which vested the function to maintain public street, did not become owner of the site or soil over which the street existed---Right to use public street, free from any encroachment, trespass or nuisance was a public right---Such right could not be interfered with and no portion of street could be let out for a commercial purpose---Cafe could not be established on non-motorable part of service road as electric polls on both ends of such portion of service road would not make it non-motorable or serviceable and public street could not be narrowed down---Every member of the public had a right to pass and travel over service lane inclusive of the pathway, being a public street--­Public had a right over the whole width and length of the street and every inch of the same---Residents of property adjacent to a public street had a right to access to it---Any act, order or project which was likely to affect such public right merited interference in the Constitutional jurisdiction of High Court---Project to establish food street was neither formulated nor formally approved by the Local Authority as provided in Punjab Local Government Ordinance, 2001 and the rules framed thereunder---No resolution of District Government was placed on record to indicate that the project was lawfully approved---Even if the City Government wanted to approve, such a project it could not have done so, as it would have been violative of the provisions of Punjab Local Government Ordinance, 2001, and the rules framed thereunder---Act of Parks and Horticulture Authority in establishing a Food Street/Out Cafe was without lawful authority and the same was set aside by High Court---Constitutional Petition was allowed in circumstances.

Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14; Mehram Aliand others v. Federation of Pakistan and others PLD 1998 SC 1445; Ch. Manzoor Elahi v. Federation of Pakistan and others PLD 1975 SC 66: I.A. Sherwani and others v. Government of Pakistan and others 1991 SCMR 1041: Manzoor Bhattri v. Executive Officer Cantonment Board Multan and others PLD 2002 Lah. 412; Chairman Regional Transport Authority Rawalpindi v. Pakstian Mutual Insurance Limited acid others PLD 1991 SC 14; Muhammad Iqbal Khokahr and 3 others v. The Government of the Punjab and others PLD 1991 SC 35; Messrs Gadoon Textile Mills and others v. WAPDA and others 1997 SCMR 641; Mst. Tahira Almas and another v. Islamic Republic of Pakistan and others PLD 2002 SC 830; Zafar Iqbal v. Agricultural Development Bank of Pakistan and 3 others 2002 CLD 417; Malik Ahmad Saeed v. Pakistan Water and Power Department Authority 2002 CLC 1198; Gulzar and another v. The State 2002 SCMR 362; Municipal Board v. Mahadeoji AIR 1965 SC 1147 and M. Butchamma v. Venkateswarao AIR 1969 Andh. Pra.136 ref:

(b) Punjab Development of Cities Act (XIX of 1976)---

---S.7(ix)---Parks and Horticulture Authority ---Jurisdiction--­Establishing of Food Street/Out Cafe on service lane/public street---Plea raised by the Authority was that streets, parks and green belts were under its control, therefore, the Authority could utilize the same for the purpose of establishing the street---Validity---Public street was neither owned nor vested in Parks and Horticulture Authority---Only the local authority established under Punjab Local Government Ordinance, 2001, was vested with the authority to carry out projects relating to public street---Service lane was neither part of any green belt nor any park over which the Parks and Horticulture Authority could lawfully allow any commercial enterprise---Act of establishing the Cafe on a public street, which was vested in the City Government, was without lawful authority.­

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

----Art.199---Constitutional petition---Public nuisance---Food Street/Out Cafe, establishment of---Parks and Horticulture Authority intended to establish Food Street on a service lane---Petitioner being resident of the area contended that establishment of Food Street on the public street would be a nuisance---Validity---Project to establish a Food Street had the potential of being both a private and public nuisance---To establish a sit out cafe, on the portion of service lane of a thoroughfare (Shahrah-e­-Quaid-e-Azam Lahore) beside obstructing the way of pedestrians and residents of the area would be a place where food and drinks would be served in open, exposed to the dust and to the injurious smoke of the vehicles passing nearby is also of the vehicles which would be parked on the service lane---In the event of establishment of such a "sit out cafe" cars, motorcycles, vans and rickshaws would be parked on the service lane, as there would be no other parking space around---Such parking , would not only be a cause of annoyance for the residents but also for those who would like to use the service road for the purpose for which such roads were provided---Activity, which would cause obstruction or injury to the right of entry to such service lane/road or would cause inconvenience or discomfort being injurious to health, would be a nuisance---Act of Parks and Horticulture Authority for establishing a Food Street/Out Cafe was without lawful authority and the same was set aside by High Court---Petition was allowed in circumstances.

(d) Public nuisance---

---Connotation---Types of public nuisance---Public nuisance can be of various types---Interference with the use of a public street resulting in annoyance to public constitutes a `public nuisance'--- Public is entitled toy use of full width of public street. however wide it may be---Whoever encroaches any part of public street by building over it, infringes the right of public quo ad the part built over---Act of nuisance must necessarily cause obstruction to persons who may have occasion to use their public right over the part encroached upon---Where owners of houses or, shops occupied by them have built certain platforms in front of them to enable the shopkeepers to sit on them for selling their goods and the platforms cause any common injury, danger or annoyance to the public or to people in general, the person who builds such platform is guilty of an act which ex hypothesi amounts to a public nuisance.

Black Law Dictionary and Hypothesi Amounts to a public Nuisance, p.804, Vol.1 ref.

Kh. Muhammad Saeed for Mr. Saleem Saigal for the Petitioners.

Nasar Ahmad for Ali Sibtain Fazli for Respondents.

Syed Murtaza Hussain Bokhari for Parks and Horticulture Authority, Lahore.

Ch. Khurshid Anwar Bhindher, Addl. A.-G. Punjab.

Date of hearing: 9th April, 2004.

P L D 2004 Lahore 754

Before Tassaduq Hussain Jilani, and Muhammad Sayeed Akhtar, JJ

MUHAMMAD ZUBAIR AHMAD and others---Petitioners

Versus

VICE-CHANCELLOR, UNIVERSITY OF HEALTH SCIENCES and others---Respondents

Writ Petition No. 12533 of 2004, decided on 27th July, 2004.

Calendar of University of the Punjab---

----Vol II, Part X, Para. 4---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Examination---First Professional M.B.,B.S./B.D.S. Examination---When a candidate takes the examination either in all the subjects at one time or having appeared and failed in a part of the examination, reappears in the subjects in which he has not passed, he will be entitled to five grace marks but he will be granted this concession only once in this examination---Expression "this examination" pertains to the last examination taken by the candidates and not to the .previous examination---Candidates in the present case, had reappeared in the subjects in which they had not passed and could claim five grace marks in the supplementary examination only and not the earlier Annual Examination---Such right was available to the students regarding the last examination taken by them and not to the earlier examination--­Candidates, in the present case, admittedly appeared in their professional examination but could not pass and did not claim the alleged grace marks from the University but opted to appear in the supplementary examination but again remained unsuccessful---Such candidates could not be , allowed to have volte face alleging that their result of the supplementary examination be ignored and they be awarded five grace marks in the earlier annual examination---Principles.

Masood Mirza for Petitioners.

Syed Najamul Hassan Kazmi for Respondents.

P L D 2004 Lahore 762

Before Maulvi Anwarul Haq, J

MUNAWAR ALI ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, KHANEWAL and 3 others---Respondents

Writ Petition No. 1586 of 2003, heard on 25th June, 2004.

Punjab Local Government Ordinance (XIII of 2001)-----

----S. 152---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Qualifications of candidates and elected members ---Scrutiny--­Petitioner along with respondent No. 4 filed nomination papers for the seat of Naib Nazim and Nazim respectively---Returning Officer in scrutiny rejected the nomination papers holding that the petitioner was less than 25 years of age---District Returning Officer, on appeal accepted the nomination papers of the petitioner and his co-defendant ---After election they were declared as returned candidates on the basis of votes---Election Tribunal deseated the petitioner and respondent on the ground that petitioner was less than 25 years of age at the date of nomination---Validity---Date of birth of the petitioner was 6-5-1976 and in election schedule dates for filing the nomination papers were 21-4-2001 to 27-4-2001---Date of scrutiny was 3-5-2001---Appeal against the rejection of nomination papers was decided on 8-5-2001---Election was held on 31-5-2001 and result was declared thereafter---Petitioner had attained the age of 25 years on 6-5-2001---Qualification was relatable to being elected or holding an elective office or membership of the Local Government---Legislature had not fixed the date for counting the age nor had fixed the date of filing of nomination papers to be the date to consider or determine the age of the candidate---Constitutional petition was allowed---Judgment of the Election Tribunal was declared to be without lawful authority in circumstances.

Syed Muhammad Ali Gillani for Petitioner.

Rana Miraj Khalid for Respondent No.3.

Nemo for the Remaining Respondents.

Date of hearing: 25th June, 2004.

P L D 2004 Lahore 767

Before Muhammad Akhtar Shabbir, J

ISHTIAQ AHMAD RAJA ---Petitioner

Versus

GHAZANFAR ALI, S.I./F.I.A., ISLAMABAD and another---Respondent

Writ Petition No.3019 of 2004, heard on 16th June, 2004.

(a) Emigration Ordinance (XVIII of 1979)---

----Ss. 17,18 & 22---Penal Code (XLV of 1860), Ss.420/468/471/109--­Constitution of Pakistan (1973), Art.199---Constitutional petition--­Quashing of F.I.R.---Nothing was available on record to show that accused was an Overseas Employment Promoter or he had violated any provisions of the Emigration Ordinance, 1979, or of the Rules---Forged documents relating to emigration or any instrument or article to be used for the purpose of such forgery were not recovered from the accused--­No offence under Ss.17, 18 & 22 of the Emigration Ordinance, 1979, was made out from the contents of the F.I.R. and the evidence collected against the accused---Merely being in possession-of the forged documents was not an offence unless the same were used for the purpose of cheating -or fraudulently used as genuine---Prosecution had not been able to collect any evidence to establish that the accused had committed forgery--­Conviction of accused in the case being improbable, proceeding of the case against him before the Trial Court would be abuse of the process of law---Proceeding of the impugned F. I. R. were consequently quashed---Constitutional petition was accepted accordingly.

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

----Ss. 468/471---Forgery---Possession of forged documents not an offence---Mere possession of forged documents by itself is not an offence unless the same are used for the purpose of cheating or fraudulently used as genuine.

Malik Rabnawaz Noon for Petitioner.

Raja Iftikhar Javed, S.I., F.I.A. for Respondents.

Date of hearing: 16th June, 2004.

P L D 2004 Lahore 771

Before Tassaduq Hussain Jilani and Muhammad Sayeed Akhtar, JJ

ANWAR-UL-HAQ AHMAD---Petitioner

Versus

SECRETARY ECONOMICS AFFAIRS DIVISION, ISLAMABAD and others---Respondents

Writ Petition No. 143 of 2003, decided on 2nd August, 2004.

(a) Educational Institution-----

---- Admission to Medical College--Foreign student was allowed admission against, seats reserved for foreign students on self-finance basis---Prospectus of the Medical Colleges-in Punjab for the year in question had stipulated that the applicants seeking admission on self ­finance basis would be required to contribute to the college endowment fund at a rate depending on the college where a student was granted admission---Validity---Student who could not get admission on general merit, he himself opted to avail the benefit of self-finance scheme and as per the admission form, he agreed to abide by the terms and conditions prescribed in this regard---Such student, in circumstances, could not take exception to the scheme itself.

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

----Arts. 9, 25 & 199---Constitutional petition ---Educational Institution--­Admission to Medical College---Admission of foreign students in Medical Colleges in Punjab on Self-finance Scheme---Condition of payment of endowment fund---Although there was a uniform fee structure for the students admitted on general merit for local students admitted under Self-finance Scheme as also the foreign students admitted under the Pakistan Technical Assistance Programme but the foreign students admitted under the Self-finance Scheme had been subjected to a varying fee structure depending on the Medical Colleges in which they were admitted---Validity---While prescribing different rates for different Medical Colleges in Punjab in the Scheme, the Provincial Government neither in its letter to the Medical Colleges -nor in the comments submitted to the High Court had given any reason for such difference in rates---Such Scheme, therefore was arbitrary and violative of Arts.9 .& 25 of the Constitution---Right to education was a fundamental right and could not be subjected to arbitrary conditions or clogs requiring payment of exorbitant fee---If the students admitted in Bahawalpur, Multan, Rawalpindi etc. and Lahore under the general merit or under the Pakistan Technical Assistance Programme were paying the uniform fee irrespective of the college, there was no reason why the students admitted under Self-finance Scheme at different Medical Colleges in Punjab should be subjected to a different fee structure depending on the college---Punjab Government's letter so far the same prescribed a different fee structure for foreign students admitted under the Self­ finance Scheme in different colleges of the Punjab and the condition of furnishing Bank Guarantee were set aside by the High Court under its Constitutional jurisdiction---Authorities were directed to charge these students a uniform rate of US $ 5,000 per annum irrespective of the college in which they were admitted.

Miss Mohini Jain v. State of Karnataka and others AIR 1997 SC 1858 and Ahmad Abdullah and 62 others v. Government of the Punjab and 3 others. PLD 2003 Lah. 752 ref.

A.K. Dogar for Petitioner.

Ch. Khurshid Anwar Bhinder, Addl. A.-G. for Respondents.

Date of hearing: 30th June, 2004.

P L D 2004 Lahore 779

Before Asif Saeed Khan Khosa and Ch. Iftikhar Hussain, JJ

MUHAMMAD DIN---Petitioner

Versus

MUHAMMAD JEHANGIR and 4 others---Respondents

Writ Petition No.4595 of 2003, heard on 28th June, 2004.

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

----Ss. 2(d), 21-C(5), 21-C(7)(e), 21-C(7)(f), 21-F & 32---Jurisdiction to try a juvenile offender---An offence of terrorism can be tried only by an Anti-Terrorism Court constituted under the Anti-Terrorism Act, 1997, and the age of the offender has no relevance to the question of such jurisdiction---" Child" below the age of 18 years can legitimately be tried by an Anti-Terrorism Court constituted under the Anti-Terrorism Act, 1997---Provisions of the Anti-Terrorism Act, 1997, have the overriding effect over all other laws including the Juvenile Justice System Ordinance, 2000.

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

----Ss. 302/324/394/148/149---Anti-Terrorism Act (XXVII of 1997), S.7---Juvenile Justice System Ordinance (XXII of 2000), S.4--­Constitution of Pakistan (1973), Art.199---Constitutional petition---Trial of a juvenile offender by Anti-Terrorism Court---Jurisdiction---"Child" accused of committing an act of terrorism was to be tried by an Anti­ Terrorism Court constituted under the Anti-Terrorism Act, 1997, and not by Juvenile' Court constituted under the Juvenile Justice System Ordinance, 2000---Impugned order passed by the Judge, Anti-Terrorism Court transferring the case of the respondents juvenile offenders to the Sessions Judge for their trial by a Juvenile Court was consequently declared to be without lawful authority clarifying that the said accused could competently be tried by the Anti-Terrorism Court itself while following the relevant provisions of the Juvenile Justice System Ordinance, 2000 as nearly as possible. [Ghulam Mustafa Shah alias Papa v. The State and another PLD 2003 Pesh. 138 dissented from].

Ghulam Mustafa Shah alias Papa v. The State and another PLD 2003 Pesh. 138 dissented from.

Ch. Muhammad Javed Ghani for Petitioner.

Syed Zahid Hussain Bukhari for Respondents Nos. 1 and 2.

Akhtar Ali Kureshi, Asstt. A.-G. for the State with Shafqat Ali S.-I. with record.

Dates of hearing; 24th, 25th and 28th June, 2004.

P L D 2004 Lahore 784

Before Muhammad Sair Ali, J

RAB NAWAZ---Petitioner

Versus

ANWAR ALI and 4 others---Respondents

Civil Revision No. 1884 of 1998, heard on 30th June, 2004.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13, Explanation I and Note ---Talb-i-Muwathibat---Format and phraseology---Scope---While defining Talb-i-Muwathibat, S.13 of Punjab Pre-emption Act, 1991, has not prescribed any particular form, format words, phraseology or terms to constitute Talb-i-Muwathibat nor does Explanation I of S.13 of Punjab Pre-emption Act, 1991, has set out a mode, method; modality or manner for making Talb-i-Muwathibat--- Note to S.13 of Punjab Pre-emption Act, 1991, has not restricted a pre­emptor to some given words which have been left to the choice, option, capacity, capability, knowledge, morality, habit, training, education and social make up of the intending pre-emptor ---Pre-emptor has to declare his intention to pre-empt a transaction in any words that are clearly indicative of such intention---If the words used by a pre-emptor are sufficiently indicative of his clear intention to exercise right of pre­emption, the basic requirement of Talb-i-Muwathibat and that of law are duly met by a pre-emptor ---Note to the Explanation to S.1.3 of the Act is explanatory, and permissive and also illustrative and its scope cannot be restricted by reading into it a particular set of words as the prescribed words when none has been so prescribed---Note cannot limit the Explanation 1, which defines Talb-i-Muwahibat as declaration of the intention only but without laying down the mode for such declaration to be in words or in particular words---Format of indicative words is insignificant as long as intention to exercise the right is clearly discernible- from the words uttered by a pre-emptor on coming to know of the sale.

(b) Words and phrases-----

------Indicate, indication, indicative and indicative evidence---Meaning.

Oxford Universal Dictionary and Black's Law Dictionary 5th Edn., 1979 ref.

(c) Punjab Pre-emption Act (IX of 1991)-----

----S. 13(1), Explanation I, Note---.Term "indicative"---Connotation--­Term "indicative" in note to Explanation I of S.13(1) of Punjab Pre­emption Act, 1991, expands the definition of Talb-i-Muwathibat and broadens its scope even to the suggestive words signifying the intention to exercise the right of pre-emption ---Term "indicative" enables each and every intending pre-emptor to declare, state or express such intention, according to his capability and capacity---Explanation I and Note to S.13 define Talb-i-Muwahibat as "declaration of intention" through "any words' which if indicative of such intention are to be accepted as "sufficient"---Term "indicative" as employed in the Note to Explanation I of S.13(1) of Punjab Pre-emption Act, 1991, provides that key to the lock may not be the "words" but the "indication of intention"--Due to such reason definition of Talb-i-Muwathibat in Explanation I of S.13(1) of Punjab Preemption -Act, 1991, does not mandate declaration of "the intention" to be in words.

(d) Punjab Pre-emption Act (IX of 1991)--------

----S. 13, Explanation I and Note ---Talb-i-Muwathibat--- Format and phraseology. non-prescribing of---Logic and rationale---Human expressions cannot be standardized---Words and expressions of each man are normally different from the other---Linguistic construction and combinations vary from person to person, such being the variety of human expression---Occasionally the words can be the same but not the expression---God has willed the human beings to be so and it is in the Divine design of human beings and also in their evolution to remain different despite homogeneity of influences of the families, cultures, societies, systems, religions, moralities, education, genes and orientations---No law, therefore, can or be expected to provide for a straight jacket or "one--size-fit-all" formula for the personal behaviours, acts or expressions for all the citizens of the State---Otherwise being non-compatible to normal and natural human conduct, its enforcement remains questionable.

(e) Pleadings-----

----Words ----Words of pleadings an o deposition---Scope---Words of pleadings and depositions must accord to the language of law and language of law to the meaning of law---Forms, combination of words and the modes of expression cannot be allowed to stifle the purpose of law---Object of law cannot give in to the crafty or non-crafty drafting expressions---Words of pleadings or deposition may be feeble or strong or expressive or reflective but such words cannot be decisive in a case---What is to prevail is the word of law and not merely presumed to be the law or that what is evolved as language or the mode of a legal requirement.

(f) Words and phrases---

---- Words "Defined"---In the art of communication and phonetics, words are but only symbols used as tools of expression and as such are a medium to state or indicate the mind.

(g) Punjab Pre-emption Act (IX of 1991)-----

---S. 13, Explanation I and Note ---Talb-i-Muwathibat--- Format and phraseology ---Pre-emptor on gaining knowledge of the sale stated "I have a right of pre-emption, you should receive your amount of Rupees forty thousand and restore the suit-land to me.—

---Both the Courts below did not accept the words so said by the pre­emptor as the expression of Talb-i-Muwathibat---Validity---Words used adequately revealed the intention of pre-emptor to exercise his right of pre-emption ---Both the Courts below committed a material irregularity and denied the right as well as the remedy to pre-emptor who cleanv indicated his intention to seek return of the land by asserting his right of pre-emption ---Talb-i-Muwathibat was proved in circumstances.

Muhammad Saeed v. Mst. Hajiani Noor Bai and others 1983 CLC 1883 and Government of N.-W.F.P. v. Malik Said Kamal Shah OLD 1986 SC 360 ref.

(h) Punjab Pre-emption Act (IX of 1991)-----

----S. 13---Civil Procedure Code (V of 1908), S.115---Right of pre­emption ---Talb-i-Ishhad---Proof---Revisional jurisdiction. of High Court, exercise of---Assuming 'the role of Appellate Court in exercise of revisional jurisdiction---Dispatching of five notices of Talb-i-Ishhad and producing only three acknowledgement due receipts ---Pre-emptor dispatched five notices and produced their postal receipts while only three acknowledgement due receipts were produced---Trial Court dismissed the suit on the ground that requirement of notice of Talb-i­-Ishhad was not fulfilled---Judgment and decree passed by' Trial Court was maintained by Appellate Court---Plea raised by pre-emptor was that only three acknowledgement due receipts were received by him and they were produced in Trial Court---Validity---Both the Courts below neglected to determine the effect of five postal. receipts of sending the notices of Talb-i-Ishhad through registered acknowledgement due as the receipts for all five notices were produced in evidence and the same were exhibited by pre-emptor ---As the clarification was that the three memos. were only received by him, therefore, the Courts below were under legal duty to adjudge the effect of non-transmission of the registered acknowledgement due memos, to pre-emptor by the postal authorities particularly in view of the postal receipts for transmission of all the five notices of Talb-i-Ishhad through registered acknowledgement due mail--­Both the Courts below, had neither properly interpreted the law nor had they correctly applied the law to the facts of the present case---Narrow construction adopted by the Courts below being fatal to the rights of pre­emptor was disapproved by High Court---Judgment and decree of Appellate Court was set aside---High Court being the revisional Court refused to assume the role of the First Appellate Court in examining the questions of the date and place etc. of making Talb-i-Muwathibat or the effect of the postal receipts in the perspective of evidence produced by the parties--Case was remitted to Appellate Court for re-decision--­Revision was allowed accordingly.

Khan Khizar Abbas Khan for Petitioner.

Syed Zulfiqar Ali Bokhari for Respondents.

Date of hearing: 30th June, 2004.

P L D 2004 Lahore 794

Before Muhammad Muzammal Khan, J

Rana WAKEEL AHMAD KHAN---Petitioner

Versus

CHIEF ELECTION COMMISSION and 9 others---Respondents

Writ Petition No.4723 of 2004, decided on 11th May, 2004.

Punjab Local Government Elections Rules, 2000---

----Rr. 29(2), 39---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Re-polling---All Presiding Officers at close of polling, prepared their respective statements of count in terms of R. 39 of Punjab Local Government Elections Rules, 2000 under their signatures and distributed same to candidates/polling agents---Statements of count prepared by Presiding Officers at two polling stations remitted by them to Returning Officer carried Notes' with regard to snatching of ballot papers and certain rigging in votes---Statements earlier prepared and distributed to candidates/polling agents did not carry saidNotes'--­Returning Officer, after considering the subsequently submitted report of Presiding Officers with notes of snatching ballot papers and rigging in votes, recommended re-poll in both the two polling stations---Re-polling was challenged by petitioner in his Constitutional petition---Validity---No provision existed in Punjab Local Government Elections Rules, 2000 authorising Presiding Officer to change or to give subsequently any Notes' on his statement of count on whatever ground it might be as Presiding Officer after issuance of statement of count would become functus officio and could not change the result already declared by him--­Tampering with election record or interfering with election process was cognizable offence---If some ballot papers were snatched and any rigging was found, Presiding Officers could take punitive action against persons who had done so during polling hours, but that had not been done---Both Presiding Officers of said two polling stations, not only had counted ballot papers under the guard of police officials, but also had completed same and transmitted the result in Form-XIII to Returning Officer, besides delivering copies of those to contesting candidates/polling agents---Presiding Officers, in circumstances were not competent to add anyNote' as had been done by them---Since pre-requisites for a fresh poll as visualized by R. 29 of Punjab Local Government Elections Rules, 2000, had not been fulfilled, re-polling on the two polling stations, were illegal, unfounded and without any legal basis---Notification issued by District Returning Officer for re-polling, was declared void and unauthorized by High Court in exercise of its Constitutional jurisdiction.

Muhammad. Afzal v. District Judge/District Returning Officer 2000 CLC 310; Sharafat Ali Nisar v. Punjab Local Councils Election Authority and 3 others 1999 MLD 1814; Begum Tallat Jan and another v. Presiding Officer and others 1988 CLC 819; Malik Amjad Farooq Paracha v. Chief Election Commissioner of Pakistan and 12 others 2002 YLR 3283; Muhammad Arshad v. Punjab Election Authority, Lahore and 4 others PLD 1999 Lah. 443; Emmanual Masih v. The Punjab Local Councils Election Authority and others 1985 SCMR 729 and Hayat Muhammad and 4 others v. Election Authority and others 1985 SCMR 1909 ref.

Muhammad Ahsan Bhone for Petitioner.

Abdul Basit for Respondent No.7.

Khalid Pervaiz Warraich for Respondent No.9.

P L D 2004 Lahore 801

Before Sardar Muhammad Aslam, J

RUKHSANA MALIK and 2 others‑‑‑Petitioners

Versus

ABDUL AZIZ and 2 others‑‑‑Respondents

Writ Petition No. 767 of 2004, heard on 11th June, 2004.

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

‑‑‑‑Ss. 7, 17 & 25‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Custody of minor sons aged 16 years and 15 years‑‑‑Contest between father and mother of minors‑‑‑Re‑marriage by mother with a stranger to minors‑‑‑Plea of father was that on account of such marriage, mother had lost her right to retain custody of minors‑‑­Guardian Judge granted custody of minors to father, which judgment was upheld by Appellate Court‑‑‑Validity‑‑‑Father was living all alone in one room attached with his office‑‑‑Father was ready to take a house on rent, if minors joined him and would bring his mother and sister in that house‑‑‑Minors living with mother were receiving education in best institution and were being looked after properly‑‑‑Wife and children of step‑father had taken asylum abroad and were not likely to come back to Pakistan‑‑‑Elder son told father that he would not like to accept dictation either from mother or father and limitations on his visit to a particular place‑‑‑Both minors emotionally, attached with mother expressed discretion to stay with her as she had done lot for their comfort and education‑ ‑‑Mother stated that if on ground of re‑marriage, she was to be deprived of company of minors, she could sacrifice same as well as any of her own desire for the sake of welfare of minors‑‑‑Paramount consideration is welfare of minors, which overrides provisions of personal law‑‑‑Minors were male and of the age of discretion, thus, their .custody could not be given to father against their will‑‑‑Both brothers had been living together, thus, their separation might badly affect their association and conducive atmosphere available to them in their stay with mother, whose lap was a cradle of Allah‑‑‑Father had not expressed ill­-feeling except family feud of step‑father‑‑‑Re‑marriage by mother would not come in her way to lose custody of minors, whose welfare would lie with her‑‑‑Both minors agreed in spending of long summer and winter vacations with father and mother on equal terms‑‑‑Elder son was aged about 16 years and 3 months, thus, no limitations could be placed on his movement‑‑‑High Court accepted Constitutional petition, set aside impugned judgments, resultantly petition for custody was dismissed while making arrangement for meeting of younger son with father subject to his acquiring a house and furnishing a surety bond not to remove minor from territorial jurisdiction of Court.

Mst. Rashida Begum v. Shahab Din and others PLD 1960 (W.P) Lah. 1142; Rahimullah Chaudhary v. Mrs. Sayeda Helali, Begum and others 1974 SCMR 305; Mst. Feroze Begum v. Lt.‑Col. Muhammad Hussain 1978 SCMR 299; Mst. Nazir v. Hafiz Ghulam Mustafa and others 1981 SCMR 200; Khizar Hayat Khan v. Mst. Zainab Begum PLD 1967 SC 402; Begum Zainab Tiwana v. Ch. Aziz Ahmad Waraich, District Judge, Lahore and others PLD 1967 Lah. 977; Mst. Khatija Khatoon v. Additional District Judge, Karachi and another PLD 1976 Kar. 506; Mst. Akbar Bibi v. Shaukat Ali 1981 CLC 78; Walayat Ali v. Mst. Khalida Bibi and others 1992 CLC 812; Mst. Razia Bibi v. District Judge, Bahawalnagar and 3 others. 1992 CLC 1981; Mst. Kaneez Sughran v. Syed Mushtaq Haider 1991 SCMR 353; Mst. Suraya Bibi v. Abdul Rashid 1980 CLC 785; Syed Maqsood Ali Shah v. Sofia Noshaba 1986 PSC 427; Mst. Zahida and others v. Capt. (Retd.) Shahid Ali Khan 1993 CLC 2116; Mst. Shaheen v. Jafar Khan 2000 CLC 1627; Imtiaz Begum v. Tariq Mehmood and another 1995 CLC 800; Mst. Parveen Akhtar v. Muhammad Ashraf 1986 SCMR 1944; Syed Ali Mehdi v. Baqar Ali Rana Additional District Judge, Islamabad and 2 others 1998 MLD 1003; Al‑Hadis‑Mishkat‑ul‑Masabih 1939,Edn. Vol. II, p.728, Tradition 12; Majmooa Quawaneen‑e‑Islam "Vol. 3" Chap.22 by Dr. Tanzeel‑ur‑Rehman; Amar Elahi v. Mst. Rashida Akhtar PLD 1955 Lah. 412; Mst. Nazir Begum and others v. Abdul Sattar PLD 1963 Kar. 465; Akhtar Ahmad v. Mst. Hazoor Begum PLD 1965 Kar. 65 and Muhammad Bashir v. Ghulam Fatima PLD 1953 Lah. 73 ref.

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

‑‑‑‑Ss. 7, 17 & 25‑‑‑Custody of minor‑‑‑Welfare of minor, determination of‑‑‑Court would not act consistently with minor's personal law, while determining his welfare‑‑‑Paramount consideration would be welfare, which has overriding effect.

Rahimullah Chaudhary v. Mrs. Sayeda Helali Begum and others 1974 SCMR 305 rel.

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

‑‑‑‑Ss. 7, 17 & 25‑‑‑Custody of minor sons and daughters‑‑‑Re‑marriage by mother with a stranger to minor sons would not by itself disqualify her to retain their custody‑‑‑Philosophy in Islam is to keep stranger away from females‑‑‑Minor daughters either on attaining or near to attain age of puberty may not be allowed to live in custody of mother, while step­father is in the house‑‑‑Such re‑marriage by mother may be considered ground for delivery of custody of female minors, but not in each and every case‑‑‑Exceptions stated.

Re‑marriage by itself of a mother of male children is no disqualification for retention of their custody. Delivery of custody of female minors to the father on re‑marriage of the mother with a stranger to the minors has some reasons behind, which is not applicable to the male child. A step‑father not related to the minor may not pose any danger to son. Islam has always guarded jealously chastity of a woman. The minor daughters either on attaining or near to attain the age of puberty may not be allowed to live in the custody of the mother, while a step‑father is in the house. Women are prohibited to stay with "Ghair Mehram". The philosophy in Islam is to keep stranger away from the females. On this analogy, re‑marriage of a woman with stranger may be considered ground for the delivery of custody of female minors to the father. However, it is not of universal applicability. For instance, if the father of minor is proved to be a person of ill character, the custody will not be granted to him. In such case, mother will be the right person to guard the minor. Woman is no longer weaker person in the society. Each case, therefore, requires determination on its own peculiar facts.

Sheikh Zamir Hussain and Syed Asghar Hussain Sabazwari for Petitioners.

Shah Khawar for Respondents.

Date of hearing: 11th June, 2004.

P L D 2004 Lahore 815

Before Ch. Ijaz Ahmad, J

ABDUR REHMAN SHAUKAT---Petitioner

Versus

Sardar MUHAMMAD AKRAM JAVED, DISTRICT OFFICER (REVENUE), KASUR---Respondent

Criminal Original No. 1488-W of 2002 in Writ Petition No.4243 of 1996, decided on 9th June, 2004.

(a) Administration of justice---

---- Nobody is to be penalized by the, inaction of the functionaries.

Ahmad Latif Qureshi v. Controller of Examination Board of Intermediate and Secondary Education, Lahore PLD 1994 Lah. 3 ref.

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

----Arts. 5(2), 189, 190 & 201---Obedience to Constitution, and law--­Every body is bound to obey the command of the Constitution---Public functionaries are also duty bound to act in accordance with law i.e. to act within the framework of Law and Constitution---All-organs of the State are under the statutory duty to act in aid of the law declared by the Supreme Court and not to flout the same---Right declared under judgment of Supreme Court cannot be overridden or nullified by an executive order, a rule or a dispensation short of Legislative will.

Ch. Zahoor Elahi's case PLD 1975 SC 383; Messrs Nishat Mills Limited v. Government of Pakistan and others 1989 CLC 1692; Works Cooperative Housing Society and another v. The Karachi Development Authority PLD 1969 SC 430 and Capt. (Retd.) Abdul Qayyum, Executive Engineer v. Muhammad Iqbal Khokhar and 4 others PLD 1992 SC 184 ref.

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

----Arts. 204, 2-A, 5(2), 189, 190 & 201---Contempt of Court Act (LXIV of 1976), S.3/4---Contempt of Court---Land of the petitioner had been taken away without acquiring under the Land Acquisition Act, 1894 without his consent and without payment of a single penny to him, simply to save/protect the land of the then Chief Minister and his relations---Said land was utilized by the respondents in the year 1996--­Despite. direction of the High Court and the. Supreme Court to the respondents to provide alternative land to the petitioner, they had not done so till today---Respondents did not implement the judgments of the High Court and Supreme Court on one pretext or the other without any justification---Correspondence between the respondents themselves was clearly in derogation of the judgment of the High Court as well as of the Supreme Court falling within the scope of contempt of Court not less than even by the Law Department whose advice and opinion was not in consonance with the parameters prescribed by the High Court and the Supreme Court in their judgments which was without lawful authority--­High Court taking a lenient view did not proceed against the respondents for Contempt of Court and directed the respondents to hand over the possession of the specified alternative land to the petitioner in lieu of his land along with its proprietary rights completing all the necessary formalities within one month---Petition was disposed of accordingly.

Raja Nasir Khan, v. Abdul Sattar Khan and another PLD 1998 Lah. 20 and Pir Bakhsh v. The Chairman, Allotment Committee and others PLD 1987 SC 145; Ahmad Latif Qureshi v. Controller of Examination Board of Intermediate and Secondary Education, Lahore PLD 1994 Lah.. 3; Ch. Zahoor Elahi's case PLD 1975 SC 383; Messrs Nishat Mills Limited v. Government of Pakistan and others 1989 CLC 1692; Works Cooperative Housing Society and another v. The Karachi Development Authority PLD 1969 SC 430 and Capt. (Retd.) Abdul Qayyum, Executive Engineer v: Muhammad Iqbal Khokhar and 4 others PLD 1992 SC 184; N.E.D. University of Engineering and Technology v. Imtiaz Ali 2001 SCMR 832 ; State v. Tariq Aziz and 6 others 2000 SCMR 751; Messrs Airport Support Service v. The Airport. Manager Karachi 1998 SCMR 2268; Shaukat Ali and others v. Government of Pakistan, Ministry of Railways and others PLD 1997 SC 342; Jibendra Kishore Achharyya Chaudhury and 58 others v. The Province of East Pakistan and Secretary Finance and Revenue (Revenue) Department Government of East Pakistan PLD 1957 SC 9; Muhammad Sarwar v. The State PLD 1969 SC 278; Supreme Court Bar Association of Pakistan v. Federation of Pakistan and others PLD 2003 SC 82; Mst. Safia Bibi v. Mst. Aisha Bibi PLD 1982 PSC Cases 304; Tarit Kanti Biswas' case AIR 1918 Cal. 988 and Mst. Amina Begum and others v. Mehar Ghulam Dastgir PLD 1978 SC 220 ref.

Muhammad Shahzad Shaukat for Petitioner.

Syed Shabber Raza Rizvi, A.-G. Punjab and Muhammad Hanif Khatana, Addl.. A.-G. for Respondent along with Ch. Muhammad Sharif, D.O.R. Kasur with record.

Date of hearing: 9th June, 2004.

P L D 2004 Lahore 829

Before Tassaduq Hussain Jilani and Muhammad Sayeed Akhtar, JJ

REHMAT SHAH AFRIDI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1066 of 2001, heard on 3rd June, 2004.

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

----S. 29---Presumption from possession of illicit articles---Intent and import-In order to raise such a presumption in law, the initial burden continues to be on the prosecution and it is only when the prosecution has successfully discharged its burden of proof that the onus would shift on the accused to rebut the said presumption which the law has raised.

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

----Art. 40---Tape recorded conversation---Tape recorded conversation is by now a well accepted form of "real evidence" which a party may produce to prove a fact in issue---Expression "real evidence" refers to all kinds of evidence, other than oral and documentary---Tape records, charts, photographs, finger prints and tracker dogs are some instances of the real evidence---Tape recorded conversation can be proved by the testimony of a person who was part of the conversation or who recorded the conversation or even transcripts were considered as proof of the conversation.

Evidence Commentary and Materials by P.K. Waight and C.R. Williams (3rd Edn.); Butera v. D.P.P. (VIC), High Court of Australia (1987) 62 ALJR.7; R. v. Maqsud Ali R v. Ashiq Hussain 1965 2 All ER); S. Partap Singh v. State of Punjab AIR 1964 SC 72; R.M.Malkani v. State of Maharashtra AIR 1973 SC 157; Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and others AIR 1975 SC 1788 and Asif Ali Zardari and another v. The State PLD 2001 SC 568 ref.

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

----S. 9(c)--Appreciation of evidence---Prosecution had successfully discharged its onus of proof and a presumption stood lawfully raised against the accused that he not only was indulging in trafficking of "Charas" but had also led to its recovery---Accused did not lead any evidence to rebut the said presumption raised against him by the prosecution evidence---Not even a word of mala fides or personal enmity was attributed by the accused to any of the prosecution witnesses--­Except his statement under S.342, Cr.P.C. the accused did not opt to appear himself in his defence ---Accused having not disputed the contents of the recovered parcels since the time of his arrest till the stage of recording his statement under 5.342, Cr.P.C. objection to the destruction of the narcotics was not relevant and the irregularity or illegality, if any, arising therefrom in the circumstances did not vitiate the trial in view of the Explanation to S.537, Cr.P.C.---Non-compliance of S.24 of the Control of Narcotic Substances Act, 1997, did not make the evidence of the witness acting as under-cover officer inadmissible, provided it was otherwise admissible under the Qanun-e-Shahadat and had not prejudiced the case of accused---Said witness was not a private individual negotiating some illegal transaction for some private gain---Said witness was a serving Army Officer on deputation with Anti-Narcotics Force, who was trying to spy over and gather information about the illegal narcotic trade of the accused---Police and the Anti-Narcotics Force were obliged to resort to such techniques which could not be taken exception to unless some malice was shown or pre judice was proved on record---previous convict and according to the video tape conversation he had expressed abhorrence for trading in heroin even if he was offered a hefty price---Sentence of death of ace-used was altered to imprisonment for life in circumstances.

Shahmore v. The State PLD 2003 Kar. 230; Muhammad Tayyab v. The State 2002 PCr.LJ 1889; Naik Muhammad v. The State PLD 2003 Pesh. 130; Syed Karim v. Anti-Narcotics Force PLD 2003 Kar. 606; Nawab Ali v. State PLJ 1995 FSC 90; Qanun-e-Shahadat Order Vol. p.545 by Justice Munir; Evidence Commentary and Materials by P.K. Waight and C.R. Willams (3rd Edn.); Butera v. D.P.P. (VIC), High Court of Australia (1987) 62 A.L.J.R.7; R. v. Maqsud Ali R v. Ashiq Hussain 1965 2 All E.R.); S.Partap Singh v. State of Punjab AIR 1964 SC .72; R.M.Malkani v. State of Maharashtra AIR 1973 SC 157; Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and others AIR 1975 SC 1788 and Asif Ali Zardari and another v. The State PLD 2001 SC 568; Malik Talib Hussain v. The State 19'38 MLD 506; P. P. v. A. Thamas AIR 1959 Mad. 166 and Ambujam v. The State 1953 Mad. W. N.Cr.156 AIR 1954 Mad. 326 ref.

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

----S. 9(c)---Sentence---Section 9 of the Narcotic Substances Act, 1997, although does not create any distinction between various kinds of narcotic substances and prescribes only a minimum sentence in case the same exceeds ten kilograms, yet the Court has to consider cases in which sentence of death or the sentence of imprisonment for life should be awarded---Death sentence should be awarded to accused on the recovery of heroin which is the deadliest narcotic, if its quantity falls within the mischief of the said provision or if he is convicted for the second time under the same provision while undergoing life imprisonment under S.9(c) of the said Act.

Messrs Syed Ehsan Qadir Shah, Syed Hassam Qadir Shah and M. Iqbal Bhatti for Appellant.

Khawaja Sultan Ahmad, Special Prosecutor for the State.

Ch. Muhammad Suleman, Addl. A.-G., Punjab.

Dates of hearing: 19th, 20th and 26th May; 2nd and 3rd June, 2004.

P L D 2004 Peshawar 1

Present: Talaat Qayum Qureshi and Ijaz-ul-Hassan Khan, JJ

THE STATE---Appellant

Versus

MUHAMMAD RAJA and 3 others---Respondent

Criminal Appeal No.265 of 1994, decided on 2nd October, 2003.

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

----S. 417---Appeal against acquittal---Appreciation of evidence--­Principles---Appraisal of evidence in an appeal against conviction is done strictly, but in an appeal against acquittal the same rigid method of appreciation of evidence is not to be applied, as there is already finding of acquittal given by the Trial Court after proper analysis of record.

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

----S. 417---Appeal against acquittal---Scope---Interference in an acquittal appeal is made only when gross misreading of evidence amounting to miscarriage of justice is found in the case---Ordinary scope of appeal against acquittal is considerably narrow and limited.

Muhammad Usman and 2 others v. State 1992 SCMR 498 and State v. Muhammad Sharif and others 1995 SCMR 635 ref.

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

----Ss. 302/307/34---Criminal Procedure Code (V of 1898 ), S.417 (1)--­Appeal against acquittal---Non-explanation of the delay in making the report to the police coupled with the improvements and contradictions made by the eye-witnesses in their statements had rendered their testimony doubtful and unreliable which did not inspire confidence--­Injuries sustained by the eye-witness during the occurrence alone would not make her a truthful witness---Occurrence did not appear to have taken place in the manner as suggested by the prosecution---Prosecution had thrown a wide net to implicate all the male members of the family of the accused---Motive for the occurrence was not satisfactorily established--­Abscondence of accused by itself was not sufficient to prove their guilty mind and was meaningless having failed to connect them with the commission of the crime in any manner---Prosecution evidence was highly discrepant and full of infirmities---Only one substantial doubt was enough for acquittal of accused---Impugned judgment was based on valid and cogent reasons and did not suffer from any illegality --- Appeal was dismissed accordingly.

Abdur Rashid v. Umid Ali and 2 others PLD 1975 SC 227; Mst. Roheeda v. Khan Bahadur and another 1992 SCMR 1036; Muhammad Din v. State 1998 SCMR 1; Wahid v. State PLD 2002 SC 62; Haroon v. State and another 1995 SCMR 1627; Riaz Masih v. State 1995 SCMR 1730; Muhammad Nawaz and others v. State 1994 SCMR 1614; Hukam Din and 4 others v. State 1994 SCMR 2134; Shahbaz Khan v. Lal Beg and others 1984 SCMR 42; Zaheer Din v. State 1993 SCMR 1628; Muhammad Irshad and another v. State 1999 SCMR 1030; Nawaz Ali and another v. State 1981 SCMR 132; Imran Ashraf and 7 others v. State 2001 SCMR 424; Suhni v. Bahadri and 5 others PLD 1965 SC 111; Pasham Khan and 7 others v. State PLD 1984 Pesh. 156; Ghulam Sikandar and another v. Hamraz Khan and others PLD 1985 SC 11; Ali Sher v. State and 3 others PLD 1980 SC 317; Ghulam Habib v. State PLD 1986 Pesh. 141; Nabi Bux and others v. State 1990 PCr.LJ 1018; Iqbal Shah v. State 1998 PCr.LJ 1177; Muhammad Anwar v. State 1997 PCr.LJ 2075; Muhammad Usman and 2 others v. State 1992 SCMR 498; State v. Muhammad Sharif and others 1995 SCMR 635; Said Ahmad v. Zumured Hussain 1981 SCMR 795; Ghulam Sarwar v. State PLD 1993 Pesh. 152; Farman Ali and others v. State PLD 1980 SC 201 and Muhammad v. Pesham Khan 1986 SCMR 823 ref.

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

----S. 302---Appreciation of evidence---Injured witness---Fact of the eye­witness having sustained injuries during the occurrence is not sufficient to hold that he had spoken the whole truth.

Said Ahmad v. Zumured Hussain 1981 SCMR 795 and Ghulam Sarwar v. State PLD 1993 Pesh. 152 ref.

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

----S. 302--Appreciation of evidence ---Abscondence---Abscondence of accused alone cannot be a substitute for real evidence.

Farman Ali and others v. State PLD 1980 SC 201 and Muhammad v. Pesham Khan 1986 SCMR 823 ref.

Tariq Javed, D.A.-G. for the State.

Nek Nawaz Khan for Respondents.

Date of hearing: 11th September, 2003.

P L D 2004 Peshawar 9

Before Ijaz-ul-Hassan Khan, J

MIRA KHAN and others---Petitioners

Versus

THE STATE---Respondent

Criminal Revision No.96 of 1998, decided on 15th September, 2003.

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

---Ss. 514 & 439-A---West Pakistan Arms Ordinance (XX of 1965), S.13---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4--­Surety bond, forfeiture of---Petitioners stood sureties of accused who was tried, convicted and sentenced by Trial Court---State being not satisfied with quantum of sentence awarded to accused, had filed revision against order of Trial Court---Accused having not appeared in revisional Court, petitioners/sureties were given notice under S.514, Cr.P.C. and surety bonds furnished by them were forfeited with direction to deposit surety amount in State Treasury as penalty--Validity---Petitioners had stood sureties for-accused according to bail bond, to the effect that accused would appear in the Trial Court during trial proceedings---After conviction and sentence of accused, petitioners/sureties were absolved of their legal obligations from responsibility of surety bond submitted by them to Trial Court in respect of case against the accused and they had not submitted bail bond in revision filed by State against the accused and they had taken no responsibility at any stage that they would produce the accused after his conviction and sentence by Trial Court---Order forfeiting surety bond of petitioners had been passed by Court in total disregard to terms of bail bonds---Liability of sureties should be determined on the terms of bond itself and bond should be strictly construed.

Mir Mubarak Ali and another v. State 1997 SCMR 571 and State v. Abdur Rehman PLD 1965 (W.P.) Kar. 90 ref.

H. Zahir Shah for Petitioners.

Malik Akhtar for the State.

Date of hearing: 8th September, 2003.

P L D 2004 Peshawar 11

Before Fazlur Rehman Khan, J

ARSHAD IQBAL---Petitioner

Versus

NAEEM KHAN anal another---Respondents

Criminal Miscellaneous Bail Petition No.321 of 2003, decided on 16th September, 2003.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/201/34---Juvenile Justice System Ordinance (XXII of 2000), Ss.2(b) & 10(7)---Grant of bail to child/minor---Juvenile Justice System Ordinance 2000 being special law was enforced in order to safeguard the rights of children/minors involved in criminal cases who deserved reasonable concession because of their tender age---Said law was to be liberally interpreted in favour of accused and if the age of an accused would be one day less than 18 years, he would come within the definition of a "child" as contained in S.2(b) of Juvenile Justice System Ordinance, 2000 and would be entitled to the grant of bail, even if involved in case punishable with death---Such concession however, was subject to the limitation contained in proviso to cl.(c) of subsection (7) of S.10 of Juvenile Justice System Ordinance, 2000 under which, if the Court would come to the conclusion that reasonable grounds were to believe that such child was involved in an offence which in its opinion, was serious, heinous, gruesome, brutal, sensational in character or shocking to public morality or he was a previous convict of an offence punishable with death or imprisonment for life, then he would not be entitled to such concession.

2003 PCr.LJ 1788 and PLD 2002 Kar. 18 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/201/34---Juvenile Justice System Ordinance (XXII of 2000), Ss.2(b) & 10(7)---Grant of bail to child/minor---Accused in the present case was charged for first committing murder of deceased by firing at him with a pistol and then after chopping his head off and cutting his both hands at wrist, threw his body on the spot which was not only a gruesome and brutal act, but was also sensational in character and shocking to public morality---Accused, in circumstances, was not entitled to grant of bail on that ground---Delay caused in trial of case was not the result of prosecution, but was of accused himself---Subsection (7) of S.10 of Juvenile Justice System Ordinance, 2000 had clearly provided that where a Juvenile Court was of the opinion that the delay in trial of accused had been occasioned by an act or omission of accused or any other person acting on his behalf or in exercise of any right or privilege under any law for the time being in force, such child would not be entitled to the grant of bail---Accused, in circumstances was not entitled to grant of bail on ground of delay in conclusion of his trial.

2003 PCr.LJ 1788 ref.

Niamatullah Jamal for Petitioner.

Shaukat Hayat Khan, D.A.-G. for the State.

Gohar Zaman Khan Kundi for the Complainant.

Date of hearing: 16th September, 2003.

P L D 2004 Peshawar 15

Before Malik Hamid Saeed and Ijaz-ul-Hassan Khan, JJ

ZEB SAR---Petitioner

Versus

Mst. KOSAR and 3 others--Respondents

Writ Petition No.675 of 2003, decided on 18th June, 2003.

(a) Administration of justice--

---- Decision of dispute---Duty of Court---Judicial forum should restrict itself to the evidence on record and decide the matter on the available facts and circumstances---While deciding dispute, Court is not expected to act in arbitrary, capricious or whimsical manner.

(b) Islamic Law---

----Khula'---Import, object and scope---Wife had right to seek dissolution of marriage on the ground of Khula' in extreme circumstances---Such right is not absolute and no blanket authority is given to wife for automatically denouncing marital bonds---Right of Khula' is reasonably controlled and is dependant upon scrutiny by `Court' competent to decide the matter after properly satisfying itself about existence of reasonable circumstances on which separation is being claimed, so as to terminate sacred relationship of the spouses---For allowing wife, authority to exercise the right of Khula' there must exist reasonable proof sufficient for the satisfaction of Qazi (Court) showing incompatibility of temperament including total lack of sympathy between husband and wife resulting in resistance to mutual adoption---Intense hatred, serious discord, extreme disliking, strong malice explicitly indicating impossibility of future harmonious relationship between the parties in accordance with limits prescribed by God must exist---Exercise. of right of Khula' is subject to restoration of partial or total benefits received by the wife in connection with marriage.

(c) Muslim Family Laws Ordinance (VIII of 1961)-----

----S. 8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dissolution of marriage on the basis of Khula'---Wife had alleged ill-treatment of husband and his parents---Wife also blamed her father-in-law for having made an unsuccessful attempt to outrage her modesty---Family Court dismissed the suit but Appellate Court allowed the appeal and the marriage was dissolved on the basis of Khula'--­Validity---In view of such facts and unhappy relations between the couple, there existed genuine cause for their separation on the basis of Khula'--­Spouses could not be forced to live together in a hateful union and within the limits ordained by God and in such situation Qazi (Court) was bound to terminate the marriage tie between the husband and wife---No illegality or jurisdictional defect was pointed out by the husband in the judgment passed by the Appellate Court---Difference of temperament between the couple having been found, it was better for them to separate from each other and dissolve the marriage than to continue the same to lead unpleasant life---High Court declined to interfere with the judgment and decree passed by the Family Court---Petition was dismissed in circumstances.

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

----Art. 199---Constitutional jurisdiction of High Court ---Scope--­Constitutional jurisdiction does not lie against order of Court, Tribunal or Authority having jurisdiction to decide such matters---When any finding of fact is based on no evidence at all or on ignoring material evidence or on consideration of inadmissible evidence or exercise of jurisdiction perversely or illegally causing palpable injustice, jurisdiction of High Court can always be invoked to rectify the wrong and injustice occasioned to a party on the basis of admitted facts.

Abdur Rahim v. Mst. Shahida Khan PLD 1984 SC 329 and Muhammad Siddique v. Kalsoom Bibi and others 1984 SCMR 523 ref.

Sh. Wazir Muhammad for Petitioner.

Date of hearing: 18th. June, 2003.

P L D 2004 Peshawar 20

Before Dost Muhammad Khan, J

ALI RAZA---Appellant

Versus

FAZAL WAHID --- Respondent

Criminal Appeal No.4 of 2001, decided on 17th October, 2003.

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

----S. 512---Qanun-e-Shahadat (10 of 1984), Art.46---Recording evidence in absence of accused---Essentials---Guidelines---Court while proceeding under S.512, Cr.P.C. must be judicially satisfied on the, basis of evidence that the accused charged therein had absconded and there was no prospects of his arrest in the near future and secondly on the arrest of such accused it must be also proved to the satisfaction of the Court that the witness whose deposition was recorded and preserved under S.512, Cr.P.C. is either dead or incapable of giving evidence or his attendance cannot be procured without any unreasonable delay, expenses or inconvenience---Court in such circumstances is required to exercise proper judicial care and caution while conducting such proceedings at both the stages, the one under S.512, Cr.P.C. and the other when such evidence is required to be used against the accused at a subsequent trial on his arrest---On both the occasions Court must comply with the mandatory requirements of the said provisions of law and its judicial satisfaction on both the occasions must rest on cogent evidence recorded therein, because any action taken or order made in vacuum or short of the prescribed standard, would make the evidence so recorded of no legal worth to be used against the accused person.

(b) Administration of justice----

----Application of law---To apply the correct law to a particular case is the exclusive legal obligation of the Courts alone---Party to a lis is not required to point out as to how and in what manner the law is to be applied nor it is required to engage a counsel for the assistance of the Court in the discharge of its judicial functions---All actions and orders of Court of law being judicial must be in conformity with the principles of law and justice and such end can only be secured by complying with the law in its letter and spirit---Any short cut course adopted in violation of the mandatory provision of law would, therefore, be bereft of legal sanctity and hence of no legal effect.

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

----S. 324---Criminal Procedure Code (V of 1898), S.512---Qanun-e­-Shahadat (10 of 1984), Art.46---Trial Court while convicting the accused had relied on the statements of the prosecution witnesses including the complainant which had been recorded earlier in proceedings under S.512, Cr.P.C.---Evidence of the search witness was inconclusive in substance because mere non-availability of a witness on a given address could not constitute legal basis for holding that he could not be procured without any amount of delay, inconvenience or expenses---Transfer of the statements of the prosecution witnesses to the present file and using the same as substantive evidence against the accused by the Trial Court was in flagrant violation of the mandatory provisions of law and. the same being absolutely inadmissible was liable to be ignored---Charge and evidence against all the five accused was-indivisible in its nature and substance and therefore, none of them could be pointed out with clarity to have caused the only single injury to the complainant in the absence of any evidence on record to that effect---Trial Court had acted on self-assumed hypothesis in convicting the accused as in its view the three empties found on the spot were having proximal nexus with the accused which was based on misreading of evidence---Even high probabilities, in the absence of legal evidence, could not be instituted for a legal proof connecting nexus of the accused with the recovery of the said crime empties---Such view being fallacious could not be approved on legal standards---When ocular evidence was disbelieved then abscondence alone could not play any role in the conviction of accused because it was the weakest type of corroboratory evidence---Accused was acquitted in circumstances.

Ali Haider v. The State PLD 1958 SC (Pak.) 392; Allah Ditta v. The State PLD 1958 SC (Pak.) 290; Farman Ali and 3 others v. The State PLD 1980 SC 201 and Ghulam Sikandar v. Mumrez P L D 1985 SC 11 ref.

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

----S. 512---Record of evidence in absence of accused---Evidentiary value of statements recorded under S.512, Cr.P.C.---Statements recorded under S.512, Cr.P.C. and validly transferred in the prescribed manner to the file of the Trial Court, no doubt, fall within the category of substantive evidence, but still judicial wisdom requires much care and caution to be exercised by the Courts before placing reliance on the same more so when recording conviction on a capital charge, because such statements are not subjected to cross-examination---Court, in such a case must look for strong independent corroboratory evidence sufficient enough to enhance the evidentiary value of such evidence to an extent where the guilt of the accused is established beyond reasonable doubts---Degree and quality of corroboratory evidence comparatively must be on higher level.

(e) Criminal trial---

----Motive---motive is only corroboratory evidence and in the background of blood feud it is always considered to be a double-edged weapon as it may prompt an enemy to level a false charge against his innocent opponent.

(f) Criminal trial------

----Abscondence---Abscondence is the weakest type of corroboratory evidence and where ocular evidence is disbelieved it alone cannot form a basis for conviction.

Javed A. Khan for Appellant.

Syed Manzoor Ahmad for the Complainant.

Date of hearing: 17th October, 2003.

P L D 2004 Peshawar 30

Before Shah Jehan Khan, J

LAIQ DAD and others---Petitioners

versus

Mst. NOOR JEHAN and others---Respondents

Civil Revision No.609 of 1998, decided on 23rd May, 2003.

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

----Art. 163---Oaths Act (X of 1873), S.8---Special oath---Disposal of dispute---Principles---If a party or witness in proceedings makes an offer for disposal of dispute on special oath, it is obligatory and not mandatory for the Court to accept the same---Offer of taking special oath can only be accepted if it is not repugnant to justice and decency---When a party cannot substantiate his claim through evidence, the provisions of Art. 163 of Qanun-e-Shahadat, 1984 would come into play---When a claim can be established through evidence, the suit cannot be disposed of on taking oath either by plaintiff or by the defendant---Only in a situation where both the parties agree upon disposal of suit on the basis of general or special oath and both of them reduce their such consent into writing and determine the terms of oath, the suit can be disposed of by taking oath in the terms settled by the parties---Parties are bound by, the terms of oath and Court should dispose of matter in the same manner.

(b) Oaths Act (10 of 1873)---

----Ss. 8 & 10---Qanun-e-Shahadat (10 of 1984), Art.163---Disposal of dispute through oath---Absence of oath agreement between parties--­Effect---Without an agreement between contesting parties for disposal of dispute through special or general oath, the Court cannot force any of the parties to take oath in support of its claim or to accept the offer of the other party for taking of oath in rebuttal of the claim of the party.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Art.76---Title over suit land--­Plea of Pardahnashin lady---Failure to produce secondary evidence---Sale mutations in favour of defendants were assailed by plaintiffs on the ground of fraud---Trial Court decreed the suit for the reason that the plaintiffs were Pardahnashin ladies and the person who identified them was not produced as witness by the defendants---Judgment and decree passed by the Trial Court were maintained by Appellate Court--­Validity ---No attempt was made by defendant to produce the identifier although he had died during the proceedings---No evidence was available to show that at, the time of submission of list of witnesses by the defendant, the identifier was not alive---Even no attempt was made to produce secondary evidence due to the death of the identifier---No corroborative evidence of the -solitary deposition of one of the defendants, although the Trial Court had given sufficient opportunities to establish the genuineness of the sale mutation in their favour---Concurrent findings of the two Courts below were neither suffering from any jurisdictional or any other legal infirmity or misreading or non-reading of evidence---Such findings were immune from interference by High Court under its revisional jurisdiction.

Mst. Miraj Bibi and others v. Province of Punjab 2001 SCMR 1591 and Mst. Jannat Bibi v. Sikandar Ali- and others PLD 1990 SC 642 ref.

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

----Arts 117 & 120---Burden of proof ---Pardahnashin lady ---Principle--­Where Pardanashin lady is party to a suit, burden is on the male contestants to establish the ouster of Pardanashin lady from ownership or possession or any other right allegedly transferred to the male person.

Ghulam Ali and others v. Mst. Ghullam Sarwar Naqvi PLD 1990 SC 1 and Fateh Sher v. Sharif Khasun and others 1986 CLC 320 ref.

Abdul Raziq Khan for Petitioners.

Haji M. Zahir Shah for Responders.

Date of hearing: 23rd May, 2003.

P L D 2004 Peshawar 38

Before Talaat Qayum Qureshi, J

ASIMULLAH KHAN and another---Petitioners

versus

IHSAN ULLAH KHAN and another---Respondents

Civil Revision No.816 of 2003, decided on 29th September, 2003.

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

----O. VIII, R. 10 & O. IX, R. 6---Passing ex parte decree on date which was not fixed for hearing---Presiding Officer of Court was not present on the date which was fixed for filing written statement by, defendant and date was adjourned on note of Reader of the Court---Presiding Officer of the Court was not available on adjourned date and case was again adjourned on the note of Reader and was posted for another date, but on the date so posted ex parte decree was passed against defendant---Date on which ex parte decree was passed against defendant, being not the date of hearing, no ex parte decree could be passed against defendant on the said date.

Nosheri Khan v. Said Ahmad 1983 SCR 1092 and Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97 ref.

(b) Administration of justice---

---- Law demanded that dispute should be decided on merits and technicalities should not become hurdle in the way of justice.

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

---; S.115---Revisional jurisdiction, exercise of---Appellate Court having decided matter after rightly appreciating the material on record, order passed by it could not be interfered with by High Court in exercise of its revisional jurisdiction.

Ziaur Rehman for Petitioners.

P L D 2004 Peshawar 40

Before Talaat Qayum Qureshi, J

MILITARY ESTATE OFFICER and another‑‑‑Petitioners

versus

Syed QAMOOS SHAH and 20 others‑‑‑Respondents

Civil Revision No. 144 of 1995, decided on 31st October, 2003.

(a) Limitation‑‑‑

‑‑‑‑ Delay, condonation of‑‑‑In order to get the delay condoned, delay of each day has to be explained.

Federation of Pakistan v. Jamaluddin 1996 SCMR 727 and Income Tax Officer v. Messrs Sh. Miran Bakhsh Ltd. and 25 others 1986 SCMR 1255 ref.

(b) Limitation‑‑‑

‑‑‑‑ Delay, condonation of‑‑‑Government could not be given preferential treatment and was to be treated at par with common litigants.

Pakistan through Secretary, Ministry of Defence v. Messrs Azhar Brothers Limited 1990 SCMR 1059 ref.

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

‑‑‑‑S. 115‑‑‑Specific Relief Act (I of 1877), S.42 ‑‑‑ Cantonments Act (II of 1924), S.273‑‑‑Suit for declaration‑‑‑Maintainability‑‑‑Revision‑‑‑Suit having concurrently been decreed by Trial Court as well as by Appellate Court, defendants filed revision against concurrent judgments and decrees of Courts below in which maintainability of suit was challenged on the ground that plaintiff had failed to serve notice under S.273 of Cantonments Act, 1924 on defendant‑Authorities before filing the suit‑‑­Said specific objection with regard to non‑issuance of notice neither was taken by defendant‑Authorities in written statement before Trial Court nor in memo. of appeal before Appellate Court or even in grounds of revision filed by defendants in the revision against concurrent judgments and decrees of Courts below‑‑‑Said objection could not be raised at belated stage in revision.

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

‑‑‑‑S.115‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Suit for declaration‑‑­Revisional jurisdiction, exercise of‑‑‑Court below after properly appreciating evidence available on record had concurrently decreed the suit‑‑‑In absence of any misreading/non‑reading of evidence on record by Courts below, their concurrent judgment and decrees could not be interfered with in revision by the High Court when there was no illegality, material irregularity or any jurisdictional error in said judgment and decrees warranting interference.

Salahuddin Khan, D.A.‑G. for Petitioners.

Haji Muhammad Zahir Shah for Respondents.

Date of hearing: 31st October, 2003.

P L D 2004 Peshawar 44

Before Ejaz Afzal Khan, J

DIRECTOR (IS & ML), N.W. F. P. ---Appellant

Versus

DISTRICT LAND ACQUISITION COLLECTOR and others---Respondents

Regular First Appeal No.84 of 2000, decided on 1st December. 2003.

Land Acquisition Act (I of 1894)---

----Ss.4, 18, 50(2) & 54---Acquisition of land- --Reference to Court--­Appeal had been directed against order whereby referee Court had dismissed reference filed by appellant on ground that it was not filed by a competent person within the terms of S.50(2) of Land Acquisition Act, 1894---Law had since been amended and right of reference had been conferred on the Federal Government including acquiring defendant as held by Shariat Appellate Bench of Supreme Court m Shariat Appeal No.7 of 1989---Referee Court, in circumstances, had not acted in accordance with declared law by dismissing reference without adverting to the merits of the case---Allowing appeal impugned order was set aside and case was sent back to the Referee Judge/Court for decision afresh in accordance with law after giving an opportunity to produce evidence in support of respective claims.

Haji Muhammad Pervez and 3 others v. Engineer Azizullah Khan and 4 others PLD 1999 Pesh.53; Messrs Ittehad Cement Industries v. Government of Balochistan through Secretary Industry, Quetta and 4 others 1997 CLC 562; Pakistan through Military Estate Officer, Kharian Cantt. and another v. Abdul Hayee Khan through Legal Heirs and 5 others PLD 1995 SC 418 and Iftikhar Hussain Shah and others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi and others 1991 SCMR 2193 ref.

Sikandar Rashid for Appellant.

Muhammad Alam Khan for Respondent No.4.

Fazal Muhammad, Tehsildar for the Remaining Respondents.

Date of hearing: 1st December, 2003.

P L D 2004 Peshawar 47

Before Tariq Parvez and Dost Muhammad Khan, JJ

NAZEEM KHAN---Petitioner

Versus

INSPECTOR-GENERAL OF PRISONS, GOVERNMENT OF N.-W.F.P. and 2 others---Respondents

Writ Petition No. 1207 of 2003, decided on 29th January, 2004.

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

----S. 382-B---Control of Narcotic Substances Act (XXV of 1997), S.9--­Pakistan Prison Rules, Chap.15, Rr.373, 375, 378, 381, 383 & Chap. 8, Rr. 204(i) & 216(2)---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---- Detention" and "sentence"---Distinction--­Contention of the petitioner was that although the benefit of S.382-B, Cr.P C. was extended to him as under-trial prisoner but the Jail Authorities had denied him the concession of remissions granted at different occasions by the relevant Authorities during the said period--­Petitioner had claimed that if the concession of remissions, thus granted, were allowed to him he was entitled to be released as by adding the period of remissions his sentence would come to an end---Validity--­Benefit extended under S.382-B, Cr.P.C. was confined only to the extent and length of detention of under-trial prisoners in the matter of sentence unassociated with the grant of remissions, the latter one was only permissible to prisoners undergoing sentence of imprisonment--­Principles.

Legally the two law terms i.e. "detention" and "sentence" have altogether different meaning and connotation.

Detention under the Court order is the one where an accused person is kept in jail pending trial or inquiry as ordinary prisoner without undergoing any hard labour and without facing rigorous imprisonment.

Under the Jail 'Manual under-trial prisoners and those sentenced to imprisonment are distinctly classified. The under-trial prisoners in view of Chapter 15 of the Pakistan Prison Rules are a privileged class of prisoners. According to rule 373 they are entitled as of right to wear their own clothes, to use their own bedding and if they are destitute they are to be essentially provided those facilities at State expenses.

Again under rule 375 an under-trial prisoner can be allowed to receive food, private clothing, bedding and other necessities of his choice from private sources including cash money. He is entitled to cook food of his choice for himself even in jail premises under rule 378.

Further, under rule 381 under-trial prisoner cannot be employed in any type of labour except productive labour if he voluntarily opts for that. Similarly under rule 383 under-trial prisoners are to be kept separately from the convict prisoners and their ward/barrack of confinement is to be regularly attended for sweeping, cleaning and supplying of food and water purposes. They are further allowed to have their own books/newspaper to read if approved by the Jailer.

On the contrary prisoners undergoing sentence of imprisonment have no such privileges and they are required to render hard labour of different kinds including the labour in the jail factory or elsewhere under the direction of the Jailer, therefore, the two classes of prisoners are distinctly placed and classified. The classificationis based on sound and justifiable rationale.

Not only because the under-trial prisoner gets preferential treatment during detention but the law itself has drawn a sharp distinction between the two legal terms i.e. "detention" and "sentence", therefore, these two phrases cannot be considered or taken synonymous or pari materia to each other.

The fundamental principle and canon of interpreting a Statue is that Court must give and pay due regard to a clear intent of the maker. It is only in case of ambiguity in a Statute which would entitle the Court to make efforts by interpreting a Statute in a manner which is in consonance with the settled principle of justice and to advance the cause of the Statute, its purposes and to suppress the mischief.

The Legislature, while enacting the provision of section 382-B, Cr.P.C. under legal presumption, was knowing well about the relevant provisions contained in the Jail Rules pertaining to grant of remissions in sentences to prisoners, no ignorance could be attributed to it in this regard. Thus judged from this angle, Legislature has deliberately employed the word "detention" and the words "shall take into consideration the period" while awarding sentence. The benefit thus extended by the Legislature is confined only to the extent and length of detention of under-trial prisoners in the matter of sentence unassociated with the grant of remissions. The latter one is only permissible to prisoners undergoing sentence of imprisonment--[Zia-ur-Rehman's case W.P. No.221 of 2001 dissented from.]

Zia-ur-Rehman's case W.P. No.221 of 2001 dissented from.

Akbar Khan Marwat's case H. C. P. No. 10 of 2002 ref.

(b) Interpretation of statutes---

---- Intention of Legislature---Ambiguity in a statute---Effect---Court must give and pay due regard to a clear intent of the law maker.

Ambiguity in a statute would entitle the Court to make efforts by interpreting same in a manner which was in consonance with the settled principles of justice and to advance the cause of the statute, its purpose and to suppress the mischief.

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

----S. 382-B---Scope and interpretation of S.382-B, Cr.P.C. ---Contention was that scope of S.382-B, Cr.P.C. could be enlarged by interpreting the same in a manner beneficial to the accused so that to cover the lacuna left therein in not mentioning the words "remission in sentences" and the period of detention to be considered as that of substantive sentence undergone---Validity---Held, contention was misconceived because the suggested interpretation if given effect, would, certainly defeat the clear intent of the law makers and the Court would indulge in adding or including into the plain language of the Statute something which was deliberately omitted by the Legislature and that would certainly amount to legislation which was not the province of the Court-- [Zia-ur-Rehman's case W.P. No.221 of 2001 dissented from.]

Zia-ur-Rehman's case W.P. No.221 of 2001 dissented from.

Akbar Khan Marwat's case H.C.P. No. 10 of 2002 ref.

(d) Precedent---

---- Subsequent Division Bench of High Court shall not dissent from the law enunciated by earlier Division Bench on the same subject-matter and in case the subsequent Division Bench has reasons to disagree, then the proper course to be adopted is to refer the same to a larger Bench or it be left open to be decided by the Supreme Court---Principles.

A subsequent Division Bench shall not dissent from tile law enunciated by earlier Division Bench on the same subject-matter and in case it has reasons to disagree then the proper course to be adopted is to refer the same to a larger Bench or it be left open to be decided by the Supreme Court.

The object of this principle is to maintain, uniformity and consistency of views/decisions in different Benches of the same High Court and is aimed at to foster, develop and channelize the system of justice to an extent sufficient enough for the general public to repose its firm confidence in the same.

Ajudhiya Prashad Ram Prashad v. Sham Sundhar and others AIR 1947 Lah. 13 and Province of East Pakistan v. Dr. Aziz-ul-Islam PLD 1963 SC 296 ref.

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

----S. 382-B---Pakistan Prison Rules, Chap.8, Rr.204(i) & 216(2)----Constitution of Pakistan (1973), Art.199---Constitutional petition--­Benefit of remission granted during the period the prisoner was confined to the hospital bed for treatment, was available to him---Principles.

The prayer of the petitioner seeking the benefit of remission granted during the period when he was confined to hospital bed for treatment, undoubtedly is based on sound footings because principles of justice rules of propriety and good conscience favour him in this regard. He did not render hard labour during the said period because of ill-­health he was unable to perform it. It was not the case of refusal on his part to render hard labour, therefore, the refusal of the Jail Authorities to grant the benefit of remission to him during the period when he was under treatment as indoor patient both inside and outside the jail cannot be approved on the above principles. To refuse this concession to the petitioner would tantamount to treat him inhumanly, harshly, the same would be equally violative of the spirit of the Prison Rules itself because hard labour cannot be taken from a prisoner who is unable to perform it on account of serious illness, therefore, High Court directed that the Jail Authorities shall extend to the petitioner the benefit of the remissions granted by different authorities during, the period when he was unable to perform hard labour because of his illness and having been admitted in the hospital as indoor patient for treatment.

Abdul Sattar Khan and Noor Alam Khan for Petitioner.

Akhtar Naveed, D.A.-G. for Respondent No. 1.

Dates of hearing: 14th and 29th January, 2004.

P L D 2004 Peshawar 54

Before Nasir-ul‑Mulk and Dost Muhammad Khan, JJ

NIHAYAT ULLAH‑‑‑Petitioner

Versus

SECRETARY, LOCAL GOVERNMENT AND RURAL DEVELOPMENT, GOVERNMENT OF N.‑W.F.P., CIVIL SECRETARIAT, PESHAWAR and 17 others‑‑‑Respondents

Writ Petition No.920 of 2003, decided on 2nd December, 2003.

(a) North‑West Frontier Province Local Government Ordinance (XIV of 2001)‑‑‑

‑‑‑‑S. 85(4)(5)‑‑‑Constitution of Pakistan (1973), Arts.5(2) & 199‑‑­Constitutional petition‑‑-Vote of no‑confidence‑‑‑Non‑issuance of notification by District Government/Zila Nazim‑‑‑Duties of District Government‑‑‑Grievance of the petitioner was that vote of no‑confidence passed against him by majority of the councillors and subsequent notification issued by Provincial Government were without jurisdiction‑‑‑Plea raised by the petitioner was that notification could not be issued as the neighbouring union council was not constituted‑‑‑Validity‑-‑District Government/Zila Nazim, had no option or authority under S.85(5) of North‑West Frontier Province Local Government Ordinance, 2001, to refuse the issuance of notification once an internal recall motion was passed by the majority‑‑‑Law had made it obligatory for the District Government/Zila Nazim to issue the notification as the word "shall" had been used in S.85(5) of North‑West Frontier Province Local Government Ordinance, 2001‑‑‑As soon as approved internal recall motion was received by the District Government/Zila Nazim it took legal effects and refusal on its part to notify it amounted to defy the law‑‑­Non‑issuance of notification by District Government had no legal effects rather to the contrary as soon as the approved recall motion was handed over to the District Government, the notification had become effective and operative in the field‑‑‑Petitioner was deemed to have ceased to hold the office from the date when the notification was received by the District Government‑‑‑No different interpretation could be placed on the provision of S.85(4) of North‑West Frontier Province Local Government Ordinance, 2001 as the same would put a clog on the union council's statutory right to remove its Nazim or Naib Nazim from office in the laid down manner till the time when the neighbourhood council was constituted‑‑‑Such interpretation would amount to impose upon them the office‑bearers against their wishes and consent for unlimited period in those areas where neighbourhood councils were not in existence‑‑‑High Court observed that if plea raised by the petitioner would be allowed the same would have a negative, damaging and hurting effect on the entire system and would be an unreasonable approach to the problem‑‑­Approval of vote of no‑confidence from neighbourhood council would be mandatory when the council existed at the relevant time‑‑‑Article 5(2) of the Constitution had made it obligatory for every citizen to show respect and obedience to the Constitution and law‑‑‑Defiance shown to the provision of law by District Government was an act which was ultra vires of the Constitutional command and mandate of law‑‑‑Act of District Government was void ab initio and could not be used by the petitioner for his protection in usurping public office to which he was not entitled‑‑‑High Court declined any relief to the petitioner in Constitutional jurisdiction‑‑‑Petition was dismissed in circumstances.

(b) Interpretation of statutes‑‑

‑‑‑‑ Court has to strive in search of such interpretation which advances the cause and suppresses the mischief.

(c) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑­Constitutional jurisdiction of High Court can be invoked in aid of justice and not to help retention of ill‑gotten gains.

Abdul Latif Afridi for Petitioner.

Musarat Halali, A.A.‑G. for Respondents Nos. 1 to 4.

Respondent No.7 in person.

Fazal Elahi Khan for Respondent Nos. 10, 11, 17 and 18.

Zia‑ur‑Rehman Khan for the Remaining Respondents.

Date of hearing: 2nd December, 2003.

P L D 2004 Peshawar 59

Before Tariq Parvez and Ijaz‑ul‑Hasan Khan, JJ

AQAL KHAN and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Jail Criminal Appeal No.31 of 2003, decided on 13th November, 2003.

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

‑‑‑‑Ss. 9, 9(b) & 9(c)‑‑‑Appreciation of evidence‑‑‑Although 280 Kilograms "Charas" and 78 kilograms opium had allegedly been recovered from the accused, yet only one kilogram "Charas" and one kilogram opium were produced before the Trial Court‑‑‑Samples were 10 grams each‑‑‑Report of the Chemical Examiner showed that three samples of 10 grams each were sent for analysis, two of which contained "Charas" and the third sample contained opium‑‑‑Culpability of the accused could, therefore, only be regarding one packet from which the samples were taken‑‑‑Accused, thus, were convicted under S.9(b) of the Control of Narcotic Substances Act, 1997, for possessing opium weighing one kilogram as proved and under S.9(c) of the said Act for possessing more than one kilogram "Charas" as proved and sentenced to suffer seven years' R.I. each on each count with fine‑‑‑Sentences were directed to run concurrently‑‑‑Appeal was disposed of accordingly.

Noor Alam Khan for Appellants.

Hamid Farooq Hussain, D.A.‑G. for the State.

Date of hearing: 13th November, 2003.

P L D 2004 Peshawar 62

Before Ijaz‑ul‑Hassan Khan, J

MANZOOR ELAHI‑‑‑Appellant

Versus

Mst. SURRAYA JABIN‑‑‑Respondent

First Appeal from Order No. 160 of 2001, decided on 22nd July, 2003.

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

‑‑‑‑Ss. 17 & 24‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 117 & 120‑‑­Bona fide personal need of landlady‑‑‑Onus to prove‑‑‑Son of landlady appeared as her attorney before Rent Controller and fully substantiated her claim‑‑‑Attorney was subjected to the test of lengthy and searching cross‑examination to shatter his testimony but nothing favourable could be elicited from him‑‑‑Other witnesses examined on behalf of the landlady had also supported her claim‑‑‑Rent Controller allowed the ejecetment application and passed eviction order against tenant‑‑­Validity ‑‑‑Qualitative evidence existed to establish that rented premises were required by the landlady in good faith. and her demand was genuine‑‑‑Burden to prove her bona fides and good faith was upon the landlady and §he had discharged the same to the satisfaction of the Rent Controller‑‑‑High Court in exercise of appellate jurisdiction declined to interfere with the eviction order passed by the Rent Controller.

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

‑‑‑‑Art. 133‑‑‑Examination of witness‑‑‑Omission to cross‑examine witness on material part of his evidence‑‑‑Presumption‑‑Such omission gives rise to inference that truth of his statement has been accepted‑‑­Unchallenged statement of witness should be given full credit and usually accepted as true unless displaced by reliable, cogent and clear evidence.

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

‑‑‑‑S. 17‑‑‑Bona fide personal need of landlady‑‑‑Non‑appearance of landlady in witness‑box‑‑‑Plea raised by the tenant was that the landlady had been appearing before Sub‑Registrar in her property matters‑‑­Effect‑‑‑Such non‑appearance would not reflect adversely on her claim for possession‑‑‑No absolute rule existed that in every case landlord must appear in person in support of his claim because exceptions can always be there in cases where on account of some unavoidable circumstances it was not possible for the landlord to enter in the witness‑box to support his plea‑‑‑Legitimate cause and reason for a suitor could be there to give for non‑appearance in the case meaning thereby that some reason was required to be offered by landlord as to why he himself was abstaining from appearing , in Court‑‑‑Landlady, in the present case, was Pardahnashin of advance age having grown up sons and she had appointed one of them as her attorney‑‑‑Mere fact that landlady had been appearing before Sub‑Registrar in connection with her property matter but she had opted not to appear before Rent Controller, by itself, created no hurdle in her way to make an application for ejectment ‑‑‑Plea raised by the tenant was repelled in circumstances.

Gohar Rashid v. Fazal Hassan Mughal PLD 1995 Lah. 469 ref.

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

‑‑‑‑S. 17‑‑‑Bona fide personal need of landlady‑‑‑Non‑mention of nature of intended business in ejectment application‑‑‑Landlady had to state in her applicator the material facts which constituted a cause of action and had to state the facts which prima facie showed that the requirement was according to law and. was made in good faith‑‑‑Landlady had so stated in her application‑‑‑Not essential to state the nature of business which the landlady intended to carry on as it was not part of the cause of action.

1980 SCMR 593 and 1998 MLD 1765 ref.

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

‑‑‑‑S. 17(2)(vi)‑‑‑Ejectment of tenant‑‑‑Reconstruction of premises, plea of‑‑‑Requirements‑‑‑Landlord seeking eviction on the ground of reconstruction has to prove only that he needs the site for reconstruction and necessary sanction has been obtained‑‑‑Not incumbent under law that landlord should also attach approved plan with the application for ejectment ‑‑‑Approved plan from Cantonment Board for reconstruction of rented premises is sufficient to establish bona fides unless it is shown from evidence on record that the approved site plan has been produced as an excuse to deprive the tenant of possession of rented premises‑‑­Landlord may claim entire building or portion of building for reconstruction according to his needs‑‑‑No restrictive provision exists that landlord could claim only one part of building and not the whole building or not more than one premises in building existed‑‑‑When landlord needs whole building it is seen in the context of requirement of reconstruction‑‑‑Landlord in order to prove demolition and re construction of building, is not required to show or prove that building is in any way dilapidated and required reconstruction but he has to show only his intention to demolisli and reconstruct it.

1989 CLC 1662; 1988 SCMR 798; 2000 SCMR 1080; PLD 1997 Pesh. 80; 1989 CLC 1401 and PLD 1988 Pesh. 153 ref.

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

‑‑‑‑S. 17(2) & 17(9)‑‑‑Recovery of possession by landlord‑‑‑Protection to tenant‑‑‑Sufficient protection is provided under S.17(9) of Cantonments Rent Restriction Act, 1963, to tenant in case landlord does not occupy premises after getting it vacated through eviction order under S.17(2) of Cantonments Rent Restriction Act, 1963‑‑‑Tenant may have recourse to such remedy.

1996 SCMR 97 and 1996 SCMR 382 ref.

Syed Asif Shah for Appellant.

Zahid Aman Khan for Respondent.

Date of hearing: 30th June, 2003.

P L D 2004 Peshawar 70

Before Ijaz‑ul‑Hassan Khan, J

NAEEM KHAN‑‑‑Petitioner

Versus

THE STATE and 2 others‑‑‑Respondents

Criminal Bail Application No.518 of 2003, decided on 18th February, 2004.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/324/148/149‑‑‑Juvenile Justice System Ordinance (XXII of 2000), Ss.2(b) & 10(7)(c), proviso‑‑­Grant of bail to a child ‑‑‑Bail was sought on the ground that accused was minor aged 13 years, 4 months and 13 days at the time of commission of offence‑‑‑Mere fact that accused was child/minor, would not ipso facto entitle him to concession of bail‑‑‑Every case had to be examined on its own merits and Court could not be swayed away on the plea of minority alone‑‑‑Gravity of the offence and other attending circumstances ought to be kept in mind by the Court while exercising such discretion‑‑‑Juvenile Justice System Ordinance, 2000 being a special law enforced in order to safeguard the rights of children/minors involved in criminal cases, who deserved reasonable concession because of their tender age, was to be liberally interpreted in favour of accused and if the age of such an accused would be one day less than 18 years, he would come within definition of "child" as contained in S.2(b) of Juvenile Justice System Ordinance, 2000 and would be entitled to grant of bail even if involved in case punishable with death‑‑‑Said concession, however, was subject to limitations contained in cl.(c) of subsection (7) of S.10 of Juvenile Justice System Ordinance, 2000, under which, if the Court would come to the conclusion that reasonable grounds were available to believe that such child was involved in an offence which in its opinion, was serious, heinous, gruesome, brutal, sensational in character or shocking to public morality or he was a previous convict of offence punishable with death or imprisonment for life, then he would not be entitled to that concession ‑‑‑F.I.R. in the present case revealed that accused stood saddled with responsibility of indulging alongwith others in indiscriminate firing culminating into murder of three defence less persons‑‑‑Accused, in circumstances, could not be released on bail‑‑‑Bail application of accused, was dismissed, in circumstances.

Muhammad Sharif v. Shafqat alias Shaukat 1999 SCMR 338 and Habibullah v. The State 2003 PCr.LJ 1788 ref.

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

‑‑‑‑Ss. 2(b) & 10(7)(c). proviso‑‑‑Interpretation, application and scope of Ss.2(b) & 10(7)(c) of the juvenile Justice System Ordinance, 2000‑‑­Juvenile Justice System Ordinance, 2000 being a special law enforced in order to safeguard the rights of children/minors involved in criminal cases, who deserved reasonable concession because of their tender age, was to be liberally interpreted in favour of accused and if the age of such an accused would be one day less than 18 years, he would come within definition of "child" as contained in S.2(b) of Juvenile Justice System Ordinance, 2000 and would be entitled to grant of bail even if involved in case punishable with death‑‑‑Said concession, however, was subject to limitations contained in cl.(c) of subsection (7) of S.10 of Juvenile Justice System Ordinance, 2000, under which, if the Court would come to the conclusion that reasonable grounds were available to believe that such child was involved in an offence which in its opinion, was serious, heinous, gruesome, brutal, sensational in character or shocking to public morality or he was a previous convict of offence punishable with death or imprisonment for life, then he would not be entitled to that concession.

Muhammad Sharif v. Shafqat alias Shaukat 1999 SCMR 338 and Habibullah v. The State 2003 PCr.LJ 1788 ref.

S. Fakhruddin Shah for Petitioner.

Shaukat Hayat Khan, D.A.‑G. for the State.

Naimatullah Jamal for the Complainant.

Date of hearing: 18th February, 2004.

P L D 2004 Peshawar 73

Before Fazlur Rehman Khan, J

MUSLIM and others‑‑‑Petitioners

Versus

AKBAR SAID BACHA and others‑‑‑Respondents

Civil Revision No. 159 of 2003, decided on 9th January, 2004.

Specific Relief Act (I of 1877)‑‑‑--

‑‑‑‑S. 8‑‑‑Civil Procedure Code (V of 1908), S. 151 & O.IX, R.13‑‑­Limitation Act (IX of 1908), Art. 181‑‑‑Suit for possession of house‑‑‑Ex parte decree. setting aside of‑‑‑Limitation‑‑‑Summons was issued to defendants, but they having refused to accept service of summons, were placed ex parte and case against them was decreed ex parte‑‑‑Application for setting aside ex parte decree was filed by defendants after about six days of passing of ex parte decree. but same was dismissed in default­ Defendants thereafter filed an application for restoration of application for setting aside ex parte decree which application was allowed by Trial Court, but on filing appeal against order of Trial Court, said application was rejected by the Appellate Court‑‑‑Appellate Court was of the view that not only the application for restoration of application for setting aside ex parte was time‑barred, but also application for setting aside ex parte decree was barred by time‑‑‑Validity‑‑‑Findings of Appellate Court were not justified for the reasons that first application for setting aside ex parte decree had not vet been decided as it was still pending before the Trial Court‑‑‑As far second application for restoration of first application, no express provision existed in C.P.C. for filing such an application and same could either be filed under O.IX, R.13, C.P.C. or more conveniently, in order to prevent the abuse of process of the Court under S.151, C.P.C. and such application would fall under residuary Art‑181 of Limitation Act, 1908 under which period of limitation was three years from the date when right to apply would accrue‑‑‑Second application for restoration of first application which was dismissed having been filed after about one year and nine months, same was well within three years as provided by Art.181 of Limitation Act, 1908‑‑­Order of Appellate Court was not maintainable and was set aside and order. of Trial Court was restored.

PLD 971 Kar. 182; PLD 1981 Azad J&K 1(2) and PLD 1986 Pesh. 81 ref.

Syed Muhammad Ateeq Shah for Petitioners.

Jan Muhammad for Respondents.

Date of hearing: 9th January, 2004.

P L D 2004 Peshawar 77

Before Mian Shakirullah Jan, C.J.

and Shahzad Akbar Khan, J

MAHMOOD KHAN and others‑‑‑Appellants

Versus

COLLECTOR ACQUISITION/A.C., SWABI and others‑‑‑Respondents

Regular First Appeal No.30 of 1997, decided on 25th June, 2003.

Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss.4, 11, 18, 23 & 54‑‑‑Acquisition of land‑‑Compensation, determination of‑‑‑Appeal‑‑‑Landowner whose land was acquired could not establish that market value of the acquired land was higher than what was determined by Collector and affirmed by referee Court‑‑‑Landowner could neither produce any document nor did he product person concerned whose property was acquired allegedly on higher market rate‑‑‑Acquired land which was `Maira' type was located far off the road and had not any potential value‑‑‑Landowner did not snake request for appointment of Local Commissioner at any stage of the proceedings nor made request for summoning of record of Provincial Government‑‑‑Village was at some distance from acquired land‑‑‑No justification was found to enhance the price of acquired land.

Muzamil Khan for Appellants.

Malik Ahmad Jan, D.A.‑G. for Respondent No. 1.

M. Alam and Ghulam Ali for Respondent No.2.

Date of hearing: 21st May, 2003.

P L D 2004 Peshawar 80

Before Talaat Qayum Qureshi, J

GOVERNMENT OF N.‑W.F.P. and others‑‑‑Petitioners

Versus

BAKHT JAMAL and others‑‑‑Respondents

Civil Revisions Nos. 123 of 1997 and 561 of 2003, decided on 18th December, 2003.

Forests Act (XVI of 1927)‑‑‑--

------S. 29(3)‑‑‑Specific Relief Act (I of 1877), S. 42‑‑‑Suit for declaration‑‑‑Property whether a protected forest property or privately owned property‑‑‑Determination of‑‑‑Plaintiff claimed to be owner of property in dispute on basis of registered sale‑deed and also had claimed to be in possession of the same since its purchase‑‑‑Nothing was on the record to indicate as to whether any inquiry was conducted by officials of Government to find out right of Government (Forest and Environmental Department) and that of plaintiff as required under subsection (3) of S.29 of Forests Act, 1927‑‑‑Provincial Government through Secretary, Forest and Environmental Department, was directed to hold enquiry through impartial official‑‑‑Courts below having failed to appreciate said legal position their judgments and decrees were set aside and case was remanded to Trial Court with direction to allow parties to adduce further evidence in support of their respective claims and to decide matter afresh after receipt of report from Enquiry Officer and strictly in accordance with law within specified period.

Maj. Azam Khan Affandi v. D.C., Swat and 7 others 2000 SCMR 548 ref.

Sardar Shaukat Hayat Khan, A.A.‑G. for Petitioners.

Muhammad Asif for Respondents.

Date of hearing: 18th December, 2003.

P L D 2004 Peshawar 84

Before Ijaz‑ul‑Hassan Khan, J

SHAKEEL ABBAS ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 116 of 2003, decided on 18th March, 2004.

(a) Prohibition (Enforcement of Hadd) Order (4 of 1979)‑‑‑--

‑‑‑‑Arts. 3/4‑‑‑Appreciation of evidence‑‑‑Prosecution had brought sufficient material on file to prove that pursuant to credible information, accused was arrested and during search 20 grams of heroin were recovered from his possession‑‑‑Investigating Officer separated one gram out of recovered contraband and sent same to Chemical Examiner for examination and report received from him was in positive‑‑‑Prosecution had sufficiently proved case against accused whose presence at the spot at the relevant time had been accepted by accused himself‑‑‑In absence of any enmity, no chance was of false implication of accused and conviction of accused was liable to be maintained‑‑‑Plea of accused regarding his false involvement in case seemed to be afterthought and had no basis‑‑­Accused had failed to point out any discrepancy or flaw creating dent in prosecution story‑‑‑Heroin in question having been recovered from personal possession of accused, he was guilty of offence with which he was charged‑‑‑Prosecution having succeeded to establish its case against accused who had failed to prove his innocence, conviction and sentence recorded against him by Trial Court, were maintained.

Mushtaq v. The State 2002 PCr.LJ 1312 ref.

(b) Criminal trial‑‑

‑‑‑‑Burden of proof‑‑‑When an accused at a criminal trial made a specific plea, onus invariably would shift towards him and he was required to prove evidence and prove his plea or at least his plea should be supported by attending circumstances and it should not be unfounded altogether.

Ghulam Hur Khan for Appellant.

Muhammad Sharif Chaudhry, Dy A.‑G. for the State.

Date of hearing 18th March, 2004.

P L D 2004 Peshawar 87

Before Talaat Qayum Qureshi, J

ABDUR RAZAQ and 3 others‑‑‑Petitioners

Versus

THE STATE and 2 others‑‑‑Respondents

Criminal Miscellaneous No.24 of 2003, decided on 19th March, 2004.

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

‑‑‑‑Ss.145 & 561‑A‑‑‑Breach of peace‑‑‑Jurisdiction of criminal Court‑‑­Petition for quashing of order‑‑‑Jurisdiction of Criminal Court under S.145, Cr.P.C. could only be invoked on the ground of likelihood of breach of peace and for such purpose the Court intending to take cognizance of the matter must consider objectively the facts and circumstances of the case and to satisfy itself whether likelihood of breach of peace existed or not‑‑‑Settlement of dispute relating to property which was not likely to lead to a breach of peace, was within the exclusive jurisdiction of Civil Court if there was no imminent danger to the public peace‑‑‑Magistrate should not take cognizance under S.145, Cr.P.C. and need not determine the factum of actual physical possession of disputed property‑‑‑Complainant in case had resorted to criminal Court under S.145, Cr.P.C. only to put additional pressure on petitioners‑‑‑Dispute, if any between parties was purely of civil nature‑‑‑Impugned order was set aside and proceedings pending against petitioners under S.145, Cr.P.C. were quashed, in circumstances.

PLD 1997 Pesh. 70; Qari Gran v. Muhammad Jan and another PLD 1996 SC 541; PLD 1992 SC 406; PLD 2003 SC 578; 1987 SCMR 1371; 1999 PCr.LJ 1558; PLD 2002 Pesh. 6; Muhammad Ishaque Chowdhury v. Nur Mahal Begum and others PLD 1961 SC 426 and The State v. Abdul Sattar and others PLD 1965 Kar.305 ref.

Shamsud Din for Petitioners.

Ghulam Younis Khan Tanoli for the State.

Nisar Hussain Khan for Respondents Nos. 2 and 3.

Date of hearing: 16th March, 2004.

P L D 2004 Peshawar 91

Before Ijaz‑ul‑Hassan Khan, J

MEHTAR YOUSAF‑‑‑Petitioner

Versus

THE STATE and another ‑‑‑ Respondents

Criminal Miscellaneous Quashment, Petition No.29 of 2003, decided on 16th March, 2004.

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

‑‑‑‑Ss. 516‑A, 517 & 561‑A‑‑‑Superdari of vehicle‑‑‑Petition for quashing of order‑‑‑Petitioner was the only person who had claimed Superdari of vehicle in question‑‑‑Said vehicle, admittedly was taken into possession from custody and control of petitioner‑‑‑It would, in circumstances, be just and legal to accept application filed by petitioner in respect of Superdari‑‑‑In case where no rival claimants were for Superdari of a vehicle, then vehicle should ordinarily be given on Superdari to person from whom it was taken possession of‑‑‑Criminal Courts were not competent to investigate into the question of title as their jurisdiction was confined under S.516‑A, Cr.P.C. or for that matter under S.517, Cr.P.C. to the determination of entitlement of possession and not title to the property‑‑‑Question of ownership was to be determined by a competent Civil Court.

Malik Muhammad Rafiquee, v. Tehseen Qureshi 1986 SCMR 1536; Mst. Khadija Begum. v. Sessions Judge, Sahiwal 1986 PCr.LJ 954; Muhammad Ramzan. v. The State NLR 1990 Cr.LJ 72; Humayun Azam. v. Ch. Sadiq, Inspector/SHO, Police Station Kunjah, District Gujrat and 3 others 1999 MLD 1676 and Arbab Khan v. The State 1990 PCr.LJ 649 ref.

Gohar Zaman Khan Kundi for Petitioner.

S. Abid Hussain Shah Bukhari for Respondents.

Date of hearing: 11th March, 2004.

P L D 2004 Peshawar 95

Before Dost Muhammad Khan, J

MUHAMMAD ASLAM and others‑‑‑Petitioners

Versus

MUHAMMAD ASLAM and others‑‑‑Respondents

Civil Revision No.35 of 1998, decided on 25th February, 2004.

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

‑‑‑‑Ss. 44, 52 & 53‑‑‑North‑West Frontier Province Tenancy Act (XXV of 1950), Ss.4, 4‑A & 83‑‑‑Specific Relief Act (I of 1877), Ss.8, 42 & 54‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit for declaration, injunction and possession‑‑‑Entries in record of rights‑‑‑Correction of‑‑­Limitation‑‑‑Revision petition‑‑‑Plaintiff in their suit for declaration, injunction and possession had sought decree to the effect that disputed Khasra was in their ownership because it remained in possession of their predecessor‑in‑interest for a very long duration as occupancy tenant and that their status was then converted into ownership‑‑‑Plaintiff had claimed the subsequent change in the entries made in record of rights in year 1947‑48 showing predecessor‑in‑interest of defendant as occupancy tenants and thereafter attestation of two impugned mutations in favour of defendant was collusive result of fraud and against the facts on record and were liable to be corrected‑‑‑Suit was concurrently decreed by Courts below‑‑‑Validity‑‑‑Predecessor‑in‑interest of defendants as a result of settlement carried out in the district concerned, was found to be in possession of Khasra No. in dispute as occupancy tenant‑‑‑Entries in record of right having been made in year 1947‑48 in consequence of settlement carried out in the area, same were validly incorporated and said change brought in record of right was not against mode prescribed by West Pakistan Land Revenue Act, 1967 and Rules to which strong presumption of correctness was attached‑‑‑Said entries remained intact till the time when predecessor‑in‑interest of defendants was declared entitled to ownership of disputed Khasra No. because of occupancy right and mutation impugned in the suit having been attested in their favour‑‑ Accordingly under S.4 of North West Frontier Province Tenancy Act, 1950, predecessor‑in‑interest of defendants was legally entitled to assume status of owner of disputed Khasra No. on the strength of their occupancy right so recorded‑‑‑Mutations, in circumstances were properly attested‑‑‑Suit which could be filed within three years under S.83 of North‑West Frontier Province, 1950 from the date of promulgation of said Act, had been filed after about 40 years from said promulgation, and thus was barred by time‑‑‑Courts below were not justified to decree suit filed by plaintiff.

Akram and others v. Zakaria Khan and others PLD 1962 Pesh. 7; Sher Ali Khan v. Nawab and others PLD 1962 Pesh. 110 and Mada v. Muhammad Sharif and 39 others 1997 SCMR 338 rel.

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

‑‑‑‑O. VI, R.1‑‑‑Pleadings‑‑‑Party could not make a departure from its pleadings and was bound by the same‑‑‑Even no evidence contrary to the pleading could be permitted to be adduced by a party to the suit.

(c) Administration of justice‑‑‑

‑‑‑‑Person who made inconsistent statement, was not entitled to be listened to because his credibility was drastically shaken.

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

‑‑‑‑S. 115‑‑‑Specific Relief Act (I of 1877), Ss.8, 42 & 54‑‑‑Revisional jurisdiction, exercise of‑‑‑Interference by High Court in its limited powers under S.115, C. P. C, though was to be made in very exceptional and rare cases once concurrent findings were recorded by the two Courts below, but instant case reflected entirely different picture both on points of law and facts‑‑‑Not only admitted facts and evidence on record ‑was ignored by two Courts below, but also the law applicable was not applied‑‑‑Foremost duty of Courts to apply correct law to admit facts and misapplication or non‑application of correct law would tender its decision nullity in the eye of law‑‑‑Findings recorded by two Courts below, in circumstances had caused failure of justice and could not be maintained‑‑‑High Court accepting revision petition, set aside concurrent judgments and decrees of Courts below and suit filed by plaintiff was dismissed.

Abdullah Jan Mirza assisted by Masud‑ur‑Rehman Awan for Petitioners.

Khalid Rehman Qureshi for Respondents No. 1 to 15.

Date of hearing: 25th February, 2004.

P L D 2004 Peshawar 101

Before Ijaz‑ul‑Hassan Khan, J

KHAN SHAREEN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Bail Petition No.505 of 2003, decided on 9th March, 2004.

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

‑‑‑‑S. 497‑‑‑Bail, grant of‑‑‑Principles‑‑‑While considering matter of an accused involved in a non‑bailable offence, if there appeared reasonable grounds for believing that he was guilty of an offence punishable with death or` imprisonment for life, he would not be released on bail unless case was covered by any of provisions in subsection (1) of S.497, Cr.P.C.‑‑‑If it appeared to Court at any stage of investigation inquiry or trial, that no reasonable grounds existed, but sufficient grounds were available for further inquiry into his guilt, accused would be released on bail under S.497(2), Cr.P.C.‑‑‑Exercise carried out by the Court, in matters concerning bail was a preliminary one and was restricted to a tentative sifting of evidence on record as against to an elaborate sifting of same‑‑‑Court had only to see whether accused was connected with commission of crime or not and for that purpose, only tentative assessment of evidence was to be made and deeper appreciation was not called for‑‑‑Mind of the Court had to be satisfied that case under its consideration was or was not fit for grant of bail.

Amir v. The State PLD 1972 SC 277 ref.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/353/224/427/148/149‑‑‑Bail, grant of‑‑‑Alleged incident was one of broad daylight murder‑‑‑Citation of independent witnesses, question regarding mistaken identity, false, implication on mere suspicion, alleged conflict between ocular account and medical evidence or the question as to from whose fire shot who was murdered or injured, were issues which should safely be left to Trial Court to appreciate the same at trial itself and not at the bail stage‑‑‑Accused, in the present case having not been able to successfully demonstrate existence of circumstances justifying grant of bail, his application was dismissed and bail was refused.

Muhammad Sharif v. Shafqat Hussain 1999 SCMR 338 and Abdul Hai v. the State 1996 S C M R 555 ref.

Sultan Sheheryar Khan for Petitioner.

Saleemullah Khan Ranazai for Respondents.

Date of hearing: 9th March, 2004.

P L D 2004 Peshawar 104

Before Shah Jehan Khan and Ijaz‑ul‑Hassan Khan, JJ

SAKHI ZAMAN Petitioner

Versus

Mst. SHAZIA and 3 others‑‑‑Respondents

Writ Petition No. 17 of 2003, decided on 27th February, 2004.

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

‑‑‑‑Art. 132 & 133‑‑‑Cross‑examination‑‑‑A material part of the statement if not questioned, in cross‑examination, would be deemed to be accepted and admitted by the opposite party.

(b) West Pakistan Family Courts Act (XXV of 1964)‑‑‑--

‑‑‑‑S. 5 & Sched.‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Appreciation of evidence‑‑‑Constitutional jurisdiction, exercise of‑‑­Appraisal of evidence was the function of Family Court which lay within its exclusive jurisdiction‑‑‑Finding of fact recorded by Family Court could not be interfered with in Constitutional jurisdiction of High Court where it was not shown to be based on misreading or non‑reading of material evidence and reasons had been given in support of the conclusion arrived at‑‑‑Order passed by the Court below could not be interfered with in Constitutional jurisdiction of High Court unless same was mala fide, arbitrary, perverse or the Court below had acted in excess of its jurisdiction.

Khalil Ahmad v. Allah Rakhi and another 1994 MLD 119 and Abdul Faheem v. Mst. Shahnaz Begum and another 2003 CLC 1450 ref.

(c) West Pakistan Family Courts Act (XXXV of 1964)‑‑--

‑‑‑‑S. 14‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Order passed by Appellate Court below was speaking order containing reasons for passage of same and no legitimate exception could be taken to said reasons‑‑‑Apart from that no jurisdictional infirmity, illegality of approach, irregularity of procedure or perversity of reasoning on the part of Appellate Court below had been pointed out so as to warrant interference by High Court through exercise of its Constitutional jurisdiction.

Gauhar Zaman Khan Kundi for Petitioner.

P L D 2004 Peshawar 106

Before Malik Hamid Saeed and Talaat Qayum Qureshi, JJ

MAMREZ and 16 others‑‑‑Appellants

Versus

FEDERAL GOVERNMENT through Collector and 4 others‑‑‑Respondents

Regular First Appeal No. 153 of 2003, decided on 27th January, 2004.

Land Acquisition Act (I of 1894)‑---

‑‑‑‑Ss.4 & 18‑‑‑Acquisition of land‑‑‑Reference for enhancement of compensation‑‑‑Limitation‑‑‑Once an objection petition was referred by Collector to Referee Judge for its determination, same could not be dismissed on the question of limitation.

Government of West Pakistan (now Government of N.‑W‑F.P.) through Collector, Peshawar v. Arbab Haji Ahmad Ali Jan and others PLD 1981 SC 516; Government of West Pakistan (now Government of N.‑W.F.P.) and 2 others v. Mst. Asmatun Nisa and 6 others PLD 1988 SC 109; Hassan Imdad v. Deputy Commissioner/Collector, Lasbella PLD 1985 Quetta 1; Province of Punjab through Collector, Bahawalpur and another v. Babu Khan 1997 MLD 2577 and Muhammad Rafiq Khan v. Province of Punjab and others 1992 CLC 1775 ref.

Gul Sadber for Appellants.

Imtiaz Ali, Addl. A.‑G. for the Federal Government.

Date of hearing: 27th January, 2004.

P L D 2004 Peshawar 109

Before Talaat Qayum Qureshi, J

SHAH WAZIR KHAN and others‑‑‑Petitioners

Versus

ABDUR RAZAQ and others‑‑‑Respondents

Civil Revision No.344 of 2002, decided on 29th March, 2004.

Civil Procedure Code (V of 1908)‑‑‑--

‑‑‑‑O. XLI, Rr.23 & 24‑‑‑Remand of case‑‑‑Appellate Court under O.XLI, R.23, C.P.C. no doubt, had the power to remand a case to Trial Court, but said power was to be exercised when available record was not sufficient for deciding the points in controversy‑‑‑ Where sufficient evidence was available on record and controversy could be resolved on the basis of such available evidence, then Appellate Court under O.XLI, R.24, C.P.C. after re‑settling the issue, if necessary, would finally determine the suit and the question of its remand would not arise‑‑­Remand of case on technical reason, keeping in view the increasing tendency, could not be appreciated‑‑‑Where Appellate Court could itself dispose of a case, it should refrain from remanding the case, unless it would feel that evidence on record was not sufficient but that too was to be avoided particularly when parties have had full opportunities of presenting their evidence‑‑‑Sufficient material was available on record which stood exhibited on file and on basis of said material, Appellate, Court could itself decide controversy between the parties, but same was not done‑‑‑Case could not have been remanded, in circumstances‑‑‑Case was sent back to Appellate Court below for deciding appeal afresh in the light of available record within specified period.

Ashiq Ali and others v. Mst. Zamir Fatima and others PLD 2004 SC 10 ref.

Saeed Baig for Petitioners.

Muhammad Ashraf Khan for Respondents.

Date of hearing: 29th March, 2003.

P L D 2004 Peshawar 112

Before Talaat Qayum Qureshi, J

Mst. SHABAN and another‑‑‑Petitioners

Versus

ABDUL MANAN‑‑‑Respondent

Civil Revision No.95 of 2003, decided on 18th December, 2003.

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

‑‑‑‑Ss. 11 & 12(2)‑‑‑Re‑opening the matter finally decided‑‑‑Ground of fraud‑‑‑Resort to civil action for re‑opening the matter finally decided up to level of highest Court in the country, was not proper even on a new ground of fraud which ground being available, was not taken in earlier round.

Muhammad Shafique and others v. Atta Muhammad and others 1985 SCMR 1272; Abdul Majid and others v. Abdul Ghafoor Khan and others PLD 1982 SC 146; PLD 1988 Lah.398; 1992 CLC 2430; Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710; Asif Jan Siddiqi v. Government of Sindh and others PLD 1983 SC 46 ref.

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

‑‑‑‑Ss. 12(2) & 115‑‑‑Revisional jurisdiction, exercise of‑‑‑Court below had rightly dismissed application filed by petitioners under S.12(2), C.P.C.‑‑‑In absence of any material irregularity, jurisdictional error or defect warranting interference in order/judgment passed by Court below, revision petition filed against said order/judgment was rightly dismissed.

Arbab Muhammad Usman Khan for Petitioners.

Amjad Ali for Respondent.

Date of hearing: 18th December, 2003.

P L D 2004 Peshawar 115

Before Mian Shakirullah Jan, C.J and Ijaz‑ul‑Hassan Khan, J

SHAMSHADA‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Jail Criminal Appeal Nos. 184 and 185 of 2003, heard on 13th January, 2004.

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

‑‑‑‑Ss. 9(c), 20 & 25‑‑‑Criminal Procedure Code (V of 1898), S.103‑‑­Appreciation of evidence‑‑‑Recovery proceedings‑‑‑Explanation offered by one of the accused persons for his false implication in offence, was not plausible as he had not been able to explain the purpose of his traveling in the vehicle with a stranger/co‑accused‑‑‑Prosecution witnesses‑ had no enmity or grudge against accused to involve him in the case‑‑‑Huge quantity of Charas and Opium had been recovered from `Gathri' under reference and prosecution witnesses were consistent regarding the time and place of occurrence and recovery of articles and the manner in which it had been effected‑‑‑Such a large quantity of contraband material could not be believed to have planted by police just to implicate accused for nothing‑‑‑Provisions of S.103, Cr.P.C. had been excluded under S.25 of Control of Narcotic Substances Act, 1997 and provisions of S.20 of said Act were directory in nature‑‑‑Non‑compliance of provisions of 5.103, Cr.P.C. could not be considered as a strong ground for holding that trial of accused was bad in the eye of law‑‑‑Accused had contended that on material particulars, prosecution evidence being inconsistent, contradictory and doubtful, same, even in absence of defence evidence, could not result into conviction of accused‑‑‑Contention was repelled because accused had not been able to point out any, discrepancy or flaw in prosecution case so as to render judgment of Trial Court as not sustainable‑‑‑Personal search of co­ accused resulted into recovery of huge quantity of Charas from her possession and said recovery had been proved satisfactorily through evidence furnished by complainant and other prosecution witnesses‑‑­Prosecution witnesses had been cross‑examined at length, but their evidence had not been shattered‑‑‑Discrepancies pointed out by co‑accused were of no importance‑‑‑Prosecution having been successful in proving its case against accused, no exception could be taken to judgment of Trial Court convicting and sentencing accused.

Nek Muhammad and another v. State PLD 1995 SC 516; State through Advocate‑General Sindh v. Qazi Parvez Iqbal and others PLD 1978 SC 64; Mushtaq v State 2002 PCr.LJ 1312; Amanullah alias Aman v. The State 2000 PCr.LJ 1536; Abdul Ghani and others v. The State 2001 PCr.LJ 2027; Munawar Hussain and others v. The State 1993 SCMR 7890; Munawar Hussain and 2 others v. The State 1993 SCMR 785; Muhammad Farooq Afridi v. The State 2002 PCr.LJ 196 ref.

(b) Criminal trial‑‑‑--

‑‑‑‑Burden of proof‑‑‑When an accused at a criminal trial would take a specific plea, the onus invariably would shift and accused was required to produce evidence and prove his plea or at least his plea should be supported by attending circumstances and it should not be unfounded altogether.

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

‑‑‑‑S. 103‑‑‑Search and recovery proceedings‑‑‑Aim and object of S.103, Cr.P.C.‑‑‑Main aim and object of enacting of S.103, Cr.P.C. was to ensure that search and recovery were conducted honestly, and fairly and to exclude any possibility of concoction and transgression‑‑‑Statement of official could not be discarded simply on the ground that he was a police official‑‑‑Official witnesses were as good as private witnesses‑‑‑Police officials were competent witnesses to attest a recovery memo.

Fida Jan v. The State 2001 SCMR 36 ref.

(d) Criminal trial‑‑‑--

‑‑‑‑Each criminal case would stand on its own footings‑‑‑Facts and circumstances in one case could not be quite similar or on all fours to the other.

Assadullah Champain for Appellant.

Khalid Khan for the State.

Date of hearing: 13th January, 2004.

P L D 2004 Peshawar 121

Before Ijaz‑ul‑Hasan Khan, J

AFSAR KHAN alias AFSARI and 3 others‑‑‑Appellants

Versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No.72 of 2003, decided on 4th March, 2004.

Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑S. 353‑‑‑Anti‑Terrorism Act (XXVII of 1997), Ss.7‑B & 7‑H‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13 ‑‑‑ Appreciation‑ of evidence‑‑‑Police on having received authentic information surrounded the village of accused to apprehend them who in order to foil the attempt resorted to indiscriminate firing‑‑‑Police party also fired in retaliation‑‑­One person was injured and one person lost his life in the occurrence‑‑­Accused were apprehended and a large quantity of arms and ammunition was recovered from them‑‑‑More than 100 crime empties were recovered from the spot‑‑‑No misreading or non‑reading of evidence resulting into miscarriage of justice was pointed out‑‑‑Prosecution evidence was unanimous on all material particulars‑‑‑No bitterness or ill‑will existed between the prosecution witnesses and the accused so as to prompt the former to falsely implicate the latter in the case‑‑‑Convictions and sentences of accused were upheld in circumstances.

Abdul Rashid and others v. The State 1994 PCr.LJ 186 and The State through, Advocate‑General, N.‑W.F.P. Peshawar v. Tawab Khan and another 2002 PCr.LJ 377 ref.

Allah Nawaz Khan for Appellants.

Shukat Hayat Khan Khakwani, D.A.‑G. for the State.

Date of hearing : 21st January, 2004.

P L D 2004 Peshawar 125

Before Qazi Ehsanullah Qureshi, J

GULAP KHAN‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous Bail No.360 of 2003, decided on 21st November, 2003.

Criminal Procedure Code (V of 1898)—­

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.457/380‑‑‑Bail, grant of‑‑­ Charge of theft of gold ornaments ‑‑‑F.I.R. and Recovery memo. contradicted each other and were inconsistent‑‑‑Such fact required to be thrashed out at trial stage‑‑‑Case against accused was of further inquiry‑‑‑Accused was granted bail in circumstances.

1996 SCMR 511 and 2002 SCMR 442 ref.

Muhammad Yaqoob Khan Merwat for Petitioner.

Shaukat Hayat Khan, D.A.‑G. for the State.

Complainant in person.

Date of hearing; 21st November, 2003.

P L D 2004 Peshawar 126

Before Malik Hamid Saeed and Talaat Qayum Qureshi, JJ

BAKHTI REHMAN‑‑‑Appellant

Versus

THE STATE and others‑‑‑Respondents

Jail Criminal Appeal No.583 and Murder Reference No.30 of 2003, decided on 4th March, 2004.

(a) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑S. 302‑‑‑Punishment of Qatl‑i‑Amd‑‑‑ Sentence of death for Qatl‑i-­Amd can be awarded either by way of Qisas or Ta'zir ‑‑‑ Where death as Ta'zir is not awarded, but the offence of Qatl‑i‑Amd is proved, in absence of evidence as required under 5.304, P.P.C. it is the discretion of the Court to award imprisonment for life, which in fact is relatable to the facts and circumstances of the case i.e., any mitigating circumstances appearing in evidence.

(b) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑Ss. 306 & 308‑‑‑Punishment in Qatl‑i‑Amd not liable to Qisas‑‑­Section 306, P.P.C. only exonerates the offender from the punishment of Qisas and once the offender is so exonerated, his crime is punishable under S.308, P.P.C.‑‑‑Pre‑condition for bringing the case within the purview of S.308, P.P.C. would be that the offence should be Qatl‑i­-Amd liable to Qisas‑‑‑A person cannot be held guilty of Qatl‑i‑Amd liable to Qisas unless the case has been tested on the yardstick of evidence as provided under S.304, P.P.C.

(c) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑Ss. 304 & 306‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.17‑‑‑Qisas punishment‑‑‑Pre‑requisites‑‑‑Pre‑requisites for Qisas punishment are the proofs as provided in 5.304, P.P.C. itself with reference to either accused making confession before the Trial Court or as required under Art. 17 of Qanun‑e‑Shahadat, 1984.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 306 & 308‑‑Applicability of Ss.306 & 308, P.P.C.‑‑‑Scope‑‑­Provisions of S.306 & 308, P.P.C. are applicable when the Court awards the sentence of death to an offender. under S.302(a), P.P.C. subject to the availability of the evidence as provided in S.304, P.P.C.

(e) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑Ss. 302(b) & 337‑‑‑Appreciation of evidence‑‑‑Accused had retracted from his confusion made before the Judicial Magistrate at the trial and witnesses of the occurrence were not subjected to the test of Tazkiyah‑al­-Shahood‑‑‑ Accused, thus, was not liable to be awarded punishment under S.302(a), P.P.C. and Trial Court, therefore, had sentenced him to death under S.302(b), P.P.C.‑‑‑Section 306, P.P.C., thus, could not be pressed into service‑‑‑Accused had killed his wife who had left behind male and female children and he had done so in exchange of hot words without any pre‑planning and motive‑‑‑Death sentence awarded to accused as Ta'zir was altered to imprisonment for life in circumstances‑‑‑Conviction and sentence under S.337, P.P.C. were maintained.

Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and others PLD 1997 SCMR 1307; Faqirullah v. Khaliluz Zaman 1999 SCMR 2203; Umar Hayat v. Jahangir and another 2002 SCMR 623 and Jehanzeb and another v. The State and others 2003 SCMR 98 ref.

Abdul Fayyaz Khan for Appellant.

Imtiaz Ali, A.A.‑G. for the State.

Khalil Khan Khalil for the Complainant.

Date of hearing: 27th January, 2004.

P L D 2004 Peshawar 134

Before Shahzad Akbar Khan and Fazlur Rehman Khan, JJ

Mst. NASEEM JAN‑‑‑Appellant

Versus

KHAWAJ MUHAMMAD ‑‑‑Respondent

Criminal Appeal No.63 of 1999, decided on 1st April, 2004.

(a) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑S. 302(b) Criminal Procedure Code (V of 1898), S. 417(2‑A)‑‑­Appeal against acquittal‑‑‑Approach of Trial Court to factum of motive was wholly erroneous‑‑‑All the three witnesses, were meticulously consistent on the broad features of occurrence‑‑‑Such witnesses were unanimous in saying that in their presence deceased was thrown on the ground and was given "Gaintee" blows by accused resulting into causing fatal injuries to deceased‑‑‑Even if due to some sort of soreness of relations of one of the prosecution witnesses with accused, testimony of said witness was to be considered with abundant caution, prosecution was left with an unimpeachable ocular account of other two prosecution witnesses who carried all characteristics of an independent and natural witnesses‑‑‑No evidence was on record to show that deceased had any enmity with some other person in the village who committed his murder and accused was made a scapegoat on ground of suspicion or animosity‑‑‑No probability existed of misidentification of accused‑‑­Medical report squarely supported prosecution version‑‑‑No reason was available to disbelieve testimony of prosecution witnesses which bore all appearances of truth and straightforwardness and their testimony was corroborated by other sources‑‑‑Alleged discrepancies alluded to by Trial Court were not of that significance which could rob eye‑witnesses of their credence‑‑‑Some discrepancies inevitably were bound tb ‑occur on account of lapse of memory owing to long intervening period that elapsed between the day of occurrence and recording of evidence‑‑‑Only material discrepancies coming into conflict with natural probabilities and militating against credibility of witnesses would justify the rejection of their testimony, but nothing of that kind was noticeable in the case‑­Even if confessional statement of accused was taken out of consideration, ii would not have the effect of uprooting the case of prosecution‑‑­Prosecution having successfully proved its case against accused on charge of Qatl‑e‑Amd of deceased, findings and conclusion of Trial Court were not tenable‑‑‑Judgment of Trial Court acquitting accused, was set aside and accused was held guilty of offence under S.302(b), P.P.C, however keeping in view advanced age of accused and time that elapsed in between filing of appeal against acquittal and its decision, punishment of death would not be proper and his imprisonments for life would serve the purpose of justice.

(b) Criminal trial‑‑‑--

‑‑‑‑ Interested witness‑‑‑Corroboration of interested witness‑‑­Principles‑‑‑Different ways of having corroboration ‑‑‑Corroboration of even an interested eye‑witness, would not mean the words of some other independent witness‑‑‑Corroboration could be in the form of any circumstantial evidence which lent support to testimony of eye­witnesses‑‑‑Rule that testimony of an interested witness could not be made basis of conviction was not an inflexible one‑‑‑Cases when interested witnesses came forward with a true account of event and their testimony was supported by corroborative evidence same could be relied upon for the conviction of accused even on charge involving capital punishment.

Nazir Hussain v. Muhammad Sharif PLD 1965 SC 188; Abdul Rashid v. Umeed Ali PLD 1975 SC 227 and The State v. Aminullah PLD 1972 Pesh. 92 ref.

Naseem Zaman Khan for Appellant.

Zahid Mufti and Qari A. Rashid, Dy.A.‑G. for the State.

Date of hearing: 1st April, 2004.

P L D 2004 Peshawar 143

Before Talaat Qayum Qureshi and Ijaz‑ul‑Hassan Khan, JJ

IFTIKHAR alias ISTIKHAR‑‑‑Appellant

Versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No. 109 of 2003, decided on 10th March, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b) & 324‑‑‑Appreciation of evidence‑‑‑F.I.R. had been lodged without any loss of time providing role played by the accused in the commission of the offence‑‑‑Complainant, the sole eye‑witness in the case, had fully supported the prosecution version giving all necessary details which could not be impeached despite lengthy cross ­examination‑‑‑Testimony of a solitary witness itself was not a demerit or disqualification calling for repudiation of the same when otherwise it rang true and inspired confidence‑‑‑Medical evidence was .in complete harmony with the ocular testimony‑‑‑Recovery of pellets from the chest of the deceased had strengthened the prosecution story‑‑‑Motive for the occurrence had been established‑‑‑Prolonged abscondence of accused had further corroborated the prosecution version‑‑­Complainant had no enmity to falsely depose against the accused‑‑­Occurrence had taken place in broad‑daylight‑‑‑Stand taken by accused in support of his false implication was far fetched and not impressive ‑‑‑Convictions and sentences of accused were upheld in circumstances.

Parikh's Textbook of Medical Jurisprudence and Toxicology, S.III, Part II, p.286; Sirja Din v. Kala and another PLD 1964 SC 26; Taj Muhammad v. Resham Khan and others 1986 SCMR 823; Farman Ali and others. v. The State PLD 1980 SC 20; Muhammad Ilyas v. The State 1997 SCMR 25; Asghar v. The State PLD 1970 Lah. 878; Mehmood ur Rehman v. The State 1996 PCr.LJ 238; Gul Muhammad v. The State 2002 PCr.LJ 1177; Sahibzar v. The State 2003 PCr.LJ 699; Naseer Muhammad v. The State 1985 SCMR 60; Irshad Ahmad and others v. The State and others PLD 1996 SC 138; Fazlur Rehman and 2 others v. The State PLD 1971 Lah. 883; Allah Bakhsh v. Shammi and others PLD 1980 SC 225; Muhammad Iqbal v. the State PLD 2001 SC 222; Saddar Khan and 3 others v. The State 1998 SCMR 1823; Muhammad Ali and others v. The State and others 1999 SCMR 1957; Noor Muhammad v. The State 1999 SCMR 2722; Gul Khan v. The State (1999 SCMR 304; Muhammad Salim v. The State 2001 SCMR 536; Riaz Hussain v. The State 2001 SCMR 177; Ehsanullah and others v. The State 1996 PCr.LJ 1039; Muhammad Hanif v. the State PLD 1993 SC 895; Sararaz alias Sappi and 2 others v. The State 2000 SCMR 1758; Muhammad Ramzan v. The State 1992 PLD 302; Government of Sindh v. Sobharo 1993 SCMR 585 and Aminullah v. The State PLD 1976 SC 632 ref.

(b) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑Ss. 302(b) & 324‑‑‑Appreciation of evidence‑‑‑Solitary eye‑witness‑‑­Principles‑‑Testimony of a solitary witness itself is not a demerit or disqualification to be repudiated when otherwise it rings true and inspires confidence.

(c) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑Ss. 302(b) & 324‑‑‑Prosecution witnesses, examination of‑‑­Prosecution is not bound to examine every witness of the occurrence even if cited as such‑‑‑Non‑examination of a witness would not reflect adversely on the prosecution case up less Strong reasons exist to support the version that if the said witness had been produced, it would have supported the defence plea.

(d) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑Ss. 302(b) & 324‑‑‑Appreciation of evidence‑‑‑Expert opinion‑‑­Principles‑‑‑Evidence furnished by an expert is always treated to be of confirmatory nature qua the ocular testimony and it will not outweigh the trustworthy, consistent and confidence inspiring ocular evidence.

Muhammad Hanif v. the State PLD 1993 SC 895; Sarfaraz alias Sappi and 2 others v. The State 2000 SCMR 1758 ref., (e) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Motive‑‑‑Motive is not a sine qua non for proving the offence of murder‑‑‑Mere absence of motive is no ground to doubt the truth of prosecution case.

Muhammad Ramzan v. The State 1992 PLD 302; Government of Sindh v. Sobharo 1993 SCMR 585 ref.

(f) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence ‑‑‑Abscondence‑‑‑Abscondence of accused at the most can be taken as corroboration of the charge and not as evidence of the charge ‑‑‑Abscondence of accused in absence of any other corroborative evidence, even if found convincing, would not be sufficient by itself to warrant his conviction on a charge of murder.

(g) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Sentence‑‑‑Offence when proved has to be met with the maximum sentence provided therefor‑‑‑However, there is no yardstick to restrict or curb the discretion of the Trial Court while passing the sentence‑‑‑Circumstances of each case would justify the severity or leniency in passing the legal sentence.

Syed Wilayat Ali Shah Bokhary for Appellant.

Waheedullah for the State.

Sohail Akhtar Khan for the Complainant.

Date of hearing: 10th December, 2003.

P L D 2004 Peshawar 152

Before Dost Muhammad Khan, J

SHER AMAN and others‑‑‑Appellants

Versus

PROJECT DIRECTOR, MARDAN, and others‑‑‑Respondents

Regular First Appeal No.25 of 1997, decided on 30th April, 20047

Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss.4, 11, 18 & 54‑‑‑Acquisition of land‑‑‑Determination of amount of compensation‑‑‑Reference to Court‑‑‑Landowner being dissatisfied with amount of compensation of acquired land as determined by Collector, filed reference to Referee Court for enhancement of amount of compensation‑‑‑Reference was dismissed on the ground of limitation‑‑­Apart from that question as to whether appellant was fairly compensated or not, Referee Court had relied upon Revenue Record and also evidence collected at the trial‑‑‑Authority had produced on record judgments wherein a Division Bench of High, Court had upheld compensation amount already determined‑‑‑No room therefore, was available for taking another view‑‑‑No case for interference having been made out, appeal filed by landowner, was dismissed.

Mozammil Khan for Appellants.

Muhammad Alam Khan and Ubaid Ullah Anwar, A.A.‑G. for Respondents.

Date of hearing: 30th April, 2004.

P L D 2004 Peshawar 154

Before Talaat Qayum Qureshi, J

AMANUL MULK‑‑‑Petitioner

Versus

MUHAMMAD HAYAT KHAN ‑Respondent

Civil Revision No.251 of 2004, decided on 7th May, 2004.

North‑West Frontier Province Pre‑emption Act (IV of 1987)‑‑‑---

‑‑‑‑Ss. 6 & 13‑‑‑Suit for pre‑emption ‑‑‑Making of Talbs‑‑‑Plaintiff not only had failed to mention the date, time and place when he made Talb‑i-­Muwathibat in his plaint, but also had failed to mention said facts in his statement when he was examined as witness‑‑‑Mentioning of date, time and place when Talb‑i‑Muwathibat was made, was a must to be mentioned in the plaint‑‑‑Appellate Court had rightly appreciated said legal position‑‑‑In absence of any misreading or non‑reading of evidence or any material illegality or jurisdictional error or defect in judgment and decree passed by Appellate Court, said judgment and decree could not be interfered with.

2002 CLC 336 and Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 ref.

Shahzad Gul for Petitioner

P L D 2004 Peshawar 155

Before Shahzad Akbar Khan, J

AMJAD QAYYUM BABAR ‑‑‑ Appellant

Versus

MUNIM S. MIR, DIRECTOR, EMMS, PRIVATE LIMITED, PESHAWAR‑‑‑Respondent

Regular First Appeal No.77 of 2003, decided on 28th April, 2004.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. I, Rr.3, 9 & 10‑‑‑Suit for recovery of amount ‑‑‑Non‑joinder of necessary party‑‑‑Suit filed against defendant who was Director of Company concerned, was dismissed by Trial Court on merits as well as for non‑joinder of necessary party‑‑‑Warranty in respect of machine in dispute which was sold to plaintiff by company through defendant, was issued by company concerned and was not executed by defendant in his individual capacity‑‑‑Plaintiff had not sued company which had issued warranty, but he sued defendant individually by name‑‑‑Liability of repair of said machine or replacement of defective parts thereof, had been incurred by company and not by defendant‑‑‑As transaction had taken place between plaintiff and company, warranty was a matter between plaintiff and company, but plaintiff did not bother to make any request to Trial Court for amendment of plaint so as to implead company as defendant, despite objection with regard to non‑joinder of necessary party was raised‑‑‑Suit, in absence of necessary party without which no effective decree could be passed, which was the company which was executant of warranty, could not proceed and was rightly dismissed being incompetent‑‑‑Judgment and decree passed by Trial Court, could not be interfered with in appeal.

Thakar Hari Ram v. Central Government through Secretary Commerce Department, Delhi, AIR 1941 Lah. 120; Gul Muhammad and another v. Mir Zaman and another PLD 1954 Lah. 406; National Bank of Pakistan v. Syed Muzammal Hussain PLD 1965 (W.P) Kar. 633; PLD 1987 Lah. 387 and Muhammad Din v. Sher Muhammad 1999 CLC 1526 ref.

Younis Khan Tanoli for Appellant.

Qazi Obaidur Rehman for Respondent.

Date of hearing: 28th April, 2004.

P L D 2004 Peshawar 160

Before Ijaz‑ul‑Hassan Khan. J

Before GERAZ KHAN‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous Bail Petition No.46 of 2004, decided on 13th April, 2004.

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

‑‑‑‑S. 497(2)‑‑‑Bail on ground of further inquiry‑‑‑Accused would only be entitled to bail when Court, on tentative assessment of the material brought before it, reaches the conclusion that no reasonable grounds exist for believing that he is guilty of a non‑bailable offence, or an offence punishable with death, imprisonment for life or imprisonment for ten years‑‑‑Court in absence of any such finding is debarred to hold that the case is of further inquiry entitling the accused to bail within the meaning of S.497(2), Cr.P.C.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/324/34‑‑‑Bail, refusal of‑‑‑Accused was nominated in the F.I.R. with the specific and express role attributed to him‑‑‑Ten crime empties were recovered from the place where the accused was shown to be present‑‑‑Accused had absconded after the occurrence‑‑‑Bail was declined to accused in circumstances.

Gohar Zaman Khan Kundi for Petitioner, Muhammad Sharif Chaudhry, D.A.‑G. for the State.

Naimatullah Jamal for the Complainant.

Date of hearing: 13th April, 2004.

P L D 2004 Peshawar 162

Before Shah Jahan Khan, J

MAQSOOD AHMAD‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.48 of 2003, decided on 19th January, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 308 & 182‑‑‑Appreciation of evidence‑‑‑Appeal was disposed of on merits instead of dismissing the same on technical ground of limitation‑‑‑Confessional statement of accused had been recorded by the Magistrate without any delay on the following day of his arrest which was sufficiently corroborated by the record‑‑‑Retraction of the accused from the confessional statement alone would not make it unbelievable‑‑­Motive for the occurrence stood admitted‑‑‑Crime weapon was registered in the name of accused who had conceded that the deceased was hit through it and this fact was further supported by the report of the Forensic Science Laboratory‑‑‑Overall circumstances brought on record had proved that the deceased wife of the accused was not hit accidentally as pleaded by the accused, but she was murdered by him intentionally‑‑­Conviction and sentences of accused were upheld ink circumstances‑‑­Appeal of accused was dismissed accordingly not only being barred by time but also being without substance.

2003 SCMR 1001, 1985 PCr.LJ 808 and 1978 PCr.LJ 546 ref.

Pir Bakhsh Mehtab for Appellant.

Jamshed Khan for the State.

Nemo for the Complainant.

Date of hearing: 19th January, 2004.

P L D 2004 Peshawar 168

Before Talaat Qayum Qureshi and Fazlur Rehman Khan, JJ

AFTAB AHMAD KHAN and others‑‑‑Appellants

Versus

Mst. SURAYAH BEGUM and 7 others‑‑‑Respondents

Regular First Appeal No.71 of 2003, decided on 22nd April, 2004.

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

‑‑‑‑O. XVII, R.3‑‑‑Failure to produce evidence‑‑‑Closing of evidence‑‑­Dismissal of suit‑‑‑Validity‑‑‑Plaintiff has been provided ample opportunities and repeated `last chance' for production of evidence, but he had failed to produce same‑‑‑Plaintiff was not only negligent in producing evidence, but had not cared about last chances provided and warnings given to him‑‑‑Order of Trial Court closing evidence of plaintiff was, thus, unexceptionable‑‑‑High Court dismissed appeal in circumstances.

PLD 1981 SC 474 ref.

Mian Gul Shahzad Aman Room and others v. Kameen Mian and others PLD 2003 Pesh. 60 and Fateh Sher v. Muhammad Zubair 2003 SCMR 797 rel.

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

‑‑‑‑O. XVII, R.3‑‑‑Failure to produce evidence‑‑‑Closing of evidence‑‑­Such order, if not challenged by filing appeal or revision or writ petition, would become final.

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

‑‑‑‑O. XVII, R.3 & O.XLI, R.27‑‑‑Failure to produce evidence‑‑‑Closing of evidence‑‑‑Dismissal of suit‑‑‑Application for production of additional evidence before Appellate Court‑‑‑Validity‑‑‑Plaintiff had been provided ample opportunities and last chances to produce evidence, but he had been negligent in producing evidence‑‑‑Allowing permission to adduce further evidence would amount to annulling order of closing of evidence, which had attained finality for not being challenged in appeal, revision or writ petition.

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

‑‑‑‑Art. 117 & 118‑‑‑Burden to prove his case is on the plaintiff and he cannot take advantage of weaknesses of the case of defendant.

Muhammad Sher and others v. Mst. Taj Meena and others PLD 1996 Pesh. 6 rel.

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

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), O.XLI, R.27‑‑‑Suit for declaration of title on basis of Municipal Committee record‑‑‑Proof of ownership‑‑‑Copy of Assessment Register of Municipal Committee‑‑­Admissibility in evidence‑‑‑Such record could not be conclusive proof of ownership of plaintiff and would not be admissible in evidence‑‑‑Entries made in Municipal record by officials of Municipal Committee on their own, were not based on either any title document or any decision of Court, thus, same could not confer any title of ownership on plaintiff nor same were admissible in evidence‑‑‑Neither plaintiff nor his attorney had bothered to depose in favour of case‑‑‑Suit was dismissed in circumstances.

Jassa Ram v. Puran Bhagat AIR 1938 Lah. 440 and Magan Nath and others v. Harbans Singh and others AIR 1936 Lah. 965 rel.

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

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), O.XLI, R.27‑‑‑Suit for declaration of title‑‑‑Dismissal of suit‑‑‑Application for production of further evidence before Appellant Court‑‑‑Validity‑‑‑List of documents attached with application, which plaintiff wanted to place on record 'showed that same comprised of judicial record; affidavits and Municipal Committee record‑‑‑Neither any document of title showing transfer of disputed property to plaintiff nor pedigree‑table of deceased was intended to be exhibited‑‑‑Such documents intended to be exhibited would not help plaintiff, even if he was allowed to be placed on file‑­Plaintiff was declined permission for further evidence in circumstances.

(g) Administration of justice‑‑

‑‑‑‑ Court is bound to decide each case on basis of its own record without reference to record of another case.

Muhammad Shakeel v. The State PLD 1990 SC 686 fol.

Abdur Rashid Awan for Appellants.

Qazi Muhammad Sheheryar for Respondents.

Date of hearing, 22nd April, 2004.

P L D 2004 Peshawar 175

Before Fazlur Rehman Khan and Shahzad Akbar Khan, JJ

Sardar MOAZZAM KHAN---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.209 of 2003, decided on 7th April, 2004.

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

----S. 6---"Terrorist Act"---Application and import---In order to attract the provisions of S.6 of the Anti-Terrorism Act, 1997, it is not necessary that the offence, as alleged, had in fact caused terror or insecurity in the society, but it would adequately attract the provisions of Act if it was likely to strike terror or sense of fear and insecurity in the society.

PLD 1998 SC 1445; W.P. 15843/2003; PLD 2003 Lahore 267; PLD 2003 SC 396; 2004 PCr.LJ 210; 2002 YLR 203; 2002 SCMR 908; PLD 2003 SC 224 and PLD 2003 SC 704 ref.

(b) Penal Code (XLV of 1860)—-

----Ss. 302(b) & 324---Anti-Terrorism Act (XXVII of 1997), S.7--­Appreciation of evidence---Case of accused fell within the jurisdiction of the Anti-Terrorism Court as the offences committed by him were not only heinous, but had actually created fear and insecurity in the society---Accused was named in F.I.R.---Ocular version, medical evidence, recovery of weapon of offence and matching of the crime Empty with the same,, as well as recovery of the car at the instance of accused and recovery of other incriminating articles therefrom, had all connected the accused with the crime---Eye-witnesses were independent and natural witnesses of the 'incident who had no enmity with the accused---Accused being a senior Advocate and incident taking place abruptly were not mitigating circumstances---Convictions and sentences of accused were upheld in circumstances.

PLD 1998 SC 1445; W.P. 15843/2003; PLD 2003 Lahore 267; PLD 2003 SC 396; 2004 PCr.LJ 210; 2002 YLR 203; 2002 SCMR 908; PLD 2003 SC 224 and PLD 2003 SC 704; PLD 2000 SC 111; PLD 2001 SC 521; PLD 2000 SC 169; PLD 2002 SC 841; 2002 SCMR 1017; 2002 SCMR 1225; 2002 SCMR 1325; 2002 SCMR 1934 and AIR 1944 Lah. 206 ref.

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

----Ss. 302(b) & 324---Appreciation of evidence---Site plan---Worth of site plan as against ocular evidence---Site plan is not a substantive piece of evidence and can be ignored when contradicted by a straightforward, trustworthy and confidence inspiring ocular evidence.

Dr. Khalid Ranjha assisted by Kh. Muhammad Khan, Saeed Akhtar Khan and Mirza Abdullah Jan for Appellant.

Barrister Jehanzib Rahim, A.-G., N.-W.F.P. for the State.

Mushtaq Ali Tahirkheli for the Complainant.

Dates of hearing 3rd, 4th, 5th, and 10th March, 2004.

P L D 2004 Peshawar 193

Before Nasir ul Mulk and Ijaz-ul-Hassan Khan, JJ

SAADULLAH KHAN alias SAIDAL and another---Appellants

Versus

THE STATE and another---Complainants

Criminal Appeal No. 112 of 2003, decided on 20th April, 2004.

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

----S. 118---Appreciation of evidence---Trial Court, after holding that claim of complainant having identified accused was not reliable and trustworthy and that accused were not responsible for the murder of deceased, could not legally convict accused persons under S.118, P. P. C. for which no charge was framed against them and no evidence was produced to connect them with the act of concealing the design to commit offence of murder of which names of real culprits were not known---No question was put to accused in their statement recorded under S.342, Cr.P.C. to have designed the murder in question; how could accused be convicted under S.118, P.P.C. without asking them to clarify their position---Occurrence was a night incident---Complainant was old man of 50/60 years of age and claimed to have identified accused in the light of bulb installed at the Mosque where he had said his prayers---Identification was not possible in view of distance between the complainant and the bulb, as indicated in the site-plan---Claim of complainant was not true and could not be made basis for conviction of accused---Complainant had admitted in his cross-examination that he was busy in urinating at a distance of 90 paces from the Mosque when he heard the report of fire shots---Such circumstances had also negated the assertion of complainant having witnessed occurrence and identified the accused---No circumstantial or other incriminating evidence was available to connect accused with the offence---Accused through unrebutted defence evidence, had proved their presence in judicial lock up in another Police Station in another District at the time of occurrence; it could thus confidently be said that accused were not present at the site of occurrence and had no hand in the murder of deceased and that claim of complainant having witnessed the occurrence and identified accused, stood belied by a host of circumstances---Judgment of conviction passed by Trial Court against accused was set aside and they were acquitted of charge against them.

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

----S. 342---Power to examine accused---Compliance with provision of S.342, Cr.P.C. in accordance with its terms, was essential and departure therefrom was not permissible, if some prejudice was shown to have been caused to accused---Use of word `shall' in later part of subsection (1) of S.342, Cr.P.C., denoted that examination of accused was mandatory and not discretionary---Object of examination of accused, was to give him an opportunity of explaining circumstances which tend to incriminate him or likely to influence mind of the Judge in arriving at a conclusion adverse to him.

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

----S. 342---Examination of accused was mandatory and not discretionary.

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

--------S. 342---Examination of accused---Object---Object of examination of accused under S.342, Cr.P.C. was to give him an opportunity for explaining circumstances tending to incriminate him or likely to influence mind of the Court in arriving at a conclusion adverse to him.

Sanaullah Khan Gandapur for Appellants.

Muhammad Sharif Chaudhry, D.A.-G. for the State.

Saleem Ullah Khan Ranazai for the Complainant.

Date of hearing: 20th April, 2004.

P L D 2004 Peshawar 198

Before Talaat Qayum Qureshi, J

AHBAN UTHOOL VILLAGE---Petitioners

Versus

AHBAN ZANI VILLAGE---Respondents

C.R. No.593 of 2001, decided on 5th April, 2004.

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

----O. XXIII, R. 1---Withdrawal of suit with permission to file fresh suit---Court under O.XXIII, R.1, C.P.C., had to satisfy; firstly, that the suit was liable to fail on account of some formal defect; secondly, that there were otherwise sufficient grounds to grant permission to withdraw suit; and lastly, that permission was to be granted on such terms as Court would deem fit.

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

----O. XXIII, R. 1---Specific Relief Act (I of 1877), S.42---Suit for declaration---Withdrawal of suit with permission to file fresh suit--­Plaintiff who sought withdrawal of suit with permission to file fresh suit had failed to indicate as to what were formal defects or what was sufficient cause to grant permission to plaintiffs to withdraw suit and file fresh suit on same cause of action---Material available on record to that effect was to be appreciated and Appellate Court should have satisfied itself before granting application of plaintiffs in that respect---Impugned order passed by Appellate Court granting permission to withdraw suit and to file fresh suit, was silent on such points---Since plaintiffs were allowed withdrawal of suit to file fresh suit on the grounds which were not contemplated under O.XXIII, R.I, C.P.C., Appellate Court had exercised jurisdiction vested in it irregularly---High Court allowing revision, set aside judgment and decree passed by Appellate Court and case was remitted back to be decided afresh in accordance with law.

Qazi Muhammad Jamil for Petitioners.

Isa Khan for Respondents.

Date of hearing: 5th April, 2004.

P L D 2004 Peshawar 202

Before Nasir ul Mulk and Talaat Qayum Qureshi, JJ

TEHMASH KHAN and another---Petitioners

Versus

GOHAR ALI and 13 others---Respondents

Writ Petition No.657 of 2004, decided on 26th May, 2004.

North-West Frontier Province Local Government Elections Ordinance (VI of 2000)---

----S. 14(b)---North-West Frontier Province Local Government Election Rules, 2000, Rr.18 & 70---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Rejection of nomination papers---Determination of age of candidate---Nomination papers filed by petitioner/candidate were rejected after scrutiny on the ground that petitioner was found not of 25 years of age on the day of filing of nomination papers---Petitioner claimed that according to Secondary School Certificate his date of birth was 28-6-1975, and he was thus qualified to contest election being more than 25 years old---Opposing candidate placed on record copy 'of Form Alif' showing date of birth of petitioner as 28-6-1976 and said document Was admitted in evidence without any objection from petitioner's side--­Election Tribunal gave preference to entries of Form 'Alif' on basis of which petitioner/candidate was issued National Identity Card---Findings of Election Tribunal could not be differed with because same was based on proper appreciation of law---Entries in FormAlif' on basis of which National Identity Card was issued to petitioner candidate, had more probative value than the entries made in Admission Register on basis of which Matriculation Certificate was issued---Age of petitioner being less than 25 years on date of filing nomination papers, he was rightly held disqualified for contesting election and his nomination papers were rightly rejected.

Syed Akhtar Hussain Zaidi v. Muhammad Yaqinuddin 1988 SCMR 753; Mst. Razia Khatoon through Legal Heirs v. Dr.Roshan H. Nanji and another 1991 SCMR 840; Zulfiqar Ali v. Haji Kamal Hussain and 27 others 1995 CLC 1383; Naheed Usmani v. Mst. Anwari Begum 1991 CLC 1774 and Master Muhammad Yaseen v. Moeenuddin 1990 CLC 703 ref.

Syed Masood Kausar for Petitioners.

Date of hearing: 26th May, 2004.

P L D 2004 Peshawar 207

Before Malik Hamid Saeed and Qazi Ehsanullah Qureshi, JJ

ABDUL AZIZ---Petitioner

Versus

Haji NOOR WALI and 3 others---Respondents

W.P No.676 of 2004, decided or 18th May, 2004.

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

----S. 86-A---Penal Code (XLV of 1860), Ss.419/420---Frontier Crimes Regulations (III of 1901), S.11---Constitution of Pakistan (1973), Art. 199---Constitutional Petition---Removal of accused to custody of Political Agency of Tribal Area---Accused in his Constitutional petition had challenged order whereby Magistrate proceeding in the matter under S.86-A, Cr.P.C. ordered removal of accused to APA/ADM Bara, Khyber Agency, holding that a strong prima facie case existed against accused with probable presumption that accused had committed fraud--- Validity---Magistrate had properly discussed evidence and had given sound reasons showing his satisfaction that evidence produced before him raised a strong or probable presumption that accused had committed offence mentioned in the warrant---Conclusion drawn by Magistrate was reasonable as complainant/respondent had successfully established factum of dishonestly capturing his amount by accused/petitioner, whereas petitioner could not bring on record anything to show that complaint was based merely for enforcement of a civil liability disclosing no criminal offence on his part.

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

----Art. 199---Crimial Procedure Code (V of 1898), Ss.86-A & 439-A---Constitutional jurisdiction---Scope---Before the High Court would proceed to exercise its 'jurisdiction under Art.199 of the Constitution in respect of a case pending before or decided by a Magistrate, it had to demonstrate by giving reason that relevant provisions of Cr.P.C. did not provide adequate remedy to petitioner in the matter---Order passed by the Magistrate was revisable order and as such adequate remedy by way of filing revision petition before Sessions Judge was available to petitioner under S.439-A, petition to Supreme Court could also be pursued by petitioner/accused ultimately---Even otherwise petitioner being also a tribal man, could not invoke Constitutional jurisdiction of High Court when dispute between the parties was with regard to a deal finalized in the tribal territory of Khyber Agency and Political Authorities were competent under Frontier Crimes Regulation, 1901 to proceed with the matter.

Imtiaz Ahmad v. Government of Pakistan 1994 SCMR 2142; Mr. Abdul Baqi Baluch v. The Government of Pakistan PLD 1968 SC 313; Zareef Khan's case PLD 1995 Pesh. 118 and Muhammad Shafiq and 5 others ,v. Political Agent, Khyber Agency and 7 others 1998 PCr.LJ 1347 ref.

Abdul Latif Afridi for Petitioner.

Nemo for Respondents.

Date of hearing: 18th May, 2004.

P L D 2004 Peshawar 213

Before Nasir ul Mulk and Qazi Ehsanullah Qureshi, JJ

SAADIA BEGUM---Petitioner

Versus

JANGREEZ and 3 others---Respondents

W.P. No.741 of 2003. decided on 2nd April, 2004.

West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Dissolution of Muslim Marriages Act (VIII of 1939), S.2(viii)(a)(b) & (f)---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Dissolution of marriage on ground of Khula'--­Validity---Suit for dissolution of marriage, recovery of dower, dowry and maintenance---Both Family Court and Appellate Court granted decree for dissolution of marriage in favour of plaintiff on ground of Khula', while her prayer for dower, dowry and maintenance were dismissed---Maintenance decree was granted to the extent of minor son only---Plaintiff had alleged that Family Court was not vested with powers to waive off her demand of dower, dowry, maintenance and pass decree for dissolution of marriage on basis of Khula' of its own when plaintiff had prayed for dissolution of marriage on ground of cruelty of defendant towards her---Plaintiff in her evidence had levelled charges against defendant that he was cruel, always quarrelled and beat her physically; that she was ousted twice by defendant from his house; that defendant had kept a boy for immoral purpose and that he never paid maintenance to her nor for her child---Witnesses produced by her had confirmed her deposition---Even some-of relevant cruel facts were also admitted by father of defendant in his evidence---Evidence on record had indicated that conduct of defendant was such which definitely fell within ambit of S.2(viii)(a), (b) & (f) of Dissolution of Muslim Marriages Act, 1939---Defendant had contracted second marriage and he was not treating plaintiff equally, he made her life miserable, subjected her to mental torture and agony---High Court allowing Constitutional petition filed by wife, set aside concurrent judgments and decrees of Courts below and granted decree of dower, dowry and maintenance besides dissolution of marriage on ground of cruelty instead of Khula'.

Muhammad Sareer for Petitioner.

Javed A. Khan for Respondents

Date of hearing: 2nd April, 2004.

P L D 2004 Peshawar 219

Before Tariq Parvez and Ijaz-ul-Hassan Khan, JJ

GUL RAZA---Appellant

Versus

THE STATE and 4 others---Respondents

Criminal Appeal No .19 of 1999, decided on 15th May, 2004.

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

----Ss.302/307/34---Criminal Procedure Code (V of 1898), S.417(2-A)--­Appeal against acquittal---Sufficient material was available on file toy implicate accused with guilt which had been ignored by Trial Court without assigning any reason, which had resulted in grave miscarriage of justice---Accused had been assigned specific role of firing at the deceased, but prosecution evidence had been disbelieved against accused---Mere fact that eye-witnesses were closely related and had slight bitterness with accused on account of dispute of common passage, was not sufficient to refuse to analyze and evaluate their evidence--­F.I.R. had been lodged with reasonable promptitude and accused had been specifically nominated therein as, principal perpetrator who had caused death of deceased by firing---Presence of accused at the spot could not be seriously disputed---Complainant did not have any serious motivation to falsely implicate accused in case of such a nature---Venue of occurrence was undisputed---The scene of occurrence being a thoroughfare, presence of accused on the spot was established through cogent, convincing and reliable evidence---Accused remained in hiding for a sufficient long period of about five years and said abscondence had not been explained satisfactorily---Material available on record coupled with ahscondence of accused was sufficient for recording judgment of conviction of accused instead of his acquittal---Charge of murder of deceased was proved against accused---Trial Court did not appreciate evidence of prosecution in its true perspective and had not given good reasons to pass finding of acquittal in favour of accused---Nothing had been brought on record as to what transpired between deceased and accused immediately before occurrence which activated accused to fire at deceased---Immediate cause of murder being shrouded in mystery, case against accused was not a case of capital punishment and that could be considered to be a factor for bringing case of accused under S.302(b), P.P.C.---Accused was sentenced to life imprisonment with payment of compensation to legal heirs of deceased.

Muhammad Ali v. Muhammad Yaqoob and 3 others 1998 SCMR 1814: Mst. Mumtaz Begum v. Ghulam Farid 2003 SCMR 647 Muhammad Khan and another v. The State 1999 SCMR 1220; Munir Ahmad alias Munni v. The State 2001 SCMR 56 and Zar Badshah v. Samiullah and another 1999 PCr.LJ 915 ref.

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

----S. 302(b)---Appreciation of evidence---Principles---Corroboration of testimony of related eye-witness---Mere fact that eye-witnesses were closely related, and had slight bitterness with accused on account of dispute regarding common passage, was not sufficient to refuse to analyse and evaluate their evidence---Testimony of such witnesses, if stood corroborated by material appearing on record, could be relied upon---Only uncorroborated testimony of relation-cum-inimical witnesses was considered insufficient to warrant conviction---Quality and standard of evidence and not quantity was the yardstick to judge the case of prosecution---Test of credibility of a witness was neither his relationship or friendship with either side nor his mere presence at the scene of offence at the time of occurrence, but it was the worth of his testimony valued on established judicial norms which fairly would prove or disprove his partiality or impartiality as a witness.

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

----S. 302(b)---Site-plan---Site-plan was not a substantive piece of evidence, it could not contradict or discredit the unchallenged evidence of prosecution witness.

Taj Muhammad v. Muhammad Yusuf and 2 others PLD 1976 SC 234 ref.

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

----S. 302(b)---Abscondence---Abscondence, by itself, was never sufficient to prove the guilt of absconder; it would, however, not be correct to say that abscondence, in no case, would provide corroboration to the other evidence and circumstances proving the guilt of absconder--­Value and place of evidence regarding abscondence of accused in a case would depend on facts and circumstances of that case.

Mesal and another v. The Crown 1971 SCMR 239 ref.

(e) Criminal trial---

---- Where criminal jurisprudence was to protect the right of accused, it also would protect the right of prosecution---Maxim that "let hundred guilty be acquitted and not a single innocent be convicted" should not be interpreted that even those against whom case had been proved they would on the basis of said rule would be let off by extending benefit of doubt, but its object was that an innocent person should not be convicted---Where in a case more than one accused were charged, Court on the basis of evidence could sift the grain from the chaff, it could, on same evidence, legally convict jointly tried one accused and could acquit the other---Innocent person should not be convicted.

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

------S. 417(2)---Appeal against acquittal---Finding of acquittal was not sacrosanct if the reasons given were of speculative or of artificial nature or the findings were based on no evidence or was the result of misreading or misinterpretation of evidence or the conclusions drawn as to guilt or innocence of accused were perverse, resulting into miscarriage of justice.

Gouhar Zaman Khan Kundi for Appellant.

Sultan Sheheryar Khan Marwat for Respondents.

Farooq Akhtar for the State.

Date of hearing: 29th April, 2004.

P L D 2004 Peshawar 226

Before Shahzad Akbar Khan and Fazlur Rehman Khan, JJ

MUHAMMAD YAQOOB---Petitioner

Versus

SADAQAT and 2 others---Respondents

W.P. No. 118 of 2004, decided on 10th June, 2004.

(a) North-West Frontier Province Pre-emption Act (IV of 1987)-----

----Ss. 13 & 14---Suit for pre-emption ---Making of Talbs---Filing of suit, and making of Talbs through attorney---Plaintiff who filed suit through attorney had also made Talbs through the attorney---Validity---Power of attorney executed by plaintiff in favour of the attorney, did not contain any provision giving an authority to the attorney for making either Talb­i-Muwathibat or Taib-i-Ishhad---Said power-of-attorney was meant for the management of the property in ownership of plaintiff and to carry out allied purposes which included filing and defending suits and other proceedings in the Court, but authority was restricted only to the property of plaintiff and not for the enforcement of any pre-emptive right---Power of attorney had to be construed strictly in accordance with its contents and nothing could be read into it what it did not expressly provide---By no stretch of imagination it could be deduced that the power of attorney relied upon by Attorney would include into its folds the functions of making requisite Talbs in terms of S. 13 of North-West Frontier Province Pre-emption Act 1987---If Talbs were not made in accordance with the requirements of S.13 of North-West Frontier Province Pre-emption Act, 1987 it would entail necessary consequences of extinguishments of rights of pre-emptor ---Suit was rightly dismissed on ground that requisite Talbs being sine qua non for bringing suit, were not made in accordance with law.

(b) Power of Attorney---

---- Power-of-Attorney had to be construed strictly in accordance with its contents and nothing could be read into it which it did not expressly provide.

Muhammad Ayub for Petitioner.

Date of hearing; 10th June, 2004.

P L D 2004 Peshawar 228

Before Mian Shakirullah Jan, CJ

Mst. SIRAJA and 2 others---Petitioners

Versus

THE STATE---Respondent

Bail Application No.841 of 2003, decided on 13th October, 2003.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 52---Control of Narcotic Substances Act (XXV of 1997), S. 9---Bail, grant of---As there was prior information about the smuggling of contraband through female folk, it was morally incumbent upon S.H.O., who was heading the search party to have arranged for a female to search accused ladies, but no female Constable was arranged and blatant violation of S. 52, Cr.P.C. had been made---Preposterous and to be settled at the trial as to how it was possible to tie or wrap six Kgs, of Charas with the string of Shalwar---Record had revealed that some of the accused ladies were with suckling babies and their presence with accused ladies in the Jail was neither reasonable nor desirable from ethical and religious point of view---Accused had prima facie case for the grant of bail---In view of quantity and nature of contraband recovered from the accused ---Accused were admitted to bail, in circumstances.

Noor Alam Khan for Petitioners.

Muszat Hussain for the State.

Date of hearing: 13th October, 2003.

P L D 2004 Peshawar 230

Before Tariq Parvez and Talaat Qayum Qureshi, JJ

INAYATULLAH---Appellant

Versus

THE STATE---Respondent

Cr.A. No. 136 of 2004, decided on 19th May, 2004.

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

----S. 9(c)---Appreciation of evidence---Complainant on whose report case was registered against accused; was not examined and prosecution witness who had produced alleged recovered narcotics was also not examined at the trial whereas it was he who could have proved safe custody of narcotics from the date of its recovery till handing over it to Investigating Officer---Prosecution witnesses had stated that five K.G. opium was recovered, but 4950 grams had been produced and prosecution had failed to account for 50 grams of shortage which could be inferred not to be the case property or sample sent was planted---had admitted that though he had taken into possession the case property, but from the person who was not authorized to arrest accused or to effect recovery- --Prosecution witness had admitted that on the date accused was arrested, he did not prepare any report nor prepared any recovery memo and that he was not authorized to arrest accused nor he was authorized to effect the recovery---Case against accused was not legally proved---In view of said legal infirmities and material irregularities---Conviction and sentence awarded to accused by Trial Court were set aside and he was acquitted of the charge.

Noor Alam Khan for Appellant.

Abdur Rauf Khan Gandapur for the State.

Date of hearing: 19th May, 2004.

P L D 2004 Peshawar 232

Before Nasir-ul-Mulk, J

NAEEM SHAH---Appellant

Versus

THE STATE---Respondent

Jail Cr. Appeal No.244 of 2004, decided on 10th May, 2004.

Customs Act (IV of 1969)---

----Ss. 2(S) & 156(1)(89)---Appreciation of evidence---Documents which allegedly were produced by accused pertaining to vehicles in. question including recovery memo, were not produced before Trial Court despite opportunities were given to prosecution witnesses in that regard---Since documents were never brought on the record, same could not be taken into consideration for or against prosecution---Alleged confessional statement of accused was recorded thirteen days after arrest of accused--­Said confessional statement was to be ruled out of consideration on the ground that it could not be termed voluntary on account of long detention of accused before his statement was recorded, the major part of which was illegal---Accused had not owned vehicles in question during adjudicating proceedings which resulted in confiscation of vehicles--­Prosecution's own case was that-person other than the accused was dealing in vehicles---Prosecution had not produced any evidence to show that accused either owned house from where vehicles were recovered or had rented out the same---Mere presence of accused at the time of raid would riot be sufficient to establish that he was in occupation of the said house---Accused in his statement recorded under S. 342, Cr. P.C. had stated that he was a Chowkidar and that house in question was owned by other person---No sufficient evidence was available to establish that accused, owned, controlled or was involved in smuggling; theft or purchase of vehicles---Conviction and sentence awarded to accused, were set aside and he was set at liberty.

Aftab Khan for Appellant.

Salahuddin Khan, D.A.-G. for the State.

Date of hearing: 10th May, 2004.

P L D 2004 Peshawar 236

Before Ijaz-ul-Hassan Khan, J

S. GHULAM MUSTAFA---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Revision N o.27 of 2003, decided on 3rd June, 2004.

Juvenile Justice System Ordinance (XXII of 2000)---

----S. 7---Criminal Procedure Code (V of 1898), Ss.439 & 561-A--­Determination of age of accused---Invocation of provisions of S.7 of Juvenile Justice System Ordinance, 2000---Provisions of S.7 of Juvenile Justice System Ordinance, 2000 though not to be invoked in each and every case mechanically---Where a question with respect to the age of accused could not be answered through any documentary evidence, such inquiry was called for under the law---Ossification test could only give a clue as to age, but could not be conclusive proof---Such exercise had to be resorted to only when no other proof was available, like school leaving certificate or the birth certificate of the accused---In case no convincing and reliable evidence was available before Trial Judge, to determine age of accused he would be left with no alternative but to rely upon the report of Standing Medical Board duly constituted in pursuance of the orders of the Court and made same a basis of his finding---Report of Medical Board had been rightly given preference over other documents, i.e. school leaving certificate and Kabin Nama and age of accused had been validly determined above 18 years at time of occurrence---No prejudice seemed to have been caused to accused Ossification test though was a better guide to age of a person, but not an accurate estimate---Margin of one year on either side was possible--­Benefit of margin had been given to accused in the present case--­Impugned order being not illegal or perverse, no justification was available for interference in exercise of revisional jurisdiction of High Court.

Afsar Zamin v. The State PLD 2002 Kar.18; Muhammad Akram v. Muhammad .Haleem 2002 PCr.LJ 633; Muhammad Hayat v: Muhammad Iqbal 2002 PCr. LJ 1237; Arshad Razzaq v. The State 1998 PCr.LJ 1331 and Muhammad Zakir v. The State and another 2004 SCMR 121 ref.

Sanaullah Khan Gandapur for Petitioner.

Muhammad Sharif Chaudhry, D.A.-G.- for the State.

Muhammad Karim Anjum for the Complainant.

Date of hearing: 3rd June, 2004.

P L D 2004 Peshawar 241

Before Shah Jehan Khan, J

H. SAMANDAR and others‑‑‑Petitioner

Versus

SAHIB HAQ and others‑‑‑Respondents

Civil Revision No.546 of 1998, decided on 6th May, 2004.

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

‑‑‑‑Ss. 41 & 91‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.42‑‑‑Suit for possession through redemption of property‑‑‑No relief regarding actual controversy having been sought in relief part of plaint, suit filed by plaintiffs was found defective‑‑‑Plaintiffs though were in the knowledge of sale‑deed in favour of defendants, but said sale‑deed was neither produced alongwith the plaint nor relief against same was sought‑‑Suit was also found bad for non‑joinder of necessary parties‑‑‑ Original owner from whom title of suit‑land was transferred to plaintiff's predecessor or his successors, were not impleaded as party to the suit and circumstances prevailing at the time of sale‑deed relied upon by plaintiffs and sale‑deed relied upon by defendants, could only be explained by him as original owner‑‑‑First mortgagee or his successors and second mortgagee or his successors had also not been arrayed as party to the suit‑‑‑Unexplained prolonged silence of plaintiffs and their predecessor to assert their title on the suit‑land since its purchase in the year 1909, had made document in their favour doubtful while possession of defendants who obtained the title through inheritance from the bona fide vendees through deed, was recorded in the ownership column from the date of their purchase‑‑‑Defendants had also purchased the right of redemption and the last mortgagee was the predecessor of vendee of suit ­land‑‑‑Since no formal redemption was made by subsequent vendees, names of first, second and third mortgagees were continuing in revenue record, but at the same time defendants or their predecessors who had validly purchased the suit‑land were continuously recorded in the ownership Column as owner‑‑‑Mortgagors rights of subsequent vendees were protected under S.41 of Transfer of Property Act, 1882‑‑‑Plaintiffs had not challenged revenue record wherein defendants were recorded owners in possession since their purchase in the year 1908‑09 and without seeking relief to that effect plaintiffs could not be granted any relief prayed for because no relationship of mortgagor and mortgagee existed between the parties‑‑‑In absence of any illegality, jurisdictional defects, misreading or non‑reading of evidence or misinterpretation of law in the judgment of Appellate Court, revision petition against same was dismissed being without any substance.

Muhammad Iqbal v. Muhammad Asghar PLD 1986 SC 1; Rehman Shah v. Muhammad Shah and others 1974 SCMR 255; Muhammad Hussain and others v. Khuda Bakhsh 1989 SCMR 1563; Sahib Noor and others v. Feroz Khan 1992 MLD Pesh.2563; Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336; Government of West Pakistan v. Haji Muhammad PLD 1976 SC 469; Ghulam Hassan v. Soharu and 131 others PLD 1984 Pesh. 278; Nawab Ali and others v. Bajwant Singh and others 1995 CLC Lah.1823; Ghulam Siddique v. Mst. Ajaib and others 2002 CLC Pesh.1244 ref.

Muhammad Aman Khan for Petitioner.

Muhammad Alam Khan and Ghulam Ali for Respondents.

Date of hearing: 6th May, 2004.

P L D 2004 Peshawar 246

Before Ijaz-ul-Hassan Khan and Dost Muhammad Khan, JJ

Mian GUL BACHA KHAN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.38 of 2004, decided on 11th May, 2004.

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

----Ss. 9, 20, 21, 25---Criminal Procedure Code (V of 1898), S.103--­Appreciation of evidence---Huge quantity of foreign-made Charas weighing 2870 Kilograms having been recovered in the case, it could not be believed that such a large quantity of contraband would be planted by Customs Authority just to implicate the accused for nothing---Accused had produced no evidence in defence to show that the bags under the tiles were in fact contained marble chips, but same were not opened and Charas was foisted on accused by- Customs Authorities---Mere assertion of accused regarding their false implication in case, without a positive attempt on their part to substantiate the same, was of no consequence--­Prosecution witnesses had been subjected to lengthy and searching cross-­examination, but nothing favourable to accused could be extracted from them---Mere fact that said witnesses belonged to Customs Department and thus might have falsely deposed against accused, could not be a ground for discarding their testimony when no reason had been given by accused for their false implication---Even otherwise official witnesses were as good as private witnesses---Submission that compliance of the provisions of S. 103, Cr.P.C. was not made in the case as two respectable persons of the locality were not associated, had no force firstly for the reason that provisions of S. 103, Cr.P.C. had been excluded under provisions of S. 25 of Control of Narcotic Substances Act, 1997 and provisions of S. 20 of said Act were directory in nature and non-compliance thereof could not be considered as a strong ground for holding that trial of accused was bad in the eye of law---Appeal against conviction and sentence recorded by Trial Court being meritless was maintained.

State through Advocate General Sindh v. Bashir and others PLD 1997 SC 408 ref.

(b) Criminal trial---

---- Specific plea---Onus to prove---When an accused at a trial would take specific plea, the onus invariably would shift on him and he would be required to produce evidence and prove his plea or at least his plea should be supported by attending circumstances and it should not be unfounded altogether.

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

----S. 103---Object of S. 103, Cr.P.C.---Main aim and object of enacting S.103, Cr.P.C. was to ensure that the search and recovery was conducted honestly and fairly and to exclude any possibility of concoction and transgression and never meant to disbelieve the statements of official witnesses in any other circumstance.

Fida Jan v. The State 2001 SCMR 36 ref.

Gohar Zaman Khan Kundi for Appellants.

Muhammad Sharif Chaudhry, D.A.-G. for the State.

Minhajuddin Alvi for Collector Customs.

Date of hearing: 11th May, 2004.

P L D 2004 Peshawar 251

Before Shah Jehan Khan and Dost Muhammad Khan, JJ

AAMIR KHALIL ---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Director­ General, A.N.F., Rawalpindi and 5 others---Respondents

W.P. No. 1448 of 2003, decided on 16th June, 2004.

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

----Ss. 516-A & 517---Control of Narcotic Substances Act (XXV of 1997), S. 32---Supardari of vehicle---Narcotics were not recovered from car in question, but were recovered from other Jeep---Car in question was suspected to have been used as a pilot car, escorting said Jeep, but no evidence of any legal worth had been brought on record to show any remote connection or nexus between said two vehicles having been used combinedly for commission of offence---Ownership of car in question neither was denied by the vendee of said car who failed to pay instalments of its price nor by person from whom car was recovered and even not by Authority concerned---During entire course of investigation no evidence of any nature had been brought on record to show that petitioner had in any manner abetted, facilitated or connived at the commission of alleged crime---Custody of car in question was given to petitioner on Superdari, in circumstances.

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

----S. 32---Confiscation of vehicle allegedly used in offence---Vehicle would not be liable to confiscation unless it was proved that the owner thereof knew that offence was being or was to be committed in respect of it---Combined reading of first and second provisos to sub-clause (2) of subsection (2) of S.32 of Control of Narcotic Substances Act, 1997, had placed restriction on confiscation of an article before expiry of one month and that before confiscation order, the claimant must be given an opportunity of hearing.

(c) Constitution of Pakistani (1973)---

----Art. 24---Depriving a person of his property---Art. 24 of the Constitution in a firm command had prohibited that no person would be deprived of his property save in accordance with law---Action of Executive depriving a person of his property, must carry the sanction of law behind it and unless shown/proved and until substantial compliance with the law itself was made while taking the action, the result flowing therefrom would render such action nullity in the eye of law, coram-non-­judice and same would be reduced to naught.

(d) Words and phrases---

-----"Carry or carrying", fined.

(e) Words and phrases---

----"Confiscation" and phrase "shall like-wise be liable to confiscation"-­Meaning and connotation.

Suleman v. The State PLD 1962 (W. P.) Lah. 11 ref.

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

----Ss. 33 & 77(2)(a)-Confiscation of articles---Jurisdiction/powers to confiscate an article/vehicle, exclusively vested in Special Court and it was for the Special Court to decide as to whether any article/vehicle/vessel, seized frozen in connection with such offence was liable to confiscation---Authority concerned had no power to assume jurisdiction by making anticipatory confiscation before the trial was concluded--­Petitioner's conviction in the present case was out of question because he was not an accused person---Person from whom car in question was recovered, was not the lawful owner of car, but petitioner had a valid claim and that claim was to be decided by Special Court at the conclusion of the case.

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

----Arts. 4 & 199---Constitutional petition---Validity of order passed by functionaries of Government---Duty of the Court---Court would strive to explore every possible means and explanation for the validity of the order passed by functionaries of the Government and for that purpose the Court would have to study and examine the entire field of powers conferred on Authority in pursuance to which impugned order had been passed---If an act of public functionaries was not in conformity with the law and the rules which control, regulate and define their powers and jurisdiction, then such order made or proceedings taken would be without lawful authority and the Courts were bound to declare them of no legal effect---Whenever powers were given to Executive Authority relating to the determination of rights of citizens and those being in the nature of sacred trust, were to be exercised justly, fairly, judiciously and in accordance with law---Any violation of such principles would render their orders nugatory.

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

----Arts. 4 & 199---Constitutional petition---Fundamental rights of people---Encroachment by public functionaries---Constitutional Courts were main guarantors of Fundamental Rights of the people---Where any encroachment and invasion made on the Fundamental Rights by the public functionaries in violation of law or when such rights were infringed maliciously and mala fide Courts would not hesitate to firmly establish them and issue writ to wrong doer requiring hint/them to do what was required by law to be done and to refrain from doing an act which was prohibited by law and the Constitution.

Fida Gul for Petitioner.

Hamid Farooq Durrani, D.A.-G. for Respondent No. 1.

Tariq Khan Kakar for Respondents Nos. 2 to 6.

Date of hearing: 2nd June, 2004.

P L D 2004 Peshawar 263

Before Shah Jehan Khan and Ejaz Afzal Khan, JJ

ZAFAR ALI KHAN and another---Petitioners

Versus

GOVERNMENT OF N.-W.F.P. through Chief Secretary and 3 others--Respondents

W.P. No.361 of 1998, decided on I 7th June, 2004.

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

----Ss. 2, 3, 4, 7 & Sched, [as amended by N.W.F.P. Finance Act (III of 1997)]---Constitution of Pakistan (1973), Arts. 199 & 25---Constitutional petition--Vires of N.-W.F.P. Finance Act, 1997 whereby Ss.2, 3, 4 & 7 of West Pakistan Urban Immovable Property Tax Act, 1958 were amended with the addition of the Schedule which not only classified the urban and rating areas, buildings therein but also prescribed the amount of property tax levied thereon---Such amendments alongwith the Schedule brought about a radical change in the mode and method of assessment of the property tax and envisioned manifold increase therein---Held, Legislature enjoyed a wide latitude in the matters of selection of persons, subject-matters and events etc. for taxing and there was presumption in favour of the Constitutionality of the legislative enactments unless, of course, it was ex-facie violative of the Constitutional provisions ensuring equality before law which was not the position in the present case---Principles.

A look at sections 2, 3, 4, 7 and Schedule of West Pakistan Urban Immovable Property Tax Act, 1958 and the amendments introduced therein will indicate that a significant change has been brought about by the legislature in the mode and method of charging and assessing the property tax. Before the amendments it was the sole discretion of the E.T.O. and the other officials in the hierarchy to fix any amount as annual rental value of a land or building for assessing the property tax. But this mode not only resulted in heavy tax evasion but also defeated the very purpose of taxation as it, instead of enriching the State, enriched those who resorted to its evasion and those who helped it. A fool proof system for charging and assessing the property tax was thus imperative to curb corruption and ensue transparency in the process. They law, in force, before the amendments, had many holes and as such was at the verge of becoming a dead letter. The legislature after collecting the requisite data having bearing on the matters of taxation rose to the occasion and introduced the amendments which not only classified the urban and rating areas. lands and buildings therein but also prescribed the property tax levied thereon.

The purpose behind this classification was to provide a uniform basis for taxing the lands and buildings essentially equal with reference to their nature and location, the purpose they are used for, their earning capacity and other factors having bearing on the matters of taxation. Though this equality may not have mathematical precision or exactitude. none-the-less, nothing has been canvassed at the, bar by the learned counsel for the petitioners which could even remotely suggest that the classification reflected in the schedule is irrational or unreasonable. Not even a single syllable has been uttered at the bar as could show that the rate prescribed of a given building with a given measurement in a given urban or rating area is excessive, un-reasonably high or expropriatory by any attribute. Therefore, the classification is based on intelligible differentia and the tax is not expropriatory.

The contention that when a plot of one Kanal having covered area of 5 Marlas is treated at par with a similar plot having covered area of 10 Marlas in utter disregard of its annual rental value, such classification can never be rational or reasonable, being hypothetical will not affect the Constitutionality of the amendments as no facts and figures indicating such disparity have been brought on the record. Even if it be so, it will not cloud their Constitutionality because, the equality amongst the objects grouped together may not 'be mathematically precise scientifically perfect and logically complete.

The contention that the rates prescribed in the schedule being in conflict with the provisions of section 5 are not maintainable, is also without force as there is absolutely no conflict between the section and the schedule, when despite amendments in the Act, the conditions for charging and assessing the property tax have remained much the same.

Even in the case of conflict the Courts are required to harmonize the provisions of a Statute in such a way that every part thereof becomes effective.

The argument that the tax being presumptive cannot be justified by any canons of law is also without force as it was more or less presumptive even before the amendment when annual value of a land or building was estimated at which it could or reasonably be expected to be let out.

Contention that no record regarding the measurement of the property taxed being available with the Assessing Authority and no notice in terms of section 8(2) having been given to the person whose property has been entered in the draft valuation list being relatable to the question of fact, should better be agitated before the forum of the concerned hierarchy when the provisions providing redresses of such nature are intact.

The argument that none of the amendments promulgated through the Acts or Ordinances could be retrospective in its operation as classification was made after the expiry of valuation period is also without force as the amendments have not been given retrospective effect.

Contention that the property having similar nature and character situated in the Cantonment area is subjected to a different treatment, therefore, the amendments being inconsistent with the equality clause shall, to the extent of such inconsistency, be void, is more or less conjectural when nothing has been brought on record to prove that the property situated in the Cantonment area is of similar nature and character and that its capacity of profitable user is equal or alike.

The argument that where a property has not been specifically notified to be an urban property, it cannot be treated as such for the purpose of the Act is not a question relating to the vires or otherwise of the Statute, therefore, it being a question of fact can well be agitated in the forum provided under the law.

Held, the legislature enjoys a wide latitude in the matters of selection of persons, subject-matters and events etc. for taxing and there is presumption in favour of the Constitutionality of the legislative enactments unless, of course, it is ex-facie violative of the Constitutional provisions ensuring equality before law which is not the case here.

State of Kerala v. Haji K. Kutty (AIR 1969 SC 378); Mst.Amina Jabeen v. Government of Punjab etc. NLR 2001 Tax 189 and Messers Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary, M/O Finance Islamabad and 6 others (PLD 1997 SC 582) distinguished.

Messers Elahi Cotton Mills Ltd. and others 0 Federation of Pakistan through Secretary M/O Finance, Islamabad and 6 others PLD 1997 SC 582; J.C. Shah v. Ramaswa, and A.N. Grover AIR 1969 SC 378; Mst. Arnina Jabeen v. Government of Punjab etc. NLR 2001 Tax 189; West Punjab Province v. K.B. Amiruddin and others PLD 1953 Lah. 433; Muhammad Aslam v. Secretary Excise and others PLD 2000 Lah. 589; Pakistan Muslim League (Q) and others v. Chief Executive of Islamic Republic of Pakistan and others PLD 2002 SC 994; Dr. Tariq Nawaz and another v. Government of Pakistan through the Secretary, Ministry of Health Government of Pakistan Islamabad and another 2000 SCMR 1956; Syed Muhammad Ali Shah Bukhari, v. Chief Administrator of Auqaf Punjab Lahore and 3 others PLD 1972 Lah. 416; Commissioner of Sales Tax v. Messers Zelin Ltd: Karachi PLD 1967 Kar. 3341; Emmanual Masih. v. The Punjab Local Councils Election Authority and others 1985 SCMR 729; Messers Mehboob Industries Ltd. v. Pakistan Industrial Credit and Investment Corporation Ltd. 1988 CLC 866 and Star Textile Mills Ltd. and others v. Government of Sindh and others 2002 MLD 1608 ref.

(b) Interpretation of statutes---

---- Conflict in Statutes--Courts are required to harmonize the provisions of a Statute in such a way that every part thereof becomes effective.

Syed Muhammad Ali Shah Bukhari v. Chief Administrator of Auqaf Punjab Lahore and 3 others PLD 1972 Lah. 416; Commissioner of Sales Tax v. Messrs Zelin Ltd. Karachi PLD 1967 .Kar. 3341; Emmanual Masih v. The Punjab Local Councils Election Authority and others 1985 SCMR 729 and Messrs Mehboob Industries Ltd. v. Pakistan Industrial Credit and Investment Corporation Ltd. 1988 CLC 866 ref.

Muhammad Zahurul Haq, Abdul Sattar Khan, Nazir Hussain, Abdul Rauf Rohaila and Mir Adam Khan appeared for Petitioners.

Jehanzeb Rahim, Advocate-General for Respondents Nos. 1 and 2.

Salahuddin Khan D.A.-G. for Respondent No.3.

Date of hearing: 28th April, 2004.

P L D 2004 Peshawar 285

Before Nasir-ul-Mulk and Ejaz Afzal Khan, JJ

Messrs SARHAD FOOD PROCESSORS through Managing Partner---Petitioner

Versus

EXCISE AND TAXATION OFFICER-II, PESHAWAR and 3 others---Respondents

C.M. Ne.691 of 2001 with Writ Petition No.605 of 2001, decided on 17th June, 2004.

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

----Ss. 2, 3, 4, 7 & Sched. [as amended by N.-W.F.P. Finance Act (III of 1997)]---North-West Frontier Province Small Industries Development Board Act (II of 1973), S. 31---N.-W.F.P. Government Notification No. S.O. (LG-1) LG-12(33)/76(1) dated July, 1978---Constitution of Pakistan (1973), Art. 199---Constitutional petition ---Vires of change, of mode and method for the assessment of property tax by extending the gamut of West Pakistan Urban Immovable Property Tax Act, 1958 over the industrial buildings situate in the Small Industrial Estate---Contentions of the petitioners were that they being lassees and not owners of the plots in the Industrial Estate and they having raised their industrial buildings on them in terms of S. 2,(e) West Pakistan Urban Immovable Property Tax Act, 1958, could not be subjected to the levy of the property tax; that when the Small Industrial Board was an independent authority in terms of S.31, N.-W.F.P. Small Industries Development Board Act, 1973 which had already subjected the petitioners to administration, maintenance .and service, charges, they could not be subjected to yet another tax as it would amount to double taxation specially when the Industrial Estate had not been notified to bean urban area and no civic facilities were provided to them by the Municipal Corporation and thus levy of Property Tax and the notices for demand issued pursuant to the amended provision of the West Pakistan Urban Immovable Property Tax Act, 1958 were ultra vires, un-Constitutional and illegal deserving to be struck down---Validity---Held, industrial buildings in every part of the country or for that matter any building which was earning profit was subjected to the levy of property tax---Imposition of the tax, in the present case, was apprehended all along even by the Small Industries Development Board and that was why clause in the agreement between the Board and lessee was specifically inserted and accepted by the petitioners which clearly stipulated that "all the charges, taxes, assessments, premiums, rates including water rates and outgoings whatsoever now or hereafter imposed, levied or charged- by any authority upon, in connection with or in respect of the demised property and the buildings and structures erected thereon, shall be paid by the lessee"--­Contention of the petitioners that Small Industrial Development Board being an independent authority had already subjected the petitioners to. service charge etc. therefore, they could not be subjected to yet another tax, thus had no force---Lease of petitioners being spread over a period of 99 years, would bring their case within the mischief of lessees in perpetuity and "perpetuity" meant a fairly long time---Small Industrial Estate vide N.W.F.P. Government Notification No. S.O. (LG-1)/LG­/2(33)/7611) dated July 1978 fell within the urban area---Nothing having been convincingly canvassed at the bar to show that any of the amended provisions of the West Pakistan Urban Immovable Property Tax Act, 1958 or its extension to the Industrial Estate was either illegal un­-Constitutional or ultra vires, the impugned provisions could not be struck down.

Jamshaid Waheed v. Government of, Punjab through Secretary, Excise and Taxation Lahore and 5 others PLD 2001 Lah. 395 and National Detergents Ltd. and others v. The Province of Sindh and another 1988 SCMR 1214 distinguished.

Government of N.-W.F.P. and others v. Haji Muhammad Afzal Zia Civil Appeal No.437 of 1999 fol.

Abdur Rauf Rohaila for Petitioners

Imtiaz Ali, A.A.-G. for Respondents.

Date of hearing: 20th May, 2004.

P L D 2004 Peshawar 294

Before Malik Hamid Saeed and Qazi Ehsanullah Qureshi, JJ

QURESH---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.573 of 2003, decided on-22nd June, 2004.

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

----Ss. 302(b) & 324---Appreciation of evidence---Complainant on whose statement the whole prosecution case mainly depended being closely related to the deceased, was an interested witness and his testimony was to be scrutinized with great care and caution---Prosecution version was to conflict with medical evidence---Complainant had charged four persons for indiscriminate firing but no crime empty or spent bullet was recovered from the spot---No independent corroboration of unimpeachable character was available in the case and no circumstantial evidence had even supported the prosecution evidence---Brother of the deceased, who had been mentioned in the F.I.R. as an eye-witness, had not supported the case of prosecution against the accused---Motive for the occurrence was not proved --Abscondence of accused was immaterial as even an innocent person might go into hiding due to fear of unjustified harassment and victimization at the hands of police---Accused was acquitted in circumstances.

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

----Ss. 302(b) & 324---Appreciation of evidence--Where the case is based on a solitary interested witness, prosecution is required to produce independent corroborative direct or by circumstantial evidence to his statement.

Ishtiaq Ibrahim for Appellant.

Nizar Muhammad Asstt. A.-G. for the State.

Sohail Akhtar for the Complainant.

Date of hearing: 26th May, 2004.

P L D 2004 Peshawar 299

Before Ijaz-ul-Hassan Khan and Ejaz Afzal Khan, JJ

GUL TIAZ KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No. 129 of 2003, decided on 1st July, 2004.

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

----Ss. 302(b)/34---Appreciation of evidence---Prosecution case largely depended on confessional statement of accused---Confessional statement was recorded one day after arrest of accused and from perusal of said statement it appeared that fear of police was not removed from the mind of accused and confession made by accused was not free from extraneous influences such as threat, promise or inducement---Said confessional statement was not voluntary and it suffered from various defects and infirmities---Confessional statement had been retracted by accused, which was enough to make it involuntary and had diminished its intrinsic value---Confession of accused, in circumstances, was not worth reliance---Prosecution evidence suffered from infirmities and improbabilities and same could not be made a base of conviction of accused---Case was fit in which benefit of doubt could be given to accused---Conviction and sentence recorded against accused by Trial Court' were set aside and they were acquitted of charge ---Co-accused though had not filed appeal against her conviction and sentence, but she was also convicted on basis of evidence disbelieved by Appellate Court---Benefit of judgment passed in appeal should be given to her also in order to do complete justice in the case.

Riaz Hussain v. The State 2001 SCMR 177; Mir Mat-Khan alias Matokai, v. The State 2002 PCr.L.J 1914; Muhammad Ilyas and 3 others v . The State 1989 PCr.L.J 226; Shah Pasand v. The State 1989 PCr.LJ 1966; Mehboob Ali alias Maqbali v. The State 2000 PCr.LJ 823; Saeed­ur-Rehman and 10 others v. Government of Punjab, Lahore and 3 others 1972 SCMR 2001; Muhabbat Ali and another v. The State 1985 SCMR 662 and Waqar Zaheer v. The State PLD 1991 SC 447 ref.

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

----S. 302/34---Appreciation of evidence---Accused had only to show a dent having been created in case of prosecution and that he was entitled to benefit of even a. single doubt found in such evidence and that he had not to show that case suffered from more than one doubt---While passing an order of conviction of an accused in murder case, the Court had not only to be satisfied that murder had been committed, but it must also be satisfied that accused had committed the murder---Before recording an order of conviction, all the facts and circumstances of the case had to be taken into consideration and such golden principle of criminal dispensation of justice must be borne in mind---Except in the cases where by means of a special enactment onus to prove the guilt or otherwise, had been placed upon accused, ordinarily under general law, it was the duty of prosecution to establish its case independently without any shadow of doubt.

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

----S. 164---Qanun-e-Shahadat (10 of 1984), Arts. 37, 38 & 39--­Confession---Voluntary nature of---Great responsibility rested upon Courts to determine if confession was voluntary and true---If confession directly or indirectly was the result of inducement, threat, or promise from a person in authority, it Would be treated as not voluntary--­"Voluntary" and "true" were two different terms related with confession and each of them had its own significance---Confession which was voluntary was admissible in evidence even though it could be incorrect in its contents---Confession which was not voluntary was not admissible though it could be true---Whether a confession was voluntary and true was a question of fact and was to be determined keeping in view the attending circumstances of each case ---Voluntariness of confession and of being true were totally distinct ---Voluntariness related to its admissibility, while its truth was looked into for the purpose of assigning its value---For proving confession it should be both voluntary and true--­Retracted confessional statement had to be relied upon in its totality or excluded in its entirety---Such statement could not be partly relied upon and portion exonerating accused could be discarded---Some direct or indirect evidence implicating such a person with the crime must exist before a confession made by accused could be adverted to in adjudging the guilt of that person.

(d) Criminal Trial---

---- Appreciation of evidence---One piece of tainted evidence could not corroborate another tainted piece of evidence.

Farooq Akhtar for Appellant (on State expenses).

Malik Ehsan-ul-Haq for the State.

Date of hearing: 1st July, 2004.

P L D 2004 Peshawar 307

Before Tariq Pervez, Muhammad Qaim Jan Khan and Dost Muhammad Khan, JJ

ALAPTAGIN---Petitioner

Versus

PRINCIPAL, SAIDU SHARIF MEDCIAL COLLEGE, SWAT and 3 others---Respondents

Writ Petition No. 1074 of 2003, decided on the 2nd July, 2004.

(a) Pakistan Medical and Dental Council Ordinance (XXX of 1962)---

----Ss. 3, 4 & 33(2)---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Pakistan Medical and Dental Council, constitution, function and authority of---Relevant regulation framed by Pakistan Medical and Dental Council, would debar a candidate from promotion to the higher class only if he failed or did not qualify the papers of previous class ---Words/terms "part or parts" employed in relevant Regulation would not be construed in a way to mean that failure to qualify in Part-I would ipso facto debar or disqualify a candidate to be promoted to Part-II of First professional of M.B.,B.S. examination.

(b) Words and Phrases---

---- Expression "Terms" and "Part", defined and explained.

(c) Pakistan Medical and Dental Council, Regulations, 1998---

----Regln. IV, Cl. 3---Prospectus of North-West Frontier Province Medical and Dental Colleges, Sessions 2003-2004, paras 9, 18--­Constitution of Pakistan (1973), Art.199---Constitutional petition--­Examinations of M.B.B.S.---Candidates appeared in first professional M.B.B.S. Part-I examination, but failed---Candidates later on appeared in supplementary examination, and again failed---Due to such failure in first professional (Part-I, M.B.,B.S.), examination, candidates were not promoted to Part-II of first professional M.B.,B.S. and were also denied access to attend lectures of Part-II and they were also not given permission to appear in examination for Part-II of the first professional (M.B.,B.S) unless they qualified in papers in which they had failed--­Validity---Entire five years M.B.,B.S., course had been divided into four classes called, first professional, 2nd professional, 3rd professional and final professional---For convenience sake, first professional had been further sub-divided into two parts and whatever the object behind said division might be, subjects taught in Part-I and Part-II, were one and the same; in Part-II though same subjects were taught, but probably that consisted of advanced course thereof---Relevant Regulation of Pakistan Medical and Dental Council would debar candidates from promotion to the higher class only if he failed or did not qualify the papers of previous class---Word/term "part or parts" employed in said Regulation, would not be construed in a way that failure to qualify in Part-I would ipso facto debar or disqualify a candidate to be promoted to Part-II of the first class (first professional M.B.,B.S.)---Statutory bar on failed candidates, in circumstances was confined to their promotion from one class to the other i.e. from the low rung to the next rung of the same ladder and that would in no eventuality apply to a candidate who had failed or could not qualify the Part-I of the first professional (M.B.,B.S.)---Candidates despite their failing in Part-I, would be entitled to promotion to Part-II of the first profession (M.B.,B.S.) because move-over from Part-I to Part-II, did not amount to promotion to a higher class---View taken by the Authorities on the strength of Rr.9 & 18 of Prospectus read with cl. 3 of Regln. IV of Pakistan Medical and Dental Council Regulations, 1998, certainly was misconceived and could not be approved---If candidates were refused relief prayed for by them, that would cause them prejudice while ,to the contrary, Authorities would neither suffer any loss nor the standard of education would receive any set back because candidates were required under the rules to qualify all the papers of Part-I & Part-II of the first professional according to laid down criteria whereafter they would be entitled to promotion to 3rd year (2nd professional M.B.,B.S.).

Noor Muhammad and 2 others v Ayub Medical College Abbottabad and 4 others 2003 CLC 753 ref.

(d) Interpretation of Statutes----

----Whenever two interpretations of Statute/Rules were equally possible then the one which would suppress the mischief and advance the cause, would be adopted.

Abdul Sattar Khan and Miss Nusrat Yasmin for Petitioner.

Barrister Jehanzeb Rahim, A.G., Shakeel Azam Aziz Akhtar Chughtai and Waseem-ud-Din Khattak for Respondents.

Dates of hearing: 18th and 21st June, 2004.

P L D 2004 Quetta 1

Before Amanullah Khan and Fazal-ur-Rehman, JJ

Haji BISMILLAH---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Secretary, Home Department, Civil Secretariat, Quetta and 5 others---Respondents

Constitutional Petition No.617 of 2001, decided on 12th May, 2003.

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

----Arts. 45 & 2A---President's power to grant pardon etc.---Scope--­President in exercise of his powers under Art.45 of the Constitution can grant remissions or pardon to any prisoner who has been convicted and sentenced under any offence contained in general law or in special law--­Article 45 of the Constitution overrides the provisions of the Penal Code and the Code of Criminal Procedure---Article 2A was not a supra­ Constitutional measure.

Hakim Khan and 3 others v. Government of Pakistan and others P L D 1992 SC 593 and Eid Muhammad and another v. The State PLD 1992 SC 14 ref.

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

----Arts. 45 & 48(2)---President's power to grant pardon etc.---Scope and powers of the President under Art. 45 of the Constitution are discretionary in view of the provisions of Art. 48(2) of the Constitution and no embargo whatsoever has been placed on them---Exercise of such discretion cannot be assailed before any forum including a Court of law.

1999 Y L R 1596 ref.

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

----Art. 45---Remission Rules, 1965---Prisons Rules, R.217(1)--­President's power to grant pardon etc.---Grant of remissions--­Remissions granted by the President under Art. 45 of the Constitutions can neither be curtailed nor affected by Prison Rules read with Remission Rules, 1965.

1979 S C M R 302 ref.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), Ss.401 & 402(c)--­Constitution of Pakistan (1973), Arts. 45, 55 & 199---Constitutional petition---Remissions granted to accused---Validity---Remission granted to accused through Notifications issued prior to the conviction of accused were not admissible in case of accused as he was not convicted and undergoing sentence on those days and the benefit of said Notifications could not be extended to him by way of reduction from his term of imprisonment as the sentence was always preceded by conviction--­Benefit of remissions extended to accused through Notifications issued during the period they remained as under trial prisoners were also not admissible as they were not convicted persons and were not undergoing sentences---Amendments brought about in Chap. XVI, S.55, P.P.C. and S.402-C. Cr.P.C had put a bar on grant of remission without the consent of the victim or his heirs and the Provincial Government in view of S.402-C, Cr.P.C. had no authority to exercise its powers under S.401, Cr.P.C. provisions of which were repugnant to Injunctions of Islam---Benefit of the Notifications granting remissions mentioned above was not available to accused in the given circumstances and grant of the same to the accused was declared to be contrary to law and without lawful authority---Constitutional petition was accepted accordingly.

Hakim Khan and 3 others v. Government of Pakistan and others PLD 1992 SC 593; Eid Muhammad and another v. The State PLO 1992 SC 14; 1999 YLR 1596; 1979 SCMR 302; 1999 PCr.LJ 1507; 2001 PCr.LJ 1453; 1998 PCr.LJ 921 and Habib-ul-Wahab Alkhairi and others v. Federation of Pakistan PLD 1991 FSC 236 ref.

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

---S. 55---Criminal Procedure Code (V of 1898), S.402-C---Bar on grant of remissions---Amendments brought about in Chap. XVI, S.55, P.P.C. sand S.402-C, Cr.P.C. have put a bar against grant of remission without the consent of the victim or as the case may be, of his heirs.

Shakil Ahmed and Ayaz Zahoor for Petitioner.

Ghulam Mustafa Mengal Addl. A.-G.

Zahid Malik for Respondent No.2.

Sh. Ghulam Ahmed for Respondent No.4.

Muhammad Aslam Chishti for Respondents Nos. 5 and 6.

Date of hearing: 3rd December, 2002.

P L D 2004 Quetta 16

Before Ahmed Khan Lashari, Akhtar Zaman Malghani and Muhammad Nadir Khan Durrani, JJ

AMIR and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.(S)118, (S) 136 of 2000, (S)37, (S) 38, (S)46, 191 of 2001, (S)18 and 97 of 2002, decided on 17th June, 2003.

(a) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)-----

----S. 7---Anti-Terrorism Act (XXVII of 1997), S.25---Appeal against conviction in absentia---Competency---Absconder---Where an accused is fugitive from law and has not surrendered to the process of law, his appeal is not entertained and is dismissed by refusing right of audience to the absconder---Appeal of an accused who has absconded after duly lodging his appeal can be heard on merits and decided accordingly.

PLD 1998 SC 1445; Chan Shah v. State PLD 1956 FC 43, Gul Hassan and another v. State PLD 1969 SC 89; 1982 SCMR 911; PLD 2002 Lah. 74; Miraj Begam v. Ejaz Anwar and others PLD 1982 SC 294; Hayat Bakhsh and others .v. State 1982 SCMR 623; 1990 PCr.LJ 44; Haq Nawaz v. The State 1999 PCr.LJ 1381; 2000 S C M R 785; Mohtarma Benazir Bhutto v. The State 1999 SCMR 1619; Muhammad Rafiq and 18 others v. The State 1998 PCr.LJ 1486; State of Madhya Pradesh v. Mohan Das 1992 PCr.LJ 101; Muhammad Aslam and 5 others v. The State 1972 SCMR 194; Muhabat Ali and another v The State 1985 SCMR 662; Ghulam Bari v. Waqar Zaheer and others PLD 1991 SC 447 and PLD 1991 SC 575 ref.

(b) Appeal---

----Appeal no doubt is continuation of trial, but at the same time appeal is a creation of statute and if no appeal is provided under any statute, it cannot be entertained on the ground that the same is continuation of trial.

Muhammad Rafiq and 18 others v. The State 1998 PCr.LJ 1486 ref.

(c) Penal Code (XLV of 1860)—--­

---Ss. 302/324/337-A(ii)/147/148/149/109---Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.7---Anti-Terrorism Act (XXVII of 1997), Ss.25, 19(10), (11) & (11-A)---Criminal Procedure Code (V of 1898), S.340---Constitution of Pakistan (1973), Art.10---Appeals against trial of accused and conviction in absentia--­Competency---Accused had been tried in absentia and convicted by the Trial Court and they had filed appeals either through their relatives or through counsel---Appeal filed by a counsel or a relative on behalf of a person who was fugitive from law was not competent, nor the same could be treated as having been competently filed---Nowhere in the Constitution or in the Criminal Procedure Code it had been provided that a fugitive from law could have recourse to law by challenging his conviction through a counsel of his choice, merely because S.11-A was added in Anti-Terrorism Act, 1997, in order to bring the Act in conformity with Art. 10 of the Constitution, which provided that nothing contained in subsections (10) & (11) of S.19 would be construed to deny the accused the right of consulting or to be defended by a Legal Practitioner of his own choice, but it did not mean that an accused person who had decamped had an indispensable right to be defended by a counsel of his choice, without surrendering to the process of law---In such a situation the fundamental rule of administration of justice; viz. a person seeking aid of justice in a criminal case should submit to the due process of justice, would be applicable---Appeals filed on behalf of the convicts/absconders, who had not surrendered to the process of law after their conviction, therefore, were not competent, nor the same could be filed by the counsel in whose favour statedly power of attorneys were executed or by their relatives, as such, the same being not maintainable under the law were dismissed accordingly.

PLD 1998 SC 1445; Chanm Shah v. State PLD 1956 FC 43, Gul Hassan and another v. State PLD 1969 SC 89; 1982 SCMR 911; P L D 2002 Lah. 74; Miraj Begam v. Ejaz Anwar and others PLD 1982 SC 294; Hayat Bakhsh and others v. State 1982 SCMR 623; 1990 PCr.LJ 44; Haq Nawaz v. The State 1999 PCr.LJ 1381; 2000 SCMR 785; Mohtarma Benazir Bhutto v. The State 1999 SCMR 1619; Muhammad Rafiq and 18 others v. The State 1998 PCr.LJ 1486; State of Madhya Pradesh v. Mohan Das 1992 PCr.LJ 101; Muhammad Aslam and 5 others v. The State 1972 SCMR 194; Muhabat Ali and another v The State 1985 SCMR 662; Ghulam Bari v. Waqar Zaheer and others PLD 1991 SC 447; PLD 1991 SC 575; Government of Balochistan v. Aziz Ullah Memon PLD 1993 SC 341 and Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 ref.

Muhammad Aslam Chishti, H.Shakeel Ahmed and Abdul Waheed Katpar for Appellant (in Criminal Appeal No.(S)118 of 2000).

Haji Ghulam Mustafa Meiigal, Addl. A.-G. with Raja Amir Abbas for the State (in Criminal Appeal NO.(S)118 of 2000).

Muhammad Aslam Chishti for Appellant (in Criminal Appeal No.(S)136 of 2000).

Haji Ghulam Mustafa Mengal, Addl. A.-G. for the State (in Criminal Appeal No.(S)136 of 2000).

Muhammad Aslam Chishti for Appellant (in Criminal Appeal No.(S)37 of 2001).

Ghulam Mustafa Mengal, Addl. A.-G. for the State (in Criminal Appeal No.(S)37 of 2001).

Muhammad Aslam Chishti for Appellant (in Criminal Appeal No.(S)38 of 2001).

Ghulam Mustafa Mengal, Addl. A.-G. for the State (in Criminal Appeal No.(S)38 of 2000.

Muhammad Aslam Chishti for Appellant (in Criminal Appeal No.(S)46 of 2001).

Ghulam Mustafa Mengal, Addl. A.-G. for the State (in Criminal Appeal No.(S)46 of 2001).

Muhammad Aslam Chishti fore Appellant (in Criminal Appeal No. 191 of 2001).

Ghulam Mustafa Mengal, Addl. A.-G. for the State (in Criminal Appeal No. 191 of 2001).

Muhammad Sadiq Ghuman, Muhammad Ewaz Zehri and Sher Muhammad for Appellant (in Criminal Appeal No.(S)18 of 2002.

Ghulam Mustafa Mengal, Addl. A.-G. for the State (in Criminal Appeal No.(S)18 of 2002.

Abdul Waheed Katper for Appellant (in Criminal Appeal No.97 of 2002)

Ghulam Mustafa Mengal, Addl. A.-G. for the State (in Criminal Appeal No.97 of 2002).

Date of hearing: 22nd May, 2003.

P L D 2004 Quetta 31

Before Muhammad Nadir Khan Durrani, J

MUHAMMAD ASHRAF and 3 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.307 of 2002, decided on 4th July, 2003

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 308‑‑‑Appreciation of evidence‑‑‑Presence of the complainant and other witnesses on the spot at the time of incident was highly doubtful‑‑­F.I.R. was lodged after a delay of more than 16 days which was not explained‑‑‑Witnesses were examined by the police after four days of the occurrence‑‑‑Prosecution witness, who was paternal cousin of the deceased, before whom the deceased had allegedly made a disclosure of having been stabbed by the accused which was termed to be a dying declaration, had remained silent for three days and thereafter made a statement before the police, and he had also made improvement by introducing other persons as accused in the case‑‑‑Statement of the said witness called for independent corroboration which was not available on record‑‑‑Prosecution had, withheld the vital evidence inviting adverse inference‑‑‑Clothes of accused and the recovered knife were not sent to Chemical Examiner for analysis ‑‑‑Post‑mortem‑ of the deceased was not conducted, only his external examination was made, but the Doctor had not examined the recovered knife so as to connect the same with the injuries‑‑‑Confessional statement of accused was retracted and had contradicted the prosecution case and was liable to be rejected in toto‑‑­All pieces of evidence led by prosecution were not only tainted with doubt but were in direct conflict with each other and did not independently connect any of the accused with the commission of offence‑‑‑Accused were acquitted in circumstances.

Muhammad Amin v. The State PLD 1968 Quetta 29 ref.

W.N. Kohli for Appellants

Asstt. A.‑G. for the State

Date of hearing: 27th May, 2003

P L D 2004 Quetta 39

Before Amanullah Khan and Ahmed Khan Lashari, JJ

THE STATE‑‑‑Appellant

Versus

QADIR BAKHSH and others‑‑‑Respondents

Criminal Appeals Nos.96 and 97 of 2002 and Murder Reference No. 27 of 2002, decided on 8th December, 2003.

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

‑‑‑‑S. 16‑‑‑Oath by Anti‑Terrorism Court‑‑‑Presumption of truth is attached to all judicial proceedings conducted by a Judge, and even if the Judge has not taken oath, still it would not invalidate the proceedings‑‑­Judge ought to decide the cases strictly in accordance with law, as if he is answerable to his conscience and Almighty Allah.

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

‑‑‑‑Ss. 16‑‑‑Penal Code (XLV of 1860), 302(a) & 109‑‑‑Oath by Anti­-Terrorism Court‑‑‑Order‑sheet was indicative of the fact that the Presiding Officer had taken the oath at the time of commencement of the trial and there was nothing to doubt about it‑‑‑Objection that the Presiding Officer did not take oath on the Holy Qur'an as required under S.16 of the Anti‑Terrorism Act, 1997, which had vitiated the trial, was never raised throughout the proceedings, nor the same was incorporated even in the memo. of appeal‑‑‑Record also did not show if any prejudice had been caused to the accused on that account—­Objection was repelled accordingly.

(c) Anti‑Terrorism Act (XXVII of 1997)‑‑-

‑‑‑‑Ss. 19(10)‑‑‑Penal Code (XLV of 1860), 302(a) & 109‑‑‑Trial of and appeal by accused in absentia‑‑‑Accused after publication in the newspapers could have surrendered at any stage of the proceedings, but they had deliberately avoided to appear in the Court‑‑‑Accused could be tried in absentia, but there was no provision for filing appeal in absentia, is filed by the absconding convict‑appellants‑‑‑Accused had sufficient knowledge about their conviction and they could have approached the Court and surrendered to the process of law, but they did not choose to do so and thus had lost right of hearing‑‑‑Appeal filed by accused in absentia was not maintainable and the same was dismissed accordingly.

Haq Nawaz v. The State 1999 PCr.LJ 1381 ref.

(d) Criminal trial‑‑

‑‑‑‑Review‑‑‑Review of judicial order‑‑-Appeal in absentia ‑‑‑Pre­requisite‑‑‑Accused seeking any review of judicial order must surrender to the process of law and in case of abstaining to attend the proceedings he loses his right of hearing.

Haq Nawaz v. The State 1999 PCr.LJ 1381 ref.

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

‑‑‑‑S. 6‑‑‑Terrorist act‑‑‑Deceased was a renowned person of the area and after attending a funeral he was coming to his house, where he was waylaid and ambushed alongwith two persons, which sent a wave of terror in the public and also sown seeds of a tribal feud‑‑‑Alleged act clearly fell within the ambit of S.6 of the Anti‑Terrorism Act, 1997 and the Anti‑Terrorism Court had the jurisdiction to try the case.

M. Jaffar Raza for the State (in Murder Reference No.27 of 2002).

Abdul Waheed Katpar and H. Shakil Ahmed for Respondents (in Murder Reference No.27 of 2002).

Syed Ayaz Zahoor for the Complainant (in Murder Reference No.27 of 2002).

Abdul Waheed Katpar and H. Shakil Ahmed for Appellant (in Criminal Appeal No. 96 of 2002).

M. Jaffar Raza for Respondent (in Criminal Appeal No.96 of 2002).

Syed Ayaz Zahoor for the Complainant (in Criminal Appeal No.96 of 2002).

Date of hearing: 21st October, 2003.

P L D 2004 Quetta 47

Before Raja Fayyaz Ahmed, C.J. and Akhtar Zaman Malghani, J

NADIA MEHREEN‑‑‑Petitioner

Versus

SELECTION COMMITTEE FOR ADMISSION TO IST YEAR M.B.,B.S., BOLAN MEDCIAL COLLEGE SESSIONS 2002‑2003 through Chairman, Public Service Commission, Quetta and 3 others‑‑‑Respondents

Constitutional Petition No.481 of 2003, decided on 11th November 2003.

(a) Prospectus of Bolan Medical College (2002‑2003)‑‑

‑‑‑‑Para. 49‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Educational institution‑‑‑Admission in medical college ‑‑‑Non­appearance of candidate before Selection Committee‑‑‑Neither the candidate nor her ‑father promptly approached the Selection Committee to explain the circumstances on account of which she was prevented from appearing on the date fixed for interview before the Selection Committee‑‑‑After the date of final meeting of Selection Committee, the candidate submitted application in the office of the medical college seeking condonation of default for non‑appearance‑‑‑Application filed by the candidate was also devoid of any substance‑‑‑Default was not condoned by the Selection Committee and the admission was refused to the candidate‑‑‑Validity‑‑‑Failure on the part of candidate to appear on the scheduled date could not be condoned in routine or in mechanical way unless the circumstances which prevented the candidate to be physically present before the Committee brought to the notice of the Selection Committee promptly as well as to have appeared at least before the Committee on the date fixed for final meeting already notified in the first notice published by the Authorities in the newspaper‑‑‑As the candidate neither cared nor acted with due diligence, therefore, she at belated stage could not be permitted to take benefit of her own wrong‑‑­Selected candidate, who was granted admission, could not be deprived of her legitimate right of admission accrued to her on account of failure of the candidate to appear for interview and subsequent lapses‑‑‑Candidate failed to produce before' High Court or at any stage, any document or other material indicating that she appeared or approached the Selection Committee on the date of its final meeting for interview and to explain her position‑‑‑Authorities had complied with the provisions of para. 49 of Prospectus of Bolan Medical College (2002‑2003) and rightly refused to condone the default of non‑appearance by the candidate‑‑­Constitutional petition was dismissed in circumstances.

Syed Suleman Shah v. Principal, Bolan Medical College and others Constitutional Petition No. 186 of 2001.

(b) Prospectus of Bolan Medical College (2002‑2003)‑‑--

‑‑‑‑Para. 49‑‑‑Admission Policy‑‑‑Provisions of para.49 of Prospectus of Bolan Medical College (2002‑2003)‑‑‑Sufficient cause for non­appearance of candidate before Selection Committee‑‑‑Admission Policy of Medical College though being mandatory in nature was not absolutely inflexible in all circumstances but it had scope of flexibility in view of principles of fairness, reasonableness and wisdom embodied in its spirit to admit for explanation to condone default of a candidate, if he was precluded or prevented by an act of God or any other sufficient cause to be physically present before the Selection Committee for interview on the particular date‑‑‑Such factors had to be promptly and without loss of time brought to the notice of the Selection Committee on or prior to the date of final meeting of the Committee‑‑‑Power of the Committee fell within the scope of its inherent powers to reconsider and to satisfy itself as to the genuineness of the explanation offered by a candidate to condone the default unless it was shown that the powers and exercise of authority so vested in the Committee had been exercised arbitrarily or fancifully.

(c) Prospectus of Bolan Medical College (2002‑2003)‑‑--

‑‑‑‑Para. 49‑‑‑Scheme of Admission Policy‑‑‑Physical appearance of candidate before Selection Committee‑‑‑Object and scope‑‑‑Scheme of Admission Policy under para.49 of Prospectus of Bolan Medical College (2002‑2003) was not without any ratio and logic as on such date the Selection Committee had to scrutinize the original testimonials of candidates and satisfy itself about the candidates to be bona fide residents i.e. local/domicile of the districts of which they had applied for admission on merits against the reserved seats of districts or otherwise‑‑­Selection Committee under the policy had to make further inquiry if needed regarding genuineness and validity of a local/domicile certificate, hence, the provisions of para.49 of Prospectus of Bolan Medical College (2002‑2003) were mandatory in nature.

H. Shakeel Ahmed for Petitioner.

Salahuddin Mengal, A.‑G. and Mujeeb Ahmed Hashmi for Respondents.

Date of hearing; 28th October, 2003.

P L D 2004 Quetta 62

Before Raja Fayyaz Ahmed, C J

BASHIR AHMAD and 2 others‑‑‑Petitioners

Versus

HUSSAIN‑‑‑Respondent

Civil Revision No.347 of 2001, decided on 22nd September, 2003.

Civil Procedure Code (V of 1908)—--

‑‑‑‑Ss. 96 & 115‑‑‑Limitation Act (IX of 1908); Ss.5 & 14‑‑‑Condonation of delay‑‑‑Bona fide proceedings in Court without jurisdiction‑‑‑Act of Court‑‑‑Judgment and decree passed by the Trial Court was appealable but instead of filing appeal before Appellate Court, defendants filed revision before High Court‑‑‑Revision was filed before High Court within limitation of appeal to be filed before Lower Appellate Court‑‑­Office of High Court did not note objection with regard to incompetency of the revision resultantly the matter remained pending before High Court till the date parties were heard by High Court‑‑‑On the date of hearing, the documents were returned to the defendants who filed appeal before Lower Appellate Court on the same day‑‑‑During the period when the revision was pending before the High Court, the time for preferring appeal against the judgment and decree passed by the Trial Court stood elapsed‑‑‑Appeal filed before Lower Appellate Court was dismissed being barred by limitation‑‑‑Validity‑‑‑Act of Court should not non‑suit any party to the proceedings ‑‑‑If the revision entertained by the office of High Court had been returned to the defendants within the period of limitation for filing appeal before the competent forum or an appropriate order had been passed by High Court as to incompetence of the revision, the appeal subsequently, preferred against decree of the Trial Court would not have become time‑barred‑‑‑Delay occurred in preferring appeal before Lower Appellate Court was condonable within the meaning of S.5 of Limitation Act, 1908‑‑‑High Court condoned the delay and the appeal was remanded to Lower Appellate Court for decision afresh on merits‑‑‑Revision was allowed accordingly.

Ghulam Hussain v. Jamshed Ali and others 2001 SCMR 1001; Sajjawal Khan v. Wali Muhammad and others 2002 SCMR 134; Abdul Majeed and another v. Ghulam Haider and others 2001 SCMR 1254; Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 58,4; Rehmdil Khan and 2 others v. Ali. Safdar Khan and 2 others 1998 MLD 416; Abdul Ghani v. Mst. Musrat Rehana 1985 CLC 2529; Siddique Khan v. Abdul Shakoor PLD 1984 SC 289; Pulteny v.Warren (1801) 6 Ves. 73, 92; Lakhan Chunder Sen v. Madhu Sen ILR 35 Cal. 209; Rodger v. The Comptoir d Escompte. de Paris (1871) 3 PC 465; Jai Berham v. Kedar Nath AIR 1922 PC 269; Hiddayatullah v. Murad A. Khan PLD 1972 SC 69; Hari Ram v. Akhtar Hussain ILR 29 All. 749; 1985 SCMR 890; 1992 SCR 292 and 1992 SCR 98 rel.

Amanullah Kanrani for Petitioners.

Naeem Akhtar for Respondent.

Date of hearing: 11th April, 2003.

P L D 2004 Quetta 75

Before Raja Fayyaz Ahmad C. J. and Muhammad Nadir Khan, J

SHER MUHAMMAD and others‑‑‑Appellants

versus

THE STATE and others‑‑‑Respondents

Criminal Appeals Nos.56, 57 and 62 of 2002, decided on 6th November, 2003.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/201/34‑‑‑Criminal Procedure Code (V of 1898), 5.103‑‑‑ Qanun‑e‑Shahadat (10 of 1984), Art.40‑‑‑Appreciation of evidence‑‑­Search and recovery proceedings‑‑‑ Admissibility of a fact‑‑‑Memo of pointation of place of incident had shown that one of accused not only pointed `out the place of incident, but also confessed the commission of offence and implicated her co‑accused brother‑‑‑Said memo based on the statement of accused made to police during investigation could not be admitted in evidence‑‑‑Pointation of place of incident was found to be discovery as before pointation of same by said accused, it was not known to Investigating Officer which, in view of Art.40 of Qanun‑e‑Shahadat, 1984 was found to be admissible piece of evidence‑‑‑Same could be admitted in evidence if supported by independent evidence‑‑­Admissibility of recovery of knife allegedly used in the commission of offence and iron box used for shifting of dead body, of deceased, allegedly made on pointation of accused were challenged on the ground that provisions of S.103, Cr.P.C. were violated as no independent witness was associated to attest any of said recoveries‑‑‑Attestation of recovery by private witness was the requirement of S.103, Cr.P.C. which would apply to the recoveries made as a result of search of place and not on pointation of accused‑‑‑Provisions of S.103, Cr.P.C., in circumstances, could not be made applicable in the present case as recoveries were effected on pointation of accused which in view of Art.40 of Qanun‑e‑Shahadat, could be admitted in evidence if proved by prosecution‑‑‑Objection so raised being without any substance, would not affect the admissibility of recoveries made on pointation of accused.

Muhammad Akbar v. The State 1995 SCMR 693 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/305/306/308/201/34‑‑‑Appreciation of evidence ‑‑‑Blood­stained clothes of deceased were seized vide memo soon after dead body of deceased was recovered from the well and that fact was not disputed by the accused‑‑‑Blood‑stained clothes alongwith knife was referred to F.S.L. Crime Branch for examination which after examination reported that said articles were stained with human blood and the report remained unchallenged‑‑‑Confessional statement of accused was proved to be voluntary as he was not under any pressure at the relevant time‑‑­Accused in his confessional statement had given minute details of whole episode‑‑‑No reason was available to doubt voluntariness of ‑ the confession of accused‑‑‑Mere wrong description of seat of injury, was not to render confessional statement of accused as untrue‑‑‑Female accused who was wife of the deceased and mother of four children had contended that in view of S.306, P.P.C. she was not liable for conviction under S.302, P.P.C. as her case fell within ambit of S.308, P.P.C.‑‑­Contention of the lady accused was repelled as her case did not meet requirement of S.308, P.P.C. because no circumstance existed to allow the punishment of Qisas as no eye‑witness of incident was available‑‑­Witnesses who had been examined, did not undergo the test of Tazkia‑ul­-Shahood‑‑‑Offence against accused was punishable under S.302(b), P.P.C. with death or imprisonment for life as `.Tazir' whereas S.308, P.P.C. was applicable when punishment of Qisas was to be awarded‑‑­Sections 306 & 308, P.P.C. thus would not come into play‑‑‑Both accused persons who were brother and sister, were found to have shared the common intention for committing Qatl‑e‑Amd of the deceased‑‑­Accused persons, had participated in the affair from the very initial stage‑‑‑Said accused were found to have committed offence under S.302(b), P.P.C., but Trial Court while recording conviction, sentenced the accused under S.302(c), P.P.C.‑‑‑High Court rectified by altering the same to that under S.302(b), P.P.C.‑‑‑Strained relations between the deceased and his accused wife which invoked threat of life to accused wife who happened to be sister of co‑accused, were found to be mitigating circumstances so as to justify lesser punishment‑‑‑Both the accused were not alleged to have inflicted any injury to the deceased while initiation to commit crime was also not on their part‑‑‑Such fact also created mitigating circumstance for awarding lesser sentence of imprisonment for life‑‑‑Sentence of imprisonment for life awarded to the accused persons was maintained‑‑‑After alteration of conviction from S.302(c) to S.302(b), P.P.C.‑‑‑One of said accused persons had already been convicted under S.201, P.P C. on charge of screening off/concealing evidence of crime as he dumped the dead body of deceased in the well‑‑‑Conviction and sentence awarded to said accused under S.201, P.P.C. would call no interference‑‑‑Another co‑accused had been found guilty by Trial Court in view‑ of retracted confession of other co‑accused, but charge against him found no support from any other piece of evidence as regard his criminal liability, it would thus be highly unsafe to base conviction of said accused on sole retracted confession‑‑‑Said accused was acquitted of the charge, in circumstances.

Ganesh v. Raghavendra AIR 1960 Mys. 163; Faqirullah v. Khaliluzzaman 1999 SCMR 2203; Kashif‑ur‑Rehman and others v. The State 1996 PCr.LJ 1689; 1999 SCMR 1469; Muhammad', Sharif v. Muhammad Javed alias Jeda PLD 1976 SC 452; Mst. Bismillah v. Muhammad Jabbar 1998 SCMR 862; Pervaiz v. The State 1998 SCMR 1976 and Irfan Masih v. The State 1998 PCr.L1 716 ref:

Amanullah Khan Tareen and Qahir Shah for Appellants

Sultan Mehmood Asstt. A.‑G. for Respondents.

Date of hearing: 28th April, 2003.

P L D 2004 Quetta 92

Before Raja Fayyaz Ahmed, C. J. and Akhtar Zaman Malghani, J

CRESCENT INDUSTRIAL CHEMICAL LTD, through Chief Executive‑‑‑Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Law, Justice and Human Rights Division, Islamabad and 3 others‑‑‑Respondents

Constitutional Petition No. 596 of 2002, decided on 1st July, 2003.

(a) Words and phrases‑‑‑

--------"Promissory estoppel", doctrine of‑‑‑Definition.

Blacks Law Dictionary ref.

(b) Estoppel------

-----Promissory estoppel ‑‑‑Applicability ‑Essential ingredients

Following are the ingredients of promissory estoppel.

(a) There is a clear and unequivocal promise by one party through representation to the other party.

(b) The promisor expects that the representation should induce action or forbearance of a definite and substantial character on the part of the promisee.

(c) The promise is intended to create a legal' relationship to arise in the future.

(d) Knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party.

Blacks Law Dictionary fol.

(c) Estoppel‑‑‑--

‑‑‑‑Promissory estoppel, principle of‑‑‑Applicability‑‑‑Such principle being an equitable principle evolved by Courts for doing justice, would be available bath by way of defence and as cause of action.

Pakistan v. Facto Belarus Tractors Ltd. PLD 2002 SC 208, fol.

(d) Estoppel‑‑‑

‑‑‑‑Promissory estoppel‑‑‑Effect‑‑‑Promisor could not retract from his promise or act in a way detrimental to vested rights of promisee ‑‑‑Where promise was subject to qualifications, then before pressing doctrine of promissory estoppel, promisee would be required to show fulfillment of such obligations by him‑‑‑Principles.

A promise made by a party would be binding on it and it would not be entitled to go back upon it, if it would be inequitable to allow to do so having regard to the dealings, which had taken place between the parties at the same time, if promise is subject to certain qualifications, then before pressing the doctrine of promissory estoppel, the promisee is required to show that the obligations, which were required to be fulfilled by him, have been in fact fulfilled, as such the promisor is bound by his promise and cannot be allowed to retract or act, which may be detrimental to the vested rights of promisee.

Collector Central Excise v. Aziz‑ud‑Din PLD 1970 SC 439; Al­ Samrez Enterprises v. Federation of Pakistan 1986 SCMR 1916; Pakistan v. Salah‑ud‑Din PLD 1991 SC 546; Messrs Army Welfare Sugar Mills Ltd: v. Federation of Pakistan 1992 SCMR 1652 and Pakistan v. Facto Belarus Tractors Ltd. PLD 2002 SC 208 rel.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Promissory estoppel ‑‑‑Scheme of incentives approved for setting up industrial projects in Special Industrial Zone‑‑‑Authority withdrew facilities offered in such scheme on petitioner's failure to bring its project into commercial production before the target date‑‑‑Validity‑‑‑Benefit of such scheme was available to petitioner on fulfillment of two conditions i.e. to open Letter of Credit by 31‑6‑1996 and commence commercial production by 30‑6‑1999‑‑­Petitioner had opened Letter of Credit by target date, but could not commence production on or before such cut‑off date‑‑‑Record showed that all facilities promised by Government, such as electricity, water supply, sewerage system and roads links, were made available in such Zone, except gas supply, which was not essentially required for setting up of project by petitioner‑‑‑Other parties, after setting up their projects in such Zone, had commenced commercial production by target date enabling them to avail incentives of such Scheme‑‑Doctrine of promissory estoppel would not be attracted in such case for petitioner's failure to fulfill required obligations on his part‑‑‑Government had not withdrawn such incentives in respect of investors, who had fulfilled both such obligations‑‑‑Principle of locus poenitentiae would not be available to petitioner as Government had not withdrawn such incentives, but had refused to extend time of setting up projects beyond target date in order to avail exemptions, which could not be termed as recession detrimental to him‑‑‑High Court dismissed Constitutional petition in circumstances.

1986 SCMR 916; PLD 1991 SC 46; 1992 SCMR 1652; 1999 SCMR 1112; 2002 SCMR 510 and AIR 1983 SC 4848 distinguished.

Mian Allah Nawaz, Dr. Amjad Bukhari, Tariq Kamal, Syed Wasi Haider, Nadeem Ahmed and Muhammad Ilyas Sheikh for Petitioner.

K.N. Kohli, Deputy Attorney‑General for Respondents.

Date of hearing: 27th May, 2003.

P L D 2004 Quetta 105

Before Amanullah Khan, Fazal‑ur‑Rehman and Akhtar Zaman Malghani, JJ

AMANULLAH and others‑‑‑Appellants

Versus

THE STATE and others‑‑‑Respondents

Criminal Jail Appeal No .123 of 2000, Criminal Revision No. 139 of 2002, decided on 15th August, 2003.

Per Fazal‑ur‑Rehman, J.‑‑--

(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 has 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 same and making the judgment illegal and void.

NLR 1999 Criminal 122 and PLD 2003 Quetta 11 ref.

(b) Administration of justice‑‑--

‑‑‑‑Principle‑‑‑Where law provides a procedure for doing a thing in u particular manner then that thing should be done in the prescribed manner and in no other manner or should not be done at all.

Per Amanullah Khan, J., disagreeing with Fazal‑ur‑Rehman, J.‑­Minority view—

2002 SCMR 203 and Munir Ahmed v. The State 2001 SCMR 56 ref.

Per Akhtar Zaman Malghani, J., concurring with Fazal‑ur‑Rehman, J.‑‑Majority view‑‑‑

(c) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑S. 302‑‑‑Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.4 & Sched.‑‑‑Special Court having no jurisdiction, case remanded‑‑‑Accused according to prosecution had allegedly committee the offence with a T.T. Pistol, but on the date when the offence was allegedly committed the amendment inserting semi‑automatic or automatic pistols commonly known as T.T. Pistols to the Sched. of the Suppression of Terrorist Activities (Special Courts) Act, 1975, was not in existence‑‑‑Murder committed by T.T. Pistol, thus, was not triable by the, Special Court constituted under the said Act‑‑‑Consent or acquiescence of the parties could not confer jurisdiction on a Court or Tribunal which totally lacked jurisdiction and the objection to the jurisdiction could be taken at any stage including appeal‑‑‑Trial Court before taking cognizance of the matter was also obliged to see itself as to whether the same fell squarely within its jurisdiction‑Conviction and sentence passed by Special Court being coram non judice, were set aside and the case was remanded to the Sessions Judge for adjudication in accordance with law.

NLR 1999 Criminal 122 and PLD 2003 Quetta 11; 2001 PCr.LJ 754; 1999 MLD 2450; 1999 MLD 946; 1999 MLD 535; 1992 SCMR ,2192; 2002 SCMR 203; Munir Ahmed v. The State 2001 SCMR 56; 2001 PCr.LJ 453; PLJ 1998 (Criminal Cases) 1507; 2002 PCr.LJ (sic); 2000 PCT, LJ 1317; PLD 2000 SC 816 and 1995 SCMR 59 ref.

Muhammad Mohsin Javed for Petitioner, Rana Ehsan Rafique for Appellant.

Malik Sultan Mehmood for the State.

Rana Ehsan Rafique for Respondent (in Criminal Revision No. 139 of 2000).

Sardar Saleem Durrani for the State (in Criminal Jail Appeal No. 123 of 2000).

Muhammad Mohsin Javed for the Complainant (in Criminal Jail Appeal No. 123 of 2000).

Date of hearing: 17th December, 2002.

P L D 2004 Quetta 118

Before Akhtar Zmnan Malghani and Muhammad Nadir Khan Durrani, JJ

ABDUL REHMAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 164 of 2003, decided on 29th March, 2004.

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

‑‑‑‑S. 9(c)‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.40‑‑‑Appreciation of evidence‑‑‑Prosecution version was supported by all the witnesses who had remained firm despite lengthy cross‑examination‑‑Recovery of narcotics‑was not controverted by the defence, accused however, had disowned the same‑‑‑Accused on suspicious was interviewed by Resaldar and he disclosed about the presence of narcotics in his house and then led the police party to that place from where the narcotics were recovered‑‑­Accused, as such, was in custody within the meaning of Art.40 of Qanun‑e‑Shahadat, 1984 and any, such information which led to the recovery of the contraband items was admissible in evidence against him‑‑‑Narcotics having been recovered on the disclosure and pointation of the accused, there was no need to prove that the said house was owned or possessed by him in view of the admissibility of such information and recovery made in consequence thereof, in evidence‑‑­Conviction and sentence of accused were upheld in circumstances.

AIR 1934 Lah. 150 and AIR 1933 Cal. 148 ref.

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

‑‑‑‑Art. 40‑‑‑Criminal Procedure Code (V of 1898), S.46(1)‑‑‑Custody‑‑­Connotation‑‑‑Word "custody" for the purpose of Art.40 of the Qanun‑e­-Shahadat, 1984, does not necessarily mean detention or confinement‑‑­Submission to custody by word or action under S.46(1), Cr.P.C. could amount to custody‑‑‑Expression "police custody" also does not necessarily mean formal arrest which also includes police surveillance and restriction on the movement of the person concerned by the police‑‑­Even detention of a person by the police as a suspect amounts to his being in police custody‑‑‑As soon as an accused or suspected person comes into the hands of a Police Officer, he, in the absence of clear evidence to the contrary, is no longer at liberty‑and is in custody within the meaning of Art.40 of the Qanun‑e‑Shahadat, 1984.

AIR 1934 Lah. 150 and AIR 1933 Cal. 148 ref.

(c) Words and phrases‑‑--

‑‑‑‑‑‑ "Custody"‑connotation.

Qahir Shah for Appellant.

Malik Sultan Mehmood, Asstt. A.‑G. for the State.

Date of hearing: 16th February, 2004.

P L D 2004 Quetta 123

Before Raja Fayyaz Ahmed, C. J. and Akhlar Zaman Malghani, J

ASIM and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.270 of 2003, and Murder Reference No.27 of 2004, decided on 10th May, 2004.

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

----S. 302(b)---Appreciation of evidence---Complainant though related to the deceased was an independent witness having no previous enmity to falsely implicate the accused in the crime---Presence of complainant ac the scene of occurrence was not denied by the defence which was also proved by the promptitude with which the F.I.R. was lodged---Statement of the complainant was corroborated by another independent witness having no relation with the deceased or the accused---Contradicting medical evidence was not sufficient to discard the truthful and confidence inspiring ocular testimony---Accused was nominated in the F.I.R. and his description therein was not needed---Presence of accused at the spot, his; taking out pistol and quarrelling with the complainant was established on record, as such absence of the description of accused in the F.I.R. could not discredit the complainant's statement---Deceased and the complainant were unarmed and they had not even made a threatening gesture---Accused had deliberately and wantonly caused death of the deceased and even if without any premeditation the murder was of a most cowardly nature---No extenuating circumstance t6 award lesser punishment was available in favour of accused---Conviction and. sentence of death of accused were affirmed in circumstances.

2002 SCMR 727; 2000 SCMR 1885; 2000 SCMR 1758; PLD 1994 Pesh. 176; 1986 SCMR 1027; PLD 1988 Kar. 539; 1982 SCMR 129 and 1963 SC 285 ref

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

----S. 302(b)---Appreciation of evidence---Principle---Various pieces of prosecution evidence cannot be considered in isolation but a cumulative effect of whole prosecution evidence is to be considered.

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

----S. 302(b)---Appreciation of evidence---Ocular and medical evidence---Conflict between---Medical evidence if in conflict with the ocular testimony will not discard the latter if the same is true, reliable and confidence inspiring.

2000 SCMR 1885 and 2000 SCMR 1758 ref.

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

----S. 302(b)---Appreciation of evidence---Medical evidence------Medical opinion is not conclusive and inviolable and must be invariably tested on the touchstone of the well-known treatise of medical jurisdiction and form.

PLD 1994 Pesh. 176 ref.

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

----S. 302(b)---Identification. parade---Holding of an identification test of an accused person is not a legal requirement---Identification of accused, by the eye-witnesses before the Trial Court is enough.

PLD 1988 Kar. 539 ref.

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

----S. 302(b)---Identification test, non-holding of ---Effect---Where identity of an accused can be established from other evidence on record, non-holding of identification test would not be fatal.

1982 SCMR 129 ref.

Muhammad Aslam Chishti for Appellant (in Crl. Appeal No.270 of 2003).

Jaffar Raza Khan for the State (in Crl. Appeal No.270 of 2003).

Jaffar Raza Khan for the State (in Murder Reference No.27 of 2004).

Muhammad Aslam Chishti for Respondent (in Murder Reference No.27 of 2004).

Date of hearing, 22nd March, 2004.

P L D 2004 Quetta 136

Before Amanullah Khan and Fazal-ur-Rehman, JJ

Qazi SIRAJ---Appellant

Versus

THE STATE---Respondent

Criminal Eht. Appeal No.44 of 2001, decided on 7th June, 2004.

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

----S. 342---Examination of accused---Omission to draw the attention of accused to a circumstance to be used against him is prejudicial to him--­Unless a circumstance sought to be used against the accused is put to him during his examination under S.342, Cr.P.C., the same cannot be used against him for any purpose.

PLD 1984 FSC 57 ref.

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

----S. 14(c)---Presumption against accused---Court would raise a presumption of guilt against the accused under S.14(c) -of the National Accountability Ordinance, 1999, only when the prosecution succeeds in proving the basic ingredients of the charge, -as the initial burden continues to be on the prosecution.

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

----Ss. 10/11/12---Appreciation of evidence---Salaries, allowances, privileges etc. and agricultural income of the accused was not properly investigated and included in his income---Accused had discharged the burden cast upon him---Prosecution had failed to bring sufficient evidence on record to indicate that the assets and the properties had been acquired by the accused through corruption and corrupt practices disproportionate to his known source of income during the tenure of his service as Deputy Commissioner---Accused had given a satisfactory account of his source of income with which he had acquired. the assets and properties held by him by adducing sufficient defence evidence in this regard--- Prosecution having failed to discharge the onus of proof, presumption of guilt raised against the accused was not warranted in law---Accused was acquitted on benefit of doubt in circumstances.

PLD 1984 FSC 57; Ehtesab Appeal No. 13 of 2002; 2003 SCMR 150; Khan Asfandyar Wali v. The Federation of Pakistan PLD 2001 SC 607; Mir Ahmed v. The State PLD 1962 SC 849 and Syed Ali Nawaz Shah v. The State PLD 2003 SC 837 ref.

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

----Ss. 10/11/12---Appreciation of evidence---Principles---Opinion of the Court on analysis of evidence that the defence put forward by the accused might be reasonably true, reacts upon the whole case making him entitled to benefit of doubt on the ground that the prosecution had failed to prove its case beyond reasonable doubt.

2003 SCMR 150 ref.

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

----Ss. 10, 11 & 12---Principles---Accused cannot be held guilty merely on the basis of probabilities---Finding of guilt should rest squarely and firmly on the evidence on record.

Syed Ali Nawaz Shah v. The State PLD 2003 SC 837 ref.

H. Shakeel Ahmed for Appellant.

M. Saleem Ansari for Respondent.

Date of hearing: 5th May, 2004.

P L D 2004 Lahore 1

Before Mian Saqib Nisar, J

MOHSIN KHAN and 3 others---Petitioners

Versus

AHMAD ALI and 2 others---Respondents

Civil Revision No. 1469 of 1996, decided on 1st October, 2003.

(a) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)-----

----S. 2-A---Custom---Succession---Last male owner died in year 1926 leaving behind a daughter and widow---Mutation of inheritance giving whole estate of deceased to widow---Effect---Widow could have taken whole estate of deceased either as a widow under custom as limited owner or to the extent of 1/8th share under Islamic Law---Mutation giving whole estate to the widow would necessarily and essentially mean that she had got property not under Islamic Law, but as per custom---Had such not been under the custom, widow would not have got whole estate mutated in her favour---Widow, held, was not the limited owner.

(b) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)----

----S. 3---Gift of property by widow as limited owner---Validity---Such ownership would terminate on enforcement of S.3 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and property for purposes of inheritance would revert back to last male owner---Gift made before such law by widow as limited owner would be absolutely illegal and void for not being absolute owner of property- Distribution of share in estate left by last male owner would be on the basis of Islamic Law, according to which widow would get 1/8th share out of total estate, whereas ½ excluding 1/8th share would go to the daughter and remaining ½ to collateral.

Manzoor Ahmed Khan v. Nasrullah Khan 1999 YLR 27; Ghulam Zohra and others v. Faisal Farooq and others 2000 YLR 1971; Mst. Faiz Elahi v. Muhammad Anwar 2001 YLR 2174 and Mst Noor Fatima v. Shah A 2002 CLC 689 ref.

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

----S. 3---Suit by co-owner seeking share of inheritance---Limitation---For such co-owner, particularly in possession there was no limitation.

(d) Islamic Law---

----Inheritance---Limitation would not apply to enforcement of right of inheritance in estate of deceased predecessor.

Ghulam Ali and others v. Mst. Ghulam Sarwar and others PLD 1990 SC 1 fol.

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

----O. XXIII, R. 1(3)---Fresh suit after withdrawal of earlier suit without permission---Burden of proof---Contention of defendant was that fresh suit was barred in view of admission made by plaintiff's witness in cross ­examination as to filing and withdrawal of earlier suit---Validity---No further question had been put to such witness as to whether such withdrawal was with or without permission of the Court---Onus to prove such plea was on the defendant, who had failed to adduce any evidence to strictly establish that earlier suit was based upon same cause of action and had been withdrawn without permission of Court---In absence of plaint of earlier suit and order of Court fresh suit could not be held to be hit by O.XXIII, R.1, C.P.C.

Syed Ijaz Qutab for Petitioners

Syed Maqbool Hussain for Respondents.

Date of hearing: 1st October, 2003.

P L D 2004 Supreme Court 4

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

Ch. AZHAR ALI --- Petitioner

Versus

PUNJAB PUBLIC SERVICE COMMISSION and others---Respondents

Civil Petition No.641-L of 2001; decided on 26th February, 2003.

(On appeal from the judgment dated 21-12-2000 passed by the Lahore High Court, Lahore in Writ Petition No.15497 of 1997).

(a) Punjab Public Service Commission Regulations, 1987----

------Regln. 2(8)---Constitution of Pakistan (1973), Art. 185(3)--­Constitutional petition---Bias---Selection for post of Senior Headmaster--­Policies of Teachers Association, of which petitioner was Vice-Chairman, were opposed by All District Education Officers of the Province ---Non­ selection of petitioner by Public Service Commission was alleged to be on account of such departmental and policy bias of District Education Officer (co-opted Member of Commission)----Validity---Petitioner had not brought any material on record to show that there was any reasonable likelihood of bias of such Member of Commission against him--­Supreme Court dismissed petition and refused to grant leave to appeal.

(b) Bias-----

----General departmental or policy bias---Proof---Ordinarily mere such allegations would not be sustainable in absence of an tangible evidence in support thereof.

Roebuck v. National Union of Mine Workers (Yorkshire Area) (No.2) (1978) ICR 676 rel.

(c) Bias-----

---- Interest or bias disqualifying Member(s) of Tribunal---Essential conditions---Such interest or bias must be one in the matter litigated--­Mere general interest in general object to be pursued would not disqualify a person---Such interest or bias, which disqualifies, is an interest in a particular- case, something reasonably likely to bias or influence mind.

R v. Amber Valley District Council ex P Jackson (1984) 3 All. ER 501 and Natural Justice by H.H. Marshall, First Edn., p.28 fol.

(d) Punjab Public Service Commission Regulations, 1987-----

----Regln. 2(8)---Co-opted Member of Commission ---Qualification--­Regulation 2(8) of Punjab Public Service Commission Regulations, 1987 is silent as to status and rank of such member, but its only requirement is that he should be a senior officer.

Petitioner in person.

S.M. Masud, Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record for Respondents.

Date of hearing: 26th February, 2003.

P L D 2004 Supreme Court 7

Present: Javed Iqbal, Tanvir Ahmed Khan and Faqir Muhammad Khokhar, JJ

ADIL TEXTILE MILLS LIMITED---Petitioner

Versus

WATER AND POWER DEVELOPMENT AUTHORITY and 7 others---Respondents

Civil Petition No.2837-L of 2000, decided on 7th February, 2003.

(On appeal from the judgment/order dated 7-11-2000 of the Lahore High Court, Lahore, passed in ICA No.844 of 1999).

Electricity Act (IX of 1910)-----

----Ss. 26(5-A) & 39-A---Constitution of Pakistan (1973), Arts.185(3) & 199---Theft of electricity---Constitutional petition challenging show-cause notice issued by Authority to charge detection bill ---Maintainability--­Committee of Engineers of Electric Supply Company had found a hole in top cover of empty theft box artificially closed by -U-epoxy and a corresponding hole on top of KWH meter body directly above 1000th figure on register of meter also bearing scratches---Questions arose that by whom figures had been reversed; who was beneficiary; what was relevant period during which loss occurred; how much was exact loss; why faulty equipments could not be substituted; mechanism evolved for recording of figures of own choice; liability to be billed in such eventuality under S.26-A of Electricity Act, 1910; installation of TOD meter, monitoring of consumption by means of TOD meter, subsequent objections in such methodology; initiation of action under Ss.26(5-A) & 39-A of the Act; out of Court settlement between parties and responsibility of illegal abstraction of electricity by reversing figures during disputed period---Such question being controversial could not be resolved by High Court in exercise of Constitutional jurisdiction---Forums available under the Act could address such questions by following prescribed procedure after affording proper opportunity of hearing to petitioner---Supreme. Court dismissed petition and refused leave to appeal.

S. M. Tayyab, Senior Advocate Supreme Court and Ch, Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo. for Respondents.

Date of hearing: 7th February, 2003.

P L D 2004 Supreme Court 10

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

ASHIQ ALI and others---Petitioners

Versus

Mst. ZAMIR FATIMA and others---Respondents

Civil Petition No.2584-L of 2000, decided on 28th February, 2003.

(On appeal from the order dated 15-8-2000 of the Lahore High Court, Lahore passed in R.F.A. No.317/2000).

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

----O. XLI, R.11---Dismissal of regular first appeal in limine without summoning record from Trial Court---Scope---Where facts narrated in impugned judgment were not disputed and appeal could be decided on basis of available record, then summoning of record from Trial Court would not be necessary.

(b) Islamic Law---

---- Gift---Hiba-bil-Iwaz (gift for consideration)---Delivery of possession not an essential ingredient of such gift.

(c) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 5---West Pakistan Rules under Muslim Family Laws Ordinance, 1961, Rr. 8, 10, 11, 12 & Form II, Column. 13---Nikahnama---Dower---Factum of gift of property by husband to wife in lieu of dower as recorded in Column No.l3 of Nikahnama---Validity---Presumption of truth was attached to Nikahnama, which could not be rebutted---Husband after having gifted property to wife in lieu of dower would have no title to dispose of same.

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

----S. 107(1) & O. XLI, Rr.23, 24---Remand of cases ---Necessity--Remand would be ordered in those cases, which could not be decided on basis of available record as the same would be in the interest of justice--­Where evidence on record was sufficient for decision of case, then remand would not be ordered---Court would not remand a case, where defect was due to negligence and default of party desiring remand.

Pramatha Nath Chowdhury v. Kamir Mondal PLD 1965 SC 434 and Muhammad Saghir Bhatti v. Federation of Pakistan PLD 1958 SC (Pak.) 221 ref.

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

----Art. 185(3)---Grant of leave to appeal by Supreme Court ---Essentials-Raising substantial question of law of public importance is sine qua non for the grant of leave.

Muhammad Hanif Niazi, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 28th February, 2003.

P L D 2004 Supreme Court 15

Present: Sh. Riaz Ahmad, C.J, Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

Sh. HUKMAT KHAN-----Petitioner

Versus

HASHIM KHAN and 2 others---Respondents

Civil Petition No.2505 of 2001, decided on 16th June, 2003.

(On appeal from the judgment dated 16-7-2001 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Civil Revision No.239 of 1992).

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

----S. 4---Punjab Pre-emption Act (IX of 1991), S.35---Punjab Pre­emption Ordinance (XVIII of 1990), S.36---Constitution of Pakistan (1973), Art.185(3)---Suit for pre-emption filed on 14-10-1979 was adjourned sine die on 22-3-1982 on plaintiff's own application, but was revived on.18-12-1988 i.e. after the target date---Judgment of Trial Court dismissing suit on 17-7-1990 on the basis of rule laid down in Said Kamal Shah's case PLD 1986 SC 360 was upheld up to High Court---Application seeking revival of suit under S.36 of Punjab Pre-emption Ordinance, J990 was dismissed on 19-2-1991---Revision against such order was dismissed by District Judge, where after plaintiff did not avail any further remedy--­Validity---No decree having been passed in suit on or before 31-7-1986 no decree could be passed after such date in suit filed under Punjab Pre­emption Act, 1913---Right of pre-emption having not been claimed under provisions of Islamic Law, provision of S.36 of Punjab Pre-emption Ordinance, 1990 and that of S:35 of Punjab Pre-emption Act, 1991 would not be attracted---Order passed in revision having attained finality, Supreme Court dismissed petition and refused leave to appeal.

Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360; Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1; Ghulam Hussain v. Mushtaq Ahmad PLD 1994 SC 870 and Muhammad Anwar v. Hafiz Muhammad Akbar Ghughtai 1996 SCMR 749 ref.

Malik Qamar Afzal, Advocate Supreme Court for Petitioner.

Sh. Zamir Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 19th March, 2003.

P L D 2004 Supreme Court 20

Present: Rana Bhagwandas and Syed Deedar Hussain Shah, JJ

CANAL VIEW COOPERATIVE HOUSING SOCIETY---Petitioner

Versus

JAVED IQBAL and another---Respondents

Civil Appeal No. 1267 of 1998, decided on 19th September, 2003.

(On appeal from order of Lahore High Count, Lahore dated 11-11-1996 passed in Civil Revision No.2882-D of 1996).

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

----S. 9---Proceedings under S.9 of Specific Relief Act, 1877---Object and scope---Essential ingredients to be established at the trial by plaintiff--­Principles.

In a suit for possession under section 9 of Specific Relief Act, 1877 essential ingredients to be established at the trial are that (i) the plaintiff was in possession of immovable property; (ii) that he was dispossessed by the defendant; (iii) that he was dispossessed against his consent and not in accordance with law, and (iv) that such dispossession took place within a period of six months of such suit.

Legally speaking object of this provision is clearly to discourage forcible dispossession and to provide a quicker remedy for recovery of possession where a person is dispossessed from immovable property otherwise than in due course of law. The plaintiff under this section is not required to establish his title to the property and he can succeed by merely showing his previous possession and wrongful dispossession. However, proceedings under this provision of taw do not constitute a bar against any of the parties suing to establish his title to the property to recover possession thereof.

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

----S. 9---Civil Procedure Code (V of 1908), S.115---Constitution of Pakistan (1973), Art.185(3)---Suit for possession decreed by Trial Court was upheld by High Court in revision---Validity---Plaintiff was not required to establish title to suit-land---Defendant had failed to establish source of title as asserted---Findings of Trial Court on question of possession of plaintiff and his dispossession by defendant were based on correct, careful and conscious appreciation of evidence---Such findings of fact would not call for interference by High Court in exercise of discretionary jurisdiction---Appraisal of evidence by Courts below was neither arbitrary nor suffered from misreading' or non-reading of evidence or misconstruction of any material available on record---Supreme Court dismissed appeal in circumstances.

Chaudhry Khurshid Ahmad, Senior Advocate Supreme Court for Petitioner.

Muhammad Yasin Chughtai, Advocate Supreme Court for Respondents.

Date of hearing: 10th June, 2003.

P L D 2004 Supreme Court 25

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION---Petitioner

Versus

Hafiz AHMAD SUFYAN---Respondent

Civil Petition for Leave to Appeal No.171-L of 2001, decided on 15th April, 2003.

(On appeal from the judgment dated 21-12-2000 passed by the Lahore High Court Lahore in Writ Petition No. 18204 of 2000).

(a) Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976)-----

----Ss. 10 & 21---Rules framed under Punjab Boards of Intermediate and Secondary Education Act, 1976, Rr.13, 17, 18 & 38---Calendar of Board of Intermediate and Secondary Education, Faisalabad, Vol. 11, Chap. VI, R.5(ii)---Scheme of taking Intermediate Examination in two Parts i.e. Part I at the end of 11th Class and Part II at the end of 12th Class--­Candidate found guilty of `using unfair means in any paper of Part 11 Examination---Effect---Both parts of examination are, not two independent examinations, but in fact parts-the same examination to be held with a gap of 12 months as compared to artier scheme, in which examination of different papers of different subjects was held with a gap only of days--­Part I Examination is not, an independent entity and if once taken, cannot be treated as past and closed transaction and does not become sacrosanct till such time candidate successfully clears and passes Part 11 also---Such guilt of candidate would result in cancellation of whole result of entire Intermediate Examination including declared result of Part I Examination---Notice to candidate regarding such consequent cancellation of result of Part 1 Examination not necessary while issuing him show ­cause notice against imposition of punishment for using unfair means in Part 11 Examination.

(b) Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976)---

----S. 10---General Clauses Act (X of 1897), S.23---Rules framed for taking of Intermediate Examination---Board termed such Rules as notification and not published the same in official Gazette ---Effect--­Section 10 of Board of intermediate and Secondary Education Act, 1976 did not provide that such rules would be enforced through notification--­Promulgation of such rules was not a requirement of law, thus, provisions of General Clauses Act, 1897 prescribing publication of notification in official Gazette would not be attracted---Word "notification" used by Board being a nomenclature, coined by Board itself would have no legal status.

(c) Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976)-----

----Ss. 10 & 21---Rules framed under Punjab Boards of Intermediate and Secondary Education Act, 1976, Rr. 18 & 38---Calendar of Board of Intermediate and Secondary Education, Faisalabad, Vol. 11, Chap. VI, R.5(ii)---.Using unfair means in Part II of Intermediate Examination--­Candidate found guilty and debarred from taking next two examinations--­Effect---No official of Board was competent to undo such conviction and punishment---Entertainment of such candidate's application and issuance of roll number to him to take only Part 11 Examination would be an un-authorised and illegal ministerial act having no consequence in law.

(d) Educational institution---

-----Use of unfair means in examination---Showing leniency to student found guilty of using unfair means to pass examination would only encourage unscrupulous student to adopt such-like means for getting through examination---Leniency shown to such-like students in the past had eroded and destroyed sanctity and image of system of examinations--­No sympathy would be shown to such student on account of his such conduct.

Dr. M. Mohy-ud-Din Qazi, Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Petitioner.

Ch. Ali Muhammad, Advocate Supreme Court for Respondent.

Date of hearing: 15th April, 2003.

P L D 2004 Supreme Court 32

Present: Nazim Hussain Siddiqui, Mian Muhammad Ajmal and Falak Sher, JJ

Sh. MUHAMMAD AMJAD---Petitioner

Versus

THE STATE---Respondent

Criminal Review Petition No.5 of 2003, decided on 8th September, 2003.

(On appeal from the judgment dated 20-2-2003 of this Court passed in Criminal Appeal No.352 of 2002).

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

----Ss. 302(a) & 365-A---Anti-Terrorism Act (XXVII of 1997), S.7--­Criminal Procedure Code (V of 1898), S.540---Constitution of Pakistan (1973), Art.188---Supteme Court Rules, 1980, O. XXVI---Review by Supreme Court---Principles---Contention that the application moved by the accused before Supreme Court under S.540, Cr.P.C. for recording additional evidence of the representative of a Welfare Trust should have been allowed for doing complete justice in the matter was rejected, because this point having been raised by the accused at the time of hearing of the appeal was comprehensively dealt with in the impugned judgment and was' repelled after considering in depth---Other contention that keeping in view the evidence brought on record, the accused at the most could be sentenced to imprisonment for life and not to death also had no force---Review in criminal proceedings could be made on the ground of an error apparent on the face of the record which manifestly would be of a nature that, if ignored, complete justice could not be done---Entire evidence in the present case was dilated upon in comprehensive manner and neither any material fact was ignored nor it was a case of misreading or non-reading of the evidence---Supreme Court normally did not interfere in review with the quantum of sentence if the same had been imposed having taken into consideration all the material available on record and keeping in view the intrinsic value of the evidence produced by the prosecution---Accused alone had committed the murder in a brutal. manner and legal sentence had been awarded to him---Review petition was dismissed accordingly.

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

---Art. 188---Supreme Court Rules, 1980, O. XXVI---Review by Supreme Court---"Error apparent on the face of the record"--­Connotation---Review can be made in criminal proceedings on the ground of "an error' apparent on the face of the record"--- Expression "Error apparent on the face of the record" controls the exercise of such powers meaning thereby that the error shall be so apparent and glaring that no Court would permit it to remain a part of the proceedings---Such error should be absolutely significant and must emanate from the record on the basis of its own existence and not be the result of analytical logic and scrutiny of the evidence---Plea that exposition of law was wrong or incorrect conclusion was drawn as a result of scrutiny of the evidence does not constitute a valid ground for review---An error apparent on the face of the record manifestly be of a nature that, if ignored, complete justice could not be done.

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

----Art. 188--Supreme Court Rules, 1980,. O. XXVI---Review by Supreme Court---Sentence---Supreme Court normally does not interfere in review with the quantum of sentence if the same has been imposed having taken into consideration all the material available on record and keeping in view the intrinsic value of the evidence produced by the prosecution.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioner.

Sardar Muhammad Ishaq Khan, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for , the Complainant.

Dr. Qazi Khalid, Addl. A.-G., Sindh for the State.

Date of hearing: 8th September, 2003.

P L D 2004 Supreme Court 35

Present: Sh. Riaz Ahmad, C. J, Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

SHAH JEHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Petition for Leave to Appeal No. 187 of 2003, decided on 22nd clay, 2003.

(On appeal from the judgment of the High Court of Sindh Bench at Sukkur dated 6-5-2003 passed in Criminal Appeal No.51 of 1992.)

(a) Prevention of Corruption Act (II of 1947)----

----Ss. 4 & 5(2)---Penal Code (XLV of 1860), S.161---Constitution of Pakistan (1973),.Art.185(3)---Demand of bribe money by the accused its payment to co-accused on accused's direction and its recovery from co­ accused had been corroborated by an independent and reliable witness who had no ill-will or any animus against the accused and his testimony could not be disbelieved---Over hearing of the conversation of the complainant and the accused by the Magistrate or Circle Officer in presence of such evidence was immaterial which even otherwise was neither a condition precedent to prove a raid case nor the same was a requirement of law---Co-accused had admitted to have received the amount from the complainant on the direction of the accused for him, presumption under S.4 of the Prevention of Corruption Act, 1947, thus, was against the accused---Plea of alibi taken by accused was falsified by his own statement and the defence evidence had rather supported the prosecution case---Courts below on proper appreciation of evidence had rightly convicted and sentenced the accused---Leave to appeal was refused to accused accordingly.

Rashid Ahmad v. The State 1974 S C M R 249 ref.

(b) Prevention of Corruption Act (II of 1947)-----

----S. 5(2)---Penal Code (XLV of 1860), S.161---Appreciation of evidence---Overhearing of the conversation between the complainant and the accused by the Magistrate or Circle Officer, in circumstances, was neither a condition precedent to prove a raid case nor the same was a requirement of law.

Abdul Fattah Malik, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioner.

Nemo for the State.

Date of hearing: 22nd May, 2003.

P L D 2004 Supreme Court 39

Present: Nazim Hussain Siddiqui, Mian Muhammad Ajmal and Falak Sher, JJ

THE STATE---Appellant

Versus

MUHAMMAD SHAFIQUE alias PAPPO and another---Respondents

Criminal Appeal Nos. 412 and 413 of 2001, decided on 8th September, 2003.

(On appeal from the judgment dated 31-8-2001 of High Court of Sindh-at Karachi passed in A.T.A. Appeals Nos. 10, 11, 12/2001 and in Confirmation Case No.2 of 2001).

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

----Ss. 121, 121-A, 122 & 123---Explosive Substances Act (XI of 1908), Ss.4, 5 & 6---West Pakistan Arms Ordinance (XX of 1965), S.13-D--­Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted to the State to consider whether the evidence adduced by the prosecution in support of its case was properly scrutinized by High Court and whether the provisions of S.5 of the Explosive Substances Act, 1908, were kept in view while delivering the impugned judgment.

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

----Ss. 121, 121-A, 122 & 123---Explosive Substances Act (XI of 1908), Ss. 4, 5 & 6---West Pakistan Arms Ordinance (XX of 1965), S.13-D--­Constitution of Pakistan (1973), Art.185---Appeals against acquittal of accused by High Court---Accused were neither the owners of the house of recovery nor tenants therein and prosecution had not collected any evidence to show that they were in its possession---Recoveries of explosive substances in huge quantity from the accused did not inspire' confidence as so much could not be concealed under the mattresses--­Stock witness of the prosecution alone had been examined as recovery witness whereas other Mashir of recovery was not so examined, which had s further made, the recoveries doubtful---Confession made by the accused before the police officer admitting guilt was not admissible, although the evidence leading to the recovery of any article pursuance' to such confession could be produced, but the investigating agency had taken 'no steps .to collect such evidence against the accused showing their involvement in the crime---Circumstances giving rise to a reasonable suspicion against the accused were not available to the prosecution--­Seriousness of the charge by itself could not absolve the prosecution from its basic responsibilities---Right of liberty of an individual would not be curtailed on presumptive grounds---High Court had correctly scrutinized the evidence following the principles laid down by Supreme Court and its findings could not be termed as artificial, shocking or ridiculous---Appear against acquittal of accused were dismissed in circumstances.

Dr. Qazi Khalid, A.A.-G., Sindh for the State.

Abdul Mujeeb Peerzada, Advocate Supreme, Court and M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 8th September, 2003.

P L D 2004 Supreme Court 44

Present: Nazim Hussain Siddiqui, Mian Muhammad Ajmal and Falak Sher, JJ

MUHAMMAD AKBAR and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.444 of 2000, decided on 11th September, 2003.

(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench, Bahawalpur dated 10-7-2000 passed in Criminal Appeal No.85 of 1997/BWP).

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

----S. 302(b)/34---Constitution of Pakistan (1973), Art.185(3) --- Leave to appeal was granted to accused to consider whether the material available on record justified the normal penalty of death or the ends of justice would have met if the accused were awarded lesser penalty of imprisonment for life.

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

----S. 302(b)/34---Sentence, propriety of---Leave to appeal was granted to accused only on the question of sentence---Contention that the motive for the occurrence was not proved or the same was shrouded in mystery, had no force---Motive as alleged in the F.I.R. had been proved on record by the prosecution through admissible evidence which could be used against the accused---Prosecution had a15o abundantly proved its case through reliable and trustworthy evidence against the accused who had effectively fired at the deceased causing him fatal injuries which according to the Doctor were sufficient to cause death in ordinary course of nature---Trial Court on proper appreciation of the evidence on record had awarded death sentence to the accused which was upheld by the High Court---Impugned judgment did not warrant any interference---Appeal was dismissed accordingly.

Abdul Wahab alias Rehra v. The State 1999 SCMR 1668; Talib Hussain v. The State 1995 SCMR 1776; Nawab Ali v. The State 2001 SCMR 726; Ahmad Nisar v. The State 1977 SCMR 175; Imtiaz Ahmad v. The State 2001 SCMR 1334; Woolmingtin's case 1935 AC 462; The State v. Sobaro 1993 SCMR 585 and Hameed Khan alias Hameedai v. Ashraf Shah and another 2002 SCMR 1155 ref.

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

----S. 302(b)/34---Sentence---Motive immaterial if prosecution case proved beyond doubt---When prosecution proves its case through reliable and trustworthy evidence beyond any doubt, inadequacy or weakness of motive or where motive was alleged but not proved, would become immaterial and would not adversely affect prosecution case and normal penalty of death can be imposed on the assailants if there were no mitigating or extenuating circumstances for lesser penalty.

Abdul Wahab alias Rehra v. The State 1999 SCMR 1668; Talib Hussain v. The State 1995 SCMR 1776; Nawab Ali v. The State 2001 SCMR 726; Ahmad Nisar v. The State 1977 SCMR 175; Imtiaz Ahmad v. The State 2001 SCMR 1334; Woolmingtin's case 1935 AC 462; The State v. Sobaro 1993 SCMR 585 and Hameed Khan alias Hameedai v. Ashraf Shah and another 2002 SCMR 1155 ref.

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

----S. 302(b)/34---Sentence---Reduction in capital sentence---"Motive shrouded in mystery" not a mitigating circumstance---"Motive shrouded in mystery" is not a legal principle which can be applied in all murder cases for reduction of capital sentence where no motive is alleged or proved by the prosecution or where initially a motive is alleged but the same is not proved or withdrawn or a different motive appears to the prosecution evidence---"Motive shrouded in mystery" by itself is not a mitigating circumstance for Lesser sentence.

Abdul Wahab alias Rehra v. The State 1999 SCMR 1668 ref.

Sahibzada Ahmad Raza Khan Kasuri, Senior Advocate Supreme Court and Raja Sher Muhammad Khan, Advocate-on-Record (absent) for Appellants.

Miss Afshan Ghazanfar, Assistant Advocate-General, Punjab for the State.

Date of hearing: 11th September, 2003.

P L D 2004 Supreme Court 51

Present: Hamid Ali Mirza and Karamat Nazir Bhandari, JJ

Syed ALI SHAH BUKHARI---Petitioner

Versus

CHIEF SECRETARY, GOVERNMENT OF PUNJAB, LAHORE and another---Respondents

Civil Petition No.1188 of 2002, decided on 25th September, 2003.

(On appeal from the judgment dated 3-6-2002 in Appeal No. 134 of 2002 passed by the Punjab Service Tribunal, Lahore).

Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)-----

----S. 3---Constitution of Pakistan (1973), Art.212(3)---Civil servant, a Deputy District Attorney, was compulsorily retired from service on the complaint/charge that while he ,was posted as such in the Court of Additional District Judge, he took Rs.3,52,000 as bribe from a litigant in the name of the Presiding Officer and thereby was guilty of misconduct and corruption within the meaning of S.3(b)(c) of the' Punjab Removal from Service (Special Powers) Ordinance, 2000---Competent Authority had ordered for initiation of enquiry against the accused civil servant under the Ordinance and he was supplied statement of allegations---Civil servant submitted his written defence to the Enquiry Officer denying such allegation---Enquiry Officer, however, conducted detailed enquiry, examined the witnesses from both sides, and concluded that the accused civil servant was guilty of charges and recommended his compulsory retirement to the Competent Authority---Copy of the said report alongwith show-cause notice was supplied to the civil servant---Competent Authority after compliance of S.3(2) of the Ordinance imposed penalty of compulsory retirement upon the civil servant with all pensionary benefits---Civil servant: made representation, which was rejected against which he filed appeal before the Service Tribunal which was dismissed--­Complainant had moved the Anti-Corruption Establishment against the civil servant but he alongwith witnesses resiled under pressure and hope that the amount of bribe taken by the accused civil servant would be returned to him when the Anti-Corruption Establishment not only dropped the proceedings but also recommended for initiation of proceeding against the complainant under S.182, P.P.C.---Here the accused civil servant played clever as, instead of returning bribe amount, coercion was practised to browbeat the complainant on which complainant revived his grievance---Effect---Investigation or the inquiry conducted by the Anti­ Corruption Establishment which was dropped could not be equated with an enquiry held subsequently under law ---Rule of double jeopardy thus would not be applicable to the proceedings which did not end with the final finding holding the accused civil servant to be not guilty of the charge by the Competent Authority under the law in force---Enquiry proceedings conducted by the Anti-Corruption Establishment against the accused civil servant were independent from the enquiry ordered by the Competent Authority under S.3, Punjab Removal from Service (Special Powers) Ordinance, 2000, there could be, therefore, no double jeopardy in the present case--Supreme Court observed that Service Tribunal had addressed to all the pleas of the civil servant correctly in accordance with law and that there was no legal or factual infirmity in the impugned order passed by the Authorities who on the contrary had taken a lenient view of compulsory retiring the accused civil servant, blessed him with all benefits, when charge of taking bribe in the name of Judicial Officer was an act which called for severe punishment against the accused civil servant---Petition for leave to appeal against the orders of the Service Tribunal was dismissed by the Supreme Court.

Aijaz Nabi Abbasi v. Water and Power Development Authority and another 1992 SCMR 774 and Muhammad Ayub v. The Chairman, Electricity Board, WAPDA, Peshawar and another PLD 1987 SC 195 ref.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 25th September, 2003.

P L D 2004 Supreme Court 55

Present: Hamid Ali Mirza, Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

SHAFAULLAH KHAN NIAZI through Legal Heirs---Petitioner

Versus

DEPUTY DIRECTOR, FOOD DEPARTMENT, MULTAN and another---Respondents

Civil Petition No. 1628 of 2002, decided on 6th October, 2003.

(On appeal from the order dated 29-7-2002 in Appeal No.140 of 1994 passed by Punjab Service Tribunal, Lahore).

Constitution of Pakistan (1973)-----

----Art.212(3)---Civil service---Imposition of major penalty by the Authority when the authorized officer had not recommended the same--­Authority, after having issued notice for personal hearing to the civil servant had given just and sound reasons in its order for disagreeing with the authorized officer after considering the relevant documents and defence of the civil servant---Validity---Authority was competent to differ with the proposed recommendation of authorized officer and could impose major penalty, which in its opinion was considered to be legal in view of the evidence on record---Petition for leave to appeal was dismissed.

Mukhtar Ahmad Bhatti v. Director Food, Punjab and others 1992 SCMR 1864; Qazi Khalilur Rehman and others v. Secretary. Ministry of Railways and others 1994 PLC (C.S.) 713 and Sh. Abdul Waheed v. The Chief Secretary, Punjab 1985 PLC (C.S.) 886 ref.

Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 6th October, 2003.

P L D 2004 Supreme Court 57

Present: Javed Iqbal and Sardar Muhammad Raza Khan, JJ

MAHMOOD AHMAD and 16 others---Appellants

Versus

AZIZ and 2 others ---Respondent

Civil Appeal No.237 of 1999, decided on 26th November, 2003.

(On appeal from the judgment dated 1-4-1997 passed by the Lahore High Court, Lahore in Civil Revision No.827 of 1987).

(a) Pre-emption-----

-----Co-vendees---Payment of consideration in lump sum---Divisibility or otherwise of the transaction and the doctrine of sinker---Leave to appeal was granted by the Supreme Court to consider the question of divisibility or otherwise of the transaction and the application of doctrine of sinker, if at all, to the co-vendees---Constitution of Pakistan (1973), Art.185(3).

(b) Pre-emption-----

----Co-vendees---Divisibility of transaction---Test---Share of each vendee had been specified but the consideration was paid in lump sum without specifying the separate share of consideration paid by each vendee--­Effect---Sale in question was not divisible and hence co-vendees had to float or sink together---Principles.

The share of each vendee had beep specified but the consideration was paid in lump sum without specifying the separate share of consideration paid by each vendee. The sale in question was not divisible and hence the co-vendees had to float or sink, together.

Where the purchase money for a sale was paid in a lump sum without specification of the amounts paid by the various vendees, the transaction must be regarded as indivisible, though the shares to be taken by the various vendees may have been specified in the deed.

The test for divisibility was (i) specification of shares of vendees and (ii) proportionate contribution to sale price by each vendee. In the absence of the said two ingredients a sale would be considered to be indivisible.

As the transaction in dispute was proved to be indivisible and as the pre-emptor's decree had become final by vendees not going in appeal, such decree would be binding against the co-vendees as well because of the indivisibility of the transaction.

Ram Nath v. Badri Narain ILR 19 All. 148; Mughi v. Narain 1914 Punj. Rec. 18; Abdullah v. Abdul Karim PLD 1968 SC 140 and Mangta Khan v. Hamida Begum PLD 1981 SC 51 ref.

Ch. Muhammad Aslam Sandhu, Advocate Supreme Court for Appellants.

Malik Muhammad, Nawaz, Advocate Supreme Court for Respondents.

Date of hearing: 26th September, 2003.

P L D 2004 Supreme Court 59

Present: Sh. Riaz Ahmad, C.J, Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

DILAWAR SHAH and others---Appellants

Versus

JANNAT GUL through Legal Heirs---Respondent

Civil Appeal No.1526 of 1999, decided on 11th September, 2003.

(On appeal from the judgment dated 17-5-1999 of the Peshawar High Court, Peshawar, passed in Civil Revision No.20 of 1997).

(a) Adverse possession-----

----Whenever, in a case involving the plea of adverse possession, there is a conflict between the entries in the column of cultivation and the column of Lagan and there is no independent evidence to substantiate the plea of adverse possession, the entries in the column of cultivation are to be given preference over the entries in the column of Lagan---Principles.

An entry in the column of Lagan would not be preferred over an entry in the column of possession/cultivation, or for that matter the column of ownership and the party relying on the column of Lagan' as against the cultivation column would be entitled to produce evidence independent of the entry itself to show that the entry in the column of Lagan had a separate contemporaneous support from other reliable evidence, which of course, together with the disputed entries, would have to be put in juxtaposition to the entry in column of cultivation.

Entries in the Revenue Record of "Bila Lagan Ba Tasawar Malkiyat" in favour of a party only would not make a case of adverse possession in his favour.

Entry of "Bila Lagan" in column of rent of Record of Rights, if irreconcilable with entry of column of cultivation, would not be of any help to those recorded in column of cultivation as tenants. In the present case there was no independent evidence on record to augment the odd entries in the column of Lagan and the concurrent findings of fact recorded by the lower Courts were not only based on incorrect and improper appreciation of the entries of the Revenue Record but were also against the law laid down by Supreme Court, therefore, the High Court had rightly resolved the controversy in favour of the respondents.

Whenever in a case involving the plea of adverse possession there is a conflict between the entries in the column of cultivation and the column of Lagan and there is no independent evidence to substantiate the plea of adverse possession the entries in the column of cultivation are to be given preference over the entries in the column of Lagan.

Tehmas and 16 others v. Dawar Khan PLD 1990 SC 629; Ali Akbar and others v. Malook and others 1991 SCMR 829 and Hakeem Shah v. Sawab Khan and 17 others PLD 2002 SC 200 ref.

Maqbool Ahmed v. Hakoomat-e-Pakistan 1991 SCMR 2063 distinguished.

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

----S. 8---Suit for possession---Permissive possession---Limitation--­Question of limitation finds no place in the suit on account of permissive possession and the defendant having carried out some improvements unilaterally, also cannot clamour for compensation.

Sh. Wazir Muhammad, Advocate Supreme Court and Fateh Muhammad Khan, Advocate-on-Record for Appellants.

Muhammad Akram Sheikh, Senior Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Respondents.

Date of hearing: 11th September, 2003.

P L D 2004 Supreme Court 62

Present: Qazi Muhammad Farooq, Abdul Hameed Dogar and Sardar Muhammad Raza Khan, JJ

GHULAM QADIR---Appellant

Versus

KHANDU---Respondent

Civil Appeal No. 1276 of 1995, decided on 8th October, 2003:

(On appeal from the judgment dated 12-6-1994, passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur; in Civil Revision No. 141-D of 1984/BWP).

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

----S. 12---Limitation Act (IX of 1908), Art.113---Constitution of Pakistan (1973), Art. 185(3)---Suit for specific performance of agreement to sell--­Limitation-Leave to appeal was granted by the Supreme Court to consider the contention that there being no period for execution of the sale deed fixed in the agreement in question the period of limitation would be three years from the date of execution of the deed and not from the date of denial which allegedly was made after more than eleven years of such execution.

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

----S. 12---Limitation Act (IX of 1908), Art.113---Suit for specific performance of agreement to sell---Limitation, starting point--­Principles---Three Courts had concurrently found that the agreement to sell was validly executed, the entire sale consideration had been paid at the time of execution of the deed and. possession of the suit-land had been delivered---Plaintiff, in the face of said concurrent findings of fact was obliged to complete the formality of registration or attestation of mutation but instead of doing the needful he was attempting to get the defendant non-suited on the technical ground of limitation---.Validity---Suit for specific performance of agreement to sell was governed by Art.113 of the Limitation Act, 1908 which provided that the period of limitation was three years from the date fixed for specific performance of the agreement or, if no such date was fixed when the plaintiff had notice that performance was refused---Agreement to sell, in the present case, did not contain any period for specific performance, therefore, the period of limitation was to be reckoned from the date when performance was refused by the defendant, namely week before the institution of the suit which had not been controverted.

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

----S. 12---Limitation Act (IX of 1908), Art. 113---Civil Procedure Code (V of 1908), O.VI, R.17---Suit for specific performance of agreement to sell---Application for amendment of the plaint---Limitation, computation of---Proposed amendment in the plaint was allowed by the Trial Court on payment of costs and defendant received the costs and did not challenge the said order---Cumulative effect of the acceptance of the application for amendment of the plaint and the acquiescence of the defendant was that no right had accrued to the defendant by efflux of time-Plaintiff, in the present case, was in possession of the suit-land and in addition of the alternate relief by way of amendment in the plaint had not substituted the cause of action, therefore, the amendment would relate back to the date of institution of the suit and as such the alternate relief was not barred by limitation.

Altaf Elahi Sheikh, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for Appellant.

Muhammad Anwar Sipra, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate-on-Record (absent) for Respondent.

Date of hearing: 8th October, 2003.

P L D 2004 Supreme Court 65

Present: Iftikhar Muhammad Chaudhry and Tanvir Ahmed Khan, JJ

MUHAMMAD RAHIM KHAN---Appellant

Versus

THE CHIEF SECRETARY, N.-W.F.P. and others---Respondents

Civil Appeal No.446 of 1999, decided on 6th October, 2003.

(On appeal from the judgment dated 14-4-1998 passed by N.-W.F.P. Service Tribunal, Peshawar in Appeal No.696 of 1996).

North-West Frontier Province Service Tribunals Act (I of 1974)-----

----S. 4---Constitution of Pakistan (1973), Art.212---Promotion---Appeal to Service Tribunal---Competence---When a civil servant was eligible for promotion to the next higher grade but had been ignored and other ineligible candidates were-promoted, his appeal to the Service Tribunal would be competent---Eligibility for promotion of approved persons could be subjected to scrutiny by Service Tribunal, as the same related to the terms and conditions of a civil servant---Service Tribunal, in the present case, without examining in depth the proposition namely as to whether the civil servant was ignored by the Selection Board on the ground that he was not fit for promotion or he was-not eligible, for the reasons mentioned in the minutes of the Board, had rejected the appeal filed by the civil servant summarily, Supreme Court, in the interest of justice, set aside the judgment of Service Tribunal with the direction to call for complete record of the case from the Department and in presence of the same, re-examine the case of civil servant, after providing proper opportunity of hearing to both the parties, in accordance with law, independently without being influenced in any manner from the observations made in the Supreme Court judgment.

Abdul Ghafoor v. National Highway Authority 2002 SCMR 574 and Zafarullah Baloch v. Government of Balochistan 2002 SCMR 1056 ref.

Appellant in person.

Sardar Shaukat Hayat, Additional A.-G., N.-W.F.P. for Respondents Nos. 1 to 4.

Shah Abdur Rashid, Senior Advocate Supreme Court for Respondent No.5.

Date of hearing: 12th September, 2003.

P L D 2004 Supreme Court 70

Present: Hamid Ali Mirza and Karamat Nazir Bhandari, JJ

ARDESHIR COWASJEE and others---Petitioners

Versus

KARACHI BUILDING CONTROL AUTHORITY and others---Respondents

Civil Petition No.2760 of 2001, decided on 16th September, 2003.

(On appeal from the judgment dated 6-9-2001 in Constitutional Petition No.D-179 of 2001 along with Miscellaneous Applications Nos.974, 984 and 541 of 2001, passed by the High Court of Sindh at Karachi).

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

----Art. 199---Civil Procedure Code (V of 1908), Preamble--­Constitutional jurisdiction of High Court under Art.199 of the Constitution---Applicability of Civil Procedure Code, 1908 to the proceedings under Art.199 of the Constitution---Scope and extent--­Provisions of Civil Procedure Code, 1908 would regulate said proceedings and would not necessarily depend; on the nature of jurisdiction of the Court--Constitutional petition, in 'the present case, wag filed wherein some assertions for the enforcement of civil rights had been made, therefore, same would be civil proceedings and provisions of C.P.C. would be applicable other than specifically barred, as such the said provisions would apply in the exercise of High Court's jurisdiction in civil matters whatever may be the nature of that jurisdiction.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1; Federation of Pakistan and others v. Aftab Ahmad Khan Sherpao and others PLD 1992 SC 723; Shabir Ahmad and another v. Akhtar Alam and others (PLD 1994 SC 598); Ch. Pervez Ellahi v. Province of Punjab (PLD 1993 Lahore 595); Malik Khanan v. Malik Baz Muhammad Khan and others PLD 1983 Quetta 30 and Muhammad Nawaz and another v. Abdul Ghafoor and others PLD 1981 Kar. 469 ref.

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

---Art. 199(3)(b)---Civil Procedure Code (V of 1908), O.XXXIX. Rr,1 & 2---Constitutional jurisdiction of High Court---Making of interim order by the High Court under Art.199(3)(b) of the Constitution---Time tested considerations for grant or refusal of relief under O.XXXIX, Rr.1 & 2, C.P.C. viz. existence of prima facie case; irreparable damage or injury to be caused and inconvenience could be the determining factors for deciding interlocutory petitions in the Constitutional jurisdiction---Provision of Art. 199(3)(b) of the Constitution was to be read with the provisions contained in C.P.C. for grant or refusal of interim relief as there was no bar or prohibition in their application under the Constitution, considering also that Constitutional jurisdiction being paramount and every form of limitation which normally would fetter the exercise would not prevent/control the superior Court from exercising such powers, when-it would appear to be expedient in the interest of justice.

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

----Art.199---Constitutional jurisdiction of High Court under Art. 199 of the Constitution---Scope---Technicalities of the law ---Applicability--­Extent---Held, in the matter of entertainment of the Constitutional petitions and grant of relief in equitable and discretionary jurisdiction, it would not be necessary to follow in entirety the technicalities of the law but also by the substance of the controversy when the proceedings would appear not tainted with mala fides of the fact---Technicalities would not prevent the Court from exercising its Constitutional jurisdiction and granting relief to which otherwise petitioner was entitled.

Pakistan Engineering Council and others v. Engineer I.A. Osmani and others 1991 SCMR 654 ref.

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

----Art. 199---Civil Procedure Code (V of 1908), O.I. Rr.1, 3 & 10--­Constitutional petition-- Interveners seeking relief for their impleadment on the ground that they had purchased the flats in the building in question and in case they would not be impleaded, their rights in the property could be affected---Principle laid down under O.I, Rr.1, 3 & 10, C.P.C. could be applied even in the Constitutional petition though the interveners could not be termed to, be "person" within the meaning of Art.199(5) of the ,Constitution ---Said interveners could be made as a party to the Constitutional petition when their rights in the property could be affected and their presence before the Court is considered necessary to defend their rights---If the said submission was not allowed to prevail, it would lead to multiplicity of proceedings and the finding given by the Court in the absence of interveners would not be binding upon them---Provision of Civil Procedure Code could be resorted to in the Constitutional jurisdiction except where they were specifically excluded.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1; Federation of Pakistan and others v. Aftab Ahmad Khan Sherpao and others PLD 1992 SC 723; Shabir Ahmad and another v. Akhtar Alam & others (PLD 1994 SC 598); Ch. Pervez Ellahi v. Province of Punjab (PLD 1993 Lahore 595); Malik Khanan v. Malik Baz Muhammad Khan and others PLD.1983 Quetta 30; Muhammad Nawaz and another v. Abdul Ghafoor and others PLD 1981 Kar. 469 and Pakistan Engineering Council and others v. Engineer I.A. Osmani and others 1991 SCMR 654 ref.

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

----Art. 185(3)---Petition for leave to appeal---Supreme Court always declined to entertain such civil petitions wherein interlocutory order/fragmentary decisions are challenged, unless a very strong case of exceptional nature was made out.

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

----Arts. 199 & 185(3)---Constitutional jurisdiction of High Court--­Scope---High Court rightly declined the interim relief of restraint order holding that no final finding could be given on the pleas raised by the petitioner's in the interlocutory applications, till final decision of main Constitutional petition---Petition for leave to appeal against said order of the High Court was dismissed.

M. Naim-ur-Rahman, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.

Ch. Muhammad Akram, Advocate-on-Record and Shahid Jamil Khan, Additional Controller (Legal) for Respondent No.1.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondent No.2.

Date of hearing: 16th September, 2003.

P L D 2004 Supreme Court 77

Present: Iftikhar Muhammad Chaudhry and Tanvir Ahmed Khan, JJ

FEDERATION OF PAKISTAN through Secretary, Ministry of Education, Government of Pakistan, Islamabad and others---Appellants

Versus

QAMAR HUSSAIN BHATTI and others-Respondents

Civil Appeals Nos.766 and 1432 of 1997, decided on 14th October, 2003.

(On appeal from the judgment/order dated 13-3-1996 and 17-11-1996 passed by Federal Service Tribunal in Service Appeal No.501(R)/95 and Service Appeal No.449(R)/1996).

(a) Civil service---

---- Advance increments---Entitlement, when a vested right---Primary school teacher had joined service, containing condition of grant of advance increments if acquired higher educational qualification other than the one which had been prescribed for the post---Incentive of availing advance increments on account of possessing higher qualification other than the one prescribed for the post of Trained Matriculate Teacher being a favourable condition, had come to vest in the teacher as a right--­Teacher belonging to the class of "Metric Trained Teachers" who was not entitled for the incentive of advance increments on the date of his appointment, was issued his appointment letter containing a clause to the effect that "terms and conditions of the service of the-appointee will be the same as are applicable to other Government servants of the category"--­ Effect---Both the appointees, though were serving in a lower cadre but they belonged to the category of the same persons like "trained Graduate teachers" to whoop incentive, of advance increments had been allowed vide a Government memorandum, as such following the principle of equal protection of law enshrined in Art.25 of the Constitution of Pakistan (1973) amongst the persons who belonged to the same class, the second appointee, in view of the fact that all other Government Teachers were also enjoying the same benefit, was also entitled to the benefit of advance increments---Constitution of Pakistan (1973), Art.25.

I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041 and Managing Director, SSGC Ltd. v. Ghulam Abbas PLD 2003 SC 724 ref.

Zulfiqar-ul-Husnain v. Oil and Gas Development 2003 SCMR 1115 distinguished.

(b) Judgment-----

---"Judgment in rem" and "judgment in personam"---Distinction.

Pir Bakhsh v. Chairman, Allotment Committee PLD 1987 SC 145; Muhammad Sohail v. Government of N.-W.F.P. 1996 PLC (C.S.) 364; Black's Law Dictionary 6th Edn. and Principles and Digest of the Law of Evidence by Munir, p.563 quoted.

Hafiz S.A. Rehman, Deputy Attorney-General and Ch. Akhtar Ali, Advocate-on-Record for Appellants.

Respondents in person and Ali Sher Section Officer, Finance (on Court's Notice).

Date of hearing,: 9th September, 2003.

P L D 2004 Supreme Court 89

Present: Hamid Ali Mirza and Karamat Nazir Bhandari, JJ

MUHAMMAD TUFAIL---Petitioner

Versus

SESSIONS JUDGE, ATTOCK and 2 others---Respondents.

Civil Petition No.913 of 2003, decided on 17th September, 2003.

(On appeal from the judgment dated 25-4-2003 in W.P. No. 1038 of 2003 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi).

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

----S. 544-A---Penal Code (XLV of 1860), S. 324---Constitution of Pakistan (1973), Art.185(3)---Compensation to the injured person--­Contention was that as the accused had served out the substantive sentence as well as simple imprisonment in lieu of the fine and compensation, he was 'not liable to pay the compensation awarded by the Court to the injured person---Contention had no merit and substance- Recovery of compensation awarded by the Court under S.544-A, Cr.P.C. could neither be written off nor waived, even if substantive sentences were served out--­'Provisions of S.544-A, Cr.P.C. were mandatory whereunder even if the accused' had undergone imprisonment in default of payment of compensation, then also the amount of compensation would be recovered as an arrear of land revenue---Leave to appeal was declined to the accused by the Supreme Court accordingly.

Muhammad Nawaz v. The State 1984 PCr.LJ 1696: Farid Bakhsh v. Saeed Ahmad and others 1992 SCMR 549; Umar Hayat v. The State 1990 PCr.LJ 125 and Mst. Sarwar Jan v Ayub and another 1995 SCMR 1679.

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

-----S. 544-A---Compensation to the heirs of the person killed, etc.--­Provisions of S.544-A, Cr.P.C. are mandatory and under S.544-A. Cr.P.C. even if the accused undergoes imprisonment in default of payment of compensation, then also the said amount can be recovered as arrears of land revenue.

Muhammad Nawaz v. The State 1984 PCr.LJ 1696; Farid Bakhsh v. Saeed Ahmad and others 1992 SCMR 549; Umar Hayat v. The State 1990 PCr.LJ 125 and Mst. Sarwar Jan v. Ayub and another 1995 SCMR 1679 ref.

Muhammad Munir Peracha, Advocate Supreme Court for Petitioner.

Respondent No. 3 in person.

Date of hearing: 17th September, 2003.

P L D 2004 Supreme Court 95

Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ

LAHORE DEVELOPMENT AUTHORITY through Director-General, LDA and another---Petitioners

Versus

INVESTMENT CORPORATION OF PAKISTAN and others---Respondents

Civil Petition No.454-L of 2003, decided on 24th September, 2003.

(On appeal from the judgment dated 19-12-2002 of the Lahore High Court, Lahore, passed in ICA No.4-L of 2002).

Disposal of Land by Development Authorities (Regulation) Act (XII of 1998)---

----S. 4(e)(i)---Companies Ordinance (XLVII of 1984), Ss. 10, 305 & 333---Winding-up of company---Auction of industrial plot already cancelled from the name of company by Development Authority--­Company Judge, in absence of any effective step having been taken by Development Authority after cancellation of plot, treated such cancellation to be on papers having no legal sanctity, thus, directed the Official Liquidator to execute sale-deed in favour of auction-purchaser ---Intra ­Court Appeal filed by Development Authority was dismissed by High Court being not maintainable---Validity---Company had deliberately concealed from Court factum of such cancellation---Reviving of cancelled plot was not in consonance with provisions of Disposal of Land by Development Authorities (Regulation) Act, 1998, which had to be sold in open auction instead of allotment---Supreme Court granted leave to appeal to consider contentions of parties subject to question of limitation to be considered at the time of hearing of appeal in the light of chequered history, of case, inefficiency and lapses on the part of Development Authority, deliberate concealment of cancellation of plot by company, law laid down in Hyderabad Development Authority's case (PLD 2002 SC 84) and expected colossal loss to State Exchequer.

Hyderabad Development Authority v. Abdul Majeed PLD 2002 SC 84 rel.

Muhammad Rashid Ahmed, Advocate Supreme Court, Ahmad Ghazali, DEM, QAT and Tanvir Ahmed, Advocate-on-Record (absent) for Petitioners.

Mehmoodul Islam, Advocate-on-Record for Respondent No.3.

Syed Ali Zafar Shah, Advocate Supreme Court, Haider Zaman Qureshi, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Respondent No.8.

Date of hearing: 16th April, 2003.

P L D 2004 Supreme Court 99

Present: Syed Deedar Hussain Shah and Khalil-ur-Rehman Ramday, JJ

CAPITAL DEVELOPMENT AUTHORITY through Chairman and another---Petitioners

Versus

ZAHID IQBAL and another---Respondents

Civil Petition for Leave to Appeals Nos.1660 and 1738 of 2002, decided on 23rd September, 2003.

(On Appeal from the judgment dated 31-7-2002 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Writ Petition No. 1 16 of 2002).

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

---S. 51---Capital Development Authority Conduct of Business Regulation, 1985, Sched. II---Cancellation of allotment of commercial plot on the default by the auction-purchaser--Competence---All matters connected with the allotment, sale etc. and cancellation etc. of plots including commercial plots fell within the list of functions performed by the Chairman of the Authority---Obligations assigned to the Member (Administration) of the Authority did not include matters relating to sale etc. and cancellation etc. of the plots---Chairman was not vested with any authority either under the Ordinance or under the Regulations to assign his functions either to the Members or to other officers in the Authority in derogation of the distribution of business commanded by the Regulations---Office Order of the Chairman allocating the business assigned to him to the Member (Administration) was an order without lawful authority---Member (Administration) of the Authority, therefore, was not legally competent to cancel the plot in question.

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

----Arts. 2(2), 11 & 9---Maladministration---Jurisdiction and powers of Wafaqi Mohtasib---Scope and extent---Matter relating to contractual obligation was not taken out of the jurisdiction of Mohtasib---If as a result investigation the Mohtasib, came to the conclusion that the act complained against was offensive to any law, rules or regulations then he as well within his powers to deal with the said matter in accordance with the provisions of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983---Mohtasib, in the present case, had found the act of cancellation of the sale of the plot in question to be illegal and void not on account of any matter arising out of the terms and conditions of the contract of sale or of the auction which had preceded the said sale but on the ground that the Authority which had cancelled the said sale was not authorized in law to do so---Action of the President of Pakistan in the present case, in setting aside the findings and recommendations of the Mohtasib only because the matter related to contractual dispute, was no reason or ground justifying interference with the findings and the recommendations of the Mohtasib.

According to Article 9 of the Establishment of the Office of the Wafaqi Mohtasib (Ombudsman) Order being President's Order No.1 of 1983 it is an obligation of the Mohtasib to undertake an investigation into an allegation of maladministration on the part of any Agency or any of its officers or employees. According to Article 2(2) of the said Order mal­administration included an act which was contrary to law, rules or regulations. Article 11 of the said Order enjoined upon the Mohtasib to find out whether the complained act did or did not amount to mal­administration and then to communicate his findings to the concerned Agency. No provision either of the said President's Order No.1 of 1983 or of any other law for the time being in force had taken the matter out of the jurisdiction of the Mohtasib only because the same related to a contractual obligation. If as a result of the investigation conducted by the Mohtasib he came to the conclusion that the complained act was offensive to any law, rules or regulations then the Ombudsman was well within his powers to deal with the said matter in accordance with the provisions of the said Order 1 of 1983. The action of the President in setting aside the findings and recommendations of the Mohtasib only because the matter related to a contractual dispute was no reason or ground justifying interference with the findings and the recommendations of the Ombudsman. In the present case, the Ombudsman had found the act of the cancellation of the sale of the plot in question to be illegal and void not on account of any matter arising out of the terms and conditions of the contract of sale or of the auction which had preceded the said sale but on the ground that the authority which had cancelled the said sale was not authorised in law to do so.

(c) Office of Wafaqi Mohtasib (Ombudsman) Order (I of 1983)-----

----Art.9---Object of establishing the Office of Wafaqi Mohtasib--­Jurisdiction and powers of Ombudsman---Scope and extent---Wide powers had been conferred on the Ombudsman through Art.9 of the Order and the only matters which were kept out of his jurisdiction were the matters which were sub judice before some Court or Tribunal etc. of competent jurisdiction and matters which related to the external affairs of Pakistan or matters which related to or were connected with the defence of Pakistan--­All other matters, irrespective of the fact that they stemmed out of contractual obligations or otherwise, were well within the powers of the Ombudsman and a complainant consequently could not be thrown out only because a complaint had emanated from contractual dispute.

Object of establishing the Office of Wafaqi Mohtasib was to diagnose, investigate, redress and rectify any injustice done to a person through maladministration on the part of any Agency. The purpose thus was to undo the administrative excesses from within the administration so that justice could be made available to the wronged persons without such persons being forced to knock at the doors of the Courts of law. Therefore, wide powers had been conferred on the Ombudsman through section 9 of President's Order No.1 of 1983 and the only matters which were kept out of his jurisdiction were the matters which were sub judice before some Court or Tribunal etc. of competent jurisdiction; matters which related to the external affairs of Pakistan or matters which related to or were connected with the defence of Pakistan. All other matters irrespective of the fact whether they stemmed out of contractual obligations or otherwise were well within the powers of the Ombudsman and a complainant consequently could not be thrown out only because a complained matter emanated from contractual dispute.

Malik Muhammad Nawaz, Advocate Supreme Court with Raja Abdul Ghafoor, Advocate-on-Record for Petitioner (in C.P. No. 1660 of 2002)

Ms. Nahida Mahboob Elahi, Advocate Supreme Court with Ch. Muhammad Akram, Advocate-on-Record for Petitioner (in C.P. No.1738 of 2002).

Ali Hassan Gillani, Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Respondents.

Date of hearing: 23rd September, 2003.

P L D 2004 Supreme Court 108

Present: Munir A. Sheikh and Faqir Muhammad Khokhar, JJ

GOVERNMENT OF PUNJAB through Minister for Revenue, Board of Revenue, Lahore and others---Petitioners

Versus

Messrs CRESCENT TEXTILE MILLS LIMITED---Respondent

Civil Petition No.2476-L of 2000, decided on 21st May, 2003.

(On appeal from the judgment dated 2-8-2000 of the Lahore High Court passed in W.P. No. 19065 of 1998).

(a) Government Grants Act (XV of 1895)-----

----S. 2---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Sale of State land through private treaty for establishment of industry on a price to be determined as prevailing on relevant date---Possession of land was delivered to company, which fulfilled its part of commitment by establishing industry thereon--­Constitutional petition by company seeking directions to respondents to perform their obligations of charging price as per law---Validity---Any other remedy, if available to company, would neither be adequate nor efficacious---Such Constitutional petition was maintainable within parameters of Art. 199 of the Constitution.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope--­Disputed questions of facts, determination of---General proposition of law is that evidence to determine disputed question of fact cannot be recorded within scope of Constitutional jurisdiction under Art.199 of the Constitution---Pure question of law not requiring recording of any evidence can legally be decided in Constitutional jurisdiction.

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

----Art. 199---Constitutional jurisdiction of High Court ---Scope--­Alternate adequate and efficacious remedy---Effect---Availability of such remedy would not have adverse effect on jurisdiction of High Court to entertain Constitutional petition under Art.199 of the Constitution, whereunder only point for determination is whether discretion vested in Court should or should not, in a particular case in attending circumstances be exercised.

(d) Government Grants Act (XV of 1895)----

----S. 2---Contract Act (IX of 1872), S.25---Specific Relief Act (I of 1877), S.12---Transfer of State land without consideration ---Validity--­State land under Government Grants Act, 1895 could be transferred without price to welfare institutions or keeping the purpose for which same was to be utilized---Such would not, in strict sense, be a case of ordinary contract or agreement of sale of land under general law between the parties---General principles of ordinary contract could not be invoked nor question of filing suit of specific performance could legally arise in such cases.

(e) Government Grants Act (XV of 1895)----

----S. 2---West Pakistan Land Revenue Act (XVII of 1967), S. 42-­Mutation---Evidentiary value---Mutation itself would not operate to create or extinguish any right---Mutation would be relevant to determine the date of which transaction contained therein was effective and transferee was vested with ownership right in property.

Muhammad Iqbal v. S.A.M. Khan, Member, Board of Revenue, West Pakistan, Lahore and 3 others PLD 1970 Lah. 614 ref.

(f) Pakistan (Administration of Evacuee Property) Act (XII of 1957)-----

----Ss. 6 & 25(1)(s)---Exchange of evacuee land by Custodian with State land of Provincial Government---Effective date of such transfer--­Custodian was vested with power to transfer evacuee land with prior approval of Federal Government---Pakistan (Administration of Evacuee Property) Act, 1957, had not prescribed any particular form and manner in which such transfer would take place---Order of Custodian holding that property had ceased to be evacuee property with effect from a date, on which Federal Government accorded approval for its exchange, could legally be construed to be an act of transfer of land by Custodian himself---Such evacuee land would vest in Provincial Government with effect from date of such approval, but not on any subsequent date on which mutation was sanctioned in its favour in Revenue Record.

(g) Government Grants Act (XV of 1895)----

----S. 2---Transfer of Property Act (IV of 1882), S.43---Specific Relief Act (I of 1877), S.18---Transfer of land by private treaty under Government Grants Act, 1895 ownership rights of which vested in the Provincial Government subsequently on account of exchange of other land with Central Government---Refusal of Provincial Government to abide by terms of transfer and charge price of land equal to market price prevalent on relevant date---Validity---Such transaction had become final on delivery of possession of land to company on a price to be determined later on---Company in good faith had made huge investment on such land on representation of Provincial Government claiming initially to be its owner---Provincial Government was legally bound to abide by terms of its initial offer---Such transfer could not be nullified being a completed transaction---Principles embodied in S.43 of Transfer of Property Act, 1882 and S.18 of Specific Relief Act, 1877 could legitimately be pressed into service to bind Provincial Government to abide by its, commitments.

(h) Government Grants Act (XV of 1895)---

----S. 2---Transfer of Property Act (IV of 1882), S.43---Specific Relief, Act (I of 1877), S.18---Transfer of State land under Government Grants Act, 1895---Provisions of Transfer of Property Act, 1882, non ­applicability of---Principles embodied in S.43 of Transfer of Property Act, 1882 in such cases can be invoked and pressed into service as principles of prudence, equity, justice and good conscience---Reasons.

The Government Grants Act, 1895 provides that Transfer of Property Act, 1982 would not be applicable to the transactions made under Government Grants Act. From a bare reading of these provisions, it is manifest that the intention of the law makers was that technical formalities­ of drawing transactions under Transfer of Property Act in a particular form, documentation and registration would not be applicable as the procedure for transfer of land Government Grants Act was intended to be simplified and to do away with the compliance of technical provisions of Transfer of Property Act. These provisions are made to facilitate the transfer of property under Government Grants Act without any hindrance of technical formalities and nothing else. Even if it is assumed that provisions of section 43 of Transfer of Property Act are not applicable, even then principles embodied therein can very, well be invoked and pressed into service as principles of prudence, equity, justice and good conscience in such cases.

(l) Government Grants Act (XV of 1895)-----

----S. 2-Transfer of State land for establishment of industry---Land not covered by main building of industry, resumption of---Validity---Mill was not required to bring under its main building entire such land---Land lying vacant was situated within four walls of the Mills and was reserved for further utilization for any matter connected with the Mills such as construction of labour colony, mosque, play ground, park and dispensary for labourers employed therein---Question of resumption of such additional land for breach of the conditions, thus, would not arise in circumstances.

Saleem Sehgal, Advocate Supreme Court and M. Yasrab, Acting Secretary (Colonies), Lahore for Petitioners.

Muhammad Raza Farooq, Advocate (with permission of the Court) for respondent.

Date of hearing : 21st May, 2003.

P L D 2004 Supreme Court 125

Present: Javed Iqbal and Tanvir Ahmed Khan, JJ

SUBHANUDDIN---Petitioner

versus

NATIONAL RECONSTRUCTION BUREAU through Chairman and others---Respondents

Civil Petition No.621-P of 2003 and Civil Miscellaneous Application No.471-P of 2003, decided on 6th November, 2003.

(On appeal from the order/judgment dated 12-8-2003 of Peshawar High Court, Peshawar, passed in W.P. No.949 of 2003).

North-West Frontier Province Local Government Ordinance (XIV of 2001)--

----S. 85---No-confidence motion---Validity---Leave to appeal was granted by Supreme Court to consider, whether the motion of no ­confidence/recall could have been passed without strict compliance of the provisions as contained in S.85(4) of North-West Frontier Province Local Government Ordinance, 2001, as Village Councils and neighbourhood Councils were yet to be constituted; whether the notice served upon the petitioner could be termed as lawful which was issued in oblivion of the provisions as contained in S.85(1) of North-West Frontier Province Local Council Ordinance, 2001, which could not be treated as directory having a definite adverse effect on the political career and future of the petitioner; whether the entire proceedings initiated and finalized qua no-confidence motion without observing the mandatory formalities were without lawful authority and jurisdiction; whether proper opportunity of hearing and defence as envisaged in S.85(6).of North-West Frontier Province Local Government Ordinance, 2001, had been afforded to the petitioner and whether the no-confidence motion rejected being violative of S.85(l)(4) of North-West Frontier. Province Local Government Ordinance, 2001, could have been repeated after a couple of days with mala fide intentions and ulterior motives against the petitioner due to intervention of District Nazim, District Coordination Officer and Assistant Coordination Officer having no locus standi in such-like matters.

Barrister Masood- Kausar, Advocate Supreme. Court and Mir Adam Khan, Advocate-on-Record for Petitioners.

Hamid Farooq Durrani, D.A. -G.I for Respondent No. 1.

Habib-ur-Rehman, A.E.C. for Respondent No.3.

Salahuddin, A.C.O. for Respondents Nos.5 to 7:

Dr.Hussain Khan, Advocate-on-Record/Advocate Supreme Court for Respondent- No.9.

Respondent No. 16 in person.

Date of, hearing: 6th November, 2003:

P L D 2004 Supreme Court 127

Present: Javed Iqbal, Sardar Muhammad Raza Khan and Khalil-ur-Rehman Ramday, JJ

PAKISTAN RAILWAYS through General Manager, Railway Headquarters Office, Lahore---Appellant

versus

ABDUL BARI KHAN and others---Respondents

Civil Appeals Nos.712 to 714 of 1999, decided on 2nd October, 2003.

(On appeal from the, judgment dated 31-7-1998 in W.Ps. Nos. 15549 & 15542, dated 29-7-1998 in W. P.No.15328/98 of the Lahore High Court, Lahore).

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

----Art. 9(2)---Constitution of Pakistan (1973); Art.185(3)---Leave to appeal was granted by Supreme - Court to consider; whether the authorities were debarred from invoking Constitutional jurisdiction of High Court under Art.199 of the Constitution on the ground that they could file representation to the President under the Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 and whether in view of Art.9(2) of Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, Wafaqi Mohtasib had the jurisdiction to issue a direction of the nature which were subject-matter of the petition filed by the Authorities.

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

----Arts. 9(2) & 32--Constitution of Pakistan (1973), Art. 199--­Constitutional jurisdiction of High Court---Alternate adequate remedy, non-availing of---Instead of filing appeal under Art.32 of Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, against the order passed by Wafaqi Mohtasib, the Authorities invoked Constitutional jurisdiction of High Court---Petition was dismissed by High Court on the ground that alternate adequate remedy was available to the Authorities which they did not invoke---Validity---Authorities- in the present case, had made a futile attempt before the Supreme Court to cover the inefficiency and careless and callous approach of the officers concerned who failed to invoke the provisions as contained in Art.32 of Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, under the garb of Constitutional petition which had rightly -been dismissed---Orders of Wafaqi Mohtasib and High Court being well-based and unexceptionable, did not warrant interference.

Ch. Muhammad Aslam Satidhu, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record for Appellant (in all Cases).

Nemo. for Respondents.

Date of hearing: 2nd October, .2003.

P L D 2004 Supreme Court 129

Present: Hamid Ali Mirza and Faqir Muhammad Khokhar, JJ

Malik GHULAM NABI JILANI---Petitioner

versus

Mst. PIRZADA JAMILA and others---Respondents

C.M.A. No.2479 and Civil Petition No.386 of 2003, decided on 12th November, 2003.

(On appeal from the judgment dated 5-11-2002 in ICA No.77 of 2002 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi).

(a) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 8---Dissolution of marriage on the basis of Khula'---Principle of res judicta---Applicability---Principle of res judicata with regard to plea of Khula' is .not applicable in case of dissolution of marriage---Wife get fresh cause of action to approach Family Court in view of fresh circumstances and subsequent events which may take place between the parties after withdrawal of previous suit.

(b) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 8---Constitution of Pakistan (1973), Art.185(3)---Dissolution of marriage on the basis of Khula'---Principles of res judicata--­Applicability---Condition in Nikahnama,\ restraining wife from approaching the Family Court for Talaq on the ground of Khula'--­Contention of husband was that on the basis of .such condition, the wife could not seek dissolution .of the marriage and that earlier suit for dissolution of marriage was withdrawn, therefore, principles of res judicata were applicable in the suit---Validity---Family Court had rightly found that condition in Nikahnama restraining the wife from approaching Court for Talaq on the ground of Khula' was not legal condition which could not prevent the wife from seeking dissolution on the ground of Khula' from the competent Court---Family-Court also rightly found that in view of evidence on record it was not possible between the parties to live together within the limits of Allah---Findings of the Family Court were affirmed by the High Court---No misreading or non-reading of evidence was pointed out by the husband---Subsequent suit for dissolution of marriage on the ground of Khula' was not barred as in such cases recurring cause of action could accrue to the party---All the Courts below had given concurrent finding with regard to the right of wife for seeking dissolution of marriage on the ground of Khula'---Leave to appeal was refused.

Dost Muhammad v. Mst. Maqsoodan Bibi PLD 1985 Lah. 340 and Amir v. Mst. Sughran and others 1991 CLC Note 225 at p.176 ref.

Petitioner in person.

Shaukat Aziz Siddiqui, Advocate Supreme Court alongwith Respondent No. 1 in person.

Date of hearing: 12th November, 2003.

P L D 2004 Supreme Court 132

Present: Hamid Ali Mirza, Abdul Hameed Dogar and Faqir Muhammad Khokhar, JJ

MANZOOR AHMAD---Petitioner

versus

NARGIS MIRZA and others---Respondents

Civil Petition No. 1403 of 2003, decided on 27th October, 2003.

(On appeal from the order dated 26-5-2003 passed by Lahore High Court, Lahore in Writ Petition No.6853 of 2003).

West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Muslim Family Laws Ordinance (VIII of 1961), S.7-­-Constitution of Pakistan (1973), Art.185(3)---Suit for maintenance by wife---Defendant denied his liability as he had already divorced the plaintiff---Family Court decreed the suit, which was upheld by Appellate Court with some modification and also by High Court in Constitutional petition---Validity---Defendant in his statement before Family Court had admitted that he had not divorced plaintiff and that she was still his wife---Defendant had not established on record pronouncement of Talaq in terms of S.7 of Muslim Family Laws Ordinance, 1961--­Impugned judgments were based upon proper appraisal of evidence---No question of pubic importance was involved---Supreme Court dismissed petition and refused leave to appeal.

Muhammad Aslam Uns,, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 27th October, 2003.

P L D 2004 Supreme Court 134

Present: Javed Iqbal and Falak Sher, JJ

PROVINCE OF PUNJAB through Controller, Attock and others---Petitioners

versus

MUHAMMAD MUMTAZ ---Respondent

Civil Petition No.3474 of 2001, decided on 14th November, 2003.

(On appeal from the judgment/order dated 13-9-2001 of the Lahore High Court, Rawalpindi Bench,,. passed, in R.F.A. No.7 of 1992).

Land Acquisition Act (I of 1894)---

----S.18---Constitution of Pakistan (1973), Art. 185(3)---Acquisition of land---Prevalent market price---Determination---Landowner being dissatisfied with the, compensation' award, preferred reference under S.18 of Land Acquisition Act, 1894---Landowner produced certified copies of five registered sale-deeds which all pertained to the relevant period--­Trial Court Worked out the average price of the acquired land on the basis of those sale-deeds---Authorities failed to produce anything on record to prove that the sale-deeds were fictitious---Acquired land was situated on main road within the municipal limits of the city ---Distance between the acquired land and Abadi was about 300 yards---All such factors established the potential value of the land and the compensation was enhanced by the Trial Court---High Court, in exercise of its appellate -jurisdiction maintained the judgment passes by the Trial Court and appeal filed by the Authorities was dismissed ---Validity--­Acquisition Authorities did not examine the prevalent market value of their own---Fair market value was not determined by the Authorities who acted in a cursory and casual manner---Conclusion arrived at by the Trial Court and affirmed by High Court being well-based and unexceptionable, did not warrant interference---Authorities could not point out any jurisdictional error, illegality or infirmity in the judgment passed by the Courts below---No question of law of public importance being involved in the matter, leave to appeal was refused.

Ms. Afshan Ghazanfer, Asstt. A.G. and Rao, M. Yusuf Khan, Advocate-on-Record for Petitioners.

M.A. Qureshi, Advocate-on-Record (absent) for Respondent.

Date of hearing: 14th November, 2003.

P L D 2004 Supreme Court 137

Present: Munir A Sheikh, Iftikhar Muhammad Chaudhry and

Rana Bhagwandas, JJ

GHULAM MUHAMMAD TIWANA---Appellant

Versus

SECRETARY, GOVERNMENT OF PUNJAB, INDUSTRIES AND

MINERAL DEVELOPMENT DEPARTMENT and others---Respondents

Civil Appeal No. 1452 of 1995, decided on 28th October, 2003.

(On appeal from judgment of Lahore High Court, Lahore dated 16-8-1995 passed in Writ Petition No.8562 of 1994).

(a) Punjab Mining Concession Rules, 1986---

----R.15---Leave to appeal was granted by Supreme Court to consider whether in. fact the lease period of prospecting licence of respondent had expired in year 1987 and application of appellant dated 12-6-1989 would be earlier in time.

(b) Punjab Mining Concession Rules, 1986--­

----R.15---Licence, grant of---Entitlement---Principle of first come first served---Applicability---Prospecting licence of respondent had expired and appellant applied for the same---Authorities granted the licence in favour of the appellant on the principle of first come first served basis as he had made first application on 12-6-1989 at 11-30 a.m. ---Respondent assailed the order, for granting the licence in favour of the appellant and High Court in exercise of Constitutional jurisdiction set aside the licence on the ground that the licence of the respondent had ended at 12-00 hours midnight between ,15-6-1989 and 16-6-1989, therefore, application of the respondent filed on 15-6-1989, at 10-30 a.m. was earlier in time---Plea raised by the appellant was that he had made first application on 12-6-1989 at 11-30 a.m. while second application was filed on 17-6-1989,. at 8-00 a.m., therefore, ire was entitled to the grant of the licence under the provision of R.15 of Punjab Mining Concession Rules, 1986---Validity---Merely because it was found that application made by the respondent was prior in time, was not by itself a ground to hold that the respondent was entitled to grant of licence, because under' R.15 of Punjab Mining Concession Rules, 1986, the concerned Authorities were vested with the power to deviate from the principle of first come first served for reasons to be recorded and could refuse grant of licence to such an applicant---Besides the Competent Authority had the option under the rule to grant prospecting licence through sealed bids or by open auction--Order passed by High Court was set aside and the case was remanded to the Authorities for deciding the question of grant of prospecting licence keeping in view the provision of R.15 of Punjab Mining Concession Rules, 1986.

AIR 1963 Pun. 378 distinguished.

Muhammad Nawaz Malik, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Appellant.

Ms. Afshan Ghazanfar, Asstt. A.-G. Punjab for Respondents Nos. 1 to 8.

Respondent No.9 in person.

Date of hearing: 28th October, 2003.

P L D 2004 Supreme Court 140

Present: Javed Iqbal, Sardar Muhammad Raza Khan and Khalil-ur-Rehman Ramday, JJ

MUHAMMAD USMAN and others---Appellants

versus

SECRETARY TO GOVERNMENT OF PAKISTAN and another---Respondents

Civil Appeal No.70r of 1999, decided on 1st October, 2003.

(On appeal from the judgment dated 8-3-1999 passed 'by the Lahore High Court, Lahore in Writ Petition No.571 of 1999).

(a) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

---S. 8---Constitution of Pakistan (1973), Art. 185(3)---Evacuee Trust property, determination of--Leave to appeal was granted by the Supreme Court to consider as to whether there existed on record ample evidence to declare the status of the property as evacuee trust property and whether the entry qua the existence of a charitable hospital in record was sufficient for the purpose.

(b) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----S. 8---Constitution of Pakistan (1973), Art. 185---Evacuee Trust Property, determination of---Supreme Court, having already given finality to the verdict that the property in dispute was an evacuee trust property and matter having been clinched once for all, it should not have been re-opened at all.

Evacuee Trust Property Board, Lahore v. Sayed Abdus Saleem 1990 SCMR 143 ref.

(c) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

---S. 8---Evacuee Trust Property, determination of---Proof---Onus--- Principles---If sufficient prima facie evidence indicating the attachment of property to a religious or charitable institution was available on records and same was not displaced by a reliable evidence, the burden of proving actual creation of trust was not necessary to be discharged and in such circumstances, the matter could be decided on the rule of preponderance of evidence.

Evacuee Trust Property Board, Lahore v. Sayed Abdus Saleem 1990-SCMR 143; Government of Pakistan v. Nizamuddin 1994 SCMR 1908; Evacuee Trust Property Board v. Rahim Khan 1989 SCMR 1605; District Evacuee Trust Committee v. Muhammad Umar 1990 SCMR 25; Secretary, District Evacuee Trust Property v. Qazi Habibullah PLD 1991 SC 586 and Qazi Akbar Jan v. The Chairman, District Evacuee Trust Committee, Peshawar 1991 SCMR 2206 ref.

S.M..Zamir Zaidi, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record (absent) for Appellants.

Nasir Saeed Sheikh, Advocate Supreme Court for Respondent No. 1.

Qamar-uz-Zaman, Advocate Supreme Court for Respondent No.2.

Date of hearing: 1st October, 2003.

P L D 2004 Supreme Court 144

Present: Sh. Riaz Ahmad, C.J., Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

AL-HASSAN FEEDS through Syed Abbas Hassan Shah and another---Petitioners

versus

UNITED BANK LTD. And 6 others-- -Respondents

Civil Appeal No.429 of 2001, decided on 2nd October, 2003.

(On appeal from the judgment dated 12-9-2000 of the Peshawar High Court Circuit Bench at Abbottabad, passed in FAB No.1 of.1999).

Civil Procedure Code (V of 1908)---

---O. XXI, Rr.89.& 90---Constitution of Pakistan (1,973), Art. 185(3)--­Execution of decree---Auction sale, setting aside of---Objection against sale---Non-deposit of decretal amount alongwith 5 % of auction money--­Extension of time for deposit of auction money---Powers of Executing Court---Auction-purchaser could not deposit balance auction money in, the due time and sought extension of time---Executing Court extended the time---Petitioners sought setting aside of the sale but failed to deposit decretal amount alongwith 5 % of auction money-- -Executing Court confirmed the auction in favour of the auction-purchaser ---Validity--­Opportunity to the petitioners was granted by the Executing Court to deposit the decretal amount alongwith 5 % of auction money but they failed to deposit the same---Auction-purchaser deposited 1/4th of the auction money at the time of auction and the remaining 3/4th of the amount was deposited later on---Petitioners having failed to comply with the mandatory provisions of law, the Court below had rightly dismissed their objection petition---Executing Court was competent to extend time for deposit of remaining auction amount---Orders passed by Executing Court as well as by High Court were maintained- --Leave to appeal was refused.

Ch. Mushtaq Ahmad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioners.

Roohul Amin, Advocate Supreme Court for Respondent No.1.

Syed Asghar Hussain Sabazwari, Advocate Supreme Court and Cfi. Akhtar Ali, Advocate-on-Record for Respondent No.2.

Date of hearing: 2nd October, 2003.

P L D 2004 Supreme Court 147

Present: Mian Muhammad Ajmal and Karamat Nazir Bhandari, JJ

ABDUL AZIZ---Appellant

versus

KHUDA DAD KHAN---Respondent

Civil Appeal No. 1336 of 1999, decided on 24th October, 2003.

(On appeal from the judgment and decree dated 10-12-1998 passed by a learned Single Judge of Lahore High Court, Rawalpindi Bench in R.S.A. No.68 of 1985).

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

----S.100---Constitution of Pakistan (1973), Art. 185(3)---Second appeal-­-Leave to appeal was granted by the Supreme Court to consider the contention of the appellant that while deciding the second appeal, the High Court could not have interfered without examining and assessing the evidence, both oral and documentary and if so, what was the effect of omission to examine the record by the High Court.

Alloo v. Sher Khan and others PLD 1985 SC 382 and Muhammad Ramzan v. Mst. Janatan and 4 others 1983 CLC 1899 ref.

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

----S.42---Contract Act (IX of 1872), S.10---Civil Procedure Code (V of 1908), S.2(2)---Constitution of Pakistan (1973), Art.185---Suit for declaration to the effect that purchaser of the property was benami owner and in fact the real owner was the appellant---Suit was decreed ex parte and the decree attained finality---Ostensible owner, taking the ex parte decree a fresh sale, brought a suit for possession of the land through pre-emption---Similar suit had been filed by the respondent and both the suits were consolidated and one of the issues was to the effect as to whether ex parte declaratory decree amounted to a sale and, therefore, the suit for pre-emption was competent---Trial Court had answered the said issue in the affirmative ---Effect---Ex parte decree, in favour of the appellant did not amount to a sale in his favour; by its declaratory decree the Court had only determined the true nature of the transaction of sale and had found that the appellant was the real owner---Effect of ex parte .decree was that right from the beginning, the appellant became the owner---Ordinary ingredients of a contract of sale viz. proposal, acceptance and consideration were missing in the ex parte decree---No document of title having been executed in favour of the appellant in pursuance of the ex parte decree, mere mutation in the Revenue Record to implement the declaration, would not amount to sale in favour of the appellant, as mutation was never a document of title and only recorded a fact or an event---Contention based on collusion with regard to ex parte decree would not help the respondent as the said decree had attained finality and its correctness could not be examined in the appellate proceedings and in any case contention that decree was collusive would not amount to saying that ingredients of sale were fulfilled.

Gulzarin Kiani, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Appellant.

Hafiz S.A. Rehman, Senior. Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Respondent No. 1.

Date of haring: 24th October, 2003.

P L D 2004 Supreme Court 150

Present: Sh. Riaz Ahmad, C.J., Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

MUSHTAQ AHMAD---Appellant

versus

THE STATE---Respondent

Criminal Appeals Nos.280 and 281 of 2002, decided on 22nd October, 2003.

(On appeal from the judgment dated 16-7-2001 of the Lahore High Court passed in Criminal Appeal No. 121 of 1996 and Murder Reference No.54 of 1996).

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to the accused by Supreme Court to reappraise the evidence and to determine the quantum of his sentence.

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

----S. 302)(b)---Appraisal of evidence---Ocular testimony was fully corroborated by medical evidence---Long abscondence of accused was also strong corroborative piece of circumstantial evidence to connect him with the commission of the crime---Conviction of accused was maintained in circumstances---Deceased admittedly was challaned in 5/6 criminal cases which were still pending and he was a man of questionable character which was a sufficient extenuating circumstance in favour of accused---Sentence of death of accused was reduced to imprisonment for life accordingly.

Malik Abdus Sattar Chughtai, Advocate Supreme Court for Appellant (in Criminal Appeal No.280 of 2002).

Ms. Afshan Ghazanfer, A.A.-G., Punjab for the State, (in Criminal Appeal No.280 of 2002).

Malik Rab Nawaz Noon, Senior Advocate Supreme Court for Appellant (in Criminal Appeal No.281 of 2002).

Malik Abdus Sattar Chughtai, Advocate Supreme Court for Respondent No .l (in Criminal Appeal No. 281 of 2002).

Ms. Afshan Ghazanfer, A.A.-G. Punjab for Respondent No.2 (in Criminal Appeal No.281 of 2002).

Date of hearing; 22nd October, 2003.

P L D 2004 Supreme Court 154

Present: Syed Deedar Hussain Shah and Tanvir Ahmed Khan, JJ

Mst. BUNDI BEGUM---Petitioner

versus

MUNSHI KHAN and others---Respondents

Civil Petition No.2561 of 2003, decided on 10th November, 2003.

(On appeal from the judgment of, the Lahore High Court, Lahore, dated 2-10-2003 passed in W. P. No. 13683 of 2003).

(a) Administration of justice--

---Technicalities, unless insurmountable, should not come into the way of the administration of justice.

Muhammad Anwar Khan v. Riaz Ahmed PLD 2002 SC 491 ref.

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

----S. 75---Constitution of Pakistan (1973), Art.185(3) --- Appointment of commission-: -Distribution of standing crops---Suit had already been disposed of and only contempt application and application for vacation of stay order were pending---Petitioner had deprived the respondents from the fruits of disputed land for the last more than two decades by adopting technicalities---Suit filed by the respondents was decreed by High Court in the year 1995, and till date no share of income had been paid to them---Appellate Court appointed commission for distribution of standing crops between the parties---Such order of the Appellate Court was assailed before High Court in exercise of Constitutional jurisdiction--­High Court dismissed the Constitutional petition and order of appointment of commission was maintained---Validity---High Court had rightly stated that such-like determination did not warrant interference in discretionary and equitable jurisdiction and the commission was rightly appointed to make fair distribution of crops among the parties---Leave to appeal was refused by the Supreme Court.

The General Manager of the Raj Durbhunga under the Court of Wards v. Maharajah Coomar Ramaput Singh 14 MIA 605 = 17 WR 459 = 10 BLRPC 294 = 2 Soth PCJ 575 3 Sar. PCJ 117 ref.

Syed Muhammad Kaleem Ahmed Khurshid, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 10th November, 2003.

P L D 2004 Supreme Court 160

Present: Mian Muhammad Ajmal, Sardar Muhammad Raza Khan

and Karamat Nazir Bhandari, JJ

Haji AURANGZEB---Petitioner

versus

MUSHTAQ AHMAD and another---Respondents

Criminal Petition No.211 of 2003, heard on 22nd October, 2003.

(On appeal from the judgment dated 12-5-2003 of the Peshawar High Court Circuit Bench, Abbottabad passed in Criminal Miscellaneous (Q) No.48 of 2002)

Per Karamat Nazir Bhandari; J.--

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

---S. 540-A---Inquiry and trial in absence of accused ---Scope--­Section 540-A, Cr.P.C. deals with a situation where there are two or more accused in the Court facing inquiry or trial and subsequently have become incapable of remaining before the Court---Accused has to be physically present before the Court and if subsequently he has become incapable 'of remaining before the Court, exemption can be granted to him for reasons to be recorded.

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

----S. 540-A---Penal Code (XLV of 1860), S.337-A(ii)/34---Constitution of Pakistan (1973), Art.185(3)---Exemption from appearance in Court refused to accused---Validity---Accused had left the country and gone abroad for employment in the month of July, 2002 while application for exemption was made in September, 2002, on his behalf by his father who was co-accused in the case---Record did not indicate that the accused had authorized the filing of the petition which was liable to be summarily rejected on this ground alone ---Challan had been put in the Court in March, 2002 .and the accused had almost four months to move the application for exemption before proceeding abroad but he chose to leave without grant of exemption---Absence of Presiding Officer was not an insurmountable hurdle in the way of accused who could either get the case transferred or at least could get his application for exemption entrusted to a competent Court of law for obtaining appropriate orders within time, but he did not make any such effort-Accused had to be physically present in the Court for claiming exemption but he did not do so---Impugned order did not warrant any interference---Leave to appeal was refused to accused accordingly.

Aurangzeb v. Bilal and 5 others 2002 PCr.LJ 947; Dr. Ali Yahya v. The State 1989 PCr.LJ 1652; Shah Zaman v. Sher Afzal Khan and another PLD 1993 Pesh. 155 and Muhammad Hussain v. Pervaiz ur Rehman and another. 1980 PCr.LJ 1 distinguished.

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

----S. 540-A---Inquiry and trial in absence of accused---Intent and import--Normally the accused has to be physically present in the Court for claiming exemption and if the Court is satisfied about his incapability of remaining before the Court, it may grant exemption---Word "incapability" being a term of wide import may cover all circumstances beyond the .control of the accused---Exemption can be granted in absence of accused in extremely exceptional cases like his ailment rendering his movement difficult as in case of-paralysis, or departure from country or station in absolutely necessary condition affording no time to have recourse to the Court for seeking exemption---Section 540-A, Cr.P.C. covers cases of temporary exemption from one or two dates of hearing or exemption, till the conclusion of inquiry or trial.

Per Sardar Muhammad Raza Khan, J. agreeing with Karamat Nazir ' Bhandari, J.--

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

----S. 540-A---Exemption from appearance in Court---Essentials---Court before the grant of exemption to an accused must see that there were two or more accused facing the trial; that accused seeking exemption was "before the Court" and were represented by a counsel---Words "before the - Court" employ the physical presence of the accused before the Court---Words "incapable of remaining before the Court" also strongly indicated that the accused who, at one time, was before the Court had now become, for some reasons or the other, incapable to remain present before the Court in future.

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

----S. 540-A---Inquiry and trial in absence of accused---Provisions of S.540-A, Cr.P.C. are to be interpreted with -benevolence, because it is an enabling provision not meant to punish someone---Section 540-A, Cr.P:C. aims at achieving three-fold benefits; one benefits to the exempted, accused; second benefit to the Go-.accused under trial and third benefit being the convenience of the Court itself.

Mushtaq Ali Tahirkhali, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 22nd October, 2003.

P L D 2004 Supreme Court 168

Present: Sh. Riaz Ahmad, C. J., Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

SHAFIQUE AHMED and others---Petitioners

versus

GOVERNMENT OF PUNJAB and others---Respondents

Civil Petition No.2198-L and Criminal Original No. 48-L of 2003, decided on 17th October, 2003.

(On appeal from the judgment dated 16-7-2003, passed by the Lahore High Court, Lahore, in Writ Petiton No.8755 of 2003).

(a) University of Health Sciences Ordinance (XLVIII of 2002)---

----Preamble, Ss.37 & 5---Pakistan Medical and Dental Council Ordinance (XXXII of 1962), Preamble---University of the Punjab Act (IX of 1973), Ss.5 & 7---Constitution of Pakistan (1973). Arts.4, 25 & 185(3)---Vires of University of Health Sciences Ordinance, 2002--­Contentions of the petitioners (Students of the Medical Colleges) were that provisions of University of Health Sciences Ordinance, 2002 with regard to affiliation were violative of the Pakistan Medical and Dental Council Ordinance, 1962 and a letter issued by the Vice-Chancellor, University of Health Sciences was violative of the spirit of the University of Health Sciences Ordinance, 2002 in general and its S.37 in particular; that the provisions relating to affiliation and disaffiliation were violative of the Fundamental Rights enshrined in the Constitution; that the exemption from affiliation granted to two medical colleges was discriminatory and violative of Arts.4 & 25 of the Constitution; that S.37 of the Ordinance had no retrospective application; that the provision in regard to compulsory disaffiliation of medical colleges was violative of the University of the Punjab Act, 1973 and the calendar framed thereunder and the petitioners had a vested right to be examined by the University of the Punjab in view of the principle of legitimate expectation---Validity---Notwithstanding the fact that University of Health Sciences Ordinance, 2002 and the judgment of the High Court had been challenged only by 4 out of 6000 students of the medical colleges and none of the colleges affiliated with the University of Health Sciences had expressed any grievance, University of Health Sciences Ordinance, 2002 was not only a valid enactment but was also not ultra vires the Constitution and the contentions were devoid of substance--­Expression For the time being" used in the notification had made manifest that the exemption complained of was transitory and the possibility of affiliation of both the exempted medical colleges with the University of Health Sciences in due course of time could not be excluded, therefore, alleged discrimination did not flow from a transitory arrangement---Scope of the letter to the Medical Colleges with regard to the process of affiliation by the Vice-Chancellor of the University of Health Sciences was no better than an intimation about the requisite affiliation and thus its conflict with S.37 of the University of Health Sciences Ordinance, 2002 could not be contended at all---Legitimate expectation set up by the petitioners was neither reasonable nor had the backing of any law or any rule of the Prospectus of the Government Medical Colleges because the same Was revised yearly to update the changes arid contained inbuilt provisions to the effect that the students of Medical Colleges shall be bound to abide by the rules and regulations laid down therein and the changes issued by the Government from time to time and the Government reserved the right of additions and alterations of any rule in the prospectus at any stage---Affiliation of Medical College with the University of Health Sciences had not deprived the petitioners of any benefit which might have accrued to them had their college remained affiliated with the University of the Punjab; petitioners will remain affiliated with their college and get the same M.13-B.S. degree at the conclusion of the five years course which would have been, awarded by the University of the Punjab---University of Health Sciences was a Specialist University which had been established, inter alia, to improve the quality and standard of education and meet the challenges and requirements of the changing times and had also been accorded requisite recognition by the Pakistan Medical and Dental Council, therefore, anxiety of the petitioners about the status of the degree of M.B.,B.S. to be awarded by it was unfounded--­High Court, having disposed of the matter through an elaborate judgment, Supreme Court declined to grant leave to appeal against the same.

(b) Contempt of Court---

---- Alleged violation of the order of the Court was more imaginary than real and the order in question had come to an end with the issuance of notification, alluded to therein---Case for taking action for contempt of Court was not made out in circumstances.

Malik Abdul Qayyum and Hafiz Abdul Rehman Ansari, Advocates Supreme Court and Faiz-ur-Rehman, Advocate-on-Record (absent) for Petitioners.

Nemo for Respondents Nos. 1 and 3.

Dr. A. Basit, Advocate Supreme Court for Respondent No.2.

Najamul Hasan Kazmi, Advocate Supreme Court for Respondent No.4

Date of hearing 29th September,-2003.

P L D 2004 Supreme Court 178

Present: Javed Iqbal, Sardar Muhammad Raza Khan and Khalil-ur-Rehman Ramday, JJ

MUSTAFA KAMAL and others---Appellants

versus

DAUD KHAN and others---Respondents

Civil Appeal No.896 of 1999, decided on 3rd October, 2003.

(On appeal from the order/judgment dated 28-9-1998 of the Peshawar High Court, Peshawar, passed in C.R.No.322 of 1998).

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

----S.11---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by the Supreme Court,, inter alia, to consider whether the respondents having never objected to the decree passed against them on the point of res.judicata through any cross-objections, were not debarred, to object the decree thereafter.

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

----S. 11---Res judicata---Question of res judicata around which the entire controversy revolved, determination whereof would have substantial bearing on the fate of the case, was not to be dealt with in a cursory and casual manner without taking into consideration as to whether S.11, C.P.C. could have been made applicable to the case in hand.

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

---S.11---Res judicata---Not every matter decided in a former suit can be pleaded as res judicata in a subsequent suit, but to constitute a matter res judicata prerequisites are essential as enumerated in Explns. I to VI which are integral part of S.11; C.P.C. and have been enacted to make the doctrine of res judicata crystal clear.

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

----S. 11---Res judicata, principle of---Object---Principles---Finality should, impart to judicial decisions and if a case is res judicata, it may not be reopened so as to- be adjudged again---Once a matter between the, parties to, a suit or proceeding is decided and the decision has become final either because no appeal lies or an appeal was taken or if taken, it was dismissed, none of the patties shall be allowed to canvass the same matter again in .a subsequent suit or proceedings between the same parties and as' a result of the application of principle of res judicata as embodied in S.11, C. P.C. all future litigation at. any length between the parties must proceed on the presumption of correctness of the previous decision.

Res judicata is a rule of universal law pervading in every well-­regulated system of jurisprudence, and is put upon two grounds, embodied in various maxims of the common law; the one of public policy and necessity, which makes it in the interest of the State that there should be an end to litigation-.interest republicae ut sit finis litium; the other, the hardship on the individual that he should bb vexed twice for the same cause.

The terms of section 11, C.P.C. are not exhaustive.

The principle of res judicata has been given a statutory form in section 11 of the Civil Procedure Code, 1908. One is, therefore, justified in concluding, by way of first impression, that it is more a matter of procedure of Court than anything else.

The rule of res judicata, while founded on ancient precedent, is dictated by a wisdom which is for all time. Otherwise great oppression might be done under colour and pretence of law.

It would be in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. The binding character of judgments pronounced by Courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis. It is true that the general rule can be invoked only in cases where a dispute between the parties has been referred to a Court of competent jurisdiction, there has been a contest between the parties before the Court, a fair opportunity has been given to both of them to prove their case, and at the end the Court has pronounced its judgment or decision. Such a decision pronounced by a Court of competent jurisdiction is binding between the parties unless it is modified or reversed by' adopting a procedure prescribed by the Constitution.

The object of the principle of res judicata as suggested by, the expression itself is that finality should impart to judicial decisions and ii a case is res judicata, it may not be reopened so as to be adjudged again. In other words once a matter between the parties to a suit or proceeding is decided and the decision has become final either (i) because no appeal lies or (ii) an appeal was taken or (iii) if taken, it was dismissed; none of the parties shall be allowed to canvass the same matter again in a subsequent suit or proceedings between the same parties. But for this curb on litigation it would become interminable, human nature being what it is. As a result, of the application of this principle as embodied in section 11 of the C.P.C. all future litigation at any length between the parties must proceed on the presumption of correctness of the previous decision.

AIR 1960 SC 1186; AIR 1951 SC 217; AIR 1953 SC 156; AIR 1956 SC 585; Daryao v. State of UP AIR 1961 SC 1457; Muhammad Tufail v. Atta Shabir PLD 1977 SC 220; Wasi Ahmed Rizvi v. Federation of Pakistan PLD 1982 SC 20; Sheoparasan Singh and others v. Ramnandan Prasad Naryan Singh and others AIR 1916 PC 78; 6 Coke-9a and Kalipade de and others v. Dwijapada Das and others AIR 1930 PC 22 ref.

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

----S. 11---Res judicata---Party sought to, be affected by the bar of res judicata should have notice of the point which is likely to be decided against him and should have an opportunity of putting forward his contentions against such a plea.

Neelakanta v. Neelamma AIR 1952 Trav.-Co. 452 ref.

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

----S. 11---Res judicata, principle of---Applicability---Principles---Held, in order to constitute res-judicata in the legal sense it has to be established not merely that the decision emanated from a Court in the exercise of its judicial functions but also that the Court was competent to adjudicate in respect of that matter; matter directly and substantially in issue in the subsequent suit had been directly and substantially in issue in the former suit; the former suit as well as the present suit had and have been between the same parties or between parties under whom they or any of them claim; such parties litigated under the same title in the former suit; the Court trying the former suit had been a Court competent to try the subsequent suit and the suit in which such issue is subsequently raised and the matter in issue in the subsequent suit had been heard and finally decided in the first suit.

Principles of Res Judicata by Sheikh Abdul Haleem, p.27 ref.

Abid Hasan Minto, Senior Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate-on-Record (absent) for Appellants.

Hidayatullah, Advocate Supreme Court and Fateh Muhammad Khan Advocate-on-Record for Respondents.

Date of hearing: 3rd October, 2003.

P L D 2004 Supreme Court 185

Present: Qazi Muhammad Farooq, Abdul Hameed Dogar

and Sardar Muhammad Raza Khan, JJ

ALI MUHAMMAD MIRZA and others---Appellants

versus

Mst. SARDARAN and others---Respondents

Civil Appeal No.1465 of'1995, Decided on 18th November, 2003.

(On appeal from the judgment dated 31-10-1994 passe4 by the Lahore High Court, Lahore in R.S.A. No.533 of 1966).

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

----O. XXII, R.1---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider whether in the circumstances of the case, the abatement would operate partially or in toto.

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

----O. XXII, R.I---Term `right to sue survives'---Applicability---Cases are there where plaintiffs mostly sue with regard to some claim which is associated with or vested in them in their individual capacity---Suit for damages falls under such category---If plaintiff dies during pendency of suit for damages, the right to sue which can also be termed as a right to seek relief, does not survive but if he succeeds in getting a decree for damages and dies during the pendency of his opponent's appeal, the right survives to his legal representatives---In case of survival of right to sue the suit do not abate on death of a party but impleadment or substitution of his legl heirs becomes incumbent within the period of 90 days---Such suit does not abate in that case because the surviving right becomes vested in the legal heirs--­So long as a right is referable to individuality of a person, such right does not survive on the death of that person---General rule is that all causes of action and all demands existing in favour of or against a person at the time of his death survive to or against his legal representatives.

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

----O. XXII, R. 1---Maxim "actio personalis moritur cum persona"--­Connotation and applicability---Personal right of action dies with the person---Right to sue, other than intimately connected with the individuality of the deceased, always survives to or against his legal representatives.

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

----S. 42---Civil Procedure Code (V of 1908), O.XXII, R.1---Abatement of proceedings---Vesting of right to sue in more than one plaintiffs---Award for consolidation of land was assailed by the plaintiffs in civil suit which was set aside by the Trial Court and the suit was decreed---Appeal before Appellate Court was accepted and the suit was dismissed---During pendency of second appeal before High Court, one of the plaintiffs died and his legal representatives were impleaded beyond the period of limitation---High Court dismissed the appeal being abated in toto---Plea raised by the plaintiffs was that the appeal could riot be abated in toto as the right to sue survived and one of the plaintiffs was also surviving---Validity---Assertions made by the plaintiffs in the plaint were objective and not subjective and the same were relatable to the .surviving plaintiff as much as they were to the deceased plaintiff---Verdict could be obtained by anyone of the two provided the grounds were proved---Appeal could have been pursued by the surviving plaintiff as effectively as it would have been by both together thus the appeal might have been abated partially and not in toto---Right to sue happened to be continuous equally vesting in the surviving plaintiff who could get the award set aside as a whole after proving the grounds asserted in the plaint--­Where two persons who had independent causes of action and who could have brought separate suits, joined together as plaintiffs in one suit by reason of the fact that their right to relief arose out of the same fact or series of facts, death of one of them would not cause abatement, so far as the other plaintiff or plaintiffs were concerned---Second appeal before High Court would riot have been imperfectly constituted even if the deceased plaintiff had not been there---Decision on merits would have not resulted into inconsistent decrees, for, the award whether set aside or maintained, would have been neither inconsistent regarding the surviving plaintiff nor against the defendants---Decree passed against the defendants i.e. the living party would have been effective by all means---Abatement in the present case would not be effective in toto and the surviving plaintiff could pursue the matter in his own capacity as effectively as it would have been by both the plaintiffs---Judgment passed by High Court was set aside by the Supreme Court and the case was remanded to High Court for decision afresh on the second appeal.

Sardar Noor Hussain v. Chief Settlement Commissioner PLD 1983 SC 62; Khawaja Mal Din v. Chief Settlement Commissioner 1985 SCMR 1359 and Ghulam Haider v. Mst. Raj Bharri PLD 1986 SC 169 rel.

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

----O. XXII, R. 1---Abatement of trial in totality or partiality---Criteria.

To determine as to when abatement occurs in totality and when in partiality. The following criteria has been laid down:--

(i) That the suit or appeal would be imperfectly constituted in absence of deceased party;

(ii) that a decision on merits may result in inconsistent decrees; and

(iii) that an effective, decree cannot be passed against the living party.

Khawaja Mal Din v. Chief Settlement Commissioner 1985 SCMR 1359 rel.

Shamim Abbas Bokhari, Advocate Supreme Court for Appellants.

Ms. Naheeda Mehboob Elahi, Advocate.

Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Respondents.

Date of hearing: 9th October, 2003.

P L D 2004 Supreme Court 191

Present: Qazi Muhammad Farooq, Abdul Hameed Dogar and Sardar Muhammad Raza Khan, JJ

Ch. SHABBIR HUSSAIN and others‑‑‑Appellants

versus

REGISTRAR, LAHORE HIGH COURT, LAHORE and others‑‑‑Respondents

Civil Appeal No.8 of 2002 with Criminal Original No.49 of 2002, Civil Appeals Nos.633, 634, 173 of 2002, 1447 of 1998, 1621, 1622 of 1999, 336 to 338 of 2002, 1004, 1005, 1187, 1188 of 2002 and 13 of 2000, decided on 4th December, 2003.

(On appeal from the judgments dated 4‑10‑2001, 7‑3‑2002, 13‑9‑2001, 16‑5‑1997, 5‑3‑1999, 5‑10‑2000, 1‑11‑2001 and 13‑12‑1999, passed by the Punjab Subordinate Judiciary Service Tribunal, Lahore in Service Appeals Nos.3 of 2001, 46 of 1999, 90 of 2001, 17 of 2001,4 of 1095, 7 and 8 of 1997, 3 of 2000, 54/2001, 32/2001, 29/2001, 30/2001, 27/2001 and 28 of 2001 and 10 of 1999, respectively).

(a) Punjab Subordinate Judiciary Service Tribunals Act (XII of 1991)‑‑‑

‑‑‑‑S. 5‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Adverse entry in Annual Confidential Report‑‑‑Effect‑‑‑Contention raised by the Judicial. Officer; was that adverse entry in his Annual Confidential Report was not based upon any material against him and it was further contented that the representation against the adverse remarks was. heard by seven Judges of High Court constituting ft Administration Committee, while appeal was heard by three Judges who could not have decided against the decision of the Administration Committee, therefore, the appeal lost its significance‑‑­Judicial Officer also contended that the Annual Confidential Report pertaining to the period from 1‑1‑1999 to 31‑12‑1999 was completed in September, 2000 and adverse remarks were communicated to him after a delay of more than 1 year and thus the adverse entry could not be taken into consideration‑‑‑Leave to appeal was granted by Supreme Court to consider the contentions of the Judicial Officer.

Chief Secretary, Government of Punjab, Lahore and 2 others v. Muhammad Saeed Zafar 1999 SCMR 1587; Ch. Saeed Ahmed v. Federation of Pakistan through Secretary, Finance Division, Islamabad and 2 others 1996 SCMR 256; Rana Abdul Ghaffar Khan v. The Punjab Government 1989 SCMR 1238 and Syed Tathir Hussain Shirazi v. The Government of the Punjab and others 1990 SCMR 1510 ref.

(b) Punjab Subordinate Judiciary Service Tribunals Act (XII of 1991)‑‑

‑‑‑‑S. 5‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Leave to appeal was granted by Supreme Court to consider whether or not formalities, as laid down by Supreme Court in the case titled Noor Elahi v. Director of Civilian Personnel reported as 1997 SCMR 1949 were observed.

Noor Elahi v. Director Civilian Personnel 1997 SCMR 1749 ref.

(c) Punjab Subordinate Judiciary Service Tribunals Act (XII of 1991)‑‑‑

‑‑‑‑S. 5‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑. Leave to appeal was granted by Supreme Court to consider whether it was open to Service Tribunal to accept appeal of Judicial Officers relating to adverse remarks recorded by Inspection Judge of the High Court/Countersigning Officer in 'the facts and circumstances of the case; whether the judgment was in conflict with the guidelines laid down by Supreme Court regarding recording of Annual Confidential Reports in number of reported cases by the Supreme Court; whether the judgment was in conformity with the decisions of Supreme Court in cases titled Chief Secretary, Government of Punjab, Lahore and 2 others v. 'Muhammad Saeed Zafar, reported as 1999 SCMR 1587 and Ch. Saeed Ahmed v. Federation of Pakistan through Secretary, Finance Division, Islamabad and 2 others, reported as 1996 SCMR 256 and whether the decision rendered by the Administration Committee comprising of seven Judges of the High Court including the Chief Justice was liable to interference by the Tribunal comprising of three Judges of the same Court.

Chief Secretary, Government of Punjab, Lahore and 2 others v. Muhammad Saeed Zafar 19!99 SCMR 1587; Ch. Saeed Ahmed v. Federation of Pakistan through Secretary, Finance Division, Islamabad and 2 others 1996. SCMR 256; Noor Elahi v. Director of Civilian Personnel Rear Air Headquarters, Peshawar and 2 others 1997 SCMR 1749 and Government of the Punjab and another v. Ehsanul Haq Sethi PLD 1986 SC 684 ref.

(d) Judge‑‑‑

‑‑‑Integrity and character of Judicial Officers‑‑‑Principles‑‑‑Although all civil servants are bound to be honest having unblemished integrity, the Judicial Officers are supposed to excel in this trait of character in view of the sacred and sensitive nature of their duties and the pivotal position which justice occupies in Islam‑‑‑Islam also enjoins that those who perform the function of Judges must not only possess profound knowledge and deep insight but also be men of integrity and capable of holding the scales of justice even under all circumstances‑‑‑Judicial Officers are expected to guard their reputation jealously and Reporting Officers/Countersigning Officers are obliged to assess their conduct after careful consideration and without being led away by any prejudice or bias.

Al‑Qur'an Sura 4, Verse 135 ref.

(e) Establishment Manual‑‑‑

‑‑‑‑ Vol. I, Instruction No.2‑‑‑Punjab ESTACODE, Vol., I, Instruction 40.2‑‑‑Delay in writing of Annual Confidential Reports and conveying of adverse remarks whether can vitiate the adverse remarks‑‑‑Such question is not res integra‑‑‑Instruction No.2 of the Establishment Manual, VAL which is in pari materia with the Instruction No.2 of Punjab ESTACODE Vol. I, is directory in nature‑‑‑In view of pre‑occupation of District and Sessions Judges and Judges of the High Court with ever increasing of judicial work, delay in initiating Annual Confidential Reports of some of Judicial Officers and conveying adverse remarks to them is immaterial and cannot obliterate the adverse remarks in question.

Tathir Hussain Shirazi v: The Governor of the Punjab and others 1990 SCMR 1510; Government of The Punjab and another v. Ehsanul Haq Sethi PLD 1986 SC 684; Ch. Muhammad Wakil v. Punjab Subordinate Judiciary Service Tribunal and 2 others CPLA No. 1170 of 1998 and Lahore High Court, Lahore through Registrar v. K.M. Sohel 2001 PLC (C.S.) 1253 rel.

(f) Punjab Subordinate Judiciary Service Tribunals Act (XII of 1991)‑‑‑

‑‑‑‑S. 5‑‑‑Establishment Manual, , Vo1.I, Instruction No.2‑‑‑Punjab ESTACODE, Vol. I, Instruction No.2‑‑‑Adverse remarks in Annual Confidential Reports; recording of‑‑‑Procedure-‑‑Contention of Judicial Officers was that such entries in their Annual Confidential Reports were not based on tangible evidence‑‑‑Validity‑‑‑Evaluation could be termed as objective if it was unambiguous, impartial, unbiased, result of careful consideration and was based on credible information, personal observation of Reporting Officer or Countersigning Officer and reports of the Inspection Judges and it was not necessary that it must be based on tangible material like complaints in writing, resolutions ,of Bar Associations, transfer applications and assets etc.‑‑‑Adverse remarks with regard to integrity of an officer could be made on the basis of his reputation and if the same were required to be supported with tangible material and instances of corruption then there would be no difference between an Annual Confidential Report and Inquiry Report under the Efficiency and Discipline Rules‑‑‑Adverse remarks in the present cases, were either recorded by Inspection Judges the High Court as Reporting Officer or endorsed by them as Countersigning Officer and in some cases the Reporting Officers/Countersigning Officers had scrutinized the work of the Judicial Officers and closely watched their conduct as Inspection Judges, Appellate Authorities and Judicial Heads of the Districts where they were posted, therefore, the adverse remarks based on credible information, personal observation and the process inspection‑‑‑Adverse remarks related to the integrity of the Judicial Officers and .were neither vague nor sketchy and there was also nothing on the record to suggest that the integrity, and reputation of the Reporting Officers/Countersigning Officers was not above board and they had recorded the adverse remarks on account of bias, prejudice, ill‑will or rancour against the Judicial Officers‑‑‑Subordinate Judiciary Service Tribunal had rightly dismissed the appeals filed by the Judicial Officers.

Chief Secretary, Government of Punjab, Lahore and 2 others v. Muhammad Saeed Zafar 1999 SCMR 1587; Ch. Saeed Ahmed v. Federation of Pakistan through Secretary, Finance Division, Islamabad and 2 others 1996 SCMR 256; Rana Abdul Ghaffar Khan v. The Punjab Government 1989 SCMR 1238; Syed Tathir Hussain Shirazi v. The Governor of the Punjab and others 1990 SCMR 1510; Inspector‑General of Police, Punjab, Lahore and 2 others v. Rana Altaf Majid 1994 SCM.R 1348; Noor Elahi v. Director of Civilian Personnel, Rear Air Headquarters, Peshawar and 2 others 1997 SCMR 1749; Government of the Punjab and another v. Ehsanul Haq Sethi, PLD 1986 SC 684; Aslam Warraich and others v. Secretary; Planning and Development Division 1991 SCMR 2330; Principal, Government College, Thana, Malakand v. Mrs. Bilquis Begum 2003 PLC (C:S.) 187; Pakistan Television Corporation v. S. Ahtramullah 1987 SCMR 753; Pakistan v. R.S. Roopchand PLD 1967 SC 47; Kh. Saeedul Hassan v. Government of the Punjab through Chief Secretary, Lahore 1994 PLC (C.S.) 113; Lahore High Court, Lahore through Registrar v. Muhammad Jahangir Khan Goraya 1999 SCMR 2117; Shaukat Javed Farooqi v. District .and Sessions Judge, Lahore and another 1999 SCMR 2141; Muhammad Z afar Qureshi. v. Government of the Punjab and 2 others C.P.L.A. No. 1529‑L of 1996; Ch. Muhammad Wakil v. Punjab Subordinate Judiciary Service Tribunal and 2 others C.P.L.A. No. 1170 of 1998; Lahore High Court, Lahore through its Registrar v. K.M. Sohel C.As. Nos .1687 to 1689 of 1999; Ch. Muhammad Hanif v. Lahore High Court, Lahore C. P.L.A. No.2102‑L of 1999; Ghulam Mustafa Shahzad v. Lahore High Court, Lahore through its Registrar C.P.L.A. Nos.2780 to 2782‑L of 2001; Province of the Punjab v. Sardar Noor Ilahi Khan Leghari 1992 SCMR 1427; Khawaja Saeed‑ul‑Hassan v. Government of the Punjab 1994 SCMR 1815; Sirajuddin Qureshi v. Administration Committee of Sindh High Court 1985 PLC (C.S.) 704 and F.Q. Matiullah Khan Alizai v. Chief Secretary, Government of N.‑W.F.P. 1994 SCMR 722 ref.

(g) Mala fides‑‑­

‑‑‑ Allegation of mala fides‑‑‑Onus to prove‑‑‑Such allegation can be easily made than proved‑‑‑Allegation of mala fides requires proof of a high order owing to its serious nature and the burden of proof lies heavily on the person who makes it.

Federation of Pakistan v. Saeed Ahmed Khan PLD 1974 SC 151 rel.

(h) Punjab Subordinate Judiciary Service Tribunals Act (XII of 1991)‑‑‑

‑‑‑‑S. 5‑‑‑Subordinate Judiciary Service Tribunals ‑‑‑Composition‑‑‑Object‑‑­Contention of Judicial Officers was that as the Subordinate Judiciary Service Tribunal consisted of three Judges of the High Court who were junior to the members of Administration Committee of the High Court, therefore, the Subordinate Judiciary Service Tribunal could not interfere with the observations of the Administration Committee‑‑‑Validity‑‑‑Subordinate Judiciary Service Tribunals are established under Punjab Subordinate Judiciary Service Tribunals Act, 1991, which is a manifestation of separation of the Judiciary from the Executive and a symbol of independence of judiciary‑‑‑Mere fact that two appeals before Supreme Court have been filed by High Court through its Registrar against acceptance of the appeals preferred by a Judicial Officer was sufficient for holding that composition of the Tribunal was unexceptionable‑‑‑Contention of the Judicial Officers had no force and was‑illusory.

(i) Punjab Subordinate Judiciary Service Tribunals Act (XII of 1991)‑‑‑

‑‑‑‑S. 5‑‑‑Rejection of representations‑‑‑Scope‑‑‑Where the representations were rejected by the order based on detailed reasons recorded by the sub­committees constituted by the Administration Committee, such rejection could not be called `a simple ritualistic rejection'.

Aslam Warraich and others v. Secretary, Planning and Development Division 1991 SCMR 2330 distinguished.

(j) Punjab Subordinate Judiciary Service Tribunals Act (XII of 1991)‑‑‑

‑‑‑‑1. 5‑‑‑Establishment Manual, Vol. I, Instruction No.2‑‑‑Punjab ESTACODE Vol. I, Instructions No.2 & 65‑‑‑Adverse remarks in Annual Confidential Report‑‑‑Reputation of Judicial Officer‑‑‑Contention of the Judicial Officer was that he had mentioned maintaining a car in his declaration of assets‑‑‑Judicial Officer further contended that the Inspection Judge had recorded the remarks with a delay after his retirement‑‑­Subordinate Judiciary Service Tribunal allowed the appeal of the Judicial Officer and expunged the remarks made by the Inspection Judge‑‑­Validity‑‑‑Adverse remarks were made by the Judge of the High Court/Inspection Judge as Countersigning Officer were inviolable and the judgment of the Service Tribunal was not sustainable‑‑‑Mere fact that the Judicial Officer had mentioned the car being maintained by him in the declaration of assets was not enough for expunction of the remarks‑‑­Allegation of bias made by the Judicial Officer against the Countersigning Officer having not been established was unfounded‑‑‑ Adverse remarks recorded by the Countersigning Officer after his retirement could not be eliminated as Instruction No.65 of Punjab ESTACODE, Vol. I, has provided that the officer proceeding on retirement should be asked to write the requisite Annual Confidential Reports before his retirement‑‑­Such instruction was directory and not mandatory‑‑‑Judgment passed by the Service Tribunal was set aside and appeal by the Judicial Officer was dismissed.

Ch. Fazal Hussain, Malik Muhammad Qayyum, Shakut Ali Mehr, Advocate Supreme Court and M.A. Qureshi, Advocate‑on‑Record (absent) for Appellant (in C.As.8 with Cr.0.49 & 633, 634 and 173 of 2002).

Tatlat Farooq Sheikh, Advocate Supreme Court and Mehmood‑ul­Islam, Advocate‑on‑.Record (absent) for Appellant (in C.A.1447 of 1998).

Malik Muhammad Azam Rasool, Advocate Supreme Court with Rao Muhammad Yousaf Khan, Advocate‑on‑Record for Appellant (in C.As. 1621 and 1622 of 1999).

Ch. Naseer Ahmed Bhutta, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record (absent) for Appellant (in C.As. 336 to, 338 of 2002).

Khawaja Ibrar Majal, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record (absent) for Appellant (in C.As. 1004 and 1005 of 2002). , Malik Muhammad Qayyum, Advocate Supreme Court with Ch. Muhammad Akram, Advocate‑on‑Record for Appellant (in C.As. 1187 and 1188 of 2002).

Sh. Zameer Hussain, Advocate Supreme Court with M.S. Khattak, Advocate‑on‑Record for Appellant (in C.A. 13 of 2000).

Malik Azam Rasool, Advocate Supreme Court with Rao Muhammad Yousaf Khan, Advocate‑on‑Record and Nazar Hussain, Deputy Registrar, Lahore High Court, Lahore for Respondents.

Respondent in person (in C.As. 1621 and 1622 of 1999)

Dates of hearing: 6th, 7th, 8th and 10th October, 2003.

P L D 2004 Supreme Court 219

Present: Mian Muhammad Ajmal, Sardar Muhammad Raza Khan and Karamat Nazir Bhandari, JJ

Hafiz ABDUL WAHEED‑‑‑Appellant

Versus

Mrs. ASMA JEHANGIR and another‑‑‑Respondents

Criminal Appeal No.98 of 1997 and Civil Appeal No.563 of 1997, decided on 19th December, 2003.

(On appeal from the judgment dated 10‑3‑1997 and 24‑9‑1996 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No. 425/H of 1996 and Writ Petition No. 16561 of 1996).

(a) Islamic Law‑‑‑

‑‑‑‑ Marriage-‑‑Leave to appeal was granted by the Supreme Court to examine as to whether consent of "Wali" was essential to the validity of marriage of sui juris Muslim girl‑‑‑Constitution of Pakistan (1973), Art. 185(3).

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

‑‑‑‑Art. 203‑GG ‑‑‑Decision of Federal Shariat Court is required to be followed by a High Court and by all Courts subordinate to a High Court.

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

‑‑‑‑Chap. 3‑A‑‑‑Federal Shariat Court‑‑‑Various jurisdictions of the Court specified.

The Federal Shariat Court is itself the creation of Chapter 3‑A. Article 203D confers, what may be described as original jurisdiction on the Federal Shariat Court. Under this jurisdiction, the Federal Shariat Court, on its own motion or on the petition of any citizen of Pakistan or Federal Government or a Provincial Government, can examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet (p.b.u.h.). Article 203DD empowers the Court to call for and examine the record of any case decided by any criminal Court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness; legality or propriety of any finding, sentence or order recorded or passed by any such criminal Court. Sub‑Article (3) of Article 203DD lays' down that "the Court shall have such other jurisdiction as may be conferred on it by or under any law". It may be noted here, that right of appeal was provided to the Federal Shariat Court by adding second proviso to section 20(1) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter to be referred to as "the Ordinance"), in the year 1980.

Article 203GG says that any decision of the Federal Shariat Court in. the exercise of its jurisdiction under this Chapter will be binding on the High Court. Chapter 3‑A not only establishes Federal Shariat Court but also specifies various jurisdictions of the Court. It is difficult to accept the contention that merely because the appeal against the judgment of the Federal Shariat Court has been provided by second proviso to section 20(1) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979, the criminal appellate jurisdiction cannot be said to be the creation of Chapter 3‑A of the Constitution. Constitution is the fundamental law and all laws derive their validity from the same. While exercising the appellate jurisdiction, conferred by the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 under the enabling provision of Article 203DD (3), the Federal Shariat Court in fact is exercising jurisdiction conferred by sub‑Article (3) of Article 203DD, a part of Chapter 3A.

The Court will lean in favour of harmonious interpretation of the statutes/various provisions and would certainly avoid an interpretation which has the potential of conflicting judgments or pitching one Constitutional Court against another Constitutional Court.

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

‑‑‑‑Art. 203‑DD(3)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.20(1)‑‑‑Right of appeal provided to the Federal Shariat Court under S.20(1), second proviso to the Offence of Zina (Enforcement of Hudood) Ordinance, 1979‑‑‑Nature‑‑‑While exercising the appellate jurisdiction, conferred by the Ordinance under the enabling provision of Art. 203‑DD(3), the Federal Shariat Court in fact exercises jurisdiction conferred by Art. 203‑DD(3), a part of Chap. 3A of the Constitution.

(e) Interpretation of statutes‑‑‑

‑‑‑‑Court will lean in favour of harmonious interpretation of the statutes/various provisions and would certainly avoid an interpretation which has the potential of conflicting judgments or pitching one Constitutional Court against another. Constitutional Court.

(f) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 203GG‑‑‑Expressions "judgment" and "decision" ‑‑‑Meaning‑‑­"Judgment" and "decision" as used in Art. 203‑GG of the Constitution will include the judgment, order or the sentence if any passed by the Federal Shariat Court and all these will remain binding on the High Court and Courts subordinate to the High Court.

Various expressions like judgments, decision, order or sentence have not been, defined in Chapter 3‑A nor in the Constitution. These expressions have, therefore, been used in their dictionary meaning. Particularly the expression "decision" in Article 203GG seems to have been used in z generic sense which may include the judgment i.e. reasons, an order say of confiscation of property, and/or an order of payment of compensation or sentence like that of imprisonment or fine. This view has again the merit of avoiding the potential mischief whereby the High Court ban start scrutiny of the judgments, or orders or sentences imposed by the Federal Shariat Court. Such an ugly situation has to be avoided.

The two words "decision" and "judgment" are almost similar in meaning in the context of the present controversy. The expression "decision" in Article 203GG will include the judgment, order or the sentence if any passed by the Federal Shariat Court and all these will remain binding on the. High Court and Courts subordinate to the High Court.

Black's Law Dictionary, 4th Edn., 1968 ref.

(g) Words and phrases‑‑‑

‑‑‑‑‑‑ Decision" and "judgment" ‑‑‑Meaning.

Black's Law Dictionary, 4th Edn., 1968 quoted.

(h) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 203‑F & 203‑GG ‑‑‑Question of jurisdiction of Federal Shariat Court‑‑‑Constitution provides appeal against the judgment of Federal Shariat Court to the Appellate Bench of the Supreme Court and the question of jurisdiction could have been urged and adjudications sought' initially from the Federal Shariat Court and thereafter in appeal from the Shariat Appellate Bench of the Supreme Court‑‑‑If such course was never followed the result would be that the judgments in question would attain finality‑‑‑Federal Shariat Court being a Constitutional Court, it was undesirable and inappropriate, if note illegal that another Constitutional Court (like High Court) should hold the judgments as without jurisdiction‑‑‑Principles.

The Federal Shariat Court is a Constitutional Court and it is at least undesirable and inappropriate, if not illegal that another Constitutional Court (like High Court) should hold the judgments as without jurisdiction. Even in normal course the point of jurisdiction has to be urged before the same Court and an adjudication obtained. The Constitution provides appeal to the Shariat Appellate Bench of the Supreme Court and the question of jurisdiction could have been urged and adjudication sought 'initially from the Federal Shariat Court and thereafter in appeal from the Shariat Appellate Bench. If this course was never followed the result would be that the judgments in question have attained finality.

It is inappropriate and undesirable that one Constitutional Court should avoid the judgments of another Constitutional Court, in collateral proceedings. The proper course, is to raise the question in accordance with law before the Federal Shariat Court and obtain its adjudication.

(i) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 203‑E(9)‑‑‑Review by the Federal Shariat Court‑‑‑Federal Shariat Court has the power of review under Art.203‑E(9) of the Constitution.

(j) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑‑Art.203‑B(c)‑‑‑Expression "Muslim Personal Law" has been used in Art.203‑B(c) of the Constitution in the sense of statutory law applicable to the Muslims only as compared to other religions communities inhabiting Pakistan‑‑‑" Muslim Personal Law" cannot be examined by the Federal Shariat Court as Muslim Personal Law as used in Art.203‑B(c) means statutory law of Muslims and it is personal law of a particular sect‑‑‑If such two conditions are not present, the matter can be examined by the Federal Shariat Court‑‑‑Where the matter before the Federal Shariat Court was as to whether the consent of "Wali" was necessary in case of marriage of a sui juris Muslim girl, the first of the conditions of ouster of jurisdiction of Federal Shariat Court being not present in the matter, declaration of the Federal Shariat Court in the matter was clearly within the exclusive power and jurisdiction of the Federal Shariat Court and was binding on the High Court.

The expression "Muslim Personal Law" has been used in the sense of statutory law applicable to the Muslims only as compared to other religious communities inhabiting in Pakistan.

Muslim Personal Law cannot be examined by the Federal Shariat Court and Muslim Personal Law in Article 203B(c) means (i) statutory law of Muslims and (ii) it is personal law of a particular sect. If these two conditions are not present, the matter can be examined by the Federal Shariat Court.

In the present case, it is not the case of the appellant that any codified or statutory law provides that the consent of `Wali' is necessary or not necessary in the case of marriage of sui juris Muslim girl. The 1st of the conditions of ouster is not present. Therefore, such a declaration is clearly within the exclusive power and jurisdiction of the Federal Shariat Court. The contention that the judgments, in question being void were not binding on the High Court was repelled.

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

‑‑‑‑S. 5 & Sched.‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Question of validity of a marriage falling within the exclusive domain of the Family Court established under the West Pakistan Family Courts Act; 1964, High Court could and ought to have avoided the needless controversy on the subject.

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

‑‑‑‑S.491‑‑‑Habeas corpus petition‑‑‑Inappropriate and undesirable, if not illegal for the High Court to have determined the validity of marriage on the touchstone of Injunctions of Islam, in proceedings under S.491, Cr.P.C.

(m) Administration of justice‑‑‑

‑‑-‑Judge of the High Court assuming to himself the adjudication of a question already being considered by the Full Bench of the same Court‑‑­Normal and appropriate course was to either wait for the decision of the Full Bench or to have clubbed the cases with the cases under consideration of the Full Bench which was not done in spite of repeated requests for the said course by the counsel‑‑‑Effect‑‑‑Out of the way and abnormal course adopted by the Judge of the High Court had raised misgivings which could have been avoided in the larger ‑.interest of fairness and impartiality of the judiciary.

(n) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.185‑‑‑Appeal to Supreme Court‑‑‑Subject of the appeal falling to be determined by the Federal Shariat Court, Supreme Court declined to examine the argument in detail.

(o) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 185‑‑‑Appeal to Supreme Court‑‑‑No desirable exercise to collaterally impeach the judgments of a Constitutional Court which had in any case attained finality.

(p) Islamic Law‑‑‑

‑‑‑‑Marriage‑‑‑Validity‑‑Consent of "Wali" is `not required and a sui juris Muslim female can enter into valid Nikah/marriage of her own free will‑‑‑Marriage is not invalid on account of the alleged absence of consent of Wali‑‑‑Muhammad Imtiaz and another v. The State PLD 1981 FSC 308; Arif Hussian and another v. The State PLD 1982 FSC 42; Muhammad Ramzan v. The Slate PLD 1984 FSC 93; Muhammad Yaqoob and another v. The State and 3 others 1985 PCr.LJ 1064; Mauj Ali v. Syed Safdar Hussain Shah and another 1970 SCMR 437, held, binding on the High Court and Courts subordinate to the High Court.

Muhammad Imtiaz and another v. The State PLD 1981 FSC 308; Arif Hussian and another v. The State PLD 1982 FSC 42; Muhammad Ramzan v. The State PLD 1984 FSC 93; Muhammad Yaqoob and another v. The State and 3 others 1985 PCr.LJ 1064; Mauj Ali v. Syed Safdar Hussain Shah and another 1970 SCMR 437; Zahur Textile Mills Ltd. v. Federation of Pakistan and others PLD 1999 SC 880; Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others PLD 1992 SC 595; Ghulam Muhammad alias Gaman v. The State PLD 1981 FSC 120; Black's Law Dictionary, Revised 4th Edn., 1968; Dr. Mahmood‑ur‑Rahman Faisal v. Government of Pakistan through Secretary, Ministry of Justice, Law Parliamentary Affairs, Islamabad PLD ,1994 SC 607 and Federation of Pakistan v. Mst. Farishta PLD 1981 SC 120 ref.

Syed Riazul Hassan Gillani, Advocate Supreme Court, Muhammad Akram Sheikh, Senior Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record (absent) (in Criminal Appeal No.98 of 1997).

Syed Iqbal Haider, Senior Advocate Supreme Court with Ch. Akhtar Ali, Advocate‑on‑Record for Respondent No.1 (in Criminal Appeal No.98 of 1997).

Syed Hamid Ali Shah, Advocate Supreme Court with Mehr Khan Malik, Advocate‑on‑Record for Respondent No.2 (in Criminal Appeal No.98.of 1997).

Makhdoom Ali Khan, Attorney‑General for Pakistan assisted by Khurram Hashmi (on Court's Notice) (in Criminal Appeal No.98 of 1997).

Ms. Asma Jehangir, Advocate Supreme Court and Naeemul Hassan Shirazi, Advocate Supreme Court with Ch. Akhter Ali, Advocate‑on‑Record for Appellant (in Civil Appeal No.563 of 1997).

Respondent No. 2 in person for Respondent No.4 (in Civil Appeal No.563 of 1997).

Mst. Shahbina Zafar (in person) (in Civil Appeal No.563 of 1997).

M. Shabbar Raza Rizvi, A.‑G. for the State (in Civil Appeal No.563 of 1997).

Makhdoom Ali Khan, Attorney‑General for Pakistan assisted by Khurram Hashmi (on Court's Notice) (in Civil Appeal No.563 of 1997).

Date of hearing: 1st December, 2003.

P L D 2004 Supreme Court 237

Present: Javed Iqbal and Khalil‑ur‑Rehman Ramday, JJ

YOUNAS KHAN and others‑‑‑Petitioners

Versus

Haji AJAB KHAN and others‑‑‑Respondents

Civil Petition No.341‑P of 2001, decided on 22nd October, 2003.

(On appeal from the judgment dated 14‑6‑2001 of Peshawar High Court, Peshawar passed in Writ Petition No. 117 of 1996).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 12(2)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Setting aside of decree on the plea of fraud and misrepresentation‑‑‑Concurrent findings of fact by the Courts below‑‑‑Dismissal of application under S.12(2), C.P.C. after framing of issues‑‑‑Owners of the suit‑property who, according to the petitioner, was victim of fraud had never voiced his grievance before any forum during his entire life regarding transfer of suit‑land‑‑‑Petitioner had also kept quiet for two years after the death of the owner of the suit property and subsequently made a futile attempt to frustrate the judgment and decree passed by the Court concerned‑‑-Besides that the property in question had changed different hands during the lifetime of the owner‑‑‑Effect‑‑‑All the Courts below had rightly dismissed the application under S.12(2), C.P.C. being frivolous and vexatious‑‑Such was neither a case of misreading of evidence nor non-­reading of evidence but on the contrary the controversy had been set at naught by the Trial and Appellate Courts in accordance with law, findings whereof were affirmed by the High Court which could not be reversed without any, justification which was lacking in the case‑‑­Concurrent order of the three Courts below dismissing application under S.12(2), C.P.C. was not open to interference by Supreme Court‑‑­Conclusion as arrived at by the Trial Court, upheld by the Appellate Court and affirmed by High Court being well‑based did not warrant any interference‑‑‑Leave to appeal was refused.

Majroza v. Said Akbar 1994 SCMR 679; Home Comforts v. Rashid Baig 1992 SCMR 1290; Asmatullah Khan v. Jhangi Khan 1995 SCMR 207 and Yaqub Masih Jacob v. Louisa De Souza 1992 SCMR 1799 ref.

Saeed Baig, Advocate Supreme Court and M. Ismail Fahim, Advocate‑on‑Record (absent) for Petitioners.

Nemo for Respondents.

Date of hearing: 22nd October, 2003.

P L D 2004 Supreme Court 240

Present: Munir A. Sheikh, Iftikhar Muhammad Chaudhary Rana Bhagwandas, JJ

UNITED BANK LIMITED‑‑‑Appellant

Versus

C.M. SARWAR, ADVOCATE and others‑‑‑Respondents

Civil Appeal No. 1454 of 1995, decided on 2nd December, 2003.

(On appeal from order of Lahore High Court, Lahore dated 13th July, 1995 passed in C. M. No. 1/C of 1995 in F. A. O. No. 189 of 1994).

High Court (Lahore) Rules and Orders‑‑‑

‑‑‑‑Vol. I, Chap.12‑L, Rr.21 & 22‑‑‑Government commissions and charges of Court Auctioneers‑‑‑Dismissal of execution petition‑‑­Entitlement of Court Auctioneers to receive commission or actual expenses‑‑‑Plea raised by the decree‑holder was that as the execution petition was dismissed, therefore, he was not entitled to pay any expenses to Court Auctioneers as directed by the High Court‑‑­Validity‑‑‑Amount of commission was to be determined under Vol. I, Chap. 12‑L, R.21 of High Court (Lahore) Rules and Orders, according to specific rates qua sale proceeds of the property of the judgment‑debtors and 80% was to be paid to the Court Auctioneers and 20% was to be deposited in the Government Treasury as Government commission‑‑‑In case the auction was conducted by Nazir of the Court, no amount as commission was to be paid to Nazir and whole of the amount of commission was to go to the Government Treasury‑‑‑Amount of commission was to be paid under Vol. 1, Chap. 12‑L, Rr.22, Cls. (i) to (iii) of High Court (Lahore) Rules and Orders, by the party for whose benefit the auction was set aside‑‑‑If the auction was set aside on the ground that the Court Auctioneers had not conducted auction proceedings in accordance with law or had committed irregularity in conducting the same, no commission was to be paid to them‑‑‑Such stage did not reach in the present case because before confirmation of the sale by Executing Court, execution petition was dismissed as barred by time, therefore, commission had not become due as such it could not be recovered as sale proceeds were not paid to the decree‑holder‑‑‑Directions by the High Court through the order for payment of commission to the Court Auctioneers by the decree‑holder was not sustainable and the same was set aside‑‑‑Appeal was allowed.

M. Saleem Sahgal, Advocate Supreme Court for Appellant.

Respondent No. 1 (in person).

Nemo for Respondent No.2.

Respondents Nos. 3 to 10 Ex parte.

Date of hearing: 2nd December, 2003.

P L D 2004 Supreme Court 244

Present: Mian Muhammad Ajmal, Sardar Muhammad Raza Khan and Karamat Nazir Bhandari, JJ

MUHAMMAD IKRAM BUTT and others‑‑‑Appellants

Versus

SAJJAD HUSSAIN and others‑‑‑Respondents

Criminal Appeals Nos. 333 and 334 of 1995, decided on 19th December, 2003.

(On appeal from the judgment dated 23‑11‑1994 passed by the Lahore High Court, Lahore in Criminal Appeal No.93 of 1991 alongwith Murder Reference No.393 of 1991).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 304, Part I & 302/34‑‑‑Appraisal of evidence‑‑‑Ocular testimony of three eye‑witnesses emanating from unimpeachable source was worthy of straightaway acceptance without any corroboration, though ample corroboration was available in the case‑‑‑No ill‑will existed between the parties‑‑‑Accused had not taken any plea at all in their statements under S.342, Cr.P.C. either of right of self‑defence or of grave and sudden provocation‑Defence version that the two deceased had first resorted to firing seemed to be a concocted one and subsequently tailored‑‑‑Accused had failed to prove their plea whereas prosecution had independently proved its case against them beyond any shadow of doubt‑‑‑Said plea of accused was not even inferable from the evidence led by the prosecution‑‑‑Neither the accused were entitled to the concession of having acted in exercise of right of private defence nor under grave and sudden provocation‑‑‑High Court's judgment giving such benefit to the accused was artificial and perverse‑‑‑Conviction recorded by the High Court under S.304, Part I, P.P.C. was consequently set aside and that recorded by the trial Court under S.302/34, P.P.C. alongwith the sentences of death awarded to accused was restored in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34 & 304, Part I‑‑‑Appreciation of evidence‑‑‑Defence plea‑‑­Not at all necessary for the accused to raise a plea relating to the exceptions involved in a trial‑‑‑Any such benefit can be extended to the accused by the Court itself provided such plea is identifiable from record and the prosecution evidence.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Principles‑‑‑Accused cannot be held guilty merely because his plea in defence has failed where the prosecution has itself failed to prove its case beyond doubt.

Noorul Haq v. The State 1992 SCMR 1451 ref.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Self‑defence, exercise of‑‑‑Once the apprehended danger is over, the accused is not supposed to take the life of some one, rather two lives by chasing them in escape during which no act was repeated by the deceased.

Abdul Rashid alias Sheda Mota v. The State 2003 SCMR 799 ref.

M. Bilal, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record (absent) for Appellants (in Criminal Appeal No.333 of 1995).

M. Ilyas Siddiqui, Advocate Supreme Court for Respondents Nos. 1 to 3 (in Criminal Appeal No.333 of 1995).

Ms. Afshan Ghazanfar, A.A.-G. for the State (in Criminal Appeal No.333 of 1995).

M. Ilyas Siddiqui, Advocate Supreme Court and Rana Maqbool Ahmad Qadri, Advocate‑on‑Record (absent) for Appellants (in Criminal Appeal No.334 of 1995).

Afshan Ghazanfar, A.A.‑G. with Rao Muhammad Yousaf Khan, Advocate‑on‑Record for the State (in Criminal Appeal No.334 of 1995).

Date of hearing: 28th October, 2003.

P L D 2004 Supreme Court 250

Present: Nazim Hussain Siddiqui, Javed Iqbal and Falak Sher, JJ

FAZAL REHMAN and others‑‑‑Petitioners

Versus

THE STATE and others‑‑‑Respondents

Criminal Petition No. 138‑P of 2002, decided on 27th October, 2003.

(On appeal from the judgment/order dated 28‑11‑2002 of the Peshawar High Court, Peshawar, passed in Criminal Appeal No.193 of 2002).

(a) Confession‑--

‑‑‑‑ Admissibility, evidentiary value, validity etc. of the confession‑‑­Guidelines stated.

Following is the judicial consensus on the subject:‑‑

(a) Retracted confessions, whether judicial or extra‑judicial could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary then there was no need at all to look for further corroboration. As against the maker himself, his confession, judicial or extra‑judicial whether retracted or not retracted can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement. The question, however, as to whether in the facts and circumstances of a given case the Court should act upon such a confession alone is an entirely different question, which relates to the weight and evidentiary value of the confession and not to its admissibility in law.

(b) The retracted confession unless it is corroborated in material particulars, it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of the Court that is called upon to act upon a retraced confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true.

(c) The retraction of a confession is a circumstance which has no bearing whatsoever upon the questions whether in the first instance it was voluntarily made, and on the further question whether it is true. The fact that the maker of the confession later does not adhere to it cannot by itself have any effect upon the findings reached as to whether confession voluntary, and if so, whether it was true, for to withdraw from a self-applicable fully by the proximity of those consequences, and need have no connection whatsoever with either its voluntary nature, or the truth of the facts stated.

(d) For the purpose of arriving at the conclusion whether a retracted confession may form the basis of conviction if believed to be true and voluntarily made, the Court has to take into consideration not only the reasons given for making the confession or retracting but the attending facts and circumstances surrounding the same. There can be no absolute rule that a retracted confession cannot be acted upon unless the same is corroborated materially. But as a matter of prudence and caution which has sanctified itself into a rule of law, a retracted confession cannot be made solely the basis of conviction unless the same is corroborated. This, however, does not necessarily mean that each and every circumstance mentioned in the confession regarding the complicity of the accused must be separately and independently corroborated nor is it essential that the corroboration must come from facts and circumstances discovered after the confession was made.

(e) The inculpatory part of a confession can be accepted and exculpatory part rejected if there is corroborative evidence to support the inculpatory part. Similarly where there is evidence upon the record to show that the exculpatory part is false, the Court can ignore the exculpatory part and convict the accused on the basis of the inculpatory portion of the confession.

(f) The confession of an accused person is substantive evidence and a conviction can be based solely on the confession. The question, however as to whether on the facts and circumstances of a given case the Court should act upon such a confession alone is an entirely different question, which relates to the weight and evidentiary value of the confession. Normally speaking it would not be quite safe, as a matter of prudence if not of law, to base a conviction for murder on the confession of the alleged murderer, by itself and without more, when the confession is open to good deal of criticism.

(g) Corroboration of confession can be furnished by a piece of evidence only when it renders inculpatory part of confession more probable.

(h) The Court can base conviction solely on confession or on statement of accused yet could not reject part of confession or statement going against prosecution case.

(i) It is bounden duty of the prosecution to prove that the confessional statement is voluntary in order to use as evidence.

(j) Retracted confession can be taken into consideration provided it is fully corroborated by authentic evidence as regards factum of crime and accused's connection with that crime.

(k) Retracted confession should be accepted only if it is corroborated by clear cogent and independent evidence. Although there is no such provision to accept retracted confession on this basis, this is a rule of prudence in the administration of criminal justice which has been followed by all the jurists and authorities. The Court ought to examine whether a confession is made voluntarily, free from coercion and torture and also examine the circumstances under which it was made and retracted. However, if the reasons given for retracting is probably false, absurd and incorrect the Court can accept such confession without corroboration. But for the safe administration of justice it will be proper, though not necessary to seek some corroboration for retracted confession. The corroboration of such confession should be of material particulars connecting the accused with the offence.

(l) The Court before convicting an accused person solely on the basis of his retracted confession must satisfy itself that it is voluntary and true and is corroborated by some independent direct or circumstantial evidence, to ensure safe administration of justice.

(m) A retracted confession is sufficient to make the basis of recording a conviction, but Court as a rule of procedure seeks corroboration of the same on all material particulars.

(n) No legal bar exists for recording, a conviction on a confession which is subsequently retracted if it is voluntary and true. No infirmity having been found in confessional statement of accused to render it unacceptable, and accused having told truth, he was rightly found guilty.

(o) The genuineness, authenticity and truthfulness of the recording confessional statement becomes above board when it is proved by the Magistrate recording the same.

(p) The judicial confessions if ring true and are voluntary can be made the sole basis for the conviction of the makers thereof. However, if the same are retracted, even then its evidentiary value is not diminished if the same gets corroboration from other facts and circumstances of the case. In other words in such eventuality independent corroboration from other evidence, direct and circumstantial, is essential.

(q) That any‑lapse on the administrative side on the part of a Magistrate recording a confession, may not be fatal as to the evidentiary value of such confession provided the Court is satisfied that the lapses on his part have not, in any way, adversely affected the voluntariness or truthfulness of the confession.

(r) In order to judge the evidentiary value of a retracted confession, the Court is to advert to the question, whether the same appears to have been made voluntarily, without any inducement, duress or coercion with the object to state the truth. If the Court is satisfied on the above aspect, the mere fact that there were some irregularities in recording of a confession, would not warrant disregarding of the same.

Javaid Masih v. The State 1993 SCMR 1574; Muhammad Amin v. The State PLD 1990 SC 484; Muhammad Akram v. The State 1995 SCMR 1359; Muhammad Yaqoob v. The State 1992 SCMR 1983; Bhuboni Sahu v. The King PLD 1949 PC 90; Nadir Hussain v. The Crown 1969 SCMR 442; Rasool Bux v. The State 1974 PCr.LJ 325; Wali Muhammad v. The State 1986 PCr.LJ 1153; Syed Sharifuddin Pirzada v. Sohbat Khan PLD 1972 SC 363; Zulfikar Ali Bhutto v. The State PLD 1979 SC 53; Muhammad Gul v. The State 1991 SCMR 942; Aiabistan v. The State 1992 SCMR 754; Habibullah v. The State 1971 SCMR 341; Inayat Masih v. The State 1980 SCMR 937; Bahadur Khan v. The State PLD 1995 SC 336; Muhammad Yousaf v. The State 1995 SCMR 351; Najib Raza Rehmani v. The State PLD 1978 SC 200; The State v. Minhun PLD 1964 SC 813; Joygun Bibi v. The State PLD 1960 SC (Pak.) 313; Wazir Khan v. The State 1989 SCMR 446; Karam Ali v. State 1968 SCMR 1025; Abdur Rashid v. Umid Ali PLD 1975 SC 227; Naqibullah v. The State PLD 1978 SC 21; Kamir v. Nazir Ahmad 1980 SCMR 791; Muhammad v. The State PLD 1981 SC 635; Varand v. Emperor AIR 1944 Sind 137; Sultana alias Sullah v. Emperor AIR 1945 Lah. 91; State v. Balchand AIR 1960 Raj. 101; Ram Chandra v. U.P. State AIR 1957 SC 381; Krishna Nandan v. The State AIR 1958 Pat. 166; Emperor v. Lal Bakhsh AIR 1945 Lah. 43; Subrmania Goundan v. The State of Madras PLD 1958 SC (Ind.) 254; Hanumant Govind Nargundla v. State of Madhya Pradesh AIR 1952 SC 343 and Bakhshan v. Emperor All 1936 Lah. 247 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑­Confessional statements of the accused were recorded after completion of all the mandatory legal requirements which did not suffer from any illegality or infirmity‑‑‑Retracted confessions of accused were voluntary and true and had been recorded with promptitude without any inordinate delay‑‑‑Recovery of dead bodies of the deceased at the instance of accused, recovery of blood‑stained daggers from them, medical evidence and the motive had duly corroborated the confession's made by them which had been rightly relied upon by the Courts below‑‑‑No mitigating circumstance was available in favour of accused who had committed the murder of two persons in a callous and brutal manner and they did not deserve any leniency‑‑‑Leave to appeal was refused to accused in circumstances.

Javaid Masih v. The State 1993. SCMR 1574; Muhammad Amin v. The State PLD 1990 SC 484; Muhammad Akram v. The State 1995 SCMR 1359; Muhammad Yaqoob v. The State 1992 SCMR 1983; Bhuboni Sahu v. The King PLD 1949 PC 90; Nadir Hussain v. The Crown 1969 SCMR 442; Rasool Bux v. The State 1974 PCr.LJ 325; Wali Muhammad v. The State 1986 PCr.LJ 1153; Syed Shjarifuddin Pirzada v. Sohbat Khan PLD 1972 SC 363; Zulfikar Ali Bhutto v. The State PLD 1979 SC 53; Muhammad Gul v. The State 1991 SCMR 942; Arabistan v. The State 1992 SCMR 754; Habibullsh v. The State 1971 SCMR 341; Inayat Masih v. The State 1980 SCMR 937; Bahadur Khan v. The State PLD 1995 SC 336, Muhammad Yousaf v. The State 1995 SCMR 351; Najib Raza Rehmani v. The State PLD 1978 SC 200; The State v. Minhun PLD 1964 SC 813; Joygun Bibi v. The State PLD 1960 SC (Pak.) 313; Wazir Khan v. The State 1989 SCMR 446; Karam Ali v. State 1968 SCMR 1025; Abdur Rashid v. Umid Ali PLD 1975 SC 227; Naqibullah v. The State PLD 1978 SC 21; Kamir v. Nazir Ahmad 1980 SCMR 791; Muhammad v. The State PLD 1981 SC 635; Varand v. Emperor AIR 1944 Sind 137; Sultan alias Sullah v. Emperor AIR 1945 Lah. 91; State v. Balchand AIR 1960 Raj. .101; Ram Chandra v. U.P. State AIR 1957 SC 381; Krishna Nandan v. The State AIR 1958 Pat. 166; Emperor v. Lal Bakhsh AIR 1945 Lah. 43; Subrmania Goundan v The State of Madras YLD 1958 SC (Ind.) 254; Hanumant Govind Nargundla v. State of Madhya Pradesh AIR 1952 SC 343; Bakhshan v. Emperor AIR 1936 Lah. 247; Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452; Wazir Ali v. The State 1999 SCMR 1469; Muhammad Afzal v. Ghulam Asghar PLD 2000 SC 12; Sakhawat v. The State 2001 SCMR 244 and Ijaz v. The State 2002 SCMR 294 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence ‑‑‑Corroboration‑‑­Corroboration is not a rule of law, but usually it is followed in the interest of justice and by way of abundant caution.

Asdullah Khan Chamkani, Advocate Supreme Court and Tasleem Hussain, Advocate‑on‑Record (absent) for Petitioners.

Nemo for Respondents.

Date of hearing: 27th October, 2003.

P L D 2004 Supreme Court 261

Present: Hamid Ali Mirza and Faqir Muhammad Khokhar, JJ

SAGHIR AHMED through Legal Heirs‑‑‑Petitioner

Versus

PROVINCE OF PUNJAB through Secretary, Housing and Physical Planning Lahore and others‑‑‑Respondents

Civil Petition No.272 of 2002, decided on 11th November, 2003.

(On appeal from judgment dated 12‑12‑2001 of the Lahore High Court, Rawalpindi Bench, passed in Civil Revision No.224 of 1993).

(a) Punjab Acquisition of Land (Housing) Act (VIII of 1973)‑‑‑

‑‑‑‑S.3‑‑‑Word "notified"‑‑‑Scope‑‑‑Meaning‑‑‑Applicability‑‑‑After a housing scheme has been approved and notified by the Government, there is no specific stipulation of publication of such an approval in the official Gazette‑‑‑Word "notified" used in S.3 of Punjab Acquisition of Land (Housing) Act, 1973, does not always mean publication of a notification in the official Gazette as a mandatory condition.

(b) Interpretation of statutes‑‑‑

‑‑‑‑ Word having not been defined in the Act is to be construed in its ordinary sense and not as a term of art.

(c) Words and phrases‑‑‑

----"Notify"'‑‑‑‑Meaning.

Karachi Metropolitan Corporation, Karachi v. Messrs S.N.H. Industries (Pvt.) Ltd. 1997 SCMR 1228; Shorter Oxford Dictionary and Words arid Phrases. Permanent Edn., Vol. 28‑A, p.568 ref.

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 129(e)-‑‑Official acts‑‑‑Presumption‑‑‑Acts performed by public Authorities deserve due regard by the Courts and every possible explanation for their validity should be explored and the whole gamut of powers in pursuance of which they act or perform their functions and discharge, their duties should be examined‑‑‑Presumption of regularity is attached to the official acts.

Federation of Pakistan through Secretary, Law Justice and Parliamentary. Affairs and others v. Aftab Ahmed Khan Sherpao and others PLD 1992 SC 723; Government of Sindh through Chief Secretary and others v. Khalil Ahmed and others 1994 SCMR 782; Syed Muhammad Khurshid Abbas Gardezi and others v. Multan Development Authority and others PLD 1983 SC 151; Lahore Improvement Trust v. Custodian, Evacuee Property PLD 1971 SC 811; Chairman, East Pakistan Railway Board, Chittagong and another v. Abdul Majid Sardar, Ticket Collector PLD 1966 SC 725 and Federation of Pakistan and others v. Ch. Muhammad Aslam and others 1986 SCMR 916 ref.

(e) Interpretation of statutes‑‑

----Departmental construction of a statute, although not binding on the Court, can be taken into consideration.

Nazir Ahmad v. Pakistan and 11 others PLD 1970 SC 453; United Netherlands Navigation Co. Ltd. v. Commissioner of Income Tax, South Zone (West Pakistan), Karachi PLD 1965 SC 412 and Crawford's Statutory Construction, 1940 Edn., S.221, p.399 ref.

(f) Interpretation of statutes‑‑

‑‑‑‑ Nature of a provision, mandatory or directory‑‑‑Determination---Criterion‑‑‑Principles‑‑‑It depends on language in a particular statute as to whether the provisions regarding publication of a statutory instrument or a notification in the official Gazette are to be treated as mandatory or directory.

(g) Punjab Acquisition of Land (Housing) Act (VIII of 1973)‑‑‑

‑‑‑‑S. 3‑‑‑Specific Relief Act (I of 1877), Ss. 42 & 54‑‑‑Acquisition proceedings‑‑‑Approval of housing scheme‑‑‑Notification in official Gazette, non‑publication of‑‑‑Effect‑‑‑Landowners assailed notification under S.3 of Punjab Acquisition of Land (Housing) Act, 1973, regarding acquisition of land for housing scheme on the ground that the same was not published in the official Gazette‑‑‑Trial Court decreed the suit in favour of the landowners‑‑‑Appellate Court allowed the appeal and the suit was dismissed‑‑Judgment and decree passed by Appellate Court was maintained by High Court in exercise of revisional jurisdiction‑‑‑Plea raised by the landowners was that the publication of notification for approval of housing scheme in official Gazette was a mandatory requirement under S.3 of Punjab Acquisition of Land (Housing) Act, 1973‑‑‑Validity‑‑‑Manner or mode of notifying the notification under S.3 of Punjab Acquisition of Land (Housing) Act, 1973, was a matter of procedural formality and no consequences were provided for failure of strict compliance thereof‑‑‑Mere non‑publication of a notification under S.3 of Punjab Acquisition of Land (Housing) Act, 1973, in official Gazette would not affect its validity‑‑‑Purpose of publication in ordinary sense was practically served almost contemporaneously when the acquisition took place and in fact it was more substantial publication insofar as the owners were concerned than if it would have been in the official Gazette‑‑‑Mere fact that publication in the Gazette was delayed, would not invalidate the notification‑‑‑Publication of notification of approval of Housing Scheme by Provincial Government under S.3 of Act, 1973, was not a sine qua non legal validity, efficacy and its non‑publication was of no consequence‑‑‑Neither any prejudice was caused to the landowners nor legal rights were affected in any way by mere non of approval of the Housing Scheme in the official Court declined to interfere with the judgment passed by the Courts below‑‑‑Leave to appeal was refused.

Muhammad Siddique v. Market Committee, Tandlianwala 1983 SCMR 785; Manzur‑ul‑Haq v. Controlling Authority, Local Councils, Montgomery and others PLD 1963 SC 652; Chief Commissioner, Karachi v. Jamil Ahmed and another PLD 1961 SC 145; Regina v. Sheer Metalcraft Ld. and another (1954) 1 QB 586 and Province of East Pakistan v. Maj. Nawab Khawaja Hasan Askary and others PLD 1971 SC 82 ref.

(h) Punjab Acquisition of Land (Housing) Act (VIII of 1973)‑‑‑

‑‑‑‑S. 4‑‑‑Acquisition proceedings‑‑‑Publication of notification in official Gazette‑‑‑Requirement‑‑‑Publication of notification under S.4 of Punjab Acquisition of Land (Housing) Act, 1973, in official Gazette has been made necessary as the rights and interest of the landowners are likely to be adversely affected by the acquisition proceedings.

(i) Notification‑‑‑

‑‑‑‑ Publication of notification‑‑Necessity‑‑‑Principles‑‑‑Provisions of a statute for the publication of a notification in official Gazette are generally regarded as directory where their strict non‑compliance does not provide any consequences‑‑‑Legal certainty also requires that ordinarily a statutory instruments should not be treated as invalid because of a failure on the part of public functionaries to publish it in the official Gazette‑‑‑There may be many things done on the basis of such an instrument‑‑‑Would be unfortunate where the things so done were held to be invalid if it was at some stage discovered that there had been failure by a public Authority to go meticulously by the manner and mode of publication of an instrument or notification in official Gazette--‑No hard and fast rule of universal application can be laid down on the legal effect of non‑publication of a notification in the official Gazette in certain cases, keeping in view the nature and object of a particular statute and to carry out the legislative intent, the provision for the publication of a notification in the official Gazette can be treated to be mandatory in nature where rights or liabilities of other persons are involved.

Multiline Associates, v. Ardeshir Cowasjee and 2 others. PLD 1995 SC 423; Pakistan through Secretary, Ministry of Defence and others v. Late Ch. Muhammad Ahsan 1991 SCMR 2180; Province of East Pakistan v. Maj. Nawab Khawaja Hasan Askary and others PLD 1971 SC 82; Muhammad Ishaq v. Chief Administrator of Auqaf, Punjab PLD 1977 SC 639; Mahandra Lal Jaini v. State of Uttar Pradesh AIR 1963 SC 1019 and Narinderjit Singh v. State of Uttar Pradesh AIR 1973 SC 552 ref.

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

‑‑‑‑S. 20‑A [as inserted by General Clauses (Amendment) Ordinance (XXXIII of 2002)]‑‑‑Publication of rules, orders, regulations and circulars‑‑‑Effect‑‑‑All rules, orders, regulations and circulars having the effect of law made or issued under any enactment are published under S.20‑A of General Clauses Act, 1897, by the Federal Government in official Gazette‑‑‑Provincial Governments are expected to follow suit so as to inspire public confidence in the policy decisions and to promote the system of good governance and transparency.

Muhammad Munir Peracha, Advocate Supreme Court for Petitioners.

Ms. Afshan Ghazanfar, Asstt. A.‑G., Punjab for Respondents.

Date of hearing: 11th November, 2003.

P L D 2004 Supreme Court 271

Present: Javed Iqbal, Sardar Muhammad Raza Khan and Karamat Nazir Bhandari, JJ

Brig. MUHAMMAD BASHIR‑‑‑Appellant

Versus

ABDUL KARIM and others‑‑‑Respondents

Civil Appeal No.30 of 1999, decided on 24th September, 2003.

(On appeal from the judgment/order dated 23‑9‑1997 of the Lahore High Court, Bahawalpur Bench, passed in W.P.No.4050 of 1996/BWP).

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

‑‑‑‑S. 10‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Contentions of petitioner were that, lease of respondents, which was of temporary nature being valid for ten years only, had already expired in the year 1979 and it was long after that when the land was allotted to the petitioner‑‑‑Authorities had not opposed the petition‑‑‑Leave to appeal, was granted by Supreme Court to examine the contentions raised by the petitioner.

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

‑‑‑‑S. 10‑‑‑Notification No.3369/67‑198‑C.1.1. dated 7‑2‑1968—­Allocation allotment or lease of available State land to Armed Forces‑‑­Score‑‑‑Restriction has been imposed on allocation, allotment or leasing of available State land to Armed Forces by incorporating para. 8 to Notification No.3369/67‑198‑C.1.1, dated 7‑2‑1968, concerning ineligibility and para. 10 of the notification dated 12‑2‑1969 further removes doubt, if any by clarifying that no such land can be allotted to arty person who is in the service of Central/Provincial Government/any Development Authority/a Semi‑Government. Institution/Local Body.

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

---‑Ss. 10 & 24‑‑‑Notification No.3369/67‑198‑C.1.1, dated 7‑2‑1968‑‑­Allotment of land to army officer‑‑‑State land, availability of‑‑Notification for allotment of disputed land was issued in favour of appellant who was an army officer while the land had already been allotted to the respondents‑‑‑High Court in exercise of Constitutional jurisdiction set aside the notification issued in favour of the appellant on the ground that the land was not available for allotment as the same had already been allotted to the respondent‑‑‑Validity‑‑‑Land which was already leased out after completion of all mandatory formalities as enumerated in the Notification. No.3369/67‑198‑C.1.1., dated 7‑2‑1968, could not have been declared as "land available", hence the question of its further allotment without getting the same cancelled could not arise‑‑­Respondents were admittedly landless tenants to whom land was leased out in accordance with the then prevalent policy and physical possession was also handed over to them which could not have been cancelled by one stroke of pen without affording them proper opportunity of hearing as envisaged in para. 23 of Notification No.3369/67‑198‑C.1.1., dated 7‑2‑1968‑‑‑Issuance of notification of allotment in favour of the appellant was in violation of the principles of natural justice, fairplay and equity‑‑­Judgment of High Court being well based and unexceptionable did not warrant interference‑‑‑Appeal was dismissed.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court, exercise of‑‑­Principles, object and scope‑‑‑Article 199 of the Constitution casts an obligation on High Court to act in aid of law, protect the rights of citizens Within the framework of the Constitution against infringement of law and Constitution by the Executive Authorities, strike a rational compromise and a fair balance between the rights of citizens and actions of State functionaries, claimed to be in the larger interest of Society‑‑­Such power is conferred on High Court under the Constitution and is to be exercised subject to Constitutional limitations‑‑‑Provision of Art.199 of the Constitution is intended to enable High Court to control executive so as to bring it in conformity with the law‑‑‑Whenever the executive acts in violation of law, an appropriate order can be granted which can relieve the citizen of the effects of illegal action‑‑‑Relief can be granted to the citizens of the country under Art.199 of the Constitution, against infringement of any provisions of law or of the Constitution as it is an omnibus Article‑‑‑If the citizens of the country are deprived of the guarantee given to them under the Constitution, illegally or not in accordance with law, then provision of Art.199 of the Constitution can always be invoked for redress‑‑‑Paramount consideration in exercise of Constitutional jurisdiction is to foster justice and right a wrong‑‑‑So long as statutory bodies and Executive Authorities act without fraud and bona fides within the powers conferred on them by the statute, the judiciary cannot interfere with them‑‑‑Ample power is vested in High Court to issue directions to an Executive Authority when such an Authority is not exercising, its power bona fide for the purpose contemplated by the law or is influenced by extraneous and irrelevant considerations‑‑‑Where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, High Court in exercise of its Constitutional jurisdiction has ample power to grant relief to the aggrieved party.

Ghulam Mustafa Khar v. Pakistan and others PLD 1988 Lah. 49; Muhammad Hussain Khan v. Federation of Pakistan PLD 1956 Kar. 538; S.M. Yousuf v. Collector of Customs PLD 1968 Kar. 599; Rehmatullah v. Hameeda Begum 1986 SCMR 1561; Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236; East and West Steamship Co. v. Pakistan PLD 1958 SC (Pak.) 41 and John Steinbeck's Grapes of Wrath ref.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court, exercise of‑‑­Technicalities‑‑ Effect‑‑‑Technicalities cannot prevent High Court from exercising its Constitutional jurisdiction and affording relief which otherwise a party is found entitled to receive.

Sardar Muhammad Ghazi, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Appellant.

M. Jaffar Hashmi, Advocate Supreme Court with M. Sultan Watto, Advocate Supreme Court and Imtiaz. M. Khan, Advocate‑on­-Record (absent) for Respondents Nos. 1 to 17.

M. Zaman Bhatti, Advocate Supreme Court for the Official Respondents Nos. 19 to 23).

Date of hearing: 24th September, 2003.

P L D 2004 Supreme Court 285

Present: Javed Iqbal and Sardar Muhammad Raza Khan, JJ

Syed IMAM SHAH and others‑‑‑Petitioners

Versus

GOVERNMENT OF N.‑W.F.P. and others‑‑‑Respondents

Civil Petition No. 1365 of 2003, decided on 17th December, 2003.

(On appeal from the judgment dated 27‑5‑2003 of the Peshawar High Court, Peshawar, passed in W.P. No.430 of 2001).

(a) University of Peshawar Act (II of 1974)‑‑‑

‑‑‑‑S. 27‑‑‑Fresh appointments in deviation of prevalent practice‑‑­Jurisdiction of University Authorities under S.27 of University of Peshawar Act, 1974‑‑‑Scope‑‑‑Section 27 of University of Peshawar Act, 1974 did not provide that no appointment could be made in deviation of the prevalent practice and the approval of the Chancellor was a must to that effect.

(b) University of Peshawar Act (II of 1974)‑‑‑

‑‑‑‑Ss. 13 & 27‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑­Constitutional jurisdiction of High Court‑‑‑Service matter‑‑‑Aggrieved person‑‑‑Equating them "prescribed qualification" with term "terms and conditions of service"‑‑‑Fresh appointments in deviation of prevalent practice‑‑‑Grievance of petitioners was that vacancies of Superintendents should have been filled by way of promotion instead of initial recruitment/direct appointments by ignoring the prevalent, practice which had attained the status of rules which could not have been ignored‑‑‑Appointments made by the Authorities were assailed by the petitioners before High Court in its Constitutional petition which was dismissed by High Court‑‑‑Validity‑‑‑Question of terms and conditions could have arisen after the appointments were made and besides that no terms and conditions had either been violated or formulated afresh giving rise to any cause of grievance to the petitioners‑‑‑Vice‑Chancellor was fully competent to make such appointments‑‑‑No fresh statute was ever framed by the Vice‑Chancellor without having the prior approval of the Chancellor‑‑‑High Court set the controversy at naught after having taken into consideration all the relevant laws, statutes and rules made thereunder‑‑‑Conclusion as arrived at by the High Court being unexceptionable did not admit interference‑‑‑Competent Authority could abandon the previous practice by evolving a new method of selection in consonance with the provisions as laid down by University of Peshawar Act, 1974 and University statutes‑‑‑Leave to appeal was refused.

Province of West Pakistan v. Muhammad Akhtar PLD 1962 SC 428; Government of West Pakistan v. Fida Muhammad Khan PLD 1960 SC (Pak.) 45; Government of West Pakistan v. Fatehullah Khan PLD 1960 SC (Pak.) 105 and Manzur Ahmad v. Province of West Pakistan PLD 1961 SC 166 ref.

(c) Words and phrases‑‑‑

‑‑‑‑"Practice"‑‑‑Defined‑‑‑Necessary ingredients enlisted.

Following are the essential ingredients of expression "practice":

Uniformity; Continuity; Succession of acts of similar kind; Customs or usage; Customarily performance of act; Certain degree of regularity; Course of action and Mechanism for the enforcement of legal rights‑‑‑Word `practice' can be considered as mode of proceedings by which a legal right is enforced.

State v. Randall, Mo., 248 SW.2d.860, 863; McCLURE v. E. a. Blacshere Co., D.C.Md., 231 F.Supp. 678, 682; Guenther v. Morehead, D.Clowa, 272 F.Supp.721, 727; West v. Sun Cab. Co. 1 154 A. 100, 103; 160 Md.476; Me‑Comb v. C.A. Swanson and Sons, D.C. Neb., 77 F.Supp.716, 734; Phillips v. City of Bend, 234 P.2d 572, 577, 192 Or. 143; Laughlin v. Washington State Bar Association 176 P.2d 301, 309, 26 Wash.2d 914; State v. Blackwell, 13 S.E.2d 433, 434, 196 SC 313; Public Utility Dist. No.1 of Okanogan Country v. Department of Public Service, 150 P.2d 709, 715, 21 Wash. 2d 201; Missouri­Kansas‑Taxas R.Co. of Texas v. Ashlock, Tex. Civ. Appl, 136 S.W.2d 943, 944; Well Lamont Corps. v. Bowles Em. App., 149 F.2d 364, 366; Deatley v. Grand Fraternity, 78 A. 874, 875, 2 Boyee, Del. 67; U.S. Shipping Board Emergency Fleet Corps. v. Levensaler, 290 F.297, 300, 53 App. D.C.322; Cates v. Heffernon, 18 So.2d 11, 14, 15, 154 Fla. 422; King v. Schumacher, 89 P.2d 466, 472, 32 CA 2d 172; Skinner v. City of Eustis, 2 So.2d 116, 117, 135 ALR 359, 147 Fla. 22; Bascom v. District Court of Cerro Gordon County, I N.W.2d 220, 222, 231 Iowa 360; People v. Clark, 119 NE 329, 331, 283 111. 221; Hoffman v. Paradis, 102 N.E.253, 254, 259 111. 111; Fleischman v. Walker, 91 111. 318, 321; Butler v. Young, C.C. Ohio, 4 Fed.Cas.916, 917; Rev. St.C. 45, 10, Smith‑Hurd Stats, c.45, 10; State of Seraikella v. The Union of India, 1951 SCR 474, 1951 SCJ 425; AIR 1951 SC 253; AIR 1957 SC 444 and AIR 1958 SC 72 ref.

(d) Word and phrases‑‑‑

‑‑‑‑"Rule"‑‑‑Defined.

Schuettker v. Maurer 46 A.2d 586, 588, 159 Pa. Super. 110; West Moreland County Com'rs, 38 a.2d 709, 710, 155 Pa.Super.138; Watts v. Holland, 56 Tex.54, 60; South Florida R.Co. v. Rhodes, 5 So.633, 635, 25 Fla 40, 3 LRA 733, 23 Am. St. Rep.506, Citing Webster; Schaufele v: Central of Georgia Ry. Co. 65 S.C.E. 708, 710, 6 Ga‑App.660; Krebs v. Hoctor, 120 N.W.199, 200, 83 Neb. 690; City of Los Angeles v. Gager, 102 P.17, 18, 10 Cal. App.‑ 378; Atlantic Coast Line R. Co.v. State, 74 So.595, 601, 73 Fla. 609; Borough of Belmar v. Prior, 79‑A. 1032, 1033, 81 N.G.L. 254; PLD 1962 Kar. 505; Mir Muhammad Sharif v. AJ&K Government PLD 1986 SC (AJ&K) 87; Federation of Pakistan v. Maj. (Retd.) Wazir Ahmad 1991 SCMR 2284 and Pakistan v. Abdul Hamid PLD 1961 SC 105 ref.

(e) Words and phrases‑‑­

‑‑‑‑‑‑ Practice" and "rule"‑‑‑Connotation‑‑‑In view of difference between their ingredients, components and characteristics, "practice" and "rule" are not interchangeable terms‑‑‑Even by efflux of time the "practice" cannot attain the status of "rule"‑‑‑"Practice" has no binding element being not static and subject to change having no consequences, unless some mala fides is established for deviation‑‑‑ "Rules" on‑the other hand are framed by Competent Authority in exercise of powers conferred under some statutes, law, legislation or enactment having binding effect which cannot be violated/deviated unless otherwise provided.

(f) University of Peshawar Act (II of 1974)‑‑‑

‑‑‑‑S. 13‑‑‑Powers and authority of vice‑Chancellor‑‑‑Scope‑‑‑Legislation in its wisdom has assigned sufficient powers and authority to the Vice­-Chancellor enabling him to deal with all sorts of eventualities to run the University in befitting manner.

Shah Abdul Rashid, Senior Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Petitioners.

Sardar Khan, Advocate Supreme Court for Respondents Nos.2 and 3.

Date of hearing: 9th September, 2003.

P L D 2004 Supreme Court 298

Present: Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ

BASHIR AHMAD‑‑‑Petitioner

Versus

ZAFAR‑UL‑ISLAM and others‑‑‑Respondents

Criminal Petition for Leave to Appeal No.535‑L of 2001, decided on 4th April, 2003.

(On appeal from the order dated 5‑7‑2001 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.49‑Q of 2001).

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

‑‑‑‑S.561‑A‑‑‑Quashing of proceedings‑‑‑Scope‑‑‑Crucial questions which were required to be decided and determined before a final verdict of guilt or innocence of the accused persons in the present case could be pronounced‑‑‑Such questions were never attended to by the High Court and understandably so because the same could not have been done unless the witnesses were examined and permitted to be cross‑examined under S.342, Cr.P.C. or under S.340(2), Cr.P.C., if the accused persons had elected to make statements on oath‑‑‑High Court had proceeded to pronounce the innocence of the accused persons on mere conjectures and surmises and that too founded on incorrect facts‑‑‑Prosecution had been stifled and the matter had been decided without permitting the relevant acts to come on record in accordance with law‑‑‑Errors had crept into the proceedings because the normal course of trial had been unduly disrupted‑‑‑Held, such was never the result designed to be achieved by the provisions of S.561‑A, Cr.P.C.‑‑‑High Court had fallen into error in basing its decision on factually incorrect foundations which error had crept into the decision mainly on account of the departure made from the normal course of law‑‑‑Decision of the High Court had also guillotined the prosecution which led to unjustifiable conclusions‑‑‑Judgment of the High Court could had not mentioned any extraordinary deviation from the normal procedure prescribed by law and on that account also the use of power under S.561‑A, Cr.P.C. could not be sustained.

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

‑‑‑‑S.561‑A‑‑‑Legislative history and purpose which was sought to be secured through incorporation of S.561‑A, Cr.P.C. in the Code and its true import‑‑‑Provision of S.561.‑A, Cr.P.C. cannot be used to override express provisions of law to offer just another remedy where a remedy already exists or to circumvent the normal course of law‑‑­Jurisdiction under S.561‑A, Cr.P.C. is an extraordinary one preserved only for extraordinary situations which power must be exercised sparingly with utmost caution only in exceptional cases and not as a matter of routine‑‑‑Principles.

After the British occupation of the Sub‑Continent, the first legislation made by them on the subject of Criminal Procedure was through Act XXV of 1861 which was followed by Act X of 1872 and Act X of 1882. It was after experimenting these laws for almost four decades that the Legislature finally enacted the law which is presently in force being the Code of Criminal Procedure as Act V of 1898. Having operated this law for a further period of twenty‑five years, the then law­giver tried to identify the shortcomings of the same and found, inter aria, that situations did arise which had not been foreseen by the Legislature and for which no provisions existed in the Code. It was for this reason that section 561‑A was incorporated in the Code of Criminal Procedure in the year 1923 through the Code of Criminal Procedure (Amending) Act (XVIII of 1923).

The purpose of adding this provision to the Code was to recognize and reiterate the inherent powers possessed by a High Court to pass such orders as would enable it to do justice to all concerned. The object was to meet the lacunae existing in the Code and to cater for situations which could not be foreseen by the Legislature and for which no specific provision or remedy had been provided. Section 561‑A was never meant or intended to offer an additional or an alternate remedy. This may be illustrated through an example of a person who is convicted and punished as a result of trial held by a Court of Session. Section 410, Cr.P.C. provides him with a remedy of filing an appeal in the High Court to impugn the conviction and the punishment recorded against him. Such a person, therefore, cannot be allowed to seek annulment of such a conviction and punishment by invoking the provisions of section 561‑A of the Cr.P.C. instead of filing an appeal for the purpose under section 410 of the said Code. What has been consistently held by the superior Courts for over a century now is that the provisions of section 561‑A cannot be used to override the express provisions of law, to offer just `ANOTHER' remedy where a remedy already exists or to circumvent the normal course of law. It is an extraordinary jurisdiction preserved only for extraordinary situations which power must be exercised sparingly with utmost caution only in exceptional cases and not as a matter of routine.

According to the scheme prescribed by the Code of Criminal Procedure, determination of guilt or innocence of an accused person is a serious business‑which commences with a pre‑trial exercise to be judicially carried out by a competent Magistrate under section 190 of the Cr.P.C. If these allegations levelled and the evidence collected are found worth a trial, then cognizance is taken of the case and the accused is summoned to face the trial Chapters XX and XXII‑A of the Cr.P.C. then prescribe a detailed inquiry and a thorough probe into the matter where the prosecution has the fullest right to adduce its evidence to establish the guilt of the offender and where the accused has a comprehensive right to impeach the credibility and the reliability of the evidence produced by the prosecution where the accused then has the right to explain different pieces of evidence offered against him by the prosecution; where the accused can make a statement on oath in disproof of the allegations levelled against him and finally where he can produce his own evidence to discredit the prosecution case against him. What could, therefore, be at stake at a criminal trial are, on the one hand the invaluable rights of life, liberty, freedom and even of property of an accused person and on the other hand the demand of the society to be rid, permanently or temporarily, of a person who is a threat and a menace to it. The law commands a detailed inquiry as envisaged by the above mentioned Chapters XX and XXII‑A of the Cr.P.C. so that a correct decision is reached by the trial Court after due consideration of the totality of facts and circumstances brought out before it. This is then the normal procedure prescribed by law for the purposes of finding out whether the person accused of the commission of a crime was or was not guilty of the same.

As against this, when a High Court decides to proceed under section 561‑A, Cr.P.C. the parties get divested of their right to adduce evidence; of their right to cross‑examine the witnesses produced by the other side and of their right to discredit the evidence offered to the Court. The result is that the normal course of law is disrupted; the parties get deprived of the precious and valuable rights vesting in them; the trial Court gets deprived of the jurisdiction conferred on it by law and a matter which was required to be determined after a detailed and a full‑fledged trial is decided in more than a summary manner and thereby depriving the High Court of the opportunity to determine the issue in the light of proper material.

Using the powers under section 561‑A, Cr.P.C. to determine the fate of a criminal case is thus a serious departure from the normal course and needless to say that any deviation from the normal, path is always pregnant with risk of being led astray. Such a deviation can, therefore, never be ordinarily advisable. Extraordinary circumstances must always be shown to exist before a choice could be made to abandon the regular course and instead to follow an exceptional route. Mere claim of innocence by an accused person could never be considered sufficient to justify such a departure because if this was so permitted then every accused person would opt to stifle the prosecution and to have his guilt or innocence determined under section 561‑A of the Cr.P.C. The result would be decision of criminal trials in a summary and a cursory manner rendering the trials as a superfluous activity, and the trial Courts as a surplusage. This never was and could never have been the intention of the law maker in adding section 561‑A to the Code.

Of late, the incidence of quashing criminal cases which are under trial with the Courts of competent jurisdiction by invoking powers under section 561‑A, Cr.P.C. is becoming, increasingly frequent. It is time to take stock of this tendency and to remind ourselves of the correct principles governing the subject so that the powers meant to prevent the abuse of law are not abused themselves.

The correct import of the provisions of section 561‑A, Cr.P.C. may be summarized as under:

(i) The said provision should never be understood to provide an additional or an alternate remedy nor could the same be used to override the express provisions of law;

(ii) the said powers can ordinarily be exercised only where no provision exists in the Code to cater for a situation or where the Code offers no remedy for the redress of a grievance;

(iii) inherent powers can be invoked to make a departure from the normal course prescribed by law only and only in exceptional cases of extraordinary nature and reasons must be offered to justify such a deviation; and

(iv) in the matter of quashing criminal proceedings, the trial must ordinarily be permitted to take its regular course envisaged by law and the provisions of section 561‑A, Cr.P.C. should be invoked only in exceptional cases for reasons to be recorded.

Shah Kot Bus Services v. The State 1969 SCMR 325; Muhammad Sami Ullah Khan v. The State PLD 1963 SC 327; Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317; Abdul Hayee v. The State 1972 SCMR 473; Haq Nawaz v. Muhammad Afzal PLD 1967 SC 354; Muhammad Khalid Mukhtar v. The State through Deputy Director, F.I.A. (C.B.A.), Lahore PLD 1997 SC 275; Sheikh Mahmood Saeed and others v. Amir Nawaz Khan and another 1996 SCMR 839; Malik Salman. Khalid v. Shabbir Ahmad, D&SJ, Karachi and another 1993 SCMR 1873 and Mst. Sarwar Jahn v. Ayub and another 1995 SCMR 1679 ref.

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

‑‑‑‑Ss.561‑A, 249‑A, 439 & 439‑A‑‑‑Dismissal of application filed under S.249‑A, Cr.P.C.‑‑‑Quashing of proceedings by High Court under S.561‑A, Cr.P.C.‑‑‑Validity‑‑‑Where an application under S.249‑A, Cr.P.C. was dismissed by the Trial Court, the proper remedy for the aggrieved person was under S.439 or 439‑A, Cr.P.C., as the case may be, and not under S.561‑A, Cr.P.C. as the provisions of S.561‑A, Cr.P.C. were not meant to provide an additional or an alternate remedy‑‑‑Exercise of powers under S.561‑A, by the High Court, in circumstances, was legally untenable‑‑‑Principles.

Hasnat Ahmad Khan, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.

Ghulam Hadier Al‑Ghani Advocate Supreme Court for Respondents.

Date of hearing: 4th April, 2003.

P L D 2004 Supreme Court 313

Present: Tanvir Ahmed Khanand Khalil‑ur‑Rehman Ramday, JJ

GOVERNMENT OF N.‑W.F.P. through Secretary, Forest Department, Peshawar and others‑‑‑Petitioners

Versus

MUHAMMAD TUFAIL KHAN‑‑-Respondent

Civil Petition No.459‑P of 2001, decided on 28th October, 2003.

(On appeal from the judgment of the N.‑W.F.P. Service Tribunal, Peshawar dated 22‑9‑2001 passed in Service Appeal No.378 of 1998.

North‑West Frontier Province Service Tribunals Act (I of 1974)‑‑‑

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Arts.18 & 212(3)‑‑­Reinstatement in service with back‑benefits‑‑‑Political appointment‑‑­Constitutional guarantees, safeguarding of‑‑‑Civil servant was selected on political dictation‑‑‑Neither any advertisement was made to fill the vacancy nor any interview was held‑‑‑Codal formalities for the appointment of the post were flagrantly violated‑‑‑Effect‑‑‑Such‑like entrants in civil service could not be countenanced as it might generate frustration and despondency among all persons who were having excellent merit but every time they were bypassed through such‑like back door entries on political interference‑‑‑Every body who matters in the functioning of the society has always propagated for the adoption of transparency and merit in appointments which are cardinal principles of good governance‑‑‑When it comes to actual practice, such principles are blatantly ignored‑‑‑Courts are duty bound to uphold the Constitutional mandate and to keep up the salutary principles of rule of law‑‑‑In order to uphold such principles it has been stated time and again by the superior Courts that all appointments are to be made after due publicity in a transparent manner after inviting applications through Press from all those who are eligible, deserving and desirous‑‑‑In spite of all these directions, such salutary principles are being frustrated with impunity‑‑­Such malady which has plagued the whole society has to be arrested with iron hands and the principles of merit have to be safeguarded, otherwise, it would be too late to be corrected‑‑‑Service Tribunal, while accepting the appeal of the civil servant had not at all adverted to such aspects‑‑­Same Service Tribunal had earlier dismissed the appeals filed by the similarly appointed civil servant whose services were terminated alongwith the present civil servant through the same order‑‑‑Supreme Court converted the petition for leave to appeal into appeal and judgment passed by the Service Tribunal was set aside‑‑‑Appeal was allowed.

Abdul Jabbar Memon's case 1996 SCMR 1349; Munawar Khan v. Niaz Muhammad 1993 SCMR 1287; Mushtaq Ahmed Mohal v. Lahore High Court 1997 SCMR 1043; Obaidullah v. Habibullah PLD 1997 SC 835 and Abdul Rashid v. Riazuddin 1995 SCMR 999 rel.

Imtiaz Ali, Addl. A.‑G., N.‑W.F.P. for Petitioners.

Muhammad Asif Khan, Advocate Supreme Court and M. Zahoor Qureshi, Advocate‑on‑Record for Respondent.

Date of hearing: 28th October, 2003.

P L D 2004 Supreme Court 317

Present: Munir A. Sheikh, Iftikhar Muhammad Chaudhary and Rana Bhagwandas, JJ

GOVERNMENT OF THE PUNJAB and others‑‑‑Appellants

Versus

MUHAMMAD ZAFAR BHATTI and others‑‑‑Respondents

Civil Appeal No. 1532 of 1998, decided on 2nd December, 2003.

(On appeal from judgment of Lahore High Court, Lahore dated 14‑11-1997 passed in Writ Petition No.3372 of 1994).

(a) Punjab Service Tribunals Act (IX of 1974)‑‑‑

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Arts. 199 & 212(3)‑‑‑Leave to appeal was granted by Supreme Court to consider, whether the Constitutional petition before High Court was not barred under Art. 212 of the Constitution; whether Punjab Service Tribunal had exclusive jurisdiction in respect of matters agitated in the Constitutional petition; whether amendment made through the notification was illegal and ineffective in law; whether the Government was competent to revise or review recruitment policies through amendment in Service Rules; and whether any vested right existed with regard to promotion and any amendment in the rules could be challenged on the ground of adverse effects on the promotion in future.

(b) Punjab Service Tribunals Act (IX of 1974)‑‑‑

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Arts. 199 & 212‑‑‑Vires of amendment in rules regarding promotion‑‑‑Jurisdiction of High Court under Art. 199 of the Constitution‑‑Amendment made by the Authorities in rules regarding promotion, was assailed before High Court under Art.199 of the Constitution, by the civil servants‑‑‑High Court declared the amendment as ultra vires of the vested right of the civil servants‑‑­Plea raised by the Authorities was that under Art. 212 of the Constitution, the jurisdiction of High Court was barred as the matter pertained to terms and conditions of service‑‑‑Validity‑‑‑Remedy for the civil servants was to file appeal before Service Tribunal and jurisdiction of High Court in such matter was barred‑‑‑Judgment passed by the High Court was set aside‑‑‑Appeal was allowed.

Iqan Ahmad Khurram v. Government of Pakistan PLD 1980 SC 153; Muhammad Insha Ullah v. Chief Conservator of Forest (P&E) PLD 1988 SC 155 and Khalid Mahmood Wattoo v. Government of Punjab 1998 SCMR 2280 ref.

S. Shabbar Raza Rizvi, Advocate‑General, Punjab for Appellants.

M.A. Zaidi, Advocate‑on‑Record for Respondents Nos. 1 to 4.

Respondents Nos. 5 to 44 : Ex parte.

Date of hearing: 2nd December, 2003.

P L D 2004 Supreme Court 321

Present: Munir A. Sheikh, Iftikhar Muhammad Chaudhary and Rana Bhagwandas, JJ

Mian TAYYIB‑UD‑DIN and others‑‑‑Appellants

Verses

MUHAMMAD ATIQ through Legal Heirs and others‑‑‑Respondents

Civil Appeal No. 1310 of 1998, decided on 1st December, 2003.

(On appeal from the judgment dated 31‑10‑1997 of Peshawar High Court, Peshawar, passed in C.R.No.686 of 1994).

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 8‑‑‑Possession of immovable property, recovery of‑‑‑Plea of adverse possession‑‑‑Predecessor‑in‑interest of defendants was Imam Masjid and the suit‑land was given to him as Chair Dakheel Kar‑‑‑Defendants started raising construction over the suit‑land when the suit was filed by plaintiffs and recovery of the possession was sought‑‑‑Trial Court dismissed the suit but Appellate Court allowed the appeal and the suit was decreed‑‑‑High Court in exercise of revisional jurisdiction allowed the revision and judgment and decree passed by Trial Court was restored‑‑‑Defendants contended that the suit land had been given to their predecessor‑in‑interest as Sadiqa or gift as Seri Khor‑‑‑Defendants further contended that they were the owners by way of adverse possession also‑‑‑Validity‑‑Defendants and their predecessors‑in‑interest were in possession, of suit‑land as Ghair Dakheel Kar, they could not claim that their possession was adverse, since predecessor‑in‑interest of defendants was performing the functions of Imam Masjid when the suit was filed and before him his father was Imam Masjid, therefore, the gift of usufruct would continue to be operative till the predecessor‑in‑interest of the defendants continued to perform functions of Imam Masjid‑‑‑Even if the defendants remained in possession of the land as Ghair Dakheel Kar for any length of period the same could not legally be claimed to be adverse‑‑‑High Court altogether ignored the position as was borne out from the long‑standing entries in the Revenue Record and committed an error of law by holding that it was a case of Seri Khor gift of land itself and such finding was based on grave misreading of evidence, therefore, the judgment was not sustainable‑‑‑Judgment passed by High Court accepting revision petition of the defendants was set aside and that of the Appellate Court was restored‑‑‑Appeal was allowed.

Abdul Samad Khan, Advocate Supreme Court for Appellants.

Abdul Aziz Kundi, Advocate‑on‑Record for Respondent No. 1.

Nemo for the Remaining Respondents.

Respondent No.35 in person.

Date of hearing: 1st December, 2003.

P L D 2004 Supreme Court 325

Present: Munir A. Sheikh, Iftikhar Muhammad Chaudhary and Rana Bhagwandas, JJ

SATARA KHAN and others‑‑‑Appellants

Versus

MANZAR HUSSAIN and others‑‑‑Respondents

Civil Appeals Nos. 1267 and 1268 of 1996, decided on 3rd December, 2003.

(On appeal from the judgment dated 4‑6‑1995 of the Peshawar High Court passed in C.R. Nos. 255 and 317 of 1992).

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

‑‑‑‑S. 42‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.100‑‑‑Thirty years old document‑‑‑Presumption of correctness‑‑‑Determination‑‑‑Suit‑land was mortgaged with possession in favour of the predecessor‑in‑interest of plaintiffs in the years 1897 and 1898‑‑‑Plaintiffs claimed to be the owners of the suit‑land on the basis of sale‑deed dated 3‑10‑1900 executed in favour of their predecessor‑in‑interest‑‑Trial Court decreed the suit in favour of the plaintiff presuming the sale‑deed as correct under Art.100 of Qanun‑e‑Shahadat, 1984‑‑‑Appellate Court allowed the appeal and dismissed the suit to the extent that presumption attached to thirty years old document required corroborative evidence and the same was missing in the case‑‑‑Judgment and decree passed by the Appellate Court were maintained by the High Court in exercise of revisional jurisdiction‑‑‑Validity‑‑‑Appellate Court had rightly come to the conclusion that had the sale‑deed been available at the time of settlement of Bandobast, the same would have been produced and entries made in the Record of Rights in favour of the plaintiffs in ownership column, therefore, was corroborative evidence as to genuineness of the document was missing‑‑‑Person of ordinary prudence‑if had purchased the land which was already in his possession as mortgagee would get the proper mutation entered and attested in his favour and his name entered in the ownership column‑‑‑Plaintiffs kept quiet for a long time and were merely relying upon an entry `Bills Lagaan Bawaja Bey' in particular when they were already enjoying the status of mortgagee with possession was not sufficient corroborative evidence to raise presumption in the discretion vested in the Court under Art. 100 of Qanun‑e‑Shahadat, 1984, in favour of genuineness being thirty years' old document‑‑‑Findings of fact recorded by Appellate Court and affirmed by High Court as to the status of plaintiffs as owners of the land by virtue of the sale‑deed were in accordance with law and hart not been shown to have been based on misreading or non‑reading of any material piece of evidence‑‑‑Appeal was dismissed.

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

‑‑‑‑Ss. 8 & 42‑‑‑Title over suit‑land‑‑‑Plea of adverse possession‑‑­Recovery of possession by mortgagee‑‑‑Suit‑land was mortgaged with possession in favour of the predecessor‑in‑interest of plaintiffs in the years 1897 and 1898‑‑‑Defendant claimed to be owner of the suit‑land on the basis of adverse possession‑‑‑Suit was decreed by Trial Court in favour of the plaintiffs and Appellate Court maintained the finding regarding recovery of possession because the plaintiffs were mortgagees with possession and they had a right to recovery possession from the defendant who trespassed over the land‑‑‑Judgment and decree passed by the Appellate Court were maintained by High Court in exercise of revisional jurisdiction‑‑‑Validity‑‑‑Defendant did not claim any other right except right of adverse possession which had, according to him, matured into ownership‑‑‑Courts below had rightly held the suit land to be in possession of plaintiffs as mortgagees and the defendant having entered into the possession wrongfully could be directed to deliver the possession to the plaintiffs who had a right as mortgagees to get the possession‑‑‑Supreme Court declined to interfere with the judgments and decrees passed by the Courts below‑‑‑Appeal was dismissed.

Abdul Samad Khan, Advocate Supreme Court for Appellant (in C. A. No. 1267 of 1996).

Mian Yunus Shah, Senior Advocate Supreme Court for Respondents Nos. 1 to 50 (in C. A. No. 1267 of 1996).

M. Zahoor Qureshi, Advocate‑on‑Record for Respondents Nos. 51 to 61 (in C. A. No. 1267 of 1996).

Remaining Respondents (in C. A. No. 1267 of 1996): Ex parte.

Mian Yunus Shah, Senior Advocate Supreme Court for Appellants (in C.A. No. 1268 of 1996).

M. Zahoor Qureshi, Advocate‑on‑Record for Respondents Nos. l to 12 (in C. A. No. 1268 of 1996).

Remaining Respondents (in C.A. No. 1268 of 1996): Ex parte.

Date of hearing: 3rd December, 2003.

P L D 2004 Supreme Court 330

Present: Nazim Hussain Siddiqui, Javed Iqbal and Falak Sher, JJ

MAWAS KHAN‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Criminal Petition No. 103‑P of 2003, decided on 29th October, 2003.

(On appeal from the judgment dated 14‑5‑2003 of Peshawar High Court, Peshawar, passed in Cr. A. No.500 of 2002).

(a) Penal Code (XLV of 1860)‑‑‑

----S. 302‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Prosecution had substantiated the accusation against the accused by producing cogent, concrete and forthright evidence‑‑‑Ocular account furnished by witness in previous trial had rightly been taken into consideration being worthy of credence whereby specific role of firing had been attributed to accused which resulted into death of two persons‑‑‑Said eye‑witness had no reason whatsoever to substitute the real culprits with the accused‑‑­Presence of the said witness on the scene of occurrence was confirmed by the injuries sustained by him at the time of incident‑‑‑Ocular testimony was fully corroborated by medical evidence ‑‑‑Abscondence of accused had also been rightly considered as corroboratory piece of evidence‑‑‑Defence version which was a denial simpliciter could not be considered in view of the overwhelming incriminating prosecution evidence‑‑‑Impugned judgment being well based and unexceptionable did not warrant any interference‑‑‑Leave to appeal was refused to accused accordingly.

PLD 1971 Pesh. 32; Bhamra v. State 1953 Bhopal 1; 1953 Cr.LJ 217; Manzoor Elahi v. State PLD 1965 Lah. 656; Permeshwar Din v. E.AIR 1941 Oudh 517; Crown v. Fateh Muhammad 35 PLR 740; Chandika Prashad v. E 126 IC 684; AIR 1930 Oudh 324; 31 Cr.LJ 1081; Gangaram Hari Parit v. E. 62 IC 545; 22 Cr.LJ 529; Q.E. v. Sami and others 13 Mad. 426; Q.E. v. Gobardhan 9 All. 528; Rakhal Nikari v. Q.E. 2 CWN 81; Mahla Singh's case v. 130 IC 410; 1931 Lah. 38; 32 Cr.LJ 522; Q v. Sorab Roy 5 WR Cr.28; Khan v. State AIR 1955 Cal. 146; PLD 1978 SC 103 and Riaz Hussain v. The State 2001 SCMR 177 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Injured witness‑‑‑Statement of an injured witness cannot be brushed aside merely on the ground of some minor contradictions which do creep in with the passage of time.

(c) Penal Code (XLV of 1860)‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence ‑‑‑Abscondence‑‑‑Corroborative value ‑‑‑Factum of abscondence of accused cannot altogether be ignored as its corroborative value carries substantial weight.

PLD 1971 pesh. 32; Bhamra v. State 1953 Bhopal 1; 1953 Cr.LJ.217; Manzoor Elahi v. State PLD 1965 Lah. 656; Permeshwar Din v. E. AIR 1941 Oudh 517; Crown v. Fateh Muhammad 35 PLR 740; Chandika Prashad v. E 126 IC 684; AIR 1930 Oudh 324; 31 Cr.LJ 1081; Gangaram Hari Parit v. E. 62 IC 545; 22 Cr.LJ 529; Q.E. v. Sami and others 13 Mad. 426; Q.E. v. Gobardhan 9 All. 528; Rakhal Nikari v. Q.E. 2 CWN 81; Mahla Singh's case 130 IC 410; 1931 Lah. 38; 32 Cr.LJ 522; Q v. Sorab Roy 5 WR Cr. 28; Khan v. State AIR 1955 Cal. 146; PLD 1978 SC 103 and Riaz Hussain v. The State 2001. SCMR 177 ref.

Barrister Zahoorul Haq, Senior Advocate Supreme Court and Syed Safdar Hussain, Advocate-on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 29th October, 2003.

P L D 2004 Supreme Court 334

[Shariat Appellate Jurisdiction]

Present: Justices Nazim Hussain Siddiqui, Chairman, Javed Iqbal, Tanvir Ahmed Khan Dr. Allama Khalid Mahmood and Dr. Rashid Ahmed Jullundhari, Members

SARFRAZ GUL‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 2(S) of 2001, decided on 11th December, 2003.

(On appeal from the judgment dated 20‑10‑1999 of the Federal Shariat Court, Islamabad, passed in Criminal Appeal No. 143/1 of 1999).

(a) Prohibition (Enforcement of Hadd) Order (4 of 1979)‑‑

‑‑‑Art. 4‑‑‑Constitution of Pakistan (1973), Art.203‑F(2B)‑‑‑Leave to appeal was granted to consider whether the search in the case was not made under S.103, Cr.P.C. but was conducted under Art.22 of the Prohibition (Enforcement of Hadd) Order, 1979 and also to determine whether the evidence of the four police officers who had supported the recovery, could be brushed aside on account of violation of S.103, Cr.P.C.‑‑‑Search warrant issued in the case was also directed to be brought on the record.

Iltaf Hussain v. The State 1996 SCMR 167 and Muhammad Mansha v. The State 1997 SCMR 617 ref.

(b) Prohibition (Enforcement of Hadd) Order (4 of 1979)‑‑

‑‑‑‑Art. 4‑‑‑Appraisal of evidence‑‑‑Recovery of heroin and opium from the accused had been proved on record‑‑‑Police recovery witnesses had duly corroborated each other ‑‑Hostile witness had also admitted categorically and unequivocally that the recovery memo. was got signed by him without any protest on his part‑‑‑Provisions of S.103, Cr.P.C. were adhered to and minor lapses on the part of the police could be ignored which had caused no prejudice to the accused‑‑‑Production of entire recovered narcotics in the Court was not a mandatory requirement‑‑‑Certificate for destroying the recovered heroin and opium had been produced in the Court to substantiate the factum of recovery‑‑­Impugned judgment based on forthright and credible evidence did not call for any interference‑‑‑Appeal was dismissed in circumstances.

Iltaf Hussain v. The State 1996 SCMR 167; Muhammad Mansha v. The State 1997 SCMR 617; Malik Aman v. State 1986 SCMR 17; Muhammad Shah v. State PLD 1984 SC 278; Muhammad v. State PLD 1981 SC 635; Abdul Hameed v. State 1986 SCMR 11; Abdul Hameed v. State PLD 1985 FSC 410; Sarfraz Durrani v. State PLD 1987 FSC 22; Zahid Khan v. Gulsher 1972 SCMR 597 and Munawar Khan v. State 1975 SCMR 119 ref.

(c) Prohibition (Enforcement of Hadd) Order (4 of 1979)‑‑‑

‑‑‑‑Art. 4‑‑‑Appreciation‑of evidence‑‑‑Police witnesses‑‑‑Statement of an official witness in the absence of any serious enmity can be relied upon if it remains unshattered.

Malik Aman v. State 1986 SCMR 17; Muhammad Shah v. State PLD 1984 SC 278; Muhammad v. State PLD 1981 SC 635; Abdul Hameed v. State 1986 SCMR 11; Abdul Hameed v. State PLD 1985 FSC 410 and Sarfraz Durrani v. State PLD 1987 FSC 22 ref.

(d) Prohibition (Enforcement of Hadd) Order (4 of 1979)‑‑‑

‑‑‑‑Art.4‑‑‑Appreciation of evidence‑‑‑Hostile witness‑‑‑Statement of a hostile witness cannot be discarded altogether and can be taken into consideration subject to availability of corroboration‑‑‑Court is duty bound to consider such evidence and determine as to whether any part of it is worthy of belief if examined in the light of other incriminating material and evidence available on record.

Zahid Khan v. Gulsher 1972 SCMR 597 and Munawar Khan v State 1975 SCMR 119 ref.

Mian Hissamuddin, Advocate Supreme Court and M. Zahoor Qureshi, Advocate‑on‑Record (absent) for Appellant.

Ch. Muhammad Akram, Advocate Supreme Court for the State.

Date of hearing: 11th December, 2003.

JUDGMENT

JUSTICE JAVED IQBAL (MEMBER).‑‑‑This appeal, with leave of the Court, is directed against the judgment dated 20‑10‑1999 passed by learned Single Judge of the Federal Shariat Court of Pakistan, Islamabad, whereby the appeal preferred on behalf of appellant has been dismissed and judgment dated 6‑8‑1999 passed by learned Sessions Judge/Zila Qazi, Chitral whereby the appellant was convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced to undergo R.I. for five years and fine of Rs.10,000 and in default of payment of fine to suffer further rigorous imprisonment for one year has been kept intact except the sentence of whipping.

1. Leave was granted by this Court vide order dated 1‑1‑2001 which is reproduced herein-below for ready reference:‑‑

"The main contention of the learned counsel appearing for the petitioner is that the provision of section 103, Cr.P.C. have not been complied with before the search was conducted as only one person from public was associated when the search was made, who resiled at the trial. He referred to Iltaf Hussain v. The State 1996 SCMR 167 and Muhammad Mansha v. The State 1997 SCMR 617.

1. The learned Additional Advocate‑General, who is present on notice, submitted that the search in this case was not made under section 103, Cr.P.C. but it was conducted under the provisions of Article 22 of the Prohibition (Enforcement of Hadd) Order, 1979.

2. We grant leave to consider this legal aspect and also to determine whether the evidence of the four police officers, who supported the recovery, can be brushed aside on account of violation of section 103, Cr.P.C. Moreover, the learned counsel is directed to bring on record the search warrant issued in this case."

3. We have heard Mian Hissamuddin, learned Advocate Supreme Court on behalf of appellant and Ch. Muhammad Akram, learned Advocate Supreme Court for State at length. We have examined carefully the judgment passed by learned trial Court as well as the judgment impugned. We have thrashed out the entire evidence with eminent assistance of learned counsel on behalf of the parties. After having gone through the entire record of the case we are of the considered view that factum of recovery has been proved beyond shadow of doubt. The statement of recovery witness namely Bahadur Khan (P.W.5)/Police Constable duly corroborated by Inayatullah (P.W.2)/Sub Inspector, has rightly been considered and believed by the learned Courts below. Bahadur Khan (P.W.5) was subjected to lengthy cross­ examination but nothing advantageous could be elicited rendering any assistance to the case of appellant. He had no rancour or animosity against the appellant and no remote suggestion was even made in this regard. In the absence of any enmity the question of false implication of the appellant by Bahadur Khan (P.W.5) is not conceivable. We are not persuaded to agree with the submission of Mian Hissamuddin, learned Advocate Supreme Court on behalf of appellant that the statement of Bahadur Khan (P.W.5) being an official witness and Police Constable should have been discarded for the reason that it is well‑settled by now that the statement of an official witness in the absence of any serious enmity can be relied upon if his testimony remained unshattered. In this regard we are fortified by the dictum laid down in the following cases:‑‑

Malik Aman v. State 1986 SCMR 17; Muhammad Shah v. State PLD 1984 SC 278; Muhammad v. State PLD 1981 SC 635; Abdul Hameed v. State 1986 SCMR 11; Abdul Hameed v. State PLD 1985 FSC 410; Sarfraz Durrani v. State PLD 1987 FSC 22.

1. The alleged enmity existing between Javed Khan, H.C. and appellant would have no substantial effect on merits of the case. It is not the case of appellant that the alleged recovered heroin and opium was falsely planted by Javed Khan, H.C. The appellant has succeeded in bringing it on record that Javed Khan, H.C. was attached with the Superintendent of Police and used to roam in the city in the official jeep meant for the Superintendent of Police but this aspect of the matter has no nexus whatsoever with the commission of alleged offence and the overwhelming incriminating material cannot be discarded on this score as pressed time and again by the learned Advocate Supreme Court for appellant. No doubt that Rehmat Jalal (P.W.I) was declared hostile but he had admitted in a categoric and unequivocal manner that recovery memo. was got signed by him. It is not the case of appellant that signatures of Rehmat Jalal (P. W.1) were obtained on a plain paper. It was also not so stated by Rehmat Jalal (P. W.1) himself. There is no cavil with the proposition that the statement of hostile witness cannot be discarded altogether and can be taken into consideration subject to availability of corroboration. It is bounden duty of the Court that such evidence should be considered and determined as to whether any part of it is worthy of belief, if examined, in the light of other incriminating material and evidence which has come on record. In this regard we are fortified by the dictum laid down in cases titled Zahid Khan v. Gulsher 1972 SCMR 597 and Munawar Khan v. State 1975 SCMR 119. The factum of recovery has been established which lends full corroboration to the statement of Rehmat Jalal (P.W.1) by whom the recovery memo. was signed without any protest.

2. We have also adverted to the contention of learned Advocate Supreme Court that search warrant duly issued by the Magistrate should have been executed by the S.H.O. himself instead of the police party for the reasons that S.H.O. had reached the shop of the appellant from where the heroin and opium was recovered and he remained associated with the process of recovery. Besides that the search warrant was never issued in the name of S.H.O. and it could have been executed by the police.

3. The provisions as contained in section 103, Cr.P.C. were adhered to and minor lapses on the part of police can be ignored as it has caused no prejudice to the appellant. The reluctance of general public to become witness in such‑like cases against well‑organized and a resourceful drug mafia hardly warrants any elaboration.

4. There is no denying the fact that the entire recovered heroin and opium were not produced before the Court which is not a mandatory requirement as one gram each of the heroin and opium was sent to Chemical Examiner by whom a positive report was furnished. The submission of learned Advocate Supreme Court that the entire material should have been placed before the Court, seems to be in oblivion of the provisions as contained in section 516‑A, Cr.P.C. It is an admitted fact that a certificate for destroying the recovered heroin and opium was produced in the Court to substantiate the factum of recovery.

5. In sequel to above mentioned discussion the prosecution has established the guilt by producing forthright and worthy of credence evidence. The conclusion as arrived at by the learned Federal Shariat Court being well‑based and unexceptionable does not admit interference. The, appeal being devoid of merits is dismissed.

N.H.Q./S‑4/SAppeal dismissed.

P L D 2004 Supreme Court 339

Present: Mian Muhammad Ajmal, Sardar Muhammad Raza Khan and Karamat Nazir Bhandari, JJ

MUJAHID AKHTAR KHURRAM‑‑‑Appellant

Versus

ABDUL HAMID and another‑‑‑Respondents

Criminal Appeal No. 142 of 1996, decided on 3rd December, 2003.

(On appeal from the judgment of the Lahore High Court, Multan Bench, Mutlan dated 31‑10‑1995 passed in Criminal Appeal No.91 of 1992 and Murder Reference No. 184 of 1992).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(c)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Leave to appeal was granted to complainant by Supreme Court to consider whether High Court was justified in altering the conviction of accused from S.302(b), P.P.C. to S.302(c), P.P.C.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(c) & 302(b)‑‑‑Appraisal of evidence‑‑‑Accused had not at all alleged to have committed the offence under grave and sudden provocation, but had taken the plea of alibi which had not been proved on record‑‑‑Even otherwise, nothing was available on record to suggest that the accused had committed the murder of his wife under grave and sudden provocation‑‑‑High Court, thus, had erred in altering the conviction of accused from S.302(b), P.P.C. to S.302(c), P.P.C. and reducing his sentence from death to ten years' R.I. ‑‑‑Impugned judgment was consequently set aside and conviction of accused under S.302(b), P.P.C. was restored‑‑‑Sentence of death primarily awarded to accused, however, was not restored as he had already served out ten years of his sentence and he was sentenced to imprisonment for life in circumstances.

Malik Sher Bahadur, Advocate Supreme Court for Appellants.

Respondent No. 1 in person.

Malik Ainul Haq, Advocate Supreme Court for the State.

Date of hearing: 28th October, 2003.

P L D 2004 Supreme Court 342

[Shariat Appellate Jurisdiction]

Present: Justice Nazim Hussain Siddiqui, Chairman, Justices Javed Iqbal, Tanvir Ahmed Khan; Dr. Allama Khalid Mehmood and Dr. Rashid Ahmed Jullundhari, Members

MUHAMMAD IDREES and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 16(S) of 2001, decided on 3rd December, 2003.

(On appeal from the judgment dated 6‑11‑1998 of the Federal Shariat Court, Bench at Lahore passed in Criminal Appeals Nos.91 and 92/L of 1998).

(a) Penal Code (XLV of 1860)‑‑--

‑‑‑‑Ss. 302(b) & 377‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)‑‑‑Constitution of Pakistan (1973), Art.203‑F(2B)‑‑‑Leave to appeal was granted to accused to consider whether conviction could be based on the confession and other evidence on record keeping in view the rule laid down by Supreme Court for appraisal of evidence.

(b) Penal Code (XLV of 1860)‑‑

‑‑‑‑Ss. 302(b) & 377‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)‑‑‑Appraisal of evidence‑‑‑Mention of the names of the accused in the F.I.R. in an ambiguous manner had no substantial effect on merits of the case as the same had been lodged prior to investigation, which was a simple device to set the law in motion and no adverse inference could be drawn due to the omission of the names of the accused therein‑‑‑Conviction could not be based on the contents of the F.I.R. alone unless substantiated by evidence‑‑‑No direct evidence connecting the accused with the commission of the offence had come on record, but prosecution had produced strong circumstantial evidence to substantiate the accusation in the shape of confessional statements, incriminating recovery, medical evidence and positive report of Chemical Examiner‑‑‑Confessional statements made by accused were of only true and voluntary, but were fully corroborated by the factum of recovery, medico‑legal evidence and chemical examination report‑‑­Credible and confidence‑inspiring prosecution evidence had proved the accusation against the accused beyond any doubt‑‑Accused had committed the murder of an innocent child in a merciless, callous and brutal manner, hence the question of any leniency did not arise‑‑­Conclusion arrived at by the Trial Court and affirmed by the Federal Shariat Court being well‑based and unexceptionable did not admit interference‑‑‑Appeal was dismissed accordingly.

Muhammad Amjad v. State PLD 2003 SC 704; Asadullah v. State 1999 SCMR 1034; Ghulam Hussain v. Zainullah PLD 1961 SC 230; Mokha v. Zulfiqar PLD 1978 SC 10; Abdul Rehman v. State PLD 1975 SC 275; Umar Said v. The State PLD 1994 SC 255; The State v. Minhun PLD 1964 SC 813; Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452; Wazir Ali v. The State 1999 SCMR 1469; Muhammad Afzal v.Ghulam Asghar PLD 2000 SC 12; Sakhawat v. The State 2001 SCMR 244 and Ijaz v. The State 2002 SCMR 294 ref:

(c) Penal Code (XLV of 1860)‑‑--

‑‑‑‑Ss. 302(b) & 377‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)‑‑‑Appraisal of evidence‑‑‑First Information Report‑‑‑Conviction cannot be based on the contents of the F.I.R. alone unless substantiated by evidence.

Ghulam Hussain v. Zainullah PLD 1961 SC 230; Mokha v. Zulfiqar PLD 1978 SC 10; Abdul Rehman v. State PLD 1975 SC 275 and Umar Said v. The State PLD 1994 SC 255 ref.

(d) Penal Code (XLV of 1860)‑‑

‑‑‑‑Ss. 302(b) & 377‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)‑‑‑Appraisal of evidence ‑‑‑Confession‑‑­Judicial or extra‑judicial confession, retracted or not, can legally be considered against its maker and if the same is found to be true and voluntary then no further corroboration is needed at all can in law validly form the sole basis of his conviction‑‑‑Question as to whether in the facts and circumstances of the case Court should act upon such a confession alone, however, is an entirely different question, which relates to the weight and evidentiary value of the confession and not to its admissibility in law.

The State v. Minhun PLD 1964 SC 813 ref.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellants.

Dil Muhammad Tarar, Advocate Supreme Court for the State.

Date of hearing: 3rd December, 2003.

P L D 2004 Supreme Court 351

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

PIO KHAN‑‑‑Appellant

Versus

SAR ANJAM KHAN and another‑‑‑Respondents

Civil Miscellaneous Appeal No.27 of 2000 in Civil Appeal No.44 of 1997, decided on 22nd January, 2004.

(On appeal against the order of the Registrar of this Court dated 5‑1‑2000 passed in C.M.A.. No.Nil of 1999).

Civil Procedure Code (V of 1908)‑‑‑--

‑‑‑‑S. 12(2) & O. XX, R.14‑‑‑Supreme Court Rules, 1980, O.V, R.3, O.I, R.5, O.X, O.XXVI,' R.9 & O.XXXIII, R.6‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Application under S.12(2), C.P.C. read with O.XXXIII, R.6 of Supreme Court Rules, 1980 for setting aside decree passed by Supreme Court in pre‑emption suit‑‑‑Applicant claiming to be owner of suit‑land alleged that he has let out the same to vendee (respondent) as tenant in year 1988, that suit mutation was fictitious and fraudulent document and that decree had been obtained fraudulently by not making him party in proceedings up to Supreme Court‑‑‑Registrar of Supreme Court returned such application‑‑­Validity‑‑‑Suit by pre‑emptor (respondent) filed in year 1990 and concurrently decreed by Trial Court and Appellate Court had been set aside by High Court in revision‑‑‑Supreme Court in appeal filed by pre­emptor had set aside judgment of High Court and restored that of Trial Court‑‑‑Suit mutation recorded in year 1989 for not having been challenged by applicant before any competent forum had attained finality‑‑‑Purpose of filing application at such belated stage was to frustrate entire verdict rendered with regard to suit‑land, which was neither justified nor could be encouraged to start a new round of litigation‑‑‑Supreme Court dismissed the appeal.

Kh. Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others 1999 SCMR 1516 ref.

Sardar Muhammad Ghazi, Advocate Supreme Court with Imtiaz Muhammad Khan, Advocate‑on‑Record for Appellant.

Nemo for Respondent No. 1.

Respondent No.2 (present in person).

Date of hearing; 22nd January, 2004.

P L C 2004 Supreme Court 353

Present: Iftikhar Muhammad Chaudhry and Rana Bhagwandas, JJ

Sheikh AMJAD AZIZ‑‑‑Appellant

Versus

HAROON AKHTAR KHAN and others‑‑‑Respondents

Civil Miscellaneous Application No.370 of 2004 in Civil Appeal No.44 of 2004, decided on 23rd February, 2004.

(On appeal against the judgment dated 16‑2‑2004 passed by Election Tribunal, Punjab, Lahore, in Election Petition No.59 of 2002).

Representation of the People act (LXXXV of 1976)‑‑‑--

‑‑‑‑Ss. 67 & 69‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Election of Provincial Assembly‑‑‑Returned candidate (appellant) not Graduate‑‑‑Election Tribunal declared respondent (election petitioner) as returned candidate for having secured highest votes next to the appellant‑‑­Election Commission de notified appellant by issuing notification in favour of respondent‑‑‑Appeal to Supreme Court against judgment of Election Tribunal‑‑‑Prayer for interim relief to restrain respondent from taking oath till decision of appeal‑‑‑Validity‑‑‑Appellant had not challenged such notification in appeal‑‑‑Prima facie inference at such stage could be drawn that appellant had been found disqualified to contest or represent voters of his constituency‑‑‑Till such time appeal was not decided, constituency could not be left without representation particularly when respondent had lost election with difference of 1005 votes‑‑‑If for any reasons appellant had been declared disqualified, then at least respondent, who had not lost election by a considerable margin, could represent the constituency‑‑‑Respondent had been notified to be a successful candidate by Election Commission, which fact constituted a strong factor in his favour, thus, balance of convenience would lie on his side‑‑‑Supreme Court dismissed application for interim relief.

Rashid Ahmed v. Barkat Ali PLD 1968 SC 301; Saeed Hassan v. Pyar Ali PLD 1976 SC. 6; Muhammad Afzal v. Muhammad Altaf Hussain 1986 SCMR 1736; Iqbal War Jhagra v. Khalil‑ur‑Rehman 2000 SCMR 250 and Ahmed Saeed v. Election Tribunal for Kasur at Okara 2003 SCMR 1611 ref.

Raja Muhammad Anwar, Senior Advocate Supreme Court, Raja Shafqat Abbasi, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for Appellant.

Wasim Sajjad, Senior Advocate Supreme Court, Umar Atta Bandial, Advocate Supreme Court and M.S. Khattak, Advocate‑on-­Record for Respondents.

Date of hearing: 23rd February, 2004.

P L D 2004 Supreme Court 357

Present: Syed Deedar Hussain Shah, Faqir Muhammad Khokhar and, Falak Sher, JJ

SARDAR HUSSAIN and others‑‑‑Petitioners

Versus

Mst. PARVEEN UMER and others‑‑‑Respondents

Civil Petitions for Leave to Appeal Nos. 1246 and 1247 of 2003, decided on 17th February, 2004.

(On appeal from the judgment of the Peshawar High Court, Peshawar, dated 22‑5‑2003, passed in Writ Petitions Nos.251, 370 and 333 of 2003).

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

‑‑‑S. 25‑‑‑Custody of minor‑‑‑Paramount consideration was welfare of the minor.

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

‑‑‑‑Ss. 12 & 25‑‑‑West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑­Constitutional petition‑‑‑Custody of minor sons‑‑‑Father claimed custody on the ground that minors had attained age of 7 years; and their mother, after contracting marriage, had children from her second husband‑‑­Guardian Judge accepted father's petition, but Appellate Court dismissed ‑the same, which judgment was upheld by High Court in Constitutional petition ‑‑‑Mine after staying with father for more than 15 days at the direction of the High Court, had proclaimed that father was alien for them thereby showing attachment with mother‑‑‑Minors had been admitted in a standard school, getting education, clothes, food and were enjoying ‑ every facility of life in mother's house‑‑‑Supreme Court dismissed petition and refused leave to appeal with observations that father might approach proper forum for allowing visiting terms to his children.

Azmat Ali v. Chief Settlement and Rehabilitation Commissioner PLD 1964 SC 260; Federation of Pakistan v. Muhammad Ishaque PLD 1983 SC 273; Mst. Seema Chaudhry v. Ahsan Ashraf Sheikh PLD 2003 SC 877 and Mst. Nighat Firdaus v. Khadim Hussian 1998 SCMR 1593 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑High Court had full power to do justice, but could not substitute its own decision for decision of inferior authority.

Azmat Ali v. Chief Settlement and Rehabilitation Commissioner PLD 1964 SC 260 fol.

Raja Muhammad Ibrahim Satti, Advocate Supreme Court for Petitioners (in both Petitions).

Haji Muhammad Zahir Shah, Advocate Supreme Court/Advocate‑on‑Record for Respondents (in both Petitions).

Date of hearing: 17th February, 2004.

P L D 2004 Supreme Court 362

Present: Nazim Hussain Sidduqui, C. J.

Javed Iqbal and Abdul Hameed Dogar, JJ

ALAMZEB‑‑‑ Petitioner

Versus

KAMAL NASIR and others‑‑Respondents

Criminal Petition No.25 of 2004, decided on 26th January, 2004.

(On appeal from the order dated 12th January, 2004 of the Peshawar High Court, Peshawar, passed in Criminal Transfer Application No. 101 of 2003).

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

‑‑‑‑S. 526‑‑‑Penal Code (XLV of 1860), Ss.302/324/427/148/149‑‑­Constitution of Pakistan (1973), Art.185(3)‑‑‑Transfer of case ‑‑‑Complainant toad neither alleged any bias against the Judge of the Trial Court nor had shown any ground of mistrust or lack of confidence. in him‑‑‑Political rivalry between the parties and apprehension of lives of the complainant and his companions would hardly be a ground to transfer the case as it was the duty of the Government to maintain law and order‑‑‑Direction of High Court of conducting the trial of the case inside the District Jail had minimized the said apprehension of the petitioner‑‑­,eave to appeal was refused to the petitioner accordingly.

Mian Habibullah Kakakhil, Advocate Supreme Court for petitioner.

Nemo for Respondents.

Date of hearing: 26th January, 2004.

P L D 2004 Supreme Court 364

Present: Nazim Hussain Sidduqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

RASOOL KHAN and others‑‑‑Petitioners

Versus

Haji BANARAS KHAN and others‑‑‑Respondents

Criminal Petition No.259 of 2001, decided on 27th January, 2004.

(On appeal. from the judgment dated 21st September, 2001. of the Peshawar High Court, Circuit Bench, Abbottabad in Criminal. Appeal No. 56 of 2001).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 419/420/468/471/109‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Criminal Procedure Code (V of 1898), 5.249‑A‑‑‑Constitution of pakistan (1973), Art. 185(3)‑‑‑Moot point to be considered in the case was the very alienation of property in favour of accused respondents through mutations regarding which the Revenue and Anti‑Corruption Authorities had held a. detailed inquiry‑.‑‑Trial. Court had the jurisdiction under S.249‑A, Cr.P.C. to, acquit the, accused at any stage, of the proceedings which .had ,been exercised exactly in accordance with law, and the same had rightly been maintained by the High Court‑‑‑Fact as to whether the mutations in dispute were fraudulently entered or not was yet to be determined by the Civil Court in the civil suit filed by the accused which was pending, adjudication and there was no justification to invoke the jurisdiction of the Criminal Court ‑‑‑Leave to appeal was refused in circumstances.

Fazal Elahi Siddiqui, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioners.

Sardar Muhammad Ghazi; Advocate Supreme Court and Imtiaz, Muhammad Khan, Advocate‑on‑Record for Respondents.

Date of hearing: 27th January, 2004.

P L D 2004 Supreme Court 367

Present: Nazim Hussain Sidduqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

ZAFAR IQBAL alias SHAHID ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Jail Petition No.264 of 2002, decided on 23rd January, 2004.

(On appeal from the judgment dated 14‑5‑2002 of the Lahore High Court, Lahore passed in Criminal Appeal No.56‑J of 2002 and Murder Reference No.5‑T of 2002).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b) & 394‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.46‑‑­Constitution of Pakistan (1973), Art. 185(3)‑‑‑Courts below had rightly treated the F.I.R. as dying declaration‑‑‑Dying declaration made soon after the incident or at a time when the deceased expected death deserved great weight and could not be discarded merely on the assumption that it was the result of consultation or deliberation‑‑‑Ocular testimony and medical evidence had fully corroborated the dying declaration made by the deceased‑‑‑Absence of enmity between the parties had excluded all possibilities of false implication or substitution‑‑‑Murder was pre­planned and brutal‑‑‑Impugned judgment being strictly in accordance with the principles relating to dispensation of criminal justice, no interference was warranted‑‑‑Leave to appeal was refused to accused accordingly.

Farmanullah v. Qadeem Khan and another 2001 SCMR 1474 ref.

(b) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑Ss. 302(b) & 394‑‑‑Qanun-e‑Shahadat (10 of 1984), Art.46‑‑--Appreciation of evidence‑‑Dying declaration‑‑Dying declaration made soon after, the incident or at a time when the deceased expected death deserves great weight and cannot be discarded merely on the assumption of being the‑result of consultation or deliberation.

Farmanullah v. Qadeem, Khan and another 2001 SCMR 1474 ref.

M. Amjad Malik, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing; 23rd January, 2004.

P L D 2004 Supreme Court 371

Present: Nazim Hussain Sidduqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

AMAL SHERIN and another‑‑‑Appellants

Versus

THE STATE through A.‑G., N.‑W.F.P.‑‑‑Respondent

Criminal Appeal No. 111 of 2003, decided on 29th January, 2004.

(On appeal from the judgment dated 19‑2‑2003 of the Peshawar High Court, Peshawar passed in Criminal Appeal No.60 of 1990).

(a) Penal Code (XLV of 1860)‑‑‑-

‑‑‑‑S. 302(b)‑‑‑Appraisal of evidence‑‑‑Trial Court was not justified to reject the eye‑witness account furnished by the complainant and other eye‑witness merely on the ground of being related inter se and interested, particularly when the accused had failed to establish on that the said witnesses had nourished any grudge or ill‑will against them and had deposed with a specific motive‑‑‑High Court, while reversing the judgment of acquittal passed by Trial Court had advanced cogent: reasons by believing the ocular testimony trustworthy which was corroborated by medical evidence, incriminating recovery from the spot and abscondence of accused‑Accused in their statements recorded under S.342, Cr.P.C. had even admitted partly the motive for the occurrence‑‑‑Finding of acquittal recorded by the Trial Court was not supported by the evidence on record and in fact was based on gross misreading and misconstruction of evidence and was also speculative in nature‑‑‑Impugned judgment passed by High Court convicting the accused was maintained accordingly.

Saeed Akhtar and others v. The State 2000 SCMR 383 and Muhammad Ali v. Muhammad Yaqoob and 3 others 1998 SCMR 1814 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Related witness ‑‑‑Principle‑‑­Mere relationship of the witnesses with the deceased would not detract from their veracity, who had absolutely no motive of their own to involve the accused.

Saeed Akhtar and others v. The State 2000 SCMR 383 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Conviction on ocular testimony alone‑‑‑Conviction can be recorded even on the statements of the eye‑witnesses alone without there being any corroboration, provided their evidence inspires confidence.

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

‑‑‑‑S. 417‑‑‑Appeal against acquittal‑‑‑Principles‑‑‑Finding of acquittal is not sacrosanct if the reasons given are of speculative or artificial in nature or the same is based on no evidence or on misreading or misinterpretation of evidence, `or the conclusions drawn as to the guilt or innocence of accused are perverse resulting into miscarriage of justice.

Muhammad Ali v. Muhammad Yaqoob and 3 others 1998 SCMR 1814 ref.

Raja Muhammad Ibrahim Satti, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Appellants.

M. Bilal, Senior Advocate Supreme Court for Respondent.

Date of hearing: 29th January, 2004.

P L D 2004 Supreme Court 376

Present; Syed Deedar Hussain Shah, Faqir Muhammad Khokhar and Falak Sher, JJ

MUHAMMAD IHSAN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Jail Petition No.50 of 2003, decided on 16th February, 2004.

(On appeal from the judgment/order of the High Court of Sindh, Karachi, dated 22‑1‑2003, passed in Special Anti‑Terrorism Jail Appeal No.89 of 2000).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(a), 392, 324, 337‑A(i) & 337‑F(i)‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑­Identity card of the accused was recovered by police from the place of occurrence‑‑‑Incriminating recoveries were made at the pointation of accused‑‑‑Judicial confession made by accused was found to be genuine and voluntary by the Courts below‑‑‑Injured witness had fully implicated the accused in the crime and the defence had failed to Matter her evidence‑‑‑Prosecution witnesses had no previous enmity, ill‑will or malice for false implication of accused‑‑‑Convictions and sentences of accused were based on proper appreciation of ocular and circumstantial evidence‑‑‑Accused had committed the murders of two innocent persons in a callous and brutal manner as well as committed robbery in the house of the complainant and he deserved no leniency‑‑‑Leave to appeal was declined to accused in circumstances.

Muhammad Amjad Malik, Advocate Supreme Court for Petitioner.

Date of hearing: 16th February, 2004.

P L D 2004 Supreme Court 379

Present: Mian Muhammad Ajmal, Hamid Ali Mirza and Khalil‑ur‑Rehman Ramday, JJ

BUNDOO‑‑‑Appellant

Versus

MUKHTAR AHMAD and another‑‑‑Respondents

Criminal Anneal No.259 of 1998, decided on 15th January, 2004.

(On appeal from 'the judgment dated 14‑5‑1997 in Cr.A. No. 12 of 1996 passed by the High Court of Sindh, Karachi).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑Ss.302 & 304, Part II‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑­Leave to appeal was granted by Supreme Court to examine whether conviction of accused was rightly converted by High Court from S.302, P.P.C. to 5.304, Part 11, P.P.C.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 304, Part II & 302‑‑‑Appraisal of evidence‑‑‑Unimpeachable testimony of the eye‑witnesses including the complainant that the accused had fired from his pistol at the abdomen of the deceased was not only consistent inter se, but was also corroborated by medical evidence‑‑­Accused had acted cruelly and furiously with the deadly weapon when the deceased was unarmed and the earlier incident had subsided‑‑‑Said offence, therefore, would amount to culpable homicide amounting to murder punishable. Under 5.302, P.P.C. as the accused was knowing that his act was so dangerous and fatal that it was likely to cause death‑‑‑High Court had erred in law and misread the evidence on record resulting in miscarriage of justice in converting the conviction of accused from S.302, P.P.C. to S.304, Part II, P.P.C. and reducing his sentence‑‑­Impugned judgment was consequently set aside and the conviction of accused under S. 302, P.P.C. and his sentence of imprisonment for life passed by the Sessions Court were restored in circumstances.

Muhammad Nawaz v. The State 1998 SCMR 891 and Javed Ahmad alias Jaida v. The State and another 1978 SCMR 114 ref.

Zulfiqar Ahmad Bhutta, Advocate Supreme Court for Appellant.

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court for Respondent No.2.

Dr. Kazi Khalid Ali, Addl. A.‑G., Sindh for the State.

Date of hearing: 15th January; 2004.

P L D 2004 Supreme Court 385

Present: Rana Bhagwandas, Syed Deedar Hussian Shah and Abdul Hameed Dogar, JJ

PAKISTAN STEEL FABRICATING COMPANY LIMITED and another‑‑‑Petitioners

Versus

MUHAMMAD KALEEMUDDIN and 3 others‑‑‑Respondents

Civil Petitions for Leave to Appeals Nos.233‑K to 236‑K of 2003, decided on 12th February, 2004.

(On appeal from judgment dated 27‑2‑2003, passed by the Federal Service Tribunal, Islamabad, in Appeals Nos.239, 354, 363 and 376(K)(CE) of 2000).

Service Tribunals Act (LXX of 1973)‑‑‑--

‑‑‑‑S. 4‑‑‑Termination of service without issuance of show‑cause notice or holding of enquiry‑‑‑Service Tribunal accepted appeal of civil servant reinstating him in service with back‑benefits‑‑‑Validity‑‑‑Neither management had paid any amount to civil servant nor their case was that they had made any payment‑‑‑Tribunal had given findings of fact on issues agitated before it‑‑‑Impugned judgment was well‑reasoned and based on law‑‑‑No question of law of general public importance being involved in the case, Supreme Court dismissed petition and refused leave to appeal.

Civil Petitions for Leave to Appeals Nos.217‑K to 219‑K, 59‑K to 145‑K, 152‑K to 205‑K and 220‑K to 265‑K of 2002 distinguished.

M.G. Dastgir, Advocate Supreme Court with Raja Sher Muhammad Khan, Advocate‑on‑Record for Petitioners.

Respondents (in person) (in C.Ps.233‑K and 236‑K of 2003).

Date of hearing: 12th February, 2004.

P L D 2004 Supreme, Court 388

Present: Iftikhar Muhammad Chaudhry, Faqir Muhammad Khokhar and Falak Sher, JJ

PAKISTAN TELECOMMUNICATION COMPANY LTD. and others‑‑‑Petitioners

Versus

RAHAT‑E‑ALAM and others ‑‑‑Respondents

Civil Petitions Nos.69‑L to 91‑L of 2004, decided on 9th February, 2004.

(On appeal from judgment dated 4-11‑2003 of the Federal Service Tribunal, Lahore passed in Appeals Nos.596(L)CS/2002 to 618(L)CS/2002).

Pakistan Telecommunication Corporation Act (XVIII of 1991)‑‑--

‑‑‑‑S. 20‑‑‑General Clauses Act (X of 1897), S.21‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Grant of selection grade to Telephone Operators‑‑‑First notification dated 16‑5‑1995 issued by Board with approval of Federal Government granted BS‑11 to Operators holding BS‑8 to 11‑‑‑Second notification dated 22‑5‑1997 granted BS‑11 only to Operators of Overseas Division (Gateway)‑‑‑Second notification was not issued in the manner in which first notification had been issued‑‑‑Supreme Court granted leave to appeal to consider as to what would be the legal status of both such notifications and whether both of them had been issued by competent authority in exercise of powers conferred under S.20 of Pakistan Telecommunication Corporation Act, 1991; whether second notification had been issued by competent authority in exercise of its power to create separate clause in respect of Telephone Operators working in Gateway Exchanges; whether discrimination had not been caused between Telephone Operators, who were working in Inland Exchanges and those who were working in Gateway Exchanges; whether first notification, which had created a right in favour of Operators of Inland Exchanges legally, could be withdrawn after its implementation by issuing a separate second notification; and what would be the effect of contradictory decisions of Tribunal pointed out by petitioner.

Gorsi Muhammad Din Ch. Advocate Supreme Court and Mehmood‑ul‑Islam, Advocate‑on‑Record for Petitioners (in all Cases).

Abdul Wahid Ch. Advocate Supreme Court and Ch. Mehdi Khan Mehtab for Respondent (In C.P. No.69‑L/04 only).

Date of hearing: 9th February, 2004.

P L D 2004 Supreme Court 394

Present: Nazim Hussain Siddiqui, C.J., Syed Deedar Hussain Shah and Abdul Hameed Dogar, JJ

KARL JOHN JOSEPH‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Petition for Leave to Appeal No. 108‑K of 2003, decided on 6th February, 2004.

(On appeal from the judgment/order of the High Court of Sindh at Karachi, dated 18‑12‑2003, passed in Criminal Appeal No.198 of 2003).

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

‑‑‑‑S. 9(c)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Petition for leave to appeal‑‑‑Explanation furnished by the prosecution being convincing and natural, non‑joining of private persons as Mashirs of recovery was of no consequence‑‑‑Case of accused was distinguishable from that of acquitted co‑accused as according to prosecution version the boat from which "Charas" was recovered belonged to the accused and not to the said co‑accused‑‑‑High Court had considered the case in its proper perspective without any misreading or non‑reading of the material and the impugned judgment was‑ based on proper appreciation of facts and law‑‑‑Requirement‑of search warrant could be dispensed with if the same could not be possibly obtained from the Court before conducting the search ‑‑‑A.N.F. Officials, in the circumstances of the case, could not obtain the search warrants from the Court and the complainant, therefore, was competent to search the boat without search warrant‑‑‑Leave to appeal was refused to accused in circumstances.

Fida Jan v. The State 2001 SCMR 36 ref.

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

‑‑‑‑S 20‑‑‑Issuance of search warrants‑‑‑Provisions of S.20 of the Control of Narcotic Substances Act, 1997, being directory in nature, non‑compliance thereof cannot be considered a strong ground for making the trial of accused bad in the eye of law.

Fida Jan v. The State 2001 SCMR 36 ref.

Rana M. Shamim, Advocate Supreme Court and Ms. Wajahat Niaz, Advocate‑on‑Record for Petitioner.

Nemo for Respondent

Date of hearing: 6th February, 2004.

P L D 2004 Supreme Court 399

Present: Nazim Hussain Siddiqui, C.J., Syed Deedar Hussain Shah and Abdul Hameed Dogar, JJ

FEDERATION OF PAKISTAN through Secretary, Election Commission of Pakistan and 3 others‑‑‑Petitioners

Versus

Syed ALI MURAD SHAH and 12 others‑‑‑Respondents/Pro forma Respondents

Civil Petition No.945‑K of 2003, decided on 10th February, 2004.

(On appeal from the judgment/order dated 31‑10‑2003 of the High Court of Sindh, Bench at Sukkur, passed in Constitution Petition No. D‑665/2003).

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

‑‑‑‑Ss. 148 & 156‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑‑Constitutional petition‑‑‑Issuance of notification for holding election for office of Naib Zila Nazim without first holding bye‑election of 104 vacant seats of various Union Councils‑‑‑High Court accepted Constitutional petition of voters by declaring such notification as illegal with direction to Election Commission to first conduct bye‑election against such vacant seats and then commence proceedings with regard to election for office of Naib Zila Nazim‑‑‑Contention of Election Commission was that election to such vacant seats was not necessary as members already notified would constitute electoral college for election of Naib Zila Nazim‑‑‑Validity‑‑‑Electoral college for election of Zila Nazim and Naib Zila Nazim would consist of all members of Union Councils in a District including Union Nazim and Naib Union Nazim‑‑­Electoral college would not be complete without holding bye‑election for such seats lying vacant for more than two years‑‑‑Depriving right of a vote to such 104 voters would not only be against object of adult franchise, but would be denial of privilege of fundamental rights as guaranteed in the Constitution‑‑‑Election for such vacant seats could at best be delayed for a period up to 18 months and that too upon a contingency, otherwise same was to be filled up through bye‑election within a period of one year from the date same fell vacant‑‑‑Non‑holding of bye‑election on such vacant seats even after expiry of one year of announcement of schedule for such purpose was clear violation of S.156 of Sindh Local Government Ordinance, 2001‑‑‑Supreme Court dismissed petition and refused leave to appeal.

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

‑‑‑‑Preamble‑‑‑Local Government system‑‑‑Concept and object‑‑‑Stability and success of such system‑‑‑Essentials stated.

The concept of Local Government system envisages participation of the local population at grass‑roots level and it is with this spirit that the system of Local Government has been introduced through the Ordinance. The basic idea to enforce this system is not only to decentralize the democratic system, but also to promote the welfare of common men. For its success and stability, the completion of such process is essential.

Syed Zaki Muhammad, Dy. A.‑G. and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Dr. Qazi Khalid Ali, Addl. A.‑G. Sindh for Pro forma

Respondents Nos.11 to 13).

Date of hearing: 10th February, 2004.

P L D 2004 Supreme Court 403

Present: Nazim Hussain Siddiqui, Mian Muhammad Ajmal and Falak Sher, JJ

MUHAMMAD ISHAQ‑‑‑Appellant

versus

MUHAMMAD NAEEM and 2 others‑‑‑Respondents

Criminal Appeal No.571 of 2000, decided on 8th October, 2003.

(On appeal from the judgment of the Lahore High Court, Lahore dated 22‑2‑2000 passed in Criminal Appeal No.574 of 1999 and Murder Reference No.190‑T/1999)'

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/34 & 324/34 & 97‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑ Self‑defence, right of‑‑‑No right of self‑defence was available to the accused against the two minor girls and even if the same did accrue it had been exceeded‑‑‑Case, thus, required re‑appraisal of evidence for safe administration of criminal justice ‑‑‑Leave to appeal was granted to the complainant accordingly.

(b) Penal Code (XLV of 1860)‑‑

‑‑‑‑Ss. 302(b)/34 & 324/34 &97‑‑‑Constitution of Pakistan (1973), Art. 185‑‑‑Appeal against acquittal‑‑‑Testimony of the two injured minor girls who had sustained injuries at the hands of the accused and who had no motive to falsely implicate them, was honest and straightforward‑‑­Defence plea did not appeal to reason and the same was neither convincing nor reliable‑‑‑Crime empties secured from the spot had matched with the licensed gun recovered from the accused‑‑‑Private complaint filed by the brother of the accused against the deceased and six others under Ss.394/365/324/452/148/149; P.P.C. after three months of the, occurrence on the same grounds taken by the accused in defence, had been dismissed by the same Trial Court who had tried the challan case and convicted and sentenced the accused‑‑‑Said judgment of the Trial Court dismissing the private complaint having not been assailed by the accused before the High Court in appeal, the same had attained finality and the defence plea had lost its value‑‑‑High Court, thus, was not justified to give overdue importance to the defence plea‑‑‑Even if the plea of self‑defence was presumed to be correct, accused had exceeded the same as no right of self‑defence was available to them against the minor girls to whom the injuries were caused with lethal weapons arid they also had no right to kill the only son of the complainant against whom there was no motive‑‑‑Prosecution, thus, had proved its case against the accused who had been rightly convicted by the Trial Court under Ss. 302(b)/34 & 324/34, P.P.C.‑‑‑Impugned judgment of High Court acquitting the accused. was consequently set aside and the convictions and sentences passed by Trial Court were restored with the exception that the accused were sentenced to imprisonment for life each instead of death‑‑‑Appeal was accepted accordingly.

Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court for Appellant.

Ch. Muhammad Afzal Wahlah, Advocate Supreme Court for Respondents Nos. 1 and 2.

Muhammad Zaman Bhatti, Advocate Supreme Court for the State.

Date of hearing; 8th October, 2003

P L D 2004 Supreme Court 411

Present: Rana Bhagwandas, Javed Iqbal and Karamat Nazir Bhandari, JJ

BASHIR and others‑‑‑Appellants

versus

MEMBER, BOARD OF REVENUE, PUNJAB and others‑‑‑Respondents

Civil Appeal No. 1296 of 1999, decided on 9th October, 2003.

(On appeal from the order of Lahore High Court, Multan Bench dated 21‑7‑1999 passed in Writ Petition No.6788 of 1999).

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

‑‑‑‑Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider the legality of imposition of Tawan on appellant by the authorities.

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

‑‑‑‑S. 10‑‑‑Horse Breeding Scheme‑‑‑Breach of condition‑‑‑Illicit cultivation‑‑‑ Authorities, on such allegations, imposed Tawan on the appellant‑‑‑High Court, in exercise of Constitutional jurisdiction directed the Commissioner‑ to decide the appeal filed by the appellant within six months‑‑‑Validity‑‑‑Appeal before the Commissioner had not been disposed of so far‑‑‑High Court showed great concern that the Appellate Authority was directed to decide the appeal within six months way back in October, 1999, yet the proceedings in appeal were hanging in fire without any hope of decision in near future merely because of pendency of the present appeal before Supreme Court‑‑‑Supreme Court declined to record any finding on the legality or otherwise of the order passed by the Collector as the appeal was pending before the Appellate forum.

Chaudhry Muhammad Abdus Saleem, Advocate Supreme Court for Appellants.

Mrs. Afshan Ghazanfar, .Asstt. A.‑G. Punjab for Respondents.

Date of hearing: 9th October, 2003.

P L D 2004 Supreme Court 413

Present: Iftikhar Muhammad Chaudhry, and Rana Bhagwandas, JJ

MUHAMMAD IQBAL CHAUDHRY and another‑‑‑Petitioners

versus

SECRETARY, MINISTRY OF INDUSTRIES AND PRODUCTION, GOVERNMENT OF PAKISTAN and others‑‑‑Respondents

Civil Petitions Nos.3837‑L and 3840‑L of 2002, decided on 23rd February, 2004.

(On appeal from the judgment/order dated 13‑9‑2002 passed by Federal Service Tribunal in Appeal Nos. 1748(I) and 1540(I) of 1998).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Judgment passed by Service Tribunal‑‑‑Non‑speaking order‑‑‑Although pleadings of the parties had been reproduced through and through but the contentions of the parties and points on which they were resting their cases were not taken into consideration at all by the Service Tribunal‑‑‑Effect‑‑‑Forums seized with the judicial matters are required to pass such a speaking judgment that it should give impression to readers that the legal and factual aspects of the case which were raised before it for the purpose of decision, had been considered and decided in‑the light of recognized principles of law on the subject instead of disposing of in slipshod manner‑‑‑Both the sides, in the present case, stated that instead of allowing the petition to remain pending on the file of Supreme Court, if leave was granted, the case be remanded to Service Tribunal for fresh decision after providing opportunity of hearing to all concerned‑‑‑Petition for leave to appeal was converted into appeal and the case was remanded to Service Tribunal for decision afresh.

Malik Muhammad Qayyum, Advocate Supreme Court, Shaukat Ali Mehr, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on­-Record (absent) for Petitioners (in both Cases).

Hafiz S.A. Rehman, Dy. A.‑G. for Respondent No. 1.

Maqbool Sadiq, Advocate Supreme Court and Mehmood‑ul‑Islam, Advocate‑on‑Record (absent) for Respondents Nos. 2 and 3.

Date of hearing: 23rd February, 2004.

P L D 2004 Supreme Court 415

Present: Nazim Hussain Siddiqui, C.J., Abdul Hameed Dogar and Faqir Muhammad Khokhar, JJ

GHULAM HUSSAIN ‑‑‑Petitioner

versus

UNION COUNCIL KHOKHRAPAR through Secretary Union Council and another‑‑‑Respondents

Civil Petition No.467 of 2004, decided on 3rd March, 2004.

(On appeal from the order dated 11‑2‑2004 of the High Court of Sindh, Circuit Bench, Hyderabad passed in C.P. No.D‑264 of 2003).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 185(3) & 212(3)‑‑‑Petition for leave to appeal before Supreme Court‑‑‑Scope‑‑‑Petition for direction to High Court for early disposal of case‑‑‑Maintainability‑‑‑Petition was pending before High Court and no order of any sort had been passed so far‑‑‑Petition for leave to appeal was maintainable under Art.185(3) of the Constitution only against any judgment, decree, order or sentence of High Court‑‑‑No substantial question of public importance within the contemplation of Art.212(3) of the Constitution was made out to justify grant of leave‑‑‑Petition was dismissed.

Abdul Rahim Kazi, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 3rd March, 2004.

P L D 2004 Supreme Court 416

Present: Syed Deedar Hussain Shah and Faqir Muhammad Khokhar, JJ

LAWRENCEPUR WOOLLEN AND TEXTILE MILLS LTD. ‑‑‑Petitioner

versus

GOVERNMENT OF THE PUNJAB and others ‑-‑Respondents

Civil Petitions Nos.2754, 2764 & 2765 of 2001, decided on 28th January, 2004. .

(On appeal from judgment dated 20‑8‑2001 of the Lahore High Court, Rawalpindi Bench, passed in W. Ps. Nos. 1240, 1241 and 1243 of 2001).

(a) Payment of Wages Act (IV of 1936)‑‑‑

‑‑‑‑S. 15‑‑‑Authority, jurisdiction of‑‑‑Scope and extent‑‑‑Decision of claims‑‑‑Procedure‑‑‑Authority appointed under S.15 of Payment of Wages Act, 1936,is not required to follow definite rules with regard to procedure and evidence‑‑‑Authority is free to hold such inquiry as may be necessary for adjudicating claims of certain classes of employees‑‑­Procedure of adjudication by the Authority is not provided by law‑‑­Authority may decide the claim by providing an opportunity of hearing to the parties, keeping in view the rules of reason, justice and fairplay‑‑‑Authority is free in the matter of deciding disputes, without there being any guidance of procedural laws as to the conduct of proceedings as well as evidence‑‑‑Authority is empowered to exercise certain powers and to take judicial proceeding as are vested in a Civil Court under the Civil Procedure Code, 1908, but only for a very limited purpose‑‑‑Authority does not have any inherent powers which are available to a . Court of justice‑‑‑Authority cannot render binding judgments on complicated questions of law‑‑‑Process of investigating or adjudicating the claim of certain employees for giving a direction for payment of wages is not a trial of suit at law‑‑‑Normal Court procedure is not applicable to the Authority‑‑‑All necessary attributes and trappings of a Court of law are not attached to the Authority.

(b) Payment of Wages Act (IV of 1936)‑‑

‑‑‑‑S. 15‑‑‑Constitution of Pakistan(1973), Arts. 175 & 185(3)‑‑­Recovery of wages‑‑ ‑Authority, jurisdiction of‑‑‑Employees filed applications before the Commissioner for Workmen's Compensation as the Authority under S.15 of Payment of Wages Act, 1936‑‑‑Employer raised objection to the jurisdiction of the Authority which objection was set aside by the High Court‑‑‑Validity‑‑‑Authority/Tribunal had been established through a valid legislation which did not offend or violate the concept of independence of judiciary as contemplated by Art.175 of the Constitution‑‑‑Judgment of High Court was based on sound reasons and was plainly correct and the same did not warrant any interference by Supreme Court‑‑‑Leave to appeal was refused.

Works Manager, Carriage arid Wagon Shops, Mughalpura v. K.G. Hashmat AIR 1946 Lah. 316; A. Hasan v. Muhammad Shamsuddin and another AIR 1951 Pat. 14; Government of Sindh through Chief Secretary and others v. Sharaf Faridi and others PLD 1994 SC 105; Government of Balochistan though Additional Chief Secretary v. Azizullah and 16 other's PLD 1993 SC 341 and Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504 distinguished.

Motabar and 14 others v. Messrs S.M. Rehman and Company, Quetta and others PLD 1971 Quetta 47; Messrs S.M. Rehman and Company, Quetta v. Motabar and 14 others PLD 1981 SC 282; A.V.D. Costa Divisional Engineer GIP Railway v. BC Patel and another AIR 1955 SC 412; Sawat Ram Pareshad Mills Company Ltd. v. Vishnu AIR 1950 Nag. 14; Mewr Textile Mills Ltd. Bhilwara v. Girdharishing and others AIR 1957 Raj. 115; Labangalata Dei v. SK Azizullah AIR 1958 Orissa 123; Turabali v. Sorabji AIR 1944 Nag. 288; Charan lingh v. Birla Textiles AIR 1988 SC 2022; Khadim Mohyuddin and another v. Ch. Rehmat Ali Nagra PLD 1965 SC 459 and Ghulam Mustafa and another v. Pakistan Industrial Gases Ltd. and others 2002 PLC 52 rel.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 28th January, 2004.

P L D 2004 Supreme Court 421

Present: Mian Muhammad Ajmal and Sardar Muhammad Raza Khan, JJ

MUHAMMAD UMAR KHAN and another ‑‑‑Petitioners

versus

SENIOR MEMBER, BOARD OF REVENUE N.‑W.F.P. and others‑‑‑Respondents

Civil Petition No.800‑P of 2003, decided on 13th February, 2004.

(On appeal from the judgment dated 12‑12‑2003 passed by the Peshawar High Court, Peshawar Circuit Bench D.I. Khan in Writ Petition No. 135 of 2002).

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

‑‑‑‑Ss. 135 & 137‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑­Partition proceedings‑‑‑Non‑issuance of notice to the parties‑‑‑Grievance of the petitioners was that they were not party to the partition proceedings conducted in year, 1974‑‑‑Validity‑‑‑Even if it was assumed that notice was not served upon the petitioners as provided by the Civil Procedure Code, 1908, yet it was observed that the partition proceedings were conducted under a special law contained in Ss. 135 and 137 of West Pakistan Land Revenue Act, 1967‑‑‑Petitioners not only had knowledge of the proceedings entailing upon the appointment of their own father as their attorney and the appointment of an advocate but also had joined the proceedings‑‑‑Now when the partition happened to be finalized the petitioners had come with the fake stance in order to frustrate the proceedings that had commenced way back in the year, 1974‑‑‑Supreme Court declined to interfere in the judgment passed by High Court in exercise of Constitutional jurisdiction‑‑‑Leave to appeal was refused.

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

‑‑‑‑Ss. 135 & 137‑‑‑Partition proceedings‑‑‑Notice to parties‑‑‑Object, scope and procedure‑‑‑Any joint owner of land may apply to a Revenue Officer for partition of his share in the land‑‑‑Only conditions relevant are to the effect that the joint owner is recorded as sharer in the Revenue Record or that his right is established by a decree subsisting at the relevant time or a written acknowledgement of that right has been executed by all persons interested in the admission or denial thereof‑‑­ Regarding impleading of respondents, S.135 of West Pakistan Land Revenue Act, 1967, is completely silent‑‑‑Even if the co‑sharers are not joined in the partition application, the Revenue Officer is to issue notice to all the sharers after himself consulting the Revenue Record‑‑‑Revenue Officer is further empowered to issue notice or proclamation for the information of any other person or persons whom the Officer may deem to be directly or indirectly interested in the partition application‑‑­ After consulting the Revenue Record, the Revenue Officer is required suo motu to issue notice or proclamations for information to all the co‑sharers even if not a party to the application‑‑‑Such manner of service provides opportunity to the co‑sharers to join the partition proceedings as and when they get knowledge thereof.

Mian Younis Shah, Senior Advocate Supreme Court and Syed Safdar Hussain, Advocate‑on‑Record for Petitioners.

Haji Muhammad Zahir Shah, Advocate‑on‑Record for Respondents Nos.4, 5, 8‑10 and 12.

Nemo for the Remaining Respondents.

Date of hearing: 13th February, 2004.

P L D 2004 Supreme Court 425

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Sardar Muhammad Raza Khan, JJ

ZILA COUNCIL, SIALKOT through Administrator‑‑‑Appellant

versus

ABDUL GHANI PROPRIETOR IQBAL BROTHERS, SIALKOT and others‑‑‑Respondents

Civil Appeals Nos.979 and 980 of 1996, decided on 8th March, 2004.

(On appeal from the judgment/order dated 30‑6‑1994 passed by Lahore High Court, Lahore in Writ Petitions Nos.3282 and 3521 of 1984).

(a) Punjab Local Government Ordinance (VI of 1979)‑‑‑

‑‑‑‑Ss. 6(2)(c) is amended by Punjab Local Government (Amendment) Act (I of 1996): 137 & 144‑‑‑Punjab Zila Council (Export Tax) Rules, 1990, Rr.3(1). & 5‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑­Collection of Export Tax (Goods Exit Tax) ‑‑‑Zila Council, jurisdiction of‑‑‑Dispute between the parties was with regard to collection of Export Tax by Zila Council‑‑‑Contention of the exporter was that the goods exported by him were from the municipal limits and not from the limits of Zila Council‑‑‑High Court allowed the Constitutional petition filed by the exporter and declared that the Export Tax could not be collected by the Zila Council‑‑‑Validity‑‑‑After the substitution of definition of "Zila" by Punjab Local Government (Amendment) Act, 1996, tax oh export of goods was not leviable being exported from the limits of the Municipal Committee , i.e. urban area but then onwards for the purposes of the tax, there would be no exception between urban or rural areas and Zila Council would be competent to levy Export Tax on the goods going outside the Zila/District either from the limits of the Municipal Committee or from the Zila Council‑‑‑Definition of word "Zila" under S.6(2)(c) of Punjab Local Government Ordinance, 1979, having been extended with effect from 1‑7‑1990, for the purpose of levy of tax on the export of goods, therefore, from that date onwards Zila Council had competency to recover the tax on the export of goods‑‑‑Prior to such date no such tax was recoverable from the exporters‑‑‑Appeal was disposed of accordingly.

PLJ 1996 Punjab Statute 24 and Zila Council, Jhang v. Daewoo Corporation 2001 SCMR 1012 ref.

(b) Interpretation of statutes‑‑

‑‑‑‑ Fiscal statute, operation of‑‑‑Scope‑‑‑Such statute ordinarily operates prospectively unless by express enactment or necessary intendment retrospective operation has been given to it:

Zakaria H.A. Sattar Biulwani v. Inspecting Additional Commissioner 2003 SCMR 271 and Molasses Trading and Export (Pvt) Ltd. v. Federation of Pakistan 1993 SCMR 1905 rel.

Ch. Amir Rehman, Advocate Supreme Court and Mahmood‑ul-­Islam, Advocate‑on‑ Record (absent) for Appellant (in Civil Appeals Nos.979 and 980 of 1996).

Mrs. Afshan Ghazanfar, Asstt. A.G. (Pb.) for Respondent No.31 (in Civil Appeal No.979 of 1996).

Nemo for Respondents Nos.1‑30 (in Civil Appeal No.979 of 1996).

Ex parte: Respondents (in Civil Appeal No.980 of 1996).

Date of hearing: 25th February, 2004.

P L D 2004 Supreme Court 430

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Sardar Muhammad Raza Khan, JJ

MIRAJ DIN and 56 others‑‑‑Appellants

versus

EVACUEE TRUST PROPERTY BOARD, LAHORE and others‑‑‑Respondents

Civil Appeal No.2220 of 1998, heard on 21st January, 2004.

(On appeal from the judgment/order dated 3‑12‑1996 passed by Lahore High Court, Lahore in W. P. No. 104‑R of 1987).

Per Iftikhar Muhammad Chaudhry, J.

(a) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)‑‑‑

‑‑‑‑S. 10‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider; whether S.10 of Evacuee Trust Properties (Management and Disposal) Act, 1975, was attracted in the case; and what was the effect of judgments passed by High Court in Writ Petition No.384 of 1968 and Writ Petition No. l l‑R of 1971.

Writ Petitions Nos. 718 and 805 of 1962 ref.

(b) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

‑‑‑‑S. 5‑‑‑Evacuee property‑‑‑Status of such property being trust property‑‑‑ Determination‑‑‑Chief Settlement Commissioner was competent under S.5 of Displaced Persons (Land Settlement) Act, 1958, to determine the status of property namely as to whether it was an evacuee property or not.

(c) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

‑‑‑‑S. 5‑‑‑Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975), S.10‑‑‑Evacuee property‑‑‑Status of such property being trust property‑‑‑ Determination‑‑‑Agriculture land allotted to the appellants was cancelled by the Chairman Evacuee Trust Property Board on the ground that the property was a trust property and was not available for allotment‑‑‑Federal Government in exercise of revisional jurisdiction restored the allotment‑ ‑High Court in exercise of Constitutional jurisdiction allowed the petition filed by the authorities against the order of Federal Government and the order passed by the Chairman was restored‑‑‑Agriculture land in dispute had been irrigated through canal water since 1956, when the same was transferred to the appellants against their verified claims‑‑‑Status of the land in the allotment letter had not been shown to be Ghair Mazroa i.e. uncultivable agriculture land, but it had been shown to be Mazroa i.e. cultivable agriculture land‑‑‑Effect‑‑‑Unless in the light of available record such question was determined in depth by the Chairman Evacuee Trust Property Board in exercise of powers under S.10(2)(3) of Evacuee Trust Properties (Management and Disposal) Act, 1975, it would be unfair to non‑suit the appellants solely for the reason that by means of general letter dated 7‑8‑1961, issued by Chairman Evacuee Trust Property Board had directed the cancellation of the evacuee trust land transferred to the claimants against their verified claims‑‑‑Supreme Court remanded the matter to the Chairman Evacuee Trust Property Board for decision of the case afresh after determination of the status of the land.

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

‑‑‑‑O. XXII, Rr.1, 2 & S.99‑‑‑Non‑joinder of legal heirs‑‑‑Appeal, dismissal of‑‑‑Respondent sought dismissal of appeal on the ground of non joinder of legal heirs of some of the appellants who had passed away during the pendency of proceedings either before Supreme Court or before High Court‑‑‑Validity‑‑‑Joint cause of action had accrued to all the appellants, therefore, even if one of the appellants was alive, appeal could proceed legally on his behest.

Per Rana Bhagwandas, J.‑‑

(e) Displaced Persons (Land Settlement) Act (XLVII of 1958)‑‑‑

S.5‑‑‑Memorandum No.1052/Pol/71, dated, 17‑6‑1971, issued by Chief Settlement Commissioner‑‑‑Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975); S.10‑‑‑Evacuee property‑‑‑Status of such property being trust property‑‑‑Determination‑‑‑Void order‑‑­Agriculture land allotted to the appellants was cancelled by the Chairman Evacuee Trust Property Board on the ground that the property was a trust property and was not available for allotment‑‑‑Such cancellation was made on the basis of an omnibus order passed by the Chairman‑‑­Appellants assailed the ' order before High Court in exercise of Constitutional jurisdiction but the Constitutional petition was dismissed for non‑prosecution‑‑‑Appellants approached the Chairman Evacuee Trust Property Board but their appeals were dismissed‑‑‑Federal Government in exercise of revisional jurisdiction restored the allotment‑‑‑High Court in exercise of Constitutional jurisdiction allowed the petition filed by the authorities against the order of Federal Government and the order passed by the Chairman was revived‑‑­Validity‑‑‑Appellants unsuccessfully challenged the omnibus order of the Chairman, as such the same was not fatal to the case of the appellants as the order of the Chairman did not have any support of law‑‑‑Neither the Chairman exercised his power under any provision of law, nor anybody determined the character and status of the land transferred in favour of the appellants‑‑‑Dismissal of Constitutional petitions for lack of prosecution would neither operate as estoppel nor would create any legal hurdle in the way of relief claimed by the appellants as the order was void‑‑‑In absence of any determination of status of land transferred to the appellants, they appeared to be ill‑advised in challenging the omnibus order of the Chairman Evacuee Trust Property Board‑‑‑Chief Settlement Commissioner had directed that the evacuee trust agricultural lands utilized before June, 1964 for allotment against satisfaction of verified claims should be treated to have been sold to Settlement organization‑‑­Evacuee Trust Property Board had already accepted the decision of the Chief Settlement Commissioner, thus the land could not be taken away from the appellants because the Board was entitled to its price only‑‑­Judgment of High Court was set aside and the case was remanded to the Chairman Evacuee Trust Property Board for determination of the status of the land.

Maqbool Ellahi Malik Senior Advocate Supreme Court for Appellants.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondents Nos. l and 2.

Ex parte: Respondents Nos.3 and 4.

Date of hearing: 21st January, 2004.

P L D 2004 Supreme Court 452

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

MUHAMMAD KHAN JUNEJO‑‑‑Appellant

Versus

FIDA HUSSAIN DERO and others‑‑‑Respondents

C.M.A. No.257 of 2004 and Civil Appeal No.2 of 2004, decided on 16th February, 2004.

(On appeal from the judgment dated 16‑1‑2004 of the Election Tribunal Sindh at Karachi, passed in Election Petition No. 125 of 2002).

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

‑‑‑‑Ss. 55(1)(a)(b), 67, 99(I)(CC)‑‑‑Conduct of General Elections Order [Chief Executive Order No.7 of 2002), Art.8‑A‑‑‑Qanun‑e­-Shahadat (10 of 1984), Arts. 129(g) & 130‑‑‑Election petition‑‑‑Fake and bogus degree‑‑‑Determination‑‑‑Causing delay in proceedings before Election Tribunal‑‑‑Defence, striking off‑‑‑Non‑production of original degree‑‑‑Presumption‑‑Failure to cross‑examine‑‑‑Effect‑‑‑Election petition was filed against the appellant on the ground that the degree of BA produced by him was fake and bogus document‑‑‑Sufficient opportunities were provided to the appellant for production of evidence which were not availed for the reasons mentioned on each date‑‑‑Election Tribunal finally accepted the election petition on the basis of evidence produced by the election petitioner only‑‑‑Plea raised by the appellant was that proper opportunity, of defence was not afforded to him which resulted in serious miscarriage of justice‑‑‑Validity‑‑‑Held, it was mandatory requirement of S.67 of Representation of the People Act, . 1976, that Election Tribunal would proceed with the trial of election petition on‑ day to day basis and decision thereof would be taken within four months from its receipt‑‑‑Election petition could not have been adjourned for an indefinite period and frequent adjournments could not have been given without any justification, when such petition was to be concluded within a period of four months‑‑‑On the request of the appellant, the Chancellor of the University constituted a High Powered Committee to make a thorough probe in the matter of appellant‑‑­Committee unanimously and unequivocally observed that the degree of the appellant was not genuine and was false and fake‑‑‑Report of the Committee was produced before the Election Tribunal which was never cross‑examined and the genuineness and authenticity of the report went un‑rebutted which amounted to admission‑‑‑Appellant failed to produce original degree before Election Tribunal and the presumption would be that no genuine degree was ever obtained‑‑‑Supreme Court itself had examined the documentary evidence, authenticity and genuineness whereof neither could be rebutted nor challenged‑‑‑Only irresistible conclusion would be that the degree furnished by the appellant along with his nomination paper was fake and bogus‑‑‑Question regarding genuineness of the degree was a question of fact which had rightly been determined by the Election Tribunal and no illegality had been committed warranting interference by Supreme Court‑‑‑Appeal was dismissed.

Manzoor Ahmad v. Islamic Republic of Pakistan 1990 MLD 2140 and Secretary Works, Government of N.‑W.F.P. v. Hisamul Ahmad 1999 MLD 818 ref.

S.M. Zafar Senior Advocate Supreme Court and Imtiaz M. Khan Advocate‑on‑Record (absent) for Appellant.

Rasheed A. Rizvi Advocate Supreme Court for Respondent No. 1.

Date of hearing: 16th February, 2004.

P L D 2004 Supreme Court 465