PLD 2005 Judgments

P L D 2005 Federal Shariat Court 1

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

NAZIR AHMED ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Shariat Petition No. 1/I of 1997, decided on 16th December, 2004.

Zakat and Ushr Ordinance (XVIII of 1980)‑‑‑

‑‑‑‑S. 1(3), proviso‑‑‑Deducation of Zakat‑‑‑Exemption from‑‑‑Proviso to subsection (3) of S.1 of Zakat and Ushr Ordinance, 1980 did not make any distinction between followers of five recognized Fiqhas, namely Fiqh Hanfi; Fiqh Shafai; Fiqh Maliki; Fiqh Hambali and Fiqh‑e‑Jafariyah--Exemption from deduction of Zakat, in circumstance could validly be claimed by followers of any of said five Fiqhas.

Miss Farzana Asar’s case PLD 1999 SC 476 ref.

Petitioner in person.

Sarder Abdul Majeed Khan, Standing Counsel for Federal Government.

Muhammad Shoaib for A.G., Sindh.

Muhammad Sharif Janjua for A.G. N.W.F.P.

M. Yousaf Butt, Accounts Officer for M/O Religious Affairs.

Date of hearing: 16th December, 2004.

JUDGMENT

CH. EJAZ YOUSAF, C. J.‑‑‑The instant petition is directed against compulsory deduction of Zakat. Notice was issued to the petitioner, in response whereof he has conveyed that he being an aged person, and not enjoying good health, is unable to appear before this Court. Be that as it may, since the controversy in hand, has been set at rest by the Hon'ble Supreme Court of Pakistan in the case of Miss Farzana Asar reported as PLD 1999 SC 476 whereby it has been unequivocally laid down that the proviso to subsection (3) of section 1 of the Zakat and Ushr Ordinance, 1980, does not make any distinction between the followers of the five recognized Fiqhas, namely, (1) Fiqh Hanfi;

(2) Fiqh Shafai

(3) Fiqh Maliki;

(4) Fiqh Hambali; and

(5) Fiqh‑e‑Jafariyah.

therefore, exemption thereunder can validly be claimed by the followers of any of the above Fiqhas. It would be advantageous to reproduce hereinbelow the relevant discussion which reads as follows:‑‑

"The above contention seems to be untenable. The controversy involved was not as to whether the declaration made by the respondent was invalid as per her Fiqh i.e. Fiqh Hanafiya but as to whether under the above proviso to subsection (3) of section 1 any discrimination can be made inter se between the various Fiqhas. The above proviso reads as under:

`Provided further that, where for any reasons Zakat or Ushr is collected on compulsory basis from such a person and. he does not wish to leave it in the Zakat Fund as Sadaqah or Khairat in the name of Allah as a manifestation of the unity of the Ummah and claims refund, on the basis of a declaration as aforesaid filed by him within the period specified in the first proviso or within such further period as may be prescribed, the amount so collected shall be refunded to him in the prescribed manner.'

The perusal of the above proviso indicates that it does not make any distinction between any of the recognized Fiqhas. If the above proviso would have made distinction between the various recognized Fiqhas on the basis of reasonable classification i.e., it should have been based:‑‑

(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;

(b) that the differentia must have rational nexus to the object sought to be achieved by such classification, the same might have been justified to treat Fiqh Jafariyah differently from the other recognized Fiqhas."

In view of above clear exposition of law on the subject by the apex Court further deliberation, in our view, appears to be redundant and superfluous. The petition, therefore, is dismissed.

H.B.T./87/FSC Petition dismissed.

P L D 2005 Federal Shariat Court 3

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

Dr. MUHAMMAD ASLAM KHAKI and others‑‑‑Petitioners

Versus

GOVERNMENT OF PUNJABand others‑‑‑Respondents

Shariat Petitions Nos. 32/I, 33/I, 34/I, 40/I, 41/I, 42/I, 49/I, 50/I and 51/I of 1992, decided on 16th December, 2004.

(a) Islamic jurisprudence‑‑

‑‑‑‑Administration of justice in Islam‑‑‑Appeal‑‑‑Right of appeal is always there in Islam; the Shariah gives less importance to the procedural issues and lays emphasis in maintaining justice and equity; no person can be penalized without giving him a chance to be heard and the Appellate Court/forum is under legal obligation to decide the appeal itself and question of association of the Trial Judge/Qazi in the proceedings of the appeal does not arise‑‑‑Principles.

Right of appeal is recognized by the Holy Qur'an as well as Sunnah of Holy Prophet.

Islam lays emphasis on maintaining justice and equity. The Qazi has to decide the case according to the Islamic Principles of Qaza. He must be impartial and should decide the cases on the basis of equity, justice and upright testimony. The object of Islamic Justice system is the removal of injustice from the society. The Holy Prophet (Peace be upon him) was the first one to demonstrate impartiality during the administration of justice. Because of his impartiality and uprightness, very often, the non‑Muslims used to bring their disputes before him for adjudication.

The Muslims in general have been commanded by Allah to maintain justice and equity in their affairs.

In the light of tradition of the Holy Prophet (Peace be upon him) it is not necessary that the person before whom the dispute is brought for decision must occupy the office of Qazi. The phrase "each one of you is a king" in the tradition (Al‑Bukhari‑Kitabul‑Ahkam) makes it abundantly clear that any functionary occupying judicial, quasi‑judicial or administrative, post/capacity who wields the power of rendering decision on any dispute, brought, before him, squarely falls within the definition of Qazi.

In Islam there is no particular structure of judiciary, changes can be brought in it at any stage to meet the requirement of the age. Shariah is not hinged by procedural technicalities. The main object, which is required to be achieved is to maintain justice and equity.

If any Muslim, by consent of the parties, hears and decides any matter, his decision would be lawful and operative.

The Qazi‑ul‑Ulamar may direct any person to decide a particular case and the decision so rendered by him would be with jurisdiction.

Four things become abundantly clear, (i) right of appeal is always there in Islam (ii) the Shariah gives less importance to the procedural issues and lays emphasis in maintaining justice and equity (iii) no person can be penalized without giving him a chance to be heard (iv) the Appellate Court/forum is under legal obligation to decide the appeal itself and question of association of the Trial Judge/Qazi in the proceedings of the appeal does not arise.

In Shariah, the jurists are unanimously agreed on the point that a Qazi cannot hear his own case nor deliver judgment in his own favour. If he does so, his act would create suspicion in the minds of the people.

The Khulafa despite possessing administrative and judicial powers, referred their cases to independent judges for its adjudication.

The adjudicating authority, while deciding the cases between citizens inter se or between citizen and State functionary must be independent and should not be one who himself is directly or indirectly a party to the case or otherwise delivered judgment therein.

Justice should not only be done but it should also appear to be done.

Zafar Awan v. The Islamic Republic of Pakistan; PLD 1989 FSC 84; Al‑Bukhari Katabul‑Ahkaam; 144 ﻥﺩﻣﺗﻰﻣﻼﺴﺍﻯﻭﺑﻧ ﺩﻬﻋ by Maulana Razi‑ud‑Din Ahmad Fakhri, p.144; Mawardi, Vol. VI, p.388 by Adab‑ul‑Qazi; PLD 1985 FSC 365; Pakistan through Secretary, Ministry of Defence v. The General Public PLD 1989 SC 6; Zaidan; Nizamul Qaza, p.272; Al.‑Farooq Vol.4, pp.43‑44; Al‑Samhudi Wafa­-al‑Wafa Part 2, pp.482‑483; Muhammad Bin Hayyan Akhtar Al‑Qudat Vol. I, p.108; Hazrat Ali Ibne Abi Talib by Arman Serhadi, p.267; Anwar v. The Crown PLD 1955 FC 185; Mubarik Ali Bhatti v. Fiaz Ali Khan and others PLD 1963 Lah. 8 and Rehmatullah v. Government of West Pakistan PLD 1965 Lah. 112 ref.

(b) University of Engineering and Technology, Lahore Act (V of 1974), Ss. 23 & 42‑‑‑Baha‑ud‑Din Zakariya University Act (III of 1975), Ss.25 & 43‑‑‑University of the Agriculture Faisalabad Act (XII of 1973), Ss.24 & 42‑‑‑Gomal University Act (X of 1974), Ss. 21 & 39‑‑‑N.‑W.F.P. University of Engineering and Technology Ordinance (XIII of 1980), Ss.14 & 35‑‑‑N.‑W.F.P. Agricultural University Ordinance (I of 1981), Ss.14 & 35‑‑‑University of Punjab Act (IX of 1973), Ss.25 & 43‑‑‑Islamia University, Bahawalpur Act (IV of 1975); Ss.24 & 42 and University of Peshawar Act (II of 1975), Ss.21 & 39‑‑‑

‑‑‑‑Constitution of Pakistan (1973), Art.203‑D‑‑‑Repugnancy to Injunctions of Islam ‑‑‑Vires of University of Engineering and Technology, Lahore Act (V of 1974), Ss.23 & 42; Baha‑ud‑Din Zakariya University Act (III of 1975), Ss.25 & 43; University of the Agriculture Faisalabad Act (XII of 1973), Ss.24 & 42; Gomal University Act (X of 1974), Ss.21 & 39; N.‑W.F.P. University of Engineering and Technology Ordinance (XIII of 1980), Ss.14 & 35; N.‑W.F.P. Agricultural University Ordinance (I of 1981), Ss. 14 & 35; University of Punjab Act (IX of 1973), Ss.25 & 43; Islamia University, Bahawalpur Act (IV of 1975); Ss.24 & 42 and University of Peshawar Act (II of 1975), Ss. 21 & 39‑‑Contentions of the petitioners were that Vice­-Chancellor of the University, having himself imposed punishment upon the delinquent employees of the University, could not be legally permitted to attend the meeting of the‑ Syndicate at the time of adjudication of their appeal; that it would amount to making the Vice-­Chancellor Judge in his own cause which would lead to unsavoury, rather unacceptable consequences; that Vice‑Chancellor being the Head of the administration of the University, was most likely to exert overt/covert influence on those members of the Syndicate who happened to be his subordinates and that the ultimate verdict of the Syndicate would be violative of the Injunctions of Islam‑‑‑Petitioners thus prayed that the relevant provisions of the impugned legislation being repugnant to the Injunctions of Islam merited to be declared as such with consequential direction to the concerned Provincial Government to suitably amend them so as to be brought in conformity with the Injunctions of Islam‑‑‑Plea raised on behalf of the Universities was that since against the decision of the Syndicate the employee could now avail of remedy of revision petition before the Chancellor of the University provided under the relevant provision, therefore impugned provisions of the respective statutes did not call for any change/amendment‑‑-Validity‑‑‑Held, Ss.23 & 42 of University of Engineering and Technology, Lahore Act (V of 1974), Ss.25 & 43 of Baha‑ud‑Din Zakariya University Act (III of 1975), Ss.24 & 42 of University of the Agriculture Faisalabad Act (XII of 1973), Ss.21 & 39 of Gomal University Act (X of 1974), Ss.14 & 35 of N.‑W.F.P. University of Engineering and Technology Ordinance (XIII of 1980), Ss.14 & 35 of N.‑W.F.P. Agricultural University Ordinance (I of 1981), Ss.25 & 43 of University of Punjab Act (IX of 1973), Ss.24 & 42 of Islamia University, Bahawalpur Act (IV of 1975) and Ss. 21 & 39 of University of Peshawar Act (II of 1975) in their present form, were violative of Injunctions of Islam to the extent that these permit the Vice‑Chancellor to participate in the proceedings, of the Syndicate for decision of the appeal of any employee of the University who had been punished, in any manner, by him‑‑‑Federal Shariat Court directed the authorities to suitably amend Ss.23 & 42 of University of Engineering and Technology, Lahore Act (V of 1974), Ss. 25 & 43 of Baha‑ud‑Din Zakariya University Act (III of 1975), Ss.24 & 42 of University of the Agriculture Faisalabad Act (XII of 1973), Ss.21 & 39 of Gomal University Act (X of 1974), Ss.14 & 35 of N.‑W.F.P. University of Engineering and Technology Ordinance (XIII of 1980), Ss.14 & 35 of N.‑W.F.P. Agricultural University Ordinance (I of 1981), Ss.25 & 43 of University of Punjab Act (IX of 1973), Ss.24 & 42 of Islamia University; Bahawalpur Act (IV of 1975) and Ss.21 & 39 of University of Peshawar Act (II of 1975), so as to incorporate provisions therein that the Vice‑Chancellor would be debarred .from participating in the meeting of the Syndicate before which the appeal of an employee of the University, challenging his adverse order, passed qua him, was presented for adjudication‑‑‑Necessary amendments were directed to be carried out within six months i.e. before the 15‑6‑2005, failing which the impugned provisions would cease to have legal effect‑‑‑Principles.

Contentions of the petitioners were that the impugned provisions of respective laws were repugnant to the, Injunctions of Holy Qur'an and Sunnah and merit to be declared as such with consequential direction to the concerned Provincial Government to suitably amend them so as to be brought in conformity with the Injunctions of Islam.

The thrust of the arguments of the petitioner was that the Vice­-Chancellor, having himself imposed punishment upon the delinquent employee of the University, could not be legally permitted to attend the meeting of the Syndicate at the time of adjudication of his appeal. It was argued that it would amount to making the Vice‑Chancellor judge in his own cause which would lead to unsavoury, rather unacceptable consequences. He being the Head of the administration of the University, was most likely to exert overt/covert influence on those members of the Syndicate who happened to be his subordinates. The ultimate verdict of the Syndicate would be violative of the Injunctions of Islam.

The plea raised on behalf of the University was that since against the decision of the Syndicate the employee can now avail of remedy of revision petition before Chancellor, therefore, impugned provisions do not call for any change/amendment.

Under the impugned provisions the Vice‑Chancellor of the University, in exercise of his administrative powers takes disciplinary action against an, employee of the University and, subsequently, presides over the appellate forum i.e.' Syndicate to hear the appeal of the said employee.

University Syndicate, as a body, while dealing with the appeal of any aggrieved employee of the University is to be equated with Qazi.

The employee having been penalized by the Vice‑Chancellor, could not in the ordinary course of human behaviour, have faith in him, when he presides over the meeting of the Syndicate to decide his appeal. Whether or not the Vice‑Chancellor sits there with open mind, unbiased by his previous decision in the matter, is immaterial, as Islamic system of justice requires that the aggrieved person (herein the employee) should not harbour any apprehension in his mind that he would not be able to receive fair and impartial decision of his appeal. The possibility of the lurking fear in his mind that some members of the Syndicate, might be influenced by the presence of the Vice‑Chancellor cannot be ruled out.

It is of paramount importance that parties arraigned before Courts should have confidence in the impartiality of the Courts.

Indeed reasonable apprehension would arise in the mind of aggrieved employee that the presence of Vice‑Chancellor in. the meeting of the Syndicate would adversely affect the decision of the appeal against his order. It provided ample justification for transfer of the Lis to another forum of competent jurisdiction, which, in the scheme of the Act, is non‑existent.

Scope of the revisional power is quite limited and it would be exercised only in cases involving illegal assumption, non‑exercise, or irregular exercise of jurisdiction by the lower Court/forum. It cannot be invoked against conclusions of law or facts, which do not in any way affect the jurisdiction of the lower Court, no matter, howsoever erroneous or wrong its decision may be on a question of law or facts, unless it involves a matter of jurisdiction.

The person/functionary who decided the matter at initial stage would become disqualified to hear the same matter at any level i.e. appellate/review proceedings. The mere presence of such a person in these proceedings "renders it incompetent to function as such" and "it is immaterial in appellate/revisional forum what part that particular member played in the proceedings of the Tribunal and how far he was able to influence its decision".

The revisional jurisdiction is discretionary in nature and the revision, if preferred, might be turned down/rejected in limine in the secrecy of his chamber by the Chancellor without even calling the employee for hearing and or sending for the record of the case. This remedy thus might prove quite illusory for the employee with the bitter feeling that justice has been denied to him. Such a situation cannot be countenanced in the Islamic system of justice for adjudication of dispute. The plea raised by the respondent University is repelled, as being devoid of force.

Impugned provisions in their present form, are violative of Injunctions of Islam to the extent that these permit the Vice‑Chancellor to participate in the proceedings of the Syndicate for decision of the appeal of any employee of the University who had been punished, in any manner, by him.

Federal Shariat Court directed the Authorities to suitably amend sections 23 and 41 of the University of Engineering and Technology, Lahore Act, 1974; Ss. 25 & 43 of Baha‑ud‑Din Zakariya University Act, 1975; Ss.24 & 42 of University of the Agriculture Faisala6ad Act, 1973; Ss.21 & 39 of Gomal University Act, 1974; Ss.14 & 35 of N.‑W.F.P. University of Engineering and Technology Ordinance, 1980; Ss. 14 & 35 of N.‑W.F.P. Agricultural University Ordinance, 1981; Ss.25 & 43 of University of Punjab Act, 1973; Ss.24 & 42 of Islamia University, Bahawalpur Act, 1975 and Ss.21 & 39 of University of Peshawar Act, 1975 so as to incorporate provisions therein that the Vice‑Chancellor would be debarred from participating, in the meeting of the Syndicate before which the appeal of an employee of the University, challenging his adverse order, passed qua him, is presented for adjudication.

The necessary amendments shall be carried out within six months i.e. before the 15th June, 2005, failing which the impugned provisions would cease to have legal effect.

Zafar Awan v. The Islamic Republic of Pakistan: PLD 1989 FSC 84; Al‑Bukhari Katabul‑Ahkaam; 144 ﻥﺩﻣﺗﻰﻣﻼﺴﺍﻯﻭﺑﻧ ﺩﻬﻋ Maulana Razi-ud‑Din Ahmad Fakhri, p. 144; Mawardi. Vol. VI, p.388 by Adab‑ul‑Qazi; PLD 1985 FSC 365; Pakistan through Secretary, Ministry of Defence v. the General Public PLD 1989 SC 6; Zaidan; Nizamul Qaza; p.272; Al‑Farooq Vol.4, pp.43‑44; A1‑Samhudi: Wafa­-al‑Wafa Part 2, pp.482‑483; Muhammad Bin Hayyan: Akhtar al‑Qudat Vol. I, p.108; Hazrat Ali Ibne Abi Tabb by Arman Serhadi, p.267; Anwar v. The Crown PLD 1955 FC 185; Mubarik Ali Bhatti v. Fiaz. Ali Khan and others PLD 1963 Lah. 8 and Rehmatullah v. Government of West Pakistan PLD 1965 Lah. 112 ref.

Dr. Muhammad Aslam Khaki for Petitioners (in Shariat Petitions Nos. 323, 33/I, 34/I, 40/I, 41/I; 42/I, 49/I, 50/I and 51/I of 1992).

Sardar Abdul Majeed for Federal Government (in Shariat Petition No.51/I of 1992).

Shafqat Munir Malik, Asstt. A:-G., Punjab for Punjab Government (in Shariat Petition No.51/I of 1992).

Arshad Lodhi, Asstt. A.‑G; Sindh for Sindh Government (in Shariat Petition No.51/I of 1992).

Shoaib Abbasi for Balochistan Government (in Shariat Petition No.51/I of 1992).

Muhammad Sharif Janjua for N.‑W.F.P. Government (in Shariat Petition No.51/I of 1992).

Zahoor Nawaz, District Officer Colleges, Rawalpindi on behalf of Colleges (in Shariat Petition No.51/I of 1992).

Sajjad Hussain for Engineering University, Lahore (in Shariat Petition No.51/I of 1992).

Shamshad Ali (HEC) Deputy Director on behalf of Higher Education Commission (in Shariat Petition No. 51/I of 1992).

Muhammad Lateef, O.S.D. Litigation, University of Agriculture, Faisalabad on behalf of University of Agriculture, Faisalabd (in Shariat Petition No.51/I of 1992).

Nazir Ahmad Chishti, Assistant Registrar, Legal (in Shariat Petition No.33/I of 1992).

Bilqias Khan, Asstt. Law Officer (in Shariat Petition No.40/I of 1992).

Abdul Qadir Khatak, Advocate and Mushtaq Ahmad, Law Officer (in Shariat Petition No.41/I of 1992).

Dr. Nawab Ali, Registrar, University of Agriculture, Peshawar on behalf of University of Agriculture, Peshawar.

Rehmat Ali Qureshi, Asstt. Registrar, University of Punjab, Lahore oil behalf of Punjab University, Lahore.

M. Aftab Anwar, Asstt. Legal Adviser, Islamia University, Bahawalpur on behalf of Islamia University, Bahawalpur.

Zubair, Assistant Registrar (in Shariat Petition No.51/I of 1992).

Date of hearing: 3rd June, 2004.

P L D 2005 Azad J&K 1

Before Muhammad Reaz Akhtar Chaudhry, C J

MUHAMMAD SIDDIQUE RATHORE‑‑‑Petitioner

Versus

MUHAMMAD MUZAFFAR KHAN‑‑‑Non‑Petitioner

Civil Revision No. 144 of 2004, decided on 29th December, 2004.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 10‑‑‑Azad Jammu and Kashmir High Court Procedure Rules, 1984‑‑‑Stay of suit‑‑‑Object, scope and application of S.10. C.P.C.‑‑­Pendency of suit in Civil Court of a foreign country (Pakistan) does not preclude the Courts in Azad Jammu and Kashmir from trying the suits founded on the same cause of action‑‑‑Rules of Procedure of Azad Jammu and Kashmir High Court do not restrict the jurisdiction of the High Court to proceed with a suit or proceedings which were sub judice before a High Court of Pakistan or some other country Principles.

Section 10, C.P.C. visualized that no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, but there is an exception to this rule which is provided in explanation which contained that the pendency of a suit in a foreign Court does not preclude the Courts in Azad Kashmir from trying a suit founded on the same cause of action.

The aforesaid explanation clearly contained that the pendency of the suit in Civil Court of foreign country does not preclude the Courts in Azad Kashmir from trying the suits founded on the same cause of action.

The Courts of Pakistan are foreign Courts and the judgments and decrees passed by those Courts are not executable in Azad Jammu & Kashmir under any provision of law. When the decree passed by the Court of Pakistan is not executable in Azad Kashmir then how the proceedings sub judice in Azad Jammu & Kashmir can be kept in abeyance, on the ground that on the basis of the same cause of action, a suit is sub judice in the Court of Pakistan.

Rules of Procedure of Azad Jammu & Kashmir High Court do not restrict the jurisdiction of the High Court to proceed with a suit or proceedings which were sub judice before a High Court of Pakistan or some other country‑‑ Institution of a writ petition in the High Court in Pakistan cannot stop the proceedings in Azad Jammu & Kashmir on the grounds that on the basis of same cause of action the proceedings are sub judice before the Court of Pakistan.

Mian Nasir Ahmed v. Abdur Rashid Qureshi 1986 CLC 1309; Muhammad Miskeen and others v. Government of Pakistan and others PLD 1993 Azad J&K 1 ref.

Khawaja Muhammad Aslam Habib for Petitioner.

Khawaja Muhammad Nasim for Non‑Petitioner.

Date of hearing: 29th December, 2004.

P L D 2005 Azad J&K 5

Before Sardar Muhammad Nawaz Khan and Ghulam Mustafa Mughal, JJ

RASHIDA BANO HUSSAIN---Petitioner

Versus

SHAKIL AHMED KHALIQ and 2 others---Respondents

Criminal Miscellaneous No.42 of 2005, decided on 15th April, 2005.

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

----S. 25---Custody of minor---Welfare of minor---While deciding the question of custody of a minor, the paramount consideration was welfare of minor---Court, no doubt under law was the guardian of a ward, but when question of custody of a ward was under consideration, the welfare of the minor was the only touchstone upon which each case was to be tested---Such being a question of fact was subject to evidence---When parents were the contestants, the proper forum to be contacted was the Guardian Judge (Family Court) concerned.

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

----S. 491---Habeas corpus petition---Custody of minor---Difference of opinion amongst superior Courts with regard to custody of minor---Some were of the view that it was a matter purely falling within the jurisdiction of Guardian Judge and High Court while exercising powers under S.491, Cr.P.C. could not determine the question of custody of a minor; other view was that if a minor was removed from the custody of parent, who had already been declared by a competent forum as custodian of minor, then, High Court had the powers to hand over the custody to petitioner---Held, that there was yet another view according to which, a mother in case of a female minor till the age of her majority and in case of a male minor before his' attaining age of 7 years was the custodian and High Court, while entertaining application under S.491, Cr.P.C., was competent to hand over the custody to mother, however, subject to decision by a Guardian Judge.

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

----S. 491---Habeas corpus petition---Custody of minor---When there was a conclusive decree by a foreign Court of competent jurisdiction or a like decree from a Court of competent jurisdiction in Azad Kashmir declaring a contestant as a custodian of a ward and the ward was removed from his lawful custody, then of course, High Court was competent to hand over the custody of the minor to him while exercising its powers under S.491, Cr.P.C.---When there was no such decree, High Court was not competent to assume jurisdiction of a Guardian Judge (Family Court) having plenary jurisdiction to decide such-like matters---While deciding the question of custody of a minor, his/her welfare was the main consideration and such question could not be resolved in absence of evidence---Absence of conclusive decree by a Court of competent jurisdiction about a custody matter, father or mother as the case might be, were natural guardians of a minor---Minor could be removed from a parent only when he/she was kept under illegal detention---Generally, a minor under the custody of a parent was not under illegal detention unless otherwise proved---While seeking custody of a minor by a parent from a parent, petitioner had to make out a case of illegal detention and unless, it was done, S.491, Cr.P.C. would not come into play---Such relief could be given to a claimant when he satisfied High Court that alleged detenue was under illegal detention or confinement.

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

----S. 491---Habeas corpus petition---Custody of minor---No conclusive decree was passed either by a Court of competent jurisdiction in Britain or in Azad Kashmir showing petitioner as custodian of the ward in the present case---Minor girl aged more than 8 years was residing with her father and she was studying in class III having full attachment and association with her father and whereabouts of petitioner mother were not known in Azad Kashmir or even in Pakistan---Minor had categorically refused to go with petitioner(mother)---Neither it was not in the interest of justice nor in the interest of minor to hand over her custody to petitioner, in circumstances.

Sardar Anzar Iqbal for Petitioner.

Ch. Muhammad Ibrahim Zia for Respondents.

P L D 2005 Azad J&K 9

Before Sardar Muhammad Nawaz Khan, J

FEROZ-UD-DIN---Appellant

Versus

MUHAMMAD AZIZ and 22 others---Respondents/Proforma Respondent

Civil Appeal No.35 of 2002, decided on 21st April, 2005.

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

----O. VII, R.7---Plaint---Relief claimed in plaint---Plaintiff would state specifically either simply or in alternative the relief he claimed---Not necessary for the plaintiff to ask for general or other relief which could always be given by the Court if it would think same just and equitable in view of pleadings and evidence thereon.

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

----O. VII, R.7---Islamic Law--Inheritance---Plaint---Relief claimed in plaint---When a Muslim was found to be entitled to any property left by her/his predecessor-in-interest, mere his omission to specifically mention that ground in the plaint could not be allowed to deprive him/her of his/her legitimate right simply on the ground that he/she failed to specifically plead that point---Court, while deciding a civil matter, was competent to allow any other relief if it was in the interest of justice---If the Court would reach the conclusion that it was just and fair to allow a relief to a claimant though not specifically pleaded, it could do so--Order VII, R.7, C.P.C. allowed such other relief which was just and equitable in view of facts of the case---Court was not debarred from allowing relief which was not specifically claimed, but was otherwise in the interest of justice.

1995 CLC 1745; PLD 1965 Lah. 451 and 1980 CLC 2056 ref.

Abdul Hameed Khan Shahid for Appellant.

M. Arif Khan Abbasi for Respondents.

P L D 2005 Azad J&K 14

Before Muhammad Reaz Akhtar Chaudhry, C J

MUHAMMAD SHABIR KHAN---Petitioner

Versus

OFFICER INCHARGE, F.I.U. OPS, GOJRA FORT and others---Non-Petitioners

Writ Petition No.241 of 2004, decided on 10th May, 2005.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas Corpus petition---Alleged detenu had been tried under the Pakistan Army Act, 1952 and awarded a sentence of one year's imprisonment by Field General Court Martial which had also been duly confirmed by the concerned Brigadier---Petitioner's brother (Detenu), thus, was not in the illegal confinement of the respondents---Petition was dismissed in circumstances.

Mushtaq Ahmed Janjuha for Petitioner.

Lieutenant Colonel Iqbal Hashmi for Non-Petitioners.

P L D 2005 Azad J&K 15

Before Muhammad Reaz Akhtar Chaudhry, C J

MUHAMMAD REAZ JANJOOA and others---Appellants

Versus

MIRPUR DEVELOPMENT AUTHORITY through Chairman and others---Respondents

Civil Appeals Nos.95 and 107 of 2003, decided on 26th May, 2005.

(a) Tort--

----Damages---Right to receive or recover compensation by way of damages---Nature, object and scope---Natural Law (Jura Naturalia) gives basic right for satisfaction from injury---Such fundamental right is of universal nature based on natural reasons and natural justice---Such natural right is essential for growth of well-being of society and primitive law of retaliation is not calculated to promote its tranquility and advancement---Every violation of a right confers a right on injured party to recover compensation---Damages are pecuniary compensation recoverable by process of law by a person, who has sustained an injury through certain act or omission of another---Basic object of damages is to compensate plaintiff for loss sustained by him due to fault of other party---Right of injured persons to recover damages under various heads illustrated by examples.

Blackstones Commentary in Book Second Chap. 29, p.438 ref.

(b) Maxim-

---"Ubi jus ibi remedium": Where there is a right, there is a remedy.

(c) Maxim---

----"Lex semper dabat remedium": Law will always provide remedy.

(d) Tort---

----Damages, kinds of---General and special---General damages pertain to non-pecuniary losses non-calculable in terms of money---Special damages are such, which can be computed in terms of money---Kind of non-pecuniary losses, illustrated.

Haji Salman Ali v. The Province of Balochistan and others PLD 1994 Quetta 13 rel.

(e) Tort-

----Damages---General and special damages---Proof---Special damages are required to be proved item-wise to the extent of damages sustained by claiment---General damages are measured by applying the "rule of thumb" and Court has discretion to calculate damages according to circumstances of case.

Haji Salman Ali v. The Province of Balochistan and others PLD 1994 Quetta 13 rel.

(f) Tort-

--Damages-Purchase of plot by plaintiff for construction of house---Transfer of plot in favour of plaintiff by Development Authority after receipt of transfer fee---Refusal of Development Authority to deliver possession of plot and providing plaintiff facilities to construct house on the ground that there was dispute between Development Authority and Water and Power Authority---Plaintiff claimed damages from Development Authority for purchase of alternative plot at available market price, increase in cost of construction and mental torture---Validity---Had there been any dispute regarding such plot with Water and Power Development Authority then Estate Officer of Development Authority would have not transferred same to" plaintiff rather he would have declined from transferring plot on such plea and plaintiff would have not purchased same---Estate Officer, after receiving transfer fee, was bound to hand over possession of plot and allow plaintiff to raise construction thereon---Statement of plaintiff giving details of losses suffered by him remained unchallenged during cross-examination---Authority in its evidence had not negated such version of plaintiff---Losses sustained by plaintiff stood established---Suit was decreed as prayed for.

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

----Art. 133---Portion of statement not challenged during cross­ examination---Effect---Such unchallenged part of statement would be deemed to have been admitted by other party.

(h) Tort-

---Damages, claim for---Essentials---In order to succeed in such claim, detail of losses suffered by plaintiff must be given and established with clarity.

1999 Cr.C. 1915 rel.

(i) Evidence---

----Oral evidence in civil cases---Onus of proof in such cases does not remain fixed on one party, but the moment, some evidence is led by one party, then onus shifts upon other party---On failure of other party to rebut such evidence, presumption would be that other party has admitted the same.

PLD 1980 Lah. 146 rel.

Jahandad and Haji Anwar for Appellants.

Ch. Reaz Alam for Respondents.

P L D 2005 Karachi 1

Before Saiyed Saeed Ashhad, C J and Syed Zawwar Hussain Jaffery, J

JAVED RAFAT KHAN---Appellant

Versus

Messrs SHABBIR TILES AND CERAMICS LIMITED through Representative---Respondents

High Court Appeal No.46 of 2004, decided on 12th August, 2004.

Civil Procedure Code (V of 1908)---

----O. VII, Rr. 14, 17 & 18---Law Reforms Ordinance (XII of 1972), S.3---Production of document relied upon by plaintiff---Inadmissibility of document---Under provisions of R.14 of O.VII, C.P.C. plaintiff was required to mention each and every document in a list which was to be annexed to the plaint, only then plaintiff could bring on record documents which had been specified in the list for the purpose of consideration thereof for decision---Contention that provisions contained in R.14 of O. VII, C.P.C. were mere technicalities and that technicalities should not be allowed to interfere or hamper in the administration of justice, was repelled---Said provisions were not mere technicalities, but those had provided a method or manner in which a party had been permitted to bring on record the documents on which party relied ensuring that other side was not taken by surprise and had been made aware as to what he would be facing when he would be appearing in Court to contest the suit---By ignoring the provisions of Rr.14, 17 & 18 of O.VII, C.P.C., other party would always betaken by surprise as the documents filed directly in evidence or along with affidavit-in-evidence, without being specified earlier, would be absolutely alien to other part and he would have no opportunity to rebut them.

Syed Sami Ahmed for Appellant.

Munawar Malik for Respondents.

P L D 2005 Karachi 4

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

KARL JOHN JOSEPH and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 198 of 2003, decided on 18th December, 2003.

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

---Ss. 9(c) & 25---West Pakistan Arms Ordinance (XX of 1965), S.13(e)---Appreciation of evidence---Conviction of accused---Both prosecution witnesses were cross-examined at length, but nothing could be brought on record to contradict evidence of both witnesses---Evidence of said witnesses was uniform on all material aspects of case, except some minor discrepancies or contradictions which could occur in evidence when same was recorded after a lapse of 8/9 months---Said minor discrepancies and contradictions could be ignored easily when oral evidence furnished by prosecution witnesses was confidence-inspiring--­Through said minor contradictions, no change in the prosecution story had occurred nor case of prosecution had been altered and credibility of witnesses was not affected---Investigating Officer had tried to associate two persons in the investigation, but they declined to do so---Even otherwise provisions of S.103, Cr.P.C. were applicable to search of a house or a place whereas in the present case search was made from the boat anchored at sea and S.103, Cr.P.C. was not applicable in such a situation---Provisions of S.103, Cr.P.C. were not applicable as same had specifically been excluded from their application in cases of Control of Narcotic Substances Act; 1997 by virtue of S.25 of the said Act--­Provisions of Ss.20 & 21 of Control of Narcotic Substances Act, 1997 had not been violated as complainant/Investigating officer received information about availability of Narcotics in the boat after Court hours and immediately thereafter a raiding party was prepared and raid was conducted at 10-00 p.m. ---Complainant in circumstances was competent to search the boat without search warrant---Fact that samples and remaining property were sealed at the place of incident was confirmed when property lying , in the card board carton was de-sealed in the Court---No allegation was there to the effect that slabs lying in said card board were tampered with---Was immaterial as to who produced samples before Chemical Analyzer when Chemical Analyzer had received samples duly sealed and without any tampering---Accused neither had examined him on Oath nor had produced any defence witness---Boat from which narcotics were recovered belonged to accused---Accused, in circumstances had committed offence punishable under S.9(c) of Control of Narcotic Substances Act, 1997 and was rightly convicted and sentenced.

Muhammad Nawaz Sharif v. State PLD 2002 Kar, 152; State v. Muhammad Amin 1999 SCMR 1367; Rasool Bakhsh v. State 2000 SCMR 731; Advocate-General v. Bashir PLD 1997 SC 408; Fida Jan v. The State 2001 SCMR 36; The State v. Hemjoo 2003 SCMR 881 and Shera v. Crown PLD 1954 FC 141 ref.

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

----S. 9(c)---Appreciation of evidence---Case of co-accused was distinguishable from case of accused as co-accused did not allege that boat in question belonged to her or she was its Captain---Co-accused in circumstances could not be deemed to be in possession of articles lying in said boat which belonged to accused who was convicted and sentenced---Prosecution had merely alleged that at the time of search of boat, co-accused was present there---No other evidence had been led .by prosecution to show further involvement of co-accused---Mere presence of co-accused at the place of search, was not enough to saddle her with liability of possession of Charas secured from the boat unless some evidence to that effect was laid by prosecution, which was lacking in the case---At the time of search some unlicensed arms and ammunition were secured from the boat and for that F. I. R. under S. 13(e) of West Pakistan Arms Ordinance, 1965 was lodged against accused, but co-accused was not booked for possession of said unlicensed arms and ammunition---Co-­accused could not be held responsible for possessing Charas secured from the boat---Trial Court, in circumstances was not justified in convicting co-accused under S.9(c) of Control of Narcotic Substances Act, 1997 and her conviction and sentence was illegal---Conviction and sentence recorded against co-accused by Trial Court were set aside and she was acquitted and set at liberty---Conviction and sentence of accused, was maintained.

(c) Criminal trial---

---- Duty of Trial Court is to record the finding with reasons in respect of each offence charged in relation to each accused and to follow it with an operative order of conviction or acquittal as the case might he.

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

----S.15---Criminal Procedure Code (V of 1898), Ss.417 & 439(4)(a)--­Acquittal of accused---Trial Court had acquitted accused person from charge under S.15 of Control of Narcotic Substances Act, 1997--­Finding of acquittal could not be converted into conviction in present proceedings or even under revisional powers of High Court as there was specific bar in S.439(4)(a) of Cr.P.C.---Order of acquittal could be set aside only through an appeal filed by State---In present case State had not filed any appeal against order of acquittal for offence punishable under S.15 of Control of Narcotic Substances Act, 1997---Appellants could not be convicted under S.15 of Control of Narcotic Substances Act, 1997 in present proceedings.

Rana M. Shamim and Miss Munawar Sultana for Appellants.

Mehmood Alam Rizvi, Special Prosecutor, A.N.F. for the State.

Date of hearing: 18th December, 2003.

P L D 2005 Karachi 18

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

NAZIR AHMED and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeal No. 18 of 2001, Confirmation Case No. 1 of 2001 and Criminal Revision Application No.210 of 2001, decided on 31st October, 2003.

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

----S.148---Essential ingredients of S.148, P.P.C.---Proving charge under S.148, P.P.C.---For proving charge under S.148, P.P.C., six ingredience were essential: that five or more persons were assembled; that they constituted an unlawful assembly; that members of such assembly used force or violence; that accused was a member of that unlawful assembly; that in prosecution of common object, assembly used force; and that accused was armed with deadly weapon or anything used as a weapon for offence likely to cause death.

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

----Ss.302/324/337-A(ii)/337-F(ii)/147/148/149---Criminal Procedure Code (V of 1898), Ss.225, 237 & 537---Defect in the charge--­Curability of---Assembly, in the present case was of five persons and allegation was that it was unlawful assembly which had used force--­Accused were members of said unlawful assembly and their common object was to use force and that some of accused were armed with deadly weapons, in such a situation a charge could be framed against all five persons, but while awarding sentence a distinction had to be made in respect of accused who were armed with deadly weapons and those who were not---Accused who were found to be armed with deadly weapons could be convicted under S.148, P.P.C., whereas those who were not so armed or were empty-handed, could be convicted under S.147, P.P.C.--­By virtue of S.237, Cr.P.C. an accused who even was not charged, with such offence could be convicted for lesser offence and that defect in the charge was curable under provisions of Ss.235 & 537, Cr.P.C.---Even if particulars required to be stated were not mentioned in the charge, errors were curable subject to conditions that accused was not misled or it had not occasioned a failure of justice.

Nadar Shah v. State 1980 SCMR 402 and Shah Nawaz v. State 1992 SCMR 1583 ref.

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

----Ss. 225, 232, 535 & 537---Error and irregularity in the charge--­Curability of---Every conceivable type of error and irregularity referable to a charge that could possibly arise, could be cured---Error or irregularity could range from the cases in which there was a conviction with no charge at all from start to finish down to cases in which there was a charge, but with errors, irregularities and omissions therein--­Criminal procedure Code, 1898 was emphatic that whatever irregularity could be, it was not to be regarded as fatal unless case of either party was prejudiced.

Muqadar v. State 1987 SCMR 1015; Amir Hussain v. State PLD 1971 Kar. 68; Babar Ali v. State PLD 1968 SC 372 and Nadir Shah v. State 1980 SCMR 402 ref.

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

----S.342---Examination of accused---Section 342, Cr.P.C. is divided into two parts: first part gives discretion to the Court whereas its second part is mandatory---Examination of accused, after close of prosecution evidence, was obligatory and could not be dispensed with---Section 342, Cr.P.C. was based on principle involved in maxim "audi alteram partem" namely, that no one should be condemned unheard---Where a person was to be charged with any penal liability, he should be made aware of all the facts and circumstances existing against him in order to enable him to give explanation in respect of those charges and evidence produced against him at the trial---Accused should be heard not merely on what was prima facie proved, but also on every circumstance appearing in evidence against him---Trial conducted without compliance of provisions of S.342, Cr.P.C. would be a mockery of law and would stand vitiated---Wisdom behind recording statement in question and answer form was to secure that the Court by framing its question performed a double function; firstly communication to the accused to the full extent that could be necessary in each particular case what was alleged against him in prosecution evidence; and secondly ascertainment from accused as to what explanation or defence he wished to put forward in respect thereof---Accused was asked questions under S.342, Cr.P.C. for the purpose of enabling him to explain all circumstances having an incriminatory effect in relations to the offence charged or appearing in the evidence upon which prosecution relied to prove its case or which was likely to influence the mind of the Court to draw ,adverse inference against him.

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

----S. 342---Examination of' accused---Court was bound to put all relevant circumstances appearing in the evidence to accused---Not enough to put a few general, broad and composite questions to accused, because if such a course was adopted, accused could not get an opportunity of explaining all the relevant circumstances---Court should be fair and should not put to accused detailed questions which could amount to his cross-examination---Ultimate test in determining whether or not accused had been fairly examined under S.342, Cr.P.C. would be to inquire whether having, regard to all questions put to him, he did get' an opportunity to say what he wanted to say in respect of prosecution case against him---Balance had to be struck in asking questions from accused depending upon the facts and circumstances of each case--­Examination under S.342, Cr.P.C. was not an empty formality, but same had to be .carried out to afford an opportunity to accused to explain his position on each aspect of evidence brought on record by prosecution; if same was to be used against him for the purpose of conviction---If such evidence was not put before accused in the shape of questions while recording his such statement, then conviction. on the basis of that evidence would be illegal.

A.Q. Halipota for Appellants.

Jawed Akhlas for the State.

M. Younus Rehan for the Complainant.

Date of hearing: 23rd October, 2003.

P L D 2005 Karachi 30

Before Muhammad Afzal Soomro, J

MUHAMMAD IQBAL and another---Petitioners

Versus

Mst. SABA and others---Respondents

Constitutional Petition No.745 of 2002, decided on 31st October, 2003.

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

----S. 15(2)(iii)(a)---Subletting of premises by tenant---Proof---Where handing over possession of premises to some other was proved, then tenant would be liable to be erected---Handing over possession would mean occupation and use of rented premises by a person other than tenant, but would not include cases, where business was being run by any attorney or partner without having any interest in tenancy itself--­Provisions of S.15(2)(iii)(a) of Sindh Rented Premises Ordinance, 1979 would not be attracted, where tenant took a working partner or financial partner bonafidely and retained physical possession of premises by sitting therein for carrying on business.

Saeeda Begum v: Shameem Ahmed 1994 SCMR.791 fol.

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

----S. 15(2)(iii)(a)---Subletting of premises by tenant without consent of landlady---Plea of tenant was that alleged sub-tenant was only his financial partner in business under Partnership Deed executed between them---Partnership Deed produced along with written statement clearly preserved rights of tenant by mentioning that in the case of dissolution of firm, right of tenancy of tenant would not be affected and he would remain tenant of- premises---Husband of landlady as her attorney deposed that she herself had heard that sub-tenant was paying rent to tenant--­Landlady herself did not enter, witness box to utter such words--­Landlady had remained silent for about two years, though' having knowledge about running of business in premises lay both tenant and sub­tenant---Provisions of S.15(2)(iii)(a) of Sindh Rented Premised Ordinance, 1979 would not be attracted, where tenant took a working partner or financial partner bonafidely and retained physical possession of premises by silting therein for carrying on business ---Ejectment petition was dismissed in circumstances.

Grindlays Bank Limited and another v. Messrs Alliance Commercial Corporation 1984 CLC 2336; Mst. Sayyeeda Khatoon v. M.A. Agha 1990 MLD 1715; Khalil-ur-Rahman v. Mst. Nargis Begum 1993 CLC 246; Hassan Abbas Zaibule v. Abdullah 1994 CLC 555 and Muhammad Subhan and another v. Mst. Bilquis Begum and 3 others 1994 SCMR 1507 ref.

Saeeda Begum v. Shameem Ahmed 1994 SCMR 791 fol.

Jamil-ur-Rehman for Petitioners.

Muhammad Siddique Khatri for Respondents.

Date of hearing: 22nd October, 2003.

P L D 2005 Karachi 37

Before Ata-ur-Rehman and Amir Hani Muslim, JJ

SODA and 4 others---Petitioners

Versus

PROVINCE OF SINDH through Secretary Finance, Karachi and 2 others---Respondents

C.P. No.D-12 of 2003, decided on 7th September, 2004.

Land Acquisition Act (I of 1894)---

----Ss. 4, 6, 23(2), 28-A & 34---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Acquisition of land---Payment of amount of compensation---Petitioners had prayed that Authorities be directed to deposit it Court compensation amount along with mandatory benefits or, account of delay in payment of amount of compensation Authorities admitted that amount claimed by petitioners was outstanding, but had stated that amount claimed by petitioners included benefits under Ss.23(2), 28-A & 34 of Land Acquisition Act, 1894---Constitutional petition filed by petitioners was objected to by the Authorities contending that disputed questions of tact could not be raised in Constitutional jurisdiction of High Court---Validity---No disputed question of fact was in the case as petitioner had simply sought direction to the Authorities to make payment which were admitted by the Authorities---No factual enquiry was required to be undertaken by High Court in regard to determining legal right of petitioners---High Court directed accordingly and Authorities were to, comply with said directions.

Ghulam Rasool Qureshi for Petitioners.

Masood Noorani, A.A.-G. along with Imdad Hussain L.A.O.

P L D 2005 Karachi 40

Before Amir Hani Muslim, J

MUHAMMAD ANEES---Petitioner

Versus

SALIM RIND and 3 others---Respondents

C. P. No. D-476 of 2002, decided on 11th August, 2003.

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

----Ss. 154, 550 & 523---Penal Code (XLV of 1860), Ss. 411 & 412--­Constitution of Pakistan (1973), Art.199---Registration of F.I.R. in respect of car seized by Officials of Anti-Car Lifting Cell---Police Officers seized car from place "H", but registered F.I.R. at place "K" after five (5) months and six (6) days without getting car released from Courts at place "H" under Ss. 550 & 523, Cr.P.C.---Validity---Such actions of Police Officers clearly showed abuse of their authority in uniform---Such actions, if not checked, would create life of innocent citizens miserable---District Police Officer in his report had found such Officers guilty of actions not protected under law---Such illegal acts of Police Officers constituted cognizable offence---High Court directed D.P.O. at place "H'" to register case against such Police Officers and any other person guilty and/or having abetted commission of such acts in the light of his report---High Court further directed I-G. Police to initiate departmental proceedings against such Police Officers and not to give them any field posting till findings of proposed prosecution and/or departmental proceedings exonerating them of alleged acts--High Court further clarified that violation of its order would be treated as contempt of order of Court and person violating same would be proceeded against under Contempt Act.

(b) Administration of justice---

----Illegal action of Police officers showing abuse of their authority to uniform---Validity---Such action, if not checked, would create life of innocent citizens miserable---Exercise of powers were subject to restrictions that law imposed upon such officers---Such powers were subordinate to rights of citizens guaranteed under the Constitution----No Police Officer was allowed in law to implicate innocent citizen in false case by fabricating material against him to extort either money or his property---Criminal Procedure Code (V of 1898), S.154.

Ayaz Hussain Tunio for Petitioner.

Masood A. Noorani, Addl. A.-G.. (on Court Notice).

Date of hearing: 11th August, 2003.

P L D 2005 Karachi 43

Before Syed Zawwar Hussain Jafferi, J

WAZIR KHOSO---Applicant

Versus

PROVINCE OF SINDH through Secretary Revenue, Government of Sindh and 7 others---Respondents

Civil Revision Application No.68 of 2003, decided on 15th September, 2003.

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

----S. 39---Limitation Act (IX of 1908), Art. 120---Registration Act (XVI of 1908), S.60---Qanun-e-Shahadat (10 of 1984), Arts. 59, 84 & 129(e)---Suit for cancellation of registered sale-deed---Plaintiff (husband) alleged such deed was got prepared by defendant (wife) by producing fictitious person before Sub-Registrar---Plaintiff filed suit more than ten years after execution of such deed by asserting that he came to know about its execution a week before filing of suit---Plaintiff in support of his version neither produced sufficient evidence nor attesting witnesses nor scribe of such' deed nor applied for sending his signature/thumb impression to Handwriting Expert for comparison nor examined any official or called for record of Sub-Registrar Office---Defendant produced original deed and examined witness, who had witnessed such deed---Held: Suit was apparently time-barred---Sanctity was attached to such deed---In absence of strong evidence, neither genuineness of such deed could be doubted nor same could be cancelled---Plaintiff had failed to prove non-execution of such deed in favour of defendant.

2000 SCMR 1058 ref.

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

----S. 39---Registration Act (XVI of 1908), S.60---Qanun-e-Shahadat (10 of 1984), Art. 129(e)---Cancellation of registered sale-deed on ground of being prepared, fraudulently---Proof---Sanctity was attached to such document---Strong evidence would be required to doubt genuineness of such document in absence of which, same could not be cancelled as same conferred security on human dealings.

Miss. Faiz-un-Nissa Channa for Applicant.

Date of hearing: 15th September, 2003.

P L D 2005 Karachi 47

Before Ata-ur-Rehman and Amir Hani Muslim, JJ

SHOUKAT ALI and 25 others---Petitioners

Versus

DEPUTY DISTRICT OFFICER (REV) AND LAND ACQUISITION OFFICER, SANGHAR and another---Respondents

C.P.No.D-289 of 2003, decided on 23rd September, 2004.

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

----Ss. 4, 6, 31 & 31-A---Constitution of Pakistan (1973), Art: 199--­Constitutional petition---Acquisition of land---Payment of amount of compensation---Delay in making payment---Secretary of Acquiring Agency could not exercise powers of Land Acquisition Officer nor could he assume the powers of a Referee Court---Once Notifications under Ss.4 and 6 of Land Acquisition Act, 1894 were issued, Acquiring Agency was bound to deposit entire amount of compensation with Land Acquisition Officer before he awarded compensation to the claimants---If the claim of compensation or title of claimant was found fictitious, then Land Acquisition Officer could not determine it and or verify same and he was bound under S.31-A of Land Acquisition Act, 1894 to refer the matter to Referee Court for its direction and would also deposit amount of compensation in the said Court---Secretary Irrigation through his statement intended to acquire powers of Referee Court, which he could not exercise---Such powers were not available even with Land Acquisition Officer.

(b) Land Acquisition Act (I of 1994)---

----Ss.23(2) 28-A & 34---Amount of solitium---Withholding of--­Amount of solitium was mandatory and could not be withheld by the Government.

Imran Qureshi for Petitioners.

Masood A. Noorani Addl. A.-G. Sindh.

P L D 2005 Karachi 50

Before Rahmat Hussain Jafferi, J

KARIM BUX and 2 others---Applicants

Versus

MANZOOR AHMED and others---Respondents

Civil Revision Application No. S-25 of 2000, decided on 27th February, 2004.

Specific Relief Act (I of 1877)---

---S. 12---Contract Act (IX of 1872), S. 25---Civil Procedure Code (V of 1908), O. XX, R. 5---Suit for specific performance of contract---Suit had been concurrently decreed by trial Court and Appellate Court---Defendants being dissatisfied with concurrent judgments and decrees of Courts had filed revision against said judgment and decree---Defendant had alleged; firstly that trial Court was not legally competent to decide four issues collectively as it was against provisions of O. XX, R. 5, C.P.C.; secondly that material contradictions were found in evidence of witnesses; thirdly that agreement of sale did not bear the signatures of attesting witnesses; and fourthly that agreement of sale being without consideration was a void contract in view of S. 25 of Contract Act, 1872---As regard the first allegation of deciding four issues collectively, Trial Court no doubt should have given finding on each issue separately instead of deciding those collectively, but where certain issues were linked with each other and were considered together, such consideration was not at all violative of mandate contained in O. XX, R. 5 C.P.C.---In the present case said four issues being linked with each other, Court had competently decided same collectively---So far as second allegation with regard to material contradictions in evidence of witnesses was concerned, defendants could not point out said contradictions---As regard signatures of attesting witnesses on agreement of sale, witnesses though did no sign the agreement of sale but they, through their writings, had confirmed that agreement was executed in their presence and they had specifically mentioned receipt of consideration---Attesting witnesses, who were examined had fully supported their writings and had admitted that same were written by them---Merely not putting their signatures on said document would not affect document when otherwise it had been proved---As regards the contention that agreement of sale was void as it clearly shown that consideration was received by defendants/vendors and nothing was due against plaintiffs—Said fact had been confirmed by all three attesting witnesses in their writings---agreement of sale, in circumstances was not without consideration as alleged by defendants---Appellate Court had dealt with case and examined each point raised before it in accordance with law---In absence of nay misreading or non-reading of evidence, impugned judgment and decree did not require interference of High Court in exercise of its revisioinal jurisdiction.

Ali Muhammad v. Muhammad Hayat 1982 SCMR 816; Muhammad Yaqoob v. Naseer Hussain PLD 1995 Lah. 395; Chairman District Screening Committee v. Sharif Ahmed Hashmi PLD 1976 SC 258; Zaheeruddin Pathan v. Hajani Zainab 1999 YLR 728; Aziz Ullah Khan v. Gul Muhammad 2000 SCMR 1647; Tahira Dilawar v. Ghulam Samdani 1995 SCMR 246; Kamal Khan v. Gul Mat Khan PLD 1993 Pesh. 43; Venkata Subhadrayyama v. Venkata Pail Raju, AIR 1924 PC 162; Mathaung v. Mathan AIR 1924 PC 8h and Mutyalu v. Veerayya AIR (33) 1946 Mad. 452 ref.

Parya Ram M. Vaswani for Applicants.

A. M., Mobeen Khan for Respondents.

Date of hearing: 19th February, 2004.

P L D 2005 Karachi 55

Before Mushir Alam, J

Messrs QUETTA TEXTILE MILLS LIMITED through Chief Executive‑‑‑Plaintiff

Versus

PROVINCE OF SINDH through Secretary Excise and Taxation, Karachi and another‑‑‑Defendants

Suits Nos.277, 278, 279, 290,291,293 to 297, 323,346, 353, 356, 357,358, 362, 420, 421, 422, 445, 466, 467, 499,500,560, 608, 609, 621, 669, 698, 730, 740, 790, 821, 847, 848, 950, 1022, 1023,1024, 1046, 1119,1194,1195, 1199, 1251, 125.2, 1253, 1254, 1255, 1279, 1280, 1319, 1454. 1455, 1508, 1580 and Nil of 2001; 87, 88, 594,815, 897, 1064, 1071, 1072, 1080, 1081, 1098, 1249 1250 of 2002; 6, 66,67, 68, 69, 1.01, 120, 151, 152, 153, 170 to 173, 184 to 186, 193, 194, 209 to 213, 221, 233 to 235, 239, 240, 241, 242, 249, 281, 283, 284, 285, 295, 317, 318, 327, 337, 338, 348, 356, 360, 362, 363, 372, 373, 375, 390, 391, 402, 403, 404, 414, 422, 443, 463, 474, 487, 488, 489, 503, 504, 538, 542, 543, 565, 577, 597, 598, 656, 729, 897, 1006, 1044, 1045 1046, 1047, 1048, 1049, 1050, 1051, 1052, 1053, 1054, 1065, 1083, 1984 of 2003, decided on 28th October, 2003.

(a) Sindh Finance Act (XIII of 1994)‑‑‑

‑‑‑‑Ss. 9, 9‑A, 3 & 4 [as amended by Sindh, (Amendment) Ordinance 2001]‑‑‑Sindh Development and Maintenance of Infrastructure Fee Rules, 1994, R.3‑‑‑Legislative history of Sindh Finance Act, 1994 & Sindh Development and Maintenance of Infrastructure Fee Rules, 1994.

Messrs Rahim and Sons v. Province of Sindh and another 2003 CLC 649 ref:

(b) Sindh Finance Act (XIII of 1994)‑‑‑

‑‑‑Ss. 9, 9‑A, 3 & 4 [as amended by Sindh Finance (Amendment) Ordinance (XII of 2001)]‑‑‑Sindh Development and Maintenance of Infrastructure Fee Rules, 1994, R.3‑‑‑Specific Relief Act (I of 1877), Ss.42 & 56‑‑‑Constitution of Pakistan (1973), Arts.142, 127, 129, 143, 149, 151, 169, 25 & Fourth Schedule, Concurrent list‑‑‑Suit for declaration‑‑‑Vires of statute imposing the fee/cess‑‑‑Legislative competence of Provincial Legislature‑‑‑Doctrine of "occupied field"‑‑­Applicability‑‑‑Conditions‑‑ Contentions of the plaintiffs were that the Province had encroached upon the jurisdiction of Federation; that Sindh Finance Act, 1994 was beyond legislative competence, unconstitutional, ultra vires and void ab initio and that the movement of goods entering from outside the country through air or sea could not be restricted by imposing the levy, being against the freedom of inter‑provincial trade as guaranteed under Art.151 of the Constitution‑‑‑Province of Sindh claimed that the Province was incurring huge expenditure on the development and maintenance of infrastructure for welfare of the people of Sindh, and to meet such exigencies it required finance which would be met by the levy; that levy in question was imposed beyond the customs barrier and was neither imports nor export tax; that, it was a levy on movement of goods using the infrastructure for the Province of Sindh; that matter relating to "Carriage of goods by road" has been excluded from Entry 24 of the Federal Legislative List of the Fourth Schedule of the Constitution, therefore, under Article 142(c) of the Constitution exercising the residuary authority the Province was competent to legislate on leftover subjects‑‑­Validity‑‑‑When vires of any Statute was challenged, strong presumption as to legislative competence and validity of Statute was always attached‑­‑Burden was on the person, challenging the vires of any Statute to show that the impugned Statute was beyond the legislative competence, or was in violation of any Constitutional provision or guarantee, or was in negation of rights guaranteed under the Constitution‑‑‑High Court on a lucid examination and analysis of the Constitutional Scheme, defining domain, distribution of legislative authority and jurisdiction of the Federal and Provincial Legislature, over the subject‑matter, fields, topics or the activities, which fell under their respective legislative competence, limitations and the territorial bounds of application of laws framed by them, and elaborately discussing the principles of interpretation of fiscal Statutes on the touchstone of Constitutional provisions and discussing the conditions for application of doctrine of "occupied field", held that absence of Entry "carriage of goods by road" from Fourth Schedule of the Constitution by necessary implication meant that the Sindh Finance Act, 1994 (as amended) covering subject‑matter or topic "infrastructure Cess on goods for carriage by road and smooth and safer movement in the Province" fell on the lap of Provincial Legislature ‑‑‑ Provincial Legislature, therefore, had exclusive domain by virtue of residuary authority and jurisdiction to legislate on such subject‑matter, topic or activity by virtue of authority conferred by Act.142(c) of the Constitution ‑‑‑ Government of Sindh incurs expenditure and needs substantial funds to maintain the infrastructure, including highways other than the national highways, roads, streets, bridges, culverts, parking and halting places, rest areas along Highways, providing lighting, traffic control, halting places for the trucks and other goods corners, security police and innumerable infrastructure and facilities as defined in S.9, Expl. I, Sindh Finance Act, 1994 (as amended) and all such infrastructure confered benefit on all those who used the same‑‑‑Levy of infrastructure fee/cess, therefore, fell within the legislative competence of the Province of Sindh and was neither violative of any rights ordained under the Constitution, nor transgressed the limitation imposed by Art.151 of the Constitution‑‑‑Principles.

Issue involved in the present case, related to the legislative competence of Provincial legislature.

When vires of any statute is challenged, strong presumption as to legislative competence and validity of statute is always attached. Burden is on the person, challenging the vires of any statute to show that, the impugned statute is beyond the legislative competence or, is in violation of any Constitutional provision or guarantee or, in negation of rights guaranteed under the Constitution.

To appreciate contentions of both the Parties. It will be beneficial to understand the Constitutional scheme, defining domain, distribution of legislative authority and jurisdiction of the Federal and Provincial Legislature, over the subject‑matter, fields, topics and the activities, which fall under their respective legislative competence, limitations and the territorial bounds of application of laws framed by them.

Dispensation of Legislative authority between the Federation and the Provinces, in 1973 Constitution, is conceded through the Federal and Concurrent Legislative List. Both the Lists are appended to the Fourth Schedule of the Constitution (Article 70(4)).

Enumerated entries, in both the Lists are not to be mistaken for the power of legislation but the subject‑matter, topic or nature of activities on which respective legislature can frame laws, enforceable and applicable within their respective territorial bounds.

Part V of the Constitution of Pakistan, 1973 deals with dispensation of Legislative authority power and manner to legislate, in terms of Article 142 is conferred, subject to the Constitution, on the Federal as well as Provincial Legislatures. Both the Legislatures, exercise jurisdiction and authority to legislate on the subject‑matters, fields, topics and activities allocated to them, as per two written Legislative Lists, as mentioned above and one unwritten list in Constitutional parlance called Residuary List, which embraces all the subject‑matters, fields, topics and activities that fall out of both, the Federal and Concurrent Legislative Lists. For the purpose of present controversy, Article 142 of the Constitution is relevant.

Article 142, lays down clear‑cut parameters for the Federal and Provincial Legislatures to exercise their respective exclusive, as well as, concurrent domain over the subject‑matter, topics and activities as well as the territorial boundaries, over which, laws framed and/or legislated by them, may have applicability.

Federal Legislature i.e. Parliament is authorized to legislate exclusively on subject‑matters, topics and activities enumerated in the two Parts, Federal Legislative List and matters incidental or ancillary thereto. In all, there are 59 Entries in Parts 1 and 2 Entries in Part II Federal Legislature, in Pakistan, enjoys exclusive legislative domain over the subject‑matter, topics and activities not enumerated in either of the two Lists but, only to the extent and within the confines of Federally Administered Areas only.

The Provincial Legislature enjoys exclusive Legislative authority over the subject‑matter, topics, and activities not enumerated in either of the two Legislative Lists. Despite all care and caution taken by the framers of the Constitution of 1973, Entries in both the Federal and the Concurrent Legislative Lists, appended to the Fourth Schedule of the Constitution are not exhaustive.

It will be paradoxical to presume that, a particular subject­-matter, topic or activity is not covered by any Entry in either of the Legislative Lists or that the Legislature is bereft of legislative competency or deprived of legislative authority on left over subject-­matter, field, topic or activities. To legislate is inherent right of any independent State. Without such authority, a State cannot meet and address its day‑to‑day exigency or situation that need to be addressed, regulated, managed and/or controlled. To tackle such contingency, Article 142(c) and Article 142(d) confer exclusive Residuary Jurisdiction and Authority on the Provincial Legislature and Federal Legislature respectively, over and within their respective territorial confines. Diversified subject‑matters, topics or activities that are not comprehended or covered by any of the Entries in either of the two Legislative Lists, in Constitutional parlance referred to as Residuary subject‑matter, topic and/or activity. The jurisdiction or authority so exercised is referred as Residuary Jurisdiction or Authority.

Object of conferring residuary jurisdiction and authority on a legislature is purposeful. Otherwise, it is not humanly possible to comprehend and conceptualize situations, subject‑matters, topics and/or activities that may spring out or emerge from ever‑changing, vibrant, evolving and progressive society necessitating to be addressed, regulated, controlled and managed through appropriate legislative measure. Such was only possible by conferring residuary jurisdiction on appropriate legislature to meet such challenges or exigencies of the situation and not to allow any void on the legislation.

The residuary jurisdiction or authority is to be exercised as a last resort and only when all the Entries in both the Lists are exhausted and the subject‑matter of legislation cannot be included, encompassed or comprehended by any of the Entries in either of the two Legislative Lists. Legislative incompetence of the Federal Legislature must be clearly established before Provincial Legislature could claim residuary jurisdiction over any subject‑matter, field, topic or activity.

Under Constitution of ‑Pakistan, 1973, matters enlisted in Concurrent Legislative List carrying 47 Entries, both the Legislatures enjoys similar, coextensive and equivalent legislative competence, jurisdiction and/or authority to frame laws on subjects covered by Concurrent Legislative List. (Art. 142(b) of 1973 Constitution.

The Federation, exercises jurisdiction and authority to legislate for the whole or any part of Pakistan, including laws having extraterritorial operation. As against this, the Provincial Legislature has domain over and within the bounds of the Province. The subject‑matter, field, topic or activity on which a legislature can embark must therefore, fall within its respective legislative competence and territorial confines. In case of conflict between the Federal and Provincial Law covered by Entries enumerated in the Concurrent List, to the extent of repugnancy the Federal Law prevails (Art. 143).

Under the scheme of Constitution of Pakistan 1973, no tax can be levied for the purpose of the Federation, except as authorized by the Act of the Parliament and, for the purpose of the Province by or under the authority of Provincial Legislature (Art.77 read with Art. 129 ibid). The authority to tax is also confined to subject‑matters, fields, topics and activities covered by the Entries allocated to each of the Legislatures within their respective domain as defined under Article 142. Further, in matters relating to Inter‑Provincial Trade, authority and jurisdiction of the Federation and Provinces are further circumscribed by the limitation imposed under Article 151. There is nothing wrong for the Legislature to claim taxing power under residuary authority, provided it is shown that, either Federal Legislative or Concurrent Legislative List does not comprehend subject‑matter, topic or the activity taxed.

The Courts of law, have always considered Constitution as living and organic document. It must live and adapt itself to the exigencies of ever‑changing growing, developing and evolving society. In order to preserve the Constitution as an organic, vibrant and living document, Courts have always adopted broad‑spectrum, dynamic, progressive and liberal approach. Pedantic, rigid or insular approach will hamper the progress, development and evolution of any society leading to stagnation, chaos, and ultimate collapse of the society.

Power of taxation rests on necessity, it is an essential and inherent attribute of sovereignty belonging, as a matter of right, to every independent State or Government.

Generally, the power of taxation is as extensive as the range of subjects over which the power of the Government extends. As to such subjects, and except insofar as it is limited or restrained by the Constitutional provisions, a State's power of taxation, is to be exercised for public purposes, in general, unlimited and absolute manner extending to all persons; property and business within its jurisdiction.

Approach while interpreting the same should be dynamic, progressive, and oriented with the desire to meet the situation, which has arisen effectively. The interpretation cannot be narrow and pedantic but the Court's efforts should be to construe the same broadly, so that it may be able to meet the requirements of ever‑changing society. The general words cannot be construed in isolation but the same are to‑be construed in the context in which they are employed. In other words their colour and contents are derived from their context.

The entries contained in the Schedules of the Constitution indicate the subjects on which a particular Legislature is competent but they do not provide any restriction as to the power contained. It can legislate on the subject mentioned in an entry as long as it does not transgress or encroach upon the power of the other legislature and also does not violate any of the fundamental rights as the legislative power is subject to constraints in the Constitution itself. It is also a well‑settled proposition of law that an entry in a Legislative list cannot be construed narrowly or in a pedantic manner but it is to be given liberal construction in this behalf.

Above rule of interpretation, applies with full force, in relation to residuary subjects. Residuary subjects falling on the lap of the Provincial Legislature are the exclusive territories of the Province. The Federation has no say nor can be allowed to encroach or negate such authority, as it will be against the Provincial Autonomy as endowed in 1973 Constitution.

Presumption as to legislative competence and legitimacy of Statute is always attached to a statute. However, when the validity of any statute is questioned, as has been done in the instant case, and two interpretations are possible, one upholding the validity of Statue is always preferred and adopted. All efforts must be directed to save rather than to destroy the law. In event of any ambiguity or doubt as to liability or charging incident the benefit is resolved in favour of the assessee.

Fiscal statute, generally has certain marked attributes. Firstly, charging incident or event. Charging incident discloses what subject­ matter, topic or nature of activity is the target or on what and on whom, such levy is imposed. Secondly, at what point in time, threshold or on happening or doing of what event/activity the levy is clinched, inflicted or imposed. Thirdly the yardstick or the manner of assessment, quantification and calculation of the levy is given. Fourthly, the mechanism and machinery for the collection of levy is provided. In event the levy is a Fee or Cess imposed for the services rendered rather than the purpose or justification for such Levy.

Of all the said attributes, the charging incident or event is the crux or key of any fiscal statute. Charging incident, in a taxing statute, in fact creates the liability to pay the levy. Substance of charging incident helps to classify and determine against which of the Entry in the Legislative List, it can be comprehended or encompassed and which of the two Legislatures is competent to exercise its domain, jurisdiction or authority over it.

The Entries in the Legislative List are to be liberally, interpreted, assigned widest meaning so as to give maximum latitude to any legislature to legislate on all the aspects of the subject‑matter, topic or nature of that could be legitimately comprehended by any Entry. Entry No. 59 of the Federal Legislative List and Entry No.47 in the Concurrent Legislative List, are manifestations of such rule of benevolent and generous interpretation. Such Entries give free hand to both the legislatures to frame laws on subject‑matters, topics and activities covered by the entries but also on matters incidental or ancillary to any matter enumerated in the List.

To ascertain true intent, purpose and spirit of any Statute, it must be read and examined as organic whole. It would be quite erroneous approach to view the Impugned Statute as a bunch or collection of different subjects or words. It is not at all desirable to dissect and disintegrate each part and word of the Statute. Any endeavour to bracket them individually, under different heads of Legislative Entries, with object to show that, one or the other part of the impugned Statute is beyond the legislative competence, thus ultra vires the Constitution, and thus cannot be approved.

The targets of levy are the GOODS, which are either meant for export or are imported. Thrash-hold or the point in time, when the levy or the charging incident is crystallized, inflicted or imposed is underlined i.e. "upon entering or before leaving the Province from or for outside the country, through air or sea". The yardstick or the parameter for such Levy is in normal type of mode i.e. "at the rate of 0.5 per cent of their value". Explanation II, to the Impugned Statutory Provision, also elaborates the yardstick. The mechanism and machinery for the recovery is "as prescribed". Rules framed thereunder provide for the machinery for recovery and refund thereof. Lastly, impugned Levy, being a Cess, purpose and reason for its imposition is it in italic i.e. "for maintenance and development of infrastructures". Reason, is further elaborated in the Explanation No. 1. Explanation to a Statutory Provision, is very much part of the Statute. It elaborates, clarify and explains the intent and purpose of any word or phrase used in the provision itself. Explanation No.1 to the Impugned Statute elaborates and defines the word "infrastructure" used therein. On examination of 59 Entries, in the Part I and, two Entries in the Part II of the Federal Legislative List, closest to the substance of the charging incident in the Impugned Levy, is Entry No. 24, in Part No. 1 of the Federal Legislative List. It relates to "Carriage of passengers and goods by sea or air". Carriage of goods and passengers BY ROAD' is Conspicuously absent from said Entry No.24. There is no Entry in the Concurrent Legislative List that may have any nexus with the activity or charging event encompassed by the Impugned Statute, as highlighted above.

It is entirely up to the framers of the Constitution i.e. the Parliament to, confer or retrieve legislative competence. Either, by specifically enlisting any subject‑matter, topic or nature of activity in any legislative list and/or simply by exclusion, enlarging the residuary jurisdiction of the legislature upon whom such jurisdiction is conferred.

In the Constitution of 1973, Provincial Legislative List was dispensed with. The makers of the 1973 Constitution, in their wisdom, conferred unfettered residuary authority on the Province in respect of subject‑matters, topics and activities not comprehended by either of the Legislative Lists.

Under the Pakistan Constitution (1973), absence of such entry, in either of the Legislative Lists by necessary implication means that, the impugned Statute covering subject‑matter or topic, "Infrastructure Cess on goods ‑for carriage by road and smooth and safer movement in the Province" squarely is a "Residuary Subject" consequently it falls on the lap of Provincial Legislature. Therefore, the Provincial Legislature has exclusive domain by virtue of Residuary Authority and Jurisdiction to legislate on such subject‑matter, topic or activity by virtue of authority conferred by Article 142(c).

The attribute, to be the charging event is in fact, the terminus a quo, the threshold or the point in time of the activity, at which, the incident of levy is inflicted, imposed or crystallized.

Doctrine of "occupied field" was defined in the following words, "If however a competent legislature expressly or impliedly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field".

The doctrine of occupied field as an argument is often pressed in the service, of a contention that in the cases of clash between a law passed by the Provincial Legislature, which merely incidentally encroaches upon the forbidden federal field, the Provincial Law be not allowed to be treated as valid law since the forbidden field is not vacant but occupied by the pre‑existing law. Once again we see that the doctrine of occupied field, like the doctrine of incidental encroachment, is only another way of discovering what is the pith and substance of an impugned Act. The law would be valid if in pith and substances falls in the Provincial field but incidentally approaches upon the forbidden field with the limitation that only to the extent of repugnancy those incidental provisions will be knocked out if they come in clash with the previously enacted law which occupies the forbidden field. The Provincial law will however be fully valid if, in relation to the incidental encroachment upon the forbidden field, it could be said that it has only trenched upon the unoccupied portion of that field.

Doctrine of occupied field comes into play when it is show that, the subject‑matter, topic or activity covered by the impugned Law is comprehended by any Entry in the Concurrent Legislative List. The Federal Legislature had already legislated and framed the law on the subject‑matter or topic covered by the impugned Provincial Legislation It is then said; the Law framed by the Parliament already occupies the field and there is no room or space left for the Provincial Legislature to enter. Even, if the field is not occupied, and Provincial Legislature first ventures to legislate, on such unoccupied terrain then also, the Federal Legislation, being the dominant Legislature, pushed aside the Provincial Law to the extent it is in conflict with the Federal Law. In such a situation, it could be said that doctrine of repugnancy comes into play and not the doctrine of occupied field. Provincial law on the subject or topic covered by the Concurrent Legislative List always remains subservient to the Federal law 'irrespective, whether it precedes or succeeds the Federal law. In case any Provincial Law on matter covered by any Entry in the Concurrent Legislative List overlaps any Federal Law, then, to the extent of contradiction, the Provincial Statute gives way and yields to the provisions of Federal Statute. Such universal rule of propriety and supremacy of Federal Law is enshrined in Article 143.

To knockout a Provincial Statute at the anvil of Doctrine of Occupied Field, it is to be shown that (a) the Impugned Statute is covered by any Entry, in the Concurrent Legislative List (b) both the Provincial and Federal Legislatures are competent to legislate on the subject (c) Provincial Statue in pith and substance is compatible or in pari materia (on same subject) with the Federal Statute and (d) the Provincial Law is subsequent to the Federal law.

The statute must be examined objectively as a whole, to ascertain its pith and substance and discover its true intent and purpose. Preamble serves as a guiding tool to unfold the true intent and purpose of a statute. It is in fact umbrella of a Statue, which displays what subject­-matter, topic or activity is covered and what is the intent and purpose of the Statute.

In order to ascertain as to what extent, if any, Federal Law/s occupies the field, test is whether such Federal Law/s in fact encompasses the subject‑matter, topic or activity traded by the Impugned Statute or whether, the Impugned Statute, in any manner, overlaps the Federal Law/s, as argued by the Plaintiffs, entries in the Federal Legislative List together with corresponding laws were to be examined.

It is pertinent to note that in terms of Article 149 (3) of the Constitution the Provincial Government, if so directed by Federation, is obligated to construct and maintain means of communication that may be declared to be of national or strategic importance.

The Subject‑matter, topic or activity covered, by the Impugned statute i.e. 'Infrastructure Fee' on "the carriage of goods by road" is either comprehended by any Entry in the Federal Legislative List nor, it overlaps any of the Federal Statute. "Carriage of Goods by Road", is conspicuously excluded from Entry No. 24 in the Federal Legislative List. Legislative incompetence of the Federal Legislature is established, therefore, by necessary implication, it is but a residuary subject. There remains no doubt that, it falls exclusively within the Legislative Competence of the Provincial Legislature.

Imposing levy for the services rendered or for maintenance of infrastructure is not something that is alien to law. Fees, charges and levies have been imposed and collected under the Federal Statutes, viz. Karachi Port Trust Act, 1886, Pakistan Civil Authority Ordinance, 892 and National Highways Authority Act 1991, powers are confered on the designated authority to levy and collect charges and fee for the use, maintenance, sustenance and development of its property and infrastructure. The Federal Government imposed even development surcharge on certain goods imported through Karachi Customs Post, to reimburse the Karachi Post Trust for the construction of bridge. (See Import of Goods (Development Surcharge) Ordinance 1984 (reported in PLD 1984 Central Statute 77) Even under the West Pakistan Tolls on Roads and Bridges Ordinance, 1962 (PLD 1962 WP Statute 276), Provincial Government is authorized to collect tolls on the roads and bridges constructed by it.

On examination of Federal Statutes with reference to the Legislative Entries. It can safely be concluded that, firstly, subject­-matter of the Impugned statute "Carriage of goods by Road" is not envisaged by any Entry in either of the two Legislative Lists, secondly Impugned Statute levying 'infrastructure Cess' on "carriage of goods by road" is not overlapped by any of the Federal Statutes, neither the imposition is novel nor alien to the legislature, thus not hit by doctrine of a occupied field.

Fiscal laws are no exception to equal protection and discrimination clause as enshrined in Article 25 of the Constitution of 1973. The Courts could strike down fiscal Statute, if it is violative of Article 25 of the Constitution, provided it is established that, it is discriminatory, against equal protection or is not based on reasonable and rational classification.

Vires of a Statute is not resolved on the strength of pleadings or the stance adopted by the relevant Legislative or the Executive Authority wax in support of vires of statute or competency of legislature. Interpretation of a statute on the touchstone of the Constitution is the sole prerogative of the Courts of law and not that of the executive or legislative authorities. Once the Legislature has framed a law, its function is, over, when it comes to interpretation, or to determine the legitimacy or vires of the statute or the legislative competence of the legislature, function of Courts begins.

Presumption always leans in favour of constitutionality of any Statute. Presumption indeed is rebuttable. Burden is on a person who challenges the law on such premise. The pleadings should contain (a) the particulars of discrimination, (b) the person or object as between whom the discrimination is meted out are similarly placed and (c) that the classification or selection of the person of goods or activity is arbitrary and irrational. When the vires of a statute is challenged or competency of the legislature is questioned, the Courts are not swayed by the stance taken by executive, who are responsible to enforce the law. Relevant considerations are (i) source of Legislative authority, that is to say, whether particular statute is comprehended by any Entry in any of the Legislative List or falls out of it, (ii) Which of the two Legislatures are competent to legislate', (iii) Whether the Statute has been framed by the legislature competent to legislate, (iv) Statute is not in derogation of any of the Constitutional provision or any superior law and (v) Statute does not impinge any of the rights guaranteed under the Constitution.

Impugned Statute relating to carriage of goods by road is not comprehended by any of the Legislative Entry, and is a residuary subject, therefore, the Province has exclusive domain over it. The incidence of Levy is attracted on "carriage of goods" that are imported through designated Ports by air or sea after it crosses customs frontier and at the same time enters the Province of Sindh but, before it mixes with general mass of goods. Likewise, it is inflicted on carriage of goods of meant for export before such goods cross the customs frontiers.

No Infrastructure Cess on carriage of goods by railway has been imposed through the Impugned statute, and such cannot be claimed, demanded or recovered under the Impugned enactment.

Target of impugned Cess are 'goods' intended for export or are imported into country and at the same time into the Province through air or sea and are carried by road to any destination in any part of the Country including any part of Sindh. Charging incident is carriage by road.

Infrastructure Cess is inflicted on all classes of goods meant for export out of country originating from any part of the Country, including any part of Sindh. Once such goods enter the Province and are carried by road to leave the Province of Sindh as well as the Country, through air or sea are liable under the Impugned Statute to pay Infrastructure Cess. Likewise, any goods that enter the Country through common frontiers of Province of Sindh by air or sea, anti are carried by Road to any destination within or outside the Province by using infrastructure of the Province of Sindh, are subjected to Infrastructure Cess. Incident of levy, is neither the import nor the export but carriages by road of goods meant for export or the goods that are imported.

Article 25 of the Constitution, guarantees equal protection and like treatment to all placed in a similar situation.

Expression "Equal protection of law" envisaged by Article 25, had always engaged attention of Jurists and Courts of law. History could be traced front coveted last Sermon of Holy Prophet (May peace be upon him) delivered 1400 years back. Reasonable classification has always been considered permissible, provided such classification is based on reasonable and rational categorization, it may not be arbitrary or artificial, must be evenly applicable to all persons or goods similarly situated or placed.

There is no dispute that Impugned levy is on goods that are imported and goods meant for export. Persons liable are importers and exporters of such goods. Incidence of levy is‑'on like activity carriage of the said category of goods, by road and on its safer movement, through the Province of Sindh. Impugned cess is levied on same category of goods, collectable from similarly placed persons, charging incident is, similar activity, therefore, it cannot be said that the impugned Statute impinges equal protection, as enshrined under Article 25 of the Constitution.

Fundamental character of an imposition or levy is not to be ascertained by the yardstick or mode of measurement or the standard of calculation prescribed for assessing the amount of liability. Any individual, property or activity may be subject‑matter of various charging incidents falling within the domain of different legislative entries. Like for instance, goods are comprehended by way of various entries but for different purposes and taxing incidence, like Entry No.24 which comprehends carriage of GOODS by sea or air. Same GOODS may be subject‑matter of import or export across customs frontiers covered by Entry No.27, then same GOODS may be liable for duties of customs, export duties in terms of Entry No. 43. GOODS may be liable for duties of Excise (Entry No.44) and as per Entry No.49, taxes on sale and purchase of goods, imported exported produced, manufactured and consumed may also be levied. Terminal tax on GOODS carried by rail, sea or air and taxed on their freight could be claimed against Entry No.53 all in Federal Legislative List. Octroi on goods within local limits is Provincial Subject, by virtue of residuary authority. Merely by employing a yardstick or standard fixed under particular statute would not mean that same yardstick or standard could not be used for other imposition under different enactment. Customs duty, Sales tax, Excise are but a few impositions using almost similar standard for determining liability under respective statutes.

Any incident or activity in relation to GOODS not comprehended by any of the Entry in the Federal Legislative List or Concurrent Legislative List falls within the domain of Provincial Legislature. Best illustration is "carriage of GOODS by road" subject­-matter of present suits.

In order to appreciate the challenge on the ground of absence of quid pro quo, nature of the impugned levy is to be understood. In fiscal statute imposition of any nature are often described as Tax, Fee, Cess. Duty, Licence or charge. Such terms are used quite indiscriminately and interchangeably, though there is subtle difference in application and implication of each term. Such terms in the taxing statute are usually not defined. It is neither the name or label given to any levy nor the standard of calculation or measurement employed to assess the liability of such levy that determines its true and intrinsic nature.

Tax is compulsory exaction of money by public authority for public purposes enforceable by law. In contrast, a fee is a sort of consideration for the services rendered, which necessitate that there should be an element of quid pro quo. Therefore co‑relationship must exist between the fee charged and services rendered against it like parking fee. It is, however, not necessary that those services are mathematically proportionate to or equal with the benefit to the person charged or necessarily are uniform. At the same time it may not be excessively disproportionate. A Cess is a tax confined to local area for specified object or a particular purpose. It is in fact specie of same class to which Tax belongs, therefore, no quid pro quo between the services rendered and the imposition is necessary to maintain its validity the Cess is an imposition more like tax blended with certain attributes of fee, in the sense that it is imposed for some specified and declared purpose. The imposition is correlated to the object for which it is to be used. The purpose and object either precedes or succeeds the imposition (i.e. Cess), for instance Education Cess (under Section 3 of the Workers Children (education) Ordinance), 1972. Tobacco Development Cess (under section 11 of North West Frontier Province Finance Act 1996) and Cess for special development of infrastructure for smooth and safer movement of goods (under section 9 of the Sindh Finance (Amendment) Ordinance 2001. The tax realized forms part of general revenue of the State. Whereas, Cess like fee is imposed for specified object and purpose, is not part of the general revenue, but must be employed for the attainment of the purpose and object of the imposition.

Licence, is in fact permission to do or carry on any trade, business o activity. Charges are for actual services rendered for example charges for utility services i.e. telephone, gas, electricity. Duty of Customs, is also a Tax on the importation or exportation of goods.

An imposition is classified as Cess when it is for some specific purpose and declared object. The object is co‑related with imposition but it does not imply that, the imposition may mathematically be proportionate with the benefit or advantage. Examining the attributes, of the impugned levy, it is evident that, the object and or purpose i.e. "Special maintenance and development of infrastructure for smooth and safer movement of goods" are defined. The object and purpose of levy is co‑related with the Cess.

The Federal Legislature in term of Subjects listed in Concurrent Legislative List as per Entry No.54 is competent to impose Tax as well as fee and every imposition falling in‑between. In terms of Entry No. 44, in the Concurrent Legislative List, Provincial Legislature has coextensive authority with the Federal Legislature and exclusive authority to levy tax and fee and every levy in‑between including Cess in respect of Subjects falling within its Legislative Competence.

Impugned Cess is levied on the basis of common yardstick, uniformly applied to all the importers and exporter of the goods meant for export or imported that are carried through the Province of Sindh by road. Objection on the ground of quid pro quo therefore cannot be sustained.

Impugned statute was not only re‑enacted after ratifying the legislative infirmities, with validation provision. Validating provisions of statute are curative in nature, deeming provisions inbuilt in such enactments, give cover of legitimacy and validity to an Enactment in its original form was not considered valid or Constitutional.

Validation provision and deeming clause are not strange phenomenon in Pakistan's legislative history. Since the very first onslaught on the first Constitution of Pakistan, validation provisions and deeming clauses have become a permanent feature of the Constitutional as well as other legislative instruments. Deeming provision are well-­known fiction of law, whereby, what is in fact not done or wrongly done, by employing "magic‑wand" of deeming clause, it is deemed, presumed and supposed to have been done or rightly and legally done. Section 2 of the Sindh Finance (Second Amendment) Ordinance, 2001 provided "It shall come into force at once and shall be deemed to have taken effect from 24th February, '2001". The word "deemed" means supposed, considered, construed, thought, taken to be or presumed. The word deemed refers to what is supposed to be and not what actually is. The manner how legal fiction created by deeming provisions is to be interpreted is well‑settled. Courts have followed the approach formulated by Lord Asquith: Where the statute says that you must imagine the state of affair, it does not say that having done so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of the, state of affairs.

Its vires can only be challenged being violative of any provisions of the Constitution and not on the ground that it nullifies the judgment of the superior Court.

Validation clause provides deeming protection and validity to the infrastructure fee levied, charged and collected in pursuance of Sindh Finance Act, 1994. Validation, to 'such imposition shall take effect with reference to the date provided for in the validation clause: The Infrastructure Cess has since been validated under the impugned Statute with retrospective effect, there remains no reason, not to give effect to such mandate of law.

Vires of statute can only be challenged being violative of any provisions of the Constitution and not on the ground that it nullifies the judgment of the superior Court. Examining the impugned statute, in terms of applicability provision, it came into force at once (i.e. on 15‑5‑2001) and shall be deemed to have taken effect from 24th February, 2001. Validation clause provides deeming protection and validity to the infrastructure fee levied, charged and collected in pursuance of Sindh Finance Act, 1994. Validation, to such imposition, shall take effect with reference to the date provided for in the validation clause i.e. with effect from the date of promulgation of first version of the Sindh Finance Act, 1994 on 17‑7‑1994. The Provincial Legislature was competent to legislate and impose Infrastructure Cess on the carriage of goods by road. In the light of the discussion made above, the Infrastructure Cess has since been validated under the Fourth version of the impugned Statute with retrospective effect, there remains no reason, not to give effect to such mandate of law.

Same subject‑matter, topic or activity may fall within the tax net under various Entries of the Schedules of the Constitution. Each of such Entry gives independent authority to legislate and tax the subject‑matter, tonic or activity, for the "Incidence of Tax/Charge" peculiar to that very Entry. Where more than one Legislature enjoy power to levy an imposition there is no Constitutional bar, on the Legislative Authority, to impose levy more than once on same person, goods or activity, provided, such levy is for the separate Taxing/Charging incident. It falls within the Legislative Competence of such Legislative authority, under more than one Entry.

Infrastructure Cess on, carriage of goods, within the Province, falls within the Legislative Competence of the Province of Sindh under the Residuary Jurisdiction. Federal Legislature enjoys power to tax same goods under different Entries in the Federal Legislative List for different Taxing/Charging Incident. Object, purpose and charging incident of impugned levy is quite distinct from the Federal Levies, therefore impugned levy cannot be said to be hit by double taxation.

Article 151(1) of the Constitution circumscribes the exercise of legislative limits both of the Federation (Art. 151(2)), as well of the Province (Art. 151(3)). Article 151, tends to foster integration of economic unity amongst the Federating units, forming Pakistan, It enshrines the principle that internal geographical barrier, for the administrative reasons, does not impede unity of a State. Protection accorded under the Article is to the lawful trading, commerce and commercial interaction by and between various parts of Pakistan. Phrase "Throughout Pakistan" used in the Article means freedom of movement, trade and commercial activities throughout Pakistan, not only to Inter-­province but also Intra‑Provincial trade and commercial activities. By Inter‑provincial trade and commerce, it means trade, commerce and commercial interaction within the territorial bounds of the Province. Intra‑provincial trade and commerce means trade, commerce and commercial interaction by and between two and more Provinces. It is only Inter‑provincial trade that is reserved for the Province to legislate upon. As regard Intra‑provincial trade, it falls out of the domain of the Province. Even the authority of the Federation, over the matter relating to Inter‑province trade, commerce or intercourse is not absolute but, is subjected to "Public Interest".

"Shall be Free" as used in Article 151(1) ibid, does not mean stark and bald freedom, regulatory and compensatory matter are excepted measures relating to charging for the maintenance of road are considered to be compensatory. Such measures in fact will facilitate the free movement of trade and commerce between the Provinces.

Liberal and dynamic interpretation of the word 'free' does not at all mean an unqualified freedom in the trade, commerce and intercourse between the Provinces because unchecked freedom in the trade, commerce and intercourse without any reasonable prohibition and restriction would be lack of discipline and the Provincial administration would not be in a position to control trade and commerce prohibited/contraband articles, therefore, a qualified restriction if imposed upon the trade which has not financially burdened the traders and had also not impeded the flow of trade and commerce, would not be violative of the provisions of Article 151(1)(3).

Next important phrase used. in clause (a) of sub‑Article (3) of Article 151 of the Constitution is restriction. It has been defined in Black's Law Dictionary (5th Edition) to be a 'limitation often imposed in a deed or lease respecting the use to which the property may be put'. Whereas according to World Book Dictionary restriction means something that restricts limiting condition or rules the restriction on the use of the playground: no fighting: no damaging property: the act or fact of restricting or the condition being restricted.

The Infrastructure Development Cess has been imposed on the carriage of goods within the boundaries of the Province of Sindh, for the use of the infrastructure maintained by the Province of Sindh. Such levy by no means restricts nor prohibits entry or exit of the goods for and from the Province.

Government of Sindh, incurs expenditure and needs substantial funds to maintain the infrastructure, including highways other than the national highways, roads, streets, bridges, culverts, parking and halting places, rest areas along Highways, providing lights far traffic control, halting places for the trucks and other goods carriers, security, police and innumerable infrastructure and facilities as defined in Explanation I, to Section 9 of the Sindh Finance Ordinance, 1994 (as amended). All such infrastructure no doubt confers benefit on all those who use the same.

Impugned levy falls within the legislative competence of the Province of Sindh, it is neither violative of any rights guaranteed under the Constitution, nor transgresses the limitation imposed by Article 151 of the Constitution.

(c) Vires of Statute‑‑‑

‑‑‑‑ Presumption as to legislative competence.

Shrin Munir v. Government of Punjab PL.D 1990 SC 295 and Amrit Banaspati Co. Ltd. V. Union of India AIR 1995 SC 1340 ref.

PLD 1961 SC 119; 1982 CLC 1252; 1989 CLC 1211; PLD 1990 Kar. 342; 1991 SCMR 1041; 1999 SCMR 138; PLD 2001 SC 499 and AIR 1995 SC 1340 ref.

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

‑‑‑‑Art. 142‑‑‑Parameters for the Federal and Provincial Legislature to exercise their respective exclusive, as well as concurrent domain over the subject‑matter topics and activities as well as the territorial boundaries, over which, laws framed and/or legislated by them may have applicability, supplied.

Muhammad Shafi v. Wealth Tax Officer PLD 1989 Kar. 15; Pakistan Floor Mills Association v. Government of Sindh 2003 SCMR 162; Jadab v. H.P. Administration, (1960) 3 SCR 755; Second G.T.O. v. Hazareth AIR 1970 SC 999; Kamataka State Union of India AIR 1978 SAC 68; Subramaniyan v. Muthuswami AIR 1941 FC 47; International Tourist Corporation v. State of Haryana 774 para. 7 ref.

(e) Interpretation of Statutes‑‑‑

‑‑‑‑Fiscal Statute‑‑‑Validity of fiscal Statute on the touchstone of Constitutional Provisions‑‑‑Principles.

Ellahi Cotton Mills Ltd.'s case PLD 1997 SC 582; PLD 1961 SC 119; 1982 CLC 1252; 1989 CLC 1211; PLD 1990 Kar. 342; 1991 SCMR 1041; 1999 SCMR 138; PLD 2001 SC 499; AIR 1995 SC 1340; PL~D 1990 SC 295; AIR 1969 SC 378 and AIR 1961 SC 552 ref.

(f) Interpretation of Constitution‑‑‑

‑‑‑‑ Entries in the Schedule to the Constitution to be interpreted liberally, assigned widest meaning so as to give maximum latitude to any, legislature to legislate all the aspects of the subject‑matter, topic or nature of that could legitimately be comprehended by the Entry‑‑­Principles.

PLD 1950 FC 1; Profulla v. Bank of Commerce AIR 1946 PC 60; Federation of Pakistan v. Muhammad Safifullh Khan PLD 1989 SC 166 and Al‑Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 ref.

(g) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Fourth Sched.‑‑‑Provincial Legislative List having been dispensed with, makers of the Constitution, in their wisdom, conferred unfettered residuary authority on the Province in respect of the subject‑matters, topics, and activities not comprehended by either of the Legislative Lists.

(h) Interpretation of statutes‑‑‑

Doctrine of "occupied field"‑‑‑Definitions and conditions for application of the doctrine discussed.

NS Bindra's Interpretation of Statute 9th Edn.; (a Butterworths Publication), by quoting Isaacs J; Cycle Engineering Co. v. Cowburn (1926) 27 CLR 466; Fundamental Law of Pakistan 1958 Edn. p.251 by A.K. Brohi and Constitution of the Islamic Republic of Pakistan, at p.693 by Mian Basher Ahmed ref.

(i) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art, 149(3)‑‑‑Provincial Government, if so directed by the Federation, is obliged to construct and maintain means of communication that may be declared to be of National or strategic is importance.

(j) Constitution of Pakistan (1973)‑‑‑

-‑‑Art. 25‑‑‑Expression "Equal protection"‑‑‑Reasonable classification‑‑­Rational categorization‑‑‑Discrimination‑‑‑Principles.

1991 CLC 13; I.A. Sherwani's case 1991 SCMR 1086 and Ellahi Cotton Mills Ltd.'s case PLD 1997 SC 582 ref.

(k) Words & Phrases ‑‑‑

‑‑‑‑"Tax"‑‑‑"Fee"‑‑‑"Cess"‑‑‑Distinction.

PLD 1977 Kar. 742; 1986 CLC 533; 1990 CLC 550; NLR 1994 Tax 114; PLD 1997 Kar. 604; 1990 CLC 197; 1999 SCMR 1402; PLD 1975 Lah. 748; AIR 1954 (sic) 282; AIR 1960 AP 234; AIR 1960 Mad. 160; AIR 1967 SC 1512; AIR 1990 SC 85; Chief Commissioner v. DCM AIR 1978 SC 1181 and State of Maharashtra v. Salvation Army AIR 1975 SC 846 ref.

(l) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 151‑‑‑Inter‑provincial trade‑‑‑Scope of Art.151, Constitution.

Mirpurkhas Sugar Mills Ltd. v. District Council Tharparkar 1990 MLD 317; State of Madras v. Nataraja AIR 1969 SC 147; State of Assam v. Labanya Prabha AIR 1967 SC 1574; Pakistan Tobacco Co. Ltd. v. Government of N.‑W.F.P. PLD 2002 SC 460 and Black's Law Dictionary 5th Edn. ref.

Ms. Sana Minhas for Plaintiffs (in Suits Nos.277, 279 to 291, 293 to 297, 323, 356, 357, 358, 362, 466, 467, 499, 500, 669, 790, 821, 847, 848, 950, 1022, 1023, 1024, 1251, 1252, 1253, 1254, 1255 of 2001, 594 of 2002 and 577 of 2003).

Munib Akhtar (in Suit No.445 of 2001).

Farough Naseem (in Suit No.353 of 2001).

Khalid Mahmood Siddiqui (in Suits Nos. 1454 and 1455 of 2001).

Imtiaz Lari (in Suits Nos. 151, 152, 153, 170 to 173, 184, 185, 186, 193, 194, 209 to 213, 221, 233, 234, 235, 239; 240, 241, 242, 249, 283, 284; 285, 317, 318, 337, 338, 362, 363, 414, 422, 487, 488, 489, 503, 504, 542, 543, 598, 656, 1044, 1045, 1046, 1047, 1048, 1049, 1050, 1083 and 1084 of 2003).

Tariq Javaid (in Suits Nos. 608, 609 and 1046 of 2001).

Miss Sofia Saeed (in Suits Nos. 420, 421, 422 of 2001, 897, 1071, 1072, 1080, 1081, 1098 of 2002, 6, 66, 67, 68, 69, 120, 327, 390, 391, 474, 538, 597, 729 and 1006 of 2003).

K.A. Wahab (in Suits Nos. 560, 621, 698, 730, 740, 1508 of 2001 and 373 of 2003).

Naveed Ahmed (in Suits Nos. 281. 295, 360, 372, 375, 463 and 897 of 2003).

Aga Faquir Muhammad (in Suits Nos. 1119, 1199, 1279, 1280 and 1319 of 2001).

Kazim Hasan (in Suits Nos. 346, 1194, 1195 and Nil of 2001 and 443 of 2003).

Javaid Chhatari (in Suit No. 356 of 2003).

Muhammad Ali Abbasi (in Suits Nos.348 and 402 to 404 of 2003).

Anjum Ghani Khan (in Suits Nos. 1249 and 1250 of 2002, 1051, 1052, 1053 and 1054 of 2003).

Messrs Aijaz Ahmed and S. Imtiaz Ali (in Suit No.1064 of 2002).

Abdul Ghafoor Mangi (in Suits Nos.87 and 88 of 2002).

Messrs Abid S. Zuberi and Asghar N. Faruqui (in Suit No.565 of 2003).

Abdul Ghaffar Khan (in Suits Nos. 1580.of 2001, 815 of 2002 and 101 of 2003).

Talha Alizai (in Suit No. 1065 of 2003).

Anwar Mansoor, A.‑G. (Sindh) and Ch. Muhammad Rafiq Rajvery, A.A.‑G. for Defendant No. 14 (in Suit No.277 of 2001).

Rasheed A. Akhund for Defendant No.2 (in Suit No.277 of 2001).

Dates of hearing: 18th, 21st, 25th, 26th March, 2nd 10th, 14th, 18th April and 20th October, 2003.

P L D 2005 Karachi 125

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

THE STATE/ANF through Deputy Director (Law) ANF Regional Directorate Sindh, Karachi‑‑‑Applicant

Versus

Syed QAISER SHAH and another‑‑‑Respondents

Criminal Miscellaneous Application No.89 of 2004, decided on 30th September, 2004.

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

‑‑‑‑Ss. 497(5), 156(2) & 173‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51‑‑‑Anti‑Narcotics Force Act (III of 1997), S.6(2)‑‑‑S.R.O.600(I)/97‑‑‑Bail, cancellation of‑‑‑Bail was granted to accused on the ground that complainant/Investigating Officer being not S.H.O. of Police Station, he could not investigate case and that legal recovery of Charas, thereby had become doubtful and case of accused needed further inquiry‑‑‑Validity‑‑‑No doubt a Sub‑Inspector of Police had investigated offence, but that by itself would not brush aside entire proceedings including that of recovery of narcotics‑‑‑Investigation conducted by Sub‑Inspector of Police or for that matter submitting challan by him, would be irregular, but not illegal‑‑‑Under provisions of S.156(2), Cr.P.C., no proceedings of a Police Officer in any case would, at any stage, be called in‑question on the ground that case was one which such officer was not empowered under the said section to investigate‑‑­Irregularities in the matter of submission of challan or a final report under S.173, Cr.P.C. would not, by itself, vitiate proceedings‑‑‑Order granting bail which suffered from a patent illegality, was set aside and bail granted to accused, was cancelled.

State v. Bashir PLD 1997 SC 408 ref.

Mehmood Alam Rizvi, Special Prosecutor ANF

Muhammad Hanif Kashmiri for Respondents.

P L D 2005 Karachi 128

Before Wahid Bux Brohi and Rahmat Ilussain Jafferi, JJ

TAJ WALI and 6 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Special Criminal Appeal No. 178 and Criminal Jail Appeals Nos.301 to 303 of 2003, decided on 30th October, 2004.

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

‑‑‑‑Ss. 9(c) & 21‑‑‑Appreciation of evidence‑‑‑Mashirs and all prosecution witnesses had made improvements in their statements recorded by the Court as against the F.I.R. and those recorded under 5.161, Cr.P.C. on material aspects of the case‑‑‑Such improvements and contradictions could not betaken lightly and evidence of said Mashirs and witnesses would require strong acid independent corroboration‑‑­More than 65 persons having been alleged to be available in the room at the time when raiding party entered in said room, then individual liability of physical possession of articles lying on, table in said room could not be fixed on any particular person‑‑‑Nobody was caught from those persons who ran away from the room‑‑‑Mere presence in the room would not be enough to connect accused with physical possession of narcotics lying on the table in the room, unless a positive evidence was led that room belonged to those persons or that they were in its constructive possession or they were holding or removing bundles, but no such evidence had been led by prosecution ‑‑‑ Charas received by Chemical Analyzer as sample, was not tallying with number of slabs of Charas sent by prosecution as per details given by Mashir ‑‑‑ Remaining two witnesses did not disclose number of slabs available in packets‑‑­Doubt, in circumstances had been created about samples of Charas sent to the Chemical Analyzer‑‑‑Prosecution did not care to collect sample from Chemical Analyzer and to produce in the Court‑‑‑Valuable piece of evidence in circumstances was withheld by prosecution which had adversely affected the prosecution story‑‑‑Complainant police officer, despite having ample opportunity and time to have obtained search warrant from the Court of Magistrate to conduct raid and search room concerned; failed to obtain such warrant‑‑‑Complainant, in circumstances had clearly violated provision of S.21 of Control of Narcotic Substances Act, 1997‑‑‑Non‑compliance of S. 21 of Control of Narcotic Substances Act, 1997, though would not by itself vitiate trial and search warrant and same could be dispensed with in exceptional cases in which search warrant could not possibly be obtained, but a general licence could not be given to a raiding party to violate statutory provision of law‑‑‑Prosecution having failed to prove case against accused beyond any reasonable doubt and Special Prosecutor having also not supported prosecution case, accused were acquitted.

Iltaf v. State 1996 SCMR 167; Pomi v. State 1995 MLD 927; Ghulam Muhammad v. State 1997 PCr.LJ 805; Maqsooda Begum v. Ghulam Qadir 1996 SCMR 1539; Sayed Karim v. Anti‑Narcotic Force PLD 2003 Kar. 606; Tariq Pervez v. State 1995 SCMR 1345, Tila Muhammad v. State 2003 PCr.LJ 1379 and Ghoush Bakhsh v. State 2000 MLD 618 and State v. Hamjo 2003 SCMR 881 ref.

(b) Administration of justice‑‑‑-

‑‑‑‑ If law had provided a particular thing to be done in a particular manner, then it should be done in that manner or it should not be done at all.

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

‑‑‑‑Ss. 9(c) & 21‑‑‑Appreciation of evidence‑‑‑Assistant Director Anti ­Narcotic Force on receiving spy information, conducted raid without obtaining search warrant, lodged F.I.R. and conducted entire investigation of the case‑‑‑Assistant Director was complainant in the case‑‑‑Offence involved capital punishment and case rested upon only official of Anti‑Narcotic Force‑‑‑Heavy responsibility lay upon prosecution to produce a solid piece of evidence which could eliminate all possibilities of false involvement of accused and evidence should be free from all doubts‑‑‑Court, in such types of cases, should also scrutinize evidence very minutely and if a single doubt appeared in evidence, advantage of such doubt should be liberally given to accused because it was very easy to involve an innocent person in such cases as all witnesses were invariably police witnesses and subordinate to complainant who was also an Investigating Officer‑‑‑Complainant was highly interested as he having detected offence, would like to see that accused was convicted‑‑‑Complainant thus should not be made Judge of his own cause, his version should be investigated by another officer and a check could be placed on manipulation of evidence by complainant against innocent person which was very essential in present day's time‑‑­Activities of police officials who were themselves becoming complainants, witnesses and investigating officers should be checked and investigation of cases should be entrusted to officer superior to the complainant which act would ensure fair play between, parties.

Mir Nawaz Khan Marwat for Appellants.

S. Mehmood Alain Rizvi, Special Prosecutor, ANF for the State.

Date of hearing: 27th September, 2004.

P L D 2005 Karachi 146

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

ANSAR‑UL‑ISLAM‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Jail Appeal No.202 of 2003, decided on 31st October, 2003.

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

‑‑‑‑S. 9(c)‑‑‑Appreciation of evidence‑‑Recovery of 1400 grams of Heroin powder‑‑‑Benefit of doubt‑‑‑Delayed sending of samples for chemical examination‑‑‑Case property, examination of‑‑‑Jurisdiction of appellate Court‑‑‑Accused was convicted under S.9(c) of Control of Narcotic Substances Act, 1997, by Trial Court for recovery of 1400 grams of heroin powder from congealed covers and holes in his bag‑‑­Accused denied any concealed covers in his bag and also raised the plea that the samples were sent to Chemical Analyzer 10 months after its alleged recovery‑‑‑Validity‑‑‑High Court after examination of the bag neither found concealed covers nor hole in it at any place‑‑‑Story of prosecution that the bag had concealed covers or compartment made a hole in it was not supported from the circumstantial evidence‑‑‑Conflict between oral and circumstantial evidence was found‑‑‑Chemical Analyzer's report showed that there was delay of ten months in sending the samples to Chemical Analyzer for examination and report‑‑Such delay was inordinate delay which the prosecution was required to explain but the same, had not been done by the prosecution‑‑‑Unexplained and inordinate delay had materially affected the Chemical Analyzer's report‑‑‑Case of the prosecution being doubtful, accused was entitled to benefit of doubt‑‑‑Conviction and sentence passed by the Trial Court was set aside and the accused was acquitted of the charge‑‑‑Appeal was allowed in circumstances.

Muhammad Achar Machi v. The State 2001 PCr.LJ 1762; Tariq Pervez v. State 1995 SCMR 1345; Jamal Shah v. State 1997 SCMR 1494 and Jahangir v. Nazar Farid 2002 SCMR 1986 ref.

M. Riaz for Appellant.

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

Date of hearing: 28th October, 2003.

P L D 2005 Karachi 151

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

SATTAR alias SATTI and another‑‑‑Appellants

Versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No.28 of 1996 and Criminal Revision No.30 of 1996, decided on 13th October, 2003.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.46‑‑‑Appreciation of evidence‑‑‑Dying declaration‑‑‑True disclosure of incident‑‑­Determination‑‑‑When deceased was brought to hospital in injured condition, medical officer started giving him first aid with the result that deceased regained his senses and immediately thereafter, arrangements were made for recording of dying declaration‑‑‑Accused contended that dying declaration was tutored one‑‑‑Validity‑‑‑No time was left with anybody to consult with deceased or tutor him in circumstances‑‑‑Dying declaration consisted of few sentences‑‑‑If deceased would have been tutored, then he had given the names of other accused persons as stated by prosecution witnesses‑‑‑Faculty of speaking of deceased was not affected at the time of recording of dying declaration which he regained after receiving first aid by medical officer‑‑‑Dying declaration was properly recorded by Magistrate in presence of medical officer‑‑‑Dying declaration, held, was true and voluntarily made in circumstances.

(b) Penal Code (XLV of 1860)‑‑--

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Interested witnesses, evidence of‑‑‑Presence of eye‑witnesses not supported by dying declaration‑‑‑Both the eye‑witnesses were related to deceased‑‑‑Brother of one of the accused was murdered a few months back in which brother and near relatives of eye‑witnesses were challaned in that case‑‑Effect‑‑‑Such eye‑witnesses were not only interested in the matter but were also hostile to the accused persons‑‑‑Evidence of such eye‑witnesses required strong and independent corroboration with regard to their presence at the scene of incident‑‑‑Presence of eye witnesses was excluded by dying declaration of deceased‑‑‑Ocular testimony of such eye‑witnesses was not relied upon in circumstances.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Recovery of blood‑stained dagger and blood‑stained clothes‑‑Proof‑‑‑Evidence of Investigating Officer was corroborated by Mashir who had given the same details of recoveries‑‑­Both the witnesses of recovery were subjected to cross‑examination but nothing had come on record to discredit their evidence ‑‑‑Effect‑‑­Accused had pointed out no contradiction or discrepancies in the evidence of both the recovery witnesses‑‑‑Recovery of articles was proved by prosecution circumstances.

(d) Penal Code (XLV of 1860)‑‑‑-

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Lesser sentence, awarding of‑‑­Principle‑‑‑Normal sentence for an offence punishable under S.302, P.P.C. is death‑‑‑If there are some mitigating circumstances, then a lesser sentence .can be awarded.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Re‑appraisal of evidence‑‑‑Dying declaration, reliance upon‑‑‑Fatal injuries ‑‑‑Determination‑‑‑Deceased, in the dying declaration, had not assigned the role of causing four fatal injuries to any of the accused individually‑‑‑Deceased in his dying declaration leveled general allegation that the three accused and other unidentified persons had caused all the injuries‑‑‑As such it was not known that as to which one of the accused or other unidentified persons caused the four fatal injuries‑‑‑Effect‑‑‑Specific responsibility could not be fixed on any of the accused with regard to the fatal injuries‑‑‑Prosecution failed to make out a case for awarding capital punishment‑‑‑As the case was proved against the accused persons, the conviction and sentence of life imprisonment awarded by Trial Court was maintained‑‑‑Appeal was dismissed accordingly.

Faqir Ali v. State 1997 PCr.LJ 1453; Sikandar v. State 1990 PCr.LJ 396; Ghulam Sarwar v. State 1978 SCMR 33; Tawaib Khan v. State PLD 1970 SC 13; Sher Bahadur v. State 1972 SCMR 651; Muhammad Yasin v. State 1978 SCMR 303; Sultan v. State (1970 PCr.LJ 751; Magrio v. State 1978 PCr.LJ 243; Sahib Masih v. State 1982 SCMR 178; Muhammad Hassan v. State PLD 1982 Lah. 577; Niamat Ali v. State 1981 SCMR 61; Shabaz v. Crown PLD 1953 Lah. 566; Taj Muhammad v. The State PLD 1960 (W.P) Lah. 723; Aslam v. State 1997 SCMR 1284; Ayaz Ali Shah v. State 1997 SCMR 1296 Mehrban v. State 1974 PCr.L.J. 543; Maqddar Shah v. State 1974 SCMR 242; Jetharam v. Weram 1986 SCMR 1056; Jawad v. State 2003 SCMR 1530: Ghulam Abbas v. State PLD 1991 SC 1059; Shehruddin v. Allah Rakhio 1989 SCMR 1461; Allahdad v. State 1995 SCMR 142; Saeed v. State 1984 SCMR 1069 and Atta Muhammad v. State 1985 SCMR 36 ref.

Abdul Haleem Pirzada for Appellants.

Muhammad Ashraf Kazi for Applicant (in Criminal Revision Application No.30 of 1996).

Jawaid Akhtar, State Counsel for Respondents.

Date of hearing: 2nd October, 2003.

P L D 2005 Karachi 164

Before Muhammad Mujeebullah Siddiqui, J

DESMOND VAZ and others‑‑‑Petitioners

Versus

KARACHI BUILDING CONTROL AUTHORITY through Chief Controller of Buildings Civil Centre, Karachi and others‑‑‑Respondents

Constitutional Petition No. D‑1278 of 1997, and C. M. A. Nos. 1571, 1590 and 2857 of 2002, decided on 4th November, 2004.

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

‑‑‑‑Art. 199‑‑‑Limitation Act (IX of 1908), Preamble‑‑‑Constitutional petition‑‑‑Law of limitation does not apply to the institution of Constitutional petition nor on its dismissal on the ground of limitation.

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

‑‑‑‑Arts. 199 & 202‑‑‑Constitutional jurisdiction of High Court‑‑­Scope‑‑‑Filing of Constitutional petition by aggrieved person‑‑­Procedure‑‑‑Recourse to the technicalities of civil/criminal law‑‑‑Not necessary‑‑‑Principles.

Article 199 of the Constitution of Islamic Republic of Pakistan speaks of an application by any aggrieved party and thus, a writ petition is simply an application by an aggrieved party seeking redress from the High Court by way of issuing the writs envisaged in Article 199 of the Constitution. Thus, the writ jurisdiction of the High Court can be invoked by simply filing an application. The technicalities governing the pleadings under the C.P.C. are not applicable for the simple reason that the proceedings under Article 199 are basically summary in nature and envisage the invocation of jurisdiction by any aggrieved party, without having recourse to the technicalities of civil/criminal law. Under this jurisdiction an expeditious and inexpensive dispensation of justice is contemplated. If the relief sought in the petition is of civil nature the proceedings are in the nature of original civil jurisdiction and if the relief sought falls within the realm of criminal administration of justice, the application under Article 199 of the Constitution, shall be in the nature of criminal original proceedings. Thus, looking to the very purpose required to be achieved in pursuance of the jurisdiction conferred on the High Court under Article 199 of the Constitution, no limitations and procedural technicalities have been prescribed either under the Constitution or any other law. Under Article 202 of the Constitution, the High Court is empowered to make rules relating the practice and procedure of the Courts including the filing of writ petitions and the ancillary proceedings but no such rules have been framed by the Sindh High Court. Article 199 of the Constitution specifies the kinds of writs which can be issued by the High Court and further provides for grant of interim relief and the period for which an interim order concerning public revenue shall remain operative. In order to make the invocation of writ jurisdiction simple and easy, the provisions contained in C.P.C. have not been made applicable to institution of writ petitions.

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

‑‑‑‑Art.199‑‑‑Civil Procedure Code (V of 1908), S.114 & O.XLVII, R.1‑‑‑Constitutional jurisdiction of High Court‑‑‑Review‑‑‑Power of High Court to review in Constitutional jurisdiction by recourse to S.114, C. P. C.‑‑‑Scope‑‑‑Principles.

The right to claim review of any decision of a Court of law, like the right to appeal, is a substantive right and not a mere, matter of procedure. 'The right of appeal from any decision of .any Tribunal must be given by express enactment and the principle is equally true in case of review, 'because both, appeal and review, though' differ in. scope, are substantive rights. As such neither of them is available unless it has been conferred by law.

However; section 114 of the Code of Civil Procedure confers jurisdiction on the Courts of Civil Judicature to review judgments pronounced by them, and Order 'XLVII, rules of the Code prescribes the grounds on which such review can be claimed. Apart from the Court's inherent power of review, this is the only legal provision which confers power of review on Civil Courts, that is, Courts of Civil jurisdiction. Nevertheless, the provisions of the Code of Civil Procedure, in view of section 117 thereof, apply to. High Court. Pursuant to the power under section 129 of the Code no rule appears to have been made by either of the High Court making the provisions of section 114 of the Code inapplicable to it in the exercise of its original civil jurisdiction. Hence, the power of review under section 114 of the Code is available to the High Court in exercise of appellate and original civil jurisdictions. The Civil Procedure Code regulates civil proceedings. The nature of the proceeding does not necessarily depend on the nature of the jurisdiction of the Court invoked. In order to determine whether a proceeding is a civil proceeding or not, it is necessary to see what are the questions raised and decided in the proceeding. If the proceeding involves the assertion or enforcement of a civil right, the Code is framed on the scheme of providing generally for the mode in which the High Court is to exercise its jurisdiction, whatever it may be; while specifically excepting the powers relating to the exercise of original civil jurisdiction, to which the Code is not to apply. The writ under the Constitution is an original jurisdiction which pertains to civil as well as other matters. "A proceeding taken for the enforcement of civil right is a civil proceeding, whatever may be the source of the Court's jurisdiction invoked for enforcement of such a right". Whether a proceeding is civil or not depends on the nature of the subject‑matter of the proceeding and its object, and not on the mode adopted or the forum provided for the enforcement of the right. The proceeding under the writ jurisdiction relating to a civil matter is a civil proceeding although the High Court jurisdiction in such a proceeding is Constitutional jurisdicti6n of an original kind. A civil proceeding, in a Court of civil jurisdiction is governed by the Code of Civil. Procedure and section 114 of the Code conferring power of review not having been made inapplicable to the High Court in exercise of its original civil jurisdiction, the power to review an order made by the High Court in its writ jurisdiction will be available to it under the said section 114 if that section is otherwise applicable. Review of order made by High Court in its writ jurisdiction is competent under Clause (b) of section 114 of the Code of Civil Procedure.

Hussain Bakhsh v. Settlement Commissioner Rawalpindi PLD 1970 SC 1 fol.

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

‑‑‑‑Art. 199‑‑‑Civil Procedure Code (V of 1908), S.114 & O.XLVII, R.1‑‑‑Limitation Act (IX of 1908), Preamble & Art.162‑‑‑Power to review as exercised by the High Court in Constitutional jurisdiction by recourse to S.114, C.P.C.‑‑‑Limitation‑‑‑Constitutional petition under Art. 199 of the Constitution is neither suit nor, an application envisaged under C.P.C. or any other statute law; it is an application under the supreme law of the land i.e. Constitution and as such, in the absence of any rule framed by the High Court, is not circumscribed by any law of limitation‑‑‑Review application however, is fully covered under the expression "certain application to the Courts" in the preamble of the Limitation Act, 1908‑‑‑Application for review under S.114, C.P.C. is certainly "an application to the Court", notwithstanding being in Constitutional proceedings and therefore the law of limitation shall be attracted‑‑‑Law of limitation being applicable, the only provision which is attracted is as contained in Art. 162 of the Limitation Act, 1908‑‑­Review application presented beyond the period prescribed under Art. 162, was liable to be dismissed.

An application under Article 199 of the Constitution invoking writ jurisdiction of the High Court is neither suit nor an application envisaged under C.P.C. or any other statute law. It is an application under the supreme law of the land i.e. Constitution and as such in the absence of any rule framed by the High Court, is not circumscribed by any law of limitation. However, the ancillary proceedings in the writ jurisdiction which is in the nature of original civil jurisdiction, are not on the same footing as application under Article 199 itself. The power of review is conferred on the High Court under section 114 of the C.P.C. by virtue of applicability of the C.P.C. to the proceedings in the nature of civil proceedings. The review application is not envisaged under Article 199 of the Constitution or any other provision contained in the Constitution 'but emanates from the provisions contained in Civil Procedure Code. The proceedings under various provisions of the Civil Procedure Code can be initiated within the period of limitation provided in C.P.C. itself or under the Limitation Act. However, if no period of limitation is provided for initiating an application as was the case in respect of revision application under section 115, C.P.C., before insertion of second Proviso to section 115(1) by Act VI of 1992, whereby the period of limitation of 90 days was prescribed, the issue of limitation can be governed on the doctrine of laches.

It cannot be denied that legal precepts were devised with a view to impart certainty; consistency and uniformity to administration of justice and to secure it against arbitrariness, errors of individual judgment, and mala fide. Over a period of time this development of codes and rules led to the evolution of what is called `Jurisprudence of' Conception' a system of logical deduction from fixed premises.

If the law of limitation is not applicable Courts shall have discretion to consider the delay on the doctrine of laches but wherever the law of limitation is attracted the Court has no jurisdiction to relax the period of limitation except in accordance with the provisions of law in this behalf. All the laws including the law of limitation come into operation automatically. Substantive right of review can be availed by a party under section 114 read with Order XLVII, rule 1, C.P.C. with all its merits and demerits, benefits and adverse affects advantages and disadvantages. It does not lie with the party to allege that he may be allowed to avail the substantive right of review under section 114, C.P.C. but without rigors of the law of limitation which otherwise is applicable.

The writ petition although a proceeding in the nature of original civil jurisdiction is not a 'suit therefore, the period of limitation is not applicable to it. However, the review application is fully covered under the expression in the preamble of the Limitation Act, 1908, "certain applications to the Courts". An application for review under section 114, C.P.C. is certainly an application to the Court, notwithstanding, being in the writ proceedings and therefore, the law of limitation shall be attracted.

As the law, of limitation is applicable, therefore, the only provision which is attracted is, Article 162 of the First Schedule to the Limitation Act, 1908 and admittedly the review application has been presented beyond the period of 20 days prescribed under Article 162 of the Limitation Act, 1908 and therefore, the review application is liable to be dismissed.

Naimur Rehman for Petitioners.

Anwar Ali Shah for Respondent No. 1.

Ahmed Pirzada, Addl. A.‑G. for Respondent No.3.

Syed Sami Ahmed for Respondents Nos. 14 and 15.

Date of hearing: 4th October, 2004.

P L D 2005 Karachi 177

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

NOOR AHMED and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Jail Appeal No.49 of 2001 and Confirmation Case No.2 of 2001, decided on 4th November, 2003.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Criminal Procedure Code (V of 1898), Ss.342, 364(2) & 537‑‑‑Certificate on statement under S.342, Cr.P.C., non‑availability of‑‑‑Accused did not allege that their statements were not recorded in their presence during hearing of the case or that the Court did not put questions to them or that they did not give any replies to the questions or the Court did not record the replies at all or recorded the replies improperly or that the accused did not put their signatures on their statements or that the Court did not sign the same or that the record did not contain the full and true disclosure of their statements ‑‑‑Effect‑‑­Absence of such objections coupled with the signatures of the accused and of the Judge on the statements was by itself proof that the same were recorded in the presence and hearing of the Court and the record contained the full and true account of the statements of the accused‑‑‑If any of such objections could have been raised, then the objections could have been considered and resolved‑‑‑In absence of such objections merely non‑availability of the certificate which might be due to inadvertence, ignorance, mistake or any other bona fide reason did not amount to any illegality‑‑‑Non‑availability of such certificate was merely an irregularity, which could be cured under S.537, Cr.P.C.‑‑­Non‑availability of such certificate had neither misled nor prejudiced the accused nor occasioned failure of justice an circumstances.

Shah Nawaz v. State PLD 1986 FSC 242 ref.

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

‑‑‑‑Arts. 189, 201 & 203‑GG ‑‑‑Decision of Full Bench‑‑‑Effect---Decision of Full Bench prevails upon the decision of Division Bench.

Muhammad Kalam v. State 1999 MLD 55; Nadir Khan v. State 2002 MLD 1873; The State v: Ajab Criminal Petition No.86‑K of 2001; Liaqat Ali v. State 2002 PCr. LJ 230 and Hazrat Jamal v. State PLD 1958 SC 383 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Ocular account supported by medical evidence‑‑‑Evidence of eye‑witnesses was corroborated by medical evidence which showed that the deceased had received firearm injuries and died because of such injuries‑‑‑Prosecution had proved the case against the accused‑‑‑Conviction and sentence of death awarded to the accused by the Trial, Court under S.302(b), P.P.C. was maintained.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/34‑‑‑Appreciation of evidence‑‑‑Aerial firing‑‑‑Non­-availability of empty cartridges from the place of occurrence‑-‑Accused were convicted and sentenced by Trial Court on the allegation of aerial firing at the place of incident and instigating the co‑accused‑‑‑Validity‑‑­Non‑availability of empty cartridges showed that no aerial firing was made at the place of incident‑‑‑Prosecution failed to prove the part of instigation or aerial firing against the accused‑‑‑No other overt act was assigned to the accused nor there was any material on the record to show that the accused shared common intention with the co‑accused‑‑‑Case of the accused being distinguishable from that of the other co‑ accused they were entitled to benefit of doubt‑‑‑Appeal was allowed in circumstances.

Mst. Azima v. State PLD 2001 Quetta 1; Muhammad Aslam v. State PLD 2001 Quetta 20; Muhammad Ashraf v. Faiz Ali PLD 1975 SC 556; Muhammad Shafi v. State 1974 SCMR 263 and Muhammad Shafi v. State 1970 PCr.LJ 868 ref:

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 34‑‑‑Common intention‑‑‑Proof‑‑‑Whether presence of accused at the scene of incident was sufficient to attract the provisions of S.34, P.P.C.‑‑‑Mere such presence of the accused was not sufficient to attract the provisions of S.34, P.P.C., there must be proof of some overt act on the part of each accused done in, furtherance of common intention.

Hasan v. State 1969 SCMR 455 and Hasan Din, v. Muhammad Mushtaq 1978 SCMR 49 ref.

Shoukat H. Zubedi for Appellants.

Javed Akhtar for the State.

Dates, of hearing: 30th and 31st October, 2003.

P L D 2005 Karachi 188

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

MUSTAFA LAKHANI‑‑‑Petitioner

Versus

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY, KARACHI‑‑‑Respondents

C.P. No.D‑390 of 1988, decided on 20th July, 2004.

Pakistan Defence Officers Housing Authority Order [P.O. 7 of 1980]‑‑‑

‑‑‑‑Art. 17(h)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Cancellation of plot under Art.17(h) of Pakistan Defence Officers Housing Authority Order, 1980‑‑‑Locus poenitentiae, principle of‑‑‑Applicability‑‑‑Bye‑laws of the Society provided that only the Managing Committee could make allotment of the plot to the petitioner provided he was a member of the society or there were special circumstances in his favour‑‑‑Minutes Book of the proceedings of the Managing Committee for the year of allotment completely erased the basis for allotment of plot in favour of the petitioner‑‑‑Petitioner had failed to produce a valid and proper order of the Managing Committee of the Society whereby a decision to allot the plot in question in his favour was made‑‑‑Facts and circumstances lent support to the contention of the Society that the allotment letter to the petitioner was a fraudulent, bogus and illegal letter issued by the then Secretary of the Society who, allegedly, was found involved in grave and serious practice of fraudulent, bogus, illegal and mala fide allotments of the plots in favour of several persons including the petitioner‑‑‑Special circumstances/case on the basis of which the petitioner claimed entitlement to allotment of a plot did not exist and there was hardly any ground for the society to allot him the said plot‑‑‑Contention of the petitioner was that since allotment had been acted upon as the petitioner had made payments of the total sum as demanded by the society from time to time followed by "A" lease in his favour, the same could not be recalled, rescinded or cancelled in view of the principle of locus poenitentiae‑‑‑Validity‑‑‑Held, principle of locus poenitentiae was applicable if the order on the basis of which certain rights and privileges were claimed was a legal order and further that perpetual rights could not be acquired or gained on the basis of an illegal order‑‑‑Allotment order being not a legal, valid and bona fide order as the very basis thereof i.e. meeting of the Managing Committee of the Society wherein the decision was purportedly taken to allot the said plot in favour of petitioner, had never taken place and therefore, there was no basis of issuing the said allotment order‑‑‑On the basis of such illegal, bogus and mala fide allotment order even if some decisive steps had been taken in the nature of payments made by the petitioner and execution of "A" lease in his favour, the order of allotment would not become irrevocable and a past and closed transaction‑‑‑Basic order i.e. allotment order being illegal, void, mala fide and of no effect, no perpetual right could be acquired or gained by the petitioner on the basis of such an illegal order‑‑‑Where the order on the basis of which subsequent rights and privileges were claimed was found to be illegal, void and mala fide, then all superstructure by way of rights and privileges, would fall to the ground.

Muhammad Arshad Jalil v. Pakistan Defence Officers Housing Authority and another PLD 1992 Kar. 304; Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Yousaf Ali v. Muhammad Aslam Zia and others PLD 1958 SC 104; Home Secretary to the Government of West Pakistan, Lahore and others v. Jan Muhammad and another PLD 1969 SC 333 and Mansab Ali v. Amir and 3 others PLD 1971 SC 124 ref.

Abul Inam for Petitioner.

Nazar Hussain Dhoon for Respondents.

Date of hearing: 9th March, 2004.

P L D 2005 Karachi196

Before Mushir Alam, J

MUHAMMAD HUSSAIN ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No.55 of 2004, decided on 21st September, 2004.

(a) Prohibition (Enforcement of Hadd) Order (4 of 1979)‑‑‑

‑‑‑‑Arts. 14 & 15‑‑‑Confiscation of incriminating articles‑‑‑Practice and procedure‑‑‑Phrase "liable to confiscation" as used in Art.14 of the Prohibition (Enforcement of Hadd) Order, 1979, does not mean that the "things" shall be confiscated in any case‑‑‑Article 14 of Prohibition (Enforcement of Hadd) Order, 1979 is controlled by its Art.15‑‑‑Such confiscation is not mechanical or automatic, but can be ordered only if the person claiming property liable to confiscation cannot satisfactorily account for its use by whomsoever in the commission of the crime‑‑­Satisfaction of the Confiscating Authority must be based on objective assessment of events and explanation of person claiming such property‑‑­Proviso to the Art. 15 resonates with the principle of natural justice embodied in the doctrine of Audi Alteram Partem, i.e., no person to be condemned unheard‑‑‑No order of confiscation of any vessel, cart or other vehicle that may be liable to confiscation can be passed without affording to the owner or the claimant thereof, an opportunity of being Beard and if necessary after recording evidence in support of claim to such property.

Muhammad Amin v. The State SBLR 2004 Sindh 914; Criminal Appeal No. 139 of 2003 and Abdul Razak v. Pakistan PLD 1974 SC 5 ref.

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

‑‑‑‑Ss. 516‑A & 561‑A‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4‑‑‑Custody of the Truck on Superdari refused to owner on the ground that the same was liable to confiscation‑‑‑Validity‑‑‑Courts below had erred in concluding that since the Truck in question was liable to confiscation, the same could not be released on Superdari‑‑‑Such assumption was not supported by the scheme of the Prohibition (Enforcement of Hadd) Order, 1979‑‑‑Trial Court during pendency of the trial and to determine the extent of involvement of the owner of the vehicle might have given its custody to the claimant till determination of his liability in consonance with the provisions of S.516‑A, Cr.P.C.‑‑­Impugned orders of the Courts below were consequently set aside and the Truck in question was directed to be given to the owner on Superdari.

Muhammad Amin v. The State SBLR 2004 Sindh 914; Criminal Appeal No. 139 of 2003 and Abdul Razak v. Pakistan PLD 1974 SC 5 ref.

Safdar Ali Bhutto for Applicant.

Muhammad Ismail Bhutto, State Counsel.

Date of hearing: 21st September, 2004.

PLD 2005 Karachi 201

Before S. Ali Aslam Jafri, J

WAZIR ALI----------Applicant

Versus

THE STATE----------Respondent

Criminal Bail Application No.S‑15 of 2004, decided on 8th October, 2004.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/459/34‑‑‑Bail, grant of‑‑‑Consideration‑‑-Delay in conclusion of the trial‑‑‑Effect‑‑‑Concept elucidated‑‑‑Direction to the Trial Court to conclude the trial within specified time if not complied with, cannot be deemed to be a fresh ground for grant of bail‑‑‑Delay in conclusion of a trial when appears to be shocking and scandalous or when the complainant and his witnesses appear to have played a role in delaying the conclusion of the trial by remaining absent despite having been served in order to see that the accused should remain incarcerated for as much time as possible, the same can be taken into consideration for grant of bail‑‑‑Hardship can also be considered as a ground for bail in appropriate cases.

Manzoor Khan v. Kameer and 4 others 19,'2 SCMR 207; Muhammad Aslam v. The State 1999 SCMR 2147: Zar Wali v. The State 2003 P.Cr.LJ 1446; Maula Bux and another v. The State PLJ 2004 Cr.C. Karachi 623; Saeed Mehdi's case 2002 SCMR 282 and Muhammad Nawaz v. The State 2003 MLD 79 ref.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/459/34‑‑‑Bail, grant of‑‑‑ Complainant and the prosecution witnesses who were related inter se and two of the witnesses were real brothers of the complainant, had failed to appear in Court despite issuance and service of bailable warrants against them and this fact spoke for itself‑‑‑Even before introducing provisos (3) & (4) to S.497, Cr.P.C. which now stood omitted; bail, was being granted in cases of delay in conclusion of the trial which appeared to be shocking and scandalous and even on the basis of hardship in appropriate cases‑‑‑Accused was admitted to bail in circumstances.

Manzoor Khan v. Kameer and 4 others 1972 SCMR 207; Muhammad Aslam v. The State 1999 SCMR 2147; Zar Wali v. The State 2003 PCr.LJ 1446; Maula Bux and another v. The State PLJ 2004 Cr.C. Karachi 623; Saeed Mehdi's case 2002 SCMR 282 and Muhammad Nawaz v. The State 2003 MLD 79 ref.

Sher Muhammad K. Shaikh for Applicant.

Zubair Ahmed Rajput for the State.

Date of hearing: 2nd August, 2004.

P L D 2005 Karachi 213

Before Ghulam Rabbani and Gulzar Ahmad, JJ

SAJJAD ALI and 3 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.D‑70 of 2003, decided on 20th October, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 365‑A‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7(e)‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13(d)‑‑‑Appreciation of evidence‑‑‑Retracted confession of accused was corroborated in material particulars by the ocular evidence of the complainant, the abductee and another prosecution witness, who had identified the accused in the identification test held before the Magistrate as well as in the Court‑‑­Convictions and sentences of accused were maintained in circumstances.

The State v. Minhun alias Gul Hassan PLD 1964 SC 813 and Bahadur Khan v. The State PLD 1995 SC 336 ref.

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

‑‑‑‑Ss. 164, 364 & 537‑‑‑Recording of confessions of accused and their examination‑‑‑Provisions of Ss.164 & 364, Cr.P.C. are mandatory in nature and put a legal obligation on the Magistrate to comply with the same while recording confessional statement‑‑‑Violation of the said provisions lead to an illegality not curable under S.537, Cr.P.C.

(c) Confession‑‑‑

‑‑Conviction can be made even on the basis of a voluntary and true confessional statement.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 365‑A‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7(e)‑‑‑West Pakistan Arms Ordinance (XX of 1965), S. 13(d)‑‑‑Appreciation of evidence‑‑‑Magistrate, after recording the confessional statements of accused, had not certified by appending the prescribed certificate that the same were true‑‑‑Accused, after their arrest, were not put to any .identification parade and they were not identified even in Court by the eye‑witnesses including the abductee‑‑‑Confessional statement of co­-accused implicating the accused was not corroborated by any ocular or circumstantial evidence‑‑‑No evidence was available on record to show that the accused had either conspired to abduct the abductee or held him hostage for ransom after abduction‑‑‑Accused were acquitted in circumstances.

The State v. Minhun alias Gul Hassan PLD 1964 SC 813; Arif Nawaz Khan and 3 others v. The State PLD 1991 FSC 53; Javed Masih and 3 others v. The State PLD 1994 SC 314; Bahadur Khan v. The State PLD 1995 SC 336; Faqir Ullah v. Khalil‑uz‑Zaman and others 1999 SCMR 2203; AI‑Mughni, Printed Riadh, Vol. VIII, p.193 by Ibn Qudamah and Nazriyyah al‑Isbat Fi'l Fiqh al'Jinai al‑Islami by Bahanasi ref.

(e) Criminal trial‑‑

‑‑‑‑Confession‑‑‑Retracted confession‑‑‑Conviction‑‑‑Basing of conviction on a retracted confession as a matter of prudence alone requires corroboration in material particulars.

The State v. Minhun alias Gul Hassan PLD 1964 SC 813 and Javed Masih and 3 others v. The State PLD 1994 SC 314 ref.

(f) Criminal trial‑‑

‑‑‑‑Confession‑‑‑Statement of accomplice‑‑-Conviction‑‑‑Solitary confessional statement of an accomplice cannot and should not form the basis of conviction of other accused unless corroborated by other ocular or circumstantial evidence.

The State v. Minhun alias Gul Hassan PLD 1964 SC 813; Arif Nawaz Khan and 3 others v. The State PLD 1991 FSC 53; Javed Masih and 3 others v. The State PLD 1994 SC 314; Bahadur Khan v. The State PLD 1995 SC 336; Al‑Mughtti, Printed Riadh, Vol. VIII, p.193 by Ibn Qudamah and Nazriyyah al‑Isbat Fi'1 Fiqh al' Jinai al‑Islami by Bahanasi ref.

Habibullah Shaikh for Appellants.

Mumtaz Ali Siddiqui on behalf of Addl. A.‑G. for the State.

Date of hearing: 26th August, 2004.

P L D 2005 Karachi 229

Before Amir Hani Muslim, J

KHAN MUHAMMAD and 2 others‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No. 136 and M.A. No. 1299 of 2004, decided on 21st September, 2004.

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

‑‑‑‑S. 498‑‑‑Pre‑arrest bail‑‑‑Courts not competent to place any restraint on the accused on refusing him pre‑arrest bail or cancelling his bail‑‑­Courts after admitting the accused not in custody to interim bail may reject their bail application, but such orders should not entail consequences that they be given in police custody without there being any request in that behalf by the police itself‑‑‑Proper order in such circumstances by the Courts would be to cancel or reject the ad interim bail and leave the accused to be dealt with by the police as they thought fit‑‑‑Order remanding such accused to custody is vitiated by lack of jurisdiction, as the Courts are not competent to place any restraint on the accused on refusal or cancellation of his bail.

Jamaluddin v. The State 1985 SCMR 1949 and Sadiq Ali v. The State PLD 1966 SC 589 ref.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.430‑‑‑Sindh Irrigation Act, 1879, Ss. 61/62‑‑‑Bail, grant of‑‑‑Sessions Court was in error in ordering the accused to be taken into custody and remanding them to District Jail after refusing them pre‑arrest bail when the police had not made any request for the custody of the accused‑‑‑Sessions Court while passing the impugned order was influenced by some extraneous factors losing sight of the fact that it was to pass orders in accordance with law and confine itself to the facts available on record‑‑‑Such an approach by the Sessions Court was dangerous and likely to shake the confidence of common man in judicial institutions‑‑‑Accused were charged only with one non‑bailable offence entailing maximum punishment for three years and they were entitled to bail‑‑‑Accused were admitted to bail accordingly.

Jamaluddin v. The State 1985 SCMR 1949 and Sadiq Ali v. The State PLD 1966 SC 589 ref.

Iman Bux Baloch for Applicants.

Riazuddin for the State.

Date of hearing: 21st September, 2004.

P L D 2005 Karachi 232

Before Muhammad Afzal Soomro, J

MUHAMMAD SALEEM‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.241 of 2003, decided on 20th July, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b), 364 & 364‑A‑‑‑Appreciation of evidence‑‑‑F. I. R. in the case was lodged with an unexplained delay of three days which was not seeking support from an independent source to furnish corroboration‑‑­Confessional statement of accused was recorded after 13 days of his arrest for which no satisfactory explanation was forthcoming‑‑‑Evidence on record had further shown that accused was maltreated by Investigating Officer inasmuch as Judicial Magistrate had himself noted the marks of violence on the body of accused‑‑‑Such fact had indicated that confessional statement of accused was not voluntarily made and virtually case of prosecution came to be of no evidence against accused‑‑­Evidence of complainant was neither supported nor corroborated from an independent source‑‑‑Trial Judge seemed to be ignorant of law and had no legal approach regarding writing of a judgment which was full of material legal errors inasmuch as Trial Judge while awarding sentence to accused had not convicted accused, failed to put up defence evidence being in juxta position with prosecution evidence and had discarded the defence version without any rhyme or reason ‑‑‑F.I.R., in the case had lost its sanctity as contents thereof were not corroborated through any independent evidence, except so‑called judicial confession recorded after 13 days of arrest of accused after maltreating him‑‑‑Evidence on point of recovery had completely vanished‑‑‑Entire prosecution case suffered from infirmities, improbabilities, weaknesses, glaring contradictions and conflicts between contents of F.I.R.‑‑‑Whole case being full of doubts, was shrouded in mystery and no evidence was connecting accused with commission of crime‑‑‑Prosecution having not been able to prove its case beyond any reasonable doubt, accused was ordered to be acquitted of the charge and released‑‑‑Registrar of High Court was directed to take up matter on administrative side for disciplinary action against Trial Judge, accordingly.

Samand v. The State 1973 SCMR 162; Naqibullah and another v. The State PLD 1978 SC 21; The State v. Asfandyar Wali and 2 others 1982 SCMR 321; Javed Masih and 3 others v. The State PLD 1994 SC 314; Wazir Gul v. The State PLD 1995 Kar. 112 and Imdad Hussain v. The State PLD 1999 Kar. 151 ref.

Suleman Habibullah for Appellant.

Habibur Rasheed for the State.

Date of hearing: 19th April, 2004.

P L D 2005 Karachi 240

Before Khilji Arif Hussain, J

GHULAM YAHYA through Attorney and Legal Representative‑‑‑Applicant

Versus

ALI MUHAMMAD JAMAL MATERNITY HOMES‑‑‑Respondent

Civil Revision Application No. 122 of 2004, decided on 22nd July, 2004.

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

‑‑‑‑Ss. 8 & 42‑‑‑Civil Procedure Code (V of 1908), O.VII, Rr.1 & 11‑‑­Suits Valuation Act (VII of 1887), S.8‑‑‑Court Fees Act (VII of 1870), S.7(iv)(c)‑‑‑Suit for possession and declaration ‑‑‑Maintainability‑Defendant, who was servant of plaintiff which was a Charitable Trust, was allowed to occupy servant quarter within the hospital premises owned by plaintiff looking to the nature of duty of defendant‑‑‑Defendant was asked to vacate premises by giving one month's notice after termination of his service and on refusal of defendant to vacate the same suit was filed against him‑‑‑Defendant, instead of vacating premises resisted suit and filed application under O.VII, R.11, C.P.C. for rejection of plaint raising certain objections‑‑‑Defendant having been allowed use of premises in‑question being an employee of plaintiff's hospital, it would not be in his mouth to say that he was in occupation of premises in his own right‑‑‑Findings recorded by Trial Court as well as Appellate Court that defendant was not owner of premises, but was occupying same as employee, did not suffer from any misreading or non­ reading of evidence as alleged by defendant‑‑‑Trial Court had rightly found that suit by its nature being a suit for recovery of possession from the licensee, same would not fall under S.7(xii) of Court‑Fees Act, 1870 and plaintiff was required to value subject‑matter on the basis of annual rental value of subject property and plaintiff had rightly valued the suit‑‑­Defendant had also failed to point out any prejudice caused to him by entertaining suit by Ist Senior Civil Judge instead, of 3rd Civil Judge‑‑‑Suit had rightly been decreed concurrently by Courts below.

Sardar Begum v. Mukhtar Ahmed 2001 YLR 1435 ref.

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

‑‑‑‑Ss. 8 & 42‑‑‑Civil Procedure Code (V of 1908), S.96 & O. VII, Rr.1 & 11‑‑‑Suits Valuation Act (VII of 1887), S.8‑‑‑Court‑fee Act (VII of 1870), S.7‑‑‑Suit for possession and declaration‑‑‑Rejection of plaint‑‑­Suit was resisted by defendant alleging that same was undervalued and court‑fee was not paid accordingly and plaint was liable to be rejected on that ground‑‑‑Defendant further contended that suit had been filed by unauthorized person‑‑‑Validity‑‑‑Objection about incorrect valuation had to be taken before the Trial Court and Appellate Court who while recording reasons that suit or appeal was overvalued or undervalued would also record reasons that such over valuation or under-valuation had prejudicially affected the disposal of suit or appeal‑‑‑Suit, despite bring undervalued or overvalued, had not caused any prejudice to the party taking such objection in disposal of suit or appeal on merits, appeal was to be disposed of by Appellate Court ignoring the ground of defect of jurisdiction on account of under-valuation or overvaluation‑‑‑With regard to objection that suit had been filed by unauthorized person, plaint had itself shown that same had been signed by authorized person as trustee/administrator of plaintiff hospital/trust‑‑‑Person signing plaint was trustee/administrator of the plaintiff trust and was competent to file suit‑‑‑Defendant, in the written statement had not taken specific plea that suit had been filed by an unauthorized person nor any issue in that regard was framed‑‑‑Defendant could not raise said objection at later stage.

Ali Muhammad v. Muhammad Shafi PLD 1996 SC 299 and National Bank of Pakistan v. Karachi Development Authority PLD 1999 Kar. 207 ref.

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

‑‑‑‑Ss. 8 & 42‑‑‑Civil Procedure Code (V of 1908), S.92 ‑‑‑Suit for possession and declaration by a Public Trust‑‑‑Maintainability‑‑Suit was resisted on the ground that requirement of S.92, C.P.C. had not been complied with as same had been filed without taking, permission from the Advocate‑General concerned‑‑‑Validity‑‑‑Through S.92, C.P.C. restriction had been imposed upon filing of suit by Public Trust of religious or Charitable character or filing suit against it and same had to be construed strictly‑‑‑Consent of Advocate‑General before filing suit by or against trust created for public purpose, having charitable or religious object however, was required only if there was an allegation of a breach of trust or direction from the Court was necessary for administration of trust in respect of either of the reliefs specifically‑ mentioned in S.92, C.P.C.‑‑‑No such relief having been asked in the suit, there was no need of taking consent of Advocate‑General before filing the suit.

Farid Gul Khan for Applicant.

Choudhry Muhammad Iqbal for Respondent.

Dates of hearing: 21st and 22nd July, 2004.

P L D 2005 Karachi246

Before Sarmad Jalal Osmany and Amir Hani Muslim, JJ

ABDUL JABBAR NIZAMANI‑‑‑Petitioner

Versus

THE ZILA NAZIM, DISTRICT AND ZILA BADIN, SINDH and 2 others‑‑‑Respondents

Constitutional Petition No. D‑1447 of 2003, decided on 15th April, 2004.

Petroleum Rules, 1985‑‑‑

‑‑‑‑R. 130‑‑‑Sindh Local Government Ordinance (XXVII of 2001), S.18‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.44‑‑‑Specific Relief Act (I of 1877) S. 39‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Powers of cancelling of "No Objection Certificate" for Petrol Pump under R.130, Petroleum Rules, 1985 by Zila Nazim‑‑‑Scope and extent‑‑‑Word "satisfied" used in R.130 Petroleum Rules, 1985‑‑‑Connotation‑‑‑Question of title of land on which the petrol, pump had been constructed could not be gone into by the Zila Nazim under the garb of R.130, Petroleum Rules, 1985‑‑‑Zila Nazim could not pass an order overlooking and/or ignoring the orders of a Revenue Officer in regard to the title of the land‑‑‑High Court deprecated the conduct of Zila Nazim who had exercised excessive use of power which was without jurisdiction‑‑‑Zila Nazim having exercised powers under R.130, Petroleum Rules, 1985 by cancelling the N. O. C. of the petitioner on the ground of title of land, ex facie, amounted to abuse of authority‑‑‑Principles.

Zila Nazim has the authority to cancel the N.O.C. of a petrol pump in terms of Rule 130 of the Petroleum Rules, 1985 if he is satisfied that the licensee has ceased to have any right to the site for storing the Petroleum.

The question of title of the land on which the petrol pump has been constructed cannot be gone into by the Zila Nazim under the garb of the aforesaid rule. The functions and powers of the Zila Nazim have been mentioned under the Sindh Local Government Ordinance, 2001 and by the said statute, he is authorized to grant and or cancel N.O.C. of petrol pump which powers were previously exercised by the Deputy Commissioner/District Magistrate. Such powers are however, limited and do not authorize the Zila Nazim to encroach upon the powers of the Revenue Officials to examine the validity of an order passed under the hierarchy of the revenue laws in terms of the Land Revenue Act. The Revenue Officers exercise their authority by virtue of Land Revenue Act and the Zila Nazim cannot pass an order overlooking and/or ignoring the order, of a Revenue Officer in regard to the title of the land. If a matter is under litigation before the Revenue Authority the Zila Nazim, in exercise of powers under Rule 130, cannot order cancellation of the N.O.C. merely on the ground that the title of land was in dispute. The word "satisfied" used in R.130 would, mean "objective satisfaction'." and not subjective in nature. Mere dispute raised by one party on the land on which the petrol pump was already functioning can hardly be made a justifiable ground to cancel the N.O.C. of the petrol pump. The Zila Nazim has no authority under the Petroleum Rules, 1985 to decide the title of land between the two litigating private parties. Moreover in the present case there was hardly any material before the Zila Nazim to order cancellation of the N.O.C. once a registered instrument showing the petitioner as owner was placed before him by the petitioner. Under section 39 of the Specific Relief Act even the Revenue Authority cannot ignore and/or overlook a registered instrument while exercising their powers under the Land Revenue Act as a registered instrument can only be cancelled by filing a suit in a Civil Court of law.

The conduct of the Zila Nazim in the present case was regrettable as within one year he had passed 3 orders one after the other, cancelling the N.O.C. of the petrol pump which prima facie shows that he had abused his authority by exercising powers under Rule 130. ‑The public functionaries are accountable under the law and orders of the nature can expose them to consequential penalties. The public functionaries including Zila Nazim are bound to respect law and cannot be given licence to deprive the lawful rights of parties with the malicious intent to give favour to the political figures by exercising powers in such manner which the law does not recognize.

In the present proceedings it has been noticed that the Zila Nazim has acted in excess of his authority and has passed the orders of cancellation of the N.O.C. not once but three times and no explanation justifying such orders has been given. Excessive use of power is also without jurisdiction. Zila Nazim has exercised powers under Rule 130 by cancelling N.O.C. of the Petitioner on the ground of title of land which, ex facie, amounts to abuse of authority.

Mansurul Arifin and Nadeem Akhtar for Petitioner."

S. Muhammad Iqbal Shah and Salahuddin Memon for Respondent No. 3.

Date of hearing: 15th April, 2004.

P L D 2005 Karachi 252

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

KHAN MUHAMMAD MAHAR ‑‑‑Petitioner

Versus

FEDERATION OF PAKISTAN‑‑‑Respondent

Constitutional Petition No.D‑1046 of 2004, decided on 7th December, 2004.

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

‑‑‑‑S. 2‑‑‑Constitution of Pakistan (1973), Arts. 4, 9, 14, 15 & 199‑-­Constitutional petition‑‑‑Name of the petitioner though was placed in the exit control list but no reason for such action was disclosed or communicated to him although he made repeated applications to concerned authorities in this behalf‑‑‑Held, liberty of every citizen of the country is safeguarded/guaranteed under Arts. 4, 9, 14 & 15 of the Constitution, thus the same was to be jealously guarded and any action without sufficient cause depriving/curtailing the liberty of citizen was not warranted by law and was liable to be struck down‑‑‑Arbitrary action under S. 2, Exit from Pakistan (Control) Ordinance, 1981 was not immune from scrutiny by High Court under Art. 199 of the Constitution‑‑‑Action of Authorities in placing the name of the petitioner in the exit control list, in circumstances, was wholly arbitrary, unjust, without any valid reason and violative of his fundamental rights‑‑Order placing the name of the petitioner in the exit control list was declared to be illegal, without lawful authority and of no legal effect by the High Court.

Wajid Shamasul Hassan v. Federation of Pakistan through Secretary Ministry of Interior Islamabad PLD 1997 Lah. 617; Arshad Sami Khan v. Federation of Pakistan through Ministry of Interior, Islamabad and 3 others 1998 MLD 490; Sikandar Hayat Khan and 4 others v. Government of Pakistan through Federal Secretary Ministry of Interior, Islamabad and 5 others PLD 2003 Pesh. 102; Hashmat Ali Chawala v. Federation of Pakistan and others PLD 2003 Kar. 705 and Mehtab Ahmed v. Federation of Pakistan through Secretary, Government of Pakistan, Islamabad and 3 others 2003 CLC 246 ref.

Raja Qureshi and Adrian Karim for Petitioner.

Syed Ziauddin Nasir Standing Counsel for Respondents.

Date of hearing: 7th December, 2004.

P L D 2005 Karachi 255

Before Mushir Alam and Gulzar Ahmad, JJ

GHULAM ABBAS alias ABASI and others‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Applications Nos.93, 463, 464, 505, 207, 201; 338, 242, 345, 92, 277, 316, 205, 361, 362 of 2004 and 572 of 2002, decided on 17th September, 2004.

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

‑‑‑‑S. 497‑‑‑Bail in non‑bailable offences‑‑‑Principle‑‑‑Bail in non-­bailable offences had always been considered by the Courts where case for bail was made out.

(b) Interpretation of statutes‑‑‑

‑‑‑‑Law was interpreted to respond to ever changing conditions prevailing in the society‑‑‑Courts of law were expected to adopt a pragmatic approach to attend and interpret law in consonance with the need of changing environment.

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

‑‑‑‑S. 497‑‑‑Grant of bail on ground of delay‑‑‑Delay in prosecution of the case as ground was acknowledged as the statutory right by Legislature, but for the best known wisdom same had been withdrawn‑‑­Bail, however had always been conceded by Superior Court even when provisions regarding delay were not available on statute book and even in some cases where such restriction was imposed, Court conceded bail on the ground of undue delay‑‑‑Delay in each case was to be judged and weighed on its own merits‑‑‑Inordinate delay if not explained, would amount to abuse of process of law even in cases of capital punishment where prosecution was loath to submit challan, slow in producing witnesses, failed to produce accused without any justification and/or delaying tactics were used by persons other than accused including complainant‑‑‑If the delay was so shocking and scandalous, it would amount to abuse of process of law‑‑‑Even where directions of Superior Courts were not complied with without any justifiable reason, same could furnish a good ground for bail‑‑‑Even in cases, where on assessment of police papers and conduct of prosecution, it could be seen that there was no likelihood of conclusion of the trial in foreseeable future as for instance where proceedings against absconding accused took time or where the trial for any other reason could not be concluded, Court would be lying vacant for long period or where dispute as to jurisdiction of Court took unreasonably long time for decision.

Waseem v. The State 2004 SCMR 860; Yaro v. The State 2004 SCMR 864; Maula Bux and another v. The State 2004 YLR 2765; Eiaz Ahmed v. State 1994 SCMR 658; Muhammad Aslam v. The State 1999 SCMR 2147; Ashko v. The State 1997 SCMR 436; Muhammad Saeed Mehdi v. The State 2002 SCMR 282; PLD 2002 SC 456; Arbab Ali v. Ghulam Muhammad PLD 1968 SC 353;. Manzoor Khan v. The State 1972 SCMR 207; Muhammad Sadique v. Muhammad Shafi and another 1973 SCMR 212; Ihrar Muhammad v. The State PLD 1974 SC 224; Riasat Ali. v. The State PLD 1977 SC 480; Shar Zaman v. Muhammad Azad 197,8 SCMR 248; Ghulam Jeelani v. The S.H.O., PLD 1975 SC 210; Mumtaz and 13 others v. The State 1992 PCr.LJ 2325 and Khalid v. The State 1994 PCr.LJ 12 ref.

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

‑‑‑S. 497‑‑‑Bail, grant of‑‑‑Delay in trial‑‑‑When ground for grant of bail‑‑‑Factors‑‑‑Principles‑‑‑Object of criminal trial was to make accused face trial and not to punish as under‑trial prisoner‑‑‑Expeditious and fair trial was right of accused‑‑‑Prosecution could not be absolved or given any latitude on account of inability to produce accused from jail for lack of resources‑‑‑State was bound to make arrangements for providing logistics to prosecution to ensure production of accused in Court on each and every date‑‑‑Where accused was able to show that unexplained delay was on the part of prosecution to proceed with the case where prosecution/complainant was causing impediment in early conclusion of trial; where prosecution was tardy and slow in producing evidence/witness; where prosecution took undue adjournments; where co‑accused were absconding and there was no possibility to commence trial in their absence and proceedings under Ss.87 & 88, Cr.P.C. were taking unreasonably long time; where trial Court was lying vacant for sufficiently long time; where proceedings were stayed at the instance of co‑accused, complainant or prosecution and there was no possibility of vacation of stay at an early date; where unconscionable delay was being taken in cases under special statute which, required day to day trial and where some of the facts were contributing to delay in prosecution of case, bail could be granted to the accused on ground of delay‑‑‑Delay and nature of delay in each case however, was to be assessed and examined on its own merits‑‑‑Where Court would come to a conclusion that delay was unexplained, repulsive and unconscionable and accused or any person on his behalf had not contributed in causing delay, the Court could enlarge accused on bail in cases where bail could be extended on the ground of delay, but surety amount should be substantial to ensure appearance of accused to face trial.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/353/395/404/147/ 148/149‑‑‑Explosive Substances Act (VI of 1908), S. 4‑‑‑Bail, refusal of‑‑‑Out of eleven prosecution witnesses only complainant had been examined‑‑‑On number of material dates when witnesses were present either defence counsel was absent or he moved adjournment application‑‑‑Delay on material dates was contributed by or on behalf of accused‑‑‑Bail was declined to accused‑‑‑Trial Court was directed to conclude trial within four months.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/353/395/404/147/ 148/149‑‑‑Explosive Substances Act (VI of 1908), S.4‑‑‑Bail, refusal of‑‑‑When on four material dates application for adjournment was moved on behalf of defence counsel and in all eight witnesses were examined, bail was refused and trial Court was directed to examine remaining witnesses within two months and in case trial was not concluded within said period, accused could move Court afresh for grant of bail.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/353/395/404/147/ 148/149‑‑‑Explosive Substances Act (VI of 1908), S.4‑‑‑Bail, refusal of‑‑‑Where charge was framed, but all the fifteen witnesses were to be examined and no progress had been made in trial; complainant and his witnesses were in attendance, but counsel for accused moved adjournment applications‑‑‑Accused in said case having contributed to delay in trial, bail was declined with direction to Trial Court to conclude trial within four months.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/353/395/404/147/ 148/149‑‑‑Explosive Substances Act (VI of 1908), S.4‑‑‑Bail, refusal of‑‑‑Where witnesses were examined though with some delay and matter was fixed for recording statement of accused, but thereafter on some dates ‑accused was not produced and case was fixed for final arguments, bail was refused and trial Court was directed to decide cases preferably within two months.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/353/395/404/147/ 148/149‑‑‑Explosive Substances Act (VI of 1908), S. 4‑‑‑Bail, grant of‑‑Co‑accused in the case had already been allowed bail on ground of hardship‑‑‑After framing charge no witness had been examined, but delay was not caused at the hands of accused‑‑‑Accused was admitted to bail.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/353/395/404/147/ 148/149‑‑‑Explosive Substances Act (VI of 1908), S. 4‑‑‑Bail, grant of ‑‑­Co‑accused had already been extended bail on ground of hardship-‑­Accused had not contributed to delay in trial‑‑‑Accused in that case was admitted to bail.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/353/395/404/147/ 148/149‑‑‑Explosive Substances Act (VI of 1908), S.4‑‑‑Bail, grant of‑‑­Co‑accused had been admitted to bail and delay in trial was not attributed to accused‑‑‑All the accused in the cases were admitted to bail.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/353/395/404/147/ 148/149‑‑‑Explosive Substances Act (VI of 1908), S. 4‑‑‑Bail application‑‑‑Transfer of case‑‑‑Application for‑‑‑All prosecution witnesses had been examined and at final stage of the case complainant had sought transfer of case to another Court‑‑‑Notice was directed to be issued to complainant.

Safdar Ali Bhutto, Muhammad Ayaz Soomro, Saeed Ahmed B. Bijarani, Jai Jai Veshnu, Roshan Ali Solangi, Ahsan Ahmed Qureshi, Muhammad Daud Baloch, Syed Aijaz Ali Shah and Miss Faiz un Nisa Channa for Applicants.

Mushtaque Ahmed Kourejo and Muhammad Ismail Bhutto for the State.

P L D 2005 Karachi 270

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

THE STATE‑‑‑Appellant

Versus

SHER ZAMAN and 2 others‑‑‑Respondents

Special Anti‑Terrorism Acquittal Appeals Nos.47 to 49 and 79 of 2000, decided on 24th January, 2003.

Anti‑Terrorism Act (XXVII of 1997)‑‑‑

‑‑‑‑Ss. 25(4) & 7‑‑‑Penal Code (XLV of 1860), Ss. 302, 394 & 34‑‑­Appeal against acquittal‑‑‑Prosecution version revealed that after the occurrence, looted coach was taken to the hospital; two conductors, driver of the coach and three constables were present there but none of them informed the Police and got F.I.R. registered‑‑‑F.I.R. was recorded on the statement of brother of the deceased who was called from his house‑‑‑Complainant was not an eye‑witness and nothing was on record to show that as to how facts of the incident came to the knowledge of the complainant‑‑‑No explanation was available for delay in registration of F.I.R.‑‑‑Such belated report despite availability of Police personnel all along and their association, was sufficient to adversely affect case of prosecution‑‑‑Unlicensed T.T. Pistols were though allegedly recovered from the accused, but no private person was associated to attest the arrest of accused and recovery, nor any effort was made by Police to approach any person from public to witness the same‑­‑Arrest and recovery, in circumstances were rightly disbelieved by the Trial Court‑‑‑Identification test of accused was held after four days of their arrest‑‑‑Such delayed identification test further suffered from infirmity for the reason that it was conducted jointly‑‑‑Magistrate concerned, instead of associating independent persons to act as Mashirs of identification test, picked up police officials, more particularly the Investigating Officer to act as Mashir‑‑‑Presence of police at the time of conducting identification test and making them Mashirs of said test, had further deteriorated credibility of identification test‑‑‑Identification test conducted in such spurious manner could hardly be given credence to warrant conviction of accused‑‑‑Confession of accused recorded by same. Magistrate, was retracted‑‑‑Magistrate recorded alleged confession of accused in English language which was not understood by accused‑‑‑Said confession did not contain any note by Magistrate concerned to the effect that contents thereof were ever explained to accused in language which they understood‑‑‑Ocular evidence in the case was lacking, identification test contained inherent defects, recovery was doubtful, confession of accused was recorded in violation of legal provisions‑‑‑Case of prosecution, in circumstances was extremely doubtful‑‑‑Appeal against acquittal could, in no way, be equated with appeal against conviction‑‑­Ordinarily scope of appeal against acquittal was considerably narrow and limited‑‑‑Order of acquittal having been passed by Trial Court on valid and sound reasons, could not be interfered with in appeal‑‑‑Appeal against acquittal was dismissed, in circumstances.

Habib Ahmed, Asstt. A.‑G., Sindh for Appellant.

Syed Mehmood Alam Rizvi for Respondents (in all Appeals).

Date of hearing: 15th January, 2003.

P L D 2005 Karachi 276

Before Saiyed Saeed Ashhad, C. J., and Maqbool Baqar, J

PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY (WAPDA), KARACHI‑‑‑Appellant

Versus

Messrs SEA GOLD TRADERS through Partners and 2 others‑‑‑Respondents

High Court Appeal No.280 of 2002, decided on 3rd February 2005.

Civil Procedure Code (V of 1908)-‑‑

‑‑‑‑O. XXXVII, R. 3‑‑‑Contract Act (IX of 1872), S. 16‑‑‑Suit for recovery of money‑‑‑Leave to defend suit‑‑‑Undue influence‑‑‑Creditor being a Government managed controlled and run establishment would always have an edge or influence‑over the debtors and signing of three cheques in question without there being a concluded contract would not stop the debtors from pleading influence, pressure or coercion‑‑‑Grant of leave to defend the suit was a matter which rested on the discretion of the Court deciding the application for leave to defend and unless it could be said that it was not exercised properly or there was some irregularity or mala fides, the same would not be interfered with in appeal‑‑‑Grant of leave to defend the suit to the defendants was not interfered with in circumstances.

Badar Alam for Appellant.

Ali Mumtaz for Respondents.

P L D 2005 Karachi 278

Before Shabbir Ahmad, J

SHAHZAD AHMED HASHMI‑‑‑Applicant

Versus

THE STATE through Advocate‑General, Sindh‑‑‑‑Respondent

Criminal Revision No. 146 of 2004, decided on 4th November, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 514‑‑‑Forfeiture of surety bond‑‑‑Petitioner who stood surety of accused approached the Trial Court for return of surety amount without realizing that accused had jumped bail‑‑‑Bail granted to accused was cancelled and bail bond was forfeited ‑‑‑Non‑bailable warrant was issued to accused and petitioner was noticed in terms of S. 514, Cr.P.C.‑‑‑Trial Court directed Nazir of Court to encash Special Saving Certificate and deposit the amount in Government head in State Bank ‑‑‑Validity‑‑­Petitioner/surety no doubt was noticed to show‑cause as to why penalty should not be imposed, but such notice had not been served‑‑‑If presence of petitioner before Court is taken as a notice, even then impugned order was not sustainable in law for the reason that order imposing fine, had not been passed‑‑‑Impugned order was set aside‑‑‑Petitioner was allowed a week's time to file reply of show‑cause as to why penalty in full amount of bond should not be imposed and on submission of reply, an appropriate order in accordance with law would be passed by Trial Court.

Saathi M. Ishaq for Applicant.

Ms Akhtar Rehana, State Counsel.

P L D 2005 Karachi 280

Before S. Ali Aslam Jafri, J

MUHAMMAD SOHRAB KHAN‑‑‑Plaintiff

Versus

MUMTAZ BEGUM and 3 others‑‑‑Defendants

Suit No.999 of 2004, decided on 8th September, 2004.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VII, R. 11‑‑‑Court Fees Act (VII of 1870), S.13‑‑‑Specific Relief Act (I of 1877), Ss. 12, 42 & 54‑‑‑Suit for specific performance, declaration and permanent injunction‑‑‑Rejection of plaint‑‑‑Refused of court‑fee‑‑‑Suit in respect of property belonging to defendant was based on a sale agreement which had been executed by son of defendant, in favour of plaintiff‑‑‑Nothing was on record to show that son of defendant was a duly authorized agent of his mother to enter into such agreement in respect of suit property‑‑‑Receipt produced also bore signature of son of defendant only‑‑‑Defendant was not even an attesting witness of the said sale agreement‑‑‑Effect‑‑‑No cause of action, in circumstances could be said to have accrued to the plaintiff against defendant so that she could be directed to perform the terms of agreement in letters and spirit‑‑‑Suit, in circumstances was not maintainable and plaint was liable to be rejected in exercise of suo motu powers under O. VII, R.11, C.P.C.‑‑­Permission, however, was granted for refund of court‑fee to the plaintiff as same was a very initial stage of the suit.

Saathi M. Ishaque for Plaintiff.

P L D 2005 Karachi 281

Before Sabihuddin Ahmed and Khilji Arif Hussain, JJ

Messrs AHMED OIL MILLS (PVT.) LTD‑‑‑Petitioner

Versus

THE SECRETARY, MARKET COMMITTEE and others‑‑‑Respondents

Constitutional Petition No. 1673 of 1994, heard on 7th September, 2004.

Agricultural Produce Markets Act (V of 1939)‑‑‑

‑‑‑‑Ss. 4, 6, 19 & 21‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Levy of market fee on imported Soya bean and Palm oil‑‑Such levy was challenged on three grounds; firstly that by its inherent nature market fee could be levied only in places where certain facilities were provided by the Market Committee and that the whole city could not be declared as a notified area for levy of such fee; secondly that oils in question were imported and no transaction took place within notified market area and thirdly that petitioner was not a dealer engaged in sale and purchase of agricultural produce and as such it was not liable to pay market fee‑‑‑Validity‑‑‑Petitioner had rightly contended to the extent that some nexus with the nature of services rendered by market committee must be shown, but it was not correct to say that market fee under Agricultural Produce Markets Act, 1939 was only payable upon transaction effected within a market setup through Market Committee under S. 21 of the Act‑‑‑Word market' had been defined to mean a building, blocks of building, enclosure or other area which could be notified as such under the rules‑‑‑Section 19 of Agricultural Produce Markets Act, 1939 which was a charging section, required levy of fee on agricultural produce bought or sold in a notified market area‑‑‑Whenever a fee was imposed by Legislature, it was impossible to work out the benefit derived by the persons required to pay such fee with mathematical exactitude and levy could be upheld once it was shown that some nexus existed between amount required to be paid and the facilities likely to be obtained and it appeared perfectly logical to assume that a market was established for facilitating transactions relating to agricultural produce for the whole of the city and notification declaring entire city to be a notified market area seemed to be unexceptionable‑‑‑Regarding second contention of the petitioner it could be stated that no material had been placed on record to establish that contracts for purchase of oils were made by petitioner outside the territorial limits of notified market area; said contention must also fail in circumstances‑‑‑Third contention of petitioner that he was not liable to pay market fee as he was notdealer' engaged in sale and purchase of agricultural produce, was also misconceived because word "licence" was omitted from the charging S.19 of Agricultural Produce Markets Act, 1939 by an amending Act of 1980, question of petitioner being a "dealer", thus had become irrelevant‑‑‑Since oils in question were intended to be used for commercial activities, petitioner was liable to pay the fee.

Noon Sugar Mills v. Market Committee and others PLD 1989 SC 449 and Mirpurkhas Sugar Mills v. Government of Sindh 1993 SCMR 920 ref.

Sulleman Habibullah for Petitioner.

Aleem Akbar Shaikh for Respondent No.1.

Rafiq Rajorvi, Addl. A.‑G. Sindh.

Date of hearing: 7th September, 2004.

P L D 2005 Karachi 285

Before Sabihuddin Ahmed and Amir Hani Muslim, JJ

NASEEM AKHTAR KHAN‑‑‑Petitioner

Versus

DISTRICT AND SESSIONS JUDGE‑‑‑Respondent

Constitutional Petition No.D‑7 of 2005, heard on 7th January, 2005.

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

‑‑‑‑Ss. 4(p), 22‑A(6)(iii), 154 & 551‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Powers of Sessions Judge/Ex‑Officio Justice of the Peace to order registration of case against Police Officer for his negligence‑‑‑Respondent had filed application before Sessions Judge alleging that S.H.O. was not performing his legal obligations in registering F.I.Rs relating to commission of cognizable offences‑‑­Sessions Judge finding that it was mandatory duty of the S.H.O. to record F.I.Rs, directed that F.I.R. as required by respondent be duly registered and further required the T.P.O. concerned to register a case against S.H.O. for negligence in complying with requirements of S. 154, Cr.P.C.‑‑‑Petitioner. (S.H.O.) had challenged such order alleging that Sessions Judge had no jurisdiction to make said order ‑‑‑Validity‑‑­Contention of petitioner was untenable in view of special provisions of S.22‑A(6)(iii), Cr.P.C. which had explicitly provided that Sessions Judge acting as ex‑officio Justice of the Peace could always issue appropriate direction to Police Authorities on a complaint regarding non‑registration of a criminal case or negligence or failure by a Police Authority in relation to its functions‑‑‑T.P.O. being a supervisory officer and superior in rank to petitioner S.H.O., could exercise powers to register case against the petitioner S.H.O.

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

‑‑‑‑S. 22‑A‑‑‑Police Order (22 of 2002), Art.35‑‑‑Jurisdiction of Zila Nazim and Sessions Judge‑‑‑S.H.O. against whom criminal case was directed to be registered for his negligence by Justice of the Peace/Sessions Judge, had contended that responsibility to deal with complaints of negligence of police officers were required to be entertained by Zila Nazim under Art. 35 of Police Order, 2002 and not by Sessions Judge‑‑‑Contention was repelled as there was nothing to suggest any inconsistency between Art. 35 of Police Order, 2002 or S.22‑A, Cr.P.C. and prima facie both Nazim and Justice, of the Peace/Sessions Judge had concurrent powers in terms of specific statutory provisions under which they had been respectively conferred such powers‑‑‑Section 22‑A, Cr.P.C. was added in Cr.P.C. on 21‑11‑2002 whereas Police Order, 2002 was promulgated earlier in time on 14‑8‑2002 therefore latter/Police Order, 2002 could not be deemed to prevail over the former/S.22‑A, Cr.P.C. under doctrine of implied repeal.

(c) Police Order (22 of 2002)‑‑‑

‑‑‑‑Arts. 35 & 155(2)‑‑‑Criminal Procedure Code (V of 1898), S.22‑A. & Second Sched.‑‑‑Initiation of prosecution‑‑‑Police Order, 2002, only required prosecution to be initiated upon a written report, but did not say that no arrest could take place without a warrant‑‑‑Offence in the present case being punishable with imprisonment up to three years, it would‑be deemed to be cognizable under Second Schedule to Cr.P.C.

(d) Interpretation of statutes‑‑

‑‑‑‑ Implied repeal, doctrine of‑‑‑Applicability‑‑‑Scope.

Nawab Mirza for Petitioner.

Abbas Ali, A.A.‑G.

Date of hearing: 7th January, 2005.

P L D 2005 Karachi 288

Before Muhammad Sadiq Leghari, J

PAKISTAN INDUSTRIAL CREDIT AND INVESTMENT CORPORATION‑‑‑Plaintiff

Versus

KARACHI PORT TRUST‑‑‑Defendant

Suit No.956 of 2000, decided on 26th October, 2004.

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

‑‑‑S. 41‑‑‑Karachi Port Trust Act (VI of 1886), Ss.4 & 87‑‑‑Land Control (Karachi Division) Act (XI of 1952), S.15‑‑‑Specific Relief Act (I of 1877), Ss.42 & 56‑‑‑Declaration of title‑‑‑Transfer by ostensible owner, principle of‑‑‑ Applicability‑‑‑Land owned by Karachi Port Trust was acquired by Karachi Development Authority and the same was converted into plots‑‑‑Karachi Development Authority leased out the plots to different persons and plaintiff was also one of such lessees‑‑­Plaintiff had only constructed boundary wall around his plot and had not completed construction‑‑‑Karachi Port Trust issued notice to plaintiff for removal of his encroachment over the plot‑‑‑Contention of plaintiff was that after acquisition of land, Karachi Port Trust had nothing to do with the plots leased out by Karachi Development Authority‑‑‑Plea raised by the Trust was that the transfer in favour of the Authority was incomplete‑‑‑Validity‑‑‑After delivery of possession of land by Karachi Port Trust to Karachi Development Authority ‑in the year, 1965, the latter had been dealing with it as its owner‑‑‑Authority had allotted the plot to plaintiff and received consideration thereof‑‑‑When hundreds of persons were being allotted/transferred the plots by the Authority as owner it could legitimately be inferred that plaintiff got the allotment in good faith, taking care about the competency of the Authority to transfer the same‑‑‑Even if the defendant's plea about final transfer of land was accepted, then also the allotment of the plot in question in favour of plaintiff was a transfer by ostensible owner and no essential element of S.41 of Transfer of Property Act, 1882, was wanting‑‑‑Karachi Port Trust had no locus standi to resume the plot in question on the ground of invalidity of its allotment‑‑‑Only Karachi Development Authority could take decision about the allotment in accordance with law and terms of allotment‑‑‑Allotment of plot in question to plaintiff was not affected by the decision of the Trust and possession of allottee over it could not be treated as unauthorized‑‑‑Notice issued by the Trust was declared without legal effect and the Trust was restrained from interfering with the possession of plaintiff over the suit plot‑‑‑Suit was decreed accordingly.

Noor Muhammad v. KDA PLD 1975 Kar. 373 and Ibadur Rahman v. KDA 1981 CLC 1260 rel.

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

‑‑‑‑S. 41‑‑‑Incomplete transfer‑‑‑Protection of S.41 of Transfer of Property Act, 1882‑‑‑Scope‑‑‑Transfer as mentioned in S.41 of Transfer of Property Act, 1882, includes incomplete transfers also, as scheme of S.41 of Transfer of Property Act, 1882, is based on a principle‑‑‑Not providing the protection to the incomplete transfers by the ostensible owner fulfilling all the essential requirements of S.41 of Transfer of Property Act, 1882, would be absurd.

Mushtaq A. Memon for Plaintiff.

S. Yousuf Ali for Defendant.

Date of hearing:. 24th September, 2004.

P L D 2005 Karachi 295

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

LATIF and 3 others‑‑‑Appellants

Versus

THE STATE through Assistant Advocate-General of Sindh ‑‑‑ Respondent

Special A.T.A. No.89 of 2001 and Confirmation Case No.13 of 2001, decided on 7th February, 2003.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑Ss. 302/324/353/148/149‑‑‑West Pakistan Arms Ordinance (XX of 1965), S. 13(d)‑‑‑Anti‑Terrorism Act (XXVII of 1997), S. 7(a) [as amended by Anti‑Terrorism (Amendment) Ordinance (XXXIX of 2001)]‑‑‑‑Appreciation of evidence‑‑‑Only prosecution witness, who was a police constable, had claimed that he saw the accused in the headlight of motorcycle which was a momentary glimpse of accused while they were indulging in encounter with the prosecution witness and deceased‑­--Identification of accused in the headlight of motorcycle, certainly was a weak type of evidence requiring strong corroboration, but same was badly lacking‑‑‑Said prosecution witness was not able to, say as to when light for alleged identification, was neither secured by police nor produced in the Court‑‑‑Complainant/S.H.O. failed to recall as to how many empties were recovered from the place of Vardat‑‑‑Glaring conflict appeared in time of death of deceased persons in the version given in F.I.R. and post‑mortem report‑‑‑Such contradiction was not explained anywhere, resulting into one more dent having been caused in the prosecution case‑‑‑Identification tests of accused persons were taken on different dates, through police officials and persons who acted as Mashirs, were residents of village situated at the distance of 25 K.Ms.‑‑­Such mock identification tests were worthless and could hardly be relied upon‑‑‑Recovery of crime weapons was not established as neither any independent witness was associated to witness recovery nor weapons were recovered from .the exclusive possession of accused‑-‑Alleged recovered weapons were never sent to Ballistic Expert except one K.K. and bullets recovered from place of occurrence‑‑Alleged recoveries in such situation were of no consequence‑‑‑According to police it was a case of encounter; but none of policemen was hurt in the encounter‑‑­Material contradictions appeared in the evidence‑‑‑Identification. Tests were inconsequential having been conducted in blatant contravention of principles and law and recoveries were unbelievable‑‑‑Trial Court while convicting accused, outright acquitted absconding accused without discussing evidence against them and without assigning lucid reasons for the same‑‑‑Prosecution having failed to bring guilt home to accused, their‑conviction and sentences were not warranted by law.

(b) Criminal trial‑‑‑

‑‑‑‑Guilt against accused must rest surely and firmly on the evidence produced in the case and plain inference of guilt could irresistibly be drawn from the evidence.

Shaukat H. Zubaidi for Appellants.

Habib Ahmad, A.A.‑G. for the State.

Date of hearing: 28th January, 2003.

P L D 2005 Karachi 302

Before Shabbir Ahmed, J

Haji MUHAMMAD HAROON and others‑‑‑Plaintiffs

Versus

ABDUL GHAFFAR and others‑‑‑Defendants

Civil Suit No. 132.and C.M.A. No. 784 of 2004, decided on 4th October, 2004.

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

‑‑‑‑S. 41‑‑‑Transfer by ostensible owner‑‑‑Principle of estoppel‑‑­Applicability‑‑‑ Provision of S.41 of Transfer of Property Act, 1882, is statutory application of law of estoppel and makes an exception to the rule that a person cannot confer a better title than he has‑‑‑Principle underlying the provision of S.41 of Transfer of Property Act, 1882, is that whenever one of the two innocent persons has to suffer by, the act of a third person, he who has enabled the third person to occasion the loss, must sustain it.

Book "Transfer of Property Act" by Mulla; Ramcoomar v. Macqueen (1872) 11 BLR 46 ref.

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

‑‑‑‑S. 41‑‑‑Transfer by ostensible owner‑‑‑Pre‑conditions.

Following conditions are necessary for the application of S.41 of Transfer of Property Act, 1‑882: ‑

(i) The transferor is ostensible owner;

(ii) He is so by the consent, express or implied, of the real owner;

(iii) The transfer is for consideration; and

(iv) The transferee had acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer.

Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53; Muhammad Yamin and others v. Settlement Commissioner and others 1976 SCMR 489; Bashir Ahmed and others v. Additional Commissioner and others 1983 SCMR 1199; Manzoor Hussain v. Fazal Hussain and others 1984 SCMR 1027 and Ejaz Ahmed Khan v. Chahat and others 1987 SCMR 192 rel.

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

‑‑‑‑Ss. 16 & 17‑‑‑Term vest'‑‑‑Applicability‑‑Possession of land acquired‑‑‑Effect ‑‑‑Once possession of the land has been taken under S.17(1) of Land Acquisition Act, 1894, the land vests in the Government‑‑‑Property so acquired, upon happening of certain events, vests absolutely in the Government free from all encumbrances‑‑‑In the cases contemplated by Ss.16 and 17 of Land Acquisition Act, 1894, the property acquired becomes the property of Government without any condition or limitation either as to title or possession‑‑‑Legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration‑‑Wordvest' does not have fixed connotation/meaning in all cases that the property is owned by the person or the authority in whom it vests.

The Fruit and Vegetable Merchants Union v. the Dehli Improvement Trust AIR 1957 SC 344 rel.

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

‑‑‑‑Ss.16 & 17‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2‑‑‑Specific Relief Act (I of 1877), Ss.42 & 54‑‑‑Interim injunction, grant of‑‑‑Acquisition of land‑‑‑Suit land was acquired by municipal authorities in the year 1961, for establishing wool washing area‑‑­Owners of the land received compensation and the possession was handed over to the authorities‑‑‑After acquisition, the land was converted into plots which were auctioned by the authorities‑‑‑Defendants were auction purchasers of the suit land and after the allotment they constructed boundary walls around their plots and fixed steel gates‑‑­Plaintiffs claimed to have purchased the suit land from the owners and had also received possession of the suit land‑‑‑Application for interim injunction was filed by the plaintiffs‑‑‑Validity‑‑‑Once possession of land, had been taken over under S.17(1) of Land Acquisition Act, 1894, they original Khatedaran who accepted the compensation without protest or otherwise had not challenged the acquisition proceedings and after about 40 years, the plaintiffs could not challenge the same‑‑‑Plaintiffs claimed to have purchased, the suit land through two sale deeds wherein the land sold was not shown to have been bounded by wall with gates‑‑‑Version given by the defendants was supported by the report of Nazir‑‑‑Plaintiffs were purchasers from the legal heirs of original Khatedaran who had already received the compensation‑‑‑Land had changed its character after acquisition from agriculture to industrial‑‑‑Sellers had no right in the suit property‑‑‑Plaintiffs had no prima facie case nor the balance of convenience was in their favour‑‑‑On the contrary if injunction was granted, the owners of the suit land, who had purchased it from the municipal authorities, would suffer and would be more inconvenienced‑‑­Application for interim injunction was dismissed.

Pakistan through Secretary, Ministry of Defence and others v. Late Ch. Muhammad Ahsan through Legal Heirs and others 1991 SCMR 2180; Nirman Singh v. Rudra Partab Narain Singh AIR 1926 PC 100; Ram Sarup Rai v. Charitter Rai AIR 1927 All. 339; Rasulan Bibi v. Nand Lal AIR 1914 All. 521; Mahadeo Singh v. Jagmohan Singh AIR 1914 Oudh 235; Mst. Jagrani v. Bisheshar Dube AIR 1916 All. 1; Baldeo Singh v. Udal Singh AIR 1921 All. 248; Kaniz Fatima v. Member Board of Revenue PLD 1972 Lah. 495 and Muhammad Ali v. Hassan Muhammad PLD 1994 SC 245 ref.

Abid S. Zuberi for Plaintiffs.

Khawaja Shamsul Islam for Defendants Nos. 1 to 5.

Abbas Ali, Addl. A.‑G. for Defendants Nos. 6, 7 and 10.

Manzoor Ahmed for Defendant No.9.

Date of hearing: 13th September, 2004.

P L D 2005 Karachi 316

Before Anwar Zaheer Jamali and Azizullah M. Memon, JJ

Messrs YOUSUF SONS and another‑‑‑Appellants

versus

MUHAMMAD KHALID and others‑‑‑Respondents

High Court Appeals. No.426 of 2003 and 2 of 2004, decided on 15th March, 2005.

(a) Contempt of Court Act (LXIV of 1976)‑‑‑

‑‑‑‑Ss.3 & 4‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, R.2(3) & S.151‑‑‑Violation of injunction order‑‑‑High Court appeal‑‑‑Application in the suit under Ss.3 & 4, Contempt of Court Act, 1976 read with O.XXXIX, R.2(3) and s.151, C.P.C., agitating the grievance to the effect that order of the High Court was violated by the appellants, with the prayer for their punishment, besides direction for deposit of the rent amount in Court which was withdrawn in violation of such order‑‑­Framing of charges/issues and affording of opportunity to the offenders‑‑‑Requirements‑‑‑Held, proceedings initiated in the present case on the basis of the application were not, in stricto senso, criminal proceedings, therefore it was not necessary for the Court to have framed formal charge against the appellants‑‑‑On service of notice of contempt proceedings, the appellants were well‑informed and aware about initiation and pendency of contempt proceedings against them and. its ultimate consequences and in this background of the matter, full opportunity was afforded to them to meet the case with reference to violation of the order in‑question which was\ admittedly in their knowledge at the time of commission of acts forming basis for initiation of contempt proceedings for violation of injunction order by 'the appellants‑‑‑Contention that non‑framing of charges/issues or non-­affording an opportunity of hearing to the appellants before ordering their conviction by impugned order, had no force in circumstances‑‑.­Record showed that prima facie, a collusive game of fraud was played by the appellants for violation of order and their conduct during the pendency of the application was throughout contumacious‑‑‑High Court in its impugned order had thoroughly examined the case of the appellants in a judicious manner and rightly convicted both the appellants for deliberate violation of the High Court order‑‑‑High Court directed that appellants be taken into custody and remanded to the prison to serve their respective sentences‑‑‑Principles.

Muhammad Aslam v. Mahmood Ali and another PLD 1992 SC 104; Bakhtawar and others v. Amin and others 1980 SCMR 89 and Muhammad Sabir Khan and 13 others v. Rahim Bakhsh and 16 others PLD 2002 SC 303 fol.

Hatim v. Shah Din PLD 1952 Lah. 77; Dr. M.O. Ghani, Vice­-Chancellor, University of Dacca v. Dr. A.N.M. Mahmood PLD 1966 SC 802; Muhammad Aslam v. Mahrnood Ali and another PLD 1992 SC 104; Raja Talat Mahmood v. Ismat Ehtishamul Haq 1999 SCMR 2215; Saadat Khialy, Staff Reporter (Kohistan Daily) and others v. The State and another PLD 1962 SC 457; Bakhtawar and others v. Amin and others 1980 SCMR 89 and Muhammad Sabir Khan and 13 others v. Rahim Bakhsh and 16 others PLD 2002 SC 303 ref.

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

‑‑‑‑S. 151‑‑‑Inherent powers ‑ of Court‑‑‑Scope‑‑‑Court, to seek implementation of its order, to meet the ends of justice and to ensure the supremacy of law, can follow any course, which is not prohibited by law, and for that purpose inherent powers of the Court conferred by S.151, C.P.C. could be exercised by it.

Muhammad Anwar Tariq for Appellant (in H.C.A. No.426 of 2003).

S. Sami Ahmed for Appellant (in H.C.A. No.2 of 2004).

Muhammad Ali Jan for Respondents Nos.1 to 4 (in H.C.A. No.426 of 2003).

Rasheed A.Razvi for Respondents Nos. 1 to 4 (in H.C.A.No.2 of 2004).

Abbas Ali, A.A.‑G., Sindh on Court Notice.

Nemo for the Remaining Respondents (in both the appeals).

Dates of hearing: 27th and 28th of January, 2005.

P L D 2005 Karachi 327

Before Gulzar Ahmed, J

Mst. LAL KHATOON and 8 others‑‑‑Appellants

versus

Mst. SAHATI and 2 others‑‑‑Respondents

Civil Miscellaneous Appeal No. 4 of 1999, heard on 11th October, 2004.

Civil Procedure Code (V of 1908)‑‑

‑‑‑‑Ss. 114, 115(4) & O.XLVII, Rr.1 & 7‑‑‑Review‑‑‑Proceedings of review were an independent and separate proceedings from the one in which it has arisen and the finality that was attributed to the order, judgment and decree under revision, would not be so attributed to the order, judgment‑or decree that was passed in consequence of the review and such consequential order, judgment or decree on review would independently be open to the incidence of appeal if it was so provided in the statute‑‑‑Concept that proceedings of review were an ancillary proceedings in the main order or that the finality to the order as envisaged in terms of provisions of subsection (4) of S.115, C.P.C. would override provisions of O.XLVII, R.1 and 7, C.P.C., apparently was not supportable in view of rule laid down by Supreme Court in case reported as PLD 1981 SC 94‑‑‑Court, in undertaking the exercise of review, had to confine itself to the limited enquiry enjoyed within the four corners of O.XLVII, R.1, C.P.C. and not to embark upon opening of the case on merits and deciding it afresh.

Muhammad Naeem Ullah Khan v. Ihsan Ullah Khan AIR 14 All. 226; Muhammad Hassan Khan v. L. Bikhari Lal and others AIR 1950 All. 537; Ghulam Hussain v. Ghulam Mustafa PLD 1967 Lah. 439 and Muzzafar Ali v. Muhammad Shafi PLD 1981 SC 94 ref.

Mobeen Khan for Appellants.

Abdul Rasheed Kalwar for Respondents.

P L D 2005 Karachi 334

Before Zia Pervez, J

JAGSI‑‑‑Petitioner

versus

Shr. MARWAN and another‑‑‑Respondent

Constitutional Petition No.S‑81 of 2004, decided on 29th November, 2004.

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

‑‑‑‑Ss. 2(b), 5 & Sched.‑‑‑Adjudication upon matters involving Hindu citizens of Pakistan‑‑‑Jurisdiction of Family Courts‑‑‑Family Court constituted under West Pakistan Family Courts Act, 1964, was competent to adjudicate upon the matters pertaining to divorce claimed on the strength of customs; and said Court was competent to adjudicate upon matters involving Hindu citizens of Pakistan to the extent specified in Schedule to the Act which included the cases pertaining to divorce.

Sultan Ahmad v. Mst. Mehr Bhari PLD 1982 FSC 48; Masood Ahmad Malik v. Mst. Fouzia Farhana Quddus 1991 SCMR 681; Mrs. Daphne Joseph v. Malik Eric Roshan Khan PLD 1978 Kan 336; Mulchand v. Smt. Indra PLD 1985 Kar. 362; Ghulam Sarwar v. District Judge 1985 CLC 2478; Mubashar Ahmad v. Talat Khurshid 1996 CLC 1963; Ramdas v. Bernadat PLD 1998 Kar. 42; Gurdit Singh v. Angrez Kaur and others AIR 1968 SC 142; Naeem Ahmad v. Mst. Nuzhat Almas 1981 CLC 195 and Mst. Nadira Shahzad v. Mubashir Ahmed 1995 SCMR 1419 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Findings of Trial Court were to be interfered only in case of gross irregularity or jurisdictional error.

Jagdesh R. Mullani for Petitioner

Taj Muhammad Kaimkhani for Respondent No. 1.

Masood A. Noorani, Addl. A.‑G.

Hassan Mehmood Baig and Jhamat Jethanand, Amicus Curie.

Date of hearing: 29th November, 2004.

P L D 2005 Karachi 340

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

MUHAMMAD ASHRAF‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Special Criminal Anti‑Terrorism Appeal No. 14 of 2004, decided on 7th December, 2004.

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

‑‑‑‑Ss. 367(2) & 537‑‑‑Composite sentence‑‑‑Effect‑‑‑Award of composite punishment is not irregular or illegal if the sentence awarded under various provisions is permissible tinder the law and if a conviction under one of its provisions is set aside then the sentence would not be deemed to have been enhanced in respect of remaining offence; otherwise it will be an illegality which cannot be cured under S.537, Cr.P.C.

Murlidhar v. State AIR 1953 All. 245 ref.

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

‑‑‑‑Ss. 11G(1)(a) & 11F(5)(6)‑‑‑Criminal Procedure Code. (V of 1898), S.537‑‑‑Sentence‑‑‑Validity‑‑‑Trial Court had awarded a composite sentence of five years R.I. and a fine of Rs.50,000 or in default thereof six months R.I. to each of the accused with confiscation of their all movable and immovable properties, which was not provided as a sentence in respect of both the offences for which they had been convicted‑‑‑If the conviction of accused under S.11F(5)(6) of the Anti-­Terrorism Act, 1997; was set aside then the sentence awarded to them by the Trial Court was beyond the maximum sentence of S.11G(2) of the said Act‑‑‑Composite sentence awarded in the present circumstances of the case, therefore, was not merely an irregularity but was an illegality which had occasioned a failure of justice and the same could not be cured under 5.537, Cr.P.C.‑‑‑Conviction and sentence of accused were consequently set aside and the case was remanded to the Trial Court for passing an appropriate judgment in accordance with law.

Sayed Khalid Raza v. State Spl. ATA No.9 of 2004 ref.

Murlidhar v. State AIR 1953 All. 245 ref.

Maqbool‑ur‑Rehman for Appellant.

Habib Ahmad, A.A.‑G. for the State.

Date of hearing: 25th November, 2004.

P L D 2005 Karachi 344

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

AMIR KHAN‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Revision Application No.88 of 2004, decided on 3rd November, 2004.

(a) Criminal trial‑‑‑

‑‑‑‑Intention‑‑‑Connotation‑‑‑Intention is a state of mind which can only be gathered from the evidence of a person's overt acts and expressions‑‑­Court cannot look into the minds of the accused persons and has, therefore, per force to gather their intention from their words and deeds‑‑‑Accused persons in each case must be deemed to have intended the natural and inevitable consequences of their actions and utterances.

Consul Corfitzon v. H.M. Prosecutor General AIR 1918 PC 354; Mir Chhittan v, Emperor AIR 1937 All. 13;.Dandakar v. Emperor AIR 1930 All. 324 and The State v. Sardar Attaullah Khan Mengal PLD 1967 SC 78 ref.

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

‑‑‑‑Ss. 6, 7 & 8‑‑‑Act of terrorism‑‑‑In order to make an act punishable under the Anti‑Terrorism Act, 1997, it must be shown that it bears nexus with Ss.6, 7 & 8 of the said Act.

Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 and PLD 2000 SC 111 ref.

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

‑‑‑‑S. 6‑‑‑Act of terrorism‑‑‑Connotation‑‑‑An act of terrorism is a preplanned and organized system of intimidation, the requisites and attributes of which are that it and its effects are made known to the people and are circulated widely with exaggeration‑‑‑Such act is neither hidden nor disguised and is committed with the sole object to terrorize the people and to feel them insecure.

Jahangir Akhtar Awan v. State PLD 2000 Kar. 89 ref..

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

‑‑‑‑S. 6‑‑‑Terrorism‑‑‑If any person or persons commit the offence falling within the scope of subsections (1), (3) & (5) of S.6 of the Anti­-Terrorism Act, 1997, then he or they will be guilty of the act of terrorism by virtue of subsection (6) thereof.

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

‑‑‑‑S. 6‑‑‑Terrorist act and terrorism‑‑‑Difference‑‑‑Apparent difference between the definition of "terrorist act" and "terrorism" is that .in the earlier definition of "terrorist act" the mens rea or intention was not playing the decisive role, but in the present definition of "terrorism" under subsections (1) & (5), the mens rea or intention is the deciding factor of any act referred to in subsection (2).

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

‑‑‑‑S. 6(1)(b) or (c)‑‑‑Terrorism‑‑‑Essentials‑‑‑Essential ingredients of terrorism as defined in S.6, subsection (1)(b) or (c) are (i) use or threat of action shall fall within the meaning of subsections (2)(a) to (n) & (ii) the use or threat is intended or expected with its natural and inevitable consequences of coercing and intimidating or overawing the Government or the public or a section of the public or community or sect or creating a sense of fear and insecurity in the society, or (iii) the use or threat is made for the purpose of advancing the religious, sectarian or ethnic cause.

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

‑‑‑‑S. 6(3)‑‑‑Terrorism‑‑‑Essential‑‑‑Requirements of terrorism as defined in S.6, subsection (3) are (i) the use of action or threat of action shall fall within the scope of subsections (2)(a) to (n), (ii) the action falling under subsections (2)(a) to (n) shall involve the use of fire‑arms, explosives or any other weapon, (iii) the above act will become terrorism regardless of the fulfilment or satisfaction of the circumstances or purposes mentioned in subsection (1)(c) and (iv) the above act should have nexus with the object of the Anti‑Terrorism tact, 1997.

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

‑‑‑‑S. 6(5)‑‑‑Terrorism‑‑‑Essentials‑‑‑Essential ingredients of S.6, subsection (5) are (i) there should be prescribed organization within the meaning of S.11‑B of the Anti‑Terrorism Act, 1997, (ii) there should be an act and (iii) the act should be done with the intention or with its expected natural and inevitable consequences of giving benefit to the prescribed organization.

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

‑‑‑‑Ss. 23, 6 & 7‑‑‑Transfer of case from Special Court to Regular Court‑‑‑Incident had taken place between two factions of one political party in which leader of one group and his workers had participated using fire‑arms and threat killing two workers of the rival group‑‑‑One group intended to scare its other group with the intention to coerce and intimidate it by the use of fire‑arms and threat‑‑‑Offence, therefore, fell within the definition of "terrorism" as given in S.6 of the Anti‑Terrorism Act, 1997 and the Anti‑Terrorism Court had jurisdiction to try the case.

Imran Ashraf v. State 2001 SCMR 424; Noor Muhammad v. State 2000 PCr.LJ 1583; Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445; Muhammad Amjad v. State PLD 2003 SC 704; Abdul 6hafoor Bhatti v. Muhammad Saleem 2003 SCMR 1934; Najam‑un‑Nisa v. Judge, Special Court 2003 SCMR 1323; Basharat Ali v. Special Judge Anti‑Terrorism Lahore Court‑II PLD 2004 Lah.199; American Heritage Dictionary; Consul Corfitzon v. H.M. Prosecutor General AIR 1918 PC 354; Mir Chhittan v. Emperor AIR 1937 All. 13; Dandakar v. Emperror AIR 1930 All. 324; The State v. Sardar Attaullah Khan Mengal PLD 1967 SC 78; Legal Remembrancer, Bengal v. Ambika Charan Dalal ILR (1946) 2 Cal. 127; PLD 2000 SC 111 and Jahangir Akhtar Awan v. State PLD 2000 Kar. 89 ref.

Khwaja Naveed Ahmed for Applicant.

Anwar Mansoor, Advocate‑General, Sindh assisted by Habib Ahmed, Asstt. A.‑G. for the State.

Date of hearing: 15th October, 2004.

P L D 2005 Karachi 358

Before Sarmad Jalal Osmany and Amir Hani Muslim, JJ

BATOOL TAHIR through Nominee/Representative/ Special Attorney Mustejab Zebra‑‑‑Petitioner

versus

PROVINCE OF SINDH through Secretary Local Government Sindh and 3 others‑‑‑Respondents

Constitutional Petition No.D‑1208 of 2004, decided on 25th November, 2004.

Muslim Family Laws Ordinance (VIII of 1961)‑‑‑

‑‑‑‑S. 7‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition ‑‑‑Talaq‑‑‑Validity‑‑‑Councillors had no authority in law to give a finding on validity or otherwise of Talaq and they had travelled beyond their jurisdiction by declaring the Talaq pronounced b5 the husband ineffective‑‑‑Section 7 of the Muslim Family Laws Ordinance, 1961 required the husband to give a notice to the Chairman in terms of S.7(1) and upon expiry of 90 days from the date of delivery of the notice to the Chairman, Talaq would become effective subject to the conditions contained in S.7(5) of the Ordinance‑‑‑Non‑constitution of Arbitration Council and non‑issuance of notice to the wife would not invalidate Talaq pronounced by her husband as the provisions of S.7 of the Ordinance were directory in nature and did not entail any penalty for its non‑compliance ‑‑‑Nazim Union Council could only record the contentions of both the parties before him and then could merely state whether reconciliation efforts between them had succeeded or not‑‑­Validity or otherwise of Talaq could .only be examined by a Court of competent jurisdiction under, the Family Laws‑‑‑Wife, therefore, could not claim that non‑issuance of notice under S.7(1) of the Muslim Family Laws Ordinance, 1961 to her either by the Nazim Union Council or non­-supply of the copy of the Talaqnama by her husband, would make Talaq ineffective or would invalidate the same, for the reason that the wife knew that Talaq had been pronounced by the husband besides the fact that Talaq would become effective on expiry of 90 days from the date of its pronouncement irrespective of the service of notice on the Chairman Union Council or on the wife, and non‑service of notice on them would not make Talaq ineffective‑‑‑Constitutional petition was disposed of accordingly.

Ali Nawaz Gardezi v. Lt. Col. Muhammad Yousuf PLD 1963 SC 51; Mst. Fahmida Bibi v. Mukhtar Ahmad PLD 1972 Lah. 694; Dr.Razia v. Chairman Union Council Panchait Court and Mushir Ahmed Pesh Imam (Constitutional Petition No.90 of 1984); ' Mirza Qamar Raza v. Mst. Tahira Begum PLD 1988 Kar. 169 and Allah Dad v. Mukhtar 1992 SCMR 1273 ref.

Ali Bin Adam Jafri for Petitioner.

Khwaja Naveed Ahmed for Respondent No. 4.

Nemo. for the Remaining Respondents.

Date of hearing: 25th November, 2004.

P L D 2005 Karachi 364

Before Sarmad Jalal Osmany and Amir Hani Muslim, JJ

HANIF AHMED BHATTI‑‑‑Petitioner

versus

FEDERATION OF PAKISTAN and others‑‑‑Respondents

Constitutional Petitions Nos.D‑1310, 1324 and 1343 of 2004, decided on 23rd December, 2004.

(a) Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑

‑‑‑‑S. 5‑A [as amended]‑‑‑Constitution of Pakistan (1973), Arts. 199 & 25---Constitutional petition-----Qualifications for membership of Provincial Bar Council‑‑‑Petitioners had contended that the Ordinance amending S.5‑A, Legal Practitioners and Bar Councils Act, 1973, inter alia had increased the qualifying practice period from 7 years to 10 years which had adversely affected them as they were now no more qualified to stand for the elections to the Provincial Bar Council as members and the amending Ordinance could not operate retrospectively to the disadvantage of the petitioners especially when the election programme had already been notified; that the petitioners had acquired a vested right to contest the elections of the Provincial Bar Council once having filed their proposals on 25‑10‑2004 which could not be taken away retrospectively through the Ordinance notified on 3‑11‑2004; that the notification dated 5‑11‑2004 issued by the Returning Officer was void ab initio and of no legal effect; that the elections of the Provincial Bar Council be held for all the seats as per un‑amended Legal Practitioners and Bar Councils Act, 1973; that the amendment in question had reduced the number of seats for the Provincial Bar Council allocated to respective Districts which had adversely affected the petitioners who being practising advocates in the said Districts could now only elect one member each to the Provincial Bar Council instead of two, such reduction brought about through the Ordinance on 4‑11‑2004 could not affect their vested rights to elect two members each under unamended Legal Practitioners and Bar Councils Act, 1973 as the election programme had already been announced on 16‑9‑2004 by the Returning Officer‑‑‑Petitioners had prayed that amending Ordinance could not be made applicable to the election programme announced by the Returning Officer on 16‑9‑2004 whereby two seats had been reserved for each District and that the said officer be directed to conduct the elections to the Provincial Bar Council on the basis of said Programme ‑‑‑Validity‑‑­Held, right to contest elections, was crystallized in favour of the petitioners on the day they filed their proposals viz. 25‑10‑2004 on which date they stood qualified to do so, hence their matter would be a past and closed transaction between the petitioners and the State insofar as their right to contest election was concerned which could not be destroyed retrospectively through the amending Ordinance‑‑‑Vested right of the petitioners to have two members each returned to the Provincial Bar Council from the respective Districts, also had accrued to them on 24‑9‑2004 when the election programme under the unamended Act was announced, therefore the elections to the Provincial Bar Council from said Districts would remain unaffected by the amending Ordinance as well‑‑‑Elections of Provincial Bar Councils ‑having taken place under unamended Act, if the elections to the Provincial Bar Council (Sindh) were allowed to be held under the amended Act that would certainly be violative of the petitioners' fundamental right to the equal protection of law as enjoined under Art.25 of the Constitution‑‑­Principles.

Benazir Bhutto v. President of Pakistan PLD 1998 SC 388; Khushnood Ahmed v. President Cantt. Board PLD 1984 Quetta 117;. Mardan Industries Ltd., v. Government of .Pakistan PLD 1965 Pesh. 46; Abul A'la Maudoodi v. Government of West Pakistan PLD 1964 SC 673; Nabi Ahmed v. Home Secretary, Government, of West Pakistan PLD 1969 SC 599; Mian Iftikhar‑ud‑Din v. Muhammad Sarfraz PLD 1961 (W.P.) Lah. 842; Zafar Ali v. Chief Settlement Commissioner PLD 966 Lah. 900; Asif Ahmed Ali v. Muhammad Khan Junejo PLD 1986 Lah. 310; Sabir Shah v. Shad Muhammad Khan, PLD 1995 SC 66; Federation of Pakistan v. Shaukat Ali Mian PLD 1999 SC 1026; Ghulam Nabi v. Province of Sindh PLD 1999 Kar. 372; Inam‑ur‑Rehman v. Federation of Pakistan 1992 SCMR 563; Government of Balochistan v. Azizullah Memon PLD 1993 SC 341; Muhammad Yousuf v. Azad Government PLD 2001 AJ&K 60; M.Y.. Electronic Industries Ltd., v. Government of Pakistan 1998 SCMR 1404; Bank of America Employees' Union v. Federation of Pakistan 2003 PLC 143; Shadi Khan v. The State 2002 SCMR 272; Molasses Trading and Export (Pvt.) Ltd. v. Federation of Pakistan 1993 SCMR 1905 and Al‑Samrez Enterprises 1986 SCMR 1917 ref.

(b) Estoppel‑‑‑

‑‑‑‑Promissory estoppel ‑‑‑Government or a Government functionary competent to represent on behalf of the Government ‑‑‑ Limitations.

Raja Qureshi, Abdul Hafeez Lakho and Ghulam Shabbir for Petitioners.

Rasheed A. Rizvi, for Pakistan Bar Council, Abrar Hassan for Sindh Bar Council', Anwar Manzoor Khan, Advocate‑General, Sindh Returning Officer and Nadeem Azhar Siddiqui, D.A.‑G. for the Federation of Pakistan in all the Petitions.

Dates of hearing: 23rd, 25th, 26th and 30th November, 2004 and 1st December, 2004.

P L D 2005 Karachi 375

Before Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ

ZAFARUL HAQ KHAN‑‑‑Petitioner

versus

MUHAMMAD AMIN and others‑‑‑Respondents

Constitutional Petition No. 1696 of 2003, decided on 12th November, 2004.

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

‑‑‑‑Ss. 173(3) & 561‑A‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Cancellation of F.I.R.‑‑‑Remedy‑‑‑Jurisdiction of Magistrate‑‑‑Doctrine of "res judicata" or "functus officio"‑‑­Applicability‑‑‑No specific provision exists in Criminal Procedure Code, 1898, under which question of cancellation of registered criminal case can be dealt with‑‑‑Inherent powers have been given to Magistrate under 5.173(3), Cr.P.C., to cancel the case and the Magistrate is within his power to cancel the F.I.R.‑‑‑Such order passed by Magistrate being administrative order is not hit by doctrine of "res judicata" or doctrine of "functus officio"‑‑‑Both the doctrines are not to apply to prevent exercise of administrative power‑‑‑Such administrative order can be challenged before High Court under 5.561‑A, Cr.P.C. if same amounts to be an abuse of the process of Court.

Bahadur and another v. The State PLD 1985 SC 62; Wazir v: The State PLD 1962 Lah. 405 and Reid and David in Administrative Law and Practice 2nd Edn. Canadian Legal Text Series at p.52 rel.

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

‑‑‑‑S. 154‑‑‑Investigation of case after, submission of challan in Court‑‑­Principles‑‑‑Police Officer has jurisdiction to investigate a case in which F.I.R. has been registered under S.154, Cr.P.C. in respective book of police station‑‑‑Such power of police officer continues even after submission of challan in Court.

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

‑‑‑‑S. 173(3)‑‑‑Police Rules, 1934, Vol. III, 8.47.7‑‑‑Cancellation of F.I.R.‑‑‑Procedure‑‑‑Investigation after cancellation of F.I.R. by Magistrate‑‑‑ Scope ‑‑‑When after investigation, police submits a report to Magistrate for cancellation of the case and the Magistrate approves such report, then the Magistrate passes order for cancelling the F.I.R.‑‑‑After passing of such order by Magistrate, the police cancels the F.I.R. as per 8.47.7, Vol. III of Police Rules, 1934 by putting cross lines with red ink on the F. I. R. available in the book maintained under 5.154, Cr.P.C.‑‑­After cancelling the F.I.R. in red ink, there remains no F.I.R. pending on the file of police‑‑‑Once such situation arises, then no further investigation can be conducted in such case without recalling the order of cancelling the F.I.R. by the Magistrate himself or getting it set aside from High Court.

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

‑‑‑‑Ss. 154. & 173(3)‑‑‑Police Rules, 1934, Vol. III, R.47.7‑‑­ Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition ‑‑‑Re­ investigation of case ‑‑‑F.I.R., cancellation of ‑‑‑F.I.R. registered against petitioner was cancelled by Magistrate on the report of investigating officer, resultantly the petitioner was discharged of the case‑‑­ Subsequently, the complainant filed an application to superior officer of Police for re‑investigation of the case‑‑‑Without getting the order of cancellation of F.I.R. set aside from the Court, the police re‑investigated the case and arrested the petitioner‑‑‑Plea raised by the petitioner was that the re‑investigation was illegal‑‑‑Validity‑‑‑If re‑investigation of cancelled F.I.R. could be undertaken under the orders of superior officer of police, then such superior officer of police would be acting as appellate forum over the orders of the Magistrate‑‑‑Such order of superior officer of police tantamounts to setting aside the order of the Magistrate and the same could not be done as it was beyond the authority of a police officer how‑high‑so‑ever he might be‑‑‑Order of Magistrate either judicial or administrative could be set aside by the competent judicial forum and not by the police' officers directly or indirectly‑‑‑If such order of superior police officer was implemented then the investigation officer would start the re‑investigation of the case which otherwise he was not competent to do even on the order of his superior officers‑‑‑If a particular thing could not be done directly then it could not be done indirectly‑‑‑Superior police officers were not competent to allow the re‑investigation of the case when the F.I.R. had been cancelled under the orders of Magistrate‑‑‑Re‑investigation conducted by the investigation officer in the cancelled F.I.R. was abuse of process of law hence it had no legal effect and all subsequent actions on the re­ investigation were illegal and void‑‑‑Constitutional petition was allowed in circumstances.

Mulazim Hussain v. S.H..O., 1995 PCr.LJ 440; Mir Dad Khan v. Zahir Shah, 2000 PCr.LJ 580; Asghar Ali v. The State 1983 PCr.LJ 2187; Abdul Waheed v. The State, PLD 1986 Lah. 81; Soofi Abdul Qadir v. The State, 2000 PCr.LJ .520; Muhammad Ibrahim v. Qudratullah Ruddy PLD 1986 Lah. 256; Bahadur and another v. The State PLD 1985 SC 62; Mst. Iqbal Begum v. The State 1991 PCr.LJ 1755; Abdul Hakim v. Bashir Ahmed, 1974 PCr.LJ 394; Farooq Sumar v. The State 2004 PCr.LJ 1023; Falak Sher v. The State PLD 1967 SC 425; Mohammad Arif, v. The State, 1970 SCMR 178; Board of Intermediate and Secondary Education, Lahore v. Mst. Salina Afroze, PLD 1992 SC 263; Arif Ali Khan v. The State 1993 SCMR 187; Mohammad Akbar v. The State, 1972 SCMR 335; Mumtaz v. Mansoor Ahmed, 1984 SCMR 221 ref.

F.M. Javed for Petitioner.

Habib Ahmed, A.A.‑G. for Respondent No. 4. Respondent No. l (in person).

Date of hearing: 11th October, 2004.

P L D 2005 Karachi 384

Before Gulzar Ahmed and Mushir Alam, JJ

Dr. AYAZ HUSSAIN ‑‑‑Petitioner

versus

PROVINCE OF SINDH through Secretary to Government, Local Government, Karachi and 8 others‑‑‑Respondents

Constitutional Petition No.D‑237 of 2003, decided on 26th November, 2004.

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

‑‑‑‑Ss. 62 & 63‑‑‑External and internal recall of Taluka Nazim‑‑­Procedure‑‑‑External recall of Taluka Nazim is dealt within S.62 of Sindh Local Government Ordinance, 2001, while its S.63 deals with internal recall of Taluka Nazim‑‑‑For external recall, power to move the motion is conferred on Zila Nazim only while for internal recall, the power to move the motion is conferred upon a member of Taluka Council‑‑‑No need arises for calling of sessions of Zila Council for external recall, nor right is conferred on Taluka Nazim to appear and defend himself in Zila Council in case where the motion is required to be approved by simple majority of the total membership of Zila Council‑‑­For internal recall if Taluka Council is not already in session, its session is required to be summoned not earlier than three days but not later than seven days from the date of receipt of notice to move a motion and Taluka Nazim is conferred with right to appear and defend himself and the motion is required to be approved by majority of the votes of its total membership through secret ballot‑‑‑In case of external recall, if motion fails nothing happens to Zila Nazim whereas if internal recall motion fails, the proposer and seconder of such motion lose their seats both as Union Nazim and member of Taluka Council‑‑‑Provision regarding Election Authority causing the resolution to be voted upon by the Members of Union Council in Taluka and upon its approval the consequences are the same in respect of external recall motion‑‑‑No apparent prohibition exists in the case of external recall in terms of S.62 of Sindh Local Government Ordinance, 2001, of not moving the motion of external recall of Taluka Nazim before expiry of one year from the rejection of previous motion whereas such provision is specifically made in S.63 (8) of Sindh Local Government Ordinance, 2001, dealing with the internal recall motion‑‑‑Scope, purpose, forum and manner of dealing with motion under Ss.62 and 63 of Sindh Local Government Ordinance, 2001, are independent provisions which operate in their respective fields‑‑‑Rejection of external recall motion under S.62 of Sindh Local Government Ordinance, 2001, is not covered by the provisions of S.63(8) of the Ordinance.

(b) Interpretation of statutes‑‑‑

‑‑‑‑Section of statute‑‑‑Scope‑‑‑Every section of statute is a substantive enactment in itself and its true meaning and effect depend on its own language context and setting.

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

‑‑‑‑Ss. 63 & 69‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑No confidence against Taluka Nazim‑‑‑Internal recall motion, notice of‑‑‑Mode and manner‑‑‑Panel of Presiding Officers, election of‑‑‑Petitioner was elected as Taluka Nazim and internal recall motion against him' was moved on the ground of malpractice‑‑‑Notice was dispatched to the petitioner through courier service and press release and finally no confidence motion was passed against the petitioner‑‑‑Plea raised by the petitioner was that notice of the meeting was not properly served upon him and also that the Presiding Officer had no jurisdiction to preside over the meeting‑‑‑Validity‑‑‑Law did not provide for any specific mode, manner and forum in which the notice of internal recall motion was to be given to Taluka Nazim‑‑­Through receipt of press release, the petitioner was conveyed the allegations against him and further through publication in press the petitioner was conveyed the notice of meeting to be held on specified date; it was for the petitioner to have availed the statutory right under S.63(7) of Sindh Local Government Ordinance, 2001, and appeared in Taluka Council to defend himself‑‑‑Petitioner did not avail the opportunity anti thus he could not raise grievance in respect of the resolution of no confidence passed against him‑‑‑In its first meeting, the Taluka Council elected a panel of Presiding Officers under S.69(5) of Sindh Local Government Ordinance, 2001‑‑‑Petitioner did not dispute that the panel of Presiding Officers was not elected in terms of the provisions of S.69(5) of Sindh Local Government Ordinance, 2001, nor disputed that the respondent was not among the elected panel of Presiding Officers‑‑‑Petitioner also did not dispute the fact‑of moving of internal recall motion against the Naib Taluka Nazim‑‑‑No illegality appeared in the respondent acting as Presiding Officer of the meeting‑‑­Internal recall motion was rightly passed against the petitioner and High Court declined to interfere in the same‑‑‑Petition was dismissed in circumstances.

Ibrar Hussain v. Government of N.‑W.F.P. 2001 SCMR 914 distinguished.

Illahi Bux Kehar for Petitioner

Inayatullah Morio for Respondent Nos. 6 to 8.

Muhammad Bachal Tunio, Addl. A.‑G

Date of hearing: 20th November, 2004

P L D 2005 Karachi 393

Before Khilji Arif Hussain, J

Mst. SHAH JEHAN BEGUM and others‑‑‑Appellants

versus

HOUSE BUILDING FINANCE CORPORATION through District Manager‑‑‑Respondent

Miscellaneous Appeals Nos.27 to 43 of 1995, decided on 28th October, 2004.

(a) West Pakistan Civil Courts Ordinance (II of 1962)‑‑‑

‑‑‑‑Ss. 3 & 6(2)‑‑‑Classes of Court‑‑‑Powers of Additional District Judge‑‑‑Section 3, West Pakistan Civil Courts Ordinance, 1962 had provided three classes of Court; viz. Court of District Judge, Court of Additional District Judge and Court of Civil Judge‑‑‑Under subsection (2) of 8.6 of West Pakistan Civil Courts Ordinance, 1962, .an Additional District Judge would discharge such functions of a District Judge as a District Judge would assign to him and in discharge of said functions he would exercise same powers as District Judge‑‑‑Additional District Judge while exercising powers in respect of the work assigned to him, would exercise powers of District Judge‑‑‑Additional District Judge on transfer of the matter to him by District Judge in exercise of power under S.6 of West Pakistan Civil Courts Ordinance, 1962, would decide matter as District Judge.

I.D.B.P. v. Messrs Wood Industries Ltd. and others 1980 CLC 1745; M/s. Abid alias Mohd Abid v. Provincial Election Authority acid 2 others 1982 CLC 501; Asif v. Controller of Rents and Ethers 1988 CLC 1145 and Muhammad Sabir v. Additional District Judge II, Rawalpindi and 32 others PLD 1979 Lah. 353 ref.

(b) House Building Finance Corporation Act (VIII of 1952)‑‑‑

‑‑‑‑S. 30‑‑‑Failure to pay outstanding amount ‑‑‑Recovery‑‑‑Appeal‑‑­Appellant having failed to pay disputed amount, on application of Corporation, Additional, District Judge to whom matter was ' transferred, ordered appellant to handover vacant possession of house to Accountant of the Court who would sell the same in accordance with provisions of Civil Procedure Code, 1908 for recovery of amount‑‑‑Corporation had produced certified copy of statement of account showing outstanding dues against appellants and appellants had not questioned the authenticity of such entries in evidence or in cross‑examination of respondent's witness‑‑‑Burden was on the appellant to prove alleged damage to property, but he failed to discharge the same‑‑‑Corporation having proved its case against appellant, .appeal filed by appellant against impugned order of Additional District Judge, were dismissed, in circumstances.

Jhamat Jethanand for Appellants.

Nemo for Respondent.

Date of hearing: 6th October, 2004.

P L D 2005 Karachi 399

Before Mushir Alam, J

Syed MEHMOOD ALI ‑‑‑Plaintiff

versus

NETWORK TELEVISION MARKETING (PVT.) LTD and another‑‑‑Defendants

Suit No.91 of 1998, decided on 11th November, 2004.

(a) Defamation‑‑­

‑‑‑‑Concept‑‑‑Defamation is insinuating representation or image disseminated or conveyed to a third person through any tangible medium of perception, may it be print, oral, audio or visual media or devices or any combination thereof causing harm, and impairment to the reputation, goodwill or estimation of a person, vocation or goods.

(b) Tort‑‑

------Defamation‑‑‑Innuendo, in the context of action for tort of defamation, means oblique subtle or indirect implication in words or expression usually reckless, insolent and derogatory ensuing harm, injury and damage to the reputation, goodwill, and estimation of .a person, goods or vocation.

Tolley v. J.S. Fry and Sons Ltd. 1931 AC 333 and Charlston v. News Group Newpapers Ltd. (1995) 2 AC 65 ref.

(c) Tort‑‑‑

‑‑‑‑Defamation‑‑‑Compensation‑‑‑Conditions‑‑‑Generally a class or particular section or group of people cannot claim to be defamed as a class, section, group or community nor an individual can claim to be defamed by general reference to the class, section, group or community to which he belonged‑‑‑Exception to this generality could be claimed where it is demonstrated that the maligning or offensive defamation was directed, or innuendo angled or obliquely aimed towards a particular individual, person and/or concern or few identifiable individual, persons, goods or vocation‑‑‑Once the case is brought within the exception, action for libel or innuendo could be maintained by affected persons to vindicate the honour,' compensate the loss and restore the image.

Knupffer v. London Express Newspaper Ltd. 1944 AC 116; Aspro Travel Ltd. v. Owners Abroad Group (1995) 4 All ER 728 C.A.; Hassan Razzaqi v. Mst. Mehrun Nisa Meher 1972 PCr.LJ 1175; Mst. Hussain Bibi v. Saleem Muhammad PLD 1996 Lah. 50 ref.

(d) Defamation‑‑‑

‑‑‑‑ Burden of proof‑‑‑Damages‑‑‑Entitlement‑‑‑Tenor of evidence on record showed that documentary films telecasted, in the garb of general insinuations against the vendors of an edible product, the plaintiff's business concern (shop) was focused in particular; images of said business concern of the plaintiff were shown in the background and in the foreground people were shown commenting on plaintiff's edible product‑‑‑Average person with ordinary prudence would be led to believe, as if the documentary was specifically aimed at insinuating the plaintiff's concern and his product‑‑‑" Documentary" would‑ leave a detestable aversive and damaging impression, as regards the product of the plaintiff‑‑‑Initial burden, to prove that defamatory material or innuendo was pointed towards the plaintiff or his product was on the plaintiff to show that the documentary was obliquely aimed at the plaintiff's concern or his product‑‑‑Plaintiff had successfully demonstrated that in the documentary, shop of the plaintiff was shown, customers interviewed commented about the plaintiff's product, therefore, ordinary viewer reasonably would be led to believe that the documentary was about the plaintiff's product‑‑‑Plaintiff had also successfully demonstrated that, the damaging, maligning and offensive defamation telecasted and aired twice, was directed, referable or aimed towards the plaintiff's concern, the insinuating innuendo was covertly angled towards the plaintiff's product‑‑‑Burden to establish that the "Documentary" carried the true story or for that matter it was not aimed or focused toward the plaintiff was on the defendants, which burden was not discharged‑‑‑One of the defendants had failed to prove that the story in the documentary film shown twice as mentioned in the plaint by one of the defendants, was correct in respect of the plaintiff‑‑‑Defendants, held, were liable for consequence of defamation and plaintiff was entitled to claim damages both special as well as general.

(e) Defamation Ordinance (LVI of 2002)‑‑‑

‑‑‑‑Ss. 3, 4 & 9‑‑‑Penal.Code (XLV of 1860), S. 499‑‑‑Defamation‑‑Suit for damages‑‑Promulgation of Defamation Ordinance, 2002 has made defamation actionable under statute law (Ss.3, 4 and. 9 of Defamation Ordinance, 2002)‑‑‑Once it is _ established that the libel has been committed, injury or damage to the reputation, and goodwill is presumed‑‑‑Such principle has now been assimilated in S.4, Defamation Ordinance, 2002‑‑‑Defendant, in the present case, had admitted that the impugned documentary film containing insinuation conveyed innuendo at the plaintiff's concern and product was telecast but, pleaded justification‑‑‑Plea of justification, fair comment or any other admissible defence in like action, would not wipe out the effect of defamation altogether but could be considered as an exonerating and/or mitigating circumstance‑‑Defendant (since defunct) though had pleaded justification, no evidence was led either by the other defendant, who was stated to be the author of the script, or by the defendant (since defunct) the suit abated against it‑‑Held, once defamation was proved, damage, injury and impairment to the reputation, goodwill or estimation of a person, vocation or goods as the case may be, was invariably presumed‑‑­Documentary film telecast was not true, therefore there was no difficulty to arrive at a conclusion that the insinuating documentary that was telecast twice, harmed and 'impaired the estimation, reputation and goodwill of the plaintiff and his product‑‑‑Converse to the criminal liability, the civil liability for libel, slander or innuendo would not depend on the intention of the offender but on the fact of defamation.

Cassidy v. Daily Mirror Newspapers Ltd. (1929) 2 KB 331 ref.

(f) Companies Ordinance (XLVII of 1984)‑‑

‑‑‑‑S. 350‑‑‑Dissolution of company under S. 350, Companies Ordinance, 1984‑‑‑ Effect‑‑‑Company which had been dissolved, no longer existed as a separate juristic person or legal entity, capable of holding any property or being sued in any Court; as against the company in liquidation, which retains its corporate existence, as during liquidation, its administration and management converges into liquidator ‑‑‑If the winding up is revoked, company revives.

Employer's Liability Assurance Corporation, v. Sedgwick Collin & Co. AIR (1927) AC 95 and Travancore National and Quilong Bank Ltd. AIR 1939 Mad. 318 at 332 ref.

(g) Tort‑‑‑

‑‑‑‑Defamation‑‑‑Claim of damages‑‑‑Defendant, a defunct company having been dissolved under the Court's order for more than 2 years had passed‑‑‑Maxim: actio personalis moritur cum persona (cause disappeared and extinguished with the death of wrong doer or the party wronged)‑‑‑Applicability‑‑‑Where the right of action is personal in nature or arising out of action in tort‑ excepting tort against the estate, then in the case of death (i.e. dissolution) of corporate or juristic person such right of action abates, as it abates on the death of a natural person‑‑­Defendant company, in the present case, was no more in existence, suit to all intents and purposes stood abated as against the company‑‑‑Cause of action to the plaintiff as against the defendant, if any, disappeared and extinguished with the death of wrong doer, viz. the defendant company (since dissolved)‑‑No damages, in circumstances, could be awarded against the company that was no more in existence as nothing remained to follow it.

Muhammad Yousuf v. Ghayyuyr Hussain Shaft 1993 SCMR 1185 ref.

(h) Tort‑---

‑‑‑‑Defamation‑‑‑Suit for damages ‑‑‑Publisher/telecaster of insinuating material‑‑‑Both publisher/felecaster and the author were jointly and severally liable for the act of defamation.

(i) Tort‑‑

‑‑‑‑Defamation‑‑‑Suit for damages was filed against more than one tortfeaser‑‑‑Abatement of suit against one of the tortfeasers, which was a company and was dissolved under the Court's order‑‑‑One defendant published (the, defendant company) telecast the insinuation authored by the other defendant‑‑‑Both the telecaster and the author were jointly and severally liable for the act of defamation‑‑‑Abatement of suit as against one of the tortfeasers, (the telecaster) would not relieve the other (surviving tortfeaser) from the liability or consequences thereof‑‑­Surviving defendant, who was stated to be the author of the libellous material and innuendo being joint tortfeaser, was equally responsible for the consequences‑‑‑Said defendant had not defended the claim of the plaintiff, there was no defence plea on the record, libel was established, therefore, on account of the contents of telecast material the liability squarely fell upon the said author/defendant‑‑‑Once the defamation was proved against the defendant, general damages were presumed‑‑‑High Court, in circumstances, awarded general damages to the plaintiff, to the extent of Rs.50,000 as against the surviving defendant/author‑‑‑Plaintiff having not led any evidence to substantiate special damages, same was disallowed.

(j) Defamation Ordinance (LVI of 2002)‑‑‑

‑‑‑‑S. 5‑‑‑Libel‑‑‑Suit for damages‑‑‑Plea of fair comment ‑‑‑Scope‑‑­Provision of S.5, Defamation Ordinance, 2002 gives statutory backing to defence available to libeller as enumerated in the said section‑‑‑Person accused of libel may defend the action on the plea of fair comment on a matter of public good or interest, absolute or qualified privilege or if it is shown to be with the permission or consent of the injured and aggrieved person‑‑‑Defendant, the author of the libellous material in the present case, had sought refuge behind the plea of fair comment on the matter of public interest, but before any evidence could be led in support of defence plea the other defendant‑company which had made documentary film of the said material and telecast the same twice was dissolved by the order of the Court‑‑‑Defendant, being author of the insinuating documentary film chose not to appear in the proceedings before the Court‑‑‑Burden to prove the issue which was on the defendants, in circumstances, was not discharged‑‑‑Telecast of the impugned material therefore, was not privileged‑‑‑Suit of plaintiff, in circumstances, was decreed to the extent of general damages, in the sum of Rs.50,000 as against the defendant/author only, as suit against the company which had telecast the material stood abated on the dissolution of the defendant company on Court's order.

Manzoor‑ul‑Arifin for Plaintiff.

Defendant No. l (since dissolved).

Nemo for Defendant No.2.

Date of hearing: 11th November, 2004

P L D 2005 Karachi 411

Before Muhammad Moosa K. Leghari, J

GHULAM SHABBIR‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.32 of 2002, decided on 26th December, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Recovery of crime weapon was not proved as neither anybody was examined nor Mashirnama of recovery was exhibited‑‑‑Neither pistol was produced to the Court nor accused was confronted with the same at the time of recording his statement‑‑‑Crime weapon was neither sent to ballistic expert nor any report was on record‑‑‑Such piece of evidence had to be excluded‑‑­Alleged confessional statement of accused could not be considered as it was recorded at a belated stage after the delay of 10 days‑‑‑Even otherwise confession so recorded by accused was not consistent with the evidence and accused was not confronted with said confession in his examination under S. 342, Cr.P.C.‑‑‑Confessional statement of accused recorded, in circumstances was of little consequence for the purpose of corroboration‑‑‑Medical Officer in his post‑mortem report had stated that deceased sustained injuries on the forehead as well, but that was not borne out from Mashirnama of injuries‑‑‑Since no evidence was available with regard to recovery of crime empties, it could not be ascertained as to how many shots were fired‑‑‑Examination‑in‑Chief of one of prosecution witnesses was recorded, but he was not tendered for cross ­examination without any reason‑‑‑Said prosecution witness would be deemed to have been given up‑‑‑Other prosecution witness, who was eye‑witness was given up by prosecution in the first instance with a specific allegation that he was won over, but at a later stage he was recalled without bringing the fact to the notice of the Court that at a previous stage he was given up by prosecution‑‑‑Evidence of such witness could not be given credence and had to be discarded‑‑‑Another eye‑witness disappeared after recording his, Examination‑in‑Chief and was not produced by prosecution for cross‑examination‑‑‑Said witness also would be deemed to have been given up‑‑‑Contradiction was found in statement of complainant/First informant in F.I.R. recorded by him and in his statement made before Trial Court‑‑‑Complainant did not utter a single word about motive in his Examination‑in‑Chief, but in his cross‑examination he had stated that there was a case in which deceased was accused and same was filed by one of co‑accused‑‑‑Ocular testimony of complainant could not be deemed to be worthy of credence, dependable and confidence inspiring because of his inconsistent version‑‑‑More than one circumstance being available to create a reasonable doubt with regard to the guilt of accused, judgment ,of conviction and sentence, passed by Trial Court against accused, was set aside and he was acquitted and released, in circumstances.

Muhammad Mansha v. The State 2001 SCMR 199; Rana Shahbaz Ahmed and 2 others v. The State 2002 SCMR 203 .and Tariq Pervaiz v. The State 1995 SCMR 1345 ref.

Rasood Bux Paleejo for Appellant

Anwar Ansari for the State

Date of hearing: 26th December, 2002

P L D 2005 Karachi 416

Before Anwar Zaheer Jamali, J

Raja ABDUL RAUF‑‑‑Petitioner

Versus

HABIB AHMED and others‑‑‑Respondents

Constitutional Petition No. S‑65 of 2004 decided on 18th April, 2005.

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

‑‑‑‑Ss. 15 & 21‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional jurisdiction‑‑‑Scope‑‑‑Invoking of Constitutional jurisdiction in cases under Sindh Rented Premises Ordinance, 1979 to be discouraged by the High Court, reason being that otherwise the very purpose and object of expeditious disposal of such cases through the Courts of Rent Controller and providing right of only one appeal would be frustrated‑‑‑High Court in exceptional circumstances, however, to avoid abuse of process of law and grave injustice to a party, was not denuded in exercising its powers under Art.199 of the Constitution to redress such grave illegalities‑‑‑Mere fact that on the basis of same evidence another view of the matter was also possible, would not justify exercise of Constitutional jurisdiction by High Court to substitute the findings of Courts below with its own findings and to rescue the petitioner from his pending ejectment from rented premises.

Muhammad Shamim Ansari v. Dr. Muhammad Qamar Khan 2004 YLR 3373; 1996 CLC 377; 1988 SCMR 890; 1986 CLC 1542; 1979 CLC 42; 1991 SCMR 1029; 1990 CLC 1708; 1994 MLD 2162; PLD 1994 Kar. 20; PLD 1996 Kar. 526; 1995 CLC 348; 1996 CLC 1283; PLD 1998 Kar. 5; 1996 CLC 949; 1994 MLD 1626; 1982 SCMR 237(2); 2001 SCMR 1140 ref.

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

‑‑‑‑Ss.15(2)(ii), 18 & 21‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Default in payment of rent of premises‑‑‑Death of original landlord‑‑‑Both Rent Controller as well as Appellate Authority had concurrently recorded findings of fact against petitioner/tenant that he knew well about the death of original landlord and also about some of his legal heirs‑‑‑Deposit of rent in the name of dead person/original landlord, in circumstances would be of no help to the tenant‑‑‑Orders of ejectment passed concurrently by Rent Controller as well as Appellate Authority against petitioner/tenant, on ground of default in payment of rent, were unexceptional.

Attaullah Khan for Petitioner.

Ghulam Mustafa Khawaja for Respondents.

Dates of hearing: 13th December, 2004 and 17th January, 2005.

P L D 2005 Karachi 423

Before Mushir Alam, J

ZAFAR‑UL‑ISLAM ‑‑‑ Plaintiff

Versus

MANAGEMENT EDUCATIONAL SOCIETY through Rector and 10 others‑‑‑Defendants

Suit No.979 of 2004 and C.M.A. No.466 of 2005, decided on 14th March, 2005.

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

‑‑‑‑S.11‑‑‑Specific Relief Act (I of 1877), Ss. 39, 42 & 54‑‑‑ Suit for declaration, injunction, cancellation of instrument etc.‑‑‑Res judicata‑‑­Contention in support of plea of res judicata was that another suit was also pending in Court of another city‑‑‑Such pendency of suit would not attract S.11, C.P.C. and bar in terms of said section would not be attracted.

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

‑‑‑‑O. VII, R.11-‑Specific Relief Act (I of 1877), Ss. 39, 42 & 54‑‑‑Suit for declaration‑‑‑Application for rejection of plaint‑‑‑Allegation that the facts had been concealed, was no ground to reject the plaint‑‑‑Plaintiff having spelled out cause of action in one of the paras. of plaint, it could not be said that suit was without cause of action and that plaintiff had no right, as plaintiff had clearly asserted his rights‑‑‑Application for rejection of plaint was dismissed, in circumstances.

Kh. Shamsul Islam, Advocate.

Raja Qureshi, Advocate.

Nadeem Azhar Siddiqui, D.A.‑G.

M.K. Badar, Advocate.

Qazi Khalid, A.A.‑G.

P L D 2005 Karachi 425

Before Syed Zawwar Hussain Jafferi, J

Syed KAZIM RAZA AFRIDI and others‑‑‑Petitioners

Versus

DISTRICT JUDGE and others‑‑‑Respondents

Constitutional Petition No. S‑456 of 2002, decided on 29th April, 2004.

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

‑‑‑‑S. 15(2)(iii)(c), (iv) & (v)‑‑‑Infringing terms of tenancy and impairing the utility of premises by tenant‑‑‑Tenant was using electricity, but was not regularly paying electricity charges and due to non‑payment of electricity charges, 'Authorities had disconnected electricity‑‑‑Tenant, in circumstances had infringed the terms of tenancy and had impaired utility of premises in question‑‑‑Rent Controller was not justified in holding that tenant was not liable to be evicted from premises, being in arrears of electricity charges‑‑‑Due to non‑payment of electricity charges, electricity of entire building was disconnected for which landlord including his family members suffered a lot‑‑‑Landlord had to approach Civil Court for restoration of electricity due to fault of tenant by which conduct, landlord and his family suffered a great hardship/inconvenience/nuisance and tenant was liable to be ejected from premises in question on such grounds.

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

‑‑‑‑S. 15(vii)‑‑‑Bona fide personal need of landlord‑‑‑Landlord in his ejectment application had specifically stated that premises in question was required by him for his son, for his personal bona fide use and in good faith as he being of grown up age was willing to run his business of General Store in the shop in question‑‑ Tenant had denied personal use of landlord for his son contending that as age of his son was about 15 years and he was studying in school he was not capable of doing any business‑‑‑Contention of tenant was misconceived because during pendency of proceedings between parties in different forums, son of landlord had become adult‑‑‑Boy having 16/17 years of age could successfully run a shop and he appeared in Court proceedings and his intelligence had been noted by the Court‑‑‑Landlord, in circumstances had fully ,proved his bona fide personal need in respect of premises in question‑‑‑Tenant was directed to hand‑over peaceful vacant physical possession of premises in question to landlord within specified period.

1992 MLD 1782; PLD 1969 SC 617; 2000 SCMR 1613; 2002 SCMR 241; 1991 SCMR 846; 2002 SCMR 680; PLD 2001 SC 31; 1976 SCMR 52; NLR 1982 AC 387; 1990 MLD 1715; 1993 MLD 39; 1988 SCMR 819; 1982 CLC 153; 1998 MLD 1049; PLD 2000 SC 67; 1975 SCMR 183; 1995 SCMR 1811; 1980 SCMR 339; 1987 CLC 404; 2003 CLC 1631; 2000 CLC 1656; FRA No.522/93; 1997 CLC 339; 1994 CLC 2422; 1982 CLC 332; 1989 CLC 599; 1999 SCMR 28; NLR (sic) Civil 556; 1989 SCMR 1366; 1989 CLC. 1883; 1998 CLC 410 and 2001 MLD 1817 ref.

Khalid Javed for Petitioners.

Nazar Akbar for Respondent No.3.

Date of hearing: 28th January, 2004.

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P L D 2005 Karachi 449

Before Sarmad Jalal Osmany and Muhammad Mujeebullah Siddiqui, JJ

YOUSUF and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeal No.30 of 2003, Confirmation Case No.1 of 2003, Criminal Acquittal Appeals Nos.86 and 87 of 2003, decided on 26th April, 2005.

(a) Precedent---

---- Criminal case---Findings and observations in a criminal case do not have the force of precedent until and unless some law is interpreted or a rule of law is enunciated; reason being that seldom the facts and circumstances in two criminal cases are identical and thus, the normal rule in criminal cases is that generally the findings and observations are confined to the criminal case in which they are given or made.

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

----S. 302/34---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Appraisal of evidence---Presence of accused was not proved at the time of occurrence and all the material witnesses had not implicated the accused for making tire-arm shots at the time of incident---Fact of firing on the part of accused having not been established, the question of any common intention with the other accused (convicted) for causing murder of the deceased would not arise--­Prosecution had .not opposed the acquittal of the accused---Trial Court, in circumstances, had rightly acquitted the accused, to which no exception could be taken---Complainant had not been able to point out any infirmity in the finding of the Trial Court so far the acquittal of the accused was concerned---High Court, upheld the finding of acquittal by the Trial Court in circumstances.

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

----S. 302---Appreciation of evidence---Qatl-i-Amd--- Sentence, reduction in---Mitigating. circumstances---Prosecution witness had established the fact causing occurrence which was although very petty initially but subsequently it flared-up on the spur of moment, resulting in the death of deceased---Principle of falsus in uno, falsus in omnibus having been discarded by the superior Courts in Pakistan, if testimony of a witness was not accepted on one point it was not necessary to discard his entire testimony on all the points---Court was required to sift grain from the chaff and to disbelieve a part of evidence which did not inspire confidence or was not trustworthy or was improbable or was not corroborated with the testimony or circumstantial evidence of any other witness and accept other part of evidence which was found creditworthy, truthful and worth-reliance---Notwithstanding the discarding of testimony of complainant on the point of causing Danda blow to him by one of the accused persons (acquitted) and firing by accused, his presence at the place of incident was unassailable---Complainant had fully implicated the accused (convicted) and likewise three prosecution witnesses had implicated the accused for firing at the deceased which proved to be fatal---Even if the testimony of other witnesses was ruled out of consideration, the testimony of said three witnesses on which the prosecution had placed reliance was sufficient to establish the guilt of the accused up to the hilt and beyond any reasonable doubt---All three witnesses had fully stood the test of cross-examination and were consistent on the point that within their sight and presence the accused fired straightway at the deceased, which landed on his forehead causing his death---Post-mortem Report fully corroborated the testimony of the eye-witnesses---Defence had not disputed the fact that death of the deceased was caused because of sustaining fire-arm injury---Wound of entry was on the forehead and the wound of exit at left occipital region of skull---Presence of accused at the place of incident, his firing at the deceased and the death being result of fire-arm shot landing on the forehead of the deceased thus were fully established with ocular testimony corroborated with Post-mortem Report---Ocular testimony corroborated with the Medical evidence was sufficient per se to establish the guilt of the accused---Mere lapse on the part of Investigating Officer on account of incompetence or inefficiency or negligence. or lack of vigilance which did not go to the root of the case and did not cause any dent in the prosecution case and had no effect of creating doubt in the prosecution case, would never have the effect of absolving an accused of the commission of an offence which was otherwise established up to the hilt by the testimony of the reliable witnesses supported with medical evidence---Accused, in circumstances, having committed Qatl-i-Amd of the deceased, his conviction under S.302, P.P.C. was maintained by the High Court---Resume of the prosecution evidence showed that quarrel started on a very petty matter---Facts indicated that the death of the deceased by the accused was not the result of premeditated intention but the incident took place by flaring up of emotions and the intention to fire at the deceased developed at the spur of the moment---Neither there was any premeditated intention to kill nor there was any motive to do so--­Circumstances preceding the commission of offence provided mitigating circumstances warranting conversion of death sentence to imprisonment for life---Trial Court had rightly observed that in the absence of evidence in respect of Tazkiya-al-Shuhood of the prosecution witnesses the requirements of S.304, P.P.C., had .not been met and therefore, punishment by way of Qisas could not be awarded---Trial Court therefore awarded punishment by way of Tazir under S.302(b), P.P.C. but had not considered the circumstances preceding immediately before the incident---High Court, in circumstances, converted the sentence of death awarded to the accused, to the imprisonment for life---Convict was further sentenced to, pay compensation of Rs.50,000 to the legal heirs of the deceased under S.544-A, Cr.P.C. and in default thereof to suffer simple imprisonment for six months more.

M.A. Qazi for Appellants/Accused (in Criminal Appeal No.30 of 2003).

Shahadat Awan and Shoukat Hussain Zubedi for Respondents (in Criminal Acquittal Appeals Nos.86 and 87 of 2003).

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

Date of hearing: 2nd February, 2005.

P L D 2005 Karachi 478

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

Dr. S.M. RAB---Appellant

Versus

NATIONAL REFINERY LTD. ---Respondent

High Court Appeals Nos.6 and 10 of 2001, decided on 18th February 2005.

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

----O. XLI, R. 27 & S. 151---Production of additional evidence---High Court, in the interest of justice and all the parties concerned allowed applications for production of additional evidence so that documents now placed on record may be taken into consideration by High Court to record just and equitable conclusion in respect of controversy involved in the appeals.

Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Limited PLD 1966 SC 684 and Zar Wali Shah v. Yousaf Ali Shah 1992 SCMR 1778 fol.

(b) Companies Ordinance (XLVII of 1984)---

----S. 32---Suit by company---Authority to sue---Plaint in the suit filed on behalf of the Company was signed by its Assistant Manager Legal and it was nowhere mentioned in the plaint that how and in what manner Assistant Manager was legally authorised on behalf of the Company without a proper Board Resolution for the purpose---Plaint was however appended with an authority from the Managing Director of the Company to file suit by the Assistant Manager Legal which again had nowhere disclosed/mentioned as to how the Managing Director of the Company could exercise power of delegation of authority on behalf of the Company, unless he was so empowered by the Articles of Association of the Company or there was some Board Resolution in his favour for the purpose with further power of delegation of powers on behalf of the Company---Non-conferring of proper authority on behalf of the Company through Board Resolution in favour of the Assistant Manager legal who had instituted the suit on behalf of the Company, in circumstances, would result in incompetence of suit and thus same was not maintainable.

Khan Iftikhar Hussain Khan of Mamdot v. Messrs Ghulam Nabi Corporation Limited, Lahore PLD 1971 SC 550 ref.

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

----S. 42---Suit for declaration, possession, mesne profits and damages---Plaintiff had claimed mesne profits at the rate of Rs.30,000 per month from the defendant-Company for their unauthorized occupation of suit plot---Such statement of the plaintiff though remained undisputed in cross-examination and further no evidence had been adduced by the defendant or the Development Authority to rebut the said position but in cross-examination of a witness on behalf of the defendant, plaintiff himself had suggested the rental value of suit plot @ Rs.10,000 per month---High Court, in view of the locality where the suit plot was situated and considering the fact that it was an open plot in an area which had not yet been fully developed considered it just, equitable and fair to award mesne profits to the plaintiff @ Rs.10,000 per month---Plaintiff was entitled for restoration of possession, and for recovery of mesne profits from the company @ Rs.10,000 per month from July 1995 (date of unauthorized possession by the Company) till delivery of vacant possession of suit plot to him.

Abul Inam and Ainuddin Khan for Appellant.

Arif Khan for Respondent No. 1.

Muzaffar Imam for Respondent No.2.

Dates of hearing: 8th October, 5th and 24th November, 2004.

P L D 2005 Karachi 501

Before Azizullah M. Memon, J

Lala MUHAMMAD AYOOB and another---Applicants

Versus

GHULAM MURTAZA and others---Respondents

R.A. No.28 of 2004, decided on 22nd July, 2004.

Sindh Local Government Elections Rules, 2000---

----Rr. 57, 58 & 71(2)---Civil Procedure Code (V of 1908), O.VII, R.11 & S.115---Election petition---Unsuccessful candidates filed election petition challenging election of returned candidates---Returned candidates filed application for rejection of memo. of election petition on ground that their names were published in official Gazette declaring them as successful in election and that under R.71(2) of Sindh Local Government Elections Rules, 2000, election petition could be filed within 30 days of publication of results/names of successful candidates in official Gazette, whereas election petition had been filed after expiry of said period of limitation---Order of Tribunal dismissing said application, had been challenged in revision---Validity---Provisions of Civil Procedure Code, 1908 though had not been specifically made applicable for the purpose of trial of election petition by Election Tribunal, but for purpose of such proceedings, as and when necessary, Election Tribunal could take benefit of Civil Procedure Code, 1908 for effectual adjudication of election petitions---Application for rejection of memo. of election petition under O.VII, R.11, C.P.C. and civil revision application under S.115, C.P.C. had been competently filed by returned candidate---Application filed by returned candidate under O.VII, R.11, C.P.C. for rejection of memo. of election petition would be deemed to be pending before Election Tribunal which was directed to re-hear parties afresh on said application and to decide same afresh according to law.

Ghulam Qadir Jatoi for Applicants.

Siddiq Mirza for Respondent No.1 (absent).

Jhamat Jethanand for Respondent No.2.

Date of hearing: 16th July, 2004.

P L D 2005 Karachi 504

Before Rahmat Hussain Jafferi, J

ALI MUHAMMAD---Applicant

Versus

GOVERNMENT OF SINDH through Secretary Revenue Department, Government of Sindh, Karachi and 6 others---Respondent

Civil Revisions Nos.25 of 2001 (Larkana) and 32 of 1993 (Hyderabad), decided on 18th January, 2005.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Allotment of plot, cancellation of---Suit for declaration, permanent injunction and cancellation of order of cancellation of allotment---Plot in question was allotted to petitioner and in pursuance of said allotment, petitioner deposited entire fees of said plot and same was mutated in name of petitioner, but subsequently said plot was cancelled from the name of petitioner without hearing him---Suit filed by petitioner against the cancellation was decreed by Trial Court, but Appellate Court set aside judgment and decree of Trial Court---Validity---Plot in dispute which was duly allotted and mutated in name of petitioner after completion of all requirements of law, was no more a Government plot, but had become a private property---Authorities could not have cancelled same and that too without hearing the allottee---Impugned judgment and decree of Appellate Court, were set aside and judgment and decree of Trial Court were maintained.

Mitho Khan v. Member, Board of Revenue PLD 1997 Kar. 299 ref.

Moohanlal K. Makhijani for Applicant.

Muhammad Bachal Tonyo, Addl. A.-G. Sindh for Respondents Nos.1 to 6.

Ali Nawaz Ghanghro for Respondent No.7.

Date of hearing: 10th January, 2005.

P L D 2005 Karachi 507

Before Rahmat Hussain Jafferi, J

GHULAM HUSSAIN and 3 others---Applicants

Versus

NADIR ALI and 5 others---Respondents

Civil Revision Application No.83 of 2003, decided on 9th March, 2005.

Civil Procedure Code (V of 1908)---

-------O. VIII, R.10 & O.IX, R.7---Specific Relief Act (I of 1877), Ss.39, 42 & 54---Suit for cancellation of documents, declaration and permanent injunction---Non-filing of written statement---Effect---Trial Court at initial stage directed defendants to file written statements, but they having failed to file same, their side was closed---Application moved by defendants under O.IX, R.7, C.P.C. was dismissed for non-prosecution, but on their request was restored and matter was heard and side of defendant was opened for filing written statements on payment of costs with the direction that written statements should be filed within a period of 15 days---Defendants who again failed to file written statements within extended time again moved adjournment application which was granted, but on adjourned date defendants and their counsel remained absent and Trial Court pronounced judgment under O. VIII, R,.10, C.P.C. which was upheld in appeal---Validity---Ownership rights of plaintiffs were involved in the case which were not only denied by defendants, but record of rights was also changed on the application of defendants and there was threat of dispossession of plaintiffs from suit property by defendants---Written statements were required for just decision of suit and Trial Court gave opportunities to file written statements, but defendants did not avail the said opportunity---Both Courts below had exercised their powers in accordance with law---In absence of any illegality or irregularity in the impugned judgment and decree, same could not be interfered with in revision by High Court.

Ghulam Sarwar Abbasi for Applicants.

Gulab Rai Jessrani for Respondents.

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

Date of hearing: 9th March, 2005.

P L D 2005 Karachi 512

Before Ghulam Rabbani and Gulzar Ahmed, JJ

ALI GUL---Petitioner

Versus

FEDERATION OF PAKISTAN through Chief Election Commissioner of Pakistan

and 8 others---Respondents

Constitutional Petitions Nos.D-578 and D-589 of 2004, decided on 22nd December, 2004.

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

----Ss. 63, 69 & 164---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Motion for Internal Recall---Issuance of notice---Respondents, who were members of Taluka Council, made a requisition to move a motion for Internal Recall against petitioner who was elected Nazim of said Taluka on allegations that he, while acting as Nazim, had exceeded his powers, misused funds and had violated provisions of Local Government Ordinance, 2001---Convener of Council issued letter/notice to petitioner informing him about moving of said motion against him and that meeting of Taluka Council was scheduled on specified date and that petitioner was required to explain his position personally before the Council---Petitioner could not appear on the specified date and Session of Taluka Council was held and Internal Recall Motion was approved by majority of Councillors and resolution was passed---One of the respondents was elected as acting Taluka Nazim to run the affairs of said Taluka for the time being---Petitioner challenged said proceedings in Constitutional petition alleging that he was not duly served as no notice was served upon him of alleged meeting; that even after Internal Recall Motion was approved by majority of members of Taluka Council, seat of Nazim had not become vacant; that election of respondent as an officiating Taluka Nazim was illegal---Validity---Evidence on record had fully proved that before meeting of Council took place to consider Internal Recall Motion, notice was duly issued to the petitioner and that he had received that notice, but petitioner, instead of appearing/participating in said meeting, preferred to file Constitutional petition on that very day---Petitioner, in circumstances was well aware of holding of the meeting of Taluka Council where No-Confidence Motion was deliberated against him---Nothing had been brought on record, to show that after approval of Internal Recall Motion, said motion was placed before all Members of Union Council of Taluka and also, that the Notification issued by Election Authority as contemplated by subsection (5) of S.63, of Sindh Local Government Ordinance, 2001 had been produced-In absence of said Notification, it could not be said that petitioner remained no more Taluka Nazim or his seat had become vacant---Election of respondent as new Nazim, in circumstances, was not legal---Election of respondent as acting Taluka Nazim was declared to be illegal and void---Authority, however would be at liberty to proceed further in the matter within the terms of subsections (4) & (5) of S.63 and other provisions of Sindh Local Government Ordinance, 2001.

Imdad Ali Awan for Petitioner.

G. D. Shahani, Addl. A.-G. for Respondents Nos. 1 to 5, 9 and 10.

S. Zaheer Hassan for Respondents Nos. 6 to 8.

Date of hearing: 22nd September, 2004.

P L D 2005 Karachi 521

Before Muhammad Afzal Soomro, J

MUSHTAQ AHMAD---Petitioner

Versus

Mrs. ISMAT FAIZ KHAN---Respondent

Constitutional Petitions Nos. 326 and 327 of 2004, decided on 26th January, 2005.

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

----Ss. 8 & 21---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Determination of fair rent---Application for---Constitutional petition---Premises in question was rented out to tenant at the rate of Rs.650 per month---Landlady filed application under S.8 of Sindh Rented Premises Ordinance, 1979 for determination of fair rent and prayed that rent be fixed at the rate of Rs. 10,000 per month---Rent Controller enhanced rent from Rs.650 to Rs.2,500---Appellate Authority despite holding that landlady could not bring tangible evidence with regard to the fact that the rent of similar premises in the adjoining locality was Rs.10,000 and that in the same building rate of rent of similar flat was Rs.550 per month, upheld judgment of Rent Controller whereby rent of premises was enhanced from Rs.650 to 2,500---Landlady had failed to bring her case within any of the ingredients of S.8 of Sindh Rented Premises Ordinance, 1979---Appellate Authority despite admitting that landlady had failed to bring on record concrete evidence in respect of rise of rent, had upheld findings of Rent Controller without assigning any reason in its judgment---Case was fit one for exercise of Constitutional jurisdiction and judgments passed by Rent Controller and Appellate Authority were not to be maintained being opposed to law and settled principles for administration of justice---Both judgments of Rent Controller and Appellate Authority were quashed in circumstances.

Haji Mohibullah and Co. and others v. Khawaja Bahauddin 1990 SCMR 1070; Messrs Olympia Shipping and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan 2001 SCMR 1103 and Muhammad Nawaz and 7 others v. Muhammad Ibrahim and 5 others 1986 CLC 1680 ref.

Muhammad Shahid Qadeer for Petitioner.

Shahab Sarki for Respondents.

P L D 2005 Karachi 528

Before Rahmat Hussain Jafferi, J

MUKHTIAR ALI and 3 others---Applicants

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Application No.S-17 of 2005, decided on 9th March, 2005.

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

----S.155(2)---Investigation conducted by unauthorized officer---Effect---If investigation in a case was conducted by an officer who was not authorised by law or permitted by Magistrate, then it would not vitiate the trial if no prejudice was caused to the accused.

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

----Ss. 155, 156 & 190---Penal Code (XLV of 1860), Ss. 166 & 220--Investigation and cognizance---Difference between "cognizable" and "non-cognizable" Offences---Investigation and cognizance were two different steps---Difference between "cognizable" and "non-cognizable" offences was that police in cognizable offence had authority to investigate case without permission of Magistrate and could arrest accused without warrant---Whereas such powers were not given to police officer in non-cognizable offence by virtue of S.155(2), Cr.P.C. and Third Column of Schedule II, attached to Criminal Procedure Code, 1898---If police officer would arrest any person in non-cognizable offence then he would expose himself for prosecution under 5.220, P.P.C. and if police officer would investigate case of non-cognizable offence without permission of the Magistrate then he would violate direction of law as provided under S. 155(2), Cr.P.C.---Said police officer would expose himself for prosecution under S. 166, P.P.C.---Any police officer who would commit such illegality and if it. was brought to the notice of the Court or Magistrate then Court or Magistrate must act and send such police officer for prosecution before competent Court of law so that it could serve an eye-opener for all the other concerned officers who might violate the direction and mandatory provision of law; it would, however, not affect the powers of Magistrate to take cognizance, because cognizance was taken under S.190(1), Cr.P.C. either on complaint which constituted an offence or on report of such facts made by any police officer or on information received from any person other than a police officer or upon suspension or information of Magistrate---Such powers had been given to Magistrate keeping in view the scheme of criminal justice system that no offence should be unchecked and no offender should go unpunished.

Abdul Samad v. The State 2000 MLD 655; Peero v. The State 1982 PCr.LJ 795; Hussain Bakhsh v. The State PLD 1963 Lah. 46; Mumtaz Begum v. The State 1968 PCr.LJ 97; Irshad Begum v. The State PLD 1961 Lah. 882; Muhammad Rashid v. The State PLD 1964 Kar. 381; Haider v. The State 1969 PCr.LJ 598; Muhammad Yaqoob v. The State 1978 PCr.LJ 812; Muhammad Aslam v. The State 1980 PCr.LJ 742; Shah -Jehan v. State PLD 1989 FSC 17; Muhammad v. The State 1989 PCr.LJ 834; Jamal Shah v. State 1989 PCr.LJ 209; The State v. Basheer PLD 1997 SC 408; The State of Uttar Pradesh v. Bhagwant Kishore AIR 1964 SC 221; M.P. State v. Veereshwar Rao, AIR 1957 SC 592; H.N. Rshbud v. The State of Delhi AIR 1955 SC 196; Muhammad Nazir v. Superintendent of Police 1992 PCr.LJ 227; Mst. Sadan v. The State PLD 1965 BJ 12 and Abdul Waheed v. Asma Jehangir PLD 2004 SC 219 ref.

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

----Ss. 169, 170 & 173---Investigation of case---When a case was investigated and after collecting evidence, police officer formed an opinion that no evidence was found against accused, then he was required to release accused under S. 169, Cr.P.C.---If he found that sufficient evidence had been collected against accused then he was required under S.170, Cr.P.C. to submit a police report to the Magistrate---In both cases either exercising his powers under S.169, or under S.170, Cr.P.C., police officer was required to submit a police report under S.173, Cr.P.C. before Magistrate for taking cognizance or passing order under S.173(3), Cr.P.C.

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

----S. 190---Cognizance of offences by Magistrate---Report made by police officer---Word "report" under S.190(b), Cr.P.C. had been given very wide meaning which indicated that such "report" could be forwarded by any police officer to the Magistrate and not necessarily by officer incharge of Police Station only--Very wide powers had been entrusted to the Magistrate to take cognizance on any report made by police officer subject to the condition that report should be in writing containing facts which constituted offence, so that no offence should go unchecked---Magistrate could take cognizance on any report in writing, but said report should constitute the facts of offence and should also be made by any police officer---Magistrate, in the present case had rightly taken cognizance of the matter and proceedings before Trial Court were not vitiated.

Ahmed Ali Shaikh for Applicants.

Muhammad Bachal Tonyo for the State.

Date of hearing: 9th March, 2005.

P L D 2005 Karachi 538

Before Muhammad Mujeebullah Siddiqui and Maqbool Baqar, JJ

ARBAB AKBAR ADIL---Petitioner

Versus

GOVERNMENT OF SINDH through Home Secretary, Government of Sindh, Karachi---Respondent

Constitutional Petition No.D-705 of 2005, decided on 24th June, 2005.

(a) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Preventive detention order---Requisites---Court must be satisfied that the material before the Detaining Authority was such that a reasonable person would be satisfied as to the necessity for making the order of preventive detention---Such satisfaction should be established with regard to each of the grounds of detention and if one of the grounds is shown to be bad, non-existent or irrelevant the whole order of detention would be rendered invalid---Initial burden lies on the Detaining Authority to show the legality of the preventive detention---Detaining Authority must place the whole material upon which the detention order is based, before the Court notwithstanding its claim of privilege with respect to any document, the validity of.which claim shall be within the competence of the Court to decide---Order of detention must be made by the Authority prescribed in the law relating to preventive detention---Each of the requirements of the law relating to preventive detention should be strictly complied with---Satisfaction must in fact exist with regard to the necessity of preventive detention of the detenu---Grounds of detention should have been furnished within the period prescribed by law, and if no such period is prescribed then as soon as may be---Grounds of detention should not be vague and indefinite and should be comprehensive enough to enable the detenu to make representation against his detention to the Authority prescribed by law---Grounds of detention should be within the scope of the law relating to preventive detention, i.e., the same should not be irrelevant to the aim and object of the law and the detention should not be for extraneous considerations or for purposes which may be attacked on the ground of malice.

Liaqat Ali v. Government of Sindh through Secretary, Home Department and another PLD 1973 Kar. 78 ref.

(b) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Preventive detention order must contain necessary particulars and details---Entire details although need not be necessarily given in the grounds contained in the detention order, yet the necessary particulars and details are required to be given therein in order to enable the detenu to make the representation to the competent Authority while challenging the detention order---Detention order taking away the liberty of a citizen is not sustainable on subjective considerations---Objectivity should exist in the detention order which can be demonstrated by giving necessary details and particulars therein.

Liaqat Ali v. Government of Sindh through Secretary, Home Department and another PLD 1973 Kar. 78 and Muhammad Abdullah v. District Magistrate West Karachi 1988 PCr.LJ 1087 ref.

(c) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

S. 3(1)---Detention order---Application of mind essential---Word "satisfied" used in S.3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960, indicates that the Authority issuing the detention order should apply his mind to the facts forming basis of the same---Until and unless there is something tangible in the detention order the Authority issuing it cannot be said to have applied his mind objectively and his opinion based on reasons.

(d) Interpretation of statutes-

----Entire scheme of law is to be read together and no provision of law is to be read in isolation.

(e) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3(1) & (6)---Joint reading of provisions of S.3(1) & (6), West Pakistan Maintenance of Public Order Ordinance, 1960---Effect---Reading of the provisions of subsections (1) & (6) of S.3 of the said Ordinance together reveals that the grounds on which the detention order is made must precede the satisfaction of the competent Authority---Existence of necessary material before the competent Authority for such purpose is sine qua non.

(f) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)-

-----S. 3(6)-Constitution of Pakistan (1973), Art.10(4), (5) & (6)---Entitlement of the detenu to receive the grounds of detention order---Person detained is entitled to receive the grounds on which the detention order has been based, until and unless the Authority making such order refuses to disclose the facts on the ground of being against the public interest---In the ordinary course, Authority making the detention order is also required to furnish all the particulars and the relevant documents to the Review Board, unless a certificate signed by the Secretary to the Government concerned to the effect that it is not in the public interest to furnish a document, is produced---Thus, in the ordinary course there should be certain documents available with the Authority issuing detention order on the basis whereof he is satisfied on the grounds disclosed in the detention order that detention of a person is necessary in order to prevent him from acting in a manner prejudicial to public safety or for the maintenance of public order.

(g) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Constitution of Pakistan (1973), Arts.199 & 10(4), (5) & (6)---Constitutional petition---Preventive detention order---Validity---Copy of the detention order had not been supplied to the detenu as required under S.3(6) of the Ordinance---Recommendation of the Provincial Police Officer for issuance of detention order was received in the office of the Home Secretary on 13-6-2005 whereas the detention order had already been issued on 4-6-2005---Grounds of detention contained in the detention order were generalized, vague and indefinite which did not conform to the requirements of law and on the basis of the said grounds the detenu could not possibly make any representation to the Competent Authority against the detention order---Provincial Home Secretary had not applied his mind to the facts of the case and had acted in a mechanical manner, probably under the directives of some Administrative Authority whose name was not available on record---Detention order was violative of the safeguards and requirements provided in the West Pakistan Maintenance of Public Order Ordinance, 1960, and impinged upon the fundamental rights of the citizens enshrined in the Constitution of Pakistan---Pendency of cases against the detenu in which he could be convicted and punished by the Trial Court would not constitute sufficient basis for issuance of a detention order against him---If out of several grounds even a single ground was not sustainable in facts and law, the entire detention order would be invalid---Allegation that the detenu was a dangerous, hazardous and notorious person was not supported by any material---Detenu was a senior practising lawyer aged 70 years and this ground alone was sufficient to strike down the entire detention order---Impugned detention order was consequently held to be illegal, void and invalid and the same was struck down accordingly.

Liaqat Ali v. Government of Sindh through Secretary, Home Department and another PLD 1973 Kar. 78 and Muhammad Abdullah v. District Magistrate West Karachi 1988 PCr.LJ 1087 ref.

(h) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Pendency of criminal cases no ground for issuance of detention order---Where a person is facing trial in a criminal case and can be punished by the Court, pendency of such a case shall not form a sufficient basis for issuance of a detention order against him.

(i) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Entire detention order is liable to be quashed on failure of a single ground out of several grounds---If out of several grounds even a single ground is not sustainable in facts and law, the entire detention order would be held to be invalid and not sustainable in law.

Shahadat Awan for Petitioner.

Ahmed Pirzada, A.A.-G. along with Muhammad Khajid Khan, Section Officer, Home Department, Abdul Ghafoor, PDSP and Inspector Muhammad Khalid SDI Investigation Mithi for Respondent.

Date of hearing: 24th June, 2005.

P L D 2005 Karachi 554

Before Anwar Zaheer Jamali, J

Messrs SHAMIM AKHTAR---Petitioner

Versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN, KARACHI and 2 others---Respondents

Constitutional Petition No.280 of 2003, decided on 25th June, 2005.

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

----S. 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Jurisdiction of High Court under Art. 199 of the Constitution was extraordinary in nature which was aimed at proper dispensation of justice and to avoid abuse of process of law---Such jurisdiction normally was not to be exercised by High Court to interfere with the discretionary orders of subordinate Courts, where jurisdiction had been conferred upon them by some special statutes---Jurisdiction of High Court under Art.199, could not be invoked to circumvent the provisions of Sindh Rented Premises Ordinance, 1979 so as to serve the purpose of second appeal, which had been specifically done away with by Legislature while promulgating Sindh Rented Premises Ordinance, 1979, unless findings recorded by the Tribunal were found to be based on patent misreading of evidence or same were arbitrary, capricious, perverse and had resulted in gross miscarriage of justice.

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

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

----S. 8---Fair rent---Determination of---Enhancement of rent---Premises in question were let out to tenant in year 1959-60 at the rate of Rs.100 P.M. when cost of construction and cost of land, even in the heart of the city was nominal in comparison to prevalent cost of land and cost of construction---Rent Controller while fixing rent of the premises at the rate of Rs.12 per sq. feet had taken into consideration not only cost of construction and cost of land, but also other documentary evidence placed on record by landlord seeking enhancement of rent to show that in the same locality other properties had been let out by landlords even at the rate of Rs.45 per sq. feet---Fixation of rent at the rate of Rs. 12 per sq. feet in circumstances by Rent Controller and affirmed by Appellate Authority below, could not be said to be arbitrary or based on misreading of evidence---Cumulative effect of all four factors enumerated in S.8(1) of Sindh Rented Premises Ordinance, 1979, were to be taken into consideration by Rent Controller for fixation of fair rent---Mere fact that property tax paid by landlord in respect of building, being less than the rate of rent fixed by Rent Controller, could not be made basis to hold that findings were not based on proper appreciation of evidence/case record.

Messrs Olympiya Spinning and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan 2001 SCMR 1103 ref.

Muhammad Sadiq for Petitioner.

Siddique Mirza for Respondent No.7.

Date of hearing: 23rd May, 2005.

P L D 2005 Karachi 560

Before Muhammad Mujeebullah Siddiqui, J

THE STATE through Pakistan Coast Guard, Karachi and others---Appellants

Versus

SHERIN KHAN and others---Respondents

Special Criminal Acquittal Appeals Nos.4, 29 of 1991, 4 of 1993, 1, 3, 8, 9, 10 of 2002, 3, 6, 9, 10 of 2003, 2, 5, 7, 10, Nil, Nil and 12 of 2004, decided on 20th June 2005.

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

-----S. 185-F--Central Law Officers Ordinance (VII of 1970), S.4 ---Appeal to Special Appellate Court---Competency---Persons competent to file appeal---Appeal under 5.185-F of the Customs Act, 1969, or a revision before Special Appellate Court can be filed by the Federal Government only through the following persons; (i) Attorney General for Pakistan and the Law Officers specified in S.4-A of the Central Law Officers Ordinance, 1970, namely an Additional Attorney General, Deputy Attorney General and Standing Counsel; (ii) Advocates appointed by the Federal Government prior to the establishment of Revenue Division and the amendments inserted in the rule of business---Such Advocates could be appointed by the Law and Justice Division and after the amendment inserted initially in the year 1994 and subsequently in the year 1998, such appointments can be made through Revenue Division; and (iii) Advocate authorized by the Board or by an Officer subordinate to it as instructed by the Board with effect from 16-6-2002---Except the aforesaid Law Officers and Advocates, no other person is competent to file an appeal or revision in a criminal case on behalf of the Federal Government under the Customs Act, 1969---Director-General, Directors, Collectors and any other Officer subordinate to them cannot file any appeal or revision directly in criminal cases, but they can get the appeals filed through the Legal Advisors or a Counsel as instructed by the Board.

The State v. Abdul Qayyum PLD 1980 Kar. 465; The State v. M. Ashraf 1986 PCr.LJ 137;Christopher Rollins Kelly v. The State 1997 PCr.LJ 51; The State v. Bashir Ahmed Choudhry PLD 2000 Kar. 198; Liaqat Ali and 11 others v. The State 1992 SCMR 372; State through Advocate-General, Sindh v. Hanif Ahmad and others 1994 SCMR 749; Director Intelligence and Investigation (Customs and Excise) v. Ahmed Fazil 2005 MLD 241 and The State through Public Prosecutor v. Shoukat Ali 1998 PCr.LJ 1503 ref.

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

----S. 185-F---Appeal against acquittal---Maintainability---Appeal against acquittal of accused had been filed through the Standing Counsel for the Federal Government whose memo. of appearance stating that he was authorized to file appeal was available on the record---Appeal, thus, was maintainable having been filed through the person competent in law to file the same.

The State v. Abdul Qayyum PLD 1980 Kar. 465; The State v. M. Ashraf 1986 PCr.LJ 137;Christopher Rollins Kelly v. The State 1997 PCr.LJ 51; The State v. Bashir Ahmed Choudhry PLD 2000 Kar. 198; Liaqat Ali and 11 others v. The State 1992 SCMR 372; State through Advocate-General, Sindh v. Hanif Ahmad and others 1994 SCMR 749; Director Intelligence and Investigation (Customs and Excise) v. Ahmed Fazil 2005 MLD 241 and The State through Public Prosecutor v. Shoukat Ali 1998 PCr.LJ 1503 ref.

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

----S. 185-F---Central Law Officers Ordinance (VII of 1970), S.4-A---Appeals against acquittal---Competency---Neither any Law Officer specified in the Law Officers Ordinance, 1970, had signed the memo. of appeal nor any authorization was available on record in favour of the Advocate on behalf of the Federal Government---Said Advocate according to his memo. of appearance was merely authorized to assist the Deputy Attorney-General which did not empower him to file appeal on behalf of the Federal Government---Officers of the Customs Department were not competent to file the appeal-Appeal would not be considered to have been filed on behalf of the Federal Government in the absence of any authorization by the Revenue Division---Advocate appearing for the appellant was not authorized by the Board or by an officer subordinate to it to file the appeal under the instructions of Central Board of Revenue---Advocate engaged by the Assistant Collector, Customs, was not competent to file the appeal---Appeal filed by the Assistant Director, Intelligence and Investigation, Customs, was not competent---Appeal against acquittal recorded by the Special Judge, Customs, was not competent under S.417, Cr.P.C.---Advocate engaged by the Deputy Director of Customs (Appraisement) was not competent to file the appeal---Advocate appointed by the Deputy Collector, Customs (Legal Division), also was incompetent to file the appeal---Except Federal Government no other agency or official was empowered to file appeal under S.185-F of the Customs Act, 1969, which could only be filed through the authorized Law Officers and Advocates---All the appeals being incompetent for the aforesaid different reasons, were dismissed accordingly.

\

The State v. Abdul Qayyum PLD 1980 Kar. 465; The State v. M. Ashraf 1986 PCr.LJ 137;Christopher Rollins Kelly v. The State 1997 PCr.LJ 51; The State v. Bashir Ahmed Choudhry PLD 2000 Kar. 198; Liaqat Ali and 11 others v. The State 1992 SCMR 372; State through Advocate-General, Sindh v. Hanif Ahmad and others 1994 SCMR 749; Director Intelligence and Investigation (Customs and Excise) v. Ahmed Fazil 2005 MLD 241 and The State through Public Prosecutor v. Shoukat Ali 1998 PCr.LJ 1503 ref.

Fariduddin for Appellants. (in Special Criminal Acquittal Appeal 29 of 1991).

Sami Ahmed Sami and M. Baig for Respondents (in Special Criminal Acquittal Appeal 29 of 1991).

Fariduddin for Appellants (in Special Criminal Acquittal Appeal 4 of 1993).

Sami Ahmed Sami and M. Baig for Respondents (in Special Criminal Acquittal Appeal 4 of 1993).

Fariduddin for Appellant (in Special Criminal Acquittal Appeal 1 of 2002).

Sami Ahmed Sami and M. Baig for Respondents (in Special Criminal Acquittal Appeal 1 of 2002).

Arif Motan for Appellant (called absent) (in Special Criminal Acquittal Appeals Nos.3 of 2002).

Nemo for Respondents (in Special Criminal Acquittal Appeals No. 3 of 2002).

Fariduddin for Appellant (in Special Criminal Acquittal Appeal 8 of 2002).

Nemo for Respsondent (in Special Criminal Acquittal Appeal No. 8 of 2002).

Fariduddin for Appellant (in Special Criminal Acquittal Appeal 9 of 2002).

S.M. Amir Naqvi for Respondents (in Special Criminal Acquittal Appeal No.9 of 2002)

Fariduddin for Appellant (in Special Criminal Acquittal Appeal 10 of 2002).

Nemo for Respondent (in Special Criminal Acquittal Appeal No. 10 of 2002).

Shakil Ahmed for Appellant (in Special Criminal Acquittal Appeal No.3 of 2003).

Nemo for Respondents (in Special Criminal Acquittal Appeal No.3 of 2003).

Fariduddin for Appellant (in Special Criminal Acquittal Appeal 6 of 2003).

Nemo for Respondents (in Special Criminal Acquittal Appeal No.6 of 2003).

Fariduddin for Appellant (in Special Criminal Acquittal Appeal 9 of 2003).

Nemo for Respondents (in Special Criminal Acquittal Appeal No.9 of 2003).

Arif Motan for Appellant (called absent) (in Special Criminal Acquittal Appeals Nos.10 of 2003).

Nemo for Respondents (in Special Criminal Acquittal Appeal No.10 of 2003).

Fariduddin for Appellant (in Special Criminal Acquittal Appeal 2 of 2004).

Nemo for Respondents (in Special Criminal Acquittal Appeal No.2 of 2004).

Raja M. Iqbal for Appellant (in Special Criminal Acquittal Appeals No 5 of 2004).

Nemo for Respondent (in Special Criminal Acquittal Appeal No.5 of 2004).

Fariduddin for Appellant (in Special Criminal Acquittal Appeal 7 oP 2004).

Nemo for Respondent (in Special Criminal Acquittal Appeal No.7 of 2004).

Nadeem Qureshi for Appellant (in Special Criminal Acquittal Appeals No.10 of 2004).

Nemo for Respondent (in Special Criminal Acquittal Appeal No.10 of 2004).

Nadeem Qureshi for Appellant (in Special Criminal Acquittal Appeals No.Nil of 2004).

Nemo for Respondent (in Special Criminal Acquittal Appeal No.Nil of 2004).

Nadeem Qureshi for Appellant (in Special Criminal Acquittal Appeals No.Nil of 2004).

Nemo for Respondent (in Special Criminal Acquittal Appeal No.Nil of 2004).

Raja M. Igbal for Appellant (in Special Criminal Acquittal Appeal No. 12 of 2004).

Nemo for Respondent (in Special Criminal Acquittal Appeal No.12 of 2004).

Date of hearing: 14th March, 2005.

JUDGEMENT

In all the above acquittal appeals at the instance of State, under section 185-F of the Customs Act, 1969, a common objection has been raised to the maintainability of the appeals for the reason that the appeals have not been filed by the person competent in law to file the appeals.

1. Before I proceed to consider the contention, it would be appropriate to reproduce the relevant provisions contained in sections 185-F and 185-G of Customs Act, 1969, which read as follows:--

185-F. Appeal to Special Appellate Court.---(1) Any person, including the Federal Government, aggrieved by any order passed or decision made by a Special Judge under this Act or under the Code of Criminal Procedure, 1898 (Act V of 1898), may subject to the provisions of Chapters XXXI and XXXII of the Code, within sixty days from the date of the order or decision, prefer an appeal or revision to the Special Appellate Court, and in hearing and disposing of such appeal or revision, such Court shall exercise all the powers of a High Court under the said Code.

(2) Except as otherwise provided in subsection (1), the provisions of the Limitation Act, 1908 (IX of 1908), shall apply to an appeal or a revision preferred under subsection (1).

185-G. Persons who may conduct prosecution, etc.---(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), a Special Prosecutor appointed under section 48 of the Prevention of Smuggling Ordinance, 1977, shall be competent to conduct prosecution before a Special Judge for and on behalf of the Federal Government and to withdraw prosecution when so required by the Federal Government.

(2) A Law Officer appointed under the Central Law Officers Ordinance, 1970 (VII of 1970), shall or an Advocate authorized by the Board or an officer subordinate to it be competent to conduct proceedings before a Special Appellate Court on behalf of the Federal Government and to withdraw such proceedings when so required by the Federal Government," (The word "or an Advocate authorized by the Board or an officer subordinate to it," were inserted by the Finance Ordinance, 2002, with effect from 15-6-2002).

1. The question as to who is competent in law to file acquittal appeal on behalf of State under sections 185-F and I85-G of the Customs Act, carne for consideration for the first time before a learned Single Judge of this Court, in the case of State v. Abdul Qayyum PLD 1980 Karachi 465. In this case the acquittal appeal w as filed by the Provincial Government, Zaffar Hussain Mirza. J. (as his Lordship then was) held as follows:--

"Under section 185-F it is Federal Go' ermmnt which has been given the right to appeal against any order passed or decision made by the Special Judge and under section 185-G(2) a Law Officer appointed under Central Law Officers Ordinance, 1970, shall be the competent person to conduct proceedings before a Special Appellate Court on behalf c the Federal Government and to withdraw such proceedings when so required by the Federal Government."

1. A similar question came for consideration before a learned Single Judge of the Lahore High Court in the case of State v. M. Ashraf, 1986 PCr.LJ 137. In this case also a preliminary objection was raised to the effect that there was no proper appeal, as the appeal was presented by an Advocate on behalf of Federal Government. The precise objection was that the learned Advocate was not authorized to prefer appeal as this could be done by a Law Officer appointed by the Central Law Officers Ordinance, 1970 and the learned Advocate was not such a Law Officer.

2. Saad Saood Jan. J. (as his Lordship then was) examined the relevant provisions of law. A letter received by the learned Advocate who preferred appeal from the Central Board of Revenue, directing him to file an appeal was produced. The letter contained the opinion as well as decision of the Law Division of the Federal Government, as follows:--

"We agree with the view of the C.B.R. that the judgment of the Special Judge should be impugned before the Appellate Tribunal Mr. Muhammad Nawaz Abbasi, Advocate, 9-The Mall, Rawalpindi is not on our Panel but he is a Special Prosecutor for customs cases and is nominated for filing the appeal."

It was observed by the learned Single Judge, as follows:--

"Under the rules of business of the Federal Government, the Law Division looks after legal proceedings and litigation concerning the Federal Government. The Law Division was, therefore, competent to nominate Mr. M. Nawaz Abbasi, to file an appeal on behalf of the Federal Government. It is also to be noticed that unlike the Pakistan Criminal Law Amendment Act, 1958, section 185-F does not specify the person through whom alone the Federal Government can exercise its right of Appeal. Thus it can nominate any member of the Bar for this purpose."

1. With reference to subsection (2) of section 185-G, as it stood at that time, it was contended that only a Law Officer mentioned therein would present an appeal on behalf of the Federal Government. The contention was not accepted and it was held that subsection merely enables the Law Officer appointed under the Central Law Officers Ordinance, to conduct proceedings before the Special Appellate Court, by virtue of his office but it does not create any exclusive right in this regard in his favour. It was further held that there was nothing to preclude the Federal Government from appointing counsel other than Law Officer for conducting proceedings on its behalf before the said Court.

2. Again this question came for consideration before a learned Single Judge of this Court, in the case of Christopher Rollins Kelly v. The State 1997 PCr.L.J 51. In this case objection was raised to the maintainability of revision filed by the Federal Government through the Collector of Customs, for enhancement of the sentence. It was contended that by virtue of amendment inserted by Act (XVII) of 1985, in Central Law Officers Ordinance (VII) of 1970, the revision filed through an Advocate on approved panel of Central Board of Revenue was not legally maintainable. Mr. Deedar Hussain Shah, J. (as his Lordship then was) referred to the provisions contained in section 4-A, inserted by Central Law Officers Act, 1985 in the Central Law Officers Ordinance, 1970, which reads as follows:--

"4-A. Central Law Officers to be deemed to be public prosecutors etc --Notwithstanding anything contained in any other law for the time being in force, all Additional Attorneys-General, Deputy Attorney-General and Standing Counsel shall be deemed to be public prosecutors and shall be competent to institute, file and conduct any proceedings, including, appeal and revision, for and on behalf of the Federal Government before any Court or Tribunal, including a Special Court constituted under any law."

The Notification issued by the Central. Board of Revenue, Government of Pakistan, which contained name of Mr. Fariduddin, Advocate, as an Advocate on the Panel of Central Board of Revenue, was also examined. It was held as follows:

"The revision filed by the Federal Government is not signed by the Collector of Customs himself but someone else whose name and designation is not ascertainable. Furthermore Central Law Officers (Amendment) Ordinance, 1985 authorizes only Additional Attorney-General and Deputy Attorney-General and Standing Counsel to file appeal and revision for and on behalf of the Federal Government before any Court or Tribunal including Special Courts or such, the Notification appointing Mr. Fariduddin, to file any revision as an Advocate on Panel on behalf of the Federal Government does not legally entitle him to do so. Under these circumstances, I am of the firm opinion that this revision is not maintainable."

1. Similar question was again agitated before a Single Bench of this Court in the case of State v. Bashir Ahmed Choudhry PLD 2000 Karachi 198. It was reiterated that in view of the provisions contained in section 4-A of the Central Law Officers At of 1970, the Additional Attorneys-General, Deputy Attorneys-General and Standing Counsel shall be deemed to be Public Prosecutors and shall be competent to institute, file and conduct any proceedings, including appeal and revision for and on behalf of the Federal Government before any Court or Tribunal including a Special Court constituted under any law. It was submitted that the acquittal appeals were not filed by the Law Officers specified above, therefore, the appeals were incompetently filed and were not maintainable. Reliance in support of the contention was placed on the following judgments:

(1) Liaqat Ali and 11 others v. The State (1992 SCMR 372);

(2) The State through Public Prosecutor v. Shoukat Ali (1998 P Cr. L J. 1503);

(3) Chirstopher Rollins Kelly and 2 others v. State (1997 P. Cr. L.J 51); and

(4) State through Advocate-General, Sindh v. Hanif Ahmad and others (1994 SCMR 749).

1. On behalf of the State it was contended that under section 185-F(1) of the Customs Act, 1969, any person, including the , Federal Government, aggrieved by a'iy order passed or decision made by Special Judge under this Act or under Code of Criminal Procedure, 1898, may, subject to the provisions of Chapters XXXI and XXXII of the Code, prefer an appeal or revision to the Special Appellate Court. By virture of this provision the acquittal appeals were competently filed. After referring the judgments cited above, Syed Deedar Hussain Shah, C.J (as his Lordship then was) and by reference to the provisions contained in section 4-A of the Central Law Officers Act, 1970, as well as section 185-F(I) of the Customs Act, 1969, the contention that any person can file acquittal appeal before the High Court was repelled. It was held that the acquittal appeals were not competent as they were not filed by authorized Law Officers of the Federal Government. The appeals were dismissed accordingly.

2. This judgment was followed by a learned Singh Judge of the Lahore High Court in the case of Director Intelligence and Investigation (Customs and Excise) v. Ahmed Fazil, 2005 MLD 241. The acquittal appeal was filed by Director Intelligence which was dismissed as not maintainable.

3. Before coming to the contentions raised on behalf of learned Advocates for the State in this case, I would like to examine the judgments which have been referred in the case of State v. Bashir Ahmed Choudhry (supra)

4. In the case of Liaquat Ali v. The State 1992 SCMR 372, a question about the maintainability of acquittal appeal under section 13 Special Courts for Speedy Trials Ordinance, 1991 was raised with reference to the provisions contained in section 13(5) thereof, which reads as follows:---

"(5) The Attorney-General or Advocate-General may, or on being directed by the Government, shall present to the Supreme Appellate Court an appeal against the order of acquittal or a sentence passed by a Special Court within thirty days of such order "

1. The appeal was filed by the Deputy Attorney-General and objection to the competence of appeal was raised that it could be filed by the Attorney-General or Advocate-General or at the direction of the Government as contemplated under subsection (5) above. The Hon'ble Supreme Court observed that with the insertion of section 4-A, in the Central Law Officers Ordinance, 1970 by the Central Law Officers (Amendment) Act 1985, an acquittal appeal filed by Additional Attorney-General, Deputy Attorney-General or Standing Counsel, are competent in law when both the provisions are read together.

2. In the case of State v. Shoukat Ali, 1998 PCr.LJ 1503 (Kar), an objection was raised to the maintainability of an acquittal appeal on the ground that the appeal was not filed by Public Prosecutor or by the Standing Counsel for the Federal Government or by a person notified to be a Public Prosecutor within the meaning of section 492 Cr. P.C. The provision contained in subsection (2) of section 10 of Pakistan Criminal Law Amendment Act, 1958, was referred which reads as follows:

"Notwithstanding the provisions of section 417 of the Code of Criminal Procedure, 1898 in a case tried by a Special Judge appointed by Central Government under section" 3 in which such Special Judge has passed an order of acquittal the Central Government may direct the Public Prosecutor to present an appeal to such Court as aforesaid."

1. The provision contained in section 4-A of the Central Law Officers Ordinance, 1970 was also considered. It was observed that by virtue of insertion of section 4-A in the Central Law Officers Ordinance, 1979, Additional Attorneys-General, Deputy Attorneys-General and Standing Counsel were notified to be Public Prosecutors and were authorised to institute, file and conduct any proceedings including appeal/revision for and on behalf of Federal Government before any Court or Tribunal including a Special Court constituted under any law. It was conceded by the Standing Counsel that the appeal was not filed by any of the Law Officers notified in section 4-A of the Central Law Officers Ordinance, 1970. The memo. of appeal was signed by someone and was filed by State through Public Prosecutor F.I.A. Zone Karachi. It was not known as to who was the officer signing the memo. of appeal. It was held that since the appeal was not signed and filed by any of the law officers authorized under the law therefore the appeal was not maintainable.

2. In the case of State v. Hanif Ahmed, the acquittal appeal was filed by Assistant Advocate-General and it was held that the Assistant Advocate-General was not competent in law to file an appeal and therefore the appeal was not maintainable.

3. Now I proceed to consider the contentions raised by the learned Advocates for the State. Mr. Raja Muhammad Iqbal, has contended that under section 185-F of the Customs Act, any person aggrieved including the Federal Government may file an appeal and any person includes Collector of Customs. This contention has already been repelled in the case of Bashir Ahmed Choudhry (supra) with which I agree.

4. He has next contended that the litigation on behalf of Government is controlled under the Rules of Business, 1973 framed by the Federal Government. He has submitted that under Rule 3(1), the Federal Secretariat shall comprise the Ministries and Divisions shown in Schedule-1, while under Rule 3(3), the Government business is distributed among the Divisions in the manner indicated in Schedule-II. He has pointed out that the Ministry of Finance and Revenue consists of Finance Division and Revenue Division. Under Schedule-II, the business distributed to Ministry of Law and Justice, inter alia, included "Legal proceedings and litigation concerning the Federal Government" With effect from May 24, 1994 the words, "except the litigation concerning Revenue Division" were added. Subsequently the Revenue Division was substituted by Finance Division. Again, the `Finance Division' was substituted by "Revenue Division" with effect from December 1, 1998.

5. It was provided in rule 14(1)(e) that, the law and Justice Division shall be consulted before instituting criminal or civil proceeding in a Court of law in which the Government is involved.

6. In the light of law as it stood in the year 1984, Customs General Order No.1 of 1984, dated 22nd January, 1984 was issued which reads as follows:

"CUSTOM GENERAL ORDER NO.1 OF 1984, DATED 22ND JANUARY, 1984.

SUB: FILING OF APPEAL AGAINST THE ORDERS OF SPECIAL JUDGE (CUSTOMS) PASSED UNDER THE CUSTOMS ACT, 1969.

According to clause 14(1)(e) of the Rules of Business, Law Division is to be consulted before instituting criminal or civil proceedings in all Courts of law in which the Government is involved. However, cases involving prosecution of accused persons before the Special Judge (Customs) under the provisions of the Customs Act, 1969 are not referred to Law Division. Instead a challan is submitted against the arrested persons in the said Court.

(2) A question arised whether an appeal against the orders of Special Judge (Customs) could be filed by the Department without consulting the Law Division or otherwise. Accordingly a reference was made to Law Division, who has advised as under:--

According to the requirements of the Rules of Business and Secretariat Instructions it is the ultimate responsibility of the Law Division to decide to file or defend a case in the Court of law. Accordingly, in the normal course each and every case, before it is defended or filed in the Court of law, the Law Division has to be consulted. But, however, in the cases in which adequate punishment has been awarded to the accused persons by the Court of the Special Judge and the Department is satisfied with the punishment, the Law Division would not insist for reference to examine the filing of appeal for enhancement of the sentence but in the cases in which the Court has acquitted the accused persons, the Law Division will have to be consulted to decide whether an appeal against the acquittal order would lie in such a case'.

(3) The above advice of the Law Division is circulated for strict compliance in future."

1. The Revenue Division was initially created in the year 1994. Subsequently it was abolished and again created under Notification No.4-14/98. Min-I, the Gazette of Pakistan Extraordinary, Part. III, dated December 1, 1998. Serial No.27-A was assigned to the Revenue Division. Entry No.5, reads as follows:--

"5. Legal proceedings and litigation.

The prosecution and defence of legal proceedings concerning the Revenue Division shall be subject to the following conditions, namely:

(i) in a case in which Central Board of Revenue or the Revenue Division is a party, the counsel to conduct the case shall be appointed out of the panel of Advocates approved by the Law, Justice and Human Rights Division;

(ii) in a case where the counsel is to be appointed from outside the approved panel, such appointment should be made with the prior approval of the Law, Justice and Human Rights Division;

(iii) in a case where a fee to be paid to an Advocate is one million rupees or more, the fee shall be fixed in consultation with the Law, Justice and Human Rights Division; and

(iv) the panel of Advocates referred to in clause (I) shall be reviewed every year in consultation with the Law, Justice and Human Rights Division."

1. A letter has been produced written by Ministry of Law, Justice and Parliamentary Affairs Division, dated 30th June, 1994, which states that under the Notification of Cabinet Division dated 19-5-1994, the Law and Justice Division, has ceased to be responsible in respect of litigation Concerning Revenue Division, and the legal proceedings and litigation concerning the Revenue Division relating to C.B.R., Income Tax, Sales Tax and Custom Duties etc., shall be conducted by counsel appointed by that Division.

2. Mr. Raja M. Iqbal has produced another letter issued by C.B.R. bearing C. No.1(7)Cus.Jud/2002 dated 7-6-2002, which inter alia contains:

(i) The Director Generals, Directors and Collectors (hereinafter called the Head of Organization) are competent to decide whether or not are appeal should be filed against the adverse orders of Courts, Tribunals and Adjudication Authorities.

(ii) The Head of Organization will engage counsel for filing appeals from the panel of Revenue Division approved by Ministry of Law, Justice and Human Rights.

(iii) The Head of Organization shall be personally responsible for filing appeals in Appellate Tribunals, High Courts and the Supreme Court of Pakistan.

(xiii) In all cases where the field organization and C.B.R. are also respondents, the responsibility of filing appeal shall rest with field organization. In a case where C.B.R. is the sole respondent, the concerned Secretary (Judicial) in consultation with Legal Advisor or Head of field organization, if required, will prepare appeal and get approval of the competent Authority whereafter the same will be filed in the Court through a Legal Advisor or a Counsel as instructed by The Board.

1. After resume of the entire statute law, case-law and the administrative instructions issued from time to time, as well as various contentions raised by the learned Advocates for the parties, the legal position emerges as follows:--

(a) By virtue of the decision in the case of State v. Abdul Qayoom (Supra) and Bashir Ahmed Choudhry (Supra), the Federal Government has been given the right to file appeal against any order passed or decision made by the Special Judge.

(b) It has been laid down in the case of State v. A. Qayoom (supra) that a Law Officer appointed under Central Law Officers Ordinance, , 1970, shall be competent person to conduct proceedings before a Special Appellate Court on behalf of the Federal Government and to withdraw such proceedings when so required by the Federal Government.

(c) It has been held in the case of State v. M. Ashraf (supra) that, under the Rules of Business of the Federal Government, the Law Division looks after legal proceedings and litigations concerning the Federal Government. The Law Division was competent to nominate an Advocate for filing appeal on behalf of the Federal Government. Unlike, the Pakistan Criminal Law Amendment Act, 1958, section 185-F Customs Act, does not specify the person through whom alone the Federal Government can exercise its right of appeal. Thus it can nominate any member of the Bar for this purpose.

(d) It is further held in the above case that subsection (2) of section 185-G Customs Act, merely enables the Law Officer appointed under the Central Law Officers Ordinance, to conduct proceedings before the Special Appellate Court, by virtue of his office but it does not create any exclusive right in this regard in his favour. There was nothing to preclude the Federal Government from appointing counsel other than Law Officer for conducting proceedings on its behalf before the Special Appellate Court.

(e) In the case of Christopher Rollins Kelly v. The State, 1997 PCr.L.J 51, a revision was filed by the Federal Government through the Collector of Customs for enhancement of sentence. The memo. was signed by some person whose name and designation was not ascertainable. The objection was raised to the maintainability of the Revision Application on the ground that the revision filed through Mr. Fariduddin, Advocate who was, on approved panel of Central Board of Revenue, was not legally maintainable, as the Central Law Officers (Amendment) Act 1985, whereby section 4-A was inserted, authorises only Additional Attorney-General, Deputy Attorney-General and Standing Counsel to file appeal and revision for and on behalf of the Federal Government before any Court or Tribunal including Special Courts. The objection was upheld and it was held that the notification appointing Mr. Fariduddin, Advocate on panel, on behalf of the Federal Government does not legally entitle him to do so. The revision was consequently held to be not maintainable. With due deference to the learned Single Judge of this Court, I am not persuaded to agree with the view taken which I will discuss presently.

(f) In the case of State v. Bashir Ahmed (supra), the same learned Single Judge of this Court reiterated that in view of the provisions contained in section 4-A of the Central Law Officers, (Amendment) Act 1985, the Additional Attorney-General, Deputy Attorney-General and Standing Counsel were deemed to he public prosecutors and were competent to institute, file and conduct any proceedings including appeal and revision for and on behalf of the Federal Government before any Court or Tribunal including a Special Court constituted under any law. The cases which came for consideration were initiated on behalf of the Federal Government. In the first case, the order of Special Judge Customs and Taxation granting bail was assailed and the application was signed by one Advocate. In the second Acquittal Appeal, which was filed on behalf of Federal Government through Collector of Customs and was signed by some unknown person on behalf of Collector of Customs. It was signed by an Advocate but not in the capacity of representing the Federal Government but merely as an Advocate for the appellant.

In the third case, the appeal was filed through Collector of Customs. The Memo. of Appeal was signed by an Advocate not in the capacity of representing the Federal Government empowered to file the appeal but merely as an Advocate for the appellant. The fourth appeal was filed on behalf of Federal Government, through Deputy Superintendent of Rangers, for Commandant Headquarters, Thar Rangers Hyderabad, and was signed by an Advocate who was Special Prosecutor for the appellant.

The Fifth appeal was filed by Collector of Customs, but was signed by an Assistant Collector of Customs. The sixth appeal was filed by State, through Commandant Thar Rangers, which was also signed by an Advocate who was Special Prosecutor.

The Seventh appeal was filed by Collector of Customs (Preventive) but was signed by Assistant Collector of Customs. The Eighth appeal was filed by Deputy Collector of Customs (Appraisement) and was also signed by Special Prosecutor Customs not as appellant but as an Advocate for appellant. The Nineth appeal was filed by Federal Government which was signed by Deputy Superintendent for Commandant Headquarters Thar Rangers Hyderabad and was also signed by a Special Prosecutor but not in the capacity of appellant. The tenth appeal was filed by State which was signed by one Advocate."

1. As already observed the contention that under section 185-F(1) of the Customs Act, 1969, any person including the Federal Government aggrieved by any order passed or decision made by Special Judge may prefer an appeal or revision to the Special Appellate Court was repelled.

After narrating the relevant facts of each appeal and referring to the case law the issue under consideration was disposed of by a brief finding holding that the appeals were not competently filed by authorised law officers of the Federal Government. This observation was made with reference to the provisions contained in section 4-A of the Central Law Officers Ordinance, 1970. All the appeals were dismissed.

1. Again with due deference to the learned Single Judge I am not persuaded to agree with the omnibus brief finding, although I, do agree that some of the appeals were not competently filed and were liable to be dismissed as incompetent in law but I am of the humble opinion that all the appeals were not liable to be dismissed with reference to the provisions contained in section 4-A of the Central Law Officers Ordinance 1970, only:--

(g) After insertion of the words, "or an Advocate authorised by the Board or an officer subordinate to it," in subsection (2) of section 185-G Customs Act, with effect from 15-6-2002 an Advocate authorized by the Board or an officer subordinate to it is also competent to file an appeal or revision on behalf of Federal Government before the Special Appellate Court. , (h) In the case of Director Intelligence and Investigation (Customs and Excise) v. Ahmed Fazil, (supra) it was held that the appeal filed by Standing Counsel for Customs authorized under the instructions of Director Intelligence was not competent. Reliance was placed on the single Bench Judgment of this Court in the case of State v. Bashir Ahmed, PLD 2000 Karachi 198. After perusal of the judgment and the facts involved therein, I do agree with the conclusion that the appeal was liable to be dismissed but on account of the facts and circumstances in the cited case and not on the proposition of law which formed basis for the dismissal of appeal. The facts were that the appeal was filed by Standing Counsel for Customs Authorities under the purported authorization of Director Intelligence but the power of attorney filed by learned counsel was signed by a Superintendent of Customs. It was not shown that the Superintendent of Customs was empowered to authorize the Advocate to file appeal and consequently it was liable to be dismissed on this account but not with reference to the provisions contained in section 4-A of the Central Law Officers Ordinance, 1970.

1. Consequent to above discussion, it is held that an appeal under section 185-F Customs Act or a revision before Special Appellate Court can be filed by the Federal Government only, through the following persons:--

(1) The Attorney-General and the Law Officers specified in section 4-A of the Central Law Officers Ordinance, 1970. These officers are, an Additional Attorney-General, Deputy Attorney-General and Standing Counsel.

(2) Advocates appointed by the Federal Government. Prior to the establishment of Revenue Division and the amendments inserted in the Rule of Business discussed above, such Advocates could be appointed by the Law and Justice Division and after the amendment inserted initially in the year 1994 and subsequently in the year 1998 such appointments can be made through Revenue Division.

(3) Advocate authorized by the Board or by an officer subordinate to it as instructed by the Board, with effect from 16-6-2002.

1. Except the above Law Officers and advocates, no other person is competent to file appeal/revision in criminal case on behalf of Federal Government under the Customs Act. The Director-General, Directors, Collectors and any other officers subordinate to them are not competent to file appeal/revision directly in criminal cases but they can get the appeals filed through the Legal Advisors or a counsel as instructed by the Board.

2. In the light of above findings, I take up each appeal separately to examine whether the appeal has been filed by person competent in law to do so or not.

3. The first appeal is, Special Criminal Acquittal Appeal No.4 of 1991, which has been filed in the name of State through Pakistan Coast Guard, Karachi. The memo. of appeal is signed by one unknown person as well as by Mr. Naimur Rehman, the then Standing Counsel and there is memo. of appearance filed by Mr. Naimur Rehman, stating that he Was appearing in this criminal appeal on behalf of the appellant. The question of maintainability of the appeal was raised by the then Special Appellate Court and on the basis of judgment in the case State v. Abdul Qayoom, PLD 1980 Karachi 465, the appeal was found maintainable and was admitted to regular hearing. Since the appeal has been preferred through the Standing Counsel therefore, it is held that the appeal is maintainable in law.

4. The second appeal is, Special Criminal Acquittal Appeal No.29 of 1991. This appeal has also been filed by Mr. Naimur Rehman, the then Standing Counsel and the memo. of appeal is signed by him. The file contains the memo. of appearance signed by Mr. Naimur Rehman, the Standing Counsel. It is stated that he is authorized to file appeal in the above matter. This appeal is also maintainable having been filed by Standing Counsel, who is competent in law to file the appeal.

5. The third appeal is, Special Criminal Acquittal Appeal No.4 of 1993. This appeal has also been filed through Mr. Naimur Rehman, the then Standing Counsel for the Government of Pakistan. The memo. of appearance of Mr. Naimur Rehman, stating that he is authorized to file E appeal in the above matter is also available on the record. The appeal is maintainable having been filed through the person competent in law to file the appeal.

6. The fourth appeal is, Special Criminal Acquittal Appeal No.1 of 2002. This appeal has been filed in the name of Islamic Republic of Pakistan, through Collector of Customs (Preventive), Karachi. The memo. of appeal was initially signed by one unknown person, subsequently it was signed by Additional Collector of Customs (Preventive Headquarter) Customs House, Karachi. The memo. of appeal is signed by Mr. Fariduddin, Advocate, who is described as Advocate for the appellant. Above the signatures of Mr. Fariduddin, Advocate the words "Deputy Attorney-General" are written but it is not known as to how these words have written and in what context, as Mr. Faridudin has never remained D.A.-G. The seal of Deputy Attorney-General of Pakistan is affixed, but it is not signed by the D.A.-G. An undated memo. of appearance signed by Mr. Fariduddin Advocate is available on record. It is stated in it that he is authorized to assist learned D.A.-G. and to appear on behalf of the appellant in the above appeal. This memo. of appeal was filed on 24-1-2002 and at that time only two categories of Law Officers/Advocates were competent to file appeal on behalf of Federal Government. First, the Attorney-General and the Law Officers specified in section 4-A of the Law Officers Ordinance, 1970 and secondly, Advocate appointed by he Federal Government. In this appeal neither any Law Officer specified in Law Officers Ordinance, 1970 has signed the memo. of appeal nor there is any authorization on record in favour of Mr. Fariduddin, on behalf of the Federal Government. According to his memo. of appearance he was merely authorized to assist the D.A.-G. This authorization does not empower him to file appeal on behalf of the Federal Government. The officers of the Customs Department are not competent to file the appeal and consequently this appeal is not maintainable in law, which stands dismissed accordingly.

7. The fifth appeal is, Special, Criminal Appeal No.3 of 2002. This appeal has been filed in the name of Collector of Customs (Preventive) Customs House Karachi and is signed by some person described as "appellant through Chief Law Officer Collectorate of Preventive. " It has been signed by Mr. Arif Motan, Advocate as well. The Vakalatnama of Mr. Arif Motan on record shows that he has been engaged by Chief Law Officer (Preventive). The appeal was filed on 12-11-2001 and on the said date the appeal could be filed by Law Officers specified in Law Officers Ordinance, 1970, or through the Advocate appointed by the. Federal Government. Mr. Arif Motan, Advocate does not fall in any of the above categories. The appeal has not been filed on behalf of the Federal G Government as there is no authorization on behalf of the Revenue Division and consequently, the appeal is held to be incompetently filed which is not maintainable and stands dismissed accordingly.

8. The sixth appeal is, Special Criminal Acquittal Appeal No.8 of 2002. It has been filed in the name of State, through the Collector of Customs (Preventive) Customs House Karachi and is signed by Assistant Collector of Customs (Preventive) Headquarter-II, as appellant. It has been signed by Mr. Fariduddin, Advocate for the appellant. His memo. of appearance contains that he is authorized to appear for the appellant. Mr. Fariduddin, is not a Law Officer appointed under the Law Officers Ordinance, 1970. There is nothing on record to show that he was appointed by the Federal Government and authorized to file the appeal. It also does not show that he is an Advocate authorized by the board or by an officer subordinate to it to file the appeal under the instructions of H CBR. The appeal is therefore, held to be incompetent in law which stands dismissed accordingly.

9. The Seventh appeal is, Special Criminal Acquittal Appeal No.9 of 2002. It has been filed in the name of State, through Collector of Customs (Preventive) Karachi. It is signed by some unknown person as well as by Mr. Fariduddin as Advocate for the appellant. The memo. of appearance filed by Mr. Fariduddin, Advocate contains that he is authorized to appear in the appeal. This appeal is also not maintainable I in law having not been filed by the person competent in law to file the appeal. The appeal stands dismissed accordingly.

10. The Eighth appeal is, Special Criminal Acquittal Appeal No.10 of 2002. It has been filed in the name of State, through Collector of Customs (Preventive) Karachi. The memo. of appeal has been signed by one Assistant Collector of Customs (Preventive) Headquarters-II. The memo. of appeal is signed by Mr. Fariduddin, as Advocate for the appellant and the memo. of appearance filed by him merely contains that he is authorized to appear for the appellant. It is not known that by whom he is authorized. The appeal is not maintainable as it has not been filed by a person competent in law. Consequently, appeal stands dismissed.

11. The Nineth appeal is, Special Criminal Acquittal Appeal No.3 of 2003. This appeal has been filed in the name of State, through Collector of Customs (Preventive) Customs House, Karachi. The memo. of appeal is signed by one Ghulam Abbas, the Assistant Collector of Customs, Customs House, Karachi. It bears the signatures of one Advocate also whose name does not appear on the memo. of appeal. There is Vakalatnama of Mr. Shakeel Ahmed, Advocate, according to which Mr. Shakeel Ahmed, Advocate has been appointed by Mr. Ghulam Abbas Assistant Collector of Customs, Customs House Karachi. Neither the appeal has been filed by the Federal Government nor Mr. Shakeel Ahmed is authorized by the C.B.R. or by an officer subordinate to it in K accordance with the instructions given by C.B.R.. The appeal is therefore, held to be incompetently filed and stands dismissed accordingly.

12. The Tenth appeal is, Special Criminal Acquittal Appeal No.6 of 2003. This appeal has also been filed in the name of State, through Collector of Customs (Preventive) Karachi and has been signed by some unknown person as well as Mr. Fariduddin, Advocate in the capacity of Advocate for the appellant. In this case also Mr. Fariduddin, has been engaged as Advocate by Mr. Ghulam Abbas, Assistant Collector of Customs, Customs House, Karachi. The appeal is incompetent. and stands dismissed accordingly.

13. The Eleventh appeal is, Special Criminal Acquittal Appeal No.9 of 2003. This appeal has also been filed in the name of State, through Collector of Customs Karachi, Memo. of appeal is signed by one Assistant Collector of Customs (Preventive).. It is signed by Mr. Fariduddin, Advocate also, for the appellant. The memo. of appearance states that he is authorized to argue and to appear in the above appeal on behalf of the appellant. Mr. Fariduddin, is described as Advocate for the appellant. Mr. Fariduddin, is neither the Law Officer under the Central Law Officers Ordinance, 1970, nor he has produced any appointment/authorization by the Federal Government, Board or by an officer subordinate to Board in accordance with the instructions issued by the Board. The appeal is incompetent, which stands dismissed accordingly.

14. The twelfth appeal is, Special Criminal Acquittal Appeal No. 10 of 2003. It has been filed in the name of State, through the Director Directorate General of Intelligence and Investigation, (Customs and Excise) Karachi. It does not bear signature of any Law Officer/Advocate. Vakalatnama of Mr. Arif Motan, is on record. He has been appointed by one Khalid Mehmood, Assistant Director, Intelligence and Investigation (Customs and Excise), Karachi. The appeal filed by the Assistant Director, Intelligence and Investigation is not competent in law, which stands dismissed accordingly.

15. The Thirteenth appeal is, Special Criminal Acquittal Appeal No.2 of 2004. It has been filed in the name of Federal Government, through Collector of Customs (Preventive) Customs House., Karachi. However, the memo. of appeal is signed by some Additional Collector of Customs (Preventive Headquarters) Customs House Karachi, whose name is not shown in the memo. of appeal. It has been signed by Mr. Fariduddin, Advocate as well and the memo. of appearance filed by Mr. O Fariduddin, states that he is authorized to file the appeal and argue the same in High Court. This appeal is also incompetent in law, which stands dismissed accordingly.

16. The Fourteenth appeal is, Special Criminal Acquittal Appeal No.5 of 2004. This appeal has been filed in the name of State, through Collector of Customs (Preventive) Karachi. The memo. of appeal is signed by Mr. Ghulam Abbas , Deputy Collector of Customs, Customs House Karachi. It bears signatures of some counsel whose name is not shown in the memo. of appeal. Power of Attorney in favour of Mr. Raja Muhammad Iqbal, Advocate, signed by Ghulam Abbas, Deputy Director of Customs, Customs House Karachi is available on record. Mr.Raja M. Igbal, has also filed a letter addressed to him by Deputy Collector (Legal Division) Collectorate of Customs (Preventive) Customs House Karachi. It is contained in the letter that in terms of sub-para. (5) of Para. 27-A of the Schedule-II of the Rules of Business, 1973. The Federal Government has been pleased to authorize Mr. Raja M. Igbal, to file the Special Criminal Acquittal Appeal against the order of Appellate Tribunal Central Excise and Sales Tax Karachi under section 185-F. It further says that he is appointed to conduct the proceedings of the case under section 185-G of the Customs Act. Nothing has been produced to show that Federal Government authorized Mr. Raja M. Iqbal to file the appeal and Deputy Collector (Legal) Division has no authority to issue any such authorization letter. The appeal has not been filed by the competent person appointed by the Federal Government or authorized by the Board or any officer subordinate to the Board in accordance with the instructions issued by the Board. The appeal is therefore, incompetent and stands dismissed accordingly.

17. The Fifteenth appeal is, Special Criminal Acquittal Appeal No.7 of 2004. This appeal has been filed in the name of State, through Collector of Customs (Export) Karachi. It bears signatures of Mr. Fariduddin Advocate also. The memo. of appearance filed by Mr. Fariduddin is available on record which contains that he is authorized to appear in the Court on behalf of the appellant. It is not known as to who has authorized him to file the appeal. The appeal is therefore, held to be incompetent and stands dismissed.

18. The Sixteenth appeal is, Special Criminal Acquittal Appeal No. 10 of 2004. It has been filed 'in the name of State, through Collector of Customs (Preventive) Customs House, Karachi. The memo. of appeal is signed by one Mr. Ghulam Abbas, Deputy Collector of Customs, Customs House Karachi. It bears signature of one Advocate also whose name is not shown in the memo. of appeal. Vakalatnama of Mr. Muhammad Nadeem Qureshi, Advocate is on record. The Vakalatnama is signed by Ghulam Abbas, Deputy Collector of Customs, Customs House. Mr. M. Nadeem Qureshi, is not an Advocate appointed by the Federal Government or authorized by the Board or by an officer subordinate in accordance with the instructions of the Board. The memo. of appeal shows that it has been filed under section 417 Cr. P. C. The appeal against the order of Special Judge (Customs & Taxation) Karachi, is competent under section 185-F Customs Act, and not under section 417, Cr.P.C. The appeal is not competent and has not been filed by the person competent in law, which stands dismissed accordingly.

19. The Seventeenth appeal is, Special Criminal Acquittal Appeal No.Nil of 2004. It has been filed in the name of State, through Collector of Customs (Appraisement) Customs House, Karachi. The memo. of appeal is signed by Asif Abbas Khan, Deputy Collector of Customs (Appraisement). It bears the signature of Advocate also whose name is not shown in the memo. of appeal. Vakalatnama of Mr. Nadeem Qureshi, Advocate is available on record which has been signed by Asif S Abbas Khan, Deputy Director of Customs (Appraisement). The appeal is not competent, which stands dismissed accordingly.

20. The Eighteenth appeal is, Special Criminal Acquittal Appeal No. Nil of 2004. It is similar to the appeal discussed earlier. For the same reasons it stands dismissed.

21. The Nineteenth appeal is, Special Criminal Acquittal Appeal No. 12 of 2004. It has been filed in the name of State, through Collector of Customs (Preventive) Customs House, Karachi. The memo. of appeal is signed by Deputy Collector Customs (Legal Division). It is bears signatures of someone else also. It is not shown as to who is the second person signing the memo. of appeal. Vakalatnama of Mr. Raja M. Iqbal, Advocate is available on record. He has been appointed by Deputy Collector of Customs (Legal Division) I&P. The appeal has neither been filed by the Federal Government nor by person authorized to file appeal and consequently the appeal is not competent which stands dismissed accordingly.

P L D 2005 Karachi 582

Before Ghulam Rabbani and Azizullah M. Memon, JJ

ATTA ULLAH---Petitioner

Versus

DISTRICT RETURNING OFFICER/D.J. SANGHAR and 2 others---Respondents

Constitutional Petition No.D-896 of 2005, decided on 12th August, 2005.

Sindh Local Government Elections Rules, 2000---

---Rr. 16 & 18---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Rejection of nomination papers---Nomination papers of petitioner were accepted by Returning Officer, but on the very next day, Returning Officer, recalled his previous order and rejected nomination papers of petitioner on ground that he was an active member of "Jaish-e-Muhammad", a banned organization as per report of Police (S.H.O.) concerned---Report of Police (S.H.O.) did not envisage therein that there was a track record available with police that petitioner was an active member of a banned organization---Senior Superintendent of Police, Special Branch in his letter addressed to District Co-ordination Officer, had clearly stated that petitioner happened to be not of bad character and that nothing politically adverse was available against him---Petitioner had produced his own affidavit and affidavits of seven persons of Union Council concerned to show that he was not affiliated with any banned organization including Nomination papers of petitioner ought not to have been rejected simply on a report of Police (S.H.O.)---Constitutional petition was admitted to regular hearing and orders rejecting nomination papers of petitioner, were set aside with observation that nomination papers of petitioner would be deemed to have been accepted and petitioner would be entitled to contest election.

Saathi M. Ishaque for Petitioner.

M. Sarwar Khan, Addl. A.-G. for Respondents Nos.1 to 3.

Date of hearing: 12th August, 2005.

P L D 2005 Karachi 585

Before Muhammad Moosa K. Leghari, J

Mst. MOHSINA SAEED TAUNI---Plaintiff

Versus

MUHAMMAD ASIF and others---Defendants

Suit No.428 of 1994, decided on 6th May, 2004.

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

----Ss. 39, 42 & 54---Suit for declaration, cancellation of documents, damages and permanent injunction---Plaintiff had alleged that defendant had dishonestly and fraudulently prepared a General Power-of-Attorney purportedly to have been executed by plaintiff in his favour allegedly by producing some fake lady before the registration authorities---Plaintiff had sought declaration to the effect that the forged Power-of-Attorney was never executed by plaintiff in favour of defendant, cancellation thereof and grant of damages and permanent injunction restraining defendant, his men and agents from creating any charge, lien and encumbrance or dealing with property of plaintiff on the basis of said Power-of-Attorney---Allegation of plaintiff that she had not executed any Power-of-Attorney in favour of defendant, was not specifically controverted by defendant ---Defendant abstained from appearing in the Court to lead any evidence---Nothing was available in rebuttal against evidence led by plaintiff to prove that alleged Power-of-Attorney was bogus, fabricated and invalid document and it did not contain her signatures---High Court declared that Power-of-Attorney to be not executed by plaintiff in favour of defendant and that any mortgage created in consequence of such Power-of-Attorney would be illegal and disputed documents were cancelled as prayed for by the plaintiff.

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

----Art. 129---Where a party abstained from giving evidence in his own case about facts concerning his personal knowledge, presumption would be that truth lay on the other side.

Hifzur Rehman for Plaintiff.

Nemo for Defendant No. 1.

A.R. Akhtar for Defendant No.2.

Date of hearing: 21st April, 2004.

P L D 2005 Karachi 591

Before Sabihuddin Ahmed, C.J., Anwar Zaheer Jamali and Amir Hani Muslim, JJ

QAMAR UL ISLAM and another---Petitioners

Versus

DISTRICT AND SESSIONS JUDGE/CHAIRMAN ELECTION TRIBUNAL, NAWABSHAH and others---Respondents

Constitutional Petition No.D-1523 of 2003, decided on 23rd May, 2005.

(a) Sindh Racal Government Elections Rules, 2000---

----Rr. 34 & 39---Voting procedure---Proceedings at the close of the poll---Presiding Officer shall exclude only that vote which does not have official mark and shall not exclude a vote which has the official mark but has not been signed by the Presiding Officer---Principles.

Akbar Ali v. Razi-ur-Rehman PLD 1966 SC 492; Mian Jamal Shah's case PLD 1966 SC 1; Wahid Bux v. Election Authority 1984 CLC 1294 and Arbab Aamir Ayub Khan v. Chief Election Commissioner of Pakistan PLD .2002 Pesh. 173 ref.

(b) Interpretation of statutes-

----Courts, while interpreting the law will not read anything, which is not provided in the section---Law has to be interpreted as it stands on the statute book.

Rao M. Shakir Naqshbandi for Petitioners.

Shahenshah Hussain for Respondents.

P L D 2005 Karachi 598

Before Muhammad Mujeebullah Siddiqui, and Khilji Arif Hussain, JJ

ISRAR AHMED JAKHRANI---Petitioner

Versus

DISTRICT RETURNING OFFICER/DISTRICT AND SESSIONS JUDGE, JACOBABAD and 3 others---Respondents

Constitutional Petition No.D-887 of 2005, decided on 13th August, 2005.

(a) Sindh Local Government Elections Rules, 2005---

----R. 65---Constitution of Pakistan (1973), Arts. 225 & 199---Constitutional petition---Maintainability---Adequate remedy, non-availability of---Rejection of nomination papers, a pre-election grievance---No role of Election Tribunal has been prescribed as a pre-election forum, as appeal against the order of Returning Officer has been provided before the District Returning Officer and thereafter the law has not created any other forum---Effect---If no forum is available, which is evident from the opening words of Art. 199 of the Constitution, to the effect that, if the High Court is satisfied that no other adequate remedy is provided in law, it shall have the jurisdiction to issue an appropriate writ under Art. 199 of the Constitution---Election petition after the conclusion of election before the Election Tribunal, is not always an adequate remedy and consequently, a Constitutional petition challenging the acceptance or rejection of nomination papers is maintainable---Principles stated.

The election petition is to be filed before the Election Tribunal after an election is held and by any person who is aggrieved with the result of elections or any other matter pertaining to the qualification or disqualification of any candidate or conduct of the elections. Election Tribunals are appointed after the result of elections are declared and the election is concluded. In the present case at this stage, admittedly, there is no existence of any Election Tribunal and therefore, a party aggrieved by the order passed by the District Returning Officer, cannot be asked to approach a non-existent Tribunal. In the present case, of course, the remedy can be availed after the election is held and candidates are declared elected, but there are large number of cases in which the nomination papers have been rejected, either by the Returning Officer and District Returning Officer, both or by the District Returning Officer in appeal. If in such cases a view is taken that a person aggrieved with the order passed by District Returning Officer can approach the Election Tribunal only through an election petition, such persons whose nomination papers have been rejected shall be deprived of the opportunity of contesting the elections and shall have to wait till the next elections. It is provided in Article 225 of the Constitution that, `no election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such Tribunal and in such manner as may be determined by Act of Majlis-e-Shoora (Parliament)'. Likewise, it is provided in Rule 65 of the Sindh Local Government Elections Rules, 2005 that, no election shall be called in question except by an election petition made by a candidate for that election, and it is further provided that an election petition shall be presented to the Tribunal appointed by the Chief Election Commissioner within 30 days of the publication in the official Gazette of the names of the returned candidates. Accumulative reading of all these provisions shows that they relate to the challenge of concluded elections and are post-election provisions. So far, the pre-election forums are concerned, there is no role of Election Tribunal in it, and therefore, the appeal against the order of Returning Officer, has been provided before, the District Returning Officer. Thereafter, the law has not created any other forum. If no forum is available, which is evident from the opening words in Article 199 of the Constitution, to the effect that, if the High Court is satisfied that no other adequate remedy is provided in law, it shall have the jurisdiction to issue an appropriate writ under Article 199 of the Constitution.

The election petition, after the conclusion of election before the Election Tribunal is not always an adequate remedy and consequently, a writ petition challenging the acceptance or rejection of nomination paper is maintainable.

(b) Sindh Local Government Elections Rules, 2005---

----R. 65---Constitution of Pakistan (1973), Art.199---Constitutional petition---Acceptance or rejection of nomination papers---Procedure--For the purpose of acceptance or rejection of nomination papers or other ancillary matters, the Returning Officer and the District Returning Officer sitting in appeal shall hold summary inquiry and decide the issue on the basis thereof---Neither it is advisable nor possible to hold in depth inquiry or record evidence for the purpose of deciding any issue raised before the Returning Officer or District Returning Officer and any matter which cannot be decided in a summary manner should be left to be decided by the Election Tribunal in the appropriate proceedings.

(c) Sindh Local Government Elections Rules, 2005---

----R. 65---Qanun-e-Shahadat (10 of 1984), Arts.87 & 88---Disqualification of candidate to contest election of Nazim on the ground of being under age---Age---Determining factors---Entries in the Electoral Rolls although are not to be treated as final except as regard the right to vote but the mere fact that they are not to be treated as final does not mean that no weight whatsoever is to be given to these entries in respect of other question, such as whether the voter was of requisite age for being a candidate or member of an Electoral Office---Entry in the Electoral Roll is not different from an entry in Identity Card Register or School Register in the eye of law---Principles.

PLD 1971 Lah. 737; PLD 1980 Lah. 327; PLD 1991 Lah. 200; PLD 1989 SC 396 and Syed Bachal Shah v. Malik Asad Sikandar PLD 1989 Kar. 53 ref.

(6) Note of Abdur Rehman, J. in Heesab v. Election Authority, PLD 1986 Kar. 179 rel.

Abdul Mujeeb Pirzada for Petitioner.

Farooq H. Naik for Respondents Nos. 3 and 4.

Abbas Ali, Addl. A.-G.

Date of hearing: 13th August, 2005.

P L D 2005 Karachi 610

Before Sarmad Jalal Osmany, J

ABDUL RAZZAQUE and 3 others---Appellants

Versus

Dr. REHANA SHAHEEN and another---Respondents

Miscellaneous Appeal No.6 of 2004, decided on 2nd September, 2005.

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

----S. 25---Custody of minors---Welfare of minors was the paramount consideration which consisted not only of their material and physical well-being but their emotional and psychological health as well---Grandparents of the minors could not replace the love and affection which could be bestowed upon him/her by his natural/real parents and unless there were other considerations not to do so, custody was normally given to the latter---Mother, in the present case, was a doctor in Government employment, living in Government accommodation, was receiving widow pension in addition to her own salary and was entitled to free medical and educational benefits for her children, had not remarried for the sake of her children and nothing had come on record which was adverse to her character and reputation---Welfare of the minor, in circumstances lay with the mother---Insofar as the wishes of the minors were concerned, no doubt, it was one of the factors to be taken into consideration but could not be decisive in the matter as the minors being of tender age could not be expected to be able to decide where their welfare lay---principles.

Mst. Aisha v. Manzoor Hussain PLD 1985 SC 436 fol.

Muhammad Shafi v. Maqbool Afza 1986 SCMR 1634; S.M. Aslam v. Rubi Akhtar 1996 CLC 1; Mst. Abda Bibi v. Abdul Latif 2002 CLC 1416; Shagufta Bano v.Musarrat Hanif 1982 CLC 1821 and Mst. Aisha v. Manzoor Hussain PLD 1985 SC 436 ref.

Qazi Munawar Ali for Appellants.

Ubaid Hamza for Respondent No.1 along with Muhammad Nadeem Khan.

Date of hearing: 16th October, 2004.

P L D 2005 Karachi 616

Before Rahmat Hussain Jafferi, J

GUL SHER and another---Applicants

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.S-158 of 2002, decided on 21st July, 2005.

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

----S. 9(3)---Additional Sessions Judge passes an order as a Court of Session---Additional Sessions Judge on appointment in any Sessions Division is empowered to exercise jurisdiction of Sessions Court---Whenever an Additional Sessions Judge passes an order, he passes it as a Court of Session and not that of any other Court or Authority, for the simple reasons that under S.9(3), Cr.P.C. he was appointed to exercise jurisdiction of Court of Session.

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

----Ss. 561-A & 497(5)---Penal Code (XLV of 1860), Ss.302/201/148/149--Quashing of order issuing notice to the accused to show cause as to why their bail should not be cancelled---Additional Sessions Judge, while dismissing the bail application of co-accused, had issued show-cause notice to the accused for cancellation of their bail granted by another Additional Sessions Judge---Present Additional Sessions Judge was competent to exercise such suo motu powers as a Court of Session, as provided under S.497(5), Cr.P.C.---Said Additional Sessions Judge, however, had made adverse comments and shown disagreement with certain observations made by the earlier Additional Sessions Judge in his order, which he was not competent to do---No new, fresh or other grounds such as misuse of bail etc. were alleged or found at the time of decision of bail application of the aforesaid co-accused, warranting issuance of notice for cancellation of bail granted to accused---Present Additional Sessions Judge, therefore, was neither competent nor justified to issue such notice to accused---Impugned order was consequently quashed.

Dr. Waqar Hussain v. State 2000 SCMR. 735; Allah Bux v. State 1986 PCr.LJ 651; The State v. Zubair 2002 SCMR 171 and The State v. Zubair PLD 1986 SC 173 ref.

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

---S. 497(5)---Bail, cancellation of---Issuance of show-cause notice---Power rests with the Additional Sessions Judge to issue show-cause notice either on the application or while exercising suo motu powers---Subsection (5) of S.497, Cr.P.C. does not create any bar for exercising such powers, if no application is moved by any person.

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

----S. 497(5)---Bail cancellation of---Suo motu powers---Sessions Judge or Additional Sessions Judge i.e., Court of Session, can exercise suo motu powers to cancel the bail only on new, fresh and other grounds such as misuse of bail etc.

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

----Ss. 497 & 498---Bail---Hearing of the bail application by the Bench hearing the earlier bail application not necessary---Not necessary that the same Bench which had heard the earlier bail application should hear the subsequent bail application---Deviation can be made from the rule laid down in the case of State v. Zubair PLD 1986 SC 173, on fulfillment of certain conditions.

The State v. Zubair 2002 SCMR 171 and The State v. Zubair PLD 1986 SC 173 ref.

S. Mushtaq Hussain Shah for Applicants.

Ghulam Sarwar Korai for the State.

P L D 2005 Karachi 621

Before Rahmat Hussain Jafferi, J

Mst. BHAITAN---Applicant

Versus

THE STATE and 3 others---Respondents

Criminal Revision Applications Nos.S-3 and 73; Criminal Miscellaneous Applications Nos. 67 and 82 and Constitutional Petition No.S-179 of 2005, decided on 4th August, 2005.

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

----S. 22-A---Powers of Justice of the Peace---Nature and scope---Powers of the Justice of the Peace are very limited which have been given to aid, assist and authorize the criminal jurisdiction system--7Said powers are neither supervisory nor judicial, but are administrative and ministerial in nature.

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

----S. 25---Ex-officio Justice of the Peace---No notice to be given to any body for forming an opinion---Ex-officio Justice of the Peace who is a senior Judicial Officer has to form an opinion about the offence being cognizable or non-cognizable from the facts narrated to him by the complainant orally or in writing and for such purpose he is not required to issue notice to accused or to police officer or to anybody else; he has to form his own independent opinion from the facts narrated to him.

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

---S. 154---Information in cognizable cases ---S.H.O. not empowered to refuse registration of F.I.R.---Officer Incharge of police station is bound to register F.I.R. under S.154, Cr.P.C. and he has no power to refuse to register the same if from the information a cognizable offence is made out---Immaterial whether the information is false or correct --- Condition precedent for recording F.I.R. is that information must disclose a cognizable offence and that too a cognizable one.

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

----S. 154---First information report---Promptly lodged and delayed F.I.R.---Effect---Promptly lodged F.I.R. eliminates the false story and false involvement of the accused, whereas delayed F.I.R. coupled with enmity casts serious doubt upon the story and involvement of the accused---Further, if any delay is made, then possibility of disappearance, destroying. or concealing the evidence cannot be ruled out.

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

----Ss. 25, 22-A & 22-B---Immediate orders to be passed by the Ex-officio Justice of the Peace---Entire criminal justice system revolves around the basic principle that no offence should go unchecked and no offender should go unpunished---Ex-officio Justice of the Peace, therefore, is required to pass immediate orders on the application or complaint of non-registration of F.I.R. by adopting summary procedure on his satisfaction, firstly that cognizable offence appears to have been committed and secondly that according to the material produced before him the F.I.R. has not been registered.

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

----S.22-A---Powers of Justices of Peace---Ex officio Justices of Peace are not only required to exercise their powers during their office hours but they are Justices of Peace for twenty-four hours and may exercise their powers anywhere at any time within their territorial jurisdiction---Instance of exercise of such power of Justice of Peace, illustrated.

Ex-officio Justices of Peace are not only required to exercise their powers during their office hours but they are Justices of Peace for twenty-four hours. They may exercise their powers anywhere at any time within their territorial jurisdiction. Suppose, if a ex-officio Justice of Peace is present in his house or traveling by foot or by any vehicle at any time of hour and he receives a complaint of non-registration of F.I.R., on the way, from a person who is in serious injured condition, or from a person who is very recently robbed of his vehicle etc. From the information he forms opinion that facts discloses a cognizable offence and police has not registered the F.I.R then he, in a summary manner is required to forward the complaint to police station with direction to the police to register the F.I.R. If he indulges in any inquiry then the valuable piece of evidence might be lost that will ultimately benefit the accused, therefore a direction in a summary manner is required to be issued by him.

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

----Ss. 25, 22-A & 22-B---Investigation conducted by a police officer not to be interfered with---Investigation conducted by a police officer cannot be interfered with in any form or made by an Ex-officio Justice of the Peace---Even Judiciary cannot interfere with the investigation of a police officer.

Khawaja Nazir Ahmad v. The State AIR 1945 PC 18; Shahnaz Begun v. The State PLD 1971 SC 677 and Brig. Imtiaz v. The State 1994 SCMR 2142 ref.

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

---Ss. 25, 22-A & 22-B---Remedies available to the Ex-officio Justice of the Peace for non-compliance of any of his directions enumerated.

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

---Ss. 25 & 22-A---Powers and functions of Ex-officio Justice of the Peace administrative and ministerial---Ex-officio Justice of the Peace has no judicial powers or judicial functions to perform under S.22-A; Cr.P.C. and all his powers and functions are administrative and ministerial in nature.

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

----Ss. 22-A & 22-B---Powers and duties of the Justice of the Peace being different from each other are not to be mixed up---Powers under S.22-A, Cr.P.C. and duties under S.22-B, Cr.P.C. are completely different from each other---Powers are to be exercised within the framework of S.22-.A, Cr.P.C. and the duties are to be performed within the frame work of S.22-B, Cr.P.C.---Ex-officio Justices of the Peace often wrongly mix inquiries as contemplated under S.22-B, Cr.P.C. with powers under S.22-A,Cr.P.C.---Same are to be dealt with and performed separately within the scope of respective sections.

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

----Ss. 22-B, 22-A, 561-A & 439---Constitution of Pakistan (1973), Art. 199---Quashing of orders passed by Ex-officio Justices of the Peace---Functions and directions of the Ex-officio Justice of the Peace being not of judicial nature but being administrative and ministerial in nature, could neither be challenged under Ss.435/439, Cr.P.C. nor under Art. 199 of the Constitution and the same could be challenged only under S.561-A, Cr.P.C.---Said petitions were, therefore, converted into petitions under S.561-A, Cr.P.C.---Ex-officio Justices of the Peace had exceeded their jurisdiction in not paying any attention to the questions required to be attended to by them while dealing with the complaints of non-registration of the F.I.R., but had considered other matters going into the merits and demerits of the complaints by conducting detailed inquiries to ascertain as to whether the information was true or false spreading over months together---All such steps taken by the Ex-officio Justices of the Peace were not warranted by law and had resulted in miscarriage of justice---Impugned orders were, consequently, set aside by High Court in exercise of jurisdiction under S.561-A, Cr.P.C. and the matters were remanded to the concerned Ex-officio Justices of the Peace for passing ' appropriate orders---Petitions were disposed of accordingly.

The State v. Muhammad Akbar PLD 1963 SC 432; Muhammad Ali v. S.H.O. of Police Station Aziz Bhatti 2003 YLR 550; Khuwaja Nazir Ahmad v. The State AIR 1945 PC 18; Shahnaz Begum v. The State PLD 1971 SC 677; Brig. Imtiaz v. The State 1994 SCMR 2142 and Asif Ali Khan v. State 1993 SCMR 187 ref.

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

----Ss. 22-B, 22-A & 561-A---Quashing of order---Accused nominated in the F.I.R. which was to be registered under the orders of the Ex-officio Justice of the Peace had complained that he was not heard by the Ex-officio Justice of the Peace before passing such order---Ex-officio Justice of the Peace was not required to issue notice to the accused before issuing the direction for registration of the F.I.R., as it was beyond his jurisdiction---No accused person was to be heard before lodging any F.I.R.---impugned order being legal did not require any interference---Petition was dismissed accordingly.

S. Mushtaque Hussian Shah for Petitioner (in Criminal Revisioin No.3 of 2005).

S. Mushtaque Hussian Shah holding brief for Ghulam Sarwar Korai for Applicant (in Criminal Miscellaneous Application 67 of 2005).

Faiz Muhammad Leghari for Applicant (in Criminal Revision Application No.73 of 2005)

Shaikh Amanullah for Applicant (in Criminal Miscellaneous Application No.82 of 2005)

S. Mushtaque Hussian Shah for Petitioner (in C.P. No.S-179 of 2005).

Abdul Fattah Malik for Respondents Nos. 3 and 4 in C.P. No. S-179).

G.A. Shahani, Additional A.-G.

Dates of hearing: 18th and 20th July, 2005.

P L D 2005 Karachi 638

Before Muhammad Afzal Soomro, J

MUHAMMAD NAFEES alias SOHAIL---Applicant

Versus

THE STATE and others---Respondents

Criminal Revision Application No. 130 of 2004 and M. As. Nos. 1192 and 1193 of 2005, decided on 3rd June, 2005.

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

----Ss. 561-A, 439 & 22-A---Recalling of its order by High Court---Order passed in Revision Application under Ss.435/439, Cr.P.C. read with S.561-A, Cr.P.C. no doubt, cannot be reviewed as no provision in Criminal Procedure Code 1898 was available for review of such order, but under the same S.561-A, Cr.P.C., High Court had got inherent powers to alter or rectify its order if any ambiguity had been created therein or any point which should have been thoroughly. considered at the time of passing the order on the Revision Application was, not so considered---Sessions Court was neither justified nor empowered to impose fine/costs upon the petitioner while rejecting his petition filed under S.22-A, Cr.P.C.---High Curt, therefore, exercising its inherent powers under S.561-A, Cr.P.C. while maintaining its order, recalled and altered the same to the extent that imposition of fine by the Sessions Court was not justified and such part of its order was set aside---Petition was disposed of accordingly.

Fateh Ali and another v. The State 1997 MLD 2235; Hussain Ahmed v. Mst. Irshad Bibi and others 1997 SCMR 1503; Mukhtar Ahmed alias Mokha and another v. The State 1999 PCr.LJ 1905; Chairman, Minimum Wages Board, Peshawar and another v. Fayyaz Khan Khattak, Research Officer, Minimum Wages Board, Peshawar 1999 SCMR 2768; Allah Rakha v. The State 2000 MLD 1932; Haji Muhammad Abbas v. Mrs. Naila Tranum Jamshed and 4 others 2001 PCr.LJ 628; Faizur Rehman v. The State and others PLD 2002 Peshawar 6; Mian Khan and others v. Inspector-General of Police, Punjab and others PLD 2002 Lah. 619; Muhammad Yousuf v. Dr. Madad Ali alias Gulab Lashani and others PLD 2002 Kar.328; Ghulam Ali alias Sadoro and others v. S.H.O. Police Station Veehar, District Larkana 2003 YLR 2168; Peer Abdul Qayyum Shah v. S.H.O. and others 2005 PCr.LJ 357; Bashir Ahmed v. Zafar-ul-Islam PLD 2004 SC 298; Muhammad Ayaz alias Cheena and others v. The State PLD 2004 Kar.652 and Maktul v. Mst. Manbhari AIR 1958 SC 918 ref.

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

----S. 561-A---Inherent power of High Court---Review---Scope---Normal rule of criminal administration of justice is that an order or judgment once delivered attains finality and is not to be altered, reviewed, changed or recalled---However, under exceptional circumstances in rare cases, where no specific provision of law exists and High Court is satisfied that the earlier order/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/judgment is left intact it would result, in perpetration of manifest injustice, High Court may exercise its inherent jurisdiction under S.561-A, Cr.P.C. to correct the manifest error floating on the surface of 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.

Muhammad Ayaz alias Cheena and others v. The State PLD 2,004 Kar.652 ref.

(c) Stare decisis, rule of---

----Application and scope---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 the previous decision should not be followed to the extent that the error may be perpetuated and grievous wrong may result.

Maktul v. Mst. Manbhari AIR 1958 SC 918 ref.

I.A. Usmani for the Applicant.

Abdul Jabbar Lakho Asstt. A.-G.

Noemot Ali Randhawa for Respondents Nos. 2 to 5.

Mirza Sarfraz Ahmed for Respondent No.6.

P L D 2005 Karachi 645

Before S. Ali Aslam Jafri and Zia Perwaz, JJ---

TRUSTEES OF THE PORT OF KARACHI---Appellant

Versus

QUTUBUDDIN---Respondent

High Court Appeal No. 120 of 1991, decided on 23rd May, 2005.

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

---Ss. 39 & 55---Sale of Goods Act (III of 1930), Ss.31, 41 & 44---Non­performance of contract---Time was of the essence of the contract and the supplier had undertaken to supply specified material from the stock available with him within fifteen days but till the filing of the suit or to say till the cancellation of the contract due to non-performance of the contract by the supplier as communicated in writing, the supplier had failed to supply the required number of the items as per specification though further time was allowed on requests made by him---Supplier, in circumstances had failed and neglected to deliver the contracted quantity of the goods in accordance with the terms of the contract.

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

----S. 39---Sale of Goods Act (III of 1930), Ss.31, 41 & 44---Non­performance of contract---Buyer had rejected the substandard quantity which was never objected to by the supplier and he promised to replace the same by the material as per specifications, but failed to supply the required material as per specification, though the contract was awarded to him on a clear understanding that he shall supply the specified material from the stock available with him---Record, in circumstances, supported the negligence on the part of the supplier.

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

----S. 39---Sale of Goods Act (III of 1930), Ss.31, 41 & 44---Non­performance of contract---Plea of delayed inspection of goods by the buyer resulting in becoming the items substandard---Delayed inspection in circumstances, could not be attributed to the buyer---No evidence on record showed that by such lapse of time the goods became substandard particularly when the supplier had neither examined the material himself nor got the same examined by any expert to substantiate such plea---Readiness and willingness of the supplier to replace the substandard material from time to time which actually was done to some extent showed that rejection of substandard material was not unjustified--- Non-inspection of the goods supplied within a reasonable time, could be taken into consideration as a relevant factor in appropriate cases, however, as to what was "reasonable time" shall vary from case to case---What was the "reasonable time" was purely a question of fact and had to be decided in the circumstances of each case---Question whether reasonable opportunity was given for inspection depended on the facts of each case but "reasonable" opportunity did not mean "unlimited period"---Delay in inspection, in the present case, neither appeared to be relevant nor could be attributed to the buyer---View that material became substandard in the meantime, was something not based on any evidence.

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

---S. 39---Sale of Goods Act (III of 1930), Ss.31, 41 & 44---Non­performance of contract---Rejection of substandard material by the buyer---Undertaking by supplier to substitute the rejected quantity of material as per specification---Plea of the supplier was that he undertook to substitute the rejected material under duress or threat---Plea of duress and threat could not be given any weight, particularly when the supplier himself had not appeared in the witness box---Supplier was under obligation as per terms of the contract to supply the material as per specification---Plea taken by the supplier that he had agreed to substitute the rejected material under duress and coercion was definitely an afterthought---Supplier, in fact had failed to discharge the burden which was on him.

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

----Ss. 39 & 2(h)---Sale of Goods Act (III of 1930), Ss.31, 41 & 44---Non-performance of contract---Rejection of substandard material by the buyer---Agreement executed between the parties and the correspondence had left no room for doubt that the material available with the supplier at the time of taking the contact was not as per specifications---Non ­examination of the material at the relevant time could not be attributed to the buyer---Fact was not denied that it was due to non-availability of the labour which was to be arranged by the supplier and lack, of proper space available at the place of inspection, that the material could not be examined so as to be certified strictly in accordance with the specifications---Supplier when asked to remain present at the time of inspection of the material he failed to be present on the plea that he had to appear on that date before the Martial Law Court---When the supplier subsequently appeared the material was examined and was rejected---Evidence from the supplier's side also showed that some other material of substandard nature was shown to the representatives of the buyer for which the supplier expressed his regrets and tried to justify the lapse by stating that his employees had pointed out another lot of the material which was not meant for supply---Sufficient time having expired and after inability of supplier to supply remaining material for various reasons expressed by him, there appeared to be no wrong committed by the buyer by cancelling the contract and purchasing the remaining material from the market after inviting fresh offers from the suppliers of the said material---Supplier having failed to perform his part of the contract as per terms of the contract the buyer was entitled to recover the differential amount which it had paid to the new supplier for the remaining quantity of the material---Buyer, in circumstances was entitled to cancel the contract on the ground of non-supply of the balance quantity of the goods by the supplier as per agreement---High Court allowed the appeal and set aside the judgment and decree passed by Single Judge and decreed the suit in favour of the buyer as prayed for.

Rahim Bux Piracha v. Muhammad, Ibrahim 1978 SCMR 220 and The Firm of Probhu Dial Bahnwari Lal of Delhi v. Dina Nath Kapur AIR 1922 Lah. 127 distinguished.

Sardar Muhammad Arif Khan for Appellant. Muhammad Shahid for Respondent.

Date of hearing: 13th April, 2005.

P L D 2005 Karachi 656

Before Muhammad Mujeebullah Siddiqui, and Khilji Arif Hussain, JJ

Messrs SIDDIQSONS WEAVING MILLS (PVT.) LTD through Director----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Law, Justice and Human Rights, Islamabad and 3 others---Respondents

Constitutional Petition No.D-165 of 2004, decided on 23rd August, 2005.

(a) Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000)---

----S. 32---General Clauses Act (I of 1897), S.24-A---Constitution of Pakistan (1973), Art. 199--Constitutional petition---Representation to the President---Order passed by the President without issuance of notice to the petitioner, without supplying the copy of representation and without affording the opportunity of placing his point of view on record vis-a-vis the representation made by the agency, was violative of the principles of natural justice---Acceptance of the representation made by the agency on consideration of one sided point of view had caused gross miscarriage of justice---Consequence of condemning the petitioner unheard in the case, was very much obvious and glaring on the face of it---Impugned order passed by the President was set aside by the High Court under Art.199 of the Constitution and case was remanded for fresh proceedings---Reasons enumerated.

Federation of Pakistan v. Muhammad Tariq Pirzada 1999 SCMR 2189 and Federation of Pakistan v. Muhammad Tariq Pirzada, 1999 SCMR 2744 fol.

(b) Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000)---

----S. 32---General Clauses Act (I of 1897), S.24-A---Constitution of Pakistan (1973), Art. 199---Representation to the President---procedure to be adopted detailed by the High Court.

While processing and considering the representation under section 32 of the Establishment of Office of Federal Tax Ombudsman Ordinance, 2000 the following procedure shall be adopted:---

(a) A notice shall be issued to the opposite party intimating that a representation has been received assailing the recommendations made by the Federal Tax Ombudsman.

(b) A copy of the representation shall be supplied to the opposite party.

(c) A reasonable opportunity of personal hearing or submission of reply/comments/written arguments shall be afforded to the opposite party.

(d) If the opportunity is provided to the opposite party for placing its point of view through submissions/arguments, a reasonable time shall be allowed for furnishing the written submissions in reply.

(e) All the contentions raised in the representation and the written reply/submissions shall be considered objectively and shall be disposed of by a speaking order as required under section 24-A of the General Clauses Act.

(f) If a time-barred representation is entertained the reason for entertaining such representation and condonation of delay shall be recorded in writing showing the law empowering to condone the delay. Such order shall be incorporated in the final order.

(g) A copy of the full text of the order accepting or rejecting representation shall be supplied simultaneously to both the parties.

Muhammad Afzal Awan for Petitioner.

Sajjad Ali Shah, D.A.G. for Respondent No. 1.

Haider Iqbal Wahniwal for Respondents Nos. 2, 3 and 4.

Date of hearing: 23rd August, 2005.

P L D 2005 Karachi 670

Before Rahmat Hussain Jafferi, J

CHINA INTERNATIONAL WATER---Plaintiff

Versus

PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY---Defendant

Suit No. 1325 of 1999, decided on 1st June, 2005.

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

----S. 14---Not necessary for the arbitrator to frame issues or to give finding on each issue and if some omission is made it does not invalidate the award.

Messrs. Alpine Construction Co. Ltd. V. University of Karachi NLR 1991 CLJ 546; Ibad & Co. v. Government of Sindh and others PLD 1981 Karachi 236; Trading Corporation of Pakistan Limited . Aslam Saeed and Co. PLD 1973 Kar. 65 ref.

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

----S. 23---Reference to arbitration---Valid and legal reference is the pre-condition to give jurisdiction to Arbitrator to decide the dispute--If the reference is invalid or illegal then through that reference no jurisdiction can be conferred upon the Arbitrator to decide the dispute.

Chhabba Lal v. Kallu Lal AIR 1946 PC 72 fol.

The State of Pakistan v. Mehrajuddin PLD 1959 SC (Pak) 147 ref.

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

----Ss. 23 & 17---Reference to arbitration---Invalid reference---Effect---With properly invoking the arbitration clause of the contract, no contrary finding could be given, and consequently no reference could have been made to the Arbitrator---Reference made to the Arbitrator by the Court, in circumstances, was an invalid reference and arbitrator had no jurisdiction to decide the dispute and award given on invalid reference was required to be set aside and could not be made the rule of the Court.

Board of Intermediate and Secondary Education v. Fine Star and Company Engineers and Contractors 1993 SCMR 30 ref.

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

----S. 14---Award---Detailed discussion by the arbitrator on the issues showed no apparent mistake of facts and law---Jurisdiction of Court, in such matters even otherwise, was supervisory and not of appellate nature and it was not the requirement of law to reject the finding of the Arbitrator on the ground that different conclusion could be drawn from the evidence and examination of record---Award was not to be lightly interfered with on insufficiency, non-consideration and failure. to take into account the evidence by the Arbitrator.

Bilal A Khawaja along with Muhammad Masood Khan for Plaintiff.

Badar Alam for Defendant.

Date of hearing: 19th May, 2005.

P L D 2005 Karachi 684

Before Anwar Zaheer Jamali, J

JAWAID ARSHAD MIRZA through Legal Representatives---Petitioner

Versus

TRUSTEES OF HAJI SIR ABDULLAH HAROON and others---Respondents

Constitutional Petitions Nos.213, 383, 431,436 to 444, 562, 585, 640 and 895 to 897 of 2003, decided on 24th June, 2005.

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

----S. 15(2)(vi), (3)(4)---Sindh Cultural Haritage (Preservation) Act (XII of 1994), Ss.6, 10 & 19---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenants was sought on the sole ground of demolition and reconstruction of property which was protected and notified under the Sindh Cultural Heritage (Preservation) Act, 1994---Landlord of the property (Wakt), before filing ejectment applications had obtained permission for demolition and reconstruction plan from the competent Authority, which was the requirement of S.15(2)(vi) of the Sindh Rented Premises Ordinance, 1979---Tenants also fully enjoyed the protection of S. 15(3)(4), the Sindh Rented Premises Ordinance, 1979---Jurisdiction of Rent Controller would not be barred in respect of the premises declared as protected heritage by virtue of S. 19, Sindh Cultural Heritage (Preservation) Act, 1994---Demolition of building and reconstruction was only possible when the dispute between the owner/landlord and the concerned Authority under Sindh Cultural Heritage (Preservation) Act, 1994 was resolved in terms of the said Act and in accordance with law and in the given situation passing of ejectment order in favour of landlord, subject to the condition of its executability against the tenants only after grant of no objection/permission for demolition/reconstruction by the Committee under the Sindh Cultural Heritage (Preservation) Act, 1994, was balanced and equitable course followed by the lower forums, which called for no interference from the High Court in exercise of its Constitutional jurisdiction under Art. 199 of the Constitution---Principles.

Rashid Brothers, Faisalabad v. Ch. Muhammad Anwar Khan and another 1981 SCMR 782; Dawood Adam Kabari v. Mst. Khatija Bai 1984 CLC 1713; Hassan and others v Fancy Foundation PLD 1975 SC 1 and Muhammad Yousuf and another v. Muhammad Sarfraz Cheema, Additional District Judge and others PLD 1987 SC 20 ref.

(b) Power of attorney---

----Held, even in case some of the executants of power of attorney had expired during the pendency of the proceedings, authorization on behalf of the remaining executants, who still survived, would continue to remain in force.

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

----S. 15(4)---Ejectment on ground of demolition and reconstruction of building---Held, it was not a condition imposed by statute upon the landlord that for the purpose of raising new construction he had to keep in mind the provision for accommodating the existing tenant or to design the new construction of the building in a way so as to suit the requirement of the tenant(s).

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Grant of relief under Art.199 of the Constitution is purely discretionary in nature and in case when the concurrent findings of the two. Courts were based on proper appreciation of evidence, there would be no justification to interfere in the impugned orders.

Tassawar Hussain Rizvi for Petitioners (in Constitutional Petition No.213 of 2003).

Khawaja Samiul Hassan, for Petitioners (in Constitutional Petitions Nos.436, 437, 438, 439, 440, 441, 442, 443, 444, 562 of 2003 and 895 to 897 of 2003).

K.A. Wahab for Petitioner (in Constitutional Petition No.585 of 2003).

Muhammad Younus for Petitioner (in Constitutional Petition No.383 of 2003).

Ghulam Abbas Peshori for Petitioner (in Constitutional Petition No.640 of 2003).

Iftikhar Jawaid Qazi for Petitioner (in Constitutional Petition No.431 of 2003).

Syed Ehsan Raza for Respondent No.1 ((in all the Constitutional Petitions).

Dates of hearing: 25th April and 2nd May, 2005.

P L D 2005 Karachi 695

Before Muhammad Mujeebullah Siddiqui, J

Mst. ZAINAB and others---Applicants

Versus

BAHAWAL KHAN and others---Respondents

Revision Application No. 143 of 1994, decided on 8th April, 2005.

Civil Procedure Code (V of 1908)---

----S. 33---Decree---In the wake of a decree passed by a competent Court of civil jurisdiction to the knowledge of plaintiffs, they cannot seek another decree in respect of the same subject-matter at variance with the earlier decree without seeking the setting aside, modification or variation of the earlier decree---Subsequent decree cannot have the effect of overriding the earlier decree---Principles.

With a final decree in respect of particular subject-matter the controversies should be laid to rest. The finality of the decree can be disturbed by way of appeal, revision, review or an application under section 12(2), C.P.C. and prior to the insertion of section 12(2), C.P.C., by way of separate suit. If any of these courses are not adopted no subsequent suit seeking relief, which has the effect of disturbing or interfering with the earlier decree, is maintainable and decree passed, if any, is not sustainable in law. The purpose of final determination of the issues through a final, decree is to settle the issues and if this principle is not adhered to, the issues shall never attain finality and there would be chaos and anarchy and the concept of finality of decree shall be eroded and the decree passed by the competent Court of jurisdiction shall become redundant and otiose. Such a situation would be totally disastrous, shattering the entire warp and woof of the fabric of judicial system.

Principle of res judicata is not applicable to the facts and circumstances of the present case for the reasons that B' andR' were though initially plaintiffs in suit but subsequently, they had withdrawn their claim and suit, and were not the parties to the final judgment and decree. The principles contained in Order 11, Rule 2, C.P.C. and the Law of Estoppel is also not attracted. In fact the proper course open for R' andb was that after. realizing that their interest was inconsistent with the interest of M' andJ' and there was clash of interest, they ought to have prayed for transposing M' andJ' as defendants or they would have requested for transposing themselves as defendants raising counter claim. The second course open to them was that after filing of the second suit they could have requested for consolidation of the two suits thereby prosecuting their case for determination of their rights vis-a-vis the plaintiffs M' andJ'. The consolidated issues could be framed and by adopting that course there would have been no situation of existence of one final decree in favour of M' andJ' in respect of the suit property, which was also the subject-matter of second suit filed by them. By adopting either of these courses the passing of conflicting decrees could have been easily avoided. The decree so passed would have determined the right, title and interest of all the parties concerned including M' andJ' as well as R' andB'. In any case if this course was not adopted then, notwithstanding, the fact that they were not parties to the earlier suit, they could challenge the decree in the suit by way of appeal as an aggrieved person because it was adversely affecting their rights. Even if this course was not. adverted to, B' andR' could challenge the decree in the suit by a separate suit, as by that time section 12(2) was not inserted in C.P.C. By adopting any of such courses the setting aside or modification or variation in decree passed in the suit could be prayed. As none of these courses were adopted and decree in the suit attained finality to the knowledge of B' andR' whereby it was declared that the suit property was owned by M',J' and Z',S' in equal shares and the properties were partitioned as well, such decree could not be disturbed by another decree to the contrary in any subsequent suit for the reason that it could not be done. It militated against the principle of finalization of decree.

The judgment and decree passed by the 1st Appellate Court was illegal and not sustainable in law, which was set aside. The judgment and decree passed by the Trial Court dismissing the suit was restored. The revision application was allowed accordingly and the suit stood dismissed with no order as to costs.

Abdul Sattar Shaikh for Applicants.

Aijaz Ali Hakro for Respondents.

Nemo for Respondents Nos. 2 and 3.

Date of hearing: 8th April, 2005.

JUDGMMNT

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---A short but ticklish point is involved in this revision application to the effect whether in the wake of a decree passed by a competent Court of civil jurisdiction to the knowledge of plaintiffs, they can seek another decree in respect of the same subject-matter at variance with the earlier decree without seeking the setting aside, modification or variation of the earlier decree in respect of same subject-matter and if any subsequent decree is passed whether it is sustainable in law and shall have the effect of modifying/varying the earlier decree in the absence of any relief sought for the modification/variation of the earlier decree.

1. Briefly stated the relevant facts are that plaintiffs Bahawal Khan and Rustam Khan filed suit No. 138 of 1965, joining Mst. Bibi and Mst. Jannat both daughters of Bahadur Khan as co-plaintiffs with them, seeking declaration of their right, title and share in the property as well as partition, separate possession, mesne profits and accounts in respect of lands left by Ghulam Shah and Bahadur Khan bearing survey numbers shown therein. Subsequently, it was found that the interest of Rustam Khan and Bahawal Khan was inconsistent with the interest of Mst. Bibi and Mst. Jannat and, therefore, they filed application under Order XXIII, rule 1, C.P.C. which reads as follows:

"It is respectfully submitted on behalf of the plaintiffs Bahawal Khan and Rustam Khan that this Honourable Court will be pleased to allow the above named two plaintiffs to withdraw the suit against the defendants with permission to file a fresh suit on the consideration of the following facts:

(1) That the defendants have filed an application before this Honourable Court under Order I, Rule 10, C.P.C., for ordering the plaintiffs for separation of two suits one for ladies and other for Rustam Khan and Bahawal Khan.

(2) That the defendants alleged that the claim of the plaintiffs Nos. 1 and 2 is inconsistent with the claim of plaintiffs Nos.3 and 4 and, therefore, there is likelihood of embarrassment and delay in the case.

(3) That in order to avoid delay and embarrassment the plaintiffs Nos. 1 and 2 may be permitted to withdraw the suit with permission to file a fresh suit in respect of their claim.

(4) That this order is in the interest of justice.

(5) It is, therefore, prayed that this Honourable Court would be pleased to allow the plaintiffs Nos. 1 and 2 to withdraw the suit or claim with permission to file a fresh suit.

1. The above application was allowed with the following order on 16-2-1967:

Plaintiffs' Advocate is present. Plaintiffs-1 and 2 have applied under Order XXIII, rule 1, C.P.C for the withdrawal of their claim in the suit, with permission to file a fresh suit on the same cause of action.

Defendant No.1 by Mr. Zaidi; Defendants Nos. 2 and 8 by Mr. Mirza; defendants Nos.4, 5, 6 and 7 are not served. Defendants . who were represented by Mr. Mirza and Mr. Zaidi have no objection to the grant of application. I would, therefore, allow it. Suit by plaintiffs-3 and 4 as against defendants shall continue. Plaintiffs Advocate desires to file amended plaint. Fixed it for the said purpose on 10-3-1967.

1. Subsequently, amended plaint was filed, however, the subject matter of the suit i.e. I and and the relief sought remained the same. In the original plaint it was asserted in para-19 as follows:

"The plaintiffs Nos. 1 and 2 were and are in joint possession of the entire property of Ghulam Shah as mentioned in schedule C'. The plaintiffs Nos. 1 and 2 are owners and have inherited the entire property of Ghulam Shah as his heirs and plaintiffs Nos. 3 and 4 are owners of half the property of Bahadur Khan having inherited it as daughters of Bahadur Khan while the plaintiffs Nos.1 and 2 are co-sharers as mentioned in scheduleG' attached herewith, which forms part of the plaint to the extent of -/1/- anna, besides the inherited property from Ghulam Shah. The plaintiffs Nos. 1 to 4 are the co-owners in survey numbers shown in the schedules A',B' and `C' and they are in joint possession of the suit land along with defendants Nos.1 to 11.

1. It was further stated in para-20 as follows:

The defendants Nos. 1 to 11 are co-sharer in most of the survey numbers of Ghulam Shah and Bahadur Khan and they are all denying the right, title, interest and share of the plaintiffs in the property of Bahadur Khan and Ghulam Shah, hence suit for declaration of their right, title and share in the property of Ghulam Shah and Bahadur Khan.

1. In the amended plaint after withdrawal of Rustam Khan and Bahawal Khan the remaining plaintiffs Mst. Bibi and Mst. Jamiat alleged in paras. Nos. 10, 11 and 12 as follows:

That Ghulam Shah Jagirdar died in or about December 1963 leaving behind his moveable and immovable properties as shown in schedule C' which forms part of this plaint and that his properties according to Mohammadan Law is inherited by plaintiffs Nos.1 and 2 and defendants Nos.1 and 2 in equal shares (the defendants Nos.1 and 2 were Mst. Zainab and Mst. Siani daughters of Bahadur Khan).

(11) The plaintiffs Nos.1 and 2 who are in joint possession of the entire property of Ghulam Shah as mentioned in schedule C'. The plaintiffs Nos.1 and 2 are owners having inherited the entire property of Ghulam Shah as his heirs and plaintiffs Nos.1 and 2 are owners of half the property of Bahadur Khan, and Ghulam Shah having inherited it as daughters of Bahadur Khan. The plaintiffs Nos.1 and 2 are co-sharer in the survey numbers mentioned in scheduleE' attached and which forms part of the plaint to the extent of -/1/- anna besides the inherited property from Ghulam Shah. The plaintiffs Nos.1 and 2 are co-owners in all the survey numbers shown in schedule A',B' and `C' and they are in joint possession of the said land along with defendants Nos.1 to 10.

(12) The defendants Nos. 1 to 10 are co-sharer in most survey numbers of Ghulam Shah and Bahadur Khan and they are all denying the rights, title, interest of Bahadur and Ghulam Shah, hence suit for declaration of their right, title and share in the property of Ghulam Shah and Bahadur Khan."

1. The above suit was decreed in favour of Mst. Bibi and Mst. Jannat by a preliminary decree dated 5-11-1968 and after report of the Mukhtiarkar Settlement Tando Muhammad Khan dated 1-3-1972, the final decree was passed in terms of preliminary decree and in terms of the report of Mukhtiarkar Settlement Tando Muhammad Khan. The decree further showed that the parties i.e. plaintiffs and defendants Nos.1 and 2 were related to each other being descendants of common ancestor. It was further held in the decree that the common ancestor of the plaintiffs and defendants was Hussain Khan Leghari of Brehmani - sect. He was a Sardar and grantee of Jagir from the Mirs and recognized and accepted as a first class Jagirdar .by the British as published officially under the memoirs by Major Fold Smith in the year 1888 by J. Pollen Assistant Commissioner in Sindh. Hussain Leghari holding Zamindari and Jagirdari land in village Hussain Khan Leghari District Hyderabad as detailed in schedule H'. According to schedule Ghulam Shah S/o Khuda Bux held 629-11 acres and Bahadur Khan S/o Khuda Bux held 427-37-1/2 acres, the detail whereof is given in SchedulesA', B',C' D' andB'. It was further held that the plaintiffs Nos. 1 and 2 and defendants Nos.1 and 2 are daughters of Bahadur Khan who was the younger brother of Ghulam Shah, both of them were direct descendants of Hussain Khan in the fourth degree and the plaintiffs and the defendants are Shia Musalman by faith and their ancestors were Shia Musalman by faith and Shia Musalman law of inheritance was applied and followed so far as the inheritance of their properties was concerned and the same is also applicable to the present case.

2. It was further held that the Bahadur Khan, the father of plaintiffs Nos. 1 and 2 and defendants Nos.1 and 2 died in or about the year 1953 leaving behind about 423-37-1/2 acres of agricultural land situated in Goth Hussain Khan Leghari Taluka Tando Muhammad Khan District Hyderabad, such properties were shown in schedule 'A'.

3. It was further declared that after the death of Bahadur Khan the properties were inherited by his descendants namely plaintiffs Nos.1 and 2 and defendants Nos.1 and 2 as daughters, three wives namely Mst. Siani, Mst. Mariyam and Mst. Batual and Ghulam Shah elder brother of Bahadur Khan. Three wives of Bahadur Khan inherited - -/2/- anna share in all i.e. -/-/8 paisas share each. Four daughters i.e. plaintiffs Nos. 1 and 2 and defendants Nos.1 and 2 inherits -/10/8 pies in all got -/2/8 each and the remaining -/3/4 share went to Bahadur Khan's elder brother Ghulam Shah Jagirdar and one of the wives of Bahadur Khan by name Mst. Siani who was daughter of Ali Muhammad Khan elder brother of Khuda Bux. Mst. Siani's brother by name Ghulam Muhammad died issueless. Mst. Siani inherited the property from Ali Muhammad after his death and transferred her entire share to her husband Bahadur Khan. It was further declared that Ghulam Shah Jagirdar before his death was owner and holder of 629-11 acres of agricultural land in Zamindari rights after lapse of his Jagir rights under M.L.R. 64, details whereof was given in schedule B'. it was further held that other immovable properties held by Ghulam Shah were also inherited by plaintiffs Nos. 1 and 2 and defendants Nos. 1 and 2 in equal share. It was also held that the plaintiffs Nos. 1 and 2 were and are in joint possession of entire property of Ghulam Shah as mentioned in ScheduleC'. The plaintiffs Nos. 1 and 2 are owners having inherited the entire property of Ghulam Shah as his heirs and the plaintiffs Nos. 1 and 2 are owners of half the property of Bahadur Khan and Ghulam Shah having inherited it as daughters of Bahadur Khan. The plaintiffs Nos. 1 and 2 are co-sharers in survey numbers mentioned in schedule `E' to the extent of -/1/-. It was further declared that defendants Nos. 1 to 10 are co-sharers in most of survey numbers of Ghulam Shah and Bahadur Khan and are all denying right, title, interest and share of the plaintiffs in the property of Bahadur Khan and Ghulam Shah. The defendants Nos. 1 to 10 have not given the share of the produce from the agricultural land from the year 1964-65 of Rabi crop and which has been forcibly misappropriated by them. Ultimately, the lands were partitioned, details whereof were shown in the decree.

4. The plaintiffs Bahawal Khan and Rustam Khan after withdrawal of the suit and claim from suit No. 138 of 1965 on 16-2-1967 again filed a Suit No.209 of 1967 against the defendants in the earlier suit and Mst. Bibi and Mst. Jannat the plaintiffs in Suit No. 138 of 1965 were also arrayed as defendants.

5. Through this suit they sought relief of declaration that they were the heirs and owners of -/8/- annas in the entire property,of deceased Bahadur Khan mentioned in schedule A' and that they be declared to be the owners of entire property of deceased Ghulam Shah as mentioned in scheduleC'. They further sought declaration that alleged gift executed by Ghulam Shah on 10-11-1958 was void, illegal and not binding on them. They further sought partition of the properties shown in, schedules A',B','C', D' andE' and a decree for mesne profits and accounts.

6. The defendants Nos. 3 and 4 namely Mst. Bibi and Mst. Jannat filed their written statements, denied the claim of the plaintiffs Bahawal Khan and Rustam Khan and 'took plea that Mst. Zainab and Mst. Siani the defendants Nos. 1 and 2 were their sisters and blood relation and it was contended that no other plaintiff or defendant was related to them by blood. They also denied that all the parties to the suit had common ancestor.

7. On the pleadings of the parties the issues were framed and the parties led their respective evidence.

8. In cross-examination plaintiff Bahawal Khan admitted that in suit No. 138 of 1965 they were plaintiffs with Mst. Bibi and Mst. Jannat and subsequently they withdrew their claim as plaintiffs and the suit was subsequently decreed in favour of Mst. Bibi and Mst. Jannat. The land was partitioned in the execution of said decree among all the Khatedars, but Bahawal Khan and Rustam Khan did not get any land in that partition. He further stated that he did not prefer any appeal against the decree in partition suit. The suit was ultimately dismissed for the reason that the plaintiffs were not entitled for the relief claimed. The respondents/plaintiffs Bahawal Khan and Rustam Khan preferred appeal, which was allowed, vide the impugned judgment and decree. The judgment and decree passed by the learned trial Court was set aside and the suit was decreed. A preliminary decree was passed in respect of partition, mesne profits and accounts and the final decree was to follow after the report of Nazir Civil Court who was appointed as Commissioner. Being aggrieved the applicants have filed this revision application.

9. I have heard Mr. Abdul Sattar Shaikh learned counsel for the applicants and Mr. Aijaz Ali Hakro, learned counsel for the respondents.

10. As observed in the opening part of this judgment, the short and ticklish point requiring consideration is, whether in the wake of a decree in suit No. 138 of 1965 to the knowledge of the respondents/plaintiffs and without seeking setting aside, modification or variation of the decree, a second decree is sustainable in respect of the same subject-matter and whether the subsequent decree can have the effect of overriding the earlier decree.

11. I asked the learned Advocates for the parties to produce any case law on the point but both of them deterred their inability to produce any case law on this point. They stated that they are unable to lay hand on any case law directly on this point. Thus, it is a question of first impression.

12. I am of the considered opinion that one of the cardinal principles pertaining to the administration of justice is that with a final decree in respect of particular subject-matter the controversies should be laid to rest. The finality of the decree can be disturbed by way of appeal, revision, review or an application under section 12(2), C.P.C. and prior to the insertion of section 12(2), C.P.C., by way of separate suit. If any of these courses are not adopted no subsequent suit seeking relief, which has the effect of disturbing or interfering with the earlier decree is maintainable and decree passed if any, is not sustainable in law. The purpose of final determination of the issues through a final decree is to settle the issues and if this principle is not adhered to, the issues shall never attain finality and there would be chaos and anarchy and the concept of finality of decree shall be eroded and the decree passed by the competent Court of jurisdiction shall become redundant and otiose. In my humble opinion such a situation would be totally disastrous, shattering the entire warp and woof of the" fabric of judicial system.

13. Mr. Abdul Sattar Shaikh, learned counsel for the applicants attempted to argue that subsequent suit was barred by principle of res judicata but I am not persuaded to agree with the submission. Principle of res judicata is not applicable to the facts and circumstances of the present case for the reasons that Bahawal Khan and Rustam Khan were though initially plaintiffs in suit No. 138 of 1965, but subsequently, they had withdrawn their claim and suit, and were not the parties to the final judgment and decree. The principles contained in Order II, Rule 2, C.P.C. and the Law of Estoppel is also not attracted. hi fact the proper course open for the respondents Rustam Khan and Bahawal, was that after realizing that their interest was inconsistent with the interest of Mst. Bibi and Mst. Jannat and there was clash of interest, they ought to have prayed for transposing Mst. Bibi and Mst. Jannat as defendants or they would have requested for transposing themselves as defendants raising counter claim. The second course open to them was that after filing of the second suit they could have requested for consolidation of the two suits thereby prosecuting their case for determination of their rights vis-a-vis the plaintiffs Mst. Bibi and Mst. Jannat. The consolidated issues could be framed and by adopting that course there would have been no situation of existence of one final decree in favour of Mst. Bibi and Mst. Jannat in respect of the suit property, which was also the subject-matter of second suit filed by them. By adopting either of these courses the passing of conflicting decrees could have been easily avoided. The decree so passed would have determined the right, title and interest of all the parties concerned including Mst. Bibi and Mst. Jannat as well as Rustam Khan and Bahawal Khan. In any case if this course was not adopted then, notwithstanding, the fact that they were not parties to the earlier suit, they could challenge the decree in Suit No. 138 of 1965 by way of appeal as an aggrieved person because it was adversely affecting their rights. Even if this course was not adverted to, Bahawal Khan and Rustam Khan could challenge the decree in Suit No. 138 of 1965, by a separate suit, as by that time the section 12(2) was not inserted in C.P.C. By adopting any of such courses the setting aside or B modification or variation in decree passed in Suit No.138 of 1965 could be prayed. As none of these courses were adopted and decree in suit No. 138 of 1965 attained finality to the knowledge of Bahawal Khan and Rustam Khan whereby it was declared that the suit property was owned by Mst. Bibi and Mst. Jannat and Mst. Zainab and Mst. Siani in equal shares and the properties were partitioned as well, such decree could not be disturbed by another decree to the contrary in any subsequent suit for the reason that it cannot be done. It militates against the principle of finalization of decree.

14. For the foregoing reasons I am of the considered opinion that the judgment and decree passed by the learned 1st Appellate Court is illegal and not sustainable in law, which is hereby set aside. The judgment and C decree passed by the learned trial Court dismissing the suit is hereby restored but for the reasons assigned above. The revision application is allowed accordingly and the suit stands dismissed with no order as to costs.

P L D 2005 Lahore 1

Before Mian Saqib Nisar, J

MUHAMMAD AKBAR---Petitioner

Versus

MUHAMMAD MALIK and another---Respondents

Writ Petition No.2163 of 2000, heard on 30th August, 2004.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 24---Constitution of Pakistan (1973), Arts. 199 & 203---Constitutional petition ---Pre-emption---Zar-e-Soem (Pre-emption money)---Determination of value of land---Procedure---Supervisory jurisdiction of High Court, exercise of---Trial Court on presenting of plaint, directed pre-emptor to deposit Zar-e-Soem according to the value mentioned in sale-deed ---Pre-emptor disputed the consideration amount and on the application of the pre-emptor, the Trial Court reduced the value of sale consideration and directed the pre-emptor to deposit Zar-e-Soem according to the value mentioned by the pre-emptor ---Order amending Zar-e-Soem was assailed before Appellate Court in exercise of revisional jurisdiction---Appellate Court allowed the revision and directed the pre-emptor to deposit Zar-e-Soem as per the value mentioned in sale-deed---Validity---If sale price mentioned in the sale deed or mutation appeared to be inflated, the Trial Court before requiring the deposit of 1/3rd, would determine the probable value of the property, under second proviso to S.24 of Punjab Pre-emption Act, 1991---Such determination could only be done either on the basis of material, which had been placed on the record by the pre-emptor, or if the matter was contested by the vendee, by holding an appropriate inquiry, considering the data placed on the record by both the sides---Appellate Court rightly interfered in the matter to the extent of setting aside of the order of Trial Court but after setting aside the order, the Appellate Court should have sent the matter for determination of the probable value of the land and thereafter for the issuance of the direction to the pre-emptor to pay 1/3rd thereto---Appellate Court also failed to exercise its proper jurisdiction and passed the order by taking the amount of sale consideration mentioned in the deed as to be the probable value of the property---Both the Courts below had failed to apply the provision of second proviso to S.24 of Pre-emption Act, 1991, in its true and proper, context---Orders passed by both the Courts below were not valid and were set aside by High Court in exercise of Constitutional and supervisory jurisdiction under Arts. 199 and 203 of the Constitution respectively---Case was remanded to Trial Court for fixing the probable value of suit land---High Court directed the Trial Court to redirect the pre-emptor to deposit 1/3rd of such value as determined on the basis of material placed before it---Petition was allowed accordingly.

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

----S. 115---Constitution of Pakistan (1973), Arts.199 & 203---Order passed in revisional jurisdiction by Appellate Court---Assailing such order before High Court in exercise of Constitutional jurisdiction--­Validity---Not an absolute rule that an order passed in revision, cannot at all be interfered with in the, Constitutional jurisdiction---Where the justice demands, an exception can be taken thereto and High Court besides Art.199 of the Constitution, can invoke its supervisory jurisdiction under Art.203 of the Constitution, to correct the orders, when same are perverse, fraudulent, erroneous and have been passed either in express violation or the ignorance of any provision of law---Constitutional jurisdiction could be invoked in circumstances.

(c) Court---

----Inherent power---Correction of incorrect order---Principle---Court has inherent power to correct its incorrect order.

Malik Amjad Pervaiz for Petitioner.

Malik Noor Muhammad Awan for Respondents.

Date of hearing: 30th August, 2004.

P L D 2005 Lahore 5

Before Mian Saqib Nisar and Syed Sakhi Hussain Bokhari, JJ

TRUST MODARABA through Trust Management Services, Lahore---Appellant

Versus

TRUST LEASING CORPORATION LTD. through Chief Executive and 4 others---Respondents

E.F.A. No.54 of 2003, heard on 8th July, 2004.

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

----Ss.47, 63, 73 & O.XXI, R.100---Property attached in decrees of more than one Court---Determination of claims and objections--­Procedure---Jurisdiction of one Court---Object and scope---Spirit and the purpose embodied in S.63, C.P.C. is objected to preclude and avoid the conflicting decisions over the divergent claims and the objections filed by various persons, qua the same property which is under attachment of different Courts---Rationale and logic behind the provision of S.63, C.P.C. is to obviate any predicament and an anomalous situation which may arise, if different Courts start taking cognizance of claims or objections and their decisions, in equity may result into grave prejudice and injustice to others having right or interest in the same attached property---Preference of one Court over all other Courts, therefore, has been enunciated by S.63, C.P.C.---First in the category is the Court o: highest grade and if there is none and all the Courts are of equal jurisdiction, the Court which has first attached the same property of the common judgment-debtor would take precedence---Provision of S.63, C.P.C. has an independent application and when so applied, notwithstanding its reference to S.73, C.P.C., it would inter alia, cover the matters falling within the purview of S.47, C.P.C. or O.XXI, R.100 C.P.C. etc.

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

----Ss.63 & 73---Property attached in decrees of more than one Court--­Ratable distribution, principle of---Forum for adjudication---Additionally the provision of S.63, C.P.C. is supplemental to S.73, C.P.C. and when the question about ratable distribution of the attached property/assets to terms of S.73, C.P.C. arises, the forum for the adjudication thereof is the one which is envisaged by S.63, C.P.C.---If the property has been attached by; two or more Courts having same grade and the property is sold by one of them, while the execution application was pending before the other, then the assets sold and the price received, to all intents and purposes, would be held for the purposes of the other Court, in which the property was attached at the time of receipt of the assets.

Simla Banking and Industrial Co. Ltd. Lahore v. Indo Swiss Trading Co. Ltd. Calcutta and another 1938 Lah. 754 and Jagdish Chand v. Bhim Sain and others AIR 1980 Delhi 283 ref.

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

----Ss.63 & 73---Property attached in decrees of more than one Court--­Ratable distribution, principle of---Applicability---Property subject matter of the instant appeal was attached in two cases one decided by Banking Court while the other was decided by Modaraba Tribunal---In execution of decree passed by Banking Court, the property was sold through auction---Application of appellant for ratable distribution of the sale proceeds of the property regarding satisfaction of both the decrees was dismissed by Banking Court---Validity---Execution application of appellant with Modaraba Tribunal was deemed to be an application under S.73, C.P.C.---As the property had been sold by Banking Court it would be the Court holding the assets which were sold and the money had been received for all other Courts, where the same property had been attached and/or any execution application was pending against the same judgment-­debtor for the satisfaction of decrees against them---Notwithstanding any Specific application under S.73, C.P.C. when before disbursement of the amount to decree holder, the Banking Court was informed that there was another decree which was in favour of the appellant and its execution was pending before the same Court, though in a different jurisdiction, the Banking Court should have proceeded to consider that execution application to be one for ratable distribution under S.73, C.P.C. for granting requisite relief to the appellant---Appellant was entitled to ratable distribution of the sale proceeds along with the decree holder of the decree passed by Banking Court---High Court directed the Banking Court to decide the question about ratable distribution of sale proceeds of the property in accordance with law---Appeal was allowed accordingly.­

Pakistan Industrial Credit and Investment Corporation Limited Peshawar Cantt. and others v. Government of Pakistan through Collector Customs, Customs House, Jamrud Road, Peshawar and others 2002 SCMR 496; PICIC v. Allied Textile Mills Ltd. 1991 MLD 2301; Dwarkadas v: Ghasiram AIR 1921 Nag. 5; S.M. Thakkar v. M/s. A.K. Hazra & Sons and others AIR 1979 Pat. 38; Sm. Rajlakshmi Dassi v. Bonamali Sen and others AIR 1955 Cal. 573; Vishnubhotla Ramayyan v. Sa.l1a Namayya and others AIR 1943 Mad. 165 Balaji v. Gopal AIR 1929 Nag. 148 and Maidin Rowthan v. Dakshyani Amma and another AIR 1941 Mad. 125 ref.

Sh. Naseer Ahmad for Appellant.

Syed Najam-ul-Hassan Kazmi for Respondent.

P L D 2005 Lahore 15

Before Khawaja Muhammad Sharif, Mian Muhammad Najam-uz-Zaman and Asif Saeed Khan Khosa, JJ

FAROOQ AHMED ----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Law and Parliamentary Affairs, Government of Pakistan, Islamabad ----Respondent

Writ Petition No. 20645 of 2002, decided on 6th December, 2004.

(a) Juvenile Offender---

---- Treatment of a child accused committing a crime---By and large a child is considered to be deserving of special treatment because of his innocence and lack of proper understanding of the nature or consequences of his conduct---Young person who has already lost his childhood virtue, innocence and incorruptibility and who understands the nature or the normal consequences of his conduct, no matter what is his age, may cease to qualify for such special handling as a child.

Sages down the ages have generally perceived an accused person; before establishing of his guilt beyond reasonable doubt, as the darling of a criminal court and if such an accused person happens to be a child then the romance about him usually receives a further sympathetic boost. The raison d'etre for such sympathy may not be difficult to discern as by and large a child is considered to be deserving of special treatment because of his innocence and lack of proper understanding of the nature or consequences of his conduct. However, a young person who has already lost his childhood virtue, innocence and incorruptibility and who understands the nature or the normal consequences of his conduct, no matter what his age, may cease to qualify for such special handling as a child.

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

----Preamble---Penal Code (XLV of 1860), Ss. 82, 83 & 299(a) & (i)--­Criminal Procedure Code (V of 1898). S.399---Constitution of Pakistan (1973), Arts. 199, 23, 25, 26 & 12---Constitutional petition---Vires of Juvenile Justice System Ordinance, 2000---Juvenile Justice System Ordinance, 2000 was struck off the statute book on account of its being unreasonable, unconstitutional and impracticable on the basis of reasons recorded in the Judgment---Parliament may, if it so desires, enact a fresh law in this regard-after attending to all the infirmities of the Ordinance highlighted by the High Court---Juvenile Courts established under the Juvenile Justice System Ordinance, 2000, as a necessary consequence of the declaration made and the order passed in the Judgment, shall stand abolished forthwith and all the cases pending before all such Courts shall, ipso facto, stand transferred to the ordinary courts of competent jurisdiction---High Court, for the purpose of removal of a possible doubt clarified that from the date of promulgation of the Juvenile Justice System Ordinance, 2000 to the date of its annulment through the present Judgment (6-12-2004) accused persons below the age of eighteen years involved in criminal cases have enjoyed immunity from the sentence of death but now through annulment of the Ordinance that immunity from the sentence of death has disappeared---By virtue of Art. 12(1)(b) of the Constitution an accused person who had enjoyed such immunity from the sentence of death at the time of commission of an offence cannot subsequently be sentenced to death, and in view of this constitutional position, accused person involved in an offence committed between the date of promulgation of Juvenile Justice System Ordinance, 2000 and the date of announcement bf the present judgment, shall be well within his constitutional' right to assert and establish that he was less than eighteen years of age at the time of commission of the alleged offence and then to claim immunity from the sentence of death.

In the present case it has been argued by the petitioner that the matter of treatment of a child accused of committing a crime has already been adequately and satisfactorily taken care of by sections 82, 83 and 299 (a) & (i) of the Pakistan Penal Code, 1860 as well as by section 399 of the Code of Criminal Procedure, 1898 and that introduction of the Juvenile Justice System Ordinance, 2000 has created unnecessary confusion in this field. He has maintained that most of the provisions of the impugned Ordinance are unreasonable, absurd and downright impracticable. He has added that the matter of sentencing of a young offender always receives a careful and generally sympathetic consideration by the courts keeping in view the special features of a particular case and, thus, there was no occasion for the impugned Ordinance to categorically forbid passing of a sentence of death against an offender below the age of eighteen years. He has gone on to maintain that the provisions of Articles 25(3) and 26(2) of the Constitution of the Islamic Republic of Pakistan, 1973 do not envisage extending protection to children in a manner that leaves others unprotected at the hands of such children. According to the petitioner the protection afforded to young offenders through the impugned Ordinance against the sentence of death has encouraged the adults in our society to settle their murder feuds by prompting their young ones to kill their enemies and to get away with lesser sentences. This abuse or misuse of the provisions of the impugned Ordinance, according to him, has promoted murders and has gone a long way in denying the victims their right to life guaranteed by Article 9 of the Constitution. It has also forcefully been maintained by the petitioner that the impugned Ordinance has encouraged and promoted corruption in the society, inasmuch as fake School Leaving Certificates are being obtained, incorrect medical opinions about age are being procured, forgeries and interpolations are being committed in the Registers of Births maintained at the Union Councils and. false Nikahnamas of parents of accused persons are being prepared with a, view to show the age of an offender to be less than eighteen years at the time of occurrence so that a possible sentence of death may be avoided against him in cases of terrorism, murder, gang-rape or trafficking in narcotics, etc. It has, thus, been canvassed that a law which corrupts the society at large in the name of protection to children is not worth retaining on the statute book. It has been added that the impugned Ordinance had been introduced without prior public debate and in the absence of any discussion in the Parliament which was non-existent at that time It has lastly been argued by him that the impugned Ordinance had been promulgates by an unrepresentative government under the pressure of the Western governments and donor agencies without appreciating that it view of the peculiar social, economic, climatic and dietary factors a child in our part of the world attains maturity of understanding relatively sooner than in the West. Thus, according to him, the Western standards in this regard could not blindly or slavishly be applied in our country.

High Court on a critical examination of the Juvenile Justice System Ordinance, 2000 recorded elaborate reasons for striking off the said Ordinance from the statute book in the following terms:

Juvenile Justice System Ordinance, 2000 has not appeared to be the finest example of legislative draftsmanship inasmuch as its language as well its contents have been found to be defective and un-thoughtful in many ways. A defect in the form or language of a legislative instrument can be swallowed with a pinch of salt or overlooked with disappointment but a defect in its substance or content cannot remain without being followed by the requisite or necessary legal consequences. There is no denying the fact that on account of his tender age a child deserves special handling and treatment and even before the introduction of the impugned Ordinance different laws in the country already provided for sympathetic and concessionary treatment of minor accused persons and offenders in the matters of capacity to commit a crime, bail and custody as is evident from the provisions of sections 82 and 83 of the Pakistan Penal Code and sections 29-B, 497 and 399 of the Code of Criminal Procedure. The concept of Borstal Institutions and Reformatory Schools for young prisoners already stood recognized and 'put into practice by various legislative enactments even prior to, promulgation, of the impugned Ordinance. Even .in the matter of sentencing the courts have all along been particular in attending to the factor regarding age of the offender before passing a sentence against him. All these measures had blended well with the remaining body of laws and the progress and direction of the law relating to children was by and large steady and positive. The injection of the impugned Ordinance into the legal system has, however, been found to be rather abrupt and not very well thought of besides the dose being heavier than required at such a stage of development of laws in Pakistan and social behaviour. Apart from that the impugned Ordinance is inconsistent with and violative of Articles 4, 9 and 25 of the Constitution besides being replete with incompatibilities with other laws, glaring impracticalities, some downright absurdities and a number of obscurities rendering the same unfit and unsafe for-retention in criminal justice system of Pakistan. Definition of a `child', provisions relating to separate trial bf a child, a part of the provisions concerning, bail during trial and abolition of the sentence of death vis-a-vis a child are some of the areas which require special attention in this context.

The age fixed by the impugned Ordinance for determining whether an accused person is a child' or not has been found to have been fixed arbitrarily and randomly. Section 2(b) of the impugned Ordinance defines achild' as "a person who, at the time of commission of an offence, has not attained the age of eighteen years". This definition of a child' makes no distinction between a male and a female and no other yardstick has been provided by this definition except age in terms of years. In Pakistan, England and India different ages have been specified for declaring an accused person achild' or a juvenile' for the purposes of special treatment as such. In Pakistan itself different measures have been provided in this regard by different statutory provisions. Section 3 of the Majority Act, 1875 fixes the age of majority as eighteen years and in one particular situation twenty-one years. Section 82 of the Pakistan Penal Code provides that "Nothing is an offence which is done by a child under seven years of age" and section 83 of the same Code provides that "Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion." The impugned Ordinance fixes the age of achild' as less than eighteen years. As against that according to the definition of an adult' contained in section 2(a) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979"adult' means a person who has attained, being a male, the age of eighteen years or, being a female, the, age of sixteen years, or has attained puberty". This definition of an adult' contained in the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 not only recognizes the distinction between different ages at which males and females attain adulthood but, it also recognizes that adulthood may be attained by both males and females even before the specified ages if it is established that they have attained puberty. Even section 2(a) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and Article 2(a) of the Prohibition (Enforcement of Hadd) Order, 1979 define anadult' as "a person who has attained the age of eighteen years or puberty". Section 29-B of the Code of Criminal Procedure, 1898 refers to a juvenile' as a person "under the age of fifteen years" and according to section. 29(1)(a) of the Punjab Youthful Offenders Ordinance, 1983 .achild' is as a person who "has not attained the age of fifteen years" The law officers have failed to point out as to on what basis, material or criterion the impugned Ordinance has fixed the age of a child' as less than eighteen years. They have also failed to refer to any meaningful or detailed study of the social patterns or criminal trends or any statistical data in that regard supporting such fixation of age of achild' by the impugned Ordinance. All this shows that while fixing the, age of a `child' in the impugned Ordinance the criterion 'adopted was nothing but arbitrary and whimsical. Such an arbitrary or random exercise in legislation can hardly be accepted by a Court of law as reasonable or based upon any intelligible differentia so as to save it from a challenge based upon unreasonable classification and discrimination.

There is a lot of substance in the argument that the stages and standards pertaining to attaining of maturity by young, persons in different parts of the world are different and the stages and standards in that regard acceptable in one part of the world may not be strictly relevant to other parts .of the world. Such attainment of maturity of understanding is dependent upon social, economic, climatic and dietary factors and there is every reason to understand that a child in this part of the world starts understanding, the nature and consequences of his conduct sooner than a child in the West. Growing up in close proximity and interaction with, adults due to social and economic conditions, doing odd jobs and getting employed at a relatively young age due to general poverty, hot climate and exotic and spicy food all contribute towards a speedy physical growth and an accelerated maturity of understanding of a child in the society.

The British Parliament which had enacted sections 82 and 83 of the Pakistan Penal Code (at that time the Indian Penal Code, 1860) had subsequently fixed a different yardstick in terms of age regarding attainment of maturity of understanding of the nature and consequences of conduct in respect of young offenders in England. According to section 50 of the Children and Young Persons Act, 1933 as amended by section 16 of the Children and Young Persons Act, 1963 there is a conclusive presumption that no child under the age of ten years can be guilty of any offence and an infant between the ages of ten and fourteen years was presumed to be doli incapax but this presumption was rebuttable by evidence of "mischievous discretion" or guilty knowledge that he was doing something which was wrong.

Such different treatment of young delinquents in different parts of the world by the same legislative source goes a long way in fortifying the observations that no universal yardstick can be fixed in that regard. Speedy attainment of maturity of understanding by children in rural areas of the Indo-Pak sub-continent is also accepted.

A female attains puberty when she starts menstruating and that a male attains puberty when he starts secreting semen. This difference in the laws of Pakistan and England in this regard may have a direct nexus with the local social, economic, climatic and dietary factors and the same goes a long way in highlighting thus questions of adulthood may receive different responses in different parts of the world. Even in the Indo-Pak sub-continent itself the standard of adulthood in the context of juvenility has been fixed differently. According to section 2(b,) of the impugned Ordinance a child' is "a person who, at the time of commission of an offence, has not attained the age of eighteen years" whereas in India section 2(h) of the Juvenile Justice Act, 1986 provides that "juvenile' means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years". This again highlights the importance of undertaking an in-depth study of the local social and other conditions before promulgating a law like the impugned Ordinance but, alas, no such exercise is shown to have been undertaken in this regard in Pakistan before introduction of the impugned Ordinance. This has made the unreasonableness in this regard worst confounded.

The impugned Ordinance has also been found to be marred by various impracticalities of diverse nature. For instance subsection (3) of section 4 of the impugned Ordinance provides that "The Juvenile Court shall have the exclusive jurisdiction to try cases in which a child is accused of commission of an offence". This shows that all offences allegedly committed by a child are triable exclusively by a Juvenile Court. This provision is, however, directly in conflict with many other laws which make certain specified offences triable exclusively by Special Courts, i.e. Anti-Terrorism Courts, Narcotics Courts, Drug Courts, Banking Courts, etc It is interesting to notice that a Juvenile Court has been conferred the exclusive jurisdiction to try an offender whereas the Special Courts mentioned above have the exclusive jurisdiction to try the relevant offences. An offender cannot be tried by a court having no jurisdiction to try the relevant offence and conversely an offence cannot be tried by a court having no jurisdiction over the offender! Section 14 of the impugned Ordinance providing that "The provisions of this Ordinance, shall be -in addition to and not in derogation of, any other law for the time being in force" has compounded the confusion in this regard as instead of resolving the conflict it has provided feed to the same.

Likewise, the provisions of section 5 of the impugned Ordinance present a nightmare of impracticality by mandating that "no 'child shall be charged with or tried for an offence together with an adult" and in a case involving adult as well as child accused persons separate trials are to be conducted of the adult accused by the ordinary court and of the child accused by the Juvenile Court. Such separate trials of different accused persons in the same case by different courts not only raise questions of undue inconvenience and hardship for the complainant party involving issues pertaining to equality before law and equal protection of law under Article 25 of the Constitution but they also present a real prospect of conflicting judgments being rendered by different courts trying the same case. Interestingly section 5 of the impugned Ordinance excludes the application of section 239 of the Code of Criminal Procedure in this regard but at the same time section 14 of the impugned Ordinance provides that "The provisions of this Ordinance shall be in addition to and not in derogation of, any other law for the time being in force". There is justification in observing that the impugned Ordinance has appeared to be un-thoughtful and not a fine example of legal draftsmanship.

It is not just the difficulties of a Magistrate or the delay in the child's trial which are of primary or paramount importance but what is at stake is the interests of justice in the larger context. After all such serious questions of justice pertaining to adults cannot be lightly or conveniently sacrificed at the altar of interests of children or juveniles. The English approach in respect of joint or separate trials of adults and children to be preferred rather than the Indian approach towards the issue. Such differences of approach and the merits or demerits of each such approach could have been thrashed and ironed out if a public or parliamentary debate had preceded the promulgation of the impugned Ordinance but unfortunately that was not the case. Apart from that it has been agreed before us by all concerned that, as pointed out by Mr. Malik, the spirit of the provisions of section 5 of the impugned Ordinance is invariably being ignored by the trial courts as the same Sessions Judges and Additional Sessions Judges are functioning both as the ordinary courts as well as the Juvenile Courts and more often than not a `child' accused is tried by the same Judge who tries the adult accused and the evidence recorded in the adult's trial is usually transferred and adopted by such courts for the purposes of the child's trial. Such a practice is highly objectionable besides being clearly illegal and the same appears to be counterproductive to the interests of the child accused as he is not even present before the ordinary court at the time of recording of the evidence in the adult's trial. It is better not to have a law rather than to have a law which is universally disregarded or flouted with impunity.

Section 6 of the impugned Ordinance is yet another example of impracticability. According to subsection (2) of section 6 of the impugned Ordinance "A Juvenile Court shall not ordinarily take up any other case on a day when the case of a child accused is 'fixed for evidence on such day". The word "ordinarily" has not been explained by the impugned Ordinance nor any exception has been specified and, thus, a discretion has been conferred without spelling out or indicating the parameters of its exercise. It is, therefore, not surprising that this provision is being completely ignored by the Juvenile Courts while conducting cases. Apart from that the same Sessions Judges and Additional Sessions Judges are functioning both as the ordinary courts as well as the Juvenile Courts and it is not practically -possible for such courts to abstain from taking up any other case on a day when the case of a child accused is fixed for evidence on such day. Such a manner of protection for a child at the cost of complete paralysis or breakdown of the judicial system at the plenary level vis-a-vis the adult citizenry has appeared to us to be too big a price to be even seriously contemplated, considered or mulled over.

Section 7 of the Ordinance has created nothing but havoc in the criminal justice system in particular and in the society in general. According to section 7 "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" High Court took judicial notice of the fact that because of this provision a large number of criminal cases witness a main trial regarding the age of an accused person before or during, and sometimes even at the fag end of the main trial of the accused person and during this exercise evidence, both oral and documentary, is received. A decision of the trial court in that regard is then assailed through a revision petition before this Court and then the matter is taken to the Supreme Court. Sometimes such issues are also raised for the first time in appeals before High Court and in appeals or petitions before the Supreme Court without this matter having been agitated before the trial court at all. A lot of time is consumed in this process and more often than not such an exercise is undertaken with intentions and purposes which are other than bona fide. Supreme Court of Pakistan had not only taken notice of but had also deprecated a growing trend that convicts already sentenced to death were trying to prove themselves to be children for the first time after the matters of their convictions and sentences had attained finality through the judgments rendered by the apex court itself. According to its annual report published by the Human Rights Commission of Pakistan on the `State of Human' Rights in 2003' in July, 2003 over 300 cases were pending in the Province of the Punjab alone wherein the ages of convicts on death row were being contested and after exhausting all the judicial remedies against their conviction and sentence the convicts we, trying to establish that they were less than eighteen years of age on the day of occurrence and, thus, they could not be sentenced to death.

The impugned Ordinance is encouraging and promoting corruption in the society at a scale which is not only large but is also extremely alarming. Almost every day cases are coming up before us wherein fake School Leaving Certificates are obtained, incorrect medical opinions about age are procured, forgeries and interpolations are committed in the Registers of Births maintained at Union Councils and false Nikahnamas of parents of accused persons are prepared with a view to show the age of an accused person to be less than eighteen years at the time of occurrence so that a possible sentence of death may be avoided against him in cases of terrorism, murder, gang-rape or trafficking in narcotics, etc. The impugned Ordinance therefore, is promoting falsehood, lies, forgeries and corruption in the society at a large scale and a law which corrupts the society at large in the name of protection for children is not worth retaining on the statute book. Destruction of the moral fibre of the society as a whole is once again too big a price to be paid for protection of children. Such a protection of a child in one criminal case at the micro level is surely not protection at all in the larger context or in the real sense if the society which such child is about to enter as an adult is allowed to be polluted and corrupted at the macro level. Even otherwise a law which contains such incentives for and has tendencies to corrupt the society to such a manner is counterproductive, paradoxical and at odds with the "protection of law" contemplated by the provisions of Articles 4 and 25 of the Constitution.

Section 10 of the impugned Ordinance provides for bail for a child accused but subsection (3) of section 10 contemplates a situation where a child accused of even a bailable offence may not be released on bail. This is clearly .a negation of the `right' of bail in such cases provided for by section 496 of the Code of Criminal Procedure. Such a denial of the right of bail by the impugned Ordinance is nothing but incongruous and impracticable in the absence of an appropriate amendment of section 496 of the, Code of Criminal Procedure. Apart from that the concession of bail for a child accused contemplated by subsection (7) of section 10 of the impugned Ordinance has been whittled down by the -proviso to that subsection with reference to the nature and gravity of the offence allegedly committed or previous conviction of the accused. If such considerations are acceptable or relevant for refusing even bail to a child accused then there does not appear to be any justification for not allowing passage of the normal sentence against such accused person for such an offence committed by him. This inaptness in the impugned Ordinance exposes its lack of profundity and soundness.

All these infirmities in the impugned Ordinance have convincing force that the same is an impracticable piece of legislation which has been enacted without proper deliberation, thoughtfulness, care and attention to detail. Allowing such a law to continue to hold the field is risky and unsafe besides being perilous and hazardous to criminal justice system of Pakistan.

By virtue of section 12 of the impugned Ordinance "Notwithstanding anything to the contrary contained in any law for the time being in force no child shall be--(a) awarded punishment of death". In England the Children Act, 1908 made an immunity from the sentence of death available to an offender who is less than sixteen years of age and in India such an immunity is available under the Juvenile Justice Act, 1986 to a boy less than sixteen years of age and a girl less than eighteen years of age. No reasonable or rational basis has been disclosed or made available before us to show as to why the age of eighteen years has been fixed in that regard in Pakistan through the impugned Ordinance. Such an exercise of legislative authority is clearly unreasonable and discriminatory as the relevant classification is not based upon any intelligible differentia.

Apart from an immunity from the sentence of death provided by section 12 of the impugned Ordinance the provisions of section 10 of the impugned Ordinance contemplate a lenient and liberal approach towards bail for such 'accused persons and after their conviction section 11 of the said Ordinance provides for their release on probation. There is a lot of substance in the argument that such immunity from the sentence of death, lenience in the matter of bail after arrest and prospects of release on probation after conviction provided for in the impugned Ordinance contain incentives for and have the tendency of not only encouraging persons below the age of eighteen years to commit heinous crimes like murder, gang-rape, terrorism and trafficking in narcotics, etc. but the same may also embolden the older people in the society to prompt their young ones to commit such crimes with an understanding and assurance that they would get away with lesser sentences apart from availing of concessions in the matters of bail and release on probation, It is, thus, not surprising that incidents involving such crimes have significantly increased after introduction of the impugned Ordinance and a substantial number of cases being tried at present by the Juvenile Courts involve such heinous offences. According to its annual report published by the Human Rights Commission of Pakistan on the `State of Human Rights in 2003' over 12,000 children of less than 18 years of age were arrested in the Province of the Punjab from July 01, 2002 to March 01, 2003. The Amnesty International had reported that in June, 2003 around 4,500 juveniles were in detention across Pakistan and in July, 2003 over 300 cases were pending in the Province of the Punjab alone wherein the ages of convicts on death row were being contested and after exhausting all the judicial remedies against their conviction and sentence tile convicts were trying to establish that they were less than eighteen year's of age on the day of occurrence and, thus, they could not be sentenced to death. The extent of involvement of young persons in cases involving a sentence of death can well be gauged from the said report. The statistics published in the Daily Jang, Lahore on 15.11.2003 reveal the following picture as far as the Province of the Punjab is concerned:

Juvenile prisoners in the Punjab Jails:

| | | | | | | | --- | --- | --- | --- | --- | --- | | Penal provision(section) | Offence | Under-trial (boys) | Under- Trial (girls) | Convicted (boys) | Convicted (girls) | | 302, PPC | murder | 432 | 4 | 147 | 2 | | 324, PPC | attempted murder | 197 | - | 25 | | | 392/395, PPC | robbery/ dacoity | 159 | - | 10 | - | | 452/379/382/411, PPC | trespass/theft/ handling stolen property | 161 | 1 | 8 | - | | 365/366, PPC | kidnapping/ abduction | 12 | - | - | - | | 3/4, PEHO | narcotics | 158 | - | 73 | 2 | | 10/11, OZEHO | zina/ abduction | 135 | 8 | 20 | 1 | | 12, OZEHO | sodomy/ abduction | 122 | - | 33 | - | | | other crimes | 49 | - | 1 | | | total | | 1425 | 13 | 317 | 5 |

General statistics:

| | | | --- | --- | | Total juvenile prisoners | 1992 | | total boys | 1974 | | total iris | 18 | | total boys and iris sentenced to death | 13 | | convicted boys | 357 | | convicted girls | 5 | | Under-trial boys | 1604 | | Under-trial girls | 13 | | number of jails | 30 | | jails for juveniles | 2 |

These figures clearly manifest that the apprehensions in this regard are not merely hypothetical or conjectural but the same find support from hard facts and conscious and deliberate misuse of the impugned ordinance is more of a stark reality than merely a possibility.

According to the Preamble the impugned Ordinance is "An Ordinance to provide for protection of the rights of children involved in criminal litigation". This Preamble is remarkably different from the Preamble to the Indian Juvenile Justice Act, 1986 which reads as follows: "An Act to provide for the care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for the adjudication of certain matters relating to, and disposition of, delinquent juveniles". According to section 2(e) of the Indian Act a delinquent juvenile' is "a juvenile who has been found to have committed an offence" and according to section 2(1) aneglected juvenile' is a juvenile who is found begging or who is homeless and without any ostensible means of subsistence and is a destitute or whose parent or guardian is unfit or incapacitated or who lives in or frequently visits a brothel or who is being or is likely to be abused or exploited for immoral or illegal purposes or unconscionable gain. Thus, the emphasis in India appears to be on a juvenile already found guilty of committing a crime or a helpless and neglected juvenile whereas in Pakistan the focus is only on protection of the "rights of children" "involved in criminal litigation".

The fact cannot be disputed that "special provisions" for the protection of women and children contemplated by provisions Arts.25, and 26 of the Constitution are meant to be additional advantages for women and children in certain respects and such "special provisions" cannot be allowed to have the effect of denying others their own rights under the said or other provisions of the Constitution.

As regards the generality of citizens the right to life guaranteed by Article 9 of the Constitution is to be read in conjunction with Article 4(1) of the Constitution which provides that "To enjoy the protection of law" is an inalienable right of every citizen and with Article 25(1) which mandates that all citizens "are entitled to equal protection of law" Different provisions of the impugned Ordinance contain incentives for and have the tendency of encouraging young persons to commit serious crimes and for older people in the society to prompt their young ones to commit such crimes with an understanding and assurance that they would get away with lesser sentences apart from availing of concessions in the matters of bail and release on probation. Such a plausible and serious potential for misuse of the impugned Ordinance surely poses a grave threat in and creates a grim peril for the lives of citizens at large and one cannot close our eyes, disregard, overlook or ignore the same. In this view of the matter the constitutionally guaranteed right to life enjoyed by generality of citizens has become vulnerable and the constitutional assurance regarding their enjoying the protection of law has either been taken away or seriously abridged by the impugned Ordinance. Through providing protection for the benefit of one relatively small section of the society the impugned legislation has rendered the other and larger sections of the society unprotected. Possibility of an equal or proportionate reprisal or punishment has always been accepted as the surest deterrence against aggression. The Maker of human body, mind and soul surely knows how the same can function or adjust best in their interaction with others.

An attempt by a creation to become wiser than its Creator would hardly commend itself for appreciation or approval. The recent movement in some parts of the Western world in favour of abolishing the penalty of death may just be a passing or a temporary phase in the sociological development of human race and it is not surprising that in many of such parts of the world the penalty of death is staging a comeback and is being reintroduced, not for the love of such a punishment but purely for its utility and efficacy as the most suitable deterrence.

An exercise in legislation which, while affording protection to the life of one, exposes another's life to danger or which, while extending a benefit to one, exposes another to a serious disadvantage may militate against Articles 4, 9 and 25 of the Constitution and the same cannot be termed or accepted as reasonable. An analogy in this regard may be found in the law relating to civil servants which provides for relaxation of rules by the competent authority for the benefit of a civil servant whose case may be one of hardship, inequity or injustice.

In the context of Article 25 of the Constitution High Court observed that if children have a right to be protected from the harm of adults then a corresponding right must also be implied that adults or other children must also enjoy a right to be protected from the harm deliberately inflicted upon them by children consciously or otherwise of their privileges in the law as children.

Impugned Ordinance has many incompatibilities with some other laws of the land and, therefore, the same does not fit well in system of criminal justice of Pakistan. Special treatment of a child is necessarily referable to his innocence and lack of understanding of the nature or consequences of his acts and the moment he is shown to have lost his childhood innocence he ceases to qualify for any special treatment and also that no particular or exact cut-off age limit can be prescribed in this regard except in cases of extreme tenderness of age where there cannot be any doubt about absence of proper understanding of the nature or consequences of acts. This jurisprudential concept finds a very clear and categorical expression in the provisions of sections 82 and 83 of the Pakistan Penal Code.

According to section 14 of the impugned Ordinance "The provisions of this Ordinance shall be in addition to and not in derogation of, any other law for the tithe being in force". This shows that the impugned Ordinance has not done away with or replaced the above mentioned jurisprudential concept contained in the Pakistan Penal Code in this regard and provisions Ss.82 and 83, P.P.C. are still the law of the land pertaining to young offenders. The provisions of sections 82 and 83 of the Pakistan Penal Code show that a child below the age of seven years is incapable of committing an offence because he is a doli incapax incapable of forming or possessing the necessary mens rea for an offence whereas a child between the ages of seven and twelve years can be capable of forming or possessing the necessary mens rea for an offence unless' it is established that he "has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct." It is interesting to notice that as regards a young delinquent above the age of twelve years the Pakistan Penal Code as well as the impugned Ordinance both treat him at par with an adult as far as his criminality or liability to conviction are concerned but the two differ mainly in respect of the mode and forum of his trial and with regard to his sentencing. Under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and the Prohibition (Enforcement of Hadd) Order, 1979 an offender who has already attained puberty is to be treated as an ordinary criminal even if he is otherwise below eighteen years of age and some of the offences under the said enactments carry a sentence of death. Even the Anti-Terrorism Act, 1997 and the Control of Narcotic Substances Act, 1997 recognize no significant distinction between a child and an adult once the offender's criminality is established on the record. It is interesting to point out that an offence of gang-rape under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 carries only a sentence of death and no other sentence and the position regarding an offence of blasphemy under section 295-C of the Pakistan Penal Code is also the same. If the Ordinance impugned through the present petition is to have its way then a `child' committing a heinous offence of gang­rape or perpetrating an outrageous offence of blasphemy cannot be sentenced to death. In such a situation such a child can be convicted for the offence but cannot be sentenced at all! Nothing could be more absurd and unreasonable than such a situation. There has to be something seriously wrong with a law that allows such grave and serious offences to go unpunished. In this backdrop on the jurisprudential plane what is relevant is the capacity of an accused person to understand the nature and consequences of his conduct and if an accused person-is found to be of sufficient maturity of understanding then no special treatment is warranted qua him by the law in the matter of sentence which should be left to the relevant court to be decided in the light of the peculiar circumstances of a given case. Tender age of the offender can surely be one such peculiar circumstance. By making a departure in this regard through providing a cut-off age limit for special treatment the impugned Ordinance has not only become incompatible with the rest of the body of Laws in Pakistan but the same has also made a departure from the established jurisprudential concepts.

It may not be lost sight of in this context that in societies which are still struggling to get out of medieval criminal trends or tendencies a young person's criminality is, barring cases of exceptional and extraordinary circumstances, generally not visited with any special treatment or lenience only on account of his tender age. It may be argued in this context that a criminal who starts his criminal activity at a relatively young age cannot be turned loose on the society for a possible repetition of his offence or unlawful activity. To nip the evil in the bud is not just a cliche or an adage. It is based upon human experiences and accumulated wisdom.

The American approach in this respect also appears to be somewhat similar as in that country mere young age of the offender is hot the sole criterion for treating him as a juvenile or for extending a concession to him in the matter of sentence.

It may be advisable to keep the deterrence of the capital sentence intact even in cases of young offenders while leaving the matter of sentencing in the hands of the courts so as to pass an appropriate order in that regard while keeping in view the circumstances of a given case, including the factor regarding the offender's age. It may not be out of place to mention here that although special concessions have been extended by the impugned Ordinance to a child in the matter of bail but even in respect of bail it has been provided by the proviso to subsection (7) of section 10 of the impugned Ordinance that bail may be refused to an offender by the Court "if there are reasonable grounds to believe that such child is involved in an offence which in its opinion is serious, heinous, gruesome, brutal, sensational in character or shocking to public morality or he is a previous convict of an offence punishable with death or imprisonment for life". It, therefore, defies reason that in a case of such nature the impugned Ordinance envisages refusal of bail during trial but at the same time it provides for withholding of the normal sentence and release on 'probation after conviction. It, thus, appears that the impugned Ordinance has been unthoughtful in this regard as well and all these critical aspects of the matter, including the accumulated wisdom gathered through consistent judicial

pronouncements, had not been adverted to or considered before its promulgation.

The law in Pakistan existing prior to introduction of the impugned Ordinance already substantially and satisfactorily took care of the objectives and purposes of the impugned Ordinance and, thus, there was hardly any pressing requirement or need for promulgating the impugned Ordinance at this stage and thereby to add unnecessary confusion and oddities in that regard. A survey of the pre-existing laws shows that the existing laws already provided for sympathetic and concessionary treatment of minor accused persons and offenders in the matters of capacity to commit a crime, bail and custody as is evident from the provisions of sections 82 and 83 of the Pakistan Penal Code and sections 29-B, 497 and .399 of the Code of Criminal Procedure. The concept of Borstal Institutions and Reformatory Schools for young prisoners already stood recognized and put into practice by various legislative enactments. Even in the matter of sentencing the courts have generally been very particular in attending to the factor regarding age of the offender. In that backdrop introduction of the impugned Ordinance, and that too in the 'absence of any public debate or parliamentary discussion, has been found to be imprudent, to say the least, if not an exercise in superfluity at this stage.

The unconstitutionalities, infirmities, impracticalities, absurdities, obscurities and unreasonableness of the impugned Ordinance makes it clear that the said law does not fit into and piece well with our constitutional and legal system of dispensation of criminal justice and, thus, the same needs to be struck down in the larger interest of the society. In this view of the matter notwithstanding any moral or legal obligation created by any international Declaration or Convention Court cannot blindly or blindfoldedly allow the impugned Ordinance to destroy the moral and legal fibre of criminal justice system at this stage. According to the United Nations Declaration of the Rights of the Child (1959) and the United Nations Convention on the Rights of the Child (1989) a child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection. However, the said international instruments did not provide anything for a `child' who has already attained physical and mental maturity and who is capable of intentional commission of serious and heinous crimes: Even otherwise it has not been shown as to how the provisions of any such international declaration or convention have a binding effect vis-a-vis the municipal law of the country. It is a settled principle of public international law that considered in themselves, and particularly in their inception, all declarations, conventions or even treaties are, formally, only a source of obligation rather than a source of law. A statute is always, from its inception, law whereas a declaration, convention or treaty may reflect or lead to law but, particularly in its inception, is not, as such, law. A source of international obligation cannot be allowed to, through its premature local application, become a source of our domestic social doom.

It ought not to be ignored or overlooked in this context that the West has reached its present state and stage of criminal law and criminology after centuries of social and behavorial developments peculiar to its own culture and history and the impact and real results of its reforms in this regard are yet to be properly assessed and examined. One, thus, cannot blindly modulate its own policies and approaches and emulate the Western standards in this regard without appropriate social advancement and behavorial development in terms of its own social patterns and outlooks.

The criminal trends in the West sharply differ from those in our society. In our society it is not uncommon for young persons to be involved in serious and heinous crimes like murder, gang-rape, terrorism and trafficking in narcotics, etc. and the impugned Ordinance, through the concessions visualised by it in the matters of bail, trial, sentence and probation, contains a serious potential for aggravating the situation in this regard besides providing incentives and impetus to older members of the society to prompt their young ones to commit such crimes. Today the youth in the West is, by and large, not involved in the serious crimes being committed by our youth and this trend in the West has evolved over a period of centuries. There were times when young persons in the West were prone to committing serious offences and they were also dealt with and sentenced appropriately and accordingly.

\t was in that backdrop that the process of reform started and progressed in England piece by piece and through such a progression of gradual and steady historical and socio-legal developments the said process has reached its present stage. It may be said that children in the West have by now been, by and large, tamed and disciplined by centuries of social and legal guidance and instruction and it would be naive to believe that we can cover this distance of centuries through one quantum leap or to expect that our peculiar socio-legal culture would undergo a. drastic metamorphosis through one stroke of pen or through introduction of one Ordinance.

There is no manner of doubt that most of the provisions of the impugned Ordinance, in the words of Bacon, "piece not so well" with the constitutional and legal dispensation of criminal justice in Pakistan and they also "trouble by their inconformity" because, perhaps, it was not strictly the reformation that drew on the change but just the desire for change that had pretended the reformation. Our societal attitudes do not appear to be ripe enough at this stage for the desired change. A quantum leap may be possible in the fields of science or technology but the same is surely not achievable in social or legal trends or attitudes which take some time to evolve. It appears that the impugned Ordinance has tried to achieve through a revolution an objective which was fit for evolution and measured growth. An imported romance for a young offender should not have been allowed to stretch the legal dispensation in Pakistan to the limits of absurdity. How can one forget in this context that the concept of avoidance of fasad-fil-arz is a cornerstone of Islamic system of dispensation of criminal justice. If the impugned Ordinance had been preceded by a parliamentary or at least a public debate then the same would not have suffered from the maladies and infirmities noticed therein.

On the basis of the reasons recorded writ petition is allowed and the Juvenile Justice System Ordinance, 2000 (Federal Ordinance No.XXII of 2000) is hereby struck off the statute book on account of its being unreasonable, unconstitutional and impracticable. It, however, goes without saying that the Parliament may, if it so desires, enact a fresh law in this regard after attending to all the infirmities of the impugned Ordinance highlighted. As a necessary consequence of the declaration made and the order passed the Juvenile Courts established under the said Ordinance shall stand abolished forthwith and all the cases pending before all such Courts shall ipso facto stand transferred to the ordinary courts of competent jurisdiction. There shall be no order as to costs.

For the purpose of removal of a possible doubt a clarification may be necessary. From the date of promulgation of the Juvenile Justice System Ordinance, 2000 to the date of its annulment through the present judgment accused persons below the age of eighteen years involved in criminal cases have enjoyed immunity from the sentence of death but now through annulment of the said Ordinance that immunity from the sentence of death has disappeared. By virtue of the provisions of Article 12(1)(b) of the Constitution of the Islamic Republic of Pakistan, 1973 an accused person who has enjoyed such immunity from the sentence of death at the time of commission of an offence cannot subsequently be sentenced to death. In view of this constitutional position it is clarified that an accused person involved in an offence committed between the date of promulgation of the Juvenile Justice System Ordnance, 2000 and the date of announcement of this judgment shall be well within his constitutional right to assert and establish that he was less than eighteen years of age at the time of commission of the alleged offence and then to claim immunity from the sentence of death.

Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504; Mehr Zulfiqar Ali Babu and others v. Government of the Punjab and others PLD 1997 SC. 11; Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and six others PLD 1997 SC 582; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 and Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 distinguished.

PLD 2000 Central Statutes 385; Emperor v. Paras Ram Dube AIR 1915 All. 134; Tehal Singh and others v. State of Punjab 1985 PSC 1407; Sheikh Hassan v. Bashir Ahmad and another PLD 1966 (W.P.) Pesh. 97; Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504; Mehr Zulfiqar Ali Babu and others v. Government of the Punjab and others PLD 1997 SC 11; Messrs Elahi Cotton Mills Ltd. and others. v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and six others PLD 1997 SC 582; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26; Muhammad Afzal alias Seema v. The State 1999 SCMR 2652; Farrukh Ikram v. The State PLD 1987 SC 5; Abdul Jabbar v. The State PLD 1991 SC 172; Criminal Law, 10th Edn. Butterworlhs 2002; B. v. R. (1960), 44 Cr. App. Rep.1; F. v. Padwich (1959) Crim. L.R. 439; Robin Bapari and another v. State 1986 Cri.LJ 381; State v. Bansilal Chhotelal and another AIR 1957 Bom. 13; Sessions Judge, Tirunelveli v. Perumal 1947 Cr.LJ 261; Keralin (1972) Mad. L.W.(Cri.) 195; Treatise on The Juvenile Justice Act published by the Indian Law Institute, New Delhi in 1993 by Ved Kumari; Ziaullah v. Najeebullah and others PLD 2003 SC 656; Shirin Munir and others v: Government of Punjab through Secretary Health and another PLD 1990 SC 295; Al-Qur'an Sura 2, Versus 178 and 179; Muhammad Iqbal Khokhar and 3 others v. The Government of the Punjab through the Secretary to Government of the Punjab, Lahore and 2 others PLD 1991 SC 35; Shahzad alias Shaddu and others v. The State 2002 SCMR 1009; Bashir Ahmed and 2 others v. The State PLD 2002 SC 775; Sheikh Hassan v. Bashir Ahmad and another PLD 1996 (W.P.) Pesh.97; Shana and 2 others v. The State 1999 SCMR 1507; Kevin N. Stanford v. Kentucky and Heath A. Wilkins v. Missouri 106 L. Ed.2d. 306; Haughton v. Smith 1975 AC 476, 500; Rashad Ehsan and others v. Bashir Ahmad and another PLD 1989 SC 146; Mst. Aziz Begum v. Federation of Pakistan and others PLD 1990. SC 899; The Young Offender (published by Penguin Books, Ltd., Eng. In 1967; The Law Relating to Children (published by Butterworths, London in 1973) and Of Innovations by Sir Francis Bacon ref.

Syed Farooq Hassan Naqvi for the Petitioner.

Mr. Muhammad Nawaz Bhatti, Deputy Attorney General for the Federation of Pakistan.

Mrs. Nasmin Sehgal, Assistant Advocate-General for the Province of the Punjab.

Mrs. Asma Jahangir and Mr. Manzoor Ahmad Malik as amici curiae.

Dates of hearing: 18-12-2002, 12-3-2003, 20-3-2003, 25-3-2003, 1-4-2003, 2-4-2003, 24-6-2004 & 22.11.2004

P L D 2005 Lahore 5

Before Mian Saqib Nisar and Syed Sakhi Hussain Bokhari, JJ

TRUST MODARABA through Trust Management Services, Lahore---Appellant

Versus

TRUST LEASING CORPORATION LTD. through Chief Executive and 4 others---Respondents

E.F.A. No.54 of 2003, heard on 8th July, 2004.

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

----Ss.47, 63, 73 & O.XXI, R.100---Property attached in decrees of more than one Court---Determination of claims and objections--­Procedure---Jurisdiction of one Court---Object and scope---Spirit and the purpose embodied in S.63, C.P.C. is objected to preclude and avoid the conflicting decisions over the divergent claims and the objections filed by various persons, qua the same property which is under attachment of different Courts---Rationale and logic behind the provision of S.63, C.P.C. is to obviate any predicament and an anomalous situation which may arise, if different Courts start taking cognizance of claims or objections and their decisions, in equity may result into grave prejudice and injustice to others having right or interest in the same attached property---Preference of one Court over all other Courts, therefore, has been enunciated by S.63, C.P.C.---First in the category is the Court o: highest grade and if there is none and all the Courts are of equal jurisdiction, the Court which has first attached the same property of the common judgment-debtor would take precedence---Provision of S.63, C.P.C. has an independent application and when so applied, notwithstanding its reference to S.73, C.P.C., it would inter alia, cover the matters falling within the purview of S.47, C.P.C. or O.XXI, R.100 C.P.C. etc.

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

----Ss.63 & 73---Property attached in decrees of more than one Court--­Ratable distribution, principle of---Forum for adjudication---Additionally the provision of S.63, C.P.C. is supplemental to S.73, C.P.C. and when the question about ratable distribution of the attached property/assets to terms of S.73, C.P.C. arises, the forum for the adjudication thereof is the one which is envisaged by S.63, C.P.C.---If the property has been attached by; two or more Courts having same grade and the property is sold by one of them, while the execution application was pending before the other, then the assets sold and the price received, to all intents and purposes, would be held for the purposes of the other Court, in which the property was attached at the time of receipt of the assets.

Simla Banking and Industrial Co. Ltd. Lahore v. Indo Swiss Trading Co. Ltd. Calcutta and another 1938 Lah. 754 and Jagdish Chand v. Bhim Sain and others AIR 1980 Delhi 283 ref.

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

----Ss.63 & 73---Property attached in decrees of more than one Court--­Ratable distribution, principle of---Applicability---Property subject matter of the instant appeal was attached in two cases one decided by Banking Court while the other was decided by Modaraba Tribunal---In execution of decree passed by Banking Court, the property was sold through auction---Application of appellant for ratable distribution of the sale proceeds of the property regarding satisfaction of both the decrees was dismissed by Banking Court---Validity---Execution application of appellant with Modaraba Tribunal was deemed to be an application under S.73, C.P.C.---As the property had been sold by Banking Court it would be the Court holding the assets which were sold and the money had been received for all other Courts, where the same property had been attached and/or any execution application was pending against the same judgment-­debtor for the satisfaction of decrees against them---Notwithstanding any Specific application under S.73, C.P.C. when before disbursement of the amount to decree holder, the Banking Court was informed that there was another decree which was in favour of the appellant and its execution was pending before the same Court, though in a different jurisdiction, the Banking Court should have proceeded to consider that execution application to be one for ratable distribution under S.73, C.P.C. for granting requisite relief to the appellant---Appellant was entitled to ratable distribution of the sale proceeds along with the decree holder of the decree passed by Banking Court---High Court directed the Banking Court to decide the question about ratable distribution of sale proceeds of the property in accordance with law---Appeal was allowed accordingly.­

Pakistan Industrial Credit and Investment Corporation Limited Peshawar Cantt. and others v. Government of Pakistan through Collector Customs, Customs House, Jamrud Road, Peshawar and others 2002 SCMR 496; PICIC v. Allied Textile Mills Ltd. 1991 MLD 2301; Dwarkadas v: Ghasiram AIR 1921 Nag. 5; S.M. Thakkar v. M/s. A.K. Hazra & Sons and others AIR 1979 Pat. 38; Sm. Rajlakshmi Dassi v. Bonamali Sen and others AIR 1955 Cal. 573; Vishnubhotla Ramayyan v. Sa.l1a Namayya and others AIR 1943 Mad. 165 Balaji v. Gopal AIR 1929 Nag. 148 and Maidin Rowthan v. Dakshyani Amma and another AIR 1941 Mad. 125 ref.

Sh. Naseer Ahmad for Appellant.

Syed Najam-ul-Hassan Kazmi for Respondent.

P L D 2005 Lahore 74

Before Muhammad Sair Ali, J

GOVERNMENT OF PAKISTAN---Petitioner

Versus

MUHAMMAD BASHIR---Respondent

Civil Revision No.2099 of 2000, heard on 4th November, 2004.

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

----S. 3---Civil Procedure Code (V of 1908), S.115---Revision---Limitation--- Determination of applicable provisions---Court is itself obligated to take into account the period of limitation for a suit filed before it, even if no objection thereto has been raised---Court, hearing a case has to carefully calculate the period of limitation on determining the applicable provision of law or the Article of the Schedule of the Limitation Act, 1908 and declaration to bar a remedy should be carefully granted---Plaintiff should be non-suited on the limitation or other barring statutes upon deep and thorough consideration of the applicable provisions of law---Petitioner, therefore, cannot be denied the right to show even at the revisional stage before the High Court that the law was incorrectly applied by the subordinate Courts and that the petitioner was non-suited under an inapplicable provision.

It is for the Court to apply the correct law and to justly administer the rights and the remedies of the citizens. This duty is fundamental to and enshrined in the concept of the administration of justice. The Courts hearing a case have to carefully calculate the period of limitation on determining the applicable provision of the law or the Article of the Schedule of the Limitation Act. A declaration to' bar a remedy should be carefully granted. A plaintiff should be non-suited on the limitation or other barring statutes upon deep and thorough consideration of the applicable provisions of law. Under section 3 of the Limitation Act a Court is itself obligated to take into account the period of limitation for a suit filed before it, even if no objection thereto has been raised. Attached therewith is also the duty to determine the correct period of limitation and the provision applicable thereto. The petitioner therefore, cannot be denied the right to show even at the revisional stage before the High Court that the law was incorrectly applied by the subordinate Courts and that the petitioner was non-suited under an inapplicable provision.

(b) Administration of justice--

----Court has to apply the correct law and to justly administer the rights and the remedies of the citizens which duty is fundamental to and enshrined in the concept of the administration of justice.

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

----Art. 149---Civil Procedure Code (V of 1908). S.115---Revision---Suit filed by or on behalf of the Government---Period of limitation is sixty years---Subordinate Courts in the impugned judgments and decrees proceeded with the suit filed by the Government oblivious of the provisions of Art.149 of the Limitation Act, 1908 and thus respectively dismissed the suit as well as the appeal---Validity---Non-consideration of Art. 149, Limitation Act, 1908 was a material irregularity as well as wrong exercise of jurisdiction by the Courts---Impugned Judgments and decrees on the findings of limitation could not therefore be sustained--­High Court, while exercising powers as a revisional Court under S.115, C.P.C. however, abstained from converting the decrees of dismissal into decrees of acceptance of the suit and without giving a definitive finding on the applicable period - of limitation, left the matter open for consideration of the First Appellate Court by remanding the appeal for re-decision by the Appellate Court---High Court observed that the Appellate Court, while redeciding applicable period of limitation allow the parties to submit their respective cases qua the applicable provisions of the law with specific reference to Art. 149 of the Limitation Act, 1908 for the suit by and on behalf of the Government; Appellate Court shall also consider and determine the applicable provisions as well as the period of limitation applicable to the Government's suit for recovery of money and in the absence of any challenge by the respondent to the findings of the Appellate Court on all other issues, such findings as were given in the impugned judgment on all issues except that of limitation shall be treated as final as the impugned judgment had been set aside only to the extent of observations on the question of limitation.

The Province of East Bengal v. Bakarganj Central Cooperative Sale and Supply Ltd. and another PLD 1960 Dacca 604 and Pakistan Railways v. Abdul Latif 1992 MLD 1379 ref.

Sh. Javed Sarfraz, Standing Counsel for Petitioner.

Hafiz Khalil Ahmad for Respondent.

Date of hearing: 4th November, 2004.

P L D 2005 Lahore 79

Before Sh. Abdul Rashid and M. Bilal Khan, JJ

INAMUL HAQ---Petitioner

Versus

JUDGE, SPECIAL COURT, LAHORE and 2 others ---Respondents

Writ Petition No. 15221 of 2004, decided on 22nd September, 2004.

Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)---

---Ss. 4 & 5(6)(7)---Criminal Procedure Code (V of 1898), S.497--­Constitution of Pakistan (1973), Art.199---Constitution petition---Bail Fraudulent withdrawal of Rs.8 lacs from account to customer, charge of---Petitioner not named in F.I.R. was found involved in such case during investigation---Special Court on his agreeing to settle dispute with Bank granted bail to petitioner subject to deposit Rs.2 lacs by specified date and remaining amount in instalments---Plea of petitioner was that such conditional order was beyond scope of S.497, Cr.P.C. as he could not be saddled with criminal liability at bail stage; and that Special Court was under wrong impression that any agreement had arrived at between the parties---Validity---Petitioner could not find faults with impugned order after having benefited from same by getting his release on its basis by depositing Rs.2 lacs---Impugned order was not suffering from any jurisdictional defect---High Court dismissed Constitutional petition in limine.

Muhammad Shahzad Shaukat, Advocate.

P L D 2005 Lahore 81

Before Mian Saqib Nisar, J

ALLAH RAKHA---Petitioner

Versus

DISTRICT AND SESSIONS JUDGE, SHEIKHUPURA and 3 others---Respondents

Writ Petition No. 15951 of 2004, decided on 29th September, 2004.

Constitution of Pakistan (1973)---

----Art.199---Civil Procedure Code (V of 1908), O.XIII, R.1 & O.VII, R.14, O.XVII, R.3, O.XVIII, R.3, Ss.115 & 151---Constitutional petition---Documents filed with plaint---Documentary evidence---First hearing of the suit---Production of documentary evidence---Close of evidence---Reservation of evidence to be produced in rebuttal--­Document was neither annexed with the plaint nor produced in Court at the time of hearing---Evidence was closed under penal provision of Order XVII, R.3, C.P.C.---No right was reserved for rebuttal---Such document could not be produced through application under section 151, C.P.C. by invoking Order XVIII, R.3, C.P.C. as what cannot be done directly cannot be done indirectly---Order upheld in revision could not be interfered in exercise of Constitutional jurisdiction---Petition was dismissed in circumstances.

Ch. Muhammad Aslam Sandhu for Petitioner.

P L D 2005 Lahore 83

Before Mian Saqib Nisar, J

NAWAB and another---Petitioners

Versus

FAZAL ABBAS ---Respondent

Civil Revision No. 1550 of 2004, heard on 24th September, 2004.

Civil Procedure Code (V of 1908)---

----Ss. 12(2), 47, 151, O.IX, R.13 & O.XXI, R.23-A [as inserted by Law Reforms Ordinance (XII of 1972)---Ex parte decree, setting aside of---Provision of O.XXI, R.23-A, C.P.C.---Applicability---Object behind insertion of such provision was to prevent delay being caused in expeditious disposal of execution petitions by making frivolous and mala fide objections thereto---Such provision would apply to proceedings falling under S.47 or any provision of O.XXI, C.P.C., but would not apply to application seeking setting aside of ex parte decree or application seeking restoration of such earlier application dismissed for non-prosecution---Court, while considering such applications, had no jurisdiction to assume power and apply bar contained in such provision--­Principles illustrated:

Mudassir Abbas Maghiana for Petitioners.

Faraz Ahmad Chaudhry for Respondent.

Date of hearing: 24th September, 2004.

P L D 2005 Lahore 85

Before Khawaja Muhammad Sharif, J

M. ASHRAF and others---Petitioners

Versus

THE STATE---Respondent

Criminal Revision No.774 of 2004, decided on 5th October, 2004.

Criminal Procedure Code (V of 1898)---

----Ss. 173 & 439---Adding and summoning, of accused---Only six accused were named in the F.I.R. and according to report under S.173, Cr.P.C. petitioners who were added and summoned were found to be innocent as they neither were placed in Column No.2 nor in Column No.3 of the challan---Order whereby petitioners were summoned was challenged by petitioner, alleging that same was arbitrary ---Validity--­Even accused who had been found innocent and police had discharged them, could be summoned to stand the trial because case was not cancelled---Accused placed in Column No.2 of challan could be summoned---Petitioners being named in F.I.R., Trial Court had rightly used its power to summon petitioners---No interference being called for, revision petition, was dismissed:

PLD 1998 Lah. 523; 1982 PCr.LJ 52; PLD 1988 SC 52; 1988 SCMR 1428 and 1985 SCMR 1314 ref.

Asif Bashir Mirza for Petitioners.

Ch. Muhammad Ali Sial for Respondent.

P L D 2005 Lahore 86

Ch. Ijaz Ahmad, J

UMER DIN‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and 8 others‑‑‑Respondents

Writ Petition No. 15762 of 2004, decided on 27th September, 2004.

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

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11(d)‑‑­Limitation Act (IX of 1908), S.3 & Art. 120‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Suit for declaration relating to inheritance‑‑­Application for rejection of plaint as being time‑barred‑‑‑Court below rejected such application‑‑‑Validity‑‑‑Question of limitation in such circumstances was mixed question of law and fact, which could not be decided without recording evidence of parties‑‑‑Plaint prima facie disclosed cause of action‑‑‑Courts below had decided application in accordance with law‑‑‑High Court dismissed Constitutional petition as non‑maintainable with direction to Trial Court to decide matter after recording evidence.

NLR 1994 Rev. Pesh. 164; Mst. Fazal Jan v. Roshan Din and others NLR 1993 Rev. SC 8; Ali Mir's case 1984 SCMR 433 and Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 rel.

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

--‑Art. 199‑‑‑Concurrent findings of fact of Court below challenged in Constitutional petition‑‑‑Maintainability‑‑‑Constitutional petition against such finding would not be maintainable.

Khuda Bakhsh v. Muhammad Sharif, and others 1981 SCMR 279; Muhammad Sharif, and others v. Muhammad Afza1 Sohail and others PLD 1981 SC 246; Abdur Rehman Bajwa v. Sultan and others PLD 1981 SC 522 rel.

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

‑‑‑‑Art. 199‑‑‑Findings of Courts below‑‑‑Validity‑‑‑High Court in exercise of Constitutional jurisdiction could not substitute its own finding in place of such findings.

Board of Intermediate and Secondary Education, Lahore through Chairman and another. v. M. Massadaq Naseem Sindhoo PLD 1973 Lah. 600 and Syed Azniat Ali v. The Chief Settlement and Rehabilitation Commissioner, Lahore etc. PLD 1964 SC 260 rel.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Nature of‑‑­Discretionary in character.

M.A. Azad for the Petitioner.

P L D 2005 Lahore 89

Sh. Hakim Ali, J

HASNAIN RAZA‑‑‑Petitioner

Versus

Mst. BALQEES GHAZAL and others‑‑‑Respondents

Writ Petition No.298/BWP of 2002, heard on 14th October, 2003.

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

‑‑‑‑S. 5 & Sched.‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Suit for recovery of dower in shape of house or its price ‑‑‑Decretal amount as fixed in decree was Rs.3,13,500‑‑‑Filing of appeal against such decree without payment of Court‑fee‑‑‑Dismissal of appeal for non‑deposit of Court‑fee within time granted at appellant's request by Appellate Court‑‑‑Plea of appellant raised in Constitutional petition was that he could not deposit Court‑fee due to ailment of "Typhoid fever"‑‑‑Validity‑‑‑Appellant in application for extension of time had stated that Court‑fee of Rs.15,000 was to be paid on appeal‑‑­Such statement clearly showed appellant's knowledge about court‑fee to be paid on appeal and his consciousness of about specified liability‑‑­Appellant's counsel on date of passing impugned order had submitted to Appellate Court that he had nothing to say as to why Court‑fee had not been paid‑‑‑Plea of ailment had been concocted‑‑‑Such ailment was not of a nature, which could cripple appellant to make pursuit of his case in Court even through agent or counsel‑‑‑Conduct of appellant was not bona fide, thus, extraordinary jurisdiction could not be exercised in his favour‑‑‑High Court dismissed Constitutional petition.

(b) Court fee---

‑‑‑‑Duty of Court‑‑‑Question of Court‑fee, though being matter between subject and State, yet same must be paid by party in Court, whose duty was to look into deficiency of Court‑fee and direct party to make up deficiency, if found upon examination of document.

Mukhi Chatromal and another v. Khubchand and 6 others 1993 SCMR 1113 and Sardar Muhammad Kazim Ziauddin Durrani and others v. Sardar Muhammad Asim Fakhuruddin Durram and others 2001 SCMR 148 ref.

Sardar Mahmood Iqbal Khakwani for Petitioner.

Muhammad Tayyib Zamir Khan for Respondents.

Date of hearing: 14th October, 2003.

P L D 2005 Lahore 93

Before Syed Zahid Hussain and Muhammad Sair Ali, JJ

Messrs GHANI HERBAL PHARMA LABORATORIES‑‑‑Appellant

Versus

SECRETARY and others‑‑‑Respondents

C.A. No.430 of 2004, decided on 15th September, 2004.

Dangerous Drugs Rules, 1958‑‑

‑‑‑‑R. 3(1)‑‑‑Dangerous Drugs Act (II of 1930), S. 6‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7 & 78(1)(2)‑‑‑Control of Narcotic Substances (Regulations of Drugs of Abuse, Controlled Chemicals, Equipment and Material) Rules, 2001, R.2(iv)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Licence in Form DD‑5 to purchase/possess medicinal opium dated 6‑9‑2001, 9‑10‑2001 (valid for one year) issued under R.3(1) of Dangerous Drugs Rules, 1958, and Transportation Permit dated 23‑10‑2001 in Form DD‑2 (valid up to 15‑12‑2001)‑‑‑Half of the sanctioned quota of medicinal opium was released to petitioner on 5‑12‑2001‑‑‑Refusal of Authority to release remaining half quota demanded by petitioner through letter dated 17‑6­2003‑‑‑Validity‑‑‑Such licence issued under Rules, 1958 framed under Dangerous Drugs Act, 1930 was illegal as such law stood repealed under S.78(1) of Control of Narcotic Substances Act, 1997‑‑‑Petitioner had to obtain a valid licence from competent Authority to be notified under R.2(iv) of Narcotic Substances (Regulation of Drugs of Abuse, Controlled Chemicals, Equipment and Materials) Rules, 2001 and only thereafter he could approach authority for issuance of medicinal opium in accordance with terms and conditions laid down in licence so obtained‑‑‑Petitioner had demanded release of remaining half quota through letter dated 17‑6‑2003, by which time his licence had expired by efflux of time‑‑‑Petitioner's claim for release of remaining quota under such licence had no legal validity‑‑‑No direction in nature of mandamus could be issued in favour of petitioner in such circumstances‑‑‑High Court dismissed Constitutional petition.

Government of Pakistan through Secretary, Ministry of Commerce and another v. Zamir Ahmad Khan PLD 1975 SC 667 rel.

Muhammad Nawaz Bajwa for Appellant.

Dr. Danishwar Malik, D.A.‑G. on Court's call.

P L D 2005 Lahore 97

Before Syed Zahid Hussain, J

HASSAN and others‑‑‑Petitioners

Versus

Ch. TAHIR SAEED and others‑‑‑Respondents

Writ Petition No.8224 of 2004, heard on 19th October, 2004.

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

‑‑‑‑Ss.5, Sched & 14‑‑‑Guardians and Wards Act (VIII of 1890), S.25‑‑­Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Suit for maintenance of children‑‑‑Welfare and betterment of minors‑‑‑Family Court, keeping in view means of earnings and resourses of father determined the amount of maintenance payable to children, but Appellate Court altered judgment and decree of Family Court reducing .the amount of maintenance‑‑‑Validity‑‑‑Family matters were not, to be decided strictly on the yardstick of procedural laws nor any other principle aimed at the observance of the technicalities‑‑‑Paramount consideration before the Court had m be the welfare and betterment of minors‑‑‑Court in such a matte: would act in a loco parentis position and large many considerations had to be kept in view‑‑‑Father of children was holding a reasonable position in the Government and it was the cherished desire and intent of both mother and father of minors that their children should get good education and should be raised in good atmosphere‑‑‑High Court in view of ever increasing cost of living concluded that quantum of maintenance as fixed by Family Court was adequate and quite reasonable and that reduction therein was not justified‑‑‑Judgment of Appellate Court reducing maintenance amount, being not maintainable was set aside and that of Family Court was restored with modification that maintenance would be payable by defendant with effect from month when proceedings were filed by plaintiffs.

Syed Mukhtar Abbas for Petitioner.

M. Asif Ismail for Respondents.

Date of hearing: 19th October, 2004.

P L D 2005 Lahore 99

Before Mian Saqib Nisar and Tanvir Bashir Ansari, JJ

KHALID HUSSAIN ‑‑‑ Appellant

Versus

JUDGE, FAMILY COURT, KHARIAN and another‑‑‑Respondents

Intra‑Court Appeal No.643 of 2003 in Writ Petition No. 14661 of 2003, decided on 27th September, 2004.

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

‑‑‑‑S.10(4) [as amended by Family Courts (Amendment) Ordinance (LV of 2002)]‑‑‑Reconciliation in suit for dissolution of marriage had failed‑‑­Family Court had passed the decree for dissolution of marriage on ground of Khula'‑‑‑Such decree was challenged in Constitutional petition which was dismissed‑‑‑Validity‑‑‑Power to pass decree for dissolution of marriage was available to the Court in view of the added proviso to S.10(4), West Pakistan Family Courts Act, 1964‑‑‑No illegality or error bf jurisdiction was committed by the Judge Family Court, in passing the judgment and decree‑‑‑Intro‑Court appeal was dismissed in circumstances.

Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97 and Mst. Balqis Fatima v. Najm‑ul‑Ikram Qureshi PLD 1959 (W.P.) Lah. 566 distinguished.

Raja Nowsherwan Akhtar for Appellant.

Nemo for Respondents.

P L D 2005 Lahore 102

Before Ch. Ijaz Ahmad, J

MUHAMMAD SHARIF and others‑‑‑Petitioners

Versus

MERAJ DIN and others‑‑-Respondents

Civil Revision No.727 of 2003, heard on 8th September, 2004.

(a) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑Ss. 5 & 30‑‑‑Registration Act (XVI of 1908), S.47‑‑‑Pre‑emption suit‑‑‑Sale through registered deed‑‑‑Limitation‑‑‑Sale‑deed was executed on 8‑5‑1975 and registered on 26‑5‑1975‑‑‑Suit was filed on 25‑5‑1976‑‑‑Validity‑‑‑Document registered on a date subsequent to date of its execution would operate from date of its execution‑‑‑Held: Such suit could not be decreed.

Muhammad Ali v. Muhammad Irshad 2002 YLR 2889; Muhammad Sharif v. Muhammad Safdar 1994 MLD 1390; Din Muhammad v: Subedar M. Zaman 2001 SCMR 1992; Muhammad Hayat v. Surraya Begum 1981 CLC 293; Allah Yar v. Raja and. another 1989 SCMR 802, Sher Muhammad v. Rajada and others PLD 1981 SC 591; Al‑Haj Khalil Ahmad v. Australasia Bank 1979 CLC 494 and Ch. Shafaqat Mahmood v. M.B.R. 2001 CLC 751 ref.

Naseer Ahmad v. Asghar Ali 1992 SCMR 2300 fol.

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

‑‑‑‑S. 115‑‑‑Concurrent findings of fact‑‑‑Validity‑‑‑High Court had ample jurisdiction to disturb such findings, where same were based on no evidence or inadmissible evidence or was so perverse that grave injustice would result therefrom or Courts below had committed material irregularity.

Kanwal Nain's case PLD 1983 SC 53 and Shaukat Nawaz's case 1988 SCMR 851 fol.

Ch. Abdul Wahid for Petitioners.

Ch. Zafar Iqbal for Respondents Nos. 1 and 2.

Date of hearing: 8th September, 2004.

P L D 2005 Lahore 107

Before Muhammad Akhtar Shabbir, and M. Bilal Khan, JJ

PAKISTAN LAWYERS FORUM (REGISTERED) through its President‑‑‑Appellant

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Law and Justice, Human Rights, Islamabad and 2 others‑‑‑Respondents

Intra‑Court Appeals Objection Case Diary Nos.19895 and 21790 of 2004, decided on 25th October, 2004.

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

‑‑‑‑Art.199‑‑‑High Court (Lahore) Rules and Orders, Vol. V, Chap. 1, Cl.9(2)‑‑‑Constitutional jurisdiction of High Court‑‑‑Nature and scope‑‑­High‑Court while passing order, sustaining the office objection had neither exercised its original civil jurisdiction nor had passed the same on merits as it was not a civil matter‑‑‑Constitutional jurisdiction of High Court was distinct from the civil jurisdiction‑‑‑Constitutional jurisdiction of the High Court though original jurisdiction but was not original civil jurisdiction of the Court‑‑‑Principles.

The question for determination before High Court was whether the order passed by the Single Judge, sustaining the office objection, was a judicial order and had been passed in original civil jurisdiction of the High Court. The Single Judge of the High Court, in the present case, had neither exercised his original civil jurisdiction by passing the said order nor passed the same on merits as it was not a civil matter. The petitioner had knocked the Constitutional jurisdiction of High Court which was distinct from the civil jurisdiction. The writ jurisdiction is clearly an original jurisdiction. Equally clearly, it does not fall within the extraordinary original civil jurisdiction. The writ jurisdiction has been conferred on the High Court by an Article of the Constitution for the purpose of implementing the high directive in Article 25 of the Constitution that no person should be treated otherwise than in accordance with law.

The extraordinary original civil jurisdiction arises from Code of Civil Procedure and the objection cases placed before the Single Judge, were not the cases to have been dealt with under the said Code, therefore, the exercise of jurisdiction by the Single Judge cannot be termed as original civil jurisdiction. Constitutional jurisdiction of the High Court though original jurisdiction but is not original civil jurisdiction of the Court.

Ahmad Khan v. The Chief Justice and the Judges of the High Court, West Pakistan, through the Registrar, High Court of West Pakistan, Lahore and 2 others PLD 1968 SC 171 and Khushi Muhammad and 10 others v. Agha Hassan Raza and 2 others 1990 ALD 207(1) ref.

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

‑‑‑‑S.3(2)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑High Court (Lahore) Rules and Orders Vol. V, Chap. 1, Cl. 9(2)‑‑‑Intra‑Court appeal­‑‑Scope‑‑‑Competence‑‑‑Judicial order‑‑‑Administrative order‑‑­Connotations ‑‑‑Intra Court appeal is not competent against the order passed by the Single Judge of the High Court on an office objection because the said order was an "administrative order"‑‑‑Such order maintaining, sustaining and rejecting office objection shall be final and shall not be assailed in any other proceedings before the High Court but could be assailed before the Supreme Court‑‑‑Principles.

The Intra‑Court Appeal is competent before two or more Judges of the High Court from a decree passed or final order made by a Single Judge of that Court in exercise of its original civil jurisdiction as provided in sub‑clause (i) of section 3 of Law Reforms Ordinance (XII of 1972). Although sub‑clause 2 of section 3 of the said Ordinance provides an appeal to two or more Judges of the High Court made from an order by Single Judge of that Court under Clause‑1 of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, but the Intra‑Court Appeal could be entertained, had the Single Judge passed the order on merits of the case. It is admitted position in the present case that the merits of the case were not argued before the Judge and he did not touch the factual or legal position of the contents of the writ petition, therefore, it could not be termed as judicial order.

The impugned order in the present case was passed on an administrative side by the Single Judge nominated by the Chief Justice as enshrined in sub‑clause 2 of Clause 9 of Chapter‑I of Volume 5 of High Court Rules and Orders.

Judicial Order is one which involves exercise of judicial discretion and affects final result of litigation and such order can be passed through judicial proceedings which means that any proceedings wherein judicial action is invoked and taken and any proceedings to obtain such remedy as the law allows. Any step taken in a Court of justice in the prosecution or defense of an action, the general term for proceedings relating to, practice in, or proceeding from, a Court of justice; or the course prescribed to be taken in various cases for the determination of a controversy or for legal redress or relief. A proceeding wherein there are parties, who have opportunity to be heard, and wherein the Tribunal proceeds either to a determination of facts upon evidence or of law upon proved or conceded facts.

Administrative Order is the final disposition of a matter before an administrative agency; product of an administrative adjudication. Such order may be declaratory or it may contain an affirmative or negative command. The methods and processes as distinguished from judicial procedure which applies to Courts.

The order of the Single Judge maintaining, sustaining and rejecting office objection shall be final and shall not be assailed in any other proceedings before the High Court.

No Intra‑Court Appeal is competent against the order passed by the Single Judge on office objection because it was an administrative order.

The office objection sustained by a Single Judge of the High Court could be challenged before the Supreme Court directly without availing the remedy of Intra‑Court Appeal.

High Court directed the office not to entertain any Intra‑Court Appeal against the order passed by the Single Judge on the office objection in future.

Black's Law Dictionary; Employees Management Group, Pak-­Saudi Fertilizers Limited through Authorized v. Government of Pakistan, in the 'Ministry of Privatization (Privatization Commission), Pak Secretariat, Islamabad through Secretary and 8 others 2002 YLR 1487 and Muhammad Riaz Bhatti v. Federation of Pakistan and another 2004 SCMR 1120 ref.

(c) Law Reforms Ordinance (II of 1972)‑‑‑

‑‑‑S. 3‑‑‑Intra‑Court Appeal‑‑‑Competence‑‑‑High Court directed the office not to entertain any Intra‑Court Appeal against the order passed by the Single Judge on the office objection.

A.K. Dogar for Petitioner.

P L D 2005 Lahore 114

Before Mian Saqib Nisar, J

MUREED HUSSAIN and another‑‑Petitioners

Versus

MAKHNA and 3 others‑‑‑Respondents

Civil Revision No.2609 of 2000, decided on 24th September, 2004.

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

‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), S.115(2) & O. XLI, R.22‑‑-Suit for declaration‑‑‑Supporting the decree on issues decided against the respondents ‑‑‑Cross‑objection‑‑‑Cross‑appeal‑‑‑Verbally challenging the findings of the Trial Court on issues decided against‑‑­Suit for declaration on the basis of unregistered gift‑deed was decreed by the Trial Court‑‑‑Appellate Court dismissed appeal on ground that deed being unregistered created no title‑‑‑Findings about the execution were maintained‑‑‑Respondents in appeal who had obtained the decree from the Court and did not want any change in the same could support the decree and could also orally challenge the findings on the issues which had gone against them and could request the Court to return the findings in their favour on that issue as well, to give additional support to the decree‑‑‑If respondents prayed for modification or variation of the decree, they must seek such change through cross‑appeal or the cross‑objection‑‑‑High Court had been given a special and extraordinary jurisdiction to make such orders as it thought fit.

Khairati and 4 others v. Aleem‑ud‑Din and another PLD 1973 SC 295 quoted.

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

‑‑‑‑S.42‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 17 & 79‑‑‑Suit for declaration‑‑‑Document‑‑‑Proof of execution ‑‑‑Un‑registered gift‑deed‑‑­Executant was not known to the scribe‑‑‑One of the marginal witnesses was not produced without any valid reason‑‑‑Other marginal witness had stated nothing about execution, and about reading over the document and acceptance‑‑‑Mere appendage of the signatures or the thumb‑impression by a person who was illiterate did not amount to valid execution.

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

‑‑‑‑S.42‑‑‑Registration Act (XVI of 1908), Ss. 17 & 49‑‑‑Suit for declaration ‑‑‑Un‑registered document‑‑‑Appraisal of evidence‑‑‑Error in reading the evidence was established and it had some reflection upon the decision‑‑‑High Court appraised the evidence‑‑‑Document was not an acknowledgment of any earlier oral transaction but created right in an immovable property worth more than Rs.100‑‑‑Such document even otherwise was compulsorily registrable and if not, same did not create a right in property.

Hafiz Khalil Ahmad for Petitioners.

Ch. M. Afzal Wahla for Respondents.

P L D 2005 Lahore 119

Before Ijaz Ahmad Chaudhry, J

GHULAM MUHAMMAD and 3 others‑‑‑Petitioners

Versus

MEMBER, BOARD OF REVENUE PUNJAB, LAHORE and 16 others‑‑‑Respondents

Writ Petition No.867‑Rev. of 1996,' decided on 30th April, 2004.

West Pakistan Redemption and Restitution of Mortgages Act (XIX of 1964)‑‑‑

‑‑‑‑S. 3‑‑‑Limitation Act (IX of 1908), Ss. 13 & 19 & Art. 148‑‑­Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Limitation‑‑‑Equity of redemption‑‑‑ Acknowledgement‑‑‑Muslim mortgagors mortgaged property in favour of non‑muslim mortgagees on 27‑7‑1895‑‑‑Non‑muslims migrated from Pakistan to India‑‑‑Mortgage rights were mutated in the name of Central Government‑‑‑Application for redemption moved on 31‑3‑1990 was dismissed by the Collector on the ground of bar of limitation‑‑‑Appellate Authority by setting aside the order of Collector redeemed the mortgage‑‑‑ Such order was set aside by the Board of Revenue‑‑‑Validity‑‑‑Non‑Muslim mortgagees had left Pakistan and limitation had stopped to run in 1947‑‑‑Evacuee interest was allotted to the private respondents in 1965‑66‑‑‑Entries in "Jamabandi" on the basis of mutation were to be considered acknowledgement‑‑­Central Government was shown to be mortgagee in Revenue Record in 1969‑‑‑On, acknowledgement fresh period of limitation started running‑‑­Application for redemption was well within 60 years‑‑‑Order passed by the authority being against the principles of law was set aside and that of Appellate Court was restored.

Samar Gul's case PLD 1986 SC 35; Bani Begum's case PLD 2003 SC 235; Allah Ditta and others v. Sardar Khan and others PLD 1997 Lah. 716; Muhammad Shafi v. Ghulam Qadir and others PLD 1978 Lah. 71 and Suleman and 3 others v. Custodian, Evacuee Property, West Pakistan, Lahore and 2 others 13LD 1971 Lah. 77 quoted.

Mirza Manzoor Ahmad for Petitioners.

Syed Hashmat Hussain Naqvi for A.A.‑G.

Zafarullah Khan Khakwani for private Respondents.

Date of hearing: 28th April, 2004.

P L D 2005 Lahore 126

Before Khawaja Muhammad Sharif, J

FATIMA BIBI‑‑‑Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION ICHHRA, LAHORE and 9 others‑‑‑Respondents

Writ Petition No.2545 of 2004, decided on 27th October, 2004.

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

‑‑‑‑S.16‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑ Constitutional petition‑‑‑Quashing of F. I. R. ‑‑‑Petitioner who was a Christian woman, was married to a Christian and out of said wed‑lock nine children were born‑‑‑Later on the lady embraced Islam and only after five days of said conversion she married with a Muslim without observing Iddat period‑‑­Validity‑‑‑During Iddat period if any woman entered into Nikah that would be against law and also Injunctions of Islam and it would be liable to Ta'zir‑‑‑If a married non‑Muslim woman would embrace Islam, she must inform her husband of said conversion and her husband either would embrace Islam within period of Iddat in which case marriage would continue, or he would remain a non‑Muslim even after expiry of Iddat period, in which case marriage would stand dissolved ‑‑‑Iddat was compulsory after dissolution of marriage of any character‑‑‑Within Iddat period Nikah would be invalid rather void and during that period co­habitation would come within definition of Zina and would be liable to be punished‑‑‑Petition for quashing of F.I.R. was dismissed., in circumstances.

Sardar Masih v. Haider Masih and 3 others PLD 1988 FSC 78; Mst. Kundan Mai v. The State PLD 1988 FSC 89 and Mst. Safia Bibi v. Muhammad Arif, A.S.‑I. and others 1997 MLD 158 ref.

(b) Islamic law‑‑

‑‑‑‑ Divorce‑‑‑Iddat‑‑‑Marriage before completion of iddat period by a divorced woman‑‑‑Effect.

Aftab Ahmad Javaid Sheikh for Petitioner.

Ch. Ghulam Rasool for Respondent No.7.

Muhammad Hanif Khatana, Addl. A.‑G. Punjab with Muhammad Nawaz, A.S.‑I. with record.

P L D 2005 Lahore 129

Before Mian Saqib Nisar, J

MUHAMMAD SHAFI through legal representatives‑‑‑Petitioners

Versus

ABDUL REHMAN through legal representatives‑‑‑Respondents

Civil Revisions Nos.976 and 977 of 2004, heard on 12th October, 2004.

(a) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Ss. 3 to 24‑‑‑Limitation‑‑‑Equitable considerations‑‑‑Applicability‑‑­Principles‑‑‑ Extension of limitation‑‑‑Inherent jurisdiction of Courts, exercise of‑‑‑Scope‑‑‑Law of limitation is a valid piece of legislation, and has to be strictly construed and enforced by the Courts of law, as it is‑‑­Where period of limitation for an action is provided by law, equitable considerations cannot be attracted, applied and adhered to, against the express provisions of the limitation, so as to override, defeat and nullify the law‑‑‑It is the duty of the Courts under S.3 of Limitation Act, 1908, to apply relevant and correct provisions of Limitation Act, 1908, on the basis of the admitted facts of the case, irrespective, whether the concerned party has raised the plea or not‑‑‑Such duty enjoined upon the Courts is not restricted to those exercising the original jurisdiction, rather S.3 of Limitation Act, 1908, would be attracted and applied at all the stages and the forums before which the lis comes for consideration; may it be in appeal, revision or even Constitutional jurisdiction‑‑‑Where period of limitation for any remedy has lapsed, the doors of justice are closed and the plea of injustice and hardship cannot be set out as a ground to seek the extension of limitation‑‑‑Courts can neither grant extension or exclude time from specific period of limitation, except where a case squarely falls within the purview, ambit and mischief of Ss.4 to 24 of Limitation Act, 1908‑‑‑Such extension of limitation cannot be allowed by Court while exercising inherent jurisdiction.

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

‑‑‑Ss. 144 & 151‑‑‑Limitation Act (IX of 1908), S.3‑‑‑Restitution of position prior to variation of decree‑‑‑Limitation, extension of‑‑‑Inherent jurisdiction of Courts‑‑‑ Applicability‑‑‑It is inherent power of Court to restore and put back a party to a position where it stood before execution of decree which had been reversed or modified by higher forums‑‑‑But when such power has been embodied in specific and express provision of law, such as S.144, C.P.C., the inherent jurisdiction under S.151, C.P.C. cannot be resorted to‑‑‑While exercising such inherent jurisdiction in any form, the provisions of Limitation Act, 1908, cannot )e ignored, lost sight of, violated or bypassed.

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

‑-‑Ss. 144 & 151‑‑‑Limitation Act (IX of 1908), Arts. 181, 182 & 183‑‑­General Clauses Act (X of 1897), S.6‑‑‑Restoring the position prior to variation of decree‑‑‑Limitation‑‑‑Retrospective change of law‑‑‑Effect‑‑­Suit was decreed in favour of petitioners by Trial Court and appeal against judgment and decree passed by Trial Court was dismissed by Appellate Court‑‑‑Petitioners in execution of decree took possession of suit land in year 1986‑‑‑High Court in exercise of revisional jurisdiction set aside judgment and decree passed by Trial Court as well as Appellate Court and suit was dismissed‑‑‑Leave to appeal against judgment and decree passed by High Court was refused by Supreme Court on 21‑12‑1993‑‑‑Respondents moved application on 15‑7‑2003, under Ss.144 & 151, C.P.C. seeking restitution of possession of suit land‑‑­executing Court allowed the application and passed an order for restitution of possession‑‑‑Such order of Executing Court was maintained by Appellate Court‑‑‑Plea raised by petitioners was that the application of respondents for restitution of possession was barred by limitation as residuary Art.181 of Limitation Act, 1908, would apply from the date of judgment passed by High Court or by Supreme Court‑‑­Contention of respondents was that un‑amended law was to be applied to the case because the vested rights of the parties could not be destroyed by subsequent change of law and such change would have no retrospective effect‑‑‑Validity‑‑‑Law Reforms Ordinance, 1972, had not only reduced period of limitation originally provided by Art.183 of Limitation Act, 1908, but had also repealed Art.182 of Limitation Act, 1908‑‑‑If un‑amended law was to be applied as contended by respondents, the provisions of S.6 of General Clauses Act, 1897, and that the right of litigating parties and remedies available to them should he determined on the basis of law existing at the time of commencement of lis, then it was Art. 182 rather Art. 183 of Limitation Act, 1908, which should be attracted ‑‑‑Art.183 of Limitation Act, 1908, could not be applied instead of Art. 182 of Limitation Act, 1908‑‑‑Application of Art. 183 of Limitation Act, 1908, was restricted to those decisions which were passed by High Court in exercise of its ordinary original civil jurisdiction and the same was not the situation in the present case‑‑‑For the enforcement of such orders of Supreme Court through which the decree or the order impugned before Supreme Court was either reversed or modified or Supreme Court had passed the order in exercise of its original jurisdiction such as under Art.184 of they Constitution, the provisions of Art.l83 of Limitation Act, 1908, could be applicable‑‑­Order of Supreme Court through which leave application of petitioners as disallowed could not be considered to be an order within the purview of Art.183 of Limitation Act, 1908‑‑‑Since the orders passed by Trial Court and Appellate Court restituting the position of land suffered from serious lack of exercise of proper jurisdiction and had been passed with material irregularity, the same were set aside and application of respondents under S.144, C.P.C. was dismissed.

Gujar Mal. v. Narayan Singh AIR 1931 Lah. 504; Telu v. Raja Ram and others AIR 1938 Lah. 456; Punjab National Bank Ltd. v. Firm Nanhe Mal Tanki Das AIR 1939 Lah. 73; Managing Committee Sunder Singh Malha Singh Rajput High School Indaura through Ch. Ram Singh v. Sunder Singh Malha Singh Sanain Dharam Rajput High School Trust, Indaura through Trustees Chj. Chayan Singh and others AIR 1944 Lah. 190 (FB); Mela Ram and others v. Dharam Chand Amrit Lal AIR 1958 Punjab 132; Mahijibhai v. Mani Bhai AIR 1965 SC 1477; Nandra Nath Dey and another v. Suresh Chandra Dey and others AIR 1932 PC 165; General Accident Fire and Life Assurance Corporation Ltd. v. Janmahomed Abdul Rahim AIR 1941 PC 6; Maqbool Ahmed Qureshi v. The Government of Pakistan PLD 1989 FSC 89; S.M. Junaid v. President of Pakistan PLD 1981 SC 12; Dasheshar Dass v. Diwan Chand and others AIR 1933 Lah: 615; Water and Power Development Authority v. Aurangzeb 1988 SCMR 1354; Messrs Conforce Ltd. v. Syed Ali Shah and others PLD 1977 SC 599; Mirza Akbar Ali v. National Bank of Pakistan 1985 SCMR 190; National Bank of Pakistan v. Syed Ishrat Ali 1984 CLC 1907; Umatullah Begum v. Munawar Akhtar, advocate PLD 1996 Lah. 582; Bhola Nath Sen. v. Jogendra Mahan Das and others AIR 1939 Cal. 601; Futteh Narain Chowdhry v. Chundra Bati Chow Dhrain ILR 20 Cal. 551; Luchmun Persad Singh v. Kishuri Persad Singh ALR 8 Cal. 218; Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi 1979 CLC 16; Nazir of the High Court of Sindh and Balochistan Karachi v. Messrs Haji Muhammad Ishaq Haji Dost Muhammad 1981 CLC 372; National Bank of Pakistan v. Messrs Hyderabad Tandoo Fazul Bus Service 1980 CLC 1146; Sh. Muhammad Ali, v. Messrs Chjina Silk House, and others 1985 CLC 679 and Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 87 ref.

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

‑‑‑‑Art. 185(3)‑‑‑Leave to appeal, refusal of‑‑‑Principle of merger‑‑­Applicability‑‑‑Decree of High Court did not merge into the decree of Supreme Court.

Joydeb Agarwala v. Baitulmal Karkhana Ltd. PLD 1965 SC 37 fol.

Ch. Imdad Ali Khan for Petitioners.

Ch. Riyasat Ali and Mian Muhammad Sabir Watto for Respondents.

Date of hearing: 12th October, 2004.

P L D 2005 Lahore 141

Before Mian Saqib Nisar and Syed Sakhi Hussain Bokhari, JJ

NEK MUHAMMAD ‑‑‑Appellant

Versus

REGISTRAR COOPERATIVE PUNJAB, LAHORE and 14 others‑‑‑Respondents

Intra‑Court Appeal No. 551 of 2004 in W. P. No. 16249 of 2004, decided on 1st December, 2004.

(a) Cooperative Societies Rules, 1912‑‑‑

‑‑‑‑R. 48‑‑‑Dissolution of Election Committee by the District Officer Cooperatives followed by an order by the Registrar Cooperatives exercising his powers under the Bye‑Laws of the Society dissolving the Managing Committee and appointing Administrator of the Cooperative Society‑‑‑Validity‑‑‑Such orders of the functionaries could not be termed as void; at the most same could be said to be erroneous, wrong or even illegal, but not' corum non judice or nullity‑‑‑Said orders, therefore, could not be overlooked and shall entail legal consequences, until same were set aside by the forum of competent jurisdiction.

(b) Cooperative Societies Rules, 1912‑‑‑

‑‑‑R. 48‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Dissolution of Election Committee of the Society by the District Officers Cooperatives followed by an order by the Registrar Cooperatives exercising his powers under the Bye‑laws of the Cooperative Society dissolving the Managing Committee and appointing Administrator, of the Society‑‑‑Such orders were suspended till the pendency of Constitutional petition by the High Court and the Society held its election meanwhile‑‑‑Validity‑‑‑Suspension of the order of the High Court was a temporary arrangement which was dependent upon the final outcome of the case and on the basis of such temporary injunctive orders, no structure of any permanent nature could have been raised and rested‑‑‑Exception‑‑‑Order passed in the Constitutional petition, in the present case, showed that Court specifically declined the request of the petitioner to dispose of the matter as having borne fruit and the dismissal of the Constitutional petition was on the basis of withdrawal simpliciter‑‑‑Such order of the Court had not been challenged, thus the same had, attained finality and elections after the dismissal of the Constitutional petition stood annulled‑‑‑Principles.

The suspension of the orders by the Court, till the pendency of the writ petition, obviously was a temporary arrangement, which was dependent upon the final outcome of the case, thus, on the basis of such temporary injunctive order, no structure of any permanent nature could have been raised and rested. Such order would survive or die; swim or sink subject to the final decision of the case. However, the only exception to the above rule, shall be where the Court even while dismissing the main cause, by a conscious application of mind and for justifiable reasons protects, preserves and keeps, intact, any act done on the basis of an order granting some temporary relief. But in the present case, from the order passed in the Constitutional petition it was clear that the Court specifically declined the request of the petitioner to dispose of the matter as having borne fruit and the dismissal was on the basis of withdrawal simpliciter. This order had not been challenged and it had attained finality.

Elections after the dismissal of the Constitutional petition stood` annulled; the elections were not conducted by a validly constituted Election Committee and even without the issuance of a proper schedule. The person who was the convener of the committee and was also the Election Commissioner on account of the Bye‑Laws, was not associated with the elections. There was no proof on the record that he declined to participate, and even if that was, so, the Managing Committee or the Election Committee should have approached the cooperative department for a afresh nominee. But in any case, no valid elections could have been conducted without there being the representative of the Registrar, who otherwise was the convener and the Election Commissioner. Consequently, the contention that such elections could only be challenged through some suit etc., had no force.

After the dismissal of the writ petition, the impugned order was the natural outcome and the consequence and had been rightly passed by the High Court. Moreover, there was no error in the order of the Registrar to hold fresh election which was absolutely valid and justified in the light of the facts and circumstances of the case. Because, as there existed no Managing Committee at present, therefore, the Registrar had rightly directed for the 'fresh elections, which was upheld.

Malik Saeed Hassan and Awan Muhammad Hanif Khan for Appellant.

Muhammad Ilyas Khan for Respondents Nos. 1 to 4.

Muhammad Saleem Chaudhary‑1 for Respondent No. 15.

Khalid Pervez, Registrar, Cooperatives Societies Punjab, Lahore.

P L D 2005 Lahore 150

Before Syed Jamshed Ali, Sheikh Abdur Rashid and M. Bilal Khan, JJ

MUHAMMAD RAFIQUE‑‑‑Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Law Justice and Human Rights Division, Islamabad and another‑‑‑Respondents

Writ Petition No. 18577 of 2004, decided on 1st December, 2004.

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

‑‑‑‑Arts.89 & 199‑‑‑Power of President to promulgate Ordinance‑‑­Scope‑‑‑Ordinance, under the Constitution, being a legislative Act, an Ordinance and an Act of the Parliament stand at the same footing‑‑‑Plea of mala fide in promulgating Ordinance is not available, such being a legislative act‑‑‑Sole Judge of existence of circumstances rendering it necessary to take immediate action under Art.89 of the Constitution is the President and it lies within his subjective satisfaction and thus beyond the reach of the High Court in exercise of its Constitutional jurisdiction under Art. 199 of the Constitution.

Syed Akhlaque Hussain, Advocate PLD 1965 (W.P.) Lah. 147; Bendoari Lal Sharma's case 72 IA 57; Fouji Foundation and another v. Shamimur Rehman PLD 1983 SC 457 and Mehr Zulfiqar Ali Babu and others v. Government of the Punjab and others PLD 1997 SC 11 ref.

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

‑‑‑‑S. 5(2)[as substituted by Legal Practitioners and Bar Councils (Amendment) Ordinance (III of 2004)]‑‑‑Constitution of Pakistan (1973), Arts. 17, 25, 89 & 199‑‑‑Constitutional petition ‑‑‑Vires of S.5, Legal Practitioners and Bar Councils Act, 1973 as substituted by Legal Practitioners and Bar Councils (Amendment) Ordinance, 2004‑‑‑Held, provision of S.5, Legal Practitioners and Bar Councils Act, 1973 (as substituted) is not ultra vires of any provision of the Constitution and is applicable to the elections to the Punjab Bar Council Scheduled for 20‑12‑2004‑‑‑Petitioners, who had duly been nominated as contesting candidates for 2004 elections to the Punjab Bar Council before the promulgation of Legal Practitioners and Bar Councils (Amendment) Ordinance, 2004 are entitled to contest the forthcoming elections and the amendment raising the eligibility threshold to contest the said elections from 7 to 10 years is not applicable to their extent‑‑‑High Court directed that names of such candidates shall be included in the list of the contesting candidates for the forthcoming Punjab Bar Council elections and the list of the nominated candidates formulated as a result of revised Schedule shall stand modified to the extent as indicated above‑‑­Principles.

The grounds to assail the Legal Practitioners and Bar Councils (Amendment) Ordinance, 2004 are summarized as under:

(a) The conditions of Article 89 of the Constitution were not satisfied and that it was justiciable.

(b) An act of the Parliament is to be preferred to an Ordinance.

(c) The said Ordinance was mala fide.

(d) Enhancement of standing at the bar from 7 to 10 years, reduction of seats for the Punjab Bar Council and ousting the Advocates of sub‑ordinate Courts from contesting the' election being arbitrary and discriminatory are hit by Articles 17 and 25 of the Constitution.

(e) Holding election to the N.‑W.F.P. Bar Council under the un-amended law results in discrimination.

As far as the first three grounds are concerned none has merit. Promulgation of an Ordinance under the Constitution is a legislative act and an Ordinance and an Act of the Parliament stand at the same footing. As far as the plea of the mala fide is concerned, it is not available against a legislative act. The sole Judge of existence of circumstances rendering it necessary to take immediate action under Article 89 of the Constitution is the President and it lies within his subjective satisfaction. It is, therefore, beyond the reach of the Court in exercise of Constitutional jurisdiction.

The amending Ordinance could not be assailed on the ground of mala fides, unreasonableness or that conditions of Article 89 of the Constitution were not satisfied.

Article 17 of the Constitution does not contemplate that right to contest an election to a statutory body created by the statute itself will be a fundamental right.

The Bar Councils are the creation of the statute and right to elect or to be elected is the creation of the statute. Article 17 of the Constitution does not refer to a statutory right to elect or to be elected. Therefore, the right to elect and to be elected to the Bar Councils being a creation of the statute, could be lawfully regulated by the statute. A salient feature of the present case is that the impugned Ordinance was promulgated on the basis of the recommendations of the Pakistan Bar Council which is duly represented by the Provincial Bar Councils.

Therefore, the impugned amending Ordinance is not violative of Article 17 of the Constitution.

As far as the plea of discrimination is concerned, enhancement of the qualifications as an Advocate of High Court and the standing from 7 to 10 years only regulates the right to be elected. The qualifications were laid down by Legal Practitioners and Bar Councils Act, 1973 and could, therefore, be lawfully altered by the legislature. Likewise, the electorate had no vested right to the number of seats for which election to the Punjab Bar Council is to be held. Therefore the amending Ordinance is not ultra vires of Article 25 of the Constitution.

The amended section 5‑A of the Legal Practitioners and Bar Councils Act, 1973 enhancing the qualification from 7 to 10 years standing could not be applied to the already nominated candidates so as to give retrospective effect to the impugned Ordinance.

The revised schedule by the Returning Officer had the effect of nullifying the valid nominations of the already nominated candidates. The amendments made by Ordinance No. III of 2004 have become part of the Act itself but even in the scheme of the entire aforesaid Act there is no provision for nullifying a valid nomination already made. Right to be elected is the creation of Act No.XXXV of 1973 and as a result of acceptance of the nomination papers and publication of the list of the contesting candidates, the right of the said candidates to contest the election stood perfected and that right could not be taken away except by express words or unequivocal intendment of the legislature which was not found in section 1(3) of amending Ordinance. In case of doubt, it has to be resolved against retrospectivity to save the existing rights.

Legislative measure which is a matter of procedure alone operates retrospectively so as to be, applied to the pending matters but it would not be so if it takes away or affects an existing right.

After having been validly nominated, such candidates had a vested right to contest the election to the Punjab Bar Council and the amended section 5‑A(b) of Act (No.XXXV of 1973) does not apply to their case.

The names of the already nominated candidates shall be included in the list of contesting candidates for the forthcoming election to the Punjab Bar Council.

Held, the Legal Practitioners and Bar Councils Amendment Ordinance (No.III), of 2004 was not ultra vires of any provision of the Constitution.

The substituted sub‑section 2 of section 5 was applicable to the elections to the Punjab Bar Council scheduled for 20‑12‑2004.

Those petitioners who had duly been nominated as contesting candidates for the 2004 elections to the Punjab Bar Council before promulgation of Ordinance No.III of 2004 were entitled to contest the forthcoming elections and the amendment raising the eligibility threshold to contest the said elections from. 7 to 10 years was not applicable to their extent. It was accordingly directed by the High Court that their names shall be included in the list of the contesting candidates for the forthcoming Punjab Bar Council elections. It was clarified that the list of the nominated candidates formulated as a result of revised schedule shall stand modified to the extent indicated above.

Black's Law Dictionary; Sardar Farooq Ahmad Khan Leghari and others v. Federation of Pakistan and others PLD 1999 SC 57; Malik Asad Ali and others v. Federation of Pakistan through Secretary Law, Justice and Parliament Affairs, Islamabad and others PLD 1998 SC 161; Smt. Indira Nehru Gandhi v. Shri Raj Narain AIR 1975 SC 2299; His Holiness Kesavananda Bharati Sripadagalvaru and others v. State of Kerala and another AIR 1973 SC 1461; Shankari Prasad Singh Deo and others v. The Union of India and others AIR 1951 SC 458; laved Jabbar and 14 others v. Federation of Pakistan and others PLD 2003 SC 955; Muhammad Ishaq v. The State PLD 1956 SC (Pak.) 256; Malik Gul Hasan & Co. and 5 others v. Allied Bank of Pakistan 1996 SCMR 237; Secretary to the Government of Punjab Housing Physical and Environmental Planning Department, Lahore v. Mehr Muhammad Amin, Advocate and 2 others 1997 SCMR 1606; Federal Bank for Cooperatives, Islamabad v. Ehsan Muhammad 2004 SCMR 130 = 2004 PLC (C.S.) 25, PLD 1969 SC 786; The University of Dacca through its Vice‑Chancellor and (2) The Registrar, University of Dacca v. Zakir Ahmed PLD 1965 SC 90; Hakim Ali Zardari v. State and another PLD 1998 SC 1; Muhammad Bachal v. Deputy Rehabilitation Commissioner, Hyderabad and others PLD 1962 (W.P.) Kar. 889; Ch. Sir Muhammad Zafrullah Khan and 3 others v. The Custodian of Evacuee Property West Pakistan and others PLD 1964 SC 865; Mehr Zulfiqar Ali Babu and others v. Government of the Punjab and others PLD 1997 SC 11; Pir Sabir Shah v. Shad Muhammad Khan, Member, Provincial Assembly, N.‑W.F.P. and another PLD 1995 SC 66; Fouji Foundation and another v. Shamimur Rehman PLD 1983 SC 457; Sardar Farooq Ahmad Khan Leghari and others v. Federation of Pakistan and others PLD 1999 SC 57; Haji Ghulam Rasool and others v. The Chief Administrative of Auqaf, West Pakistan PLD 1971 SC 376; Molasses Trading and export (Pvt.) Limited v. Federation of Pakistan and others 1993 SCMR 1905; Syed Akhlaque Hussain, Advocate's case PLD 1965 (W.P.) Lah. 147; Bendoari Lai Sharma 72 IA 57; Bidhu Bhusan Bagchi and another v. The State of West Bengal AIR 1952 Cal. 901; Hindurao Balwant Patil and another v. Krishnarao Parshuram Patil and others AIR 1982 Bom. 216; Jyoti Basu and others v. Debi Ghosal and others AIR 1982 SC 983; Adrian Afzal v. Capt. Sher Afzal PLD 1969 SC 187; Malik Asad Ali and others v. Federation of Pakistan through Secretary Law, Justice and Parliament Affairs, Islamabad and others PLD 1998 SC 161 and Mir Abdul Baqi v. the Government of Pakistan through the Cabinet Secretary, Rawalpindi and 5 others PLD 1968 SC 313 ref.

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

‑‑‑‑Art.17‑‑‑Freedom of association‑‑‑Provision of Art. 17, Constitution does not contemplate that right to contest erection to a statutory 4ody created by the statute itself will be a fundamental right.

(d) Interpretation of statutes ‑‑‑

‑‑‑‑Retrospectivity of a statute‑‑‑Held, in case of doubt, it has to be resolved against retrospectivity to save the existing rights.

(e) Interpretation of statutes ‑‑‑

‑‑‑‑Retrospectivity of a statute‑‑‑Legislative measures which are a matter of procedure alone operate retrospectively so as to be applied to the pending matters but it would not be the case if it takes away or affects an existing right.

A.K. Dogar, Ch. Muhammad Arif, Afzal Ali Haider, Mubeen­-ud‑Din Qazi, Dr. Hameed Ahmad Ayyaz, Tariq Aziz, Riaz Hanif Rahi and Ch. Naseer Ahmad Bhutta for Petitioner.

Dr. Danishwar Malik, Dy.A.‑.G., M. Hanif Khatana Add1.A.‑G. with Tahir Ahmed Gondal, A.A.‑G. for Respondents.

Muhammad Akbar Bhatti, Secretary PBC with Muhammad Ashraf, Superintendent.

Date of hearing: 1st December, 2004.

P L D 2005 Lahore 168

Before Muhammad Akhtar Shabbir and Abdul Shakoor Paracha, JJ

MUBARAK ALI ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 19‑E of 2004, heard on 22nd November, 2004.

National Accountability Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑Ss.9, 10, 15, 25 & 32‑‑‑Corruption and corrupt practices‑‑‑Voluntary return of ill‑gotten gains‑‑‑Consequences of plea bargaining‑‑‑National Accountability Bureau would make plea bargaining or effect settlement with accused/holder of public office or any other person accused of any offence under National Accountability Ordinance, 1999, if accused would come forward voluntarily to return illegal gain acquired or loss caused by him to State Exchequer through corruption/corrupt practices‑‑­If offer to return illegal gain was made by accused after commencement of trial, Chairman National Accountability Bureau could release accused with the approval of the Court‑‑‑If bargaining was made before taking cognizance by Accountability Court, then Chairman National Accountability Bureau, would be competent to accept the offer and determine the amount of illegal gain or loss caused and after deposit of same with National Accountability Bureau would discharge said person‑‑‑Chairman National Accountability Bureau was not competent to release a person without his own offer to return gain illegally acquired by him or loss caused by him‑‑‑Offer for plea bargain by accused was the pre‑condition for release of accused provided same was accepted by Chairman National Accountability Bureau and approved by the Court‑‑­Penal consequences of plea bargaining as provided under S.25 of National Accountability Ordinance, 1999 was disqualification as provided under S.15 of said Ordinance‑‑‑No special provision existed for issuance of show‑cause notice for disqualifying accused, but person who availed of benefit of S.25 of National Accountability Ordinance, 1999, would automatically be deemed to have been convicted for an offence under said Ordinance and would forthwith cease to hold public office, if any, held by him and would be disqualified to avail of financial facility as provided in S.15 of National Accountability Ordinance, 1999‑‑‑Offer made by accused to return ill‑gotten' money, would be deemed to be the confession of accused for committing corruption/corrupt practices and being convicted person would have to face legal consequences as provided in S.15 of National Accountability Ordinance, 1999.

Javed Tariq Khan v. The State PLD 2002 Lah. 607; Makhdoom Syed Ali Raza Shah v. State 2003 YLR 374; Muhammad Anwar v. State 2004 SCMR 1229 and. Ghulam Akbar Lasi 2003 SCMR 89 ref.

Sh. Muhammad Sulaman for Appellant.

Sardar Asmat Ullah. Khan DPGA for NAB.

Date of hearing: 22nd November, 2004.

P L D 2005 Lahore 174

Before Muhammad Nawaz Bhatti, J

RUKHSANA BIBI‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.89‑J of 2003, heard on 15th December, 2004.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b) & 309(2)‑‑-Criminal Procedure Code (V of 1898), S.345(5‑A)‑‑Appreciation of evidence‑‑‑Compromise between accused and legal heirs of deceased‑‑‑Accused, who was convicted and sentenced, had filed appeal against conviction and sentence‑‑‑Accused, during pendency of appeal, moved an application under S.345(5‑A), Cr.P.C. seeking her acquittal on the basis of compromise arrived at between her and legal heirs of deceased‑‑‑Authenticity of legal heirs of deceased had been duly verified and the legal heirs had stated in unequivocal terms that compromise was without any coercion or undue influence and that they had extended forgiveness to accused waiving their right of Qisas and Diyat in the name of Allah Almighty and that they had no objection against the acquittal of accused‑‑‑One of the legal heirs of deceased was stated to be missing for the last 10/11 years and his whereabouts were not known; it would be presumed that said missing legal heir of deceased was not alive‑‑‑Compromise having been arrived at between parties without any duress and coercion, was genuine which would promote harmony and peace amongst, parties‑‑Compromise was accepted and conviction and sentence recorded against accused by Trial Court, were set aside and she was ordered to be released‑‑‑Missing legal heir of deceased if subsequently appeared and did not waive his right of Qisas, he would be entitled to his share of Diyat as provided in Proviso to subsection (2) of S.309,. P.P.C.

Ms. Surriyya Sultana Butt for Appellant.

Saeed Ahmad Malik for the State.

Date of hearing: 15th December, 2004.

P L D 2005 Lahore 177

Before Muhammad Sair Ali, J

GOVERNMENT OF PAKISTAN, MINISTRY OF DEFENCE, RAWALPINDI through Station Commander (H.Q.) Sialkot‑‑‑Petitioner

Versus

MUHAMMAD BASHIR ‑‑‑ Respondent

Civil Revision No.2099 of 2000, heard on 4th November, 2004.

(a) Administration of justice‑‑‑

‑‑‑‑ Duty of Court‑‑‑Scope‑‑‑Court has to apply correct law and to justly administer the rights and remedies of citizens‑‑‑Such duty of Court is fundamental to and enshrined in the concept of administration of justice.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S.3‑‑‑Suit filed beyond limitation‑‑‑Dismissal‑‑‑Principles‑‑‑Court hearing a case has to carefully calculate the period of limitation on determining the applicable provision of law or the Article of the Schedule of Limitation Act, 1908‑‑‑Declaration to bar a remedy should be carefully granted‑‑‑Plaintiff can be non‑suited on the limitation or other barring statute upon deep and thorough consideration of the applicable provisions of law‑‑‑Court is itself obligated under S.3 of Limitation Act, 1908, to take into account the period of limitation for a suit filed before it, even if no objection thereto has been raised‑‑‑Court is duty bound to determine correct period of limitation and provision applicable thereto.

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

‑‑‑‑S. 115‑‑‑Limitation Act (IX of 1908), S.3‑‑‑Revision‑‑‑Jurisdiction of High Court‑‑‑Scope‑‑‑Incorrect application of provisions of Limitation Act, 1908‑‑‑Effect‑‑‑Petitioner cannot be denied the right to show even at revisional stage before High Court that the law was incorrectly applied by subordinate Courts and that the petitioner was non‑suited under an inapplicable provision.

(d) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Art. 149‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Recovery of money‑‑‑Suit filed by Government‑‑‑Limitation‑‑‑Suit filed by Federal Government for recovery of money was dismissed by Trial Court on the ground that the same was filed beyond period of three years‑‑‑Judgment and decree passed by Trial Court was maintained by Appellate Court‑‑­Plea raised by Federal Government was that period of limitation prescribed under Art.149 of Limitation Act, 1908, for filing of suit was sixty years and not three years‑‑‑Validity‑‑‑Both the Courts below in their judgments and decrees proceeded with the suit filed by the Federal Government oblivious of the provisions of Art.149 of First Schedule of Limitation Act, 1908 and thus respectively dismissed the suit as well as the appeal‑‑‑Non‑consideration of Art.149 of Limitation Act, 1908, was a .material irregularity as well as mis‑exercise of jurisdiction‑‑­Concurrent Judgments and decrees passed by both the Courts below on the issue of limitation could not be sustained‑‑‑High Court in exercise of revisional jurisdiction under S.115 C.P.C. abstained from converting the decrees of dismissal into the decrees of acceptance of the suit‑‑‑Judgment and decree passed by the Appellate Court was set aside and matter was remanded to Lower Appellate Court for deciding appeal afresh.

The Province of East Bengal v. Bakarganj Central Cooperative Sale and Supply Ltd. and another PLD 1960 Dacca 604 and Pakistan Railways v. Abdul Latif 1992 MLD 1379 ref.

Sh. Javed Sarfraz, Standing Counsel for Petitioner.

Hafiz Khalil Ahmad for Respondent.

Date of hearing: 4th November, 2004.

P L D 2005 Lahore 181

Before Syed Zahid Hussain, J

Syeda TASNEEM RIFFAT‑‑‑Petitioner

Versus

PRINCIPAL SECRETARY and others‑‑‑Respondents

Writ Petition No. 10362 of 2004, decided on 20th December, 2004.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Directive of Chief Minister‑‑­Non‑implementation‑‑‑On pathetic circumstances stated by the petitioner in her application, the Chief Minister passed a directive to the authorities to adjust her on extreme compassionate grounds‑‑‑Directive of the Chief Minister was not complied with and the petitioner filed the present petition for implementation of the directive‑‑‑Validity‑‑‑Chief Minister being the Chief Executive of the Provincial Government had issued the directive which from the tenor of its contents showed due application of his mind and appreciation of the pathetic circumstances of the petitioner‑‑‑Directive was to be respected by the other functionaries of the Government and to be carried out‑‑-Petitioner who somehow had succeeded in having access to the Chief Minister of the Province and her pathetic circumstances persuaded him to pass an order, the same ought to have been implemented arid complied with without any demur‑‑‑High Court observed that it was unfortunate that the petitioner had undergone further sufferance and had to knock the door of High Court for some relief‑‑‑Non‑compliance of the order of Chief Minister of Province was illegal and unwarranted and High Court directed the Chief Minister Secretariat to ensure compliance of the order of Chief Minister without any delay‑‑‑Petition was allowed accordingly.

(b) Good governance‑‑‑

‑‑‑‑ Directive issued by Chief Minister‑‑‑Non‑compliance‑‑‑Effect‑‑‑If an order is not to be enforced or implemented, then why should such order be issued‑‑‑Issuance of such order where it creates hopes and expectations, it results in total frustration and disappointment when it is not implemented and yields no benefits or fruits‑‑‑High Court noted that in several cases, the orders/directives issued by Chief Minister Secretariat are not respected or implemented by the governmental functionaries‑‑‑Perhaps such happens as the issuance of such orders or directives is considered by the subordinates a routine affair and exercise‑‑‑Non‑compliance of such directives and orders mocks the Authority passing such orders‑‑‑Such non‑compliance militates even against the declared, proclaimed and projected policy of good governance‑‑‑High Court advised that before issuing such orders and directives the matter should be seriously dealt with, pondered and on due consideration only appropriate order or directive should be issued and it should then be seen that the same was carried out, honoured and implemented‑‑‑Routine issuance of directives, which may be turned down by the subordinates, adversely reflects upon the authority of the Government itself.

M.D. Tahir for Petitioner.

Kh. Muhammad Afzal and Muhammad Asif Mahmood Cheema with Ms. Shama Zia Deputy Secretary, Education Department, Lahore for Respondents.

Date of hearing: 20th December, 2004.

P L D 2005 Lahore 185

Before Syed Shabbar Raza Rizvi, J

AZIZ AHMAD‑‑‑Petitioner

Versus

PROVINCIAL POLICE OFFICER (I.‑G.P.), PUNJAB LAHORE and 6 others‑‑‑Respondents

Writ Petition No. 19391 of 2004, heard on 22nd December, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Police Order (22 of 2002), Arts.18(6) & 187‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Re‑investigation‑‑­Case was investigated and after completion of investigation, challan was submitted before Trial Court, but instead of proceeding with the trial on basis of challan so submitted, re‑investigation was ordered which had been challenged in Constitutional petition on ground that at that stage re­investigation was not in consonance with provisions of Police Order, 2002‑‑‑Spirit of Art.18(6) of Police Order, 2002 was to discourage re­investigation‑‑‑Said objective could not be bypassed or stultify by using, device i.e. verification of investigation etc. ‑‑‑Departmental circular whereby re‑investigation was directed, was declared void, illegal, without lawful authority and of no, legal effect‑‑‑Trial Court was directed to proceed with the trial on basis of challan submitted before it on basis of earlier investigation‑‑‑If however; 're‑investigation was directed as provided under Art. 18(6) of Police Order 2002, that would not be affected by the present order.

(b) Interpretation of statutes‑‑‑

‑‑‑‑Departmental Circulars were good enough for the internal management and control, but they could not confer any right on or deprive a person of a right, which was only possible on the basis of a statutory provisions or a rule made by a competent Authority under concept of delegated legislation‑‑‑If the Rules framed under the statute were in excess of the provisions of the statute or were in contravention or inconsistent with such provisions then provisions of main statute must prevail and such rules, etc., could not be given legal effect.

Sub. Muhammad Asghar v. Safia Begum and others PLD 1976 SC 435 and Kh. Ahmad Hassan v. Government of the Punjab 2004 SCJ 668 ref.

Masood Mirza for Petitioner.

Muhammad Amir Khan for Respondents.

Muhammad Haneef Khattana, Actg. A.‑G. assisted by Ch. Jamshed Hussain, A.A.‑G. along with Danish, S.‑I. for the State.

Date of hearing: 22nd December, 2004.

P L D 2005 Lahore 190

Before Syed Jamshed Ali, J

SAADAT KHIYALI, EX‑CHIEF EDITOR, DAILY MASHRIQ, LAHORE and another‑‑‑Appellants

Versus

CITY COORDINATION OFFICER, CITY DISTRICT GOVERNMENT, LAHORE‑‑‑Respondent

Appeal No.2 of 2003, heard on 9th December, 2004.

(a) Interpretation of statutes‑‑‑

‑‑‑Provisions of law expressed in negative term‑‑‑Effect‑‑‑Such provisions of law are generally to be considered as mandatory unless intention of legislature appears to the contrary.

(b) Interpretation of statutes‑‑‑

‑‑‑While enacting a law, legislature is presumed to know the existing state of law.

(c) Press, Newspapers, News Agencies and Books Registration Ordinance (XCVII of 2002)‑‑‑

‑‑‑‑S. 10(2)‑‑‑West Pakistan Press and Publications Ordinance (XXX of 1963), S.12(2)‑‑-Expression "may not" as used in S.10(2) of Press; Newspapers, News Agencies and Books Registration Ordinance, 2002‑‑­Deeming clause, effect of‑‑‑Refusal to authenticate declaration on the ground stated in S. 12 of West Pakistan Press and Publications Ordinance, 1963, was mandatory because the negative command' was followed by the word "shall"‑‑‑If intention of legislature was to retain the provision given in S.12 (2) of West Pakistan Press and Publications Ordinance, 1963, in the new enactment in the mandatory form the expression "may not" in S.10(2) of Press, Newspapers, News Agencies and Books Registration Ordinance, 2002, would not have been used‑‑­Deeming clause in S.10(4) of Press, Newspapers, News Agencies and Books Registration Ordinance, 2002, had strengthened the view of that S.10 (2) of Press, Newspapers, News Agencies and Books Registration Ordinance, 2002 was not intended to be mandatory‑‑‑Intention of the legislature to incorporate such deeming clause in Press, Newspapers, News Agencies and Books Registration Ordinance, 2002, was that authentication of a "declaration" to attract the deeming clause contemplated by S.10(4) of Press, Newspapers, News Agencies and Books Registration Ordinance, 2002, should be a declaration which fulfilled the requirements of S.6 of Press, Newspapers, News Agencies and Books Registration Ordinance, 2002‑‑‑Effect could not be given to the said deeming clause in isolation of S.6 of Press, Newspapers, News Agencies and Books Registration Ordinance, 2002, because in such case the provisions of S.6 of Press, Newspapers, News Agencies and Books Registration Ordinance, 2002, would become redundant.

(d) Interpretation of statutes‑‑‑

‑‑‑‑ Redundancy could not be attributed to Legislature.

(e) Press, Newspapers, News Agencies and Books Registration Ordinance (XCVII of 2002)‑‑‑

‑‑‑‑Ss.6, 10 & 20‑‑‑Appeal‑‑‑Declaration of publication, non­-authentication of‑‑‑Dispute over ownership of declaration‑‑‑ Grievance of appellants was that the authorities refused to authenticate declaration "Mashriq Lahore" in their favour‑‑‑National Press Trust was laying claim to be the owner of the declaration‑‑‑Appellants sought authentication of the declaration in their favour which had been refused by the authorities‑‑‑Validity‑‑-Unless the requirements of S.6 of Press, Newspapers, News Agencies and Books Registration Ordinance, 2002, were complied with, if applicable in a given case; deeming clause was not ipso facto applicable‑‑‑Contention of respondent based on S.10 (4) of Press, Newspapers, News Agencies and Books Registration Ordinance, 2002, was repelled‑‑‑By assuming that the provision of S.10(2)(b) of Press, Newspapers, News Agencies and Books Registration Ordinance, 2002, was mandatory, the D.C.O. failed to exercise jurisdiction vesting in him‑‑‑Order passed by the D.C.O. was set aside and application made by appellant, would be deemed to be pending for decision afresh in accordance with law‑‑‑Appeal was allowed accordingly.

Abid Hassan Minto, Sana Ullah Khan, Ahmad Hassan Khan and Javaria Syed for Appellants.

Kh. Muhammad Afzal for Respondent.

Date of hearing: 9th December, 2004.

P L D 2005 Lahore 197

Before Muhammad Sair Ali, J

Sheikh MUHAMMAD AYUB ‑‑‑ Petitioner

Versus

MUHAMMAD YOUSUF‑‑‑Respondent

Civil Revision No. 1381 of 2003, decided on 14th January, 2005.

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

‑‑‑‑O. XXXVII, Rr.1 & 2‑‑‑Suit for recovery‑‑‑Leave to defend the suit by the defendant‑‑‑Imposition of terms on the leave‑‑‑Principles.

Principles settled for the leave and the imposition of terms on the leave are following:

(i) the Court should consider the facts disclosed in the affidavit filed by a defendant along with application for seeking leave to appear and defend the suit;

(ii) if such facts show a plausible defence or a substantial question of fact or law needing trial or investigation, the defendant will be entitled to the leave to defend the suit;

(iii) if the defence set‑up is vague or unsatisfactory or doubtful or not genuine, leave should not be refused altogether but the applying defendant should be put on terms either to furnish security or to deposit the amount claimed; or

(iv) if the allegations in the affidavit are illusory or improbable not raising a triable issue as to the consideration for the Bill, leave can be refused by the Court.

Despite the finding of existence of a "plausible defence" or a "substantial question of fact or law" or a "triable issue" in the case, the Court could subject the grant of leave to the term of cash deposit in the Court by the defendant for the reason that "conduct of the defendant was not entirely free from suspicion."

Fine Textile Mills Ltd. Karachi v. Haji Umer PLD 1963 SC 163 fol.

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

‑‑‑‑O. XXXVII, R.3‑‑‑Suit for recovery‑‑‑Leave to defend suit‑‑‑Grant or refusal‑‑‑Basis‑‑‑Facts and the questions as disclosed in the affidavit and application to seek leave to appear and defend the suit, form the basis for grant or refusal of the leave and/or to allow the leave upon terms or otherwise‑‑‑Imposition of a term is the Court's discretion to be exercised judiciously upon the facts of the case before it‑‑‑Such exercise should not be arbitrary, perverse or unduly harsh so as to amount denial of the defence to a deserving defendant‑‑‑Principles.

Agrofoster (Pvt.) Ltd. and 2 others v. Judge Banking Court No.5, Karachi and another PLD 1999 Kar.398; Haji Abdul Wahid v. Hoechst Pakistan Limited and another 1993 CLC 1291; Ehsanul Haq Kiani v. Allied Bank of Pakistan, Karachi and 2 others 1984 SCMR 963; Fine Textile Mills Ltd. Karachi v. Haji Umar PLD 1963 SC 163; Haji Karim and another v. Zakir Abdullah 1973 SCMR 100; Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1996 SC 749; Messrs Ark Industrial Management Ltd. v. Messrs Habib Bank Ltd. PLD 1991 SC 976; Haji Sh. Muhammad Hussain & Co. Ltd. and 9 others v. Citibank N.A. Alfalah Building Lahore 1985 CLC 2467 and Messrs National Security Insurance Co. v. Messrs Hoechst Pakistan Ltd. and others 1992 SCMR 718 ref.

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

‑‑‑‑O. XXXVII, R.3‑‑--Negotiable Instruments Act (XXVI of 1881), S.118‑‑‑Suit on the basis of dishonoured cheque‑‑‑Application for leave to defend suit by the defendant‑‑‑Defendant in his application and affidavit had admitted that the parties had a business relationship whereunder the plaintiff invested a certain amount in cash with the defendant and the defendant had also admitted the amount of balance payable by him to the 'plaintiff‑‑‑Defendant claimed issuance of the cheques in question "as security for the amount invested"‑‑‑Cheques were admittedly dishonoured as not arranged for by the defendant and his son had issued more cheques in favour of the plaintiff in order to satisfy plaintiff's business creditors‑‑‑Execution, issuance and the dishonouring of the cheques thus ceased to be the litigated questions upon admission of the defendant‑‑‑Trial Court as such concluded that defendant's defence deserved a trial and while exercising its discretion, in view of the facts, granted leave conditionally upon his furnishing of a surety bond for the suit amount‑‑‑Validity‑‑‑Defendant having not produced any document in support of his plea of the investment by the plaintiff in business transaction, examining the record to assess whether exercise of discretion of subjecting the leave to a condition by the District Judge, was improper, perverse and arbitrary‑‑‑.Plea of defendant, in fact, proved the existence of a financial transaction between the parties by admitting payment of money by the plaintiff‑‑Issuance of cheques by the defendant was also a proof that the plaintiff's money was backed by the defendant's, cheques‑‑‑Nature and the value of the defence plea terming the cheques as securities and the effect thereof could only be determined upon investigation in a trial particularly in the perspective of the admitted execution and issuance of cheques by the defendant and dishonouring the same‑‑‑Blank and unsubstantiated oral pleas of the defendant were not adequate at the revision stage to displace the initial presumption attached under S.118, Negotiable Instruments Act, 1881 that the negotiable instruments were made, drawn, accepted or endorsed for a consideration‑‑‑Defendant had yet to discharge his onus of proof that the cheques made and drawn by him were not for consideration‑‑­Trial Court, in circumstances, validly and reasonably exercised the discretionary powers vesting in it to grant leave to defend the suit conditionally upon the submission of surety bond equal to the disputed amount by the defendant and was justified to reject the review application against said order‑‑‑Such order of the Trial Court did not deserve interference by the High Court in revision‑‑‑High Court allowed another opportunity of a trial to the defendant to furnish a surety bond for the suit amount by granting further time uptil 31‑1‑2005 and modified the order of the Trial Court accordingly and if the defendant failed to furnish surety bond up to the specified date, order of the Trial Court would remain in the field and Trial Court shall proceed to decide the suit expeditiously in accordance with law.

Agrofoster (Pvt.) Ltd. and 2 others v. Judge Banking Court No.5, Karachi and another PLD 1999 Kar.398; Haji Abdul Wahid v. Hoechst Pakistan Limited and another 1993 CLC 1291; Ehsanul Haq Kiani v. Allied Bank of Pakistan, Karachi and 2 others 1984 SCMR 963; Fine Textile Mills Ltd. Karachi v. Haji Umar PLD 1963 SC 163; Haji Karim and another v. Zakir Abdullah 1973 SCMR 100; Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1996 SC 749; Messrs Ark Industrial Management Ltd. v. Messrs Habib Bank Ltd. PLD 1991 SC 976; Haji Sh. Muhammad Hussain & Co. Ltd. and 9 others v. City Bank N.A. Alfalah Building Lahore 1985 CLC 2467 and Messrs National Security Insurance Co. v. Messrs Hoechst Pakistan Ltd. and others 1992 SCMR 718 ref.

Muhammad Yousaf Kazmi for Petitioner.

Hamid Ali Mirza for Respondent.

Date of hearing: 24th November, 2004.

P L D 2005 Lahore 209

Before Syed Zahid Hussain, J

RAZIA SULTANA and 4 others‑‑‑Petitioners

Versus

RAZIA BEGUM and 3 others‑‑‑Respondents

Civil Revision No.2163 of 2004, heard on 22nd December, 2004.

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

‑‑‑‑S. 47‑‑‑Execution of decree‑‑‑Principles.

Few settled principles in regard to execution of decree are enlisted as follow:‑‑

(i) It is the decree drawn by the Court which is executable and not the judgment/findings;

(ii) Executing Court cannot go behind the decree;

(iii) Executing Court must take the decree as it stands and cannot make any alteration or modification therein; and

(iv) In case of reversal, modification or alteration of decree by the Court of last instance, the decree is to be executed accordingly.

Syed Riaz Ahmad Shah and another v. Dayal Singh College Trust Society and another 1972 SCMR 237; Muhammad Ali v. Ghulam Sarwar and others 1989 SCMR 640; Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Company Limited and 2 others 1994 SCMR 22; Sardar Ahmad Yar Khan Jogezai and 2 others v. Province of Balochistan through Secretary, C&W Department 2002 SCMR 122; Ghulam Muhammad v. Sultan Mahmud and others PLD 1963 SC 265; Topanmal Chhotamal v. Messrs Kundomal Gangaram and others AIR 1960 SC 388 and Sunder Das v. Ram Parkash AIR 1977 SC 1201 ref.

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

‑‑‑‑S. 47‑‑‑Execution of decree‑‑‑Nothing more can be read into the decree as the same is to be taken as it stands.

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

‑‑‑‑S.39‑‑‑Civil Procedure Code (V of 1908), Ss.2(2), 47 & O.XXI, R.11(2)‑‑‑Cancellation of document‑‑‑Execution, beyond decree‑‑­Delivery of possession by bailiff‑‑‑Suit for cancellation of sale‑deed was decreed by Trial Court and the judgment and decree was maintained up to High Court‑‑‑Disputed sale‑deed was cancelled by Trial Court but no decree regarding possession of the suit property was passed‑‑‑Decree holder filed execution application which was dismissed by Executing Court for the reason that there was no mention of possession in the decree‑‑Appellate Court allowed the appeal and bailiff was deputed to deliver the possession to decree holder in execution of the decree‑‑‑Plea raised by judgment‑debtor was that the Executing Court could not go beyond the decree and functions of Executing Court could not be assigned to bailiff‑‑‑Validity‑‑‑Sanctity of decree remained intact till such time it was corrected, altered or modified by the Court in accordance with law‑‑‑Executing Court was to execute the decree as it was, however, subject to any modification/alteration therein by higher forum‑‑‑Where the decree was silent about possession, the Executing Court rightly dismissed the execution application‑‑‑Essential function of Executing Court could not be entrusted to bailiff, who was merely expected to carry out the mandate given to him by Executing Court‑‑­Appellate Court did not act in accordance with law, therefore, its judgment was set aside.

Ghulam Muhammad v. Sultan Mahmud and others PLD 1963 SC 265 rel.

Sardar Ahmed Yar Khan Jogezai and 2 others v. Province of Balochistan through Secretary, C&W Department 2002 SCMR 122 ref.

(d) Administration of justice‑‑‑

‑‑‑‑Expeditious disposal of matter‑‑‑Principles‑‑‑Held, there should be expeditious disposal of matters and litigants should get justice as expeditiously as possible but in such effort settled principles of law cannot be ignored.

Mansoor‑ur‑Rehman Afreedi for Petitioners.

Ahmad Awais for Respondents.

Date of hearing: 22nd December, 2004.

P L D 2005 Lahore 214

Before Muhammad Muzammal Khan, J

SHAH WALI‑‑‑Petitioner

Versus

MUHAMMAD IQBAL‑‑‑Respondent

Civil Revision No.399 of 2003, decided on 14th December, 2004.

(a) Malicious prosecution‑‑

‑‑‑‑Damages‑‑‑Concurrent findings of fact by the Courts below‑‑‑Non-­filing of any appeal/revision against judgment passed by criminal Trial Court dismissing, private complaint‑‑‑Suit for damages was filed by plaintiff on the ground that the defendant maliciously prosecuted him by filing private complaint which was dismissed by the Trial Court‑‑‑Suit was decreed by Trial Court in favour of plaintiff and appeal was dismissed by Appellate Court‑‑‑Validity‑‑‑Prosecution by defendant through private complaint and its ultimate dismissal was not denied by the defendant‑‑‑Dismissal of private complaint on merits and desertion of proceedings by not filing any appeal/revision before higher forum proved on file that the proceedings before criminal Court were initiated without any reasonable/just cause‑‑‑Fake criminal proceedings could not be started without any malice on part of the initiator‑‑‑If there had been no malice on the part of defendant he could have challenged the order of dismissal on his complaint passed by criminal Trial Court‑‑‑Absence of any medical evidence in the complaint filed by the defendant supported the claim of malicious prosecution by defendant and was not unfounded‑‑‑Both the Courts below correctly appraised the evidence on file and did not commit any illegality/irregularity of misreading/non­-reading of evidence‑‑‑Concurrent findings of fact returned in consonance with the record, were immune from interference in revisional jurisdiction of High Court.

Subedar (Retd.) Fazale Rahim v. Rab Nawaz 1999 SCMR 700 ref.

Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818; Secretary to Government of the Punjab, Education Department, Lahore and another v. Saeed Ahmad Khan PLD 1994 SC 291; Sirbaland v. Allah Loke and others 1996 SCMR 575; Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139; Mst. Ameer Begum v. Muhammad Naeem Khan and another PLD 2000 SC 839 and Mst. Kaniz Fatima through legal heirs v. Muhammad Saleem and 27 others 2001 SCMR 1493 rel.

(b) Suit‑‑‑

‑‑‑‑ Dismissal of suit‑‑‑Solitary statement of defendant‑‑‑Effect‑‑‑Self-­serving statement of defendant with admission in cross‑examination of facts mentioned in plaint, was not enough to dismiss the suit of plaintiff.

Ch. Saleem Murtaza Mughal for Petitioner.

Malik Pervaiz Akhtar Awan for Respondent.

P L D 2005 Lahore218

Before Mian Saqib Nisar, J

ALI BAHADUR and others‑‑‑Petitioners

Versus

NAZIR BEGUM and others‑‑‑Respondents

Civil Revision No.89‑D of 1999, decided on 17th January, 2005.

(a) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)‑‑‑

‑‑‑‑S. 2‑‑‑Custom (Punjab)‑‑‑Inheritance‑‑‑Limitation‑‑‑Termination of limited estate of a widow on the promulgation of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962‑‑‑Estate, of the deceased "reverted to him for the purposes of its inheritance to his legal heirs, upon whom it instantly and immediately devolved, and they became the co‑sharers of such an estate by operation of law‑‑‑No limitation, in circumstances, ran against the co‑sharer to 'assert and enforce his rights particularly under the inheritance‑‑‑View that suit should have been brought within the maximum period of six years, as provided by Art. 120, Limitation Act, 1908, and having not done so, the suit was time‑barred, was against law.

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

‑‑‑‑O. XLI, R.22 & S.96‑‑‑No specific provision exists in C.P.C. like the cross‑appeal, which a person/party can file under S.96, C.P.C., if he is aggrieved against the part of the decree and seeks its modification; the provision of O.XLI, R.22, C.P.C. also provides enough room for such a person/party to file cross‑objections by meeting the condition of the said rule if the cross‑appeal has not been filed and the modification etc. of the decree is sought‑‑‑If, however, the decree‑holder, who is the beneficiary of the decree, is aggrieved of the findings of the Court below on anyone or more issues going against him, but is satisfied with the final verdict of the decree being in his favour, can (as, respondent in appeal) support the judgment and decree, but without filing any cross‑appeal or cross­objection and can verbally request and pray to the Court to reverse the findings on the issue/issues going against him at the trial stage and to award him decree on the basis of such reversed findings as well‑‑­Proposition illustrated.

Khairati and 4 others v. Aleem ud Din and others PLD 1973 SC 295 ref.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Powers of Court of revision‑‑‑Scope and extent‑‑­No express provision in the C.P.C. exists enabling an aggrieved party, of either filing the cross‑revision or the cross‑objection in the revision of the other side‑‑‑If however, respondent in a revision petition has a genuine and strong case on an issue going against him at the forum below, only for the reason that there is no specific provision in the C.P.C., enabling him to challenge the findings through a cross‑revision or cross‑objection,, such respondent cannot be held to be remediless and the revisional Court powerless to ratify a decision, which otherwise is patently illegal and in such a situation., the special powers of revisional Court shall be resorted to and the findings of the Court below, on any issue thus, can be considered by the revisional Court without there being any cross‑revision or cross‑objections‑‑‑Without even filing any cross­-revision or cross‑objections, the respondents were entitled to attack the findings of the Court below on the issue and to show and establish, to the High Court that such findings were illegal, unlawful, perverse and against the record‑‑‑Principles.

Zakrullah Khan and others v. Faizullah Khan and others 1999 SCMR 971 ref.

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 64‑‑‑Pedegree‑table‑‑‑Proof‑‑‑Pedegree‑table without the corroboration thereof, cannot be a proof of the relationship such as the one falling within the purview of Art. 64 of the Qanun‑e‑Shahadat, 1984.

Ahmad and others v. Allah Diwaya and others 1998 SCMR 386, Muhammad Naeem and others v. Ghulam Muhammad and others 1994 SCMR 559 and Rehman v. Noora through Legal Heirs 1996 SCMR 300 ref.

(e) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 64‑‑‑Proof of relationship‑‑‑Much importance and credence cannot be given to the testimony of a person who is party to the litigation when his/her statement was not found in line with the plaint.

(f) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 64 & 71‑‑‑Proof of relationship‑‑‑Opinion of a person shall be relevant and admissible, and shall not be hit by the rule of hearsay, only when such a, person is the member of the family of whose relationship is in issue or otherwise has special‑means of knowledge on the subject.

(g) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 64‑‑‑Civil Procedure Code (V of 1908), S. 115‑‑‑Proof of relationship‑‑‑Pedigree‑table‑‑‑Discrepancies‑‑‑Effect‑‑‑No one can be allowed to prove the case beyond the scope of his pleadings and any evidence led in contradiction or out of the purview of the pleadings, shall be inadmissible and ignored by the Court‑‑‑Where the Appellate Court while considering the discrepancies of the pedigree‑table given in the plaint had erroneously concluded that it was not fatal because on the strength of both the oral and documentary evidence, the petitioners had been able to prove their relationship, such findings of the Appellate Court could not be considered to be the findings based upon proper reading of the evidence on the record, rather it was a case of wrong consideration, misreading of the plaint and also violative of the rules about the proof of pedigree‑table and those enshrined in Art. 64, Qanun-­e‑Shahadat 1984‑‑‑Such findings could not be sustained which were reversed, with the' result that on account of the reversal, the suit of the petitioners remained dismissed, but on the issue and the failure of the petitioners to prove their relationship.

Ahmad and others v. Allah Diwaya and others 1998 SCMR 386 ref.

Ali Akbar Qureshi and Fakhar ul Zaman Akhtar Tarar for Petitioners.

Muhammad Anwar Warraich for Respondents.

Date of hearing: 17th January, 2005.

P L D 2005 Lahore 228

Before Mian Hamid Farooq, J

NAZEER AHMAD‑‑‑Petitioner

Versus

HOUSE BUILDING FINANCE CORPORATION KARACHI through Managing Director and 2 others‑‑‑Respondents

Writ Petition No.26478 of 1997, decided on 28th January, 2005.

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

‑‑‑‑O. IX, R.6‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.129(e)‑‑­Constitution of Pakistan (1973); Art. 199‑‑‑Constitutional petition ‑‑‑Non­appearance of respondent and his counsel in response to notices issued to them‑‑‑Office report confirmed issuance of the notices‑‑‑Effect‑‑­Presumption would be that notices had been served upon such persons‑‑­High Court proceeded ex parte against respondent.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 37‑‑‑Civil Procedure Code (V of 1908), S.50‑‑‑Pecuniary liabilities/obligations of deceased debtor arising out of contract‑‑‑Right of creditor to enforce such contract against legal heirs of deceased debtor‑‑‑Scope and extent‑‑‑Legal heirs would not be personally liable to liquidate liabilities of their predecessor‑in‑interest‑‑‑Coercive measures for recovery of outstanding amount could not be adopted against a person who had not secured loan himself‑‑‑Pecuniary obligations undertaken by deceased would bind his legal heirs to the extent of estate of deceased inherited by them‑‑‑Amount due in the account of deceased debtor could be recovered from mortgaged property, if any, or/and from the estate left by him‑‑‑Amount outstanding against deceased could not be recovered from his son under threat of arrest and adoption of other coercive measures‑‑‑Such recovery, if made, would be illegal and creditor would be liable to refund recovered amount to the son of deceased debtor‑‑‑Principles illustrated.

Agricultural Development Bank of Pakistan v. Sanaullah Khan and others PLD 1988 SC 67 fol.

(c) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 126‑‑‑Guarantor/surety‑‑‑Affidavit of a party stating therein to be guarantor‑‑‑ Evidentiary value‑‑‑Such affidavit, if denied by its signatory and not proved in accordance with law, would be of no help to creditor‑‑‑Person by simply executing an affidavit would not become guarantor, unless he executed letter of guarantee within contemplation of law of guarantee‑‑‑Principles.

Petitioner in person.

Nemo. for Respondents.

P L D 2005 Lahore 233

Before Syed Shabbar Raza Rizvi, J

Raja SALEEM BABAR and 2 others‑‑‑Petitioners

Versus

TEHSIL NAZIM/TEHSIL MUNICIPAL ADMINSTRATION, DISTRICT CHAKWAL and 3 others‑‑‑Respondents

Writ Petition No. 3481 of 2004, heard on 4th February, 2005.

(a) Punjab Local Government Ordinance (XIII of 2001)‑‑‑

‑‑‑‑Chaps. V [Ss.49 to 64] & 6‑‑‑Composition and functions of Tehsil Administration‑‑Scope.

In the scheme of the Punjab Local Government Ordinance, 2001, the Tehsil Administration is provided in Chapter V. The composition and functions are also given in the same Chapter. The Tehsil Municipal Administration consists of Tehsil Nazim, Tehsil Municipal Officer, Tehsil Officers, Chief Officers and other officials of the Local Council service, etc. The functions of Municipal Administration are given in section 54 of the Ordinance; Subsection (j) of section 54 describes function of preparing budget for long term and annual development programs in collaboration with the Union Council, under the direction of Tehsil Nazim. Tehsil Nazim is head of Tehsil Municipal Administration under, section 56 of the Ordinance; and under section 57(b), his function is to formulate strategies for development of Municipal infrastructure and improvement of delivery of the Municipal service of the Tehsil. Combined reading of the above section's shows that Tehsil Municipal Administration headed by its Nazim prepares development plans/schemes.

Chapter VI provides composition of Tehsil Councils. Tehsil Councils consist of Naib Nazims of all Union Councils in the Tehsil and members elected on reserved seats. In section 67 of the Ordinance, functions of Tehsil Council are enumerated. Sub‑section (iv) of section 67 of the Ordinance empowers Council to approve long and short term development plans. Reading of section 67 reveals that the function of the Council is to confer approval to the plans prepared by the Tehsil Municipal Administration. The above two distinct organs of Tehsil Government and their functions are distinctly and separately given and needed to be understood and followed to fulfil the objectives of the Ordinance.

(b) Punjab Local Government Ordinance (XIII of 2001)‑‑‑

‑‑‑‑Ss. 67 & 69‑‑‑Meeting of Tehsil Council‑‑‑Seven days notice of meeting to the members‑‑‑Calculation of days‑‑‑‑‑‑Day on which notices were issued to the members for the meeting was to be counted to compute the mandatory seven days between issuance of notice and actual holding of the meeting of the Council.

(c) Punjab Local Government Ordinance (XIII of 2001)‑‑‑

‑‑‑‑S. 69‑‑‑Procedure to conduct the business of Tehsil Council.

Section 69 of the Punjab Local Government Ordinance, 2001 provides procedure to conduct the business of a Tehsil Council. Subsection (iii) of section 69 provides that decisions of the Tehsil Council shall be taken by resolutions passed by a simple majority of the Members present and voting. Subsection (iv) of section 69 provides that all meetings of the Tehsil Council shall be presided over by the Naib Tehsil Nazim. Subsection (v) of section 69 provides that in its first session, the Tehsil Council shall elect a panel of presiding officers in order of precedence of not less than three members who shall, in the absence of Naib Tehsil Nazim preside over the meetings of the Tehsil Council. Subsection (vi) of section 69 provides that the quorum of the meetings of the Tehsil Council shall be 51% of its total membership.

(d) Punjab Local Government Ordinance (XIII of 2001)‑‑‑

‑‑‑‑Ss. 69 & 54‑‑‑Quorum of the meeting of Tehsil Council‑‑‑House of Tehsil Council, in the present case, consisted of eleven members but only six members attended the meeting and one of these six presided the meeting‑‑‑Person who was presiding whether a Naib Nazim, a member of the panel shall not be counted to determine the quorum in such a situation‑‑‑Any meeting and its proceedings, in absence of the required quorum would be nullity in the eye of law‑‑ Principles.

Messrs Bawa Jute Mills Ltd. v. The Commissioners of Narayanganj Municipal Board PLD 1958 Dacca 103; S. Seatah Ramia Naido v. Ongole Cooperative Bank, AIR 1974 Andra Prad. 49 and The Punjab University, Chandi Garb v. Vijay Singh Lamba AIR 1976 SC 1441 ref.

(e) Punjab Local Government Ordinance (XIII of 2001)‑‑‑

‑‑‑‑Preamble‑‑‑Local Government System‑‑‑Successful working of‑‑‑High Court observed that "no political system can work successfully in any society unless people honestly observe the rules of the game; new Local. Government System also cannot succeed unless the concerned persons i.e. Government functionaries, elected persons and electors realize their responsibilities and also conform to the limitations placed on them under the law and rules; the winner must be allowed to complete his term and execute his plans, the loser must be respected and accommodated and not to be treated like a defeated enemy.

Haroon Irshad Janjua for Petitioner.

Muhammad Munir Paracha for Respondents.

Date of hearing: 4th February, 2005.

P L D 2005 Lahore 240

Before Syed Zahid Hussain, J

MUHAMMAD ASGHAR and others‑‑‑Petitioners

Versus

QAMAR DIN‑‑‑Respondent

Civil Revision No.2248 of 2000, decided on 11th February, 2005.

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

‑‑‑‑O.IX, R.13 & S.115‑‑‑Ex parte decree, setting aside of ‑‑‑Non­ production of process server‑‑‑Substituted service, proof of sufficient service‑‑‑Principles‑‑‑Suit was dismissed for non‑prosecution, and Trial Court restored the same in absence of defendant‑‑‑After restoration of the suit by Trial Court, process was issued in favour of defendant but the same was not effected on him, whereafter publication was made in newspaper‑‑‑Trial Court decreed the suit ex parte against defendant, as he did not appear after press publication‑‑‑During execution proceedings, the defendant filed application for setting aside the ex parte decree but both the Courts below declined to set aside the decree‑‑‑Serious contest was going on between the parties regarding the suit property‑‑‑Plea raised by the defendant was that the service was not effected on him and ex parte proceedings were result of collusion with the Process Serving Agency‑‑‑Validity‑‑‑Plaintiff had to produce the process server to prove due service for defending ex parte order and even substituted service effected could not be of any legal efficacy‑‑‑Defendant had brought a plausible explanation and a sufficient cause made out that his absence from the proceedings in the suit after its restoration was not, intentional or deliberate and was because of the fact that he had no knowledge of the same‑‑‑As serious contest was going on between the parties regarding the disputed property, it did not appeal to reason or sense that the defendant would have knowingly and deliberately avoided any service so that ex parte decree be obtained by plaintiff against him‑‑‑High Court declined to subscribe to the view taken by the Courts below in the matter in upholding the ex parte decree‑‑‑Judgment of Lower Appellate Court whereby the order of Trial Court had been upheld was set aside‑‑‑High Court remanded the matter to Trial Court for deciding the suit on merits‑‑‑Revision was allowed accordingly.

Muhammad Yousaf and 7 others v. Muhammad Azirn and 2 others 1989 SCMR 1998; Syed Muhammad Anwar, Advocate v. Sheikh Abdul Haq 1985 SCMR 1228; Mangtoo and others v. Mst Hassan Bibi and others 1989 ALD 326(2); Abdul Rashid v. Abdul Shamim and another 1981 CLC 550; Muhammad Samin Jan v. Messrs Ferozesons Laboratories, Ltd., Nowshera and 2 others PLD 1972 Pesh. 133; Mst. Sardaran Begum v. Muhammad Fazil and another 1983 CLC 2303; Shakoor Hussain v. Muhammad Sadiq 1991 MLD 67 and Mst. Jag Subhai v. Allah Diwaya and others 1992 MLD 1635 ref.

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

‑‑‑‑S.151‑‑‑Consolidation of proceedings‑‑‑Different litigations were pending between same parties regarding same property‑‑‑Effect‑-‑High Court advised the parties to seek consolidation of all such litigations by making application before District Judge, so that conflict and contradiction of decisions would be avoided.

Muhammad Ibrahim for Petitioners.

Nemo for Respondent.

Date of hearing: 11th February, 2005.

P L D 2005 Lahore 245

Before Muhammad Muzammal Khan, J

Ex‑Chief Warrant Officer, IKRAM‑UL-HAQ ‑‑‑ Petitioner

Versus

FEDERAL GOVERNMENT OF PAKISTAN, MINISTRY OF DEFENCE through Chief of the Air Staff, Islamabad‑‑‑Respondent

Writ Petition No.3538 of 2004, decided on 16th December, 2004.

Pakistan Air Force Act (VI of 1953)‑‑

‑‑‑‑S. 71‑‑‑ Penal Code (XLV of 1860), Ss.377 & 506‑‑‑Constitution of Pakistan (1973), Art. 199(1)(3)‑‑‑Constitutional petition‑--­Maintainability‑‑‑Conviction‑‑‑Petitioner being an employee of Pakistan Air Force on the day of his apprehension was subject to Pakistan Air Force Act, 1953 whereunder he was arrested, tried and convicted by the Military Court‑‑‑Petitioner had sought his conviction to be declared as illegal, void and of no legal consequence‑‑‑Specific provisions of sub-­Art. (3) of Art. 199 of the Constitution relating to ouster of jurisdiction of High Court was absolute which could only be invoked in case of mala fide judgment, lack of jurisdiction in the Court announcing the judgment or the decision being corum non judice and in no other circumstance‑‑­Impugned judgment, convicting petitioner not suffering from such defects, Constitutional jurisdiction could not be invoked for release of petitioner‑‑‑Constitutional petition filed by petitioner being incompetent, was dismissed in circumstances.

Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 SC 506; Ex‑Lt.‑Col Anwar Aziz v. Federation of Pakistan through Ministry of Defence Rawalpindi and 2 others PLD 2001 SC 549; Mst. Naheed Maqsood v. Federation of Pakistan and 4 others 1997 CLC 13; Muhammad Mushtaq v. Federation of Pakistan 1994 SCMR 2286 and Mst Shahida Zaheer Abbas and 4 others v. President of Pakistan and others PLD 1996 SC 632 ref.

Col. (Rtd.) Muhammad Akram for Petitioner.

P L D 2005 Lahore248

Before Nasim Sikandar, J

Mst. NASEEM AFZAL‑‑‑Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Defence, Rawalpindifor 5 others‑‑‑Respondents

Writ Petition No. 875 of 1998, heard on 26th May, 2004.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Contract Act (IX of 1872), S. 126‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Contract of guarantee‑‑‑Son of petitioner was selected to be admitted to B.Sc. Engineering course in Engineering College at Government's expenses and at the time of his selection for said course, a surety bond was executed by petitioner and her husband with the Authorities to the effect that if trainee/son of the petitioner would resign during training or within 13 years of his commissioned service after completion of engineering studies, petitioner would pay on demand all the training charges‑‑‑Trainee/son of the petitioner after completing his studies was sent to, Pakistan Military Academy for undergoing military training for one year, but he was withdrawn from the Academy on certain allegations and thereafter petitioner and her husband were required to pay surety amount as a condition precedent for release of B.Sc. Engineering Degree obtained by their son‑‑‑Petitioners challenged said order in Constitutional petition‑‑­Maintainability of Constitutional petition was challenged by the Authorities on the ground that order in Constitutional petition could not be made concerning a person in respect of any action taken in relation to him as member of Armed Forces or as a person subject to such law‑‑­Validity‑‑‑Son of petitioner though as a Cadet of Pakistan Military Academy was subject to Army Laws, but matter in issue did not relate to any of his duties as a gentleman Cadet‑‑‑Constitutional petition revolved around the denial of a civil liability by petitioner as a guarantor based upon a surety bond executed to ensure compensation/r‑e‑imbursement of official expenses in case principal debtor' failed or refused to serve Army‑‑‑Said matter would very well be a subject‑matter of exercise of Constitutional jurisdiction of High Court‑‑‑Since prayer of petitioner, had involved determination of factual controversies between parties, same could not be allowed in Constitutional jurisdiction of High Court‑‑­Rights and liabilities of asurety' the principal debtor' orcreditor' under a contract of guarantee as contemplated in S.126 of Contract Act, 1872, could only be a subject‑matter of a Court of original jurisdiction.

Waqar‑ul‑Haq Sheikh for Petitioner.

Col. Muhammad Ramzan for Respondents.

Raja Iftikhar Javed Standing Counsel.

Date of hearing: 26th May, 2004.

P L D 2005 Lahore 251

Before Sh. Hakim Ali and Nazir Ahmad Siddiqui, JJ

Malik MUHAMMAD MUKHTAR through Legal Heirs‑‑‑Petitioners

Versus

PROVINCE OF PUNJAB through DEPUTY COMMISSIONER (COLLECTOR) BAHAWALPUR and others‑-‑Respondents

Intra‑Court Appeal No.79 of 1987/BWP, decided on 29th July, 2004.

(a) Co‑operative Societies and Co‑operative Banks (Repayment of Loans) Order [Martial Law Order No. 241 of 1972]‑‑‑

‑‑‑‑Paras. 6 & 7‑‑‑‑Constitution of Pakistan (1973), Art.199—­Constitutional jurisdiction‑‑-Scope‑‑‑Bar of jurisdiction‑‑‑Sub-Constitutional enactments could not bar the jurisdiction of Superior Courts which had been granted to them under Art. 199 of the, Constitution‑‑‑Barring provisions to jurisdiction of Superior Courts, however, comprehensively worded could not affect or take away the jurisdiction of Superior Court, conferred upon them under the Constitution‑‑‑Mala fide orders/acts or actions taken without jurisdiction would fall within the definition of legal maxim of coram non judice and those could be set aside under Art. 199(3) of the Constitution‑‑‑If an Authority having no jurisdiction had acted or assumed the jurisdiction, such act of that Authority could be turned down/set aside‑‑‑Paragraph 7 of Co‑operative Societies and Co‑operative Banks (Repayment of Loans) Order (M.L.O. 241), could not be used as blank cheque of power conferring jurisdiction upon Authorities named therein and acts performed and actions taken, were subject to scanning by High Court‑‑­Jurisdiction of High Court, could not be considered to have been taken away by such Orders and Regulations.

Chairman, Employees Old‑Age Benefit Institution and others v. Mr. Ismail Munawar 1984 SCMR 143; Habib Bank Ltd. v. Messrs Dost Muhammad Cotton Mills PLD 2000 Kar. 186; The State v. Faisal Mushtaq and another PLD 2003 Kar. 111; Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others PLD 1996 SC 632; Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid 1993 SCMR 1173; Sawan and others v. Abdullah and 2 others PLD 1998 Kar. 111; Muhammad Afzal Khan v: Karachi Development Authority and 6 others PLD 1984 Kar. 114; Muhammad Afzal v. Registrar, Cooperative Societies and 2 others 1983 CLC 387 and Begum Kishwar Abid Hussain and another v. Jhang Central Cooperative Bank Ltd. Jhang and 2 others PLD 1976 Lah. 1521 ref.

(b) Co‑operative Societies and Co‑operative Banks (Repayment of Loans) Order [Martial Law Order No. 241 of 1972]‑‑‑

‑‑‑‑Paras. 6 & 7‑‑‑Law Reforms Ordinance (XII of 1972), S. 3‑‑­Repayment of loan‑‑‑Jurisdiction of Assistant Registrar‑‑‑Challenge to‑‑­Intra‑Court appeal‑‑‑Registrar of Co‑operative Societies made an award through which he determined the liability by fixing responsibility on appellant to pay loan amount which he had borrowed against mortgage of his properties‑‑‑Through publication, a notice was issued against appellant under para. 6 of Co‑operative Societies and Co‑operative Banks (Repayment of Loans) Order 241, 1972 for repayment of loan within seven days and warrant of attachment was also issued‑‑‑Assistant Registrar, Co‑operative Societies issued orders to auction properties of appellant as well as of his two sureties‑‑‑Auction of properties was conducted after two days from attachment, same was confirmed within next four days and taking a prompt action possession of auctioned properties, was also delivered to auction purchasers‑‑‑Appellant had challenged said hasty action and also ,jurisdiction of Assistant Registrar in that respect alleging that Assistant Registrar was not authorized to recover disputed loan under provisions of Martial Law Order 241 of 1972‑‑‑Validity of objection of appellant-‑‑Under para, 6 of Co‑operative Societies and Co‑operative Banks (Repayment of Loans) Order (Martial Law order 241) of 1972, Registrar or any officer authorized by him could recover loan by attachment and sale of properties of borrower‑‑­Respondents had failed to produce any order which could prove that Registrar at relevant time had delegated or authorized Assistant Registrar through any order to exercise power of Para. 6 of Martial Law Order, 241‑‑‑Assistant Registrar, in circumstances had no power to conduct proceedings in present case‑‑‑Impugned judgment passed by Single Judge was set aside and auction of properties of appellant and its confirmation made in haste with mala fide intention, were declared illegal and unlawful in Intra‑Court appeal.

Shaukat AR v. Government of Punjab through Secretary Industries and Mineral Department and 8 others PLD 1992 Lah. 277; Phulan through his Legal Heirs and others v. Muhammad Sarwar and 2 others 1992 CLC 1975 and Sh. Muhammad Ashraf v. Assistant Registrar, Cooperative Societies and others 1983 CLC 918 ref.

Sardar Muhammad Hussain Khan for Appellant.

Zameer Ahmad Khan for Respondents Nos. 2 and 3.

M.M. Bhatti for Respondents Nos.4‑A to 4‑E, 5‑A to 5‑E and 8 to 13.

Malik Mumtaz Hussain Assistant Registrar Co‑operative Societies.

Date of hearing: 17th May, 2004.

P L D 2005 Lahore 261

Before Mian Saqib Nisar and Sheikh Azmat Saeed, JJ

TAHMASUB FARAZ TAYYAB and 13 others‑‑‑Petitioners

Versus

VICE‑CHANCELLOR, UNIVERSITY OF HEALTH SCIENCES, LAHORE and 3 others‑‑‑Respondents

Writ Petitions Nos. 16780, 16782, 16826 of 2003, 629, 1345, 2979, 3350, 552, 1600 and 91 of 2004, decided on 19th January, 2005.

(a) Pakistan Medical and Dental Council Ordinance (XXXII of 1962)‑‑

‑‑‑‑Preamble & S. 33‑‑‑Regulations framed by Pakistan Medical and Dental Council‑‑‑Purpose and applicability‑‑‑Purpose of constitution of such Council was to establish uniform minimum standard of basic and higher education in medicine and dentistry‑‑‑Such Regulations would apply to all existing Medical and Dental Colleges/Institutions.

Nadir Khan v. Principal Khyber Medical College 1995 SCMR 421 fol.

(b) Pakistan Medical and Dental Council Ordinance (XXXII of 1962)‑‑

‑‑‑‑S. 33(1)(2)‑‑‑Power of Pakistan Medical and Dental Council to make regulations with or without "previous sanction" of Federal Government‑­‑Scope‑‑‑Regulations pertaining to matters spelt out in Cls. (a) to (i) of S.33 of Pakistan Medical and Dental Council Ordinance, 1962 could be made by Council only after obtaining previous sanction from Government, but no such sanction would be required in respect of matters provided in S.33(2) thereof‑‑‑Council would not be required to obtain previous sanction of Government while determining and prescribing minimum qualification of obtaining specified marks for admission to a Medical and Dental College‑‑‑Regulations/decision issued by Council would be binding on all Medical and Dental Colleges/Institutions.

(c) Pakistan Medical and Dental Council Ordinance (XXXII of 1962)‑‑

‑‑‑‑S. 33‑‑‑West Pakistan General Clauses Act (VI of 1956), S.2(41)‑‑­General Clauses Act (X of 1897), Ss.20‑A (as inserted by General Clauses (Amendment) Ordinance (XXXIII of 2002) with effect from 27‑7‑2002) & 21‑‑‑Regulations or amendment therein made by Pakistan Medical and Dental Council‑‑‑Publication in official Gazette and obtaining previous sanction of Federal Government not mandatory requirement‑‑‑General Clauses (Amendment) Ordinance, 2002 not applicable retrospectively‑‑Section 20‑A of General Clauses Act, 1897 not applicable to such Regulations or decision made by Council.

Chief Secretary v. Sher Muhammad Makhdoom PLD 1991 SC 973; Chairman Selection Committee/Principal King Edward Medical College Lahore and others v. Wasif Zamir Ahmed and another 1997 SCMR 15; Mst. Attiyya Bibi Khan and others v. Federation of Pakistan and others 2001 SCMR 1161; Muhammad Suleman and others. v. Abdul Ghani PLD 1978 SC 190 and Saghir Ahmed v. Province of Punjab PLD 1004 SC 261 ref.

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

‑‑‑‑S. 21‑‑‑Power to amend, vary or rescind any notification order, rule or by‑law‑‑‑Scope‑‑‑Such power could be exercised before authority took any decisive step‑‑‑Such principle would not apply, where variation, amendment or rescission was effected prior to, decisive step.

Shahbaz v. The Crown PLD 1956 FC 46; Lt.‑Col. G.L. Battacharya v. The State and 2 others PLD 1964 SC 503; Pakistan through the Secretary Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Chief Secretary Government of Sindh v. Slier Muhammad Makhdoom and 2 others PLD 1991 SC 973 and Mst. Attiya Bibi Khan and others v. Federation of Pakistan and others 2001 SCMR 1161 fol.

(e) Locus poenitentiae, principle of‑‑‑

‑‑‑‑Illegal order‑‑‑Applicability‑‑‑When original order was illegal, then act once done would not become irrevocable and a past and closed transaction‑‑‑No vested right, in such circumstances, could be deemed to have been accrued on basis of an illegality.

The Engineer in Chief Branch through Ministry of Defence Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 fol.

(f) Pakistan Medical and Dental Council Ordinance (XXXII of 1962)‑‑‑

‑‑‑‑S. 33‑‑‑Power of Pakistan Medical and Dental Council to make regulations with or without "previous sanction" of Federal Government‑­Scope‑‑‑Regulations pertaining to matters spelt out in Clauses (a) to (i) of S.33 of Pakistan Medical and Dental Council Ordinance, 1962 could be made by Council only after obtaining previous sanction from Government, but no such sanction would be required in respect of matters provided in S.33(2) thereof‑‑‑Council would not be required to obtain previous sanction of Government while determining and prescribing minimum qualification of obtaining specified marks for admission to a Medical and Dental College‑‑‑Regulations/decision made by Council would be binding on all Medical and Dental Colleges/Institutions.

(g) University of Health Sciences Lahore Ordinance (LVIII of 2002)‑‑

‑‑‑‑S. 27‑‑‑Pakistan Medical and Dental Council Ordinance (XXXII of 1962), S. 33‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Examination of M.B‑B.S.‑‑‑Refusal of University to allow petitioner to sit in professional examinations for not obtaining 60% marks in F.Sc. (Pre‑medical) examination as per condition imposed by Pakistan Medical and Dental Council‑‑‑Grant of interim relief by High Court allowing petitioner to sit in examinations‑‑‑No case made out on merit at stage of final decision of Constitutional petition‑‑‑Contention of petitioner was that he had successfully taken professional examinations, thus, dismissal of Constitutional petition at such stage would cause him irreparable loss and grave hardship as he would be deprived of his right to continue with academic career for no fault on his part‑‑‑Validity‑‑­Such condition imposed by Council came into effect prior to enrolment of petitioner in Medical College and had ever been publicized‑‑‑Such failure on the part of Council would not excuse institutions, where petitioner was enrolled‑-‑Duty of institution was to know and apprise students of initial requirements of enrolment and taking of examinations‑­‑Institution concerned could not be said to have acted bona fide in absence of due care and diligence‑‑‑Petitioner possessed basic qualification to be enrolled having qualified F.Sc. (Pre‑medical) examination‑‑‑Such condition added by Council to basic qualification pertained only to admission in institution and had no direct impact on professional examination, which petitioner must qualify independently‑‑­Enrollment of petitioner and pursuit of his academic and professional career would not affect right of any third party nor was there any question of state of subsidy‑‑‑Petitioner was not guilty of any wrong doing‑‑‑Punishing petitioner by ruining his academic career for such acts and, omission of institution and failure of Council and University would be too harsh‑‑‑High Court accepted Constitution petition in peculiar circumstances of case to the extent of petitioner.

(h) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Educational institution‑‑‑Refusal of University to allow student to sit in examination‑‑‑Filing of Constitutional petition prior to holding of examination‑‑‑Taking successfully examinations in compliance with interim order of High Court‑‑‑No case made out on merit at time of final hearing of Constitutional petition‑‑‑Contention of student was that dismissal of Constitutional petition at such stage would cause him irreparable loss and grave hardship‑‑‑Validity‑‑‑High Court deprecated practice adopted by institutions allowing enrolment initially without observing prescribed legal procedure and then placing matter at doorstep of Court with belief that compassion would prevail and students would be permitted to continue their academic career‑‑‑Such state of affairs could not be countenanced, especially when granting of relief to a student might be at the expense of another.

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

‑‑‑‑S. 20‑A [as inserted by General. Clauses (Amendment) Ordinance (XXXIII of 2002)‑‑‑Provision of S.20‑A of General Clauses Act, 1897‑‑­Purpose stated].

The Authorities conferred with power to issue instructions or make rules and regulations under a statute do the same within the secrecy of their offices without publishing the notification or publicizing the same, thereby setting a frap for the citizens. Thus, to deal with this mischief, the legislature in its wisdom has enacted section 20‑A in General Clauses Act.

(j) Bona fide act‑‑‑

‑‑‑‑‑ Act done in absence of due care and diligence would not be bona fide.

Wajeehuddin Pervez, Masood Mirza, Iqbal Mehmood Awan and Peer Kaleem Khursheed for Petitioners.

Rasal Ahmad Sayed for Respondents Nos. 1 and 3.

Pervaiz I. Mir for the PM&DC.

Date of hearing: 21st December; 2004.

P L D 2005 Lahore 272

Before Umar Ata Bandial, J

MUHAMMAD SADIQ and 14 others‑‑‑Petitioners

Versus

MUHAMMAD ARSHAD and 8 others‑‑‑Respondents

Civil Revision No. 846 of 2002, heard on 17th December, 2004.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 100 & 78‑‑‑Specific Relief Act (I of 1877), Ss.39 & 42‑‑‑Suit for declaration and cancellation of registered sale‑deed‑‑‑Thirty‑years old un‑registered sale‑deed was basis of plaintiff's claim‑‑‑Proof‑‑­Presumption‑‑‑Availability‑‑‑Plaintiff did not implead as party another co‑sharer of un‑registered sale‑deed, who had disowned the same‑‑­Plaintiff did not produce any revenue record to show his status or possession in relation to suit land or about nature of title of alleged vendors of un‑registered sale‑deed‑‑‑Neither alleged vendors of unregistered sale‑deed, who were alive, nor the marginal witnesses thereof were produced in evidence‑‑‑One of alleged vendors of un‑registered sale‑deed was also marginal witness of registered sale‑deed who was not produced‑‑‑Held, presumption under Art. 100 of Qanun‑e‑Shahadat, 1984 would be available only when a document .was proved to be thirty‑years old‑‑‑Condition attracting such statutory presumption was not satisfied‑‑‑High Court dismissed revision petition upholding judgment of Appellant Court, whereby suit of plaintiff was dismissed.

Muhammad Yousaf Khatak v. S.M. Ayoob PLD 1973 SC 160 rel.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 100‑‑‑Thirty‑years old document‑‑‑Presumption‑‑‑Such presumption would be available, once a document was proved to be thirty‑years old.

Zafar Iqbal Chaudhry for Petitioners.

Agha Saleem Khurshid for Respondent No. 1.

Date of hearing: 17th December, 2004.

P L D 2005 Lahore 275

Before Ch. Ijaz Ahmad, J

MASOOD AHMAD‑‑‑Petitioner

Versus

WATER AND SANITATION AGENCY (LDA), LAHORE (WASA) through Managing Director‑‑‑Respondent

Writ Petition No. 17390 of 2004, decided on 3rd February, 2005.

(a) Lahore Development Authority Act (XXX of 1975)‑‑‑

‑‑‑‑S. 6‑‑‑Constitution of Pakistan (1973), Arts. 4 & 199‑‑‑General Clauses Act (X of 1897), S.24‑A‑‑‑Constitutional petition‑‑‑Sanctioning of site plan, application for‑‑‑Pendency of such application before authority‑‑‑Validity‑‑‑Public functionaries were legally bound to decide within reasonable time applications of citizens without fear, favour and nepotism‑‑‑Constitution jurisdiction was discretionary in character‑‑‑Due to pendency of such application before authority, discretion was not exercised in favour of the petitioner‑‑‑High Court disposed of Constitutional petition with direction to the authority to decide the application within specified period in accordance with law.

Ch. Tanbir Ahmad Siddiky v. Province of East Pakistan and others PLD 1968 SC 185 and Messrs Airport Support Services v. The Airport Manager 1998 SCMR 2268 rel.

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

‑‑‑‑Arts. 4 & 5(2)‑‑‑General Clauses Act (X of 1894), S.24‑A‑‑‑Duty of public functionaries to act within the framework of Constitution and law while dealing with applications of citizens‑‑‑In order to minimize workload of High Court Decd for decision of such applications by public functionaries within reasonable time, with reasons and without any discrimination, emphasized‑‑‑Principles.

It is the duty and obligation of public functionaries to decide the applications of the citizens without fear, favour and nepotism within reasonable time as is envisaged by Article 4 of the Constitution read with section 24‑A of the General Clauses Act, 1894.

The workload of High Court is increasing day by day on account of inaction of the public functionaries. In case, the public functionaries discharge their duties in accordance with law as expeditiously as possible with reasons then people will of course be satisfied. Due to lack of decision by the public functionaries on the application of citizens, within time or without reason the Legislature in its wisdom, on account of the inaction of the public functionaries, has added section 24‑A of the General Clauses Act, wherein public functionaries are duty bound to decide applications within reasonable time with reasons. The public functionaries are drawing their salaries from the Public Exchequer, therefore, it is their duty to discharge their duties in accordance with law. Non‑exercising powers by the public functionaries is termed as not acting in accordance with law as is envisaged by Article 4 of the Constitution and section 24‑A of the General Clauses Act. 1897. In case the public functionaries considered themselves in place of the citizens then this situation would not arise at all. It is settled principle of law that the State functionaries arc expected to act fairly and justly in a manner, which should not give to anyone any cause of complaint on account of discriminatory treatment or otherwise. The. Constitution is a social binding contract between different sections of people. It is not only the duty of the Judiciary to provide justice to the people of Pakistan, but it is also the duty of the public functionaries to provide justice to the people of Pakistan. Every body is bound to obey the command of the Constitution by virtue of Article 5(2) of the Constitution. The public functionaries have to work within the framework of Constitution and law.

Messrs Airport Support Services v. The Airport Manager 1998 SCMR 2268; Ahmad Lateef Qureshi's case PLD 1994 Lah. , 3; Ch. Zahoor Elahi's case PLD 1975 SC 383 and Zahid Akhtar's case PLD 1995 SC 530 rel.

(c) Administration of justice‑‑

‑‑‑‑ Nobody should be penalized by inactions of public functionaries.

Ahmad Lateef Qureshi's case PLD 1994 Lah. 3 rel.

Ashiq Alvi for Petitioner.

Mian Muzaffar Hussain Legal Advisor of L.D.A.

Mehboob Ahmad Advocate for WASA.

P L D 2005 Lahore 279

Before Khawaja Muhammad Sharif and Mian Muhammad Najam uz Zaman, JJ

ZULFIQAR ALI ‑‑‑Petitioner

Versus

SECRETARY, HOME DEPARTMENT, GOVERNMENT OF PUNJAB, LAHORE and 3 others‑‑‑Respondents

Writ Petition No. 1514 of 2005, decided on 31st January, 2005.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 402‑A‑‑‑Constitution of Pakistan (1973), Arts. 45 & 199‑‑­Constitutional petition‑‑‑Remission of sentence by the President‑‑­Contentions of the brother of the petitioner/convict who was sentenced to death were that the petitioner/convict was a juvenile at the time of the occurrence; that he belonged to a far‑flung area therefore, he was not aware about the factum of remission of sentence and could not agitate it before the Trial Court, High Court and the Supreme Court; that the Notification of remission was issued by the President on 13‑12‑2001 while the Home Department circulated the same on 15‑8‑2003; that all the related documents were placed before the Sessions Judge but the benefit in question was not extended to the convict and matter being that of life and death of the convict, the benefit of the notification be extended to the convict as well‑‑‑Validity‑‑‑Held, High Court had become functus officio and could not adjudicate upon the matter because the matter was not only decided by the High Court but also by the Supreme Court‑‑‑Matter having never been agitated before Trial Court, Appellate Court as well as the High Court, it was too late in the day to raise such a plea now.

Rehmatullah alias Raja v. Home Secretary, Punjab, Lahore and others 2004 SCMR 1861 fol.

Syed Hassam Qadir Shah for Petitioner.

P L D 2005 Lahore 281

Before Muhammad Sair Ali, J

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman, WAPDA House, Lahore and 4 others‑‑‑Petitioners

Versus

SAFDAR OIL AND GENERAL MILLS (PVT.) LTD. JHANG through Chief Executive‑‑‑Respondent

Civil Revision No. 1550 of 1994, heard on 26th November, 2004.

(a) Electricity Act (IX of 1910)‑‑‑

‑‑‑‑Sched., cl. (XI‑A)‑‑‑Pakistan Water and Power Development Authority Act (XXXI of 1958), Ss. 12, 13 & 25‑‑‑Fixed charges‑‑‑Levy of minimum fixed charges during the period of temporary disconnection of electricity‑‑Object and scope‑‑‑Reservation of power to meet the reserve demand of consumer for billing purposes attracts fixed charges which entails continued supply of energy to be consumed at the option, need and requirement of consumer.

Water and Power Development Authority and another v. M.N. Steel Re‑Rolling Mills 1999 SCMR 494 ref.

(b) Electricity Act (IX of 1910)‑‑‑

‑‑‑‑Sched., cl. (XI‑A)‑‑‑Pakistan Water and Power Development Authority Act (XXXI of 1958), Ss. 12, 13 & 25‑‑‑Specific Relief. Act (I of 1877), Ss. 42 & 54‑‑‑Declaration of title‑‑‑Fixed charges‑‑‑Levy of minimum fixed charges during the period of temporary disconnection of electricity‑‑‑Electricity connection under Tariff B‑2 was provided to plaintiff‑company and the same remained disconnected from March, 1988 till August, 1989, when the connection was restored‑‑‑Authorities demanded fixed charges from the plaintiff for the period when connection remained disconnected‑‑‑Plaintiff aggrieved of the demand filed civil suit which was decreed by Trial Court and the demand of fixed charges for that period was declared without lawful authority‑‑‑Judgment and decree passed by the Trial Court was maintained by Appellate Court‑‑‑Plea raised by the authorities was that the plaintiff being consumer was required to pay the amount of fixed charges even during the period of non‑supply of electricity and also on disconnection of the meter‑‑‑Validity‑‑‑Water and Power Development Authority's right to recover fixed charges' was inextricably attached to its duty toreserve power' for consumer‑‑‑Correspondingly the consumer had a right to obtain reservation of power' upon payment offixed charges' to Water and Power Development Authority‑‑‑Where reservation of power' ceased to be Authority's duty on severance of contract or by termination of contractual arrangement,fixed charges' could not be demanded from or imposed upon the consumer‑‑‑Water and Power. Development Authority invoked the rescission clause of contract between the Authority and the plaintiff because of its non‑payment and the equipment was removed‑‑‑Such disconnection of supply to and removal of equipment from the premises, rendered the plaintiff unable to utilize energy upon its option and deed, unless reconnection of supply was obtained‑‑‑As such Water and Power Development Authority was absolved under the contract and law, of its obligation, to reserve power' to meet any demand of defaulting consumer‑‑‑Correspondingly Water and Power Development Authority also lost the right to claim and recoverfixed charges' from such consumer upon revocation of the contract‑‑‑As disconnection of energy supply and electricity line to the premises of plaintiff was permanent till the grant of reconnection or restoration of connection by Water And Power Development Authority, therefore, there was no obligation to `reserve power'‑‑‑Suit of' plaintiff was validly decreed by Trial Court and appeal of Water and Power Development Authority was also properly rejected by Appellate Court‑‑‑Revision was dismissed in circumstances.

Water and Power Development Authority through Chairman and 2 others v. Makka Ice Factory through Mian Amariullah PLD 1991 SC 813; WAPDA v. Saeed Ice Factory 1989 MLD 4329 and Sh. Abdur Rahim Allah Ditta (Regd.) Re‑Rolling Mills v. Water and Power Development Authority, Lahore and 4 others 1983 CLC 2941 ref.

Muhammad Ilyas Khan for Petitioners.

Khan Khizar Abbas Khan for Respondent.

Date of hearing: 26th November, 2004.

P L D 2005 Lahore 286

Before Muhammad Sayeed Akhtar, J

SHER MUHAMMAD and 7 others‑‑‑Petitioners

Versus

Mst. SUGHRAN BIBI through Representatives and another‑‑‑Respondents

Civil Revision No. 2001 of 1997, and Regular Second Appeal No.528 of 1980, heard on 27th January, 2005.

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

‑‑‑‑Ss. 42 & 55‑‑‑Suit for declaration to the effect that plaintiffs were owners‑in‑possession of a shop through a registered sale‑deed and that registered gift‑deed regarding that shop was illegal and ineffective upon the rights of the plaintiffs and was liable to be cancelled‑‑‑Plaintiffs further stated that one SK was the owner of the shop, and after his death 1/4th share devolved upon his widow who sold her share to the plaintiffs vide registered sale‑deed and the gift‑deed was illegal on the ground that the same was made during the pendency of the suit and that the possession of the shop had not been delivered and, there was no declaration and acceptance of the said gift‑‑‑Validity‑‑‑Held, plaintiffs had no locus standi to challenge the gift on the ground that the possession of the property was not delivered as it was for the donor to challenge the gift and not for the tenant or the co‑sharer‑‑­Donor/defendant had accepted the gift‑deed and had reiterated the same in her written statement and in her testimony‑‑‑Alleged sale of share in shop in favour of the plaintiffs by a person who was no more its owner, even if made by the defendant, in the presence of gift‑deed, was void Principles.

Muhamedan Law, para.1 52(2), Chap. XI by D.F. Mullah ref.

(b) Islamic law‑‑‑

‑‑‑‑Gift‑‑‑Delivery of possession of the subject‑matter of gift to the donee, either actually or constructively is necessary to complete a gift‑‑­Donor must divest herself/himself completely of all the ownership and dominion over the subject of the gift.

(c) Islamic law‑‑­

‑‑‑‑ Gift‑Property gifted in possession of tenant‑‑‑Gift of immovable property which was in the occupation of tenants could be completed by a request by the donor to the tenants to attorn to the donee or by delivery of the title deed or by mutation in the Revenue Register or the landlord's Sherista.

Muhammadan Law, by D.F. Mullah, para. 152(2), Chap. XI ref.

(d) Islamic law‑‑‑

‑‑‑‑Gift‑‑‑Valid gift can be made of an undivided share (Musha) in the property which is not capable of partition.

Muhammad Nazir Janjua for Petitioners.

Saleem Akram Chaudhry for Respondents.

Date of hearing: 27th January, 2005.

P L D 2005 Lahore 290

Before Syed Zahid Hussain, J

ABDUL HAMEED ‑‑‑ Petitioner

Versus

MUHAMMAD SHAFI and 51 others‑‑‑Respondents

Civil Revision No. 1727 of 2004, heard on 10th February, 2005.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.VI, R. 17‑‑‑Amendment of pleadings‑‑‑Applications for seeking amendments of pleadings by the plaintiff while the appeal was pending‑‑­Appellate Court by allowing the said applications proceeded to remand the matter to the Trial Court by setting aside the judgment and decree under appeal‑‑‑Validity‑‑‑Perusal of the plaint and applications made for amendment revealed that proposed amendments were wholly unnecessary as a consequence whereof the remand of the matter to the Trial Court would merely prolong the agony of a lengthy litigation between the parties‑‑‑De novo trial of the suit after framing additional issues and recording of evidence was wholly a futile exercise, as the lis could be decided on the basis of pleadings and evidence already on the record‑‑­Appellate Court thus was wrong and acted illegally in remanding the matter to the Trial Court by allowing applications for amendment‑‑­Parties had already produced evidence to their satisfaction, which was sufficient and enough to decide the appeal‑‑‑ Principles‑‑‑High Court, in circumstances, set aside the judgment of the Appellate Court, result whereof would be that the appeal filed by the plaintiffs before the First Appellate Court would be deemed pending, which shall be heard and decided in accordance with law‑‑‑Parties were directed to cause their presence/representation before the Appellate Court.

Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others 1991 SCMR 970; Ghulam Abbas v. Muhammad Ashraf 1993 SCMR 2289; Muhammad Ramzan and others v. Liaqat Ali and others 2001 SCMR 1984; Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345; Mir Mazar v. Azim PLD 1993 SC 332; Qamar‑ud‑Din v. Muhammad Din and others PLD 2001 SC 518 and Iftikhar‑ul‑Haq and others v. Khair Din and others 2003 YLR 1324 ref.

Mian Zafar Iqbal Kalanauri for Petitioner.

Kaleem Ahmad Khurshid for Respondents Nos. 1 to 20.

Abdul Sadiq Chaudhry for Respondents Nos. 21 to 52

Date of hearing: 10th February, 2005.

P L D 2005 Lahore 293

Before Syed Shabbar Raza Rizvi, J

GHULAM MURTAZA‑‑‑Petitioner

Versus

DIRECTOR, F.I.A. IMMIGRATION, RAWALPINDI and 3 others‑‑‑Respondents

Writ Petition No. 133 of 2005, decided on 25th January, 2005.

Emigration Ordinance (XVIII of 1979)‑‑‑

‑‑‑‑Ss. 17, 2(d)(f) & 27‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Quashing of F. I. R. ‑‑‑Allegation made against the accused in the F.I.R. was not hit by S.17 of the Emigration Ordinance, 1979‑‑‑Tampering with a passport was not included in the definition of "Depart" or "Emigrate"‑‑‑Accused was already settled in U.K. and was visiting Pakistan temporarily, as such the Emigration Ordinance, 1979, as a whole by virtue of its S.27, was not applicable to his case‑‑‑Inspector of F.I.A. did not act in good faith and. instead they had acted mala fide‑‑‑Impugned F.I.R. registered against the accused under S.17 of the. Emigration Ordinance, 1979, was consequently quashed being without lawful authority and, of no legal effect.

Syed Ghayyur Hussain Shah v. Gharib Alam PLD 1990 Lah. 432 ref.

Mumtaz Ahmad for Petitioner.

Raja Iftikhar Javed, Standing Counsel.

Muhammad Amir Khan Hoti, Deputy Director, F.I.A.

Shahid Pervez, Inspector, F.I.A.

P L D 2005 Lahore296

Before Sh. Hakim Ali, J

MUHAMMAD LATIF KASHIF‑‑‑Petitioner

Versus

JUDGE FAMILY COURT/CIVIL JUDGE, 1ST CLASS, BAWALPUR and 3 others‑‑‑Respondents

Writ Petition No.3169 of 2003/BWP, decided on 20th February, 2004.

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

‑‑‑‑S. 5, Sched. & S.14(2)(c)‑‑‑Constitution of Pakistan (1973), Art. 199­‑‑Constitutional petition‑‑‑Suit for maintenance‑‑‑Appeal; maintainability of‑‑‑When a decree for maintenance was granted at the rate of Rs.1,000 per month or less, plaintiff decree‑holder could file appeal before District Judge for enhancement of rate of the maintenance allowance‑‑‑If a decree had been passed against judgment‑debtor for a sole minor up to Rs.1000 or more‑‑than Rs.1,000, then judgment‑debtor would be competent to file appeal before District Judge‑‑‑Where Family Court had awarded decree up to Rs.1,000 or less than. Rs.1,000, Judgment‑debtor would not be able to tile an appeal before District Court and remedy of filing of Constitutional petition would be available‑‑‑Words used in cl.(c) of subsection (2) of S.14 of West Pakistan Family Courts Act, 1964, were "per month"‑‑‑When the word "decree" was taken with words "per month" it would not mean that decree was to be per month per person‑‑­Decree had to be regarded in toto and amount as fixed in totality for which judgment‑debtor was alleged to pay, had to be kept in mind‑‑­Decree in the present case had fixed Rs.1,000 per, person which would become Rs.2,000 for two minors in case per month, decree had to be considered to have been passed for Rs.2,000 against judgment‑debtor‑‑­Appeal would lie in such case before District Court accordingly.

1999 MLD 2723; Muhammad Sharif v. Judge Family Court Bahawalpur and 3 others 2002 CLC 270; Mst. Neelam Nausheen and others v. Raja Muhammad Khaqaan and others 2002 MLD 784; Khawaja Muhammad v. District Judge, Mansehra 1999 MLD 2723; Muhammad Sharif v. Judge Family Court, Bahawalpur and 3 others 2002 CLC 274; Ghulam Hussain and others v. Mushtaq Ahmad and others PLD 1994 SC 870 and Razi Khan and others v. Syed Karim Shah and others 1992 SCMR 445 ref.

Ch. Manzoor Ahmad for Petitioner:

Ch. Makhtar Ali Javed for Respondents.

P L D 2005 Lahore 301

Before Maulvi Anwarul Haq, J

SHAMSHAD ALI ‑‑‑Appellant

Versus

MUHAMMAD ILYAS‑‑‑Respondent

R.F.A. No.209 of 2001, heard on 25th November, 2004.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXXVII, Rr.1, 2 & 3‑‑‑Oaths Act (X of 1873), S. 12‑‑‑Suit for recovery of loan on basis of pronote‑‑‑Defendant/borrower in his written statement had alleged that pronote was without consideration and that same was prepared by fraud‑‑‑Scribe of said pronote, had admitted that he had written pronote which was read over to parties and that defendant signed same in presence of witnesses‑‑‑Scribe, however stated that no money changed hands in his presence‑‑‑Two attesting witnesses of receipt of loan produced by plaintiff had stated that said document was executed by defendant after having received amount from plaintiff in their presence at his shop‑‑‑Nothing had been brought out in cross-­examination of said two witnesses‑‑‑Execution of pronote stood admitted while payment of consideration had been proved by said two witnesses‑‑­Defendant alleged that amount of loan was not paid to him by plaintiff despite he promised to pay same‑‑‑Said plea which was not taken by defendant in his written statement, otherwise prima facie was false‑‑­Plaintiff, though refused to take oath on Holy Qur'an in Court, but by virtue of S.12 of Oaths Act, 1873, Court in such circumstances was only required to record as part of proceedings the nature of oath or affirmation proposed, and that it was refused and in case some reasons were assigned said reasons were also to be recorded‑‑‑Nothing was, provided in the Oaths Act, 1973 which would enable the Court to compulsorily draw an inference against a person refusing to take oath‑­Execution of pronote and receipt having been admitted and proved, no adverse inference could be drawn from refusal of plaintiff to take special oath as suggested by defendant‑‑‑Suit had rightly been decreed by Trial Court and appeal against order of Trial Court was dismissed being without any force.

Jumma Khan v. Allah Bakhsh AIR 1932 Lah. 25 ref.

Ch. Muhammad Anwarul Haq for Appellant.

Main Kamran Bin Latif for Respondent.

Date of hearing: 25th November, 2004.

P L D 2005 Lahore 304

Before Ch. Ijaz Ahmad and Muhammad Khalid Alvi, JJ

MUHAMMAD MAZHAR ‑‑‑ Appellant

Versus

ARSHAD MEHMOOD‑‑‑Respondent

Regular first Appeal No.435 of 2003, heard on 12th January, 2005.

(a) Oaths Act (X of 1873)‑‑‑

‑‑‑‑Ss. 8 & 10‑‑‑Civil Procedure Code (V of 1908), O.III, Rr. 1 & 4‑‑­Contract Act (IX of 1872), Ss.2(e) & 10‑‑‑Decision of suit on basis of oath by third person‑‑‑Acceptance of plaintiff's offer by defendant's brother/special attorney in presence of his duly appointed counsel‑‑­Defendant not opted to appear in Court‑-‑Validity‑‑‑Such offer would be binding on defendant.

Ch. Khurshed Ahmed, Advocate v. Government of Punjab and others 2003 CLC 550; Munir Ahmad Mughal's case PLD 1982 SC 204; Dr. Ansar Hussain's case 1971 SCMR 634 and Haji Mewo's case PLD 1962 Kar. 162 rel.

(b) Oaths Act (X of 1873)‑‑‑

‑‑‑‑Ss. 10 & 11‑‑‑Contract Act. (IX of 1872), Ss.2(e) & 10‑‑‑Decision of suit on basis of oath‑‑‑Acceptance of such offer by opponent ‑‑‑Effect‑‑­Opponent would have no right whatsoever to wriggle out from such accepted offer being an agreement of binding nature and also on the principle of approbate and reprobate‑‑‑Principles.

Once an offer is made and is accepted by the other side, then the other side has no right whatsoever to wriggle out from that offer, which was accepted by him on the well‑known principle of approbate and reprobate and also on the principle that the offer by a party to a suit as to being bound by a statement on oath of his opponent on being accepted by the opponent, is in the nature of a binding agreement.

Ch. Khurshed Ahmed, Advocate v. Government of Punjab and others 2003 CLC 550; Syed Muhammad Ramzan's case 1990 SCMR 681; Ikramul Haq's case 1992 MLD 867; Jaffar Abbas's case PLD 1991 SC 1131; Muhammad Ali's case PLD 1990 SC 841; Abdul Hameed's case 1983 CLC 595; Syed Abdul Hakeem's case 1991 MLD 762; Attiq Ullah's case 1981 SCMR 162 and Saleem Ahmad's case 1974 SCMR 224 rel.

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

‑‑‑‑O. XXXVII, Rr. 2 & 3‑‑‑Oaths Act (X of 1873), Ss.8, 9, 10, 11 & 13‑‑‑Suit on basis of negotiable instrument‑‑‑Leave to appear and defend suit, application for‑‑‑Decision of suit on basis of oath by third person‑‑­Acceptance of plaintiff's offer by defendant‑‑‑Trial Court after recording statement of third person decreed suit without deciding leave application‑‑‑Validity‑‑‑Objection as to not finally deciding leave application would have no force in view of agreement arrived at between parties regarding decision of suit on basis of oath by third person.

Nasarullah Jan's case 1996 SCMR 108 rel.

(d) Oaths Act (X of 1873)‑‑‑

‑‑‑‑Ss. 10 & 13‑‑‑Decision of suit on basis of oath by third person‑‑­Acceptance of plaintiff's offer by defendant's brother/Special Attorney in presence of his counsel‑‑‑Non‑recording defendant's separate statement regarding such offer‑‑‑Trial Court, after recording statement of third person, decreed suit‑‑‑Validity‑‑‑Such omission was merely an irregularity, which would not in law invalidate entire proceedings of taking oath and recording statement of third person‑‑‑Impugned judgment did not suffer from any infirmity or illegality‑‑‑High Court dismissed appeal.

Anayat Ali, Muhammad Yaqub PLD 1999 Lah. 328 and Atta Muhammad v. Muhammad Ramzan 1989 MLD 4554 ref.

Ikramul Haq's case 1992 MLD 867; Abdul Qayyum's case PLD 1993 SC 289; Khadam's case 1991 MLD 1250 and Muhammad Siddique's case 1996 CLC 695 rel.

Hafiz Khalil Ahmed for Appellant.

Azhar Ali Shah Bukhari for Respondent.

Date of hearing: 12th January, 2005.

P L D 2005 Lahore 310

Before Muhammad Sair Ali, J

MUHAMMAD AYUB‑‑‑Petitioner

Versus

ZILA COUNCIL, GUJRAT through Administrator‑‑‑Respondent

Civil Revision No.2056 of 2000, heard on 12th January, 2005.

(a) West Pakistan Civil Courts Ordinance (II of 1962)‑‑

-----S. 18‑‑‑Specific Relief Act (I of 1877), Ss.42 & 54‑‑‑Civil Procedure Code (V of 1908), O.VII(1)(i)‑‑‑Forum of appeal‑‑‑Determination‑‑‑Suit for declaration and perpetual injunction‑‑‑Valuation of suit for purposes of court‑fee and jurisdiction at Rs.25,000‑‑‑Plaintiff in plaint also sought decree for adjustment of Rs.70,00,000 and for refund of further balance, if any‑‑‑Dismissal of suit‑‑‑Filing of appeal before District Judge on basis of valuation of suit at Rs.25,000‑‑‑Return of memo. of appeal on the ground that claim and prayer in plaint would determine forum of appeal and not valuation of suit by plaintiff‑‑‑Validity‑‑‑Question of arbitrarily fixation of court‑fee was neither raised by defendant nor Trial Court had directed plaintiff to correct valuation of suit in plaint‑‑­Valuation of suit as mentioned in plaint would determine appellate forum‑‑‑High Court accepted revision petition and set aside impugned order with direction to District Judge to decide appeal in accordance with law.

Muhammad Ayub and 4 others v. Dr. Obaidullah and 6 others 1999 SCMR 394 and Muhammad Younas v. Surya Bibi and another 2003 MLD 168 fol.

Messrs State Life Insurance Corporation and 3 others v. Fazal Muhammad and 3 others 1982 CLC 1162 and Adamjee Paper and Board Mills Ltd. v. Maritime Agencies Ltd. 1984 CLC 440 distinguished.

(b) West Pakistan Civil Courts Ordinance (II of 1962)‑‑‑

‑‑‑‑S. 18‑‑‑Civil Procedure Code (V of 1908), O.XXIII, O.XLI & O.XLIII‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 114‑‑‑Return of memo of appeal for want of jurisdiction‑‑‑Receipt of memo of appeal by appellant as per direction of Appellate Court would not attract principle of estoppel against him to deny him vested right to remedy of appeal‑‑­Principles.

Dr. M. Mohayuddin Qazi for Petitioner.

Ch. Muhammad Sadiq for Respondent.

Date of, hearing: 12th January, 2005.

P L D 2005 Lahore 316

Before Abdul Shakoor Paracha, J

Mst. HAJRA KHATOON and another‑‑‑Petitioners

Versus

STATION HOUSE OFFICER, POLICE STATION FATEH JANG, DISTRICT ATTOCK and 2 others‑‑‑Respondents.

Writ Petition No.3410 of 2004, decided on 10th February, 2005.

(a) Islamic Law‑‑‑

‑‑‑‑Marriage‑‑‑Validity‑‑‑Sui juris Muslim female can enter into valid Nikah/Marriage of her own free‑will without the consent of "Wali".

Hafiz Abdul Wahid v. Mst. Asma Jahangir PLD 2004 SC 219 and Hafiz Abdul Wahid v. Mst. Asma Jahangir PLD 1997 Lah. 301 ref.

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

‑‑‑‑S. 2(a)‑‑‑Marriage by a woman on attaining puberty is valid‑‑­Nikah/Marriage contracted by a woman not having attained the age of majority, as defined in law, but having attained puberty aw defined in Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is valid and not void.

Hafiz Abdul Wahid v. Mst. Asma Jahangir PLD 2004 SC 219 ref.

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

‑‑‑‑Ss. 11 & 2(a)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑Marriage contracted by a woman and not having attained the age of majority as defined in law, but having attained puberty as defined in Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is valid and not void‑‑‑female accuses, though not having attained the age of 16 years, had attained puberty and she, therefore, could not be compelled to live with her parents till attaining the age of 16 years ‑‑‑F.I.R. registered against the accused was quashed in circumstances and the Constitutional petition was accepted accordingly.

Hafiz Abdul Wahid v. Mst. Asma Jahangir PLD 2004 SC 219; Ayesha Ijaz v. S.H.O. 1997 MLD 641; Mst. Sughran Mai v. The State PLD 1980 Lah. 386; Mst. Bakhshi v. Bashir Ahmad and another PLD 1970 SC 323; Hafiz Abdul Wahid v. Mst. Asma Jahangir PLD 1997 Lah. 301; Muhammad Imtiaz and another v. The State PLD 1981 FSC 308; Muhammad Ramzan and others v. The State PLD 1984 SC 184; Muhammad Yaqoob and another v. The State and 3 others 1985 PCr.LJ 1064; Tuhfatul Ahawazi, Book p.233; Fathul Bari Shaarh Sahih Bukhari by Ibne‑e‑Hajar Asqalani, Vol. IX, p.182; Nailul Autar by Shokani, Vol. V, p.136; Fiqhussumah by Syed Sabiq Vol., II, p.113; Misqatual Mafatih Sharh Mishkatul Masabih by Mulla Ali Qari, Vo1.Vl, p.204; Subulussam by Kahlani Al‑amir Vol. III, p.117; Badayatul Mujtahid by Ibne‑e­-Rushad, Vol. II, pp.6 and 7; Al‑Mughni by Ibne‑Qudama, Vol. VI, p.487; Sharh Sahih Muslim by Imam Naawi, Vol. IX, p.203; Ahkamul Qur'an by Abu Bakar Jassas, Vol. I, p.401 and Kitabul Fiqh Alal Mazahibil Arbaa (Urdu) by Allama Jaziri, Vol. IV, p.97 ref.

Muhammad Saeed Khan for Petitioners.

Laiq Khan Sawati for Respondents.

Tanvir iqbal, A.A.‑G. for the State.

P L D 2005 Lahore 323

Before Maulvi Anwarul Haq, J

SHAHBAZ MUHAMMAD ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Revision No.486 of 2004, heard on 28th January, 2005.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302, 306, 308, 331 & 34‑‑‑Criminal Procedure Code (V of 1898), S. 439‑‑‑Liability to pay amount of Diyat‑‑‑Son of petitioner who was accused of commission of offence under S. 302, P.P.C., was tried under Juvenile Justice System, 2000 and was convicted and sentenced for offence under Ss. 306 & 308, P.P.C. to pay Diyat amount to be paid either from his property or by his patents‑‑‑Son of petitioner was also burdened to pay amount of compensation to legal heirs of deceased‑‑‑Son of petitioner having died in jail, application was filed by legal heirs of deceased before Sessions Judge to the effect that as accused the son of petitioner, had died in jail, amount of Diyat payable to them by deceased convict be directed to be paid by his parents‑‑‑Said application was accepted and execution process was issued against movable and immovable property of deceased convict and petitioner who was father of deceased convict‑‑‑Petitioner had filed revision petition against order of said execution contending that petitioner could not be made liable to pay amount of Diyat as liability which was criminal in nature could not be shifted to him when minor‑convict had not left any property‑-‑Validity‑‑­Trial Court was competent to direct payment of Diyat by a minor convict and parents of said minor‑‑‑Diyat which was imposed in lieu of Qisas, would constitute a sentence against parents of deceased minor convict‑‑­Legal implication and ultimate effect however, could not be determined in limited revisional proceedings‑‑‑Petitioner could adopt and resort to such remedy as was available to him under law.

Sardar Mahboob for Petitioner.

Muhammad Qasim Khan, Asstt. A.G. Punjab for the State.

Chaudhry Ghulam Din Aslam for the Complainant.

Dates of hearing: 24th and 28th January, 2005.

P L D 2005 Lahore 326

Before Sh. Hakim Ali, J

MUHAMMAD ASGHAR‑‑‑Petitioner

Versus

UMAR ASGHAR (MINOR) and 3 others‑‑‑Respondents

Writ Petition No. 2434 of 2004/BWP, decided on 2nd February, 2005.

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

‑‑‑‑Ss. 5, 14(2)(c) and Sched.‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Suit for maintenance‑‑‑Appeal to District Judge‑-‑Competency‑‑‑Mother of two minors tiled suit for their maintenance against father‑‑‑Family Court decreed suit to the extent of Rs.1000 per minor per month‑‑‑Appeal filed by father against judgment, of Family Court was dismissed on ground that same was not competent under S.14(2)(c) of West Pakistan Family Courts Act, 1964 as judgment and decree was passed by Family Curt up to the extent of Rs.1,000 per month per child which was less than prescribed amount of Rs.1,000‑‑­Validity‑‑‑When two or more plaintiffs in a suit for maintenance were involved and each had' been granted maintenance of less than Rs.1,000 per month, but total sum coming to the plaintiffs was more than Rs.1,000, it would be a decree where judgment‑debtor had to pay, more than Rs.1,000‑‑‑Each and every plaintiff's maintenance could not be split up to consider it "a decree" as it would be making of two decrees which would be against the spirit and plain words used "as decree" in S.14(2)(c) of West Pakistan Family Courts Act, 1964‑‑‑Total sum of maintenance awarded under or through a decree had to be kept in mind while filing appeal against decree passed by Family Court‑‑‑High Court accepting Constitutional petition declared the judgment passed by Appellate Court whereby appeal tiled by petitioner was returned, as illegal and unlawful‑‑‑Appeal filed by petitioner before Appellate Court would be presumed to be pending for adjudication on merit.

Khawaja Muhammad v. District Judge Mansahra 1999 MLD 2723; Sharif v. Judge Family Court 2002 CLC 270 and Razi Ahmad v. Saima Shafi 2004 CLC 637 ref.

Sardar Muhammad Aslam Khan Dhukkar for Petitioner.

Mumtaz Ahmad Aamir for Respondents.

P L D 2005 Lahore 328

Before Muhammad Muzammal Khan, J

Malik JAHANGIR AHMAD‑‑‑Petitioner

Versus

JUDGE SPECIAL COURT NO. 1, ANTI‑TERRORISM, RAWALPINDI and 2 others‑‑‑Respondents

Writ Petition No.461 of 2005, decided on 24th February, 2005.

(a) Penal Code (XLV of 1860)‑‑

‑‑‑‑Ss. 302(b), 324 & 398‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑­Criminal Procedure Code (V of 1898), S.345‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Compromise‑‑‑Accused had also been found guilty under S.7 of the Anti‑Terrorism Act, 1997, by the Trial Court for creating terror, sense of fear and insecurity in the public at large by causing death of the deceased and injuries to the prosecution witnesses‑‑‑Said judgment had been concurrently upheld up to Supreme Court‑‑‑Contention that since main offence under S.302, P.P.C. was compoundable, offence under S.7 of the Anti‑Terrorism Act, 1997, would also be considered to have become compoundable, had no force because the latter offence was more grave and severe being against society as compared to the offence against the person of deceased‑‑­Section 345, Cr.P.C. contemplated the compoundable offences and offence under S.7 of the Anti‑Terrorism Act, 1997, was not included therein‑‑‑Subsection (7) of section 345, Cr.P.C. had created a specific bar for compounding of offences not mentioned therein‑‑‑Impugned order passed by the Anti‑Terrorism Court dismissing the application of accused for permission to compound the offences being neither illegal nor arbitrary, could not be interfered with in Constitutional jurisdiction of High Court‑‑‑Constitutional petition was dismissed in limine accordingly.

Ghulam Shabbir and 2 others v. The State 2003 SCMR 663 and Rana Dil Muhammad v. The State 2004 PCr.LJ 736 ref.

Muhammad Rawab v. The State 2004 SCMR 1170 fol.

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

‑‑‑‑S. 345‑‑‑Compounding offences‑‑‑Scheme and scope‑‑‑Test for determining the classes of offences, concerning individuals only as distinguished from those which have reference to the interests of the State, has been laid down by the legislature in S.345, Cr.P.C.‑‑‑Courts of law cannot go beyond the said test and substitute their own test for the same‑‑‑Compounding a non‑compoundable offence is against public policy keeping in view the state of facts existing on the date of application to compound‑‑‑Unless the provisions of S.345, Cr.P.C. are satisfied as to all matters mentioned therein, no offences shall be compounded.

Muhammad Rawab v. The State 2004 SCMR 1170 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Lawful decision taken within the ambit of conferred jurisdiction, can neither be interfered with nor can be substituted in Constitutional jurisdiction of High Court.

Syed Tanvir Sohail Shah for Petitioner.

Ch. Salimul Haq, A.A.‑G. for the State.

P L D 2005 Lahore 331

Before Syed Zahid Hussain, J

MUHAMMAD ALI ‑‑‑Petitioner

Versus

ZAKIR HUSSAIN ‑‑‑Respondent

C.R. No.556 of 2003, decided on 16th February, 2005.

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

‑‑‑‑S. 38‑‑‑Decree drawn by the Court is executable and not the judgment/finding‑‑‑Executing Court cannot go behind the decree‑‑­Executing Court must take the decree as it stands and cannot make any alteration or modification therein‑‑‑In case of reversal, modification or alteration of the decree by the Court of last instance; the decree is to be executed accordingly.

Syed Riaz Ahmad Shah and another v. Dayal Singh College Trust Society and another 1972 SCMR 237; Muhammad Ali v. Ghulam Sarwar and others 1989 SCMR 640; Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Company Limited and 2 others 1994 SCMR 22; Sardar Ahmad Yar Khan Jogezai and 2 others v. Province of Balochistan through Secretary, C & W Department 2002 SCMR 122; Ghulam Muhammad v. Sultan Mahinud and others PLD 1963 SC 265; Topanmal Chhotamal v. M/s Kundomal Gangaram and others AIR 1960 SC 388 and. Sunder Das v. Ram Parkash AIR 1977 SC 1201 ref.

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

‑‑‑‑S. 47‑‑‑Execution of decree‑‑‑Cost of damages not included in decree‑‑‑Executing Court inserting costs of damages‑‑‑Executing Court; at the time of execution of decree, included cost of damages also in the decree on the ground that the suit was decreed as it was prayed for‑‑­Objection raised by the judgment‑debtor was that the decree did not include cost of damages‑‑‑Objection was dismissed by Executing Court as well as by Appellate Court‑‑‑Validity‑‑‑Decree as it stood was to be executed by Executing Court and nothing could be added nor imported into it on the basis of any assumption that the suit was decreed as prayed for‑‑‑Sanctity of decree passed in a suit remained intact till such time it was corrected altered or modified by the Court in accordance with law‑­‑Executing Court was bound to execute the decree as it was and nothing beyond that‑‑‑There was no decree about the claim for damages and the Executing Court was obliged to execute the decree by deducting only the amount of earnest money/advance money and the balance sale consideration had to be paid by the decree holder‑‑‑Orders passed by both the Courts below were in excess of their jurisdiction and were illegal, thus the same were set aside and the Executing Court was directed to proceed with the matter in accordance with law‑‑‑Revision was allowed accordingly.

Ghulam Muhammad v. Sultan Mahmud and others PLD 1963 SC 265 ref.

Ch. Inayat Ullah for Petitioner.

Rao Jalal‑ud‑Din for Respondent.

Date of hearing: 16th February, 2005.

P L D 2005 Lahore 335

Before Tanvir Bashir Ansari and Muhammad Sayeed Akhtar, JJ

Messrs COOPERATIVE INSURANCE SOCIETY‑‑‑Appellant

Versus

Messrs LONG VIEW TRADERS‑‑‑Respondent

R.F.A. No.263 of 2001, heard on 2nd March, 2005.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 20 & 21‑‑‑Contract Act (IX of 1872), S.28‑‑‑Cooperative Societies Act (VII of 1925), Ss. 70 & 54‑‑‑Suit by insured against insurance company, (a Cooperative Society) for recovery of amount as loss caused to the goods/assets of insured by fire‑‑‑Objection to territorial jurisdiction‑‑‑Scope‑‑‑Principles‑‑‑Insurance Policy did not contain any clause limiting the jurisdiction of the Civil Court at "L" alone‑‑‑Initial jurisdiction of Civil Court to try the suit was governed under S. 20, C.P.C. and as the agreement was admittedly executed at S, the Civil Court at S enjoyed the territorial jurisdiction‑‑‑In order that such jurisdiction was conferred upon another Court through an agreement, the party raising objection must establish that there had been a consequent failure of justice by the exercise of jurisdiction by a Civil Court not ordained in the agreement‑‑‑Even though the objection to territorial jurisdiction might have been taken at the earliest, yet it had to be established under S. 21, C.P.C. that the entertainment of the suit by the Civil Court at S had caused failure of justice‑‑‑Agreement could however, lawfully be executed to confer jurisdiction upon one of the two or more Courts having jurisdiction in the matter and such a course was permissible under S. 28, Contract Act, 1872.

Muhammad Hanif Niazi for Appellant.

Amjad Pervez Malik for Respondent.

Date of hearing: 2nd March, 2005.

P L D 2005 Lahore 340

Before Umar Ata Bandial, J

ALI KHAN‑‑‑Petitioner

Versus

BARAT KHAN and others‑‑‑Respondents

Civil Revision No.2852 of 2004, heard on 17th January,. 2005.

Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 30 & 33‑‑‑Arbitration agreement was entered into between four brothers inter se and said agreement did not include the petitioner (minor son) of one of the brothers nor had been signed on his behalf by a legal guardian‑‑‑Arbitrators had dealt in their finding with the property which was acknowledged in the award as belonging to the petitioner (minor)‑‑­Contention of the petitioner was that the award made in respect of petitioner's property was without jurisdiction, for being beyond the scope of the reference, because it dealt with property and rights of a person who was not a party to the arbitration agreement as such it was prayed that to the extent of the interest of the petitioner, impugned appellate judgment was liable to be set aside as being contrary to law‑‑­Validity‑‑‑Held, impugned transaction of the petitioner's property was caused by the arbitrators and not through a transfer made by the natural guardian (father)‑‑‑Award was made with reference to the dispute referred and not in deference to the interest of the petitioner as the sole consideration of the award‑‑‑No material on record was available to show that transfer of the property directed by the award was meant to promote or otherwise cause the petitioner/minor's welfare‑‑‑Arbitrators had in their award usurped such jurisdiction upon the mistaken premise that the father could lawfully implement the award in respect of the transfer of minor's property by obtaining validation from the competent Court‑‑‑Argument of the respondents that alleged collusion between father and son was irrelevant and devoid of force as legal position on the invalidity of the award in relation to the rights was absolutely clear-‑­Arbitrators had derived their authority from the consent of the parties to the agreement of reference and thus could not travel beyond the limits of the particular matter submitted to them for decision‑‑‑Petitioner, being not a party to the arbitration agreement, the arbitrators altogether lacked jurisdiction to adjudicate in respect of the petitioner/minor's right of property and therefore award was void and had no effect upon the rights and interest of person who was not party to the arbitration‑‑‑Award, in circumstances, was invalid and ineffective to the extent that it dealt with and disposed of the rights and interest of the minor/petitioner and to the remaining extent the award was upheld by the High Court as law recognized severability of an award and therefore partial validity could be upheld.

Rai Tulley Khan v. Ahmad Hassan Khan and others 1981 SCMR 1075; Dr. Khalida Malik and 2 others v. Mst. Farida Malik and 7 others 1994 MLD 2348; Yamin Khan and 5 others v. Rais Jhangli Khan and another 1999 CLC 1755 and Muhammad Bakhsh v. Province of Punjab through Collector Jhang and 2 others 2003 YLR 1231 distinguished.

Farida Malik v. Khalid Malik 1998 SCMR 816; Inayatullah Khan v. Obaidullah Khan 1999 SCMR 2707; Province of Punjab v. Sher Muhammad & Co. 2001 CLC 613; Pakistan v. Dallah Real Estate Co., 2003 CLC 1411; M/s National Construction Co. v. The West Pakistan Water and Power Development Authority through Chairman PLD 1987 SC 461 and Ghulam Abbas v. Trustees of the Port of Karachi PLD 1987 SC 393 fol.

Abdur Rehman Madni for Petitioner.

Waqar Ahmad Khan for Respondents Nos. 1 to 3.

Respondent No.4 (In person).

Nemo for Respondents Nos.5 to 8.

Date of hearing: 17th January, 2005.

P L D 2005 Lahore 345

Before Syed Zahid Hussain and Syed Sakhi Hussain Bokhari, JJ

MUHAMMAD ASHIQ and others‑‑‑Appellants

Versus

WAPDA and others‑‑‑Respondents

Intra‑Court Appeals Nos.575, 565 and 579 of 2003, decided on 2nd March, 2005.

Land Acquisition Act (I of 1894)‑‑­

‑‑‑‑Ss. 4 & 17‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Intra Court Appeal‑‑‑Acquisition of land‑‑‑Special powers, exercise of‑‑‑Acquisition of land scattered in pieces‑‑‑Acquisition of selected land‑‑‑Land was acquired by Government at public expense for a public purpose of construction of Water And Power Development Authority offices and, official residential colony‑‑‑Notifications under Ss.4 and 17 of Land Acquisition Act, 1894, were issued and award for compensation was announced-‑‑Landowners contended that there was no urgency requiring issuance of Notification under S.17 of Land Acquisition Act, 1894; that the land was not acquired by the Government, rather the acquisition was for Water And Power Development Authority which was a corporation and that the acquisition was with mala fide intention as the land was in scattered pieces and land owned by some other pers6ns was not acquired‑‑‑Contentions of appellants were partly repelled by High Court in exercise of Constitutional jurisdiction‑‑‑Validity‑‑‑Acquisition could not be rendered illegal on the ground that the land was in scattered pieces‑‑‑Non‑acquisition of land owned by some others did not, ipso facto lead to conclusion of any mala fide act on the part of land acquisition authorities‑‑‑High Court had rightly affirmed the proceedings taken by land acquisition authorities for determination of compensation awarded to land owners‑‑‑No new case could be set up in appeal nor the judgment of High Court could be assailed on any such plea which was not taken before it‑‑‑Division Bench of High Court declined to interfere with the judgment passed by. High Court ‑‑‑Intra‑Court Appeal was dismissed.

Federation of Pakistan through G.M. Telegraph and Telephone Department, Lahore Telephone Region, Lahore v. Province of Punjab through Land Acquisition Collector/Assistant Commissioner, 'Headquarters Lahore and 2 others 1993 SCMR 1673; Dr. Muhammad Nasim Javed v. Lahore. Cantonment Housing Society Ltd. and 2 others PLD 1983 Lah. 552; Muhammad Ishaq and others v. Government of Punjab and others 2002 SCMR 1652; Manubhai Jethalal Patel and another v. State of Gujarat and others AIR 1984 SC 120; Girija Dubey and others v. State of Bihar and others AIR 1985 Pat. 15; Rasheed Ahmed and 64 others v. Province of Sindh and others 1986 CLC 1841 and Sardar and 149 others v. Government of N.‑W.F.P. 1997 CLC 812 ref.

Faisal Islam and Sajjad Hussain Naqvi for Appellants.

Munir Ahmed Bhatti and Muhammad Mudassar Bodla for Respondents.

Dates of hearing: 28th February and 2nd March, 2005.

P L D 2005 Lahore 352

Before Syed Shabbar Raza Rizvi, J

Mst. ZUBAIDA BIBI‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1084‑B of 2005, decided on 24th March, 2005.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 302 & 325‑‑‑Bail, grant of‑‑‑Accused killed 'her children and attempted to kill herself‑‑­Investigating Officer in his investigation had confirmed that accused and complainant who were wife and husband, used to quarrel with each other on not having a male child‑‑‑Complainant/husband used to scold accused for not delivering him a son‑‑‑Apparently complainant was also responsible to some extent for unfortunate occurrence for which F.I.R. had been registered and accused had been booked‑‑‑Investigation of case was complete, accused was not required for the purpose of investigation and no useful purpose would be served if accused was kept in jail for an indefinite period‑‑‑As far as innocence or guilt of accused was concerned, Trial Court would decide the same after following procedure given under the law‑‑‑Suckling baby was also suffering with accused in jail who had not committed any offence‑‑‑Baby could also not be separated from her accused mother‑‑‑Child must not be punished in any manner and presence of baby in jail would amount to punishment‑‑­Accused was admitted to bail, in circumstances.

1996 SCMR 973; 1998 MLD 1350 and 1991 PCr.LJ 1361 ref.

Malik Muhammad Akbar Awan for Petitioner.

Maqbool Ahmad Qureshi for the State.

Aslam, Sub‑Inspector.

P L D 2005 Lahore 354

Before Syed Zahid Hussain and Syed Sakhi Hussain Bokhari, JJ

Hafiz ASMATULLAH‑‑‑Appellant

Versus

GOVERNMENT OF PUNJAB and others‑‑‑Respondents

Intra‑Court Appeal No. 599 of 2004, decided on 7th April, 2005.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 20, 36(3), 227 & 199‑‑‑Intra‑Court appeal‑‑‑Freedom to profess religion and to manage religious institutions‑‑‑Protection of minorities‑‑Contention of the petitioner under Art.199 of the Constitution was that the Provincial Government be directed to impose ban qua the book "God's Special Agents" and that the respondent be restrained from preaching and projecting the programme of Christianity in Pakistan‑‑­ Validity‑‑‑Held, under Art.20 of the Constitution every citizen enjoys a Fundamental Right to profess, practise and propagate his religion and every religious denomination and every sect thereof has a right to establish, maintain and manage its religious institutions‑‑‑Petitioner failed to point out and to address any argument as to how the actions of the respondent offend against any particular law, public order or morality so as to exclude the application of Art.20 of the Constitution‑‑‑Reliance of the petitioner upon Art.227 of the Constitution in the context was inapt inasmuch as clause (3) thereof ensures that "nothing in this part shall affect the personal laws of non­ Muslim citizens or their status as citizens" and rather gives added strength to Art.20 of the Constitution and is also consistent with the principles of policy as contained in Art.36 of the Constitution‑‑­Benevolence and tolerance is the hallmark of religion of Islam and faith of Muslims and provisions of Arts.20, 36 & 227(3) of the Constitution are reflection thereof‑‑‑No valid justification having been found to interfere, order of the Single Bench was reaffirmed by the Division Bench of the High Court.

Muhammad Yousaf Javed with Shabbir Hussain Qureshi for Petitioners.

P L D 2005 Lahore357

Before Syed Jamshed Ali and Umar Ata Bandial, JJ

SHAKEEL SHAHID ‑‑‑Appellant

Versus

MUHAMMAD YOUNIS ZAHID and others‑‑‑Respondents

Intra‑Court Appeal No.171 of 2003, heard on 3rd February, 2005.

(a) PunjabLocal Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑Ss. 14 [as amended by Punjab Local Government Elections (Amendment) Ordinance (X of 2001)], 12 & Preamble‑‑‑Punjab Local Government Elections Rules, 2003, R.70(2)‑‑‑Punjab Local Government Ordinance, (XIII of 2001), Ss.152(2) & 196(3)‑‑‑Local Government Elections Order [Chief Executive Order No.8 of 2000], Preamble‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Intra‑Court appeal‑‑‑Election of Nazim and Naib Nazim‑‑‑Disqualification of Nazim by the Election Tribunal on account of being a defaulter of a financial Institution and also for his failure to declare his assets ‑‑‑Naib Nazim was also deseated on account of disqualification of the Nazim‑‑‑ Contentions of the appellant were that under S.14(2) of the Punjab Local Government Elections Ordinance, 2000 (as amended) read with S.152(2) of the Punjab Local Government Ordinance, 2001 the Nazim could be deseated only if the Chief Election Commissioner had found him guilty of contravening the provisions of S.14(1)(i)(j) of the Punjab Local Government Elections Ordinance, 2000 and therefore the Election Tribunal had no jurisdiction whosoever in the matter; that neither the Punjab Local Government Elections Ordinance, 2000 nor the Punjab Local Government Ordinance, 2001 provided for challenging the election of a Nazim or a Naib Nazim through election petition; that Punjab Local Government Elections Rules, 2000 providing for the filing of election petition and the constitution of Election Tribunals were therefore, ultra vires in the absence of substantive provision in the present legislation i.e. the Punjab Local Government Elections Ordinance, 2000 itself; that S.196(3), Punjab Local Government Ordinance, 2001 guaranteed the tenure of Nazim and Naib Nazim unless they resigned or were recalled or removed earlier, and that too under an. order, passed by the Chief Election Commissioner, accordingly R.70, Punjab Local Government Elections Rules, 2003 permitting the filing of election petition was inconsistent with the object and effect of S.196 of the Punjab. Local Government Ordinance, 2001 and that case of the appellant did not fall within the mischief of S.14(1)(i)(j) of Punjab Local Government Elections Rules, 2001‑‑‑Validity‑‑‑Held, provision of S.14(2), Punjab Local Government Elections Ordinance, 2003 did not purport to create an exclusive or overriding, remedy before the Chief Election Commissioner for the purpose of determining qualifications of candidates and elected members‑‑‑Nothing in the amended law existed that had curtailed or excluded the jurisdiction of Election Tribunals in matters that fell within the purview of the remedy before the Chief Election Commissioner under S.14(2), Punjab Local Government Elections Ordinance, 2000, thus the statutory intent was also to vest the Chief Election Commissioner with power to determine both pre‑election and post­-election disputes regarding qualification/disqualification of candidates and same was meant to enlarge his jurisdiction without prejudice to the existing remedy‑‑‑By not prescribing procedure for S.14(2) proceedings, the legislature had conferred discretion upon the Chief Election Commissioner to adopt any suitable process and format of his proceedings so as to effectively perform his function of holding the Local Government Elections recognized by S.12, Punjab Local Government Elections Ordinance, 2000 and otherwise entrusted to him by constitutive law namely Local Government Elections Order [C.E.O.No.8 of 2000]‑‑­Strictly speaking judicial remedy before the Election Tribunal for the enforcement of the mandatory qualifications prescribed for elected members had a distinct purpose and effect in relation to post‑election disputes which is attracted where inquiry into facts was necessary and also where the scope of relief to annul the election as a whole or to a lesser extent had to be determined‑‑‑Jurisdiction of Election Tribunal, and the Chief Election Commissioner in post‑election disputes, although was concurrent, yet it did not mean that there was mutual contradiction between the two remedies, such conflict could arise, if the remedy before the Chief Election Commissioner was exclusive, which was not the position, nor could conflict occur even with reference to findings because there were settled principles to regulate the manner of exercise of concurrent jurisdictions in order to avoid inconsistency‑‑‑Since neither conflict nor prejudice in the present case had either been alleged or experienced by the parties on account of dispute being determined in accordance with law by a lawfully constituted Election Tribunal the point about the remedy under S.14(2) of Punjab Local Government Elections Ordinance, 2000 ousting the jurisdiction of the Election Tribunal was simply unfounded‑‑‑Appellant had never raised a challenge to the jurisdiction of Election Tribunal but participated in its proceedings heartily until their outcome against him both before the Tribunal as well as the Single Bench of the High Court‑‑‑Appellant, was therefore estopped on two counts from raising the objection about the Election Tribunal‑‑‑Election Tribunal, in the present case had considered the evidence on record carefully to arrive rightly at its finding of the appellant's disqualification on the grounds as alleged which had established the appellant's status as a wilful defaulter within the meaning of S.14(1)(i), Punjab Local Government Elections Ordinance, 2000‑‑­Principles.

The elections in the present case were held on 31‑5‑2001 and the election petition against the notified result dated 7‑6‑2001 was filed on 26‑6‑2001 before the Election Tribunal which had by then been constituted by order of the Chief Election Commissioner in exercise of his power under Rule 70(2) of the Punjab Local Government Elections Rules, 2003. The election petition was, therefore, already underway prior to a remedy before the Chief Election Commissioner under section 14(2) of the Punjab Local Government Elections Ordinance, 2000 was created by the amending Ordinance X of 2001 promulgated on 5‑7‑2001. Section 14(2) of the Punjab Local Government Elections Ordinance, 2003 does not purport to create an exclusive or overriding remedy before the Chief Election Commissioner for the purpose of determining qualifications of candidates and elected members. Although Election Tribunals were already in existence at the time of the promulgation of amending Ordinance No.X of 2001, there is nothing in its amendments that curtails or excludes the jurisdiction of these Tribunals in matters that fall within the purview of the remedy before the Chief Election Commissioner under section 14(2). Thus the statutory intent to also vest the Chief Election Commissioner with power to determine both pre‑election and post‑election disputes regarding qualification/disqualification of candidates is meant to enlarge his jurisdiction without prejudice to the existing remedy. By not prescribing procedure for section 14(2) proceedings, the legislature has conferred discretion upon the Chief Election Commissioner to adopt any suitable process and format of his proceedings so as to effectively perform his function of holding the Local Government Elections recognized by section 12 of the Punjab Local Government Elections Ordinance, 2000 and otherwise entrusted to him by the constitutive law namely, the Local Government Elections Order, 2000 (Chief Executive Order No.8 of 2000).

On the other hand, Election Tribunals constituted under the Elections Rules hear only post‑election disputes on specified grounds including the disqualification of an elected member. The proceedings of Election Tribunals are regulated by detailed procedure that includes the manner for recording of evidence and their power is limited to grant only specified reliefs. The difference in scope, format, procedure and reliefs under the two remedies, one before the Chief Election Commissioner and the other before the Election Tribunal, demonstrates their separate spheres and purposes. The remedy before the Chief Election Commissioner is to facilitate the exercise of his power "to take all steps and measures that he may deem necessary for effectively carrying out the said elections" conferred upon him by the Local Government Elections Order, 2000 (Chief Executive Order No.8 of 2000). Section 14(2) of the Punjab Local Government Elections Ordinance, 2000 confers a quasi-­judicial power upon the Chief Election Commissioner for the discharge of his vast powers, to effectively conduct a transparent, fair and peaceful election. In this view of the matter the strictly judicial remedy before the Election Tribunal for the enforcement of the mandatory qualifications prescribed for elected members has a distinct purpose and effect in relation to post‑election disputes. It is attracted where inquiry into facts is necessary and also where .the scope‑of relief to annul the election as a whole or to a lesser extent has to be determined. Therefore, although in post‑election disputes the jurisdiction of the Election Tribunal and the Chief Election Commissioner is concurrent, it does not mean that there is mutual contradiction between the two remedies. Such conflict could arise, if the remedy before the Chief Election Commissioner was exclusive, which is not the case here. Nor can conflict occur even with reference to findings because there are settled principles to regulate the manner of exercise of concurrent jurisdictions in order to avoid inconsistency. In the facts of the present case, neither conflict nor prejudice was either alleged or experienced by the parties on account of dispute being determined in accordance with law by a lawfully constituted Election Tribunal. The point about the remedy under section 14(2) ousting the jurisdiction of the Election Tribunal is simply unfounded.

The appellant never raised a challenge to the jurisdiction of the Tribunal but participated in its proceedings heartily until their outcome against him both before the Tribunal as well as the Single Bench of the High Court. The appellant is therefore estopped on two counts from raising the objection. Firstly; he has raised it belatedly, not having done so either before the Election Tribunal or before the Single Judge in the proceedings of writ petition. Secondly; having benefits from the framework and provisions of the Elections Rules by participating in the election contest regulated thereby, the appellant cannot turn around from facing the consequences of his disability that is provided by the same Elections Rules. In other words the appellant cannot approbate and reprobate with respect to the same Rules.

(b) PunjabLocal Government Elections Rules, 2003‑‑

‑‑‑‑R. 70(2)‑‑‑Punjab Local Government Elections Ordinance (V of 2000), Ss. 38 & 14(2) [as amended by Punjab Local Government Elections (Amendment) Ordinance (X of 2001)]‑‑‑Absence of any provision in the Punjab Local Government Elections Ordinance, 2000 for the establishment of Election Tribunals or for filing of election petitions, does not bar the Punjab Local Government Elections Rules, 2003 from making such provision nor otherwise invalidates delegated legislation made in this behalf by the Provincial Government‑‑‑Punjab Local Government Elections Rules, 2003 provide a complete code of rules for assuring the conduct and completion of fair, transparent and peaceful elections in furtherance of the statutory object of Punjab Local Government Elections Ordinance, 2001‑‑‑Punjab Local Government Elections Rules, 2003 are not, by their detail and comprehensiveness in any way, repugnant to their parent statute; the Punjab Local Government Elections Ordinance, 2003‑‑‑Rules shall always be consistent with the statute and no rule shall militate against or render the provisions of the statute ineffective‑‑‑Test of consistency is whether the provisions of the statute and that of Rules can stand together‑‑‑Main object of Rules is to implement the provisions of the statute and in case of conflict between them the rule must give way to the provisions of the statute‑‑‑Rules, in any case shall not be repugnant to the enactment under which they are made and this test is satisfied amply by the Punjab‑Local Government Elections Rules, 2003‑‑‑Principles.

Question remains to be considered whether the absence of any provision in the Punjab Local Government Elections Ordinance for the establishment of Election Tribunals or for filing of election petitions, bars the Punjab Local Government Elections Rules from making such provision or otherwise invalidates delegated legislation made in this behalf by the Provincial Government. In the first instance, it is pertinent to note that as a species of subordinate legislation, the Election Rules framed under section 38 of the Elections Ordinance, may competently create legal rights and obligations for persons falling within the pale of the Elections Ordinance. Thus, the Elections Rules create an elaborate framework for regulating the process of elections from the point of their inception to their conclusion. This includes many stages that are crucial for the conduct of fair elections and are in elaboration of matters contemplated by the Elections Ordinance. Thus, in furtherance of specific intent of the Elections Ordinance, the Elections Rules deal with matters regarding preparation of electoral rolls, delimitation of the constituencies, determination of the election programme, assistance to the Chief Election Commissioner. There are, however, several other matters dealt with in the Elections Rules that develop and supply the necessary detail to the framework of rights and duties envisaged by the provisions of the Elections Ordinance. These include establishment of polling stations, selection and appointment of polling staff, filing and scrutiny of nomination papers, allotment of elections symbols, monitoring and controlling of election day proceedings, compilation of results, oath of office of elected candidates and determination of election disputes. As such, the Elections Rules provide a complete code of rules for assuring the conduct and completion of fair, transparent and peaceful elections in furtherance of the statutory object of the Elections Ordinance. The question whether the Elections Rules, by their detail and comprehensiveness in any way are repugnant to their parent statute, the Elections Ordinance, is clearly to be answered in the negative. This is because the purpose of subordinate legislation is to define and effectuate the object of parent legislation.

The rule shall always be consistent with the Act and no rule shall militate or render the provisions of the Act ineffective. The test of consistency is whether the provisions of the Act and those of the rules can stand together. Main object of rules is to implement the provisions of the Act and in case of conflict between them the rule must give way to the provisions of the Act. In any case, the rules shall not be repugnant to the enactment under which they are made.

Messrs Mehraj Flour Mills and others v. Provincial Government and others 2001 SCMR 1806 fol.

(c) Interpretation of statutes‑‑

‑‑‑‑ Rules under a statute‑‑‑Rules shall always be consistent with the statute and no rule shall militate or render the provisions of the statute ineffective‑‑‑Test of consistency is whether the provisions of the statute and that of Rules can stand together‑‑‑Main object of Rules is to implement the provisions of the statute and in case of conflict between them the rule must give way to the provisions of the statute‑‑‑Rules, in any case shall n6t be repugnant to the enactment under which they are made.

Messrs Mehraj Flour Mills and others v. Provincial Government and others 2001 SCMR 1806 fol.

(d) PunjabLocal Government Elections Rules, 2003‑‑‑

‑‑‑‑Punjab Local Government Elections Ordinance (V of 2000), Ss.14(1)(2), 22 & 26‑‑‑Punjab Local Government Elections Rules, 2003 neither militate the provisions of the Punjab Local Government Elections Ordinance, 2000 nor ineffectuate them‑‑‑Punjab Local Government Elections Rules, 2003 merely advance and enforce the substantive provisions of the Punjab Local Government Elections Ordinance, 2000 and for that reason are complementary to, in furtherance of its purpose and therefore consistent with its object and provisions‑‑‑Principles.

Punjab Local Government Elections Rules, 2003 neither militate against the provisions of the Elections Ordinance nor ineffectuate them. In the present context this view proceeds upon the observation that the Elections Ordinance specifies qualifications for candidates and elected members in section 14(1) thereof and also defines the election offences of corrupt practice and illegal practice in sections 22 and 26 thereof respectively. The Elections Rules provide the enforcement mechanism for the said penal provisions of the Ordinance. Thus under Rule 81, the election of a returned candidate can be declared void if (i) he is found under section 14(1) of the Ordinance to be not qualified for being elected or if (ii) his election is found to be procured by any corrupt or illegal practice as defined in section 22 and section‑26 respectively of the Ordinance. It is obvious that by its aforesaid provisions, the Elections Rules supply the concrete consequences of the contravention of substantive provisions of the Elections Ordinance. In this perspective the Elections Rules merely advance and enforce the substantive provisions of the Elections Ordinance and for that reason are complementary to, in furtherance of and therefore consistent with its object and provisions. The argument that by creating the forum of Election Tribunals, the Elections Rules have violated section 14(2) of the Elections Ordinance is fallacious and superficial. The fact that the Elections Rules provide a post‑election remedy for adjudicating the incurrence of disqualification makes it, at worst, concurrent with the remedy under section 14(2) before the Chief Election Commissioner. That does not either lead to conflict or vitiate the remedy under the Rules. Therefore the attack on the above premises cannot displace or disable the Rules from providing the aforesaid remedy.

(e) PunjabLocal Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑S. 196(3)‑‑‑Provision of S.196(3), Punjab Local Government Elections Ordinance, 2000 is validating intended to protect incumbency in office and not to legitimize illegal candidatures in election.

(f) Constitution of Pakistan(1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑High Court does not interfere in the findings of fact given by a competent Tribunal unless the same are perverse.

Dr. M. Mohy‑ud‑Din Qazi for the Appellant.

Haji Dildar Khan for Respondent No. 1.

Rana Naeem Sarwar, Addl. A.‑G. for Respondents Nos. 7 to 9.

Date of hearing: 3rd February, 2005.

P L D 2005 Lahore 370

Before Ijaz Ahmad Chaudhry, J

ABU BAKAR MUHAMMAD REZA ‑‑‑Petitioner

Versus

SECRETARY TO GOVERNMENT OF PUNJAB, HOME DEPARTMENT and 3 others‑‑‑Respondents

Writ Petition No.725 of 2005, heard on 24th February, 2005.

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

‑--------S. 11‑EE,11‑EEE & Fourth Sched.‑‑‑Constitution of Pakistan (1973), Arts. 9; 10, 19 & 199‑‑‑Constitutional petition‑‑‑Registration of F.I.R. against petitioner on charge of distributing pamphlets in public to create hatred against Government‑‑‑Bail in criminal case was granted to petitioner‑‑‑Subsequently name of petitioner was notified in the list maintained under S.11‑EE, Fourth Sched. of Anti‑Terrorism Act, 1997 and issuance of his detention order under S.11‑EEE thereof ‑‑‑Validity‑‑­Respondent failed to provide any material showing petitioners connection with alleged activities‑‑‑Petitioner had not been convicted, and sentenced previously for such‑like offences by any competent Court‑‑­ Alleged pamphlets‑ showed dissatisfaction with the policies of President and Prime. Minister for not resolving economical problems of country, against secular system and playing fraud by India on issue of Occupied Kashmir with President and Prime Minister‑‑Distribution of such pamphlets in public could not be termed as terrorism or secularism­ Allegations in F.I.R. were still to be proved before Court‑‑‑Mere registration of F.I.R. would not be sufficient to curtail liberty of petitioner on spy information that he was terrorist as same would amount to punish him before proving such allegations against him‑‑‑Liberty of citizens could not be curtailed on mere presumptions‑‑‑High Court accepted Constitutional petition and quashed impugned order with direction to release petitioner forthwith.

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

‑‑‑‑Art. 9‑‑‑Liberty of citizens could not be curtailed merely on presumptions.

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

‑‑‑‑S. 11‑EEE‑‑‑Constitution of Pakistan (1973), Arts, 9, 10 & 199‑‑­Constitutional petition‑‑‑Notifying name of petitioner in the list maintained under S.11‑EE, Fourth Sched. of Anti‑Terrorism Act, 1997 and issuance of his detention order under S.11‑EEE thereof after registration of F.I.R. against him‑‑‑Objection of authorities was that Constitutional petition was not maintainable as alternate remedy by way of filing representation before Government was available to petitioner‑‑­Validity‑‑‑Home Secretary had already expressed his view in parawise comments justifying impugned order, thus, decision of representation by him would be a futile exercise‑‑‑Constitutional' jurisdiction of High Court could be invoked against impugned order "for having been passed illegally‑‑‑High Court overruled such objection in circumstances.

Syed Muhammad‑ Nisar Safdar for Petitioner.

M.R. Khalid Malik, Addl. A.‑G., for Respondents.

Qaiser Jan, Inspector for D.P.O. Multan and Ata‑ullah S.I. with record.

Date of hearing: 24th February, 2005.

P L D 2005 Lahore 374

Before Iftikhar Hussain Chaudhary, C.J. and Syed Shabbar Raza Rizvi, J

MUHAMMAD AASIM‑‑‑Petitioner

Versus

DISTRICT COORDINATION OFFICER, FAISALABAD and 4 others‑‑‑Respondents

Writ Petition No. 11834 of 2003, heard on 8th February, 2005.

Punjab Local Government Ordinance (XIII of 2001)‑‑‑

‑‑‑‑Ss. 89(4) & 92(5)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Recall Motion‑‑‑Two Councillors of Local Council, moved a "Recall Motion" against petitioner which motion was carried by the House‑‑‑Petitioner challenged proceedings taken on, "Recall Motion" through Constitutional petition which was‑ accepted by High Court and notification whereby petitioner was de‑seated was declared to be without lawful authority and of no legal effect‑‑‑Members of Local Council, however were allowed to move a fresh vote of no confidence against the petitioner in accordance with law‑‑‑After decision of High Court, one of the Councillors moved a motion against petitioner which too was carried successfully in a meeting of the General House‑‑­District Co‑ordination Officer, thereafter, issued notification declaring that petitioner ceased to hold office, pursuant to approval of "Recall Motion" by majority of the voters and petitioner had challenged said second "Recall Motion" and notification issued by District Co‑ordination Officer through present Constitutional petition‑‑‑Petitioner had contended that by virtue of S:92(5) of Punjab Local Government Ordinance, 2001, Councillors, who had moved `Recall Motion' against him, having lost his seat by operation of lave, could not move "Recall Motion" against him‑‑­Validity‑‑‑Proceedings on the first "Recall Motion" though were set aside, but members were allowed to move "Recall Motion" in accordance with law‑‑‑First "Recall Motion" having not failed, provisions of .S.92(5) of Punjab Local Government Ordinance, 2001 ‑were not attracted to the case‑‑‑Councillors who moved "Recall Motion" Continued to be members of, the House/Local Council as second motion was carried by a majority of the House‑‑‑Members of "Recall Motion" could lose seats only in case "Recall Motion" failed and a majority of Members of House did not support the "Recall Motion" which did not happen in the case of the petitioner‑‑‑Constitutional petition was dismissed in circumstances.

Mehmood Khan for Petitioner.

Raja Abdul Rehman, A.A.-G. for Respondents.

Date of hearing: 8th February, 2005.

P L D 2005 Lahore 377

Before Muhammad Akhtar Shabbir, J

MUHAMMAD AFZAL, EX‑ASSISTANT SUB‑INSPECTOR‑‑‑Petitioner

Versus

SENIOR SUPERINTENDENT OF POLICE, OPERATION, LAHORE and 4 others‑‑‑Respondents

Writ Petition No.4930 of 2005, decided on 8th April, 2005.

(a) Interpretation of statutes‑‑‑

‑‑‑‑ Every Statute was prima facie prospective, unless it was expressly or by necessary/ implications made to have retrospective operation‑‑‑Nothing was to be read into a Statute, which was not expressly enacted therein‑‑­Court as a canon of construction would presume that a Statute was not intended to be given retrospective effect unless intention was made clear by express words or necessary implication‑‑‑Court, while interpreting law, had to give effect to legislative intention by giving ordinary meanings to the words used and Court could not assume the function of Law maker‑‑‑Judges do make law by interpreting relevant provisions and by removing the ambiguity‑‑‑Where law‑makers had deliberately not given any preference to one category over the other, Court had to recognize that‑‑‑Any Act or Statute promulgated by Legislature would be effective immediately from the date of its enforcement and it would have no retrospective effect unless so provided in law‑‑‑Offence which was not provided in the law at the time of occurrence, would not be punished under the offence which was enforced, or added in the Statute after that period.

Rooh Afza v. Muhammad Umar and others PLD 1978 Pesh. 1; Keshavan Madhava Menon v. The State of Bombay AIR 1951 SC 128; Nasimul Haque Malik v. Chief Secretary to Government of Sindh, Karachi and 4 others 1996 SCMR 1264; Mst. Frida and others. v. Rehmatullah and another PLD 1984 Pesh. 117; Dr. Riaz Ahmad and 3 others v. Government of Punjab through Secretary Punjab Secretariat, Lahore and 6 others 1999 PLC (C.S.) 359 and Afaf Rehim v. Nisar Ahmad and 2 others 2004 PCr.LJ 263 ref.

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

‑‑‑‑Art. 12‑‑‑Protection against retrospective punishment‑‑‑No law would authorize punishment of a person for an act not punishable at the time of its commission.

Muhammad Sharif and 3 others v. The State 2004 PCr.LJ 1547 ref.

Muhammad Rafiq Ch. for Petitioner.

Rana Naeem Sarwar, Addl. A.‑G. along with Asghar Ali Virk, S. H. O. and Sarwar S.‑I.

P L D 2005 Lahore 381

Before Ch. Ijaz Ahmad, J

MUHAMMAD ASIF IFTIKHAR‑‑‑Petitioners

Versus

ZILA NAZIM, KASUR (EX‑CHAIRMAN) ZILA COUNCIL, KASUR and 4 others‑‑‑Respondents

Writ Petition No.3973 of 2005, decided on 17th March, 2005.

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

‑‑‑‑Art.199‑‑‑Civil Procedure Code (V of 1908), S.11‑‑‑Constitutional petition‑‑‑Principle of res judicata‑‑‑Applicability‑‑‑Petitioner had filed the authorities to decide his application‑‑‑Since despite lapse of considerable time the authorities had not decided the application filed by the petitioner the present petition was again filed by the petitioner on the same facts and for the same relief‑‑‑Validity‑‑‑Principles of Civil Procedure Code, 1908, being applicable to the Constitutional proceedings, second Constitutional petition qua the same subject‑matter and relief was not maintainable‑‑‑High Court directed the authorities to decide the application of the petitioner within ,three months after providing proper hearing to all concerned including the petitioner and any other interested person‑‑‑Petition was disposed of accordingly.

Hussain Bakhsh's case PLD 1970 SC 1; Pir Bakhsh v. The Chairman Allotment Committee PLD 1987 SC 145; Holy Book of Qur'an, Surah Rehman; Mrs. Anjum Irfan v. Lahore Development Authority and others PLD 2002 Lah. 555 and Breen's case (1971) 1 All. E.R.1148 ref.

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

‑‑‑‑Art. 201‑‑‑Direction of High Court‑‑‑Nature‑‑‑Direction of High Court is binding on each and every organ of State by virtue of Art.201 of the Constitution.

(c) Interpretation of Constitution‑‑‑--

‑‑‑‑ Constitution is a social contract with regard, to the four pillars of the society: Legislature; Executive; Judiciary and People of Pakistan.

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

‑‑‑‑Arts. 4 & 5(2)‑‑Good governance‑‑‑Principles‑‑‑Obligation of public functionaries to decide the applications of citizens without fear, favour and nepotism‑‑‑No body is above‑ the Constitution in terms of the mandate of Art. 5(2) of the Constitution‑‑‑No‑ body should be penalized by the inaction of the public functionaries‑‑‑State functionaries are expected to act fairly and justly in manner which should not give any one any cause' of complaint on account of discriminatory treatment.

Ch. Zahoor Elahi's case PLD 1975 SC 383; Ahmad Lateef Qureshi, v. Controller of Examination Board of Intermediate, Lahore PLD 1994 Lah. 3 and Shaukat Ali and others .v: Government of Pakistan and others PLD 1997 SC 342 rel.

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

‑‑‑‑S. 24‑A‑‑‑Applications of citizens, decision of‑‑‑Principles‑‑‑Duty and obligation of public functionaries to decide the applications of citizens in accordance with law and reasons within reasonable time.

Messrs Airport Support Service v. The Airport . Manager, Karachi 1998 SCMR 2268 rel.

(f) Administration of justice‑‑‑‑‑‑‑

Providing of justice‑‑‑Principles‑‑‑Law in the context of administration of justice is not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by superior Courts‑‑‑Not only the duty of Courts to provide‑justice to the people of Pakistan but it is also the duty of every organ and functionary of the State to provide justice by discharging his / its duties in accordance with law without fear, favour and nepotism.

Ch. Zahoor Elahi v. Federation of Pakistan and another PLD 1975 SC. 66; Judgment dated 23‑2‑2005 in Writ Petition No.2778 of 2005 and Ghulam Murtaza v. Headmaster Ch. Inayatullah and others 1998 PLC (C.S.) 274 rel.

Manzoor Qadir for Petitioner.

Muhammad Hanif Khatana, Addl. A.‑G. (on Court's call).

P L D 2005 Lahore 386

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD SULEMAN and others‑‑‑Petitioners

Versus

ABDUR RAZZAQUE and others‑‑‑Respondents

Writ Petition No.2621 of 2005, decided on 21st March, 2005.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 195(1)(c) & 476‑‑‑Penal Code (XLV of 1860), Ss.420, 468 & 471‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑On private complaint under Ss.33F(i)(ii), 337‑F(i), 452, 48 & 149; P.P.C., Magistrate concerned issued summons to petitioner/accused to face trial‑‑‑Accused appeared and the other petitioner stood surety for him by submitting surety bond‑‑‑Respondent filed application before Trial Magistrate alleging that surety had submitted a forged Jamabandi' with surety bond‑‑‑Magistrate on receiving report of Tehsildar to the effect that surety had no agricultural land, accepted application of respondent and sentrobkar' to S.H.O. concerned directing him to register a case against petitioners and S.H.O. registered the F.I.R. against petitioners under Ss.420, 468 & 471, P.P.C.‑‑‑Revision by petitioners before Addl. Sessions Judge having been dismissed, petitioners had filed Constitutional petition for quashing of said F.I.R. registered against them‑‑‑Validity‑‑‑Requirement of S.195(1)(c), Cr.P.C. was that no Court would take cognizance of any offence described in Ss.463, 471, 475 or 476, P.P.C. when such offence was alleged, to have been committed by a party to any proceedings in any Court in respect of a document produced or given in evidence in such proceedings, except on complaint in writing of such Court‑‑‑Alleged bail bond supported by 'a `Fard' having been prepared for bail purpose only, any criminal proceedings could be initiated only on a complaint in writing of the Court of Judicial Magistrate where proceedings in which petitioner was granted bail, were pending‑‑‑Only concerned Courts mentioned in clauses (b), (c) of S.195, Cr.P.C. had right to file complaint and unless there was a complaint by such Court, no criminal Court would take cognizance of those offences‑‑‑Mandatory provisions of 5.195, Cr.P.C. having not been complied with in the present case, F.I.R.. registered being inconsistent with said provisions of law, was illegal ‑‑‑F.I.R. registered against petitioners, in circumstances, was quashed declaring same to be without lawful authority and of no legal effect‑‑‑High Court observed that Magistrate concerned could still proceed further in the matter in the light of provisions of S.195, Cr.P.C.

PLD 2001 Pesh. 89; Muhammad Sharif v. State 1991 MLD 1172; Mian Muhammad Siddiq v. Raja Muhammad Akram PLD 1987 AJK 146 and Muhammad Shafi v. D.S.P. PLD 1992 Lah. 178 ref.

Abid Saqi for Petitioners.

Ch. Khursheed Anwar Bhinder, Addl. A.‑G. with Muhammad Anwar A.S.‑I. for the State.

Aftab Hussain Bhatti for Respondents.

Hafiz Khalil Ahmad as Amicus Curiae.

Date of hearing: 9th March, 2005.

P L D 2005 Lahore 391

Before Muhammad Akhtar Shabbir and Tanvir Bashir Ansari, JJ

FARZANA TASNEEM‑‑‑Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior, Islamabad and 2 others‑‑‑Respondents

Writ Petitions Nos.966 to 971 and 431 and Criminal Miscellaneous No.36‑H of 2004, decided on 27th July, 2004.

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

‑‑‑‑Arts. 4, 5 & 25‑‑‑Loyalty to the State‑‑‑Entitlement to protection of fundamental rights‑‑‑If a citizen, which included a person performing functions in connection with the affairs of the State, would not obey the Constitutional commands, then he was not performing his obligation imposed by the Constitution‑‑‑First duty of the citizens of the country was loyalty to the State and if a person would commit any offence against the State, then he was not entitled to the protection of fundamental rights and was liable to be prosecuted and dealt with in accordance with law enforced for the purpose.

Saifuddin Saif v. Federation of Pakistan and 3 others PLD 1977 Lah. 1174; Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26; Ex Lt. Col. Anwar Aziz (PA‑7122) v. Federation of Pakistan through Secretary, Ministry of Defence Rawalpindi and 2 others PLD 2001 SC 549 and Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others PLD 1996 SC 632 ref.

(b) Pakistan Army Act (XXXIX of 1952)‑--‑

‑‑‑‑ Ss. 73 & 74‑‑‑Constitution of Pakistan (1973), Art. 199(3)‑‑­Constitutional petition‑‑‑Detention of Military Officers by. Army Authorities‑‑‑Detenus had been arrested in due course of law under Pakistan Army Act, 1952‑‑‑Matter relating to members of the Army Forces, was immune from scrutiny of High Court under Art. 199(3) of the Constitution except where judgment was mala fide, without jurisdiction or coram non judice‑‑‑One of detenus though .was not an Army Officer; but he had also been arrested under Pakistan Army Act, 1952; his case was also covered by the bar as contained in Art. 199(3) of the Constitution‑‑‑Constitutional petition was dismissed.

Ex. Lt. Col. Anwar Aziz v. Federation of PAkistan through Secretary Ministry of Defence, Rawalpindi and 2 others PLD 2001 SC 549; Mst. Naheed Maqsood v. Federation of Pakistan and 4 others 1997 CLC 13 and Muhammad Mushtaq v. Federation of Pakistan 1994 SCMR 2286 ref.

Ikram Ch. Asif Taufiq Awan and Hasnain Chohan for Petitioner.

Ch. Muhammad Tariq, D.A.‑G. and Lt.‑Col. Iqbal Hashmi for Respondents.

Date of hearing: 22nd July, 2004.

P L D 2005 Lahore399

Before Ch. Ijaz Ahmad, Actg. C J

Mst. IRSHAIJ BEGUM‑‑‑Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Law, Justice and Human Rights Division, Islamabadand 2 others‑‑‑Respondents

Writ Petition No.6644 of 2005, decided on 26th April, 2005.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Principles of natural justice‑‑­Violation of‑‑‑Complaint filed by petitioner before Wafaqi Mohtasab Ala was accepted and review petition filed by respondent agency before Wafaqi Mohtasab Ala was also dismissed‑‑‑Representation filed by respondent before Higher Authority under provisions of President Order No.1 of 1983 having been accepted by Authority through impugned order, petitioner had filed present Constitutional petition‑‑‑Contention of petitioner, was that impugned order was without lawful authority as the same passed by the Authority without application of mind and without issuance of any notice to petitioner‑‑‑Impugned order had itself revealed that Authority had passed said order without providing hearing to the petitioner‑‑‑Principles of natural justice must be read in each and every statute unless and until it was prohibited by wording of the statute itself‑‑‑Impugned order having been passed by Authority without providing proper hearing to the petitioner, same was hit by principles of natural justice.

Commissioner of Income‑Tax v. Fazal‑ur‑Rehman PLD 1964 SC 410; Zakir Ahmad v. University of Dhacca PLD 1965 SC 90; Pakistan Chrome Mines Ltd. v. Inquiry Officer 1983 SCMR 1208; Pakistan and others v'. Public at Large and others PLD 1987 SC 304; Federation of Pakistan v. Muhammad Tariq Pirzada 1999 SCMR 2189; Federation of Pakistan v. Muhammad Tariq Pirzada 1999 SCMR 2744; Mst. Nusrat Imtiaz v. Government of Pakistan NLR 2000 Civil 54; Messrs. Eastern Leather Co., v. Raja Qamar Sultan, S.O. PLD 2004 Lah..83 and Muzaffar Khan's case PLD 1959 SC 9 ref.

Liaqat Ali Butt for Petitioner.

Yawar Ali, D.A.‑G. for Pakistan (on Court's call).

P L D 2005 Lahore 401

Before Ch. Ijaz Ahmad, J

PROVINCE OF PUNJAB through Collector, Gujranwala and another‑‑‑Petitioners

Versus

ALAMGIR and 3 others‑‑‑Respondents

Civil Revision No.908 of 2000, heard on 16th March, 2005.

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

‑‑‑‑S. 54‑‑‑Civil Procedure Code (V of 1908), S.115, O.XLI, R.27‑‑­Revisional jurisdiction of High Court, exercise of‑‑‑Concurrent findings of fact by the Courts below‑‑‑Additional evidence‑‑‑Plaintiffs claimed to be the owners in possession of suit plot had sought injunction restraining the authorities from interference in their possession‑‑‑Authorities claimed that the suit plot had been acquired for public housing scheme and the plaintiffs had already received their compensation‑‑‑Trial Court relying upon a report of Local Commission had decreed suit in favour of plaintiffs‑‑‑Authorities, (petitioners) had filed application for producing additional evidence which was dismissed by Trial Court and Appellate Court‑‑‑Contention of authorities was that the documents required to be produced were essential for the just decision of the suit and the report of Local Commission was not according to revenue record‑‑‑Validity‑‑‑In case the documents had to be read with the pleadings of parties such documents were necessary for just decision and case could not be decided without perusal of those documents, which were material and necessary‑‑‑Authorities had taken a specific stand on the basis of the record before the Courts below that Local Commission had tendered his report without perusing the revenue record and without notice to Collector, who was party in the proceedings‑‑‑As the Courts below did not consider such aspect of the case, therefore, judgments of both the Courts below were based on surmises and conjectures‑‑‑Court must base all its findings on the evidence before it and not on mere surmises and conjectures‑‑‑High Court in exercise of revisional jurisdiction allowed the application for additional evidence filed by authorities‑ ‑‑Judgment and decree passed by Appellate Court was set aside and the case was remanded to Appellate Court for deciding the appeal afresh after considering the effect of documentary evidence‑‑‑Revision was allowed accordingly.

Mst. Jewan Bibi and 2 others v. Inayat Masih 1996 SCMR 1430; Sh. Muhammad Ikhlas and others v. Muhammad Ismail PLD 1963 SC 466; Akbar Ali and others v. Province of Punjab and others 1990 CLC 718 and National Bank of Pakistan, Lahore v. Messrs Ch. Auto and Tools Agency PLD 2001 Lah. 135 distinguished.

Mst. Fazal Jahan's case PLD 1992 SC 811 rel.

(b) Administration of justice‑‑‑

‑‑‑‑ Each and every case is to be decided on its own peculiar circumstances and facts.

Trustees of Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 rel.

(c) Administration of justice‑‑‑

‑‑‑ Question of law can be raised at any stage.

Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690 rel.

(d) Words and phrases‑‑‑

------"Conjectures" and "inference"‑‑‑Distinction‑‑‑Dividing line between conjectures and inferences is very thin and often very difficult to draw‑‑­One should be careful to see that only those facts are discussed which are to be found in evidence on record.

Muhammad Ibrahim's case 1991 MLD 90 rel.

(e) Administration of justice‑‑‑

‑‑‑‑ Duty and obligation of Presiding Officer of the Court to resolve the controversy between the parties after judicial application of mind.

Gouranga Mohan Sikdar v. The Controller of Import and Export and 2 others PLD 1970 SC 158 and Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173 rel.

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

‑‑‑‑S. 115‑‑‑Revision‑‑‑Material irregularity‑‑‑Scope‑‑‑Where the Courts below decided controversy between the parties in violation of parameters prescribed by Supreme Court, then it would be material irregularity.

Kanwal Nain's case PLD 1983 SC 53 and Shaukat Nawaz's case 1988 SCMR 851 rel.

(g) Administration of justice‑‑‑

‑‑‑Court must base all its findings on the evidence before it and not on mere surmises and conjectures.

Muhammad Hanif Khatana, Addl. A.‑G. for Petitioners.

Zafar Iqbal Chaudhry for Respondents.

Date of hearing: 16th March, 2005.

P L D 2005 Lahore 409

Before Muhammad Nawaz Bhatti, J

MUHAMMAD HAYAT‑‑‑Petitioner

Versus

MEMBER, BOARD OF REVENUE and others‑‑‑Respondents

Writ Petition No. 352 of 1994, decided on 6th April, 2005.

Thal Development Authority Act (XV of 1949)‑‑‑

‑‑‑‑Ss. 30(2) & 50 (1) (XIX)‑‑‑Thal Development Authority (Colonies) (Appeal and Revision) Rules, 1973‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Past and closed transaction‑‑‑Powers of review‑‑‑Scope‑‑‑Disputed land was purchased by original purchasers under Fixed Price Scheme framed under S.30 (2) of Thal Development Authority Act, 1949, on 29.6.1960 but due to non‑deposit of last instalment, the Authorities passed order for resumption of land‑‑‑On appeal by the original purchasers, resumption order was set aside and original purchasers were allowed to deposit last instalment‑‑­Original purchasers could not deposit their last installment within due time, which they deposited on 31‑5‑1977‑‑‑Original purchasers sought condonation of default which was granted by the authorities on 12‑4‑1983‑‑‑After depositing entire sale price, proprietary rights were conferred upon the original purchasers, conveyance deed in their favour was registered and mutation in the names of original purchasers .was attested; thereafter the original purchasers sold the disputed land. to petitioners‑‑‑Order passed by authorities on 12‑4‑1983 was reviewed on 30‑8‑1988 and the land was cancelled‑‑‑Order passed in review jurisdiction was maintained up to Board of Revenue‑‑‑Validity‑‑‑There was no provision either in Thal Development Authority Act, 1949, or in Thal Development Authority (Colonies) (Appeal and Revision) Rules, 1973, which empowered the authorities to review the order passed by their predecessor‑in‑office‑‑‑Authorities did not have any authority to review the order dated 12.4.1983‑‑‑Authorities had no jurisdiction to re­open the past and closed transaction‑‑‑Petitioners‑ were bona fide purchasers and the Authorities had no jurisdiction to rescind the sale­ deed‑‑‑Order passed by the authorities, whereby the . sale was rescinded, was set aside and the sale was restored to petitioners‑‑­Petition was allowed accordingly.

Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94; Province of Punjab through Collector, District Khushab and 2 others v. Malik Ghulam Qasim 1993 CLC 589; Muhammad Hussain v. Member, Board of Revenue. (Colonies) Punjab, Lahore 2004 MLD 1685; Mst. Bakhat Bibi and others v. M.B.R. and others (1984 Law Notes (Multan) 147; Commissioner of Sales Tax (West) Karachi v. Messrs Kruddsons Ltd. PLD 1974 SC 180; Mst. Shah Sultan v. Chief Commissioner and others 2004 CLC 145; Dilawar Husain and others v. DCO Okara 2004 CLC 324; Faisal Afzal Sheikh v. ADJ. and others PLD 2004 LHR 668; M.Munir v. Hafiz M. Rafique 2004 SCMR 1551; M. Shamim v. Mrs. Raheel and others 2004 CLC 1985; Mirza Shahid Baig v. Mst. Lubna " Riaz 2004 CLC 1545; and Malik Abdul Qadir v. Atteeq Ahmad PLD 2004 Kar. 555 ref.

Ch. Abdul Sattar Goraya for Petitioner. .

M.R. Khalid Malik, Addl. A.‑G. for Respondents.

Date of hearing: 9th March, 2005.

P L D 2005 Lahore 416

Before Mian Hamid Farooq and Syed Hamid Ali Shah, JJ

RASHID‑UR‑REHMAN‑‑‑Appellant

Versus

Mian IQBAL HASSAIN‑‑‑Respondent

R.F.A. No.204 of 1999, heard on 15th March, 2005.

(a) Negotiable Instruments Act (XXVI of 1881)‑‑‑--

‑‑‑‑Ss. 4 & 13‑‑‑"Promissory note" ‑‑‑Impugned document, execution whereof though had been admitted by the executant, but promise to pay the sum mentioned in the document, was subject to foregoing the rights of appeal in the litigation‑‑‑Effect‑‑‑Undertaking to pay in the said document being conditional, the Trial Court, had rightly held that the document was not covered within the definition of "promissory note" as contemplated in Ss.4 and 13, Negotiable Instruments Act, 1881.

Mrs. Doreen Barkat Ram v. Abdul Hakim Khan 1974 SCMR 84; Muhammad Yousaf v. Abdul Majid PLD 1993 Lah. 244; Muhammad Rafique v. Muhammad Nawaz 2001 CLC 318 and Bherulal v. Ram Rikh AIR (38) 1951 Ajmer 71 ref.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 28‑‑‑Civil Procedure Code (V of 1908), O.XXXVII, R.2‑‑­Negotiable Instruments Act (XXVI of 1881), S.4‑‑‑Suit for recovery of amount on the basis of promissory note‑ ‑‑Promissory note revealed that the sum was agreed to be paid, to forego the rights in appeal in the litigation‑‑‑Intention of the parties, when the document was executed, was to cause restraint on the payee to pursue the appeal in the litigation was evident from the perusal of evidence which was adduced during the trial‑‑‑Effect‑‑‑Agreement in restraint of legal proceedings was void and suit under O.XXXVII, R.2, C.P.C. was incompetent on such contract‑‑­Agreement which restricted a party, from enforcing his rights under or in respect of such contract by the usual proceedings in the ordinary Tribunals of the country, would, to that extent, be void unless protected by Exceptions to S.28, Contract Act, 1872‑‑‑Document, in the present case being neither a promissory note nor a valid agreement, no suit on the basis of void agreement lay and the Trial Court had rightly dismissed e same.

Mrs. Doreen Barkat Ram v. Abdul Hakim Khan 1974 SCMR 84; Muhammad Yousaf v. Abdul Majid PLD 1993 Lah. 244; Muhammad Rafique v. Muhammad Nawaz 2001 CLC 318 and Bherulal v. Ram Rikh AIR (38) 1951 Ajmer 71 ref.

Ch. Mubasher Nisar Khan for Appellant.

Iftikhar Ullah Malik for Respondent.

Date of hearing: 15th March, 2005.

P L D 2005 Lahore 419

Before Muhammad Sayeed Akhtar, J

Mst. NAZEER BEGUM---Petitioner

Versus

Syed ABID HUSSAIN SHAH and others---Respondent

Civil Revision No. 1103-D of 1998, heard on 4th April, 2005.

Contract Act (IX of 1872)---

----S. 2(e)(h)---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement---Enforceable agreement---Essentials: Offer/proposal, its acceptance and consideration‑‑‑Agreement to sell land, in the present case, showed that offer/proposal was not accepted by the alleged vendee, element of acceptance therefore, was lacking in the agreement to sell; ingredient of consideration was also missing in the agreement as no earnest money had been paid nor any promise to pay the consideration had been made; agreement appeared to be unilateral writing of the vendor and only one marginal witness had been produced to prove the agreement‑‑‑Validity‑‑‑Held, there were three essentials of a contract; offer/proposal, its acceptance and consideration all of which were lacking in the present case‑‑‑Contract would come into existence upon acceptance of the offer/proposal and to have an agreement it was very essential that there should be consideration for the promise‑‑­Agreement to be enforceable as contract under S.2(e)(h), Contract Act, 1872 required signatures of the two parties‑‑‑Suit of the vendor was dismissed in circumstances.

Jatadhari Prasad and others v. Kishun Lai Daruka and others AIR 1950 Patna 535; Mst. Barkat Bibi and others v. Muhammad Rafique and others 1990 SCMR 28; Muhammad Sultan and 9 others v. Noor Muhammad 2000 YLR 3022; Arbab Ali and 4 others through Legal Heirs v. Noor Bakhsh and 4 others 2003 CLC 1670; Sirbaland v. Allah Loke and others 1996 SCMR 575 and Bayer Pakistan (Pvt.) Ltd. and others v. Board of Revenue and others 2002 CLD 823 distinguished.

Ch. Anwar‑ul‑Haq Pannu for Petitioner.

Ch. Abdul Razzaq for Respondents.

Date of hearing: 4th April, 2005.

P L D 2005 Lahore 422

Before Mian Hamid Farooq and Syed Hamid Ali Shah, JJ

Agha MUZAMIL KHAN through General Attorney and 8 others‑‑‑Appellants

Versus

CONSOLIDATION OFFICER, LAHORE and 62 others‑‑‑Respondents

Intra‑Court Appeal No.30 of 2005 in Writ Petition No.6329 of 2000, decided on 18th April, 2005.

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

‑‑‑‑S. 3(2)‑‑‑Constitution' of Pakistan (1973), Art.199‑‑‑West Pakistan Consolidation of Holdings Ordinance (VI of 1960), S.11‑‑‑Intra‑Court appeal ‑‑‑Maintainability‑‑‑Intra‑Court appeal shall not be competent if the application, brought before the High Court under Art. 199 of the Constitution, arose out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review‑‑­Appellant's Constitutional petition, in the present case, arose out of the proceedings of the Consolidation Officer, which the appellant claimed to be illegal‑‑‑Section 11, West Pakistan Consolidation of Holdings Ordinance, 1960 provided for right of appeal to the aggrieved person, in proceedings, out of which the Constitutional petition arose‑‑‑Present intra‑Court appeal, in circumstances, was incompetent and not maintainable‑‑‑Appellant also having no case on merits, High Court dismissed the appeal being not maintainable, incompetent and devoid of merits as well.

Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344; Muhammad Abdullah v. Deputy Settlement Commissioner, Centre‑I, Lahore PLD 1985 SC 107 and Nawazul Haq Chowhan v. The State and others 2003 SCMR.1597 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Factual controversies and disputed questions of facts which could not be decided without recording of evidence, having been raised by the petitioner, High Court, under Art. 199 of the Constitution, could neither enter into such factual controversies nor disputed questions of facts.

Muhammad Younas Khan and 12 others v. Government of N.‑W.F.P. through Secretary Forest and Agriculture, Peshawar and others 1993 SCMR 618; Umar Hayat Khan v. Inayat Ullah But and others 1994 SCMR 572; Muhammad Ali and another v. Government of Sindh through Chief Secretary and 2 others 1986 CLC 1123; Mst. Kaniz Fatima through Legal ,Heirs v. Muhammad Salim and 27 others 2001 SCMR 1493 and Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415 ref.

Syed Afzal Haider and Sh. Muhammad Zafar for Appellants.

Asif Mehmood Cheema, A.A.‑G. for Respondents Nos. 1 and 2.

Muhammad Nasrullah Warraich for Respondents Nos. 4 to 8.

S.M. Masud for Respondents Nos. 9 to 12 and 63.

Aamer Zahoor for Respondents Nos. 15 to 19.

Ch. Abdul Haq for Respondents Nos. 20 to 23, 28, 29 and 31 to 34 and 39.

Hamid Ali Mirza for Legal Heirs of Respondent No.61.

Maqbool Hussain Sheikh for Legal Heirs of Respondents Nos. 53, 54 and 57.

Respondents Nos. 13, 14, 20 to 27 and 30 proceeded ex parte.

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P L D 2005 Lahore 440

Before Asif Saeed Khan Khosa, Ali Nawaz Chowhan and Sardar Muhammad Aslam, JJ

KHAIR-UL-REHMAN and others---Petitioners

Versus

THE STATE and others---Respondents

Criminal Miscellaneous Nos. 1673-B, 8974-B, 6512-B & 1 (in Criminal Appeals Nos. 1521 and 800 of 2004) of 2004, 697-B and 640-B of 2005 and Criminal Appeals Nos. 1527 and 1528 of 2001, decided on 20th May, 2005.

Per Asif Saeed Khan Khosa, J.; Sardar Muhammad Aslam, J. agreeing; Ali Nawaz Chowhan, J. Contra---[Majority view].

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

----S. 2(t)---Poast---What exactly is' called Poast.

In the local parlance Poast is the name given to that part of a poppy plant which has the shape of a basket, sack or pouch and it contains the seeds of such plant. This natural pouch or bulb made of the skin of the plant is meant by the nature to hold and protect the seeds of the plant contained therein. In some. parts of the country this natural pouch of the poppy plant is also known as Doda. The Control of Narcotic Substances Act, 1997 calls this part of a poppy plant as `capsule' of poppy and this finds a specific mention in section 2(t)(ii) of the said Act. If an unripe capsule of a poppy plant is given an incision then a fluid oozes out of the same containing meconic acid and a number of alkaloids including narcotine and morphine which fluid thickens within a short time and becomes brown in colour and such substance is pure opium. Even ripe and dry capsules of poppy contain morphine and other alkaloids, i.e. opium, although less in quantity, which can be used for sedative and narcotic action. Alkaloids can be extracted even from a mature and dry plant of poppy or poppy straw whether it is in its natural shape or is in a crushed form. However, the seeds contained in a capsule of poppy are free from morphine. After its mowing every part of a poppy plant, including its capsule/Poast/Doda but excluding the seeds, is generally called poppy straw and , thus, every Poast/Doda is a part of a poppy straw but all poppy straw may not necessarily be Poast/Doda because poppy straw can be any other part of the mowed poppy plant as well, excluding the seeds.

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

----S. 2(s))(t)(w)(v), 4, 5, 6, 7, 8 & 9---Poast or Doda, being apart of a poppy plant, falls within the definition of "opium" and, therefore, the same has to be treated and accepted as "narcotic drug" for the purpose of S.2(s), Control of Narcotic Substances Act, 1997---"Poast" or "Doda", both in its natural and crushed forms, is a narcotic substance within the purview of the Control of Narcotic Substances Act, 1997---Exceptions--­Principles.

Under section 6 of the Control of Narcotic Substances Act, 1997 possession, etc. of any narcotic drug is culpable. Section 7 of the said Act prohibits import or export, etc. of any narcotic drug and section 8 proscribes trafficking and financing, etc. of any narcotic drug. Section 2(s) of the Control of Narcotic Substances Act, 1997 defines narcotic drug' and according to the said definition narcotic drug includesopium' and poppy straw'. Section 2(t) of the Control of Narcotic Substances Act, 1997 definesopium' and according to section 2(t)(i) opium' means "poppy straw" that is to say all parts of poppy plant (Papaver Somniferum or any other species of Papaver) after mowing, not being seeds".. Poast or Doda is a part of a poppy plant and, thus, there is-no difficulty in concluding that in view of the provisions of section 2(t)(i) of the Control of Narcotic Substances Act, 1997 Poast or Doda, being a part of a poppy plant, falls within the definition ofopium' and, therefore, the same has to be treated and accepted as narcotic drug' for the purposes cat section 2(s) of that Act. It may be true that section 2(t)(i) also speaks of poppy straw and according to the definition ofpoppy straw' contained in section 2(w) read with section 2(v) only poppy plant of the species Papaver Somniferum L is relevant to the definition of poppy straw but at the same time it is equally true that section 2(t)(i) expressly travels beyond the definition of poppy straw contained in section 2(w) read with section 2(v) and consciously extends the definition of opium' to all parts of a poppy plant whether such plant is of the species known as Papaver Sonmiferum or is of any other species of Papaver. This clearly demonstrates the legislative intent that the specification of poppy plant contained in section 2(w) read with section 2(v) is not relevant for the purposes of the definition ofopium'. Section 2(t)(i) has a larger sway than the limited scope of section 2(w) read with section 2(v) and it may well be that the two are intended to cater for different situations or purposes. It appears that section 2(w) and section 2(v) have relevance to sections 4 and 5 of the said Act and not to the definition of opium' contained in section 2(t) thereof. Sections 2(w) and 2(v) speak ofopium poppy' and section 4 also expressly speaks of opium poppy' and not just its cultivation but also gathering any portion of it. Gathering of portions of opium poppy is nothing but gathering of poppy straw and this is why sections 2(w) and 2(v) speak of poppy straw with reference to opium poppy only. The legislature appears to be quite conscious of the definition ofpoppy straw' contained in section 2(w) read with section 2(v) but for the purposes of defining opium' the legislature wanted to go beyond the scope of the provisions of section 2(w) and section 2(v). The expanse and all encompassing character of the provisions of section 2(t)(i) of the Control of Narcotic Substances Act, 1997 leave no doubt that the legislature evidently intended that Poast or Doda of all poppy plants of whichever species is to be treated asnarcotic drug'.

As per the provisions of section 2(t)(i) of the Control of Narcotic Substances Act, 1997, all poppy straw i.e. all parts of a poppy plant, including Poast or Doda, of whichever species qualifies as opium' and opium is anarcotic drug'. There are, however, two exceptions to this, i.e. firstly, the seeds of a poppy plant are not included in the definition of opium' or even in the definition ofpoppy straw' and, secondly, a part of a poppy plant can be called opium' orpoppy straw' and hence narcotic drug' only after it has been mowed and not before that stage. This is evident from the plain language of sections 2(t)(i) and 2(w) itself and the reasons for the same are quite obvious. The seeds of a poppy plant do not contain morphine. Apart from that if the seeds of a poppy plant cannot be possessed then there would be no future crops of poppy to be sown and, thus, the permissible medical, scientific or industrial uses of such crops would be rendered to an impossibility. The provisions of sections 2(t)(i) and 2(w) clearly manifest that even Poast or Doda of a poppy plant may not by itself be offensive as long as juice is not extracted from it or as long as it is not mowed. The juice extracted from such un-mowed Poast or Doda may attract the definition ofopium' contained in section 2(t)(ii) but such un-mowed Poast or Doda is not by itself, hit by the definition of opium'. However, after its mowing, Poast or Doda, like all other parts of the poppy plant excluding the seeds, falls in the general category of poppy straw and squarely attracts the definition ofopium' contained in section 2(t)(i).

Section 4 of the Control of Narcotic Substances Act, 1997 shows that every crop of poppy is not prohibited as far as its cultivation is concerned. Cultivation of that poppy plant is prohibited which can be termed as `opium poppy'. Apart from cannabis plant and coca bush it is only opium poppy which is a narcotic plant and any other kind of poppy plant is not a narcotic plant. The reason for this appears to be that poppy plants of other species can be used for medical, scientific or industrial purposes under a valid licence to be issued by the competent authorities. If after mowing of such permitted crop of poppy plants no valid licence is possessed for its possession then such possession becomes culpable under section 6 of the Act as all parts of such plants, except seeds, otherwise qualify as opium after mowing. Cultivation of a prohibited crop is an offence under section 4 and is punishable under section 5 and the same is different from an offence of possession under section 6 which is punishable under section 9. A cultivator and a possessor may or may not be the same person. Thus, nothing turns on the difference between punishments under sections 5 and 9. One relates to an offence before mowing and the other deals with possession after mowing. There is nothing in the Act which prohibits punishment of a person for both the said separate offences. Prohibition against cultivation is intended to nip the evil in the bud and to stop the poison from being produced whereas prohibition against possession is meant to stop the poison from spreading after it has already taken effect. The difference in punishments in these respects is, thus, quite understandable.

Poast or Doda, both in its natural and crushed forms, is a narcotic substance within the purview of the Control of Narcotic Substances Act, 1997.

Farhad Ali v. State 2003 MLD 1475; Inayat-ur-Rehman v. The State 1998 MLD 323; The New Oxford Encyclopedic Dictionary published by Oxford University Press; Parikh's Text Book of Medical Jurisprudence and Toxicology authored by Dr. C.K. Parikh and published by CBS Publishers and Distributors in 1996; Modi's Text ­Book of Medical Jurisprudence and Toxicology, Pakistan Edition published by Shan Book Corporation, Lahore, Pakistan; Lyon's Medical Jurisprudence for India published by Law Publishers (India) Pvt. Ltd. Allahabad, India in 1988; A Modern Herbal authored by Mrs. C.F. Leyel and published by Tiger Books International, London, U.K. in 1992; Medicinal and Poisonous Plants of Pakistan authored by Syed Riaz Baquar and published by Printas, Karachi, Pakistan in 1989; Herbs & Other Medicinal Plants published by Galley Press; Medical Jurisprudence of Toxicology authored by H.W.V. Cox and published by The Law Book Company (P) Ltd.,. Allahabad, India in 1995; Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Government of N.-W.F.P. v. Muhammad Irshad and 3 others PLD 1995 SC 281; Ibtadai Muashariat authored by Dr. Abdul Hameed Malik and published by Standard Book House, Urdu Bazar, Lahore, Pakistan; Economic Botany: A Textbook of Useful Plants and Plant Products authored by Albert F. Hill and published by Tata McGraw-Hill Publishing Company, Ltd. New Delhi, India; Feeds and Feeding: A Handbook for the Student and Stockman authored by Frank B. Morrison and published by the Morrison Publishing Company, Clinton, Iowa, U.S.A. in 1959; The Medicinal and Poisonous Plants of India authored by Rev. Fr. Jean Ferdinand Caius and published by Scientific Publishers, Jodhpur, India in 1986; A Textbook of Pharmacology authored, by George Edward Trease and published by Bailliere, Tindall and Cox, London, U.K. in 1949; Textbook of Pharmacognosy authored by T.E. Wallis and published by CBS Publishers and Distributors, Delhi, India; Pharmacognosy authored by Varro E. Tyler, Lynn R. Brady and James E. Robbers and published by Lea & Febiger, Philadelphia, U.S.A. in 1976; Commentaries on Narcotic Drugs and Psychotropic Substances Act, 1985 authored by Kaushalendra Kumar and published by Eastern Book Company, Lucknow, India; Trease and Evans' Pharmacognosy authored by William Charles Evans and Published by W.B. Saunders Company Ltd., London, U.K.; Solvex (Pakistan) Ltd. V. Market Committee Multan and 2 others 1999 CLC 49; Mian Ahmed Saeed and others v. Election Tribunal for Kasur at Okara and others 2003 SCMR 1611; Yousaf Muneer Shaikh and others v. Election Commission of Pakistan and others 2005 CLC 123; Pakistan Textile Mill-Owners Association, Karachi and 2 others v. Administrator of Karachi and 2 others PLD 1963 SC 137; Malhar v. Government of Sindh and others 2005 CLC 285; Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213; Padmasundara Rao and others v. State of T.N. and others AIR 2002 SC 1334; Director Industries, Government of N.-W.F.P. Peshawar v. Messrs Nowshera. Engineering Company Limited and 4 others 2002 SCMR 1747; Collector of Central Excise and Sales Tax v. Rupali Polyester Limited and others 2002 SCMR 738; Mrs. Benazir Bhutto and another v. Federation of Pakistan and another PLD 1989 SC 66; Northern Bottling Co. (Pvt.) Limited, Peshawar v. Federation of Pakistan and 2 others 2004 PTD 2267; Federation of Pakistan and others v. Shaukat Ali Mian and others PLD 1999 SC 1026; Kitabistan's Standard Dictionary published by Kitabistan Publishing Company, Lahore, Pakistan; Terminology and Information on Drugs published by the United Nations International Drug Control Programme; United Nations Single Convention on Narcotic Drugs, 1961; The United Nations and Drug Control; The United Nations and Drug Abuse Control; Drugs of Abuse published by the United States Department of Justice, Drug Enforcement Administration; Cocaine, Opium, Marijuana published by the United States Department of Justice, Drug Enforcement Administration; A Textbook of Pharmacognosy authored by Youngken; Pharmacognosy authored by Varro E. Tyler; Philadelphia, U.S.A. in 1981; Pharmacognosy authored by George Edward Trease and William Charles Evans and published by Bailliere Tindall, London, U.K.; UNODC Bulletin on Narcotics; INCB Report, 1997 published by United Nations Information Service; Hungarian Extraction of Alkaloids from Poppy Straw; Poppy Straw and International Narcotics Control and UNODC Draft Single Convention: Control of Poppy Straw ref.

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

----Ss. 2(t) & 76---Opium Act (I of 1878), S.2(i)---Dangerous Drugs Act (II of 1930), S.2(e)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Schedule---Control of Narcotic Substances Ordinance (VI of 1995), S.2(r)---"Opium"---Definition of "opium" contained in the earlier laws had been altered and the words "from which narcotics can be extracted" have been omitted by the Legislature in S.2(t)(i) of the Control of Narcotic Substances Act, 1997---Section 76, Control, of Narcotic Substances Act, 1997 gives the provisions of the said Act an overriding effect over all other laws for the time being in force and therefore, the earlier definitions of "opium" contained in the earlier laws are not relevant for the purposes---Preamble to the Control of Narcotic Substances Act, 1997 confirms the fact that through the said legislation the legislature intended to consolidate and "amend" the earlier laws holding the field in respect of narcotic substances---Principles.

"Opium" had been defined by section 3(i) of the Opium Act, 1878 as "poppy straw, that is to say, all parts of poppy plant (Papaver somniferum or any other species of Papaver) after mowing, not being seeds, from which narcotics can be extracted". The same definition of opium' had been employed by the legislature in section 2(e) of the Dangerous Drugs Act, 1930, Schedule appended with the Prohibition (Enforcement of Hadd) Order, 1979 and section 2(r) of the Control of Narcotic Substances Ordinance, 1995. In section 2(t)(i) of the Control of Narcotic Substances Act, 1997 the above mentioned definition ofopium' contained in the earlier law hart been altered and the words "from which narcotics can be extracted" had been omitted by the legislature. Section 76 of the Control of Narcotic Substances Act, 1997 gives the provisions of the said Act an overriding effect over all other laws for the time being in force and, therefore, the earlier definitions of opium' contained in the earlier laws are not relevant for the present purposes. This factor strengthens the conclusion that now all kinds of poppy plant attract the definition ofopium'. Omission of the words "from which narcotics can be extracted" in section 2(t)(i) of the Act of 1997 is nothing but a conscious omission by the legislature and the same unmistakably points towards the intention of the legislature in that regard. The Preamble to the Control of Narcotic Substances Act, 1997 confirms the fact that through this new legislation the legislature intended to consolidate and "amend" the earlier laws holding the field in respect of narcotic substances. Court cannot supply the omission by changing the present definition of opium' and to undo what the legislature consciously wanted to achieve. Task of the Court for the present purposes is only to understand the legislative intent vis-a-vis the present definition, interpret it and to give effect to it. It has been contended that the present definition ofopium' omits some words used in the definition of opium' contained in the above mentioned earlier laws and such omission is attributable to an oversight of the draftsman of the present law. Such an assertion is nothing but misconceived as the present definition ofopium' has been enacted not by a draftsman but by both the Houses of Parliament presumably after due consideration of every word of the proposed legislation. Such an assertion wants to understand, and that too without any basis, that the Members of the Parliament had passed this legislation without due scrutiny of the same. Such view cannot be subscribed which attributes thoughtlessness to the Parliament. Traditions of judicial interpretation are quite well-entrenched in the country and according to the same, counterparts in the other civilized and democratic countries, are to attribute wisdom to the legislature and not thoughtlessness or ignorance.

(d) Interpretation of statutes--

---- Legislature cannot be attributed thoughtlessness.

(e) Interpretation of statutes--

---- Court cannot supply the omission by changing the definition in a statute and to undo what the legislature consciously wanted to achieve--­Task of the Court is to understand the legislative intent vis-a-vis the definition, interpret it and to give effect to it.

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

----Ss. 2(t)(i)(ii)(iii) & 3---"Poast" or "Doda" by itself cannot be termed as a "mixture" or "liquid preparation" for the purposes of S.2(t)(iii) or S.3 of the Act, and therefore, in a case of recovery of "Poast" or "Doda" no ascertainment by a chemical examiner is required regarding quantity of morphine, etc. available in such "Poast" or "Doda"--­Principles.

The provisions of section 2(t) of the Control of Narcotic Substances Act, 1997 show that clause (t)(i) deals with the parts of a poppy plant in their natural or crushed forms, clause (t)(ii) deals with unmanipulated juice oozing out of or extracted from the capsule of such plant and clause (t)(iii) deals with a mixture' prepared from the above mentioned two forms of" opium. The said provisions unambiguously show that the question of percentage of morphine is relevant only to the case of a mixture referred to in clause (t)(iii) of section 2 of the said Act and such a question has no relevance to opium in the form of parts of the poppy plant or in the form of juice of the capsules of poppy. Section 3 of the said Act is confined toliquid preparations' only and refers to calculation of percentages only in the context of such liquid preparations. Poast or Doda by themselves cannot be termed as a mixture' orliquid preparation' for the purposes of section 2(t)(iii) or section 3 and, therefore, in a case of recovery of Poast or Doda no ascertainment by a Chemical Examiner is required regarding quantity of morphine, etc. available in such Poast or Doda.

(g) Vires of a statute---

---Vires or propriety of a law cannot be assailed though collateral proceedings.

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

----Preamble---Interpretation of different provisions of the Control of Narcotic Substances Act; 1997 appears to some to be somewhat harsh or stringent but the same is in consonance with the spirit of the said law--­Said law is not an ordinary law as the menace that it purports to curb is not common place and the criminals who induldge in it are not of normal type---Mischief sought to be suppressed by this law is not just a crime against a human being but a crime against the humanity and, therefore, a response to the same has to be aggressive and punitive rather than benign and curative---Individual subjected to the rigours of this law may sometimes suffer disproportionately but the greater good of the society emerging from stringent application of this law may make this approach worth its white.

Nazar Hussain v. The State 2002 PCr.LJ 440 quoted.

Per Ali Nawaz Chowhan, J. Contra-[Minority view]---

Dr. Bonham's case in 1610; Muhammad Shafi v. DSP PLD 1992 Lah. 178; St. Aubyn v. A.G. 1952 AC 15; I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041 and Surah Al-Asar translated by Abdullah Yousaf Ali ref.

Per Sardar Muhammad Aslam, J., agreeing with Asif Saeed Khan Khosa, J.

Gauhar Razzaq Awan for Petitioner (in Criminal Miscellaneous No. 1673-B of 2004).

Ms. Nighat Saeed Mughal for Petitioner (in Criminal Miscellaneous No.697-B of 2005).

Bashir Ahmad Qureshi for Petitioner (in Criminal Miscellaneous No.8974-B of 2004).

Burhan Moazzam Malik for Petitioner (in Criminal Miscellaneous No.6512-B of 2004).

Aftab Ahmad Bajwa for Petitioner (in Criminal Miscellaneous No.640-B of 2005).

Aftab Ahmad Bajwa for Petitioner-Appellant (in Criminal Miscellaneous No. 1 of 2004 in Criminal Appeal No. 1521 of 2004).

Mudassar Abbas Maghiana for Petitioner-Appellant (in Criminal Miscellaneous No. 1 of 2004 in Criminal Appeal No. 800 of 2004).

Sardar Muhammad Latif Khan Khosa for Appellants (in Criminal Appeal No. 1527 of 2001 and Criminal Appeal No. 1528 of 2001).

Malik Waqar Salim, Deputy Attorney-General for Pakistan.

Muhammad Sharif, Special Prosecutor for Anti-Narcotics Force with Ayaz Ali Khan, Deputy Director (Pharmacist), Anti-Narcotics Force, Punjab for Respondents.

Muhammad Hanif Khatana, Addl. A.-G., Punjab for Respondents.

Dates of hearing: 27th April, 2nd, 3rd and 9th May, 2005.

P L D 2005 Lahore 470

Before Iftikhar Hussain Chaudhry, C. J., Asif Saeed Khan Khosa and Sheikh Abdul Rashid, JJ

KHIZER HAYAT and others---Petitioners

Versus

INSPECTOR-GENERAL OF POLICE (PUNJAB), LAHORE and others---Respondents

Writ Petitions Nos. 11862, 14415, 17169 and 16453 of 2004, decided on 1st June, 2005.

(a) Criminal Procedure Code (V of1898)---

----Ss. 22, 22-A, 22-B & 25---Justices of the Peace---Historical and global perspective in respect of the role of a Justice of the Peace in keeping the peace in the society, if any, surveyed.

Justice of the Peace, as the name' itself suggests, was an institution conceived and conjured up centuries ago mainly to assist the police and the other law enforcing agencies in maintaining peace in the society but over the last many centuries this concept has witnessed many developments, and variations in different parts of the world. In some countries the role of a Justice of the Peace is still restricted to an administrative function and relevant only till a stage when a crime is not yet committed or where it has been committed and not yet reported to the police and not beyond that stage but in others the role of a Justice of the Peace has been enlarged and extended to exercise of some judicial and other powers including trial of petty offences and trifling civil disputes as well.

The concept of a Justice of the Peace has evolved and developed over the last many centuries; it had originated in England and had been introduced by the British colonists in some of their colonies; the original role of a Justice of the Peace was conservation of the peace within the area of his jurisdiction through administrative and ministerial measures but gradually his role was enlarged in some countries to include a minor judicial role qua summary trial of petty civil and criminal cases; and every enlargement of his role had been achieved through express legislation. It is quite clear that beyond the express authority, both administrative and judicial, conferred upon him by a statute a Justice of the Peace does not possess any implied or inherent jurisdiction to dispense justice among the people in his local area.

During their rule over the Indo-Pak sub-continent the British colonists had also introduced the concept of Justices of the Peace in the local system of governance and conservation of the peace. However, with almost simultaneous introduction of .an elaborate system of hierarchy of Magistrates the role of Justices of the Peace never assumed any significant importance in the Indo-Pak sub-continent and Justices of the Peace were never conferred any judicial power. Although since their original induction in the system some additional powers have been bestowed upon Justices of the Peace from time to time yet their role essentially remains restricted so far to conservation of the peace and in case of breach of the peace their role ends by apprehending the culprit, if possible, and by reporting the breach of the peace to the police. It can, thus, be observed without any fear of contradiction that at least in the context of Pakistan the role of a Justice of the Peace at the present juncture in Pakistan history is primarily of rendering assistance to the police in the matters of keeping the peace and, in case of breach of the peace, apprehending the culprit and rendering assistance to the police in investigation of the crime. On November 21, 2002 ex-officio Justices of the Peace in Pakistan were conferred an additional role through promulgation of the Criminal Procedure (Third Amendment) Ordinance (Federal Ordinance No. CXXXI) of 2002 and this role was in respect of entertaining complaints and issuance of appropriate directions to the police authorities concerned regarding registration of criminal cases, transfer of investigation of criminal cases and in respect of neglect, failure or excess committed by a police authority in relation to its functions and duties. These and other roles of a Justice of the Peace and an ex-officio Justice of the Peace in Pakistan are evident from provisions of Ss.22, 22-A and 22-B of the Code of Criminal Procedure, 1898.

Halsbury's Laws of England 4th Edn., Vol.29; Jowitt's Dictionary of English Law 2nd Edn., Vol. 1; Encyclopaedia Britannica, Vol. 13; The New Encyclopaedia Britannica 15th Edn., Vol. 6; Corpus Juris Secundum Vol. 51; The Encyclopaedia Americana (International Edn.); American Jurisprudence 2nd Edn., Vol. 47; Words and Phrases (Permanent Edn.); Grolier Encyclopaedia of Knowledge; Collier's Encyclopedia Vol. 13; The Law Lexicon of British India; Venkataramaiya's Law Lexicon with Legal Maxims, 2nd Edn; K.J. Aiyar's Judicial Dictionary, 11th Edn.; Law Terms and Phrases Judicially Interpreted with Legal Maxims and Legal Words and Phrases in Ordinary Usage; Hand Bhook of Legal Terms and Phrases by M. Ilyas Khan and Words and Phrases Legally defined 2nd Edn. ref.

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

----Ss. 22, 22-A, 22-B & 25---Justice of the peace/ex-officio Justice of the Peace---Role statutorily defined in Pakistan for a Justice of the Peach/ex-officio Justice of the Peace, detailed.

Provisions of Ss.22, 22-A, 22-B and 25 of the Code of Criminal Procedure, 1898 show that the roles statutorily defined in Pakistan for a Justice of the Peace are, by and large, as follows:

A Justice of the Peace in Pakistan has the powers

(a) to make an arrest in circumstances enumerated in sections 54 and 55, Cr.P.C. and to hand over custody of the arrested person to the officer in charge of the nearest Police Station;

(b) to call upon any member of the police force on duty to aid him in arresting or preventing the escape of a person involved in commission of a cognizable offence;

(c) to call upon any member of the police force on duty to aid him in the prevention of crime, breach of the peace or disturbance of the public tranquility; and

(d) to issue a certificate of identification of a person, to verify any document and to attest any document.

An ex-officio Justice of the Peace in Pakistan (i.e., Sessions Judges and nominated Additional Sessions Judges in the relevant Districts under section 25, Cr.P.C.) has the power to issue appropriate directions, to the police authorities concerned on a complaint regarding non-registration of criminal case, transfer of investigation from one police officer to another and neglect, failure or excess committed by a police authority in relation to its functions and duties.

The duties of a Justice of the Peace in Pakistan are

(a) to make inquiries and- to report in writing to the nearest Magistrate and to the officer in charge of the nearest police station whenever he receives information of an occurrence of any incident involving a breach of the peace or of commission of any offence within his local area;

(b) if the information received by him is in respect of commission of a cognizable offence then to also prevent any interference with the place of occurrence or removal of anything therefrom;

(c) to render assistance to a police officer,, if so required in writing by him, making an investigation in respect of any offence within the relevant local area; and

(d) to record any statement, if so required in writing by a police officer making an investigation in respect of any offence within the relevant local area, made under expectation of death by a person in respect of whom a crime is believed to have been committed.

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

----Ss. 22, 22-A & 22-B---Justice of the Peace---Functions to be performed---Nature---Powers and duties of a Justice of the Peace or an ex-officio Justice of the Peace in Pakistan as provided in Ss.22-A & 22-B, Cr.P.C. do not involve any jurisdiction which can be termed as judicial in nature or character---Functions to be performed by a Justice of the Peace or an ex-officio Justice of the Peace are merely administrative and ministerial in nature and character---Principles.

The powers and duties of a Justice of the Peace or an ex-officio Justice of the Peace in Pakistan as provided in sections 22-A and 22-B, Cr.P.C. do not involve any jurisdiction which can be termed as judicial in nature or character. In this context the role of a Justice of the Peace or an ex-officio Justice of the Peace in Pakistan is sharply different from that now enjoyed by their counterparts in the United Kingdom and the United States of America where some . judicial role regarding summary trial of petty 'civil and criminal cases has been conferred upon the Justices of the Peace through legislative intervention. That surely is not the case in Pakistan where no statute confers any judicial power upon a Justice of the Peace or an ex-officio Justice of the Peace. Functions to be performed by a Justice of the Peace or an ex-officio Justice of the Peace in Pakistan are merely administrative and ministerial in nature and character. Such view is fortified by, the provisions of section 6, Cr.P.C. which categorizes the classes of criminal courts and Magistrates in Pakistan and a Justice of the Peace or an ex-officio Justice of the Peace is not included in any such class of courts or Magistrates. Apart from that sections 28 and 29, Cr.P.C. specify as to which Courts are to try which offences and in those, sections too a Justice of the Peace or an ex­-officio Justice of the Peace does not figure at all.

Pir Abdul Qayyum Shah v. S.H.O. and 4 others 2005 PCr.LJ 357 ref.

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

----Ss. 22-A(6) & 25---Justice of the Peace/ex-officio Justice of the Peace---Extent and scope of direct interference by an ex-officio Justice of the Peace under S.22-A(6), Cr.P.C. explored.

A Justice of the Peace or an ex-officio Justice of the Peace in Pakistan performs functions which art administrative and ministerial in nature and not judicial in character. Even the superior Courts of Pakistan having constitutional, legal, supervisory and inherent judicial jurisdiction have consistently and consciously refrained from directly interfering with investigation of a criminal case by the police and, therefore, it is but obvious that Justices of the Peace or ex-officio Justices of the Peace possessing only administrative and ministerial powers should be twice shy of such direct interference.

Thus, if despite possessing constitutional, legal, supervisory and inherent judicial powers the superior Courts of Pakistan have generally considered it imprudent and ill-advised to directly interfere with investigation of a crime by the police then it appears to be nothing but stating the obvious that a Justice of the Peace or an ex-officio Justice of the Peace possessing merely administrative and ministerial powers should all the more be reluctant and hesitant in issuing directions to the police as to how and by whom a criminal case is to be investigated. It must not be lost sight of that a Justice of the Peace in Pakistan has no judicial powers and an ex-officio Justice of the Peace is a Justice of the Peace only by virtue of the office that he already holds and his powers as such do not become judicial simply because the other office already held by him happens to be a judicial office. By virtue of his jurisdiction under section 22-A(6), Cr.P.C. an ex-officio Justice of the Peace can issue appropriate directions to the police authorities concerned on the basis of complaints regarding non-registration of a criminal case, transfer of investigation from one police officer to another and neglect, failure or excess committed by a police authority in relation to its functions and duties but the directions to be issued by an ex-officio Justice of the Peace under section 22-A(6), Cr.P.C. are to be directions to the concerned police authorities to attend to the grievance of the complaining person in accordance with the relevant law and through the jurisdiction under section 22-A(6), Cr.P.C. An ex-officio Justice of the Peace cannot arrogate to himself the power of redressing the actual grievance itself. An exception to this can be visualized in cases of a clear legal obligation on the part of a police officer to act in a particular manner in which situation a direction may be issued by an ex-officio Justice of the Peace to the concerned police officer to do the needful. Under section 22-A(6), Cr.P.C. an ex-officio Justice of the Peace is to perform the role of a facilitator and that of a bridge or a conduit between the complaining persons and the police authorities concerned and the jurisdiction under section 22-A(6), Cr.P.C. does not allow an ex-officio Justice of the Peace to put on the mantle of a higher police authority himself and to start exercising all those executive powers himself which the relevant law has vested in the concerned- police authorities. This interpretation appears to be a correct statement of the law as the same is in accord with the ratio decidendi of the precedent cases besides being a safe and prudent approach vis-a-vis the well-entrenched constitutional doctrine of separation of powers. If in their capacity as ex-officio Justices of the Peace judicial officers like Sessions Judges and Additional Sessions Judges are allowed to play a proactive, hands on and upbeat role of direct interference in the administrative working of the police then such executive role of judicial officers may militate against the constitutional mandate of separation of the Judiciary from the. Executive enshrined in Article 175(3) of the Constitution of the Islamic Republic of Pakistan, 1973. In that eventuality the provisions of section 22-A(6), Cr.P.C. may themselves become vulnerable to a serious challenge on the touchstone of the Constitution.

Emperor v. Khwaja Nazir Ahmad AIR (32) 1945 PC 18; Federation of Pakistan v. Shah Muhammad Khan and others PLD 1960 SC (Pak) 85; Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677; Muhammad Saeed Azhar v. Martial Law Administration, Punjab and others 1979 SCMR 484; Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others PLD 1994 SC 281; Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142; Anwar Ahmad Khan v. The State and another 1996 SCMR 24; Muhammad Latif v. Sharifan Bibi and another 1998 SCMR 666; Muhammad Ali and 12 others v. District Magistrate, Faisalabad and 3 others PLD 1978 Lah. 1325.; Nasir Ali Inspector-General of Police, `Punjab, Lahore and 8 others 2000 YLR 225 ref.

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

----S. 22-A(6)---General complaints in the context of criminal justice, against the working of the Police in the Province of Punjab and kind of "directions" can/should an ex-officio Justice of the Peace issue in respect of such complaints while exercising his jurisdiction under S.22-A(6), Cr.P.C.---High Court, for facility of cognition and for guidance of the ex-officio Justice of the Peace in the Province of Punjab recorded resume and conclusions on the subject.

High Court had framed the following questions and had required the counsel for the parties to address arguments in respect of the same so as to assist the Court in arriving at an appropriate decision:

(a) Looked at in historical and global perspective what is the role of a Justice of the Peace in keeping the peace in the society, in maintenance of law and order and in the criminal justice system, if any?

(b) Whether in .Pakistan a Justice .of the Peace or an ex-officio Justice of the Peace exercises judicial powers or his functions are merely administrative and ministerial in nature and character?

(c) What, in the context of-his jurisdiction under section 22-A(6), Cr.P.C., is the extent and scope of direct interference by an ex-officio Justice of the Peace in Pakistan with investigation of a criminal case by the police?

(d) What, in the framework of criminal justice, are the general complaints against the working of the police in the Province of the Punjab and what kind of "directions" can/should an ex-officio Justice of the Peace issue in respect of such complaints while exercising his jurisdiction under section 22-A(6), Cr.P.C.?

(e) What are the remedies against non-compliance of directions issued by an ex-officio Justice of the Peace under section 22-A(6), Cr.P.C.?

(f) Whether the orders passed by different ex-officio Justices of the Peace impugned through the present and the connected writ petitions are legally sustainable or not?

Generally the public at large brings the following kinds of complaints against the police before the High Court while invoking writ jurisdiction of High Court under Article 199 of the Constitution and now similar complaints are being brought before ex-officio Justices of the Peace by filing petitions under section 22-A(6), Cr.P.C.:

(i) complaints about unjustified harassment by the police in the absence of any criminal case having been registered against the aggrieved person;

(ii) complaints regarding failure of the police to register a criminal case despite commission of a cognizable offence having been reported to it;

(iii) complaints pertaining to failure by the investigating officer to add appropriate penal provisions to an FIR or a cross-version of the accused party;

(iv) complaints about failure by the investigating officer to record a cross-version of the accused party;

(v) complaints regarding failure to arrest an accused person nominated in the FIR or in the cross-version of the accused party;

(vi) complaints pertaining to unfair, biased and improper investigation and, thus, seeking transfer of the investigation; and

(vii), complaints about failure to finalize investigation of a criminal case and to submit a Challan within a reasonable time.

High Court adverted to each one of such complaints one by one so as to examine what kind of directions can/should be issued by an ex ­officio Justice of the Peace under section 22-A(6), Cr.P.C. in respect of such complaints. While exercising its constitutional jurisdiction regarding judicial review of administrative action a High Court is not to substitute its own decision for that of the competent authority and that, after stating the correct legal position, the High Court is to issue a direction to the competent authority to pass an appropriate order in terms of the legal position so declared. Likewise, except in cases of a clear legal obligation on the part of a police officer to act in a particular manner in which situation a direction may be issued by an ex-officio Justice of the Peace to the concerned police officer to do the needful, it would be inappropriate to the verge of being illegal for an, ex-officio Justice of the Peace to issue directions to the police arrogating to himself the role of a supervisor or superintendent- of the police in the matter of actual investigation of a crime. While exercising his jurisdiction under section 22-A(6), Cr.P.C. an ex-officio Justice of the Peace is only to activate the available legal remedy or procedure so that the grievance of the complaining person can be attended to and redressed, if found genuine; by the competent authority of the police. In this view of the matter if an ex-officio Justice of the Peace can issue the desired direction under section 22-A(6), Cr.P.C. activating the available legal remedy or procedure which the High Court would also have done if seized of a writ petition filed in that regard under Article 199 of the Constitution then the remedy before an ex-officio Justice of the Peace under section 22-A(6), Cr.P.C. can ordinarily be termed and accepted as an adequate alternate statutory remedy busting a direct recourse by an aggrieved person to the High Court by invoking its extraordinary jurisdiction under Article 199 of the Constitution. - It is, therefore, declared that in the matters of complaints against the working of the police covered by the provisions of section 22-A(6), Cr.P.C. an aggrieved person, except where the High Court feels satisfied that it is an exceptional case arising out of extraordinary circumstances warranting direct interference by the High Court and rendering the remedy under section 22-A(6), Cr.P.C. inadequate, cannot tile a writ petition before this Court under Article 199. of the Constitution before availing of the normally adequate alternate statutory remedy before an ex-officio Justice of the Peace under section 22-A(6), Cr.P.C.

For facility, of cognition and for guidance of the ex-officio Justices of the Peace in the Province of the Punjab the discussion is summed up with the following resume and conclusions:

(i) The powers and dudes of a Justice of the Peace or an ex-officio Justice of the Peace in Pakistan stand specified in sections 22-A and 22-B, Cr.P.C. and they possess no other additional power and perform no other additional duty except that which is specifically conferred upon them by a statute.

(ii) The powers and duties of a Justice of the Peace or an ex-officio Justice of the Peace in Pakistan do not involve any jurisdiction which can be termed as judicial and the functions performed by him are merely administrative and ministerial in nature and character.

(iii) The superior Courts of Pakistan having constitutional, legal, supervisory, and inherent judicial jurisdiction have consistently and consciously refrained from directly interfering with investigation of a criminal case by the police and, therefore, Justices of the Peace or ex-­officio Justices of the Peace possessing only administrative and ministerial powers should be twice shy of such direct interference.

(iv) The directions to be issued by an ex-officio Justice of the Peace under section 22-A(6), Cr.P.C. are to be directions to the concerned police authorities to attend to the .grievance of the complaining person in accordance with the relevant law and through the jurisdiction under section 22-A(6), Cr.P.C. An ex-officio Justice of the Peace cannot arrogate to himself the power of redressing the actual grievance itself. An exception to this is a case of a clear legal obligation on the part of a police officer to act in a particular manner in which situation a direction may be issued by an ex-officio Justice of the Peace to the concerned police officer to do the needful. Under section 22-A(6), Cr.P.C. an ex­officio Justice of the Peace is to perform the role of a facilitator and that of a bridge or a conduit between the complaining persons and the police authorities concerned and the jurisdiction under section 22-A(6), Cr.P.C. does not allow an ex-officio justice of the Peace to put on the mantle of a higher police authority himself and to start exercising all those executive powers 1oimself which the relevant. law has vested in the concerned police authorities.

(v) Barring exceptional and extraordinary cases, the remedy before an ex-officio Justice of the Peace under section 22-A(6), Cr.P.C. can ordinarily be termed and accepted as an. adequate alternate statutory remedy ousting a direct recourse by an aggrieved person to the High Court by invoking its -extraordinary jurisdiction under Article 199 of the Constitution.

(vi) The proceedings before an, ex-officio Justice of the Peace under section 22-A(6), Cr.P.C. are essentially summary in character. He is not required to treat such proceedings as regular lis and no elaborate orders having semblance of a judgment are required to be passed.

(vii) In such proceedings notice, if required, may be issued only to the concerned police officer and not to any private party as no direction adverse to any private party is to be issued in such proceedings. A direction to the relevant police officer regarding activating any legal remedy of the complaining person cannot be termed as a direction adverse to any party. Even a direction to a police officer to comply with a mandatory provision of law cannot be called a direction adverse to any person. Under Articles 4 and 5 of the Constitution it is an inalienable right of every citizen to be treated in accordance with the law and obedience to the law is an inviolable obligation of every citizen.

(viii) Complaints about unjustified harassment by the police.--A complaint before an ex-officio Justice of the Peace under section 22-A(6), Cr.P.C. which does not contain all the necessary factual details regarding the date, time and place of the alleged harassment as well as full particulars of the concerned police officer who is being complained against is to be out-rightly dismissed. In an appropriate complaint of this nature the ex-officio Justice of the Peace may require the concerned police officer to submit his comments to the complaint. If through his comments the relevant police officer fails to satisfy the ex-officio Justice of the Peace regarding falsity of the allegations leveled against him then the ex-officio Justice of the Peace may, depending upon the circumstances of the case, either warn the relevant police officer not to transgress the limits of the law in future or may issue a direction to the relevant higher police authority or the relevant Public Safety and Police Complaints Commission to consider the complaint and to take appropriate action against the delinquent police officer under the relevant provisions of the Police Order, 2002. In an extreme case of highhandedness and totally unjustified harassment the ex-officio Justice of the Peace may issue a direction to the relevant police authority to register a criminal case against the delinquent police officer if he had seemingly committed some cognizable offence during the harassment perpetrated by him.

(ix) Complaints regarding failure of the police to register a criminal case.--The officer in charge of the relevant Police Station may be under a statutory obligation to register an F.I.R. whenever information disclosing commission of a cognizable offence is provided to him but the provisions of section 22-A(6), Cr.P.C. do not make it obligatory for an ex-officio Justice of, the Peace to necessarily or blind-foldedly issue a direction regarding registration of a criminal case whenever a complaint is filed before him in that regard. An ex-officio Justice of the Peace should exercise caution and restraint in this regard and he may call for comments of the officer in charge of the relevant Police Station in respect of complaints of this nature before. taking any decision of his own in that regard so that he may be apprised of the reasons why . the local police have not registered a criminal case in respect of the complainant's allegations. If the comments furnished by the officer in charge of the relevant Police Station disclose no justifiable reason for not registering a criminal case on the basis of the information supplied by the complaining person then an ex-officio Justice of the peace would be justified in issuing a direction that a criminal case be registered and investigated. It is not obligatory for the officer in charge of a Police Station or for ,an ex-officio Justice of the Peace to afford an opportunity of hearing to the accused party before registration of a criminal case or before issuing a direction in that regard. In an appropriate case; depending upon the circumstances thereof, an ex­officio Justice of the Peace may refuse to issue a direction regarding registration of a criminal case and may dismiss the complaint under section 22-A(6), Cr.P.C. reminding the complaining person of his alternate statutory remedies under sections 156(3) and 190, Cr.P.C. The impression entertained by a large section of the legal community in our country that in case of filing of a private complaint the accused person cannot be arrested and recovery cannot be effected from him is nothing but erroneous and fallacious.

(x) Complaints about failure by an investigating officer to add appropriate penal provisions to an F.I.R. or a cross-version of the accused party.--Such complaints are not worthy of being taken with any degree of seriousness by an ex-officio Justice of the Peace. The stands taken by the complaining persons in this regard normally touch the. merits of the allegations and an ex-officio Justice of the Peace would be' well advised to refrain front entering into any such controversy at a premature stage. The overall incharge of a criminal case is the Area Magistrate who, even during the progress of an investigation, gets many opportunities to go through the record of investigation conducted by the police and in an appropriate case and at an appropriate stage he can require the investigating officer to consider addition or deletion of any, penal provision. After submission of a report under section 173, Cr.P.C./Challan the Magistrate taking cognizance of the offence or the trial Court taking cognizance of the case can take cognizance of any offence disclosed by the material available on the record of investigation even if the police have not invoked the relevant penal provision. Even at the time of framing of the charge a trial Court can frame a charge in respect of any offence disclosed by the record even if the same finds no mention in the report submitted under section 173, Cr.P.C./Challan. With so many opportunities being available with the Magistrate and the trial Court regarding rectification of a mistake, deliberate or otherwise, committed by the police in this connection it would be unwise for an ex­officio Justice of the Peace to interfere with such a matter at an inappropriate and premature stage. In case of receipt of such a complaint an ex-officio Justice of the Peace may advise the complaining person to approach the Area Magistrate or the trial Court, as the case may be, rather than entertaining such a complaint himself.

(xi) Complaints about failure by the investigating officer to record a cross-version of the accused party.--While dealing with a complaint of this nature an ex-officio Justice of the Peace should call for comments of the investigating officer explaining as to why he has not recorded the version of the accused party and if such comments confirm the complaint that despite having been approached in that regard by the accused party the investigating officer has not recorded the version of the accused party and there is no valid or justifiable reason for such default on his part then a direction may be issued by the ex-officio Justice of the Peace to the investigating officer to do the needful or in the alternative the Superintendent of Police (Investigation) of the relevant District may be directed by the ex-officio Justice of the Peace to attend to this aspect of the matter and to ensure that the needful is done by the investigating officer without further ado.

(xii) Complaints regarding failure by the police to arrest an accused person.--A general impression entertained by some quarters that an arrest of a suspect or an accused person is necessary or sine qua non for investigation of a crime is misconceived. A suspect is not to be arrested straightaway upon registration of an F.I.R. or as a matter of course and, unless the situation on the grounds so warrants, the arrest is to be deferred till such time that sufficient material or evidence becomes available on the record of investigation prima facie satisfying the investigating officer regarding correctness of the allegation levelled by the complainant party against such suspect or regarding his involvement in the crime in issue. The law requires an investigating officer to be generally slow in depriving a person of his liberty on the basis unsubstantiated allegations and, thus, insistence by the interest complainant party regarding his immediate arrest should not persuade the investigating officer to abdicate his discretion and jurisdiction in the matter before the whims or wishes of the complainant party. An ex officio Justice of the Peace should not ordinarily force an investigating officer in that regard where the investigating officer has not so far felt the necessity, of an arrest or has not yet formed a tentative opinion about correctness of the allegation against the suspect. However, in an appropriate case, after obtaining comments from the investigating officer, an ex-officio Justice of the Peace seized of a complaint in this regard may issue a direction to the Superintendent of Police (investigation) of the relevant District to attend to this aspect of the matter. It must always be remembered that delaying the arrest till after formation of an opinion regarding prima facie correctness of the allegation against a suspect goes a long way in deterring false, frivolous and motivated complaints and also that there may not be any adequate recompense or reparation for an unjustified arrest. It would be preposterous arid a mockery of justice if a person may be deprived of his liberty first and later on the allegation against him may be found by the arresting agency itself to be bogus; trumped up or false. Such an approach would amount to putting the cart before the horse.

(xiii) Complaints seeking transfer of investigation of criminal cases.--The job of an investigating officer is not to satisfy the parties to the case or to render any opinion about guilt or innocence of an accused person but his duty is only to collect all the relevant evidence. In the reports to be submitted by the police in connection with investigation of a criminal case it can comment about sufficiency or otherwise of the evidence available against an accused person but it cannot comment upon believability or otherwise of the evidence becoming available on the record against such accused person. The question of believability or otherwise of such evidence is to be attended to by the relevant Magistrate or the trial Court. The trend of getting a fresh investigation of a criminal case conducted after submission of a Challan and after taking of cognizance by the trial Court is not to be encouraged. By virtue of the provisions of Article 18(5) of the Police Order, 2002 a District Police Officer cannot interfere with the process of investigation and, thus, an ex-officio Justice of the Peace cannot direct a District Police Officer to attend to the complaining person's grievance regarding an investigation. Article 18(6) of the Police Order, 2002 specifies the only manner in which investigation of a criminal case can be changed. There is no other law authorizing or empowering any other police officer or authority to change the investigation of a criminal case. Any change or transfer of investigation of a criminal case by any officer or authority other than those mentioned in Article 18(6) of the Police Order, 2002 is to be void and a nullity. `Verification' of investigation, if necessary, must be confined to verification of the record of investigation and such an exercise cannot be allowed to be conducted in a manner giving it a colour of fresh investigation with fresh conclusions. The verifying officer has to confine himself, to the record of investigation already conducted and cannot substitute his own conclusions for those of the investigating officer and if he finds any serious fault with the investigation already conducted then the verifying officer can bring such fault to the notice of the Superintendent of Police (Investigation) of the concerned District who can then initiate the process contemplated by the provisions of Article 18(6) of the Police Order, 2002 for change of investigation. An ex-officio Justice of the Peace cannot step into the shoes of a competent police authority so as to himself pass an order transferring investigation of a criminal case and his role in this regard is confined only to getting the process under Article 18(6) of the Police Order, 2002 activated if the complaint before him establishes that the complaining person's recourse under section 18(6) of the Police Order, 2002 has remained unattended to so far. If the complaining person has not yet even applied before the competent authorities under Article 18(6) of the Police Order, 2002 seeking change of investigation then his complaint under section 22-A(6), Cr.P.C. is not to be entertained by an ex-officio Justice of the Peace as no occasion has so far arisen for interference in the matter by an ex-officio Justice of the Peace. If the competent authorities under Article 18(6) of the Police Order, 2002 have already attended to the request of the complaining person regarding transfer of investigation and have not found the case to be a fit case for transfer of investigation then too an ex-officio Justice of the Peace cannot interfere in the matter as the competent authorities have already consciously attended to the matter and there is nothing left for the ex-officio Justice of .the Peace to get activated or initiated. An ex officio Justice of the peace is not to assume the role of an appellate, revisional or supervisory authority in that respect. An ex-officio Justice of the Peace, like any judicial or other authority outside the police hierarchy, should be extremely slow in directly interfering with the matter of transfer of investigation and in an appropriate case he may interfere only where the authorities mentioned in Article 18(6) of the Police Order, 2002 have already been approached by the complaining person but such authorities have failed to attend to his grievance and the application of the complaining person is lying unattended to. Even in such a case an Justice of the Peace may refuse to interfere in the matter unless it is established to his satisfaction that some specific and particular material pieces of evidence had been missed out by the investigating officer and the same remain to be collected by the police. An ex-officio Justice of the Peace may not interfere in such a matter unless he feels satisfied that the required evidence had either not been collected or that further evidence is required to be collected in a given case and the recourse of the complaining person to the authorities mentioned in Article 18(6) of the Police Order, 2002 in that regard has so far remained unattended to. In such, a ease an ex-officio Justice of the Peace may issue a direction to the concerned police authority to get the process under. Article 18(6) of the Police Order, 2002 activated so that an appropriate and suitable decision on the complaining person's grievance can be made by the competent authorities under Article 18(6) of the Police Order, 2002 one way or the other. While attending to such a complaint an ex-officio Justice of the .Peace cannot issue a direction changing the investigation of a criminal case on his own. Any attempt by a party to get the investigation changed only to obtain a favourable opinion from an investigating officer regarding guilt or innocence of an accused person is to be nipped in the bud.

(xiv) Complaints about failure of the police to finalize investigation of a criminal case and to submit a Challan in time.--An ex-officio Justice of the Peace seized of a complaint regarding failure of the police to finalize investigation' of a criminal case and to submit a Challan within the stipulated period should require the investigating officer of the relevant case to explain the reason for the delay in that regard and he may .also require him to explain as to why a recommendation may not be made to the concerned quarters for appropriate action in terms of the action taken by the Supreme Court of Pakistan in the case of Hakim Mumtaz Ahmed and another v. The State (PLD 2002 Supreme Court 590). If the explanation submitted by the investigating officer is found by the ex-officio Justice of the Peace to be unsatisfactory then he may issue a direction to. the Superintendent of Police (Investigation) of the relevant District to ensure finalization of investigation and submission of Challan at the earliest possible and may also, depending upon the circumstances of the case, either warn the relevant investigating officer to be careful in that regard in future or issue a direction to the relevant higher police, authority or the relevant Public Safety and Police Complaints Commission to consider the complaint and to take appropriate action against the delinquent police officer under the relevant provisions of the Police Order, 2002 or under any other law applicable to such misconduct.

(xv) An ex-officio Justice of the Peace in Pakistan does not perform or discharge any judicial function and, therefore, the law relating to Contempt of Court is inapplicable to an alleged non-compliance of any direction issued by him under section 22-A(6), Cr.P.C. However, a direction issued by him under section 22-A(6), Cr.P.C. is grounded in lawful authority conferred upon him by the said legal provision and by virtue of the provisions of Article 4(1)(m) of the Police Order, 2002 every police officer is under a duty to obey and promptly execute all lawful orders. There are, therefore, threefold remedies available against non-compliance of directions issued by an ex-officio Justice of the Peace under section 22-A(6), Cr.P.C., i.e. firstly, upon a complaint received by him regarding non-compliance of his earlier direction an ax-officio Justice of the Peace can issue a direction to the relevant police authority to register a criminal case against the delinquent police officer under Article 155(c) of the Police Order, 2002 or, secondly, he can issue a direction to the relevant higher police authority or the relevant Public Safety and Police Complaints Commission to take appropriate. action against the delinquent police officer under the relevant provisions of the Police Order, 2002 or under any other law relevant to such misconduct and, thirdly, the complaining person can approach this Court under Article 199 of the Constitution seeking issuance of an appropriate writ directing the defaulting police officer to do what the law requires him to do.

(xvi) It needs to be clarified that a petition filed under section 22-A(6), Cr.P.C. before an ex-officio Justice of the Peace is to be termed only a petition' and such a petition cannot be branded, dubbed or called aWrit Petition'. It must be borne in mind that jurisdiction to issue a `writ' is traditionally a high prerogative jurisdiction of a High Court which dates back to antiquity and is now recognized by the Constitution. Thus, the writ jurisdiction of a High Court must not be confused with a statutory jurisdiction of an ex-officio Justice of the Peace which is exercised by Sessions Judges and Additional Sessions Judges.

Halsbury's Laws of England 4th Edn., Vol.29; Jowitt's Dictionary of English Law 2nd Edn., Vol. 1; Encyclopaedia Britannica, Vol. 13; The New Encyclopaedia, Britannica 15th Edn., Vol. 6; Corpus Juris Secundum Vol. 51; The Encyclopaedia Americana (International Edn.); American Jurisprudence 2nd Edn., Vol. 47; Words and Phrases (Permanent Edn.); Grolier Encyclopaedia of Knowledge; Collier's Encyclopaedia Vol. 13; The Law Lexicon of British India; Venkataramaiya's Law Lexicon with Legal Maxims, 2nd Edn; K.J: Aiyar's Judictal Dictionary, 11th Edn.; Law Terms and Phrases Judicially interpreted with Legal Maxims and Legal Words and Phrases in Ordinance Usage by Sardar Muhammad Iqbal Khan Mokel; Hand Bhook of Legal Terms and Phrases by M. Ilyas Khan; Words and Phrases Legally defined 2nd Edn.; Pir Abdul Qayyum Shah v. S.H.O. and 4 others 2005 PCr.LJ 357; .Emperor v. Khwaja Nazir Ahmad AIR (32) 1945 PC 18; Federation of Pakistan v. Shah Muhammad Khan and others PLD 1960 SC (Pak) 85; Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677; Muhammad Saeed Azhar v. Martial Law Administration, Punjab and others 1979 SCMR 484; Malik Shaukat Ali. Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others PLD 1994 SC 281; Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142; Anwar Ahmad Khan v. The State and another 1996 SCMR 24; Muhammad Latif v. Sharifan Bibi and another 1998 SCMR.666; Muhammad Ali and 12 others v. District Magistrate, Faisalabad and 3 others PLD 1978 Lah. 1325; Nasir Ali v. Inspector-General of Police, Punjab, Lahore and 8 others 2000 YLR 225; Muhammad Yousaf v. Dr. Madad Ali alias Gulab Laskani and 8 others PLD 2002 Kar. 328; Shahnawaz v. Raja Tanveer and 7 others 2005 PCr.LJ 487; Saeed Ahmad and others v. Naseer Ahmad and others PLD 2000 Lah. 208; Muhammad Aslam v. Additional Sessions Judge and others 2004 PCr.LJ f214; Union of India and another v. W.N. Chadha 1993 SCMR 285; Hazoor Bakhsh v. Senior Superintendent of Police Rahimyar Khan and 12 others PLD 1999 Lah. 417; Noor Nabi and 3 others v. The State 2005 PCr.LJ 505; Nadeem Sarwar v. Station House Officer, Police Station Sadar, Hafizabad and 2 others 2000 YLR 756; Abdul Qayyum v. S.H.O., Police Station Shalimar, Lahore 1993 PCr.LJ 91; Muhammad Shafi v. Muhammad Boota and another PLD 1975 Lah. 729; Muhammad Siddiq v. Province of Sindh through Home Secretary, Karachi and 2 others PLD 1992 Kar. 358; Mst. Razia Pervez and another v. The Senior Superintendent of Police, Multan and 5 others 1992 PCr.LJ 131; Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 SC 506; Mst. Asho and 3 others v. The State 1987 PCr.LJ 538; Riaz Hussain and others v. The State 1986 SCMR 1934; Hakim Mumtaz Ahmed and another v. The State PLD 2002 SC 590; Muhammad Yousaf v. Inspector-General of Police and 4 others PLD 1997 Lah. 135; Muhammad Arif v. Inspector-General of Police, Punjab, Lahore and 3 others 2000 YLR 1960; Muhammad Younas and others v. I.-G. Police and others 1999 PCr.LJ 163; Muhammad Alain and another v. Additional Secretary to Government of N.-W.F.P., Home & Tribal Affairs Department and 4 others PLD 1987 SC 103.; Nasira Surriya v. Muhammad Aslam and 7 others 1990 SCMR 12; Syed Waqar Hussain Shah v. The State PLD 1988 Lah. 666; Mst. Kausar Bibi v. The Deputy Inspector-General of Police, Crimes Branch, Punjab; Lahore and 2 others 1996 PCr.LJ 124; Ali Muhammad v. Inspector-General of Police, Punjab, Lahore and another 2001 PCr.LJ 1054 and Mehr Allah Bakhsh v. D.I.G., Multan and five others 2001 PCr.LJ 801 ref.

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

----Ss. 22-A(6)---Complaint about unjustified harassment by the Police in the absence of any criminal case having been registered against the aggrieved person---Kind of "directions" can/should an ex-officio Justice of Peace issue in respect of such complaint while exercising his jurisdiction under S.22-A(6), Cr.P.C. elaborated.

As regards the jurisdiction of an ex-officio Justice of the Peace regarding complaints about unjustified harassment by the police in the absence of any criminal case having been registered against the aggrieved person more often than' not such complaints are couched in vague, unspecific and generalized terms and sometimes such complaints are motivated with considerations other than bona fide. An ex-officio Justice of the Peace must remain watchful, alert and vigilant in this respect while handling all such complaints. It goes without saying that an allegation of fact levelled in such a complaint must contain all the necessary factual details regarding the date, time and place of the alleged harassment as well as full particulars of the concerned police officer who is being complained against. In the absence of such precision and exactitude in the complaint the relevant police officer, when required by the ex-officio Justice of the Peace to submit his comments, can remain contented with a bare and bald denial of the allegations leaving the ex­officio Justice of the Peace with no other option but to dismiss such a complaint as having remained unsubstantiated. However, if the complaint contains the necessary factual details. and through his comments the relevant police officer fails to satisfy the ex-officio Justice of the Peace regarding falsity of the allegations levelled against him then the ex­officio Justice of the Peace may, depending upon the circumstances of the case, either warn the relevant police officer not to transgress the limits of, the law in future or may issue a direction to the relevant higher police authority or the relevant Public Safety and Police Complaints Commission to consider the complaint and to take appropriate action against the delinquent police officer under the relevant provisions of the Police Order, 2002. In an extreme case of highhandedness and totally unjustified harassment the ex-officio Justice of the Peace may issue a direction to the relevant police authority to register a criminal case against the delinquent police officer if he had seemingly committed some cognizable offence during the harassment perpetrated by him.

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

----S. 22-A(6)---Complaint regarding failure of the police to register a criminal case despite commission of a cognizable offence having been reported to, it---Kind of "directions" can/should an ex-officio Justice of the Peace issue in respect of such complaint while exercising his jurisdiction under S.22-A(6), Cr.P.C. elaborated.

As regards the complaints regarding failure of the police to register a criminal case despite commission of a cognizable offence having been reported to it there is no gainsaying the fact that the provisions of section 154, Cr.P.C. in that respect are quite explicit and the duty of the officer in charge of the local Police Station in that regard is mandatory in nature. However, the officer in charge of the relevant Police Station may be under a statutory obligation to register an F.I.R. whenever information disclosing commission of a cognizable offence is provided to him but the provisions of section 22-A(6), Cr.P.C. do not make it obligatory for an ex-officio Justice of the Peace to necessarily or blind-foldedly issue a direction regarding registration of a criminal case whenever a complaint is filed before him in that regard. The use of the word "may" in section 22-A(6), Cr.P.C. clearly shows that the jurisdiction of an ex-officio Justice of the Peace in that regard is discretionary in nature, and understandably so. It is unfortunate that concepts and notions of truth and justice are becoming more and more subjective in the society and the machinery of criminal law with its coercive process is increasingly being utilized by motivated persons or parties for achieving objectives which are self-serving. Thus, there is a pressing need on. the part of the ex-officio Justices of the Peace to exercise caution and restraint before issuing a direction regarding registration of a criminal case. It is prudent and advisable for an ex­officio Justice of the Peace to call for comments of the officer in charge of the relevant Police Station in respect of complaints of this nature before taking any decision of his own in that regard so that he may be apprised of the reasons why the local police has not registered a criminal .case in respect of the complainant's allegations. It may well be that the complainant has been economizing with the truth and the comments of the local police may help in completing the picture and making the situation clearer for the ex-officio Justice of the Peace facilitating him in issuing a just and correct direction, if any. If, however, the comments furnished by the officer in charge of the relevant Police Station disclose no justifiable reason for not registering a criminal case on the basis of the information supplied by the complaining person then an ex-officio Justice of the Peace would be entirely justified in issuing a direction that a criminal case be registered and investigated. It is clarified that it is not obligatory for the officer in charge of a Police Station or for an ex­officio Justice of the Peace to afford an opportunity of hearing to the accused party before registration of a criminal case or before issuing a direction in that regard. In an appropriate case, depending upon the circumstances thereof, an ex-officio Justice of the Peace may refuse to issue a direction regarding registration of a criminal case and may dismiss the complaint under section 22-A(6), Cr.P.C. reminding the complaining person of his alternate statutory remedies under sections 156(3) and 190, Cr.P.C. Experience shows that there are cases where the complainant party may be better off in pressing its allegations and remaining in control of its case by tiling a private complaint rather than forcing the police to register a criminal case and to investigate when the police is itself not convinced of the complainant party's allegations being correct. The impression entertained by a large section of the legal community in Pakistan that in case of filing of a private complaint the accused person cannot be arrested and recovery cannot be effected from him is nothing but erroneous and fallacious. By virtue of the provisions of section 202(1), Cr.P.C. a Court seized of a private complaint can "direct an inquiry or investigation to be made by any Justice of the Peace or, by a police officer or by such other person as it thinks fit". The powers available during an investigation, enumerated in Part V, Chapter XIV of the Code of Criminal Procedure, 1898 read with section 4(1)(1) of the same Code, include the powers to arrest an accused person and to effect recovery from his possession or at his instance. Such powers of the investigating officer or the investigating person recognize no distinction between an investigation in a State case' and an investigation in a complaint case. That section 91, Cr.P.C. deals only with procuring attendance of a person before the Court and after his availability before the Court the matter of his admission to bail or not rests in the hands of the Court and that the impression about automatic admission of an accused person to bail in a case of a private complaint is erroneous. Thus, in appropriate cases the ex-officio Justices of the Peace would be serving the interests of justice well by dispelling wrong impressions about inadequacy of the remedy of filing a private complaint and by encouraging the complaining persons to take charge of their allegations against the accused party by filing a private complaint rather than forcing an unwilling or unconvinced police officer to be in control of their cases.

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

----S.22-A(6)---Complaint pertaining to failure by the Investigating Officer to add appropriate penal provisions to an F.I.R. or a cross­-version of the accused party---Kind of "directions" can/should an ex­officio Justice of the Peace issue in respect of such complaint while exercising his jurisdiction under S.22-A(6), Cr.P.C., elaborated.

The complaints about failure by an investigating officer to add appropriate penal provisions to an F.I.R. or a cross-version of the accused party are not uncommon but they are normally not worthy of being taken with any degree of seriousness by an ex-officio Justice of the Peace. The stands taken by the complaining persons in this regard normally touch the merits of the allegations and an ex-officio Justice of the Peace would be well advised to refrain from entering into any such controversy at a premature stage and to consider, by, appreciating the factual aspects of a given case, as to which offences are or are not disclosed by the allegations contained in an F.I.R. or a cross-version. It goes without saying that the overall incharge of a criminal case is the Area Magistrate who, even during the progress of an investigation, gets many opportunities to go through the record of investigation conducted by the police and in an appropriate case and at an appropriate stage he can. require the investigating officer to consider addition or deletion of any penal provision. Be that as it may, after submission of a report under section 173, Cr.P.C./Challan the Magistrate taking cognizance of the offence or the trial Court taking cognizance of the case can take cognizance of any offence disclosed by the material available on the record of investigation even if the police have not invoked the relevant penal provision. Even at the time of framing of the charge a trial Court can frame a charge in respect of an offence disclosed by the record even if the same finds no mention in the report submitted under section 173, Cr.P.C./Challan. With so many opportunities being available with the Magistrate and the trial Court regarding rectification of a mistake, deliberate or otherwise, committed by the police in this connection it would be unwise for an ex-officio Justice of the Peace to interfere with such a matter at an inappropriate and premature stage.

An ex-officio Justice of the Peace may follow suit while dealing with complaints of the like nature, In case of receipt of such a complaint an ex-officio Justice of the Peace may advise the complaining person to approach the Area Magistrate or the trial Court, as the case may be, rather than entertaining such a complaint himself.

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

----S. 22-A(6)---Complaint about failure by the Investigating Officer to record a cross version of the accused party---Kind of "directions" can/should an ex-officio Justice of the Peace issue in respect of such complaint while exercising his jurisdiction under S.22-A(6), Cr.P.C. elaborated.

While dealing with a complaint of this nature an ex-officio Justice of the Peace should call for comments of the investigating officer explaining as to why he has not recorded the version of the accused party and if such comments confirm the complaint that despite having been approached in that regard by the accused party the investigating officer has not recorded the version of the accused party and there is no valid or justifiable reason for such default on his part then a direction may be issued by the ex-officio Justice of the Peace to the investigating officer to do the needful or in the alternative the Superintendent of Police (Investigation) of the relevant District may be directed by the ex-officio Justice of the Peace to attend to this aspect of the matter and to ensure that the needful is done by the investigating officer without further ado.

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

----S. 22-A(6)---Complaint regarding failure to arrest an accused person nominated in the F.I.R. or in the cross-version of the accused party--­Kind of "directions" can/should au ex-officio Justice of the Peace issue in respect of such complaint while exercising his jurisdiction under S.22-A(6), Cr.P.C. elaborated.

The complaints filed before ex-officio Justices of the Peace regarding failure by the police to arrest an accused person nominated in an F.I.R. or implicated through a cross-version of the accused party are quite frequent and it has been observed that more often than not such complaints stem from a basic misconception about the circumstances in which an accused person is allowed by the ,taw to be arrested in a criminal case. For the purpose of removal of such misinterpretation and misconstruction of the relevant legal provisions the legal position in this regard in some detail is restated hereunder.

Under section 22-A(1), Cr.P.C. a Justice of the Peace has the jurisdiction to exercise all those powers of arrest in the relevant local area which powers are available to a police officer referred to in section 54, Cr.P.C. and to an officer in charge of a Police Station referred to in section 55, Cr.P.C. The powers of arrest in both the said sections are the same but they relate to different situations.

An arrest of a person in connection with a criminal case is not to be a matter of course and the power to arrest is conditional upon fulfilment of the requisite legal requirements.

One of the cardinal principles of criminal law and jurisprudence is that an accused person is presumed. to be innocent until .proved guilty before a Court of law. However, of late a growing tendency has been noticed on the part of the complainant party to insist upon arrest of an" accused person nominated by it in the F.I.R. and an increasing willingness, nay eagerness, on the part of the investigating officer of a criminal case to effect arrest of the accused person even before initiating or launching a proper investigation of the allegations levelled in the F.I.R. Such an approach has been found to be absolutely against the spirit of the relevant law, to be wrought with inherent dangers to cherished liberty of citizens who may ultimately be found to be innocent and to amount to putting the cart before the horse.

A general impression entertained by some quarters that an arrest of a suspect or an accused .person is necessary or sine qua non for investigation of a crime is misconceived and the same portrays scant knowledge of the relevant statutory provisions. Section 46, Cr.P.C. provides as to how an arrest is to be made, section 54, Cr.P.C. deals with arrest by a police officer without a warrant, section 55, Cr.P.C. pertains to arrest of vagabonds, etc. by an officer in charge of a Police Station, section 59, Cr.P.C. caters for a situation where a private person may effect an arrest and section 151, Cr.P.C. authorizes a police officer `to arrest a person in order to prevent commission of a cognizable offence. Section 169, Cr.P.C. visualizes a situation where a suspect may be released if the investigating officer finds no sufficient evidence or reasonable ground for suspicion against him. According to Article 4(1)(j) of the Police Order; 2002 it is a duty of every police officer to "apprehend all persons whom. he is legally authorised to apprehend and for whose apprehension sufficient grounds exist". Rules 24.1, 24.4 and 24.7 of the Police Rules, 1934 (which are still in vogue due to the provisions of Article 185 of the Police Order, 2002) clearly contemplate situations where an information received by the police regarding commission of a cognizable offence may be doubted or even found false. Rule 25.2(1) of the Police Rules authorizes-an investigating officer to associate "any person". with the investigation and Rule 25.2(2) categorically provides that "No avoidable trouble shall be given to any person from whom enquiries are made and no person shall be unnecessarily detained". Rule 25.2(3) clinches the issue by clarifying that "It is the duty of an ,investigating officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person. As if this were not enough, Rule 26.1 emphasizes that "Section 54, Code of Criminal Procedure, authorizes any police officer to arrest without a warrant any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned. The authority given under this section to the police to arrest without a warrant is, however, permissive and not obligatory. Whenever escape from justice or inconvenient delay is likely to result from the police failing to arrest, they are bound to do so; but in no other cases. The, law allows a police officer to apply to a Magistrate for a warrant or a summons instead of making the arrest immediately, and this discretion shall -be exercised whenever possible and expedient. The law also allows a police officer in any bailable case to take security under section 170, Criminal Procedure Code from an accused person to appear before a, Magistrate without first arresting him" (emphasis has been supplied by us). Rules 26.2 and 26.9 provide further guidelines to the police officers involved in investigation of crimes requiring. them not to unnecessarily interfere with the liberty of suspects "until the investigation is sufficiently complete" and "the facts justify arrest". According to Rule 26.1 the facts justifying an immediate arrest may include a possibility of the suspect escaping from justice or inconvenient delay likely to result from the police failing to arrest.

All the statutory provisions And the precedent cases manifestly point towards the intention of the law that a suspect is not to be arrested straightaway upon registration of an F.I.R. or as a matter of course and that, unless the situation on the grounds so warrants, the arrest is to be deferred till such . time that sufficient material or evidence becomes available on the record of investigation prima facie satisfying the investigating officer regarding correctness of the allegations levelled by the complainant party against such suspect or regarding his involvement in the crime in issue. If the law itself requires an investigating officer to be generally slow in depriving a person of his liberty on the basis of unsubstantiated allegations then insistence by the interested complainant party regarding his immediate ,arrest should not persuade the investigating officer to abdicate his discretion and jurisdiction in the matter before the whims or wishes of the complainant party. It, therefore, follows that an ex-officio Justice of the Peace should not ordinarily force an investigating officer in that regard where the investigating officer has not so far felt the necessity of an arrest or has not yet formed a tentative opinion about correctness of the allegation against the suspect. However; in an appropriate case, after obtaining comments from the investigating officer, an ex-officio Justice of the Peace seized of a complaint in this regard may issue a direction to the Superintendent of Police (Investigation) of the relevant District to attend to this aspect of the matter. It must always be remembered that delaying the arrest till after formation of an opinion regarding prima facie correctness of the allegation against a suspect goes a long way in deterring false, frivolous and motivated complaints and also that there may not be any adequate recompense or reparation for an unjustified arrest. It would be preposterous and a mockery of justice if a person may be derived of his liberty first and later on the allegations against him may be found by the arresting agency itself to be bogus, trumped up or false. That surely would be, as observed above, putting the cart before the horse.

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

----S. 22-A(6)---Complaint pertaining to unfair, biased and improper investigation and thus, seeking transfer of the investigation---Said issue engaged the High Court's serious, particular and detailed consideration­-Kind of "directions" can/should an ex-officio Justice of the Peace issue in respect of such complaint while exercising his jurisdiction under S.22-A(6), Cr.P.C. elaborated.

The complaints about unfair, biased and improper investigation and, thus, seeking transfer of investigation of the relevant criminal case are generally the most frequent complaints that are filed before the ex­officio Justices of the Peace under section 22-A(6), Cr.P.C. and are often subject-matter of writ petitions filed before High Court and, therefore, this area has also engaged Court's serious, particular and detailed consideration. Filing of such complaints is generally grounded in a basic misunderstanding that the parties to a criminal case must feel satisfied with the investigation thereof. Unfortunately the concepts of truth and justice are becoming more and more subjective in the society and the machinery of criminal law with its coercive process is increasingly being utilized by motivated persons or parties for achieving objectives which are self-serving.. Left to the parties to a criminal case they would never be satisfied with the investigation unless their version is accepted by the police as correct. The term `investigation' has been defined by section 4(1)(1) of the Code of Criminal Procedure, 1898 as "--- all proceedings under this Code for the collection of evidence by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf". The job of an investigating officer is, thus, only to collect all the relevant evidence pertaining to the allegation levelled regarding the crime in issue so as to dig out the truth enabling and facilitating the relevant Court to administer justice between the parties. His job is not to satisfy the parties to the case or to arrogate to himself the role of an adjudicator rendering an opinion regarding guilt or innocence of any person. In the reports to be submitted by the police in connection with investigation of a criminal case it can comment about sufficiency or otherwise of the evidence available against an accused person but it cannot comment upon believability or otherwise of the evidence becoming available on the record against such accused person. The question 'of believability or otherwise of such evidence is to be attended to by the relevant Magistrate or the trial Court. It is very rare that a complaint of the nature under discussion points out that any particular evidence is available in the case and the same is not being collected by the investigating officer but the bids of the parties seeking transfer of investigation are by far, directed mainly to obtain a favourable opinion from the investigating officer supporting a party's version. An investigating officer of a criminal case is not to render any opinion regarding guilt or innocence of an accused person and under the relevant statutory provisions contained in the Code of Criminal Procedure, 1898, the Police Order, 2002 and the Police Rules, 1934 he is only to collect all the relevant evidence and to submit his report and the collected evidence and material before the relevant Magistrate so that the Magistrate or the trial Court can then form their own independent opinions regarding sufficiency or otherwise of the evidence and material in order to decide whether to take cognizance of the offence and of the case or not, to summon any person to face a trial or pot and to frame a charge against a person or not. Column No. 2 of the Challan submitted in a criminal case is generally misunderstood and the same is erroneously being construed as meant for those accused persons who are found by the police to be innocent. It is generally being ignored that the said column of the Challan is to contain the names of the absconding accused persons against whom Challan is not being submitted because they could not be associated with the investigation and is also to contain the details of the accused persons being forwarded in custody or released on bond with or without sureties. Such details have absolutely no relevance to the question of innocence or otherwise of the accused persons. Section 172,(1), Cr.P.C. requires that "Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation". There is no mention in section 172(1), Cr.P.C. of any opinion of the investigating officer about guilt or innocence of an accused person. Likewise, in section 173, Cr.P.C., under. which the. police is required to submit its final or interim report about the investigation before a Magistrate which report is also called a Challan, there is absolutely no mention of any opinion of the police regarding guilt or innocence of an accused person. There is No. 1aw or legal instrument in existence in this country requiring an investigating officer of a criminal case or any police officer to record his opinion about guilt or innocence of an accused person. Be that as it may, the law is firmly settled on the point to the extent of being trite that an opinion of the police regarding guilt or innocence of an accused person is inadmissible in evidence being irrelevant and that an accused person whose name has been placed in column No. 2 of the Challan or an accused person not even mentioned in any column of the Challan can also be summoned by a trial Court to face a trial if, in the opinion of the Court, sufficient material is available on the record to proceed against him. A misconceived competition and race between the parties to obtain a favourable opinion from the investigating officer, despite such opinion being inadmissible in evidence being, irrelevant, has been found to be the real reason for most of the bids made by the parties to a criminal case to get the investigation of such case transferred. Such trends and tendencies have to be curbed with all the firmness that is required as they are playing havoc with investigations, breeding corruption amongst the police, introducing extraneous influences in the working of the police, delaying finalization of investigations and trials and choking the ex­officio Justices of the Peace as well High Court with unwarranted complaints and writ petitions.

No law or regulation gives a complainant a vested right, which can be enforced by a writ to have his complaint investigated by a particular branch of the Police.

The necessity for making a direction can only arise in a case where no investigation has started. The power to issue a direction cannot be invoked where investigation has already commenced in accordance with law by authorities competent to investigate under the Criminal Procedure Code nor does the power to "direct" include the power to "transfer" from one competent investigating. agency to another. This would be unwanted interference with the investigation.

The system of re-investigation in criminal cases is a recent innovation which is always taken up at the instance of influential people and favourable reports obtained. This in no way assists the Courts in coming to a correct conclusion, it rather creates more complications to the Court administering justice.

Delay in filing police report/challan is being caused for another reason namely that on the behest of the accused/complainant/State investigations in the cases are transferred from one police agency to another under section 158, Cr.P.C. on account of showing non­confidence by one for the other party in the Investigating Agencies particularly in the Province of Punjab. Such device is followed invariably in every case and this reason independently also causes delay in submission of challan or commencement of trial of accused persons.

The purpose of investigation of. a criminal case, as is evident from section 4(1)(1) of Cr.P.C. is mere collection of evidence and nothing more. The duty of the officer investigating a criminal case is to collect all such evidence and then to submit the same before a Court of competent jurisdiction which Court alone then has the powers to determine the guilt or innocence of the person accused of the commission of such an offence. It is true that section 169 of the Cr.P.C. authorizes an Investigating Officer or the officer incharge of the police station to release an accused person on his executing a bond, with or without a surety, if in the opinion of such a police officer sufficient evidence or reasonable grounds of suspicion justifying the forwarding of an accused to, a Magistrate were not available. This however, cannot be equated with a power of final determination of the guilt or innocence of the accused persons which power, as has been mentioned above, stands reserved exclusively for the Magistrates and the trial Courts. These very provisions of section 169 of the Cr.P.C. are a clear indicator to the said effect because release of an accused person under this section is subject to the orders of a Magistrate, who may refuse to take cognizance of the case in terms of the report of the concerned police officer or may still take cognizance and try an accused person or send him for trial. It may be added that the provisions of section 63 of the Cr.P.C. which provide that an accused person could be discharged only under the special order of a Magistrate and the provisions of Rule 24.7 of the Police Rules, 1934 which provides that an F.I.R. can be cancelled only by a Magistrate, even if the Investigating Officer or the S.H.O. were of the opinion that such an F.I.R. deserved to be cancelled, are further evidence of the fact that the final word in respect of the fate of an accused person is either of a Magistrate or of the learned trial Court and the S.H.O. or the investigating Officer were mere instruments to assist such Magistrates or Courts of law in reaching a final conclusion.

It will, therefore, be noticed that while the Investigating Officers have powers to investigate cases and while the officers incharge of police stations including the superior police officers, who are also S.H.Os. by virtue of section 551 of the Cr.P.C. have powers to withdraw investigations from one police officer and to entrust the same to another police officer and also to order further investigations in a matter, the sole purposes of such-like transfer of investigations and directing of further investigations is to be the collection of evidence and nothing more. These powers vesting in the S.H.Os. and the superior police officers can, therefore, be exercised only and only where it is found that the required evidence had either not been collected or that further evidence was vi required to be collected in a given case.

Of late, frequent situations have started coming to the notice of the Courts where repeated investigations arc ordered and where investigations are repeatedly transferred from one police officer to another without disclosing any reason for such orders which leads to an inference that such-like orders were passed not for the purposes for which the requisite powers had been conferred on the police officers but for purposes other than legal and bona ode. Needless to add that such­like repeated investigations and such like transfers of investigations do not only complicate issues making the task of the Courts of law snore arduous but also result in wastage of time and inordinate delays towards the final conclusion of cases.

This evil can be, successfully, combated by making it incumbent upon the authority transferring the investigation or ordering re­investigation should comment upon the quality of the investigation and pinpoint the shortcomings or lapses made by the Investigating Officer. The authority if convinced after going through the record that either the Investigating Officer is inefficient, incapable or mixed up with one of the parties for any reason and only then investigation may be transferred and that too after recording reasons in writing. It shall propose action against Investigating Officer for misconduct, inefficiency and corruption as the case may be. That would be effective measures to check the illegal tendency of transferring the investigation or ordering re-investigation without any study of the `Zimnis' and appreciating the efforts made by the Investigating Officer.

Trend of getting a fresh investigation of a criminal case conducted after submission of a challan and taking of cognizance by the trial Court cannot be approved. In the absence of any particular material piece of evidence shown to have been missed out by the investigating officer and yet to be collected by the police there can hardly be any occasion for holding a fresh investigation at such a stage. If such fresh investigation is meant only to obtain a fresh opinion of an investigating officer regarding guilt or innocence of an accused person then, apart from the reasons mentioned above, such fresh investigation is likely to be legally inconsequential because an F.I.R. cannot be cancelled or an accused person discharged at such a stage for the reason that after taking of cognizance of the case by a trial Court the question of guilt or innocence of an accused person or the matter of his release can be determined only by the Court and none else.

By virtue of the provisions of Article 18(5) of the Police Order, 2002 a District Police Officer cannot interfere with the process of investigation. According to Article 18(6) of the Police Order, 2002 the first change of investigation can, in areas other than the Capital City District, be ordered only by the Additional Inspector-General of Police (Investigation Branch) and that too only after deliberations and recommendations by a Board headed by an officer not below the rank of Senior Superintendent of Police and including two Superintendents of Police, one being in charge of the investigation in the concerned District. According to the same Article second change of investigation may only be allowed with the approval of the Provincial Police Officer (Inspector-­General of the Police in a Province) or the Capital City Police Officer, as the case may be. There is no other law authorizing or empowering any other police officer or authority to change the investigation of a criminal case. Any change or transfer of investigation of a criminal case by any officer or authority other than those mentioned in Article 18(6) of the Police Order, 2002 is to be void and a nullity. In some cases police officers other than those mentioned in Article 18(6) of the Police Order, 2002 have been changing investigation of criminal cases in the name of verification' of investigation. The law is quite settled on the point that where the law requires a thing to be done in a particular manner then that thing must be done in that manner alone or not at all. In any case if an investigation by an investigating officer is to be verified by some other officer then such verification must be confined to verification of the record of investigation and such an exercise cannot be allowed to be conducted in a manner giving it a colour of fresh investigation with fresh conclusions. The verifying officer has to confine himself to the record of investigation already conducted and cannot substitute his own conclusions for those of the investigating officer and if he finds any serious fault with the investigation already conducted then the verifying officer can bring such fault to the notice of the Superintendent of Police (Investigation) of the concerned District who can then initiate the process contemplated by the provisions of Article 18(6) of the Police Order, 2002 for change of investigation. In some cases an impression is being entertained among some senior police officers that the provisions of Article 18(6) of the Police Order, 2002 pertain tovertical' change of investigation and not to `horizontal' transfer of investigation, the former standing for change of investigation by authorities outside and above the relevant District and the latter denoting transfer of investigation by officers performing duties within the relevant District. Such a distinction is innovative but totally artificial and self-created and a distinction motivated to defeat the very purposes of Article 18(6) of the Police Order, 2002 so as to perpetuate the maladies for the removal of which the said Article had been introduced. High Court categorically rejected all notions regarding such a distinction.

An ex-officio Justice of the Peace cannot step into the shoes of a competent police authority so as to himself pass an order transferring investigation of a criminal case and that his role in this regard is confined only to get the process under Article 18(6) of the Police Order, 2002 activated if the complaint before him establishes that the complaining person's recourse under section 18(6) of the Police Order, 2002 has remained unattended to so far. It, thus, follows that if the complaining person has not yet even applied before the competent authorities under Article 18(6) of the Police Order, 2002 seeking change of investigation then his complaint under section 22-A(6), Cr.P.C. is not to be entertained by an ex-officio Justice of the Peace as no occasion has so far arisen for interference in the matter by an ex-officio Justice of the Peace. The same principle has consistently been followed by High Court while dealing with writ petitions seeking transfer of investigations.

If the competent authorities under Article 18(6) of the Police Order, 2002 have already attended to the request of the complaining person regarding transfer of investigation and have not found the case to be a tit case for transfer of investigation then too an ex-officio Justice of the Peace cannot interfere in the matter as the competent authorities have already consciously attended to the matter and there is nothing left for the ex-officio Justice of the Peace to get activated or initiated. An ex­officio Justice of the Peace is not to assume the role of an appellate, revisional or supervisory authority in that respect.

An ex-officio Justice of the Peace, like any judicial or other authority outside the police hierarchy, should be extremely slow in directly interfering with the matter of transfer of investigation and in an appropriate case he may interfere only where the authorities mentioned in Article 18(6) of the Police Order, 2002 have already been approached by the complaining person but such authorities have failed to attend to his grievance and the application of the complaining person is lying unattended to. Even in such a case an ex-officio Justice of the Peace may refuse to interfere in the matter unless it is established to his satisfaction that some specific and particular material pieces of evidence had been missed out by the investigating officer and the same remain to be collected by the police. An ex-officio Justice of the Peace may not interfere in such a matter unless he feels satisfied that the required evidence had either not been collected or that further evidence is required to be collected in a given case. In such a case an ex-officio Justice of the Peace may issue a direction to the concerned police authority to get the process under Article 18(6) of the Police Order, 2002 activated so that an appropriate and suitable decision on the complaining person's grievance can be made by the competent authorities under Article 18(6) of the Police Order, 2002 one way or the other. While attending to such a complaint an ex-officio Justice of the Peace cannot issue a direction changing the investigation of a criminal case on his own.

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

----S. 22-A(6)---Complaint about failure to finalize investigation of a criminal case and to submit a challan within a reasonable time---Kind of "directions" can/should an ex-officio Justice of the Peace issue in respect of such complaint while exercising his jurisdiction under S.22-A(6), Cr.P.C. elaborated.

An ex-officio Justice of the Peace seized of a complaint regarding failure of the Police to finalize investigation of a criminal case and to submit a challan, within the stipulated time should require the investigating officer of the relevant case to explain the reason for the delay in that regard and also to explain as to why a recommendation may not be made by him to the concerned quarters for appropriate action in terms of the action taken by the Hon'ble Supreme Court of Pakistan in the above mentioned case. If the explanation submitted by the investigating officer is found by the ex-officio Justice of the Peace to be unsatisfactory then he may issue a direction to the Superintendent of Police (Investigation) of the relevant District to ensure finalization of investigation and submission of Challan at the earliest possible time and may also, depending upon the circumstances of the case, either warn the relevant investigating officer to be careful in that regard in future or issue a direction to the relevant higher police authority or the relevant Public Safety and Police Complaints Commission to consider the complaint and to take appropriate action against the delinquent police officer under the relevant provisions of the Police Order, 2002 or under any other law applicable to such misconduct.

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

----S. 22-A(6)---Remedies against non-compliance of directions issued by an ex officio Justice of the Peace enumerated.

An ex-officio Justice of the Peace in Pakistan does not perform or discharge any judicial function and, therefore, the law relating to Contempt of Court is inapplicable to an alleged non-compliance of any direction issued by him under section 22-A(6), Cr.P.C. However, a direction issued by him under section 22-A(6), Cr.P.C. is grounded in lawful authority conferred upon him by the said legal provision and by virtue of the provisions of Article 4(1)(m) of the Police Order, 2002 "every police officer" is under a "duty" to "obey and promptly execute all lawful orders". There are, therefore, threefold remedies available against non-compliance of directions issued by an ex-officio Justice of the Peace under section 22-A(6), Cr.P.C., i.e. firstly, upon a complaint received by him regarding non-compliance of his earlier direction an ex-officio Justice of the Peace can issue a direction to the relevant police authority to register a criminal case against the delinquent police officer under Article 155(c) of the Police Order, 2002 or, secondly, he can issue a direction to the relevant higher police authority or the relevant Public Safety and Police Complaints Commission to take appropriate action against the delinquent police officer under the relevant provisions of the Police Order, 2002 or under any other, law relevant to such misconduct and, thirdly; the complaining person can approach this Court under Article 199 of the Constitution seeking issuance of an appropriate writ directing the defaulting police officer to do what the law requires him to do.

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

----S. 22-A(6)---Unsustainability or otherwise of the impugned orders passed by different ex-officio Justices of the Peace mentioned.

Nemo for Petitioner (in Writ Petition No. 11862 of 2004)

Nemo for Petitioner (in Writ Petition No. 14415 of 2004).

Erum Sajjad Gul for Petitioner (in Writ Petition No. 17169 of 2004).

Tanvir Ahmad Sheikh for Petitioner (in Writ Petition No. 16453 of 2004).

Muhammad Hanif Khatana, Additional Advocate-General, Punjab with Tahir Mahmood Gondal, Assistant Advocate-General for Respondents No. 1 to 6 and 8 (in Writ Petition No. 11862 of 2004), Respondents No. 1 to 4 (in Writ Petition No. 14415 of 2004), Respondent No. 1 (in Writ Petition No. 17169 of 2004) and Respondents Nos. 1 to 4 (in Writ Petition No. 16453 of 2004).

Muhammad Javed Kasuri for Respondent No. 5 (in Writ Petition No. 14415 of 2004).

Zaheer-ud-Din Babar for Respondent No. 5 (in Writ Petition No. 16453 of 2004).

Nemo for the Remaining Respondents (in all the Writ Petitions).

Dates of hearing: 11th, 18th, 24th February and 3rd March, 2005.

P L D 2005 Lahore 568

Before Asif Saeed Khan Khosa, J

AAMIR SHEHZAD---Petitioner

Versus

THE STATE and another---Respondents

C. Ms. Nos.1 and 2 of 2005 in Writ Petition No. 9036 of 2005, decided on 25th May, 2005.

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

----S. 489-F---Specific Relief Act (I of 1877), S. 56(e)---Constitution of Pakistan (1973), Arts. 199 & 4---Constitutional petition---Quashing of F.I.R. registered in respect of dishonouring of a cheque---Petitioner had contended that a civil suit had already been filed by him against the complainant regarding the same cheque and prior to that registration of the impugned F.I.R., an injunctive order had been issued by the Civil Court in respect of the said cheque and its use by the complainant; that the impugned F.I.R. was a counterblast to the civil suit already filed by him against the complainant; that the relevant cheque had been issued by he petitioner in favour of the brother of the complainant but the same had been returned to the petitioner and later on the said cheque had been stolen by the complainant for the purpose of registration of the F.I.R. in question and that the F.I.R. was based upon nothing but malice on the part of the complainant---Validity---Petitioner had admitted that the alleged theft of the cheque had never been reported to the police--­Alleged dishonouring of the relevant cheque had come about prior to issuance of any injunctive order by a Civil Court and, thus, the offence, it' any, had already been committed before passing of injunctive order by the Civil Court---Laying of an information before the police regarding commission of a cognizable offence could not be stopped by a Civil Court---No injunctive order could be issued against the law---Article 4 of the Constitution provided an inalienable right of every citizen to be treated in accordance with law---No injunction could be granted by a Civil Court against criminal investigation or in any criminal matter under S.56(e), Specific Relief Act, 1877---High Court declined interference in the matter at such a stage.

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

---S. 489-F---Constitution of Pakistan (1973), Arts. 199, 89 & 270AA--­'onstitutional petition---Contention of the petitioner was that section 489-F, P.P.C. had been inserted in the Penal Code through an Ordinance which had lapsed after expiry of four months, as was contemplated of the provisions of Art. 89 of the Constitution, and, thus S. 489-F, P.P.C. was no longer a part of the Pakistan Penal Code, 1860---Validity---Held, through the Provisional Constitution (Amendment) Order, 1999 promulgated on 14-11-1999 it had categorically been provided that "An Ordinance promulgated by the President or by the Governor of a Province shall not be subject to the limitation as to its duration prescribed in the Constitution", which Order had subsequently been saved by the Legislature through Art. 270-AA of the Constitution---Section 489-F, P.P.C., in view of such legal position, was still a part of Pakistan Penal Code, 1860.

Iftikhar Shahid for Petitioner.

P L D 2005 Lahore 571

Before Umar Ata Bandial, J

NATIONAL SUGAR INDUSTRIES LTD. ---Petitioners

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petitions Nos.847, 698, 3646, 3645, 3647 and 3648 of 2005, heard on 18th April, 2005.

(a) West Pakistan Sugarcane (Development Cess) Rules, 1964---

---R. 5---West Pakistan Finance Act (XXXIV of 1964), S.14-­onstitution of Pakistan (1973), Art. 199---Constitutional petition---Default in payment of sugarcane cess by the petitioners (Sugar Mills)­--Provincial Government allowed the petitioners to clear their default in payment of Sugarcane Cess through monthly instalments---All the petitioners had faithfully performed their instalments agreement but alleged that after a bulk of the over due Cess had been cleared by the petitioners each of them had received a notice from the Cane Commissioner demanding payment of penalty for committing default--­Validity---Installment agreement between the parties did not contain any term that waived the charge of penalty claimed---Claim of petitioners for waiver of penalty amount was therefore, at best, based upon the omission by the Authorities to claim penalty at any stage prior to or at the time or concluding the instalment agreement---Right to charge penalty was not derived from the consent of the parties but emanated from S.14, West Pakistan Finance Act, 1964 that created the charge of penalty and R.5(1), West Pakistan Sugarcane (Development Cess) Rules, 1964 hereby the time, manner and procedure for collection of penalty wa­s spelled out---Liability to pay penalty, therefore, would survive both the absence of the instalment agreement as well as its failure to state the petitioner's non-liability thereto---Silence on the point in the installment agreement operated to preserve the petitioner's obligation to pay such large rather than to extinguish the same.

(b) West Pakistan Sugarcane (Development Cess) Rules, 1964---

----R. 5(1)---West Pakistan Finance Act (XXXIV of 1964), S.14--­Constitution of Pakistan (1973), Art. 199---Constitutional petition Default in payment of Sugarcane Cess by Sugar Mills---Clearance of dues by instalments by the Mills under an agreement with the Provincial Government---Penalty for default---Quantum---Imposition of maximum penalty---Once the liability of the Sugar Mills to pay for their past default to clear Sugarcane Cess dues was determined to exist, the question that remained was as to what quantum of penalty could be recovered from the Mills---Cane Commissioner had discretion to impose penalty that was subject to the maximum ceiling of the amount of tax that was in arrears---Direction given in the policy framed for imposing penalty required that pending approval of the policy by the Provincial Government, the terms thereof were to be adhered uniformly by the Authorities as a measure of transparency and reasonableness---Provincial Government, in the present case, had entered into an instalment agreement with the Mills acknowledging their entitlement for sufficient reason to pay arrears of Sugarcane Cess development in instalments--­-Factum of such an agreement showed that the Mills demonstrated, within the meaning of the Policy, the existence of "unavoidable circumstances" and huge "magnitude of default" by them, which would render the literal adherence to the rule of maximum penalty applicable for default for a period of more than 12 months to be unreasonable---Where the period in default exceeds 12 months, policy itself gives a discretionary margin of relief in the quantum of penalty to be applied from 51% to 100% of the Sugarcane Cess amount in arrears---Impugned order of the Authorities showed that they had not applied their minds to the said discretionary margin nor did they consider at all the impact of mitigating circumstances of the case under the terms of the Policy, which stood acknowledged by the conclusion of the instalment agreement---Failure by the Authorities to consider the factors relevant to the imposition of penalty as highlighted in the terms of the Policy and to exercise their discretion in accordance therewith in fixing the quantum of penalty, represented a failure to exercise jurisdiction fairly and reasonably in the circumstances of the case---Liability of the Mills to pay penalty for their default to discharge their Sugar Cess dues could not be doubted, however, it was equally clear that the Mills had a good case for a reduced amount of penalty to be imposed in view of the circumstances of the case---Absence of further default in the payment of instalments might be another consideration for the Authorities in relaxing the quantum of penalty---Each of such factors provided criteria for the exercise of discretion by the Authorities---Important standard to be observed by the Authorities whilst exercising the discretionary power to levy penalty was that they must act transparently, reasonably, fairly and uniformly and their assessment of the different criteria impinging upon the quantum of penalty to be imposed must be based upon reasoning and material contained on the record---High Court declared that the impugned assessment of maximum penalty by the Authorities in the case of each Mill uniformly was void and unlawful---Authorities were directed to conduct fresh proceedings for the assessment of the said liability of Mills subject to Mills' depositing 25% of their respective amounts of Sugarcane Cess in default---Mills should also tile applications before the Cane Commissioner providing grounds having reference to the terms of Policy for remission in 'lie quantum of penalty payable by them to be determined by the Cane Commissioner in the range between the amount of their down payment to the ceiling fixed by the Policy---Such applications by the Mills shall be disposed of in the light of principles noted in the present judgment after giving an opportunity of fair hearing to the Mills.

Muzamil Akhtar Shabbir for Petitioners.

Najeeb Faisal Chaudhry, Addl. Advocate-General with Cane Commissioner, Punjab (in person) for Respondents.

Date of hearing: 18th April, 2005.

P L D 2005 Lahore 578

Before Mian Saqib Nisar, J

FATEH SHER and others---Petitioners

Versus

MUHAMMAD HAYAT and others---Respondents

Civil Revisions Nos.2547 and 3044 of 2004, FAO No.264 of 2002 and 330 of 2004, decided on 15th April, 2005.

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

----S. 3---Court, under S.3, Limitation Act, 1908 is duty bound to see if a lis before it was within time or not.

(b) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----Ss. 3 & 7---Termination of limited estate held by female under custom---Such limited ownership in respect of the immovable properties held by a Muslim female under the custom, was terminated under S.3, West Pakistan Muslim Personal Law (Shariat) Application Act, 1962--­Limitedly owned property would revert back to the last male owner, to be distributed amongst his legal heirs, whosoever were surviving at that time, according to Muslim law of inheritance and in such a situation female limited owner remained entitled to the ownership of 1/4th share and remaining portion would. go to the legal heirs accordingly---Decree dated 19-11-1951, on account of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 would be rendered nugatory and no further action on the basis of such decree under the custom could have been initiated or sustained---No limitation for co-sharer to enforce his such right against another co-sharer---Period of limitation, shall not impede the enforcement of the rights of inheritance.

(c) Limitation ---

----Co-sharer---No limitation for a co-sharer, to enforce his right of inheritance against another co-sharer.

(d) Limitation---

---- Period of limitation shall not impede the enforcement of the rights of inheritance.

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

----Art. 144---Specific Relief Act (I of 1877), S.42---Suit for declaration for the enforcement of rights of co-ownership and inheritance which the plaintiffs had acquired under the law---Limitation---General law regarding the suits for possession of the immovable property would not create any hurdle in the way of plaintiffs---Possession of the defendants was in the nature of the co-owners and Art. 141, Limitation Act, 1908 was not attracted to the matter at all.

(f) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----Ss. 3 & 2A---Specific Relief Act (I of 1877), S. 42---Suit for declaration against limited owner (widow) wherein one of the plaintiffs had claimed that deceased husband of the widow, had made a will in her favour, about the whole of the property and the parties in the suit compromised of their own free-will, whereby widow voluntarily gave 2/3rd share of the estate to the plaintiffs, while 1/3rd share was retained by her being the limited owner---Plaintiffs, in pursuance of the said decree, got sanctioned the mutation and thereafter their possession was under the decree---Effect---To all intents and purposes, plaintiffs became the exclusive owners of the property, which thereafter, never remained a part of the estate of limited owner widow, to be distributed after the termination of her limited ownership and it was only 1/3rd share, which remained with the widow as the limited owner---Principles.

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

----S. 42---Suit for declaration about right of inheritance in the property and also for joint possession with prayer for separate possession--­Effect---If the plaintiffs were declared to be the co-sharers of the property, they would have to get Hissadari possession, therefore, the omission in asking the separate possession in the suit, would not bring the case of the plaintiffs within the mischief of proviso to S.42, Specific Relief Act, 1877.

(h) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----Ss. 3 & 2-A---Termination of limited. estate held by female---Decree dated 7-12-1937 passed in the present case, was not under custom, rather, was based upon an agreement between the female limited owner and other heirs, arrived at, out of their free-will containing a superadded command of the Court; the said decree was never challenged by the limited owner female or any other person deriving any subsequent, title from her and had thus become final; said decree was given due effect in the Revenue Record and the, possession of plaintiffs was recognized under the decree; the said decree when considered in the subsequent litigation about the reversionary rights of plaintiffs against the limited female owner and the contesting party, was affirmed---Decree, however, clearly showed that the same, despite having abated by the operation of, law, 2/3rd share was severed from the limited ownership of the limited female owner and was given in the absolute ownership of the plaintiffs--­Decree, in circumstances, was never under the custom.

Sheikh Naveed Shahryar for Petitioners:

Muhammad Farooq Qureshi Chishti for Respondents Nos. 1 to 4, 7(ii)(iii), 9(i) to (iv) and 10.

Khawaja Saeed-uz-Zafar for Respondents Nos. 6, 7(i)(iv), 8(i) to 8(vii) and 11 to 16.

Date of hearing: 15th April, 2005.

P L D 2005 Lahore 589

Before Ali Nawaz Chowhan, J

MUHAMMAD AZHAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.184-B of 2005, decided on 20th May, 2005.

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

--S. 10---Husband (complainant) had levelled a charge of Zina against his wife with further allegation that she had given birth to an illegitimate child as a result of Zina with the accused---Deoxyribonucleic acid commonly called the DNA---Evidentiary value---Utility and evidentiary value of the DNA Test was acceptable but not in a case falling under the Penal provisions of Zina punishable under Hudood Laws having its own standard of proof---Principles.

Islam was not opposed to science and its achievements, rather it encourages pursuit of knowledge and research and the DNA test, which forms an important basis for determining genetically about a biological father, has a place in evidence. But the question is, can such an evidence be used against an offence of Zina under the Islamic Law which has prescribed a standard of proof for that purpose.

The DNA to be tested can be extracted from the cells of a variety of body fluids and tissues. While the majority of tests are carried out using DNA from blood cells, cells obtained from the lining of the cheek using a mouth-wash or cells in the roots of a person's hair.

Several law professors and thinkers wish to hold fast to the age old presumption of maternity and favour the doctrine which protects the parent/child relationship and discourages dabbling in such questions in the best interest of the family life. It is suggested that raising such a question should have the embargo of time and should be a very serious question to be entertained and usually dismissed. In a marriage, whew the biological father is unknown or without financial means the Court may find the husband's responsibility in support of the child.

Islamic Law has also leaned in favour of legitimization rather than stigmatization.

Here is a case where a spouse is leveling a charge against another spouse, both of whom are Muslims, and the question of this type in the legal sense comes within the ambit of Ayats Nos.6 to 9 of Surah Al-Noor.

In either case, where the wife takes the oath, as prescribed, or the husband, the marriage stands dissolved because obviously the parties cannot live together happily after such an incident. The breaking of the marriage itself is a great punishment because it breaks the home and it also creates stigmas against both.

Others who launch a charge of Zina are required to produce four witnesses to support their allegations and upon failure are liable to suffer punishment as prescribed in Ayat No.4 of Surah Al-Noor.

Besides the evidence of four witnesses as is prescribed, only voluntary confession can result in the punishment prescribed for Zina.

Offence of Zina is specific to the Islamic Jurisprudence and lays down the standard of proof, the rationale behind the standard of proof and the punishment. The purpose being to check licentiousness, lewdness, adultery or vulgarity committed at public places where four or more persons could witness the same. It is then that the State comes forward punishing those so involved because it is a crime against the society and not compoundable. So, amongst the standard of proof, there is a requirement of four witnesses because of its nexus with the rationale and not otherwise.

The DNA test may be an important piece of evidence for a husband to establish an allegation of Zina against his wife and use this as a support justifying the taking of the oath as ordained by Surah Al-Noor, which leads to the consequences of breaking the marriage. The DNA test may further help in establishing the legitimacy of a child for several other purposes. Therefore, its utility and evidentiary value is acceptable but not in a case falling under the penal provisions of Zina punishable under the Hadood Laws having its own standard of proof.

Manzoor Hussain's case 1992 SCMR 1191; Surah Al-Noor Ayats Nos. 4, 6 to 9 and Talheem-ul-Quran, Vol. III scribed by Syed Abu-ul-Aala Maudoodi ref.

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

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Bail, grant of---Husband (Complainant) had levelled a charge of Zina against his wife with. further allegation that she had given birth to a child as a result of Zina with the accused---Held, as the spouses had as yet to undergo the exercise prescribed by Sura Al-Noor before a Court of law and the fate of the case as well as guilt of the accused were as yet to be established, as such the matter was still of further inquiry---High Court, in circumstances, admitted the post-arrest bail. of the accused provided he furnished bail bond in the sum of Rs.25,000 with a surety in the like amount to the satisfaction of the Trial Court.

Rana Habib-ur-Rehman and Atiq Hussain Khan, Muhammad Ismail Qureshi Amicus Curiae for Petitioner.

Arshad Ali Stiff Qureshi for the State.

Hafiz Abdur Rehman Ansari for the Compalainant.

Muhammad Hanif A.S.-I. with record.

Date of hearing: 5th May, 2005.

P L D 2005 Lahore 596

Before Syed Zahid Hussain, J

JDW SUGAR MILLS LTD. through G.M. Finance---Petitioner

Versus

PROVINCE OF PUNJAB through Secretary Department of irrigation and Power, Lahore and another---Respondent

Writ Petitions Nos.3761 of 2002, decided on 10th June, 2005.

(a) Interpretation of statutes---

----Fiscal statute---Salutary principles to be kept in view while deciding the controversy enumerated.

Following are the salutary principles to be kept in view while deciding fiscal controversy:

(i) That in view of wide variety of diverse economic criteria, which are to be considered for the formulation of a fiscal policy, Legislature enjoys a wide latitude in the matter of selection of persons, subject-matter, events, etc. for taxation. But with all this latitude certain irreducible desiderata of equality shall govern classification for differential treatment in taxation law as well.

(ii) That Courts while interpreting laws relating to economic activities view the same with greater latitude than the laws relating to civil rights such as freedom of speech, religion etc., keeping in view the complexity of economic problems which do not admit of solution through any doctrinaire or strait-jacket formula.

(iii) That in the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to the legislative judgment.

(iv) That the Legislature is competent to classify persons or properties into different categories subject to different rates of tax. But if the same class of property similarly situated is subject to an incidence of taxation, which results in inequality amongst holders of the same kind of property, it is liable to be struck down on account of infringement of the fundamental right relating to equality.

(v) That `a State does not have to tax everything in order to tax something. It is allowed to pick and choose districts, objects, persons, methods and even rates for taxation if it does so reasonably'.

(vi) That while interpreting Constitutional provisions Court should keep in mind, social setting of the country, growing requirements of the society/nation burning problems of the day and the complex issues facing the people, which the Legislature in its wisdom through legislation seeks to solve. The judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid.

(vii) That the law should be saved rather than be destroyed and the Court must lean in favour of upholding the constitutionality of a legislation keeping in view that the rule of Constitutional interpretation is that there is a presumption in favour of the constitutionality of the legislative enactments unless, ex facie, it is violative of a Constitutional provision.

(viii) That generally the effect of deeming provision in a taxing statute is that it brings within the tax net an amount which ordinarily would not have been treated as an income. In other words, it brings within the net of chargeability income not actually accrued but which supposedly to have accrued notionally.

(ix) That where a person is deemed to be something the only meaning possible is that whereas he is not in reality that something, the Act required him to be treated as he were with all inevitable corollaries of that state of affairs.

?

Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary M/O Finance, Islamabad and 6 others PLD 1997 SC 582 fol.

(b) Punjab Finance Act (XXXIV of 1964)-----

----S.13, Explanation (c) [as added by Punjab Finance Ordinance (VI of 2001), S.4]---Constitution of Pakistan (1973), Arts.157 & 199---Punjab Government Notification dated 25-8-2001---Constitutional petition---Levy of electricity duty---Punjab Government Notification issued under S.13, Punjab Finance Act, 1964, dated 25-8-2001 whereby it was provided that any person generating the electric power from a Generator having the capacity of more than 500 K.W. shall pay the Electricity duty with effect from 1-7-2001, was assailed in the Constitutional petition with a further contention that notification in question was not . retrospective in effect---Validity---Held, issuance of notification in question was consistent with the legislative field of power of Provincial Government and its will---Notification in question which was issued in supersession of all previous notifications on the subject thus had the backing of the Statutory provisions, validity whereof was beyond any doubt---Levy of. duty, therefore, could not be disputed or assailed on any sustainable ground---Application of notification with effect from a date prior to its issuance could not be regarded as legal in view of the law that such subordinate legislative measures could not operate retrospectively from the date of its issuance---Principles.

?

Amanullah Khan v. Chief Secretary, Government of N.-W.F.P. and 2 others 1995 SCMR 1856 and B.P. Biscuit Factory Ltd., Karachi v. Wealth Tax Officer and another 1996 SCMR 1470; Messrs Gadoon Textile Mills and 814 others. v. WAPDA and others 1997 SCMR 641 and Messrs Fecto Cement Ltd. v. Federation of Pakistan and others PLD 2003 Lah. 531 ref.

(c) West Pakistan Electricity Duty Rules, 1964-----

----R. 11---Settlement of peripheral issues about the energy lost in the process of generation etc.---Resort could be had to the provisions of R.11, West Pakistan Electricity Duty Rules, 1964 to settle such issues and Electric Inspector could well enquire into such issues and decide the matter according to law.

?

(d) Interpretation of statutes---

----Provision of law cannot be interpreted in isolation, ignoring the progressive trends of time---While discovering the true meanings one must have regard to the enactment as a whole, to its object and to the scope and effect of the provisions.

?

(e) Interpretation of statutes-----

----Notification---Subordinate legislation like a notification cannot operate retrospectively but from the date of its issuance.

?

Ijaz Ahmed Awan, Salman Akram Raja, Noman Akram Raja and Mamood Rasheed for Petitioners.

Ch. Aamer Rehman, Addl. A.-G., Punjab, M.A. Aziz and Abdul Rehman Madni for Respondents.

Dates of hearing: 11th, 13th, 15th April, 10th, 17th, 19th and 20th May, 2005.

P L D 2005 Lahore 607

Before Ali Nawaz Chowhan, J

Major ANWAR-UL-HAQ---Petitioner

Versus

THE STATE-Respondent

Criminal Miscellaneous No.2076/B of 2005, decided on 11th May, 2005.

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

----S. 498---Penal Code (XLV of 1860), S.489-F---Pre-arrest bail, grant of---Matter regarding the losses suffered by the accused was one of controversy---Civil suit had admittedly been filed by the accused side---Whether dishonesty was the consideration with the accused at the time he issued the cheque was a matter of further inquiry---Rationale behind the enactment of S.489-F, P.P.C. did not call for a mechanical action immediately on return of the cheque by the banker, but was to be used only where, prima facie, the purpose of issuing the cheque was dishonesty pure and simple in the matter of payment of loan---Past conduct of the party in this respect was also to be seen---Old standing business relationship between the parties was also reflected from the record---Punishment prescribed for the offence was not beyond three years---Accused had joined the investigation and fully explained his position---Interim pre-arrest bail granted to accused was confirmed in circumstances.

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

----S. 489-F---Application and scope of S.489-F, P.P.C,---Rationale behind the enactment of S.489-F, P.P.C. does not call for a mechanical action immediately when a cheque is returned by a banker., but is to be used only where, prima facie, the purpose of issuing the cheque was dishonesty pure and simple in the matter of payment of loan---Past conduct of the party is also to be seen---Business transactions, genuine disputes and contractual obligations may not constitute an intention for the offence.

Malik Saeed Hassan for Petitioner.

Muhammad Gul Zaman for the Complainant.

Muhammad Sarwar Zaman for the State.

Akhtar, S.I.

P L D 2005 Lahore 610

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD YASIN---Petitioner

Versus

THE STATE-Respondent

Criminal Revisions Nos.309 to 311 of 2005, heard on 19th May, 2005.

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

----Ss. 514 & 499---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Forfeiture of surety bonds---Accused for whom petitioner stood surety having failed to appear in the Court, surety bonds submitted by petitioner were forfeited---Petitioner had challenged order forfeiting surety bonds, in revision, contending that bonds submitted by him were for appearance of accused on specific dates on which accused had appeared before the Court and thus, petitioner could not be penalized for accused's non-appearance before the Court after the specified dates; that he had not stood as surety for accused for any monetary gain, but he had done so on humanitarian 'consideration and that while passing impugned order, the Court had taken a very harsh view---Contentions were repelled as acceptance of same would amount to require submission of fresh bail bonds by the surety for each date of hearing to which case was adjourned---Provisions of S. 499, Cr.P.C. had revealed that surety was bound to produce accused before the Court on the dates of hearing until otherwise was directed by the Court---On filing of bond, surety would become responsible for production of accused before the Court on each and every date of hearing till the final decision of the case/matter unless directed otherwise by the Court concerned---In the present case orders passed by the Court at the time of granting ad interim pre-arrest bail and on different dates during the proceedings, were silent with regard to the liability of surety that he was responsible for the production of accused only for a specific date---Detailed orders passed by the Court being not adverse to settled principles governing exercise of jurisdiction under S.514, Cr.P.C., revision against impugned order, was dismissed.

Abdul Hafeez v. The State 1993 MLD 541 and Sardar Muhammad v. The State 1998 PCr.LJ 236 ref.

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

----Ss. 497, 498, 499 & 514---Bail granting order---Liability of surety---Court while passing bail granting order, should specifically mention about liability of surety---Court accepting the bail bond also should not accept same mechanically without examining entries made therein---Court should ensure that those bonds clearly specify the dates, including extended dates for interim bail or proceedings for which surety be made liable for production of accused before the Court.

Ahmad Awais Khurram'for Petitioner.

M. Akbar Tarar, Addl. A.-G. for the State.

Date of hearing: 19th May, 2005.

P L D 2005 Lahore 616

Before Abdul Shakoor Paracha, J

Prof. Miss RABIA NOOR---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petitions Nos.2344 of 2003 and 558 of 2004, decided on 2nd March, 2005.

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

----Art. 199---Constitutional petition---Locus standi to file---Right to make an application under Art. 199 of the Constitution has been given to an "aggrieved party" and not merely to such person who has been "injured" by a violation of "right" or "franchise" or by a threat thereupon--Article 199 of the Constitution. does not say that an application, under it, can be made only by such party who can say that his "right" has been invaded upon and that he has, therefore, been "injured" in such a sense--Expression "right" is well-known concept in jurisprudence and the converse of the same is "injury".

(b) Emigration Rules, 1979---

-----Rr. 2(gg) & 26---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Overseas Pakistani's Foundation had been set up by the Federal Government and was subsequently registered" as a company limited by guarantee under the Companies Act, 1913 and had its own Memorandum and Articles of Association---One of the objects of the constitution of the Foundation was, inter alia, to establish and manage educational institutions in Pakistan and creation of Overseas Pakistanis Foundation Girls College, Islamabad was one of such objectives---Overseas Pakistanis Foundation Girls College, Islamabad, in circumstances, could not be said to be under the direct control of Ministry of Labour, Manpower and Overseas Pakistanis---Said College was neither an autonomous body nor a Department, it was an extension of the Foundation itself---Ministry of Labour, Manpower and Overseas Pakistanis did not have the statutory or Constitutional mandate for creation of the Board of Directors for the College nor had the said resolution by the Ministry been passed in exercise of the powers delegated under any law or legal instrument---College being not a department of Federal Government and not performing functions in connection with the affairs of the Federation within meaning of Art. 199 of the Constitution, the Constitutional petition was not competent---Employees of the College for their terms and conditions of service, could voice their grievances before the Service Tribunal---Principles.

Mrs. M.N. Arshad and others v. Miss Naeema Khan and others PLD 1990 SC 612; Dr. Rashid Anwar v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and 7 others 1996 SCMR 1572 and Tanvir Iqbal Siddiqui v. The Principal, Overseas Pakistan's Foundation (OPF), Girls College, Islamabad 1994 SCMR 958 ref.

Muhammad Waqar Rana for Petitioner (in W.P. No.2344 of 2003).

Zulfiqar Khalid Maluka for Petitioner (in W.P. No.558 of 2004).

Mian Gul Hassan Aurangzeb for Respondents.

Shamshadullah Cheema, Standing Counsel.

P L D 2005 Lahore 621

Before Mian Saqib Nisar, J

HAPPY FAMILY ASSOCIATES---Petitioner

Versus

Messrs PAKISTAN INTERNATIONAL TRADING CO.---Respondent

Civil Revision No.2004 of 2003, decided on 20th June, 2005.

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

---O. XXXVII, Rr. 1, 2 & O.XXI, R.23-A---Suit for recovery of money on the basis of cheque---Execution of decree---Errors, mistakes, inaccuracies, committed by the Court, while passing decree, or allegedly in disregard of law, by no stretch of legal acumen could be said to be suffering from the vice of the want of jurisdiction and therefore inexecutable.

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

---O. XXXVII, Rr.1 & 2---Suit for recovery of money on the basis of cheque---Grant of leave to defend the suit---Order of attachment before judgment---When the Trial Court passed the conditional leave granting order, requiring the defendant to furnish the, surety bonds and the defendant in compliance of the said order, filed the bonds, which, however, due to certain inadequacies, were subsequently rejected by the Court and decree was passed, which meant that earlier order of attachment, before the judgment, if any, was withdrawn by the Court and the specific procedure provided by O.XXXVII, C.P.C. for the grant of leave, conditionally or otherwise was followed---When the said decree was challenged by the defendant before High Court, the Court directed the defendant to furnish fresh surety bonds to the satisfaction of the Court within one month and in the judgment, it was provided that in case of default in compliance of the said direction, the suit filed by the plaintiff shall stand decreed---Question of attachment of property had never been raised by the defendant, before the High Court and thus order of attachment lost its efficacy and it was the judgment of the High Court, which the defendant had to follow and comply by furnishing fresh sureties in terms thereof.

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

---O. XXXVII, Rr.1 & 2---Suit for recovery of money on the basis of cheque---Grant of leave to defend the suit on furnishing of the surety bonds by the defendant---Scrutiny of surety bonds-Defendant, who was supposed to furnish surety bonds having failed to do so, the judgment had to take its effect which was given by the Trial Court when the suit was decreed---Scrutiny of surety bonds was not required in the present case.

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

-- O.XXXVII, Rr. 1 & 2---Suit for recovery of money on the basis of cheque---Refusal of Court to grant leave to defend the suit or defendant having failed to fulfil the conditions of leave granting order---Ex parte decree, execution of---Procedure---Court of law was required to see, that there was no legal impediment in the way of passing the decree, besides the Court for its own satisfaction, may also ask the plaintiff to produce such evidence, which usually was needed in the matter, where the defendant of a case, had been proceeded ex parse---Where the defendant of a suit under O.XXXVII, C.P.C. had failed to meet the conditions of the leave granting order, he had not been granted the right to participate in the proceedings---Failure to follow the process requiring the plaintiff of the case to produce the evidence in proof, therefore, at the best may be a mistake or the omission of the Court to follow the law---Such error, in no manner, rendered the decree as void or nullity in the eye of law, relegating the same to be unenforceable and inexecutable and could not be so declared by the executing Court, while exercising its jurisdiction, subject to the vital and fundamental rule, that said Court could not go behind the decree and examine its, correctness or legality---Such an amiss could only be rectified in appeal, revision, review or by any other specific remedy provided by law---Marked and conspicuous difference existed between the decree, which was nullity and thus inexecutable and the one suffering from any error or illegality etc.---Principles.

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

----O. XXXVII, Rr. 1, 2 & O.II, R.2---West Pakistan Civil Courts Ordinance (II of 1962), S.7---Suit for recovery of money on the basis of cheque---Passing decree, vis-a-vis amount of profit claimed in the suit---Validity---Such being a case of erroneous exercise of jurisdiction, which should have been challenged by the defendant in appropriate proceedings but was not a vice of the nature which affected the very jurisdiction of the Court to pass the decree---Order .II, R.2, C.P.C. provided that every suit shall include the whole of the claim, which the plaintiff was entitled to make in respect of cause of action, therefore, if on account of a cause of action based on a negotiable instrument, the suit was initiated under O.XXXVII, C,P.C., the ancillary, incidental and the consequential relief such as the loss of profit etc., could be, rather should be included in the same suit to avoid the bar of O.II, R.2, C.P.C.---Under S.7, West Pakistan Civil Courts Ordinance, 1962, the District Judge had the original jurisdiction to try the civil suits, without there being any limits as regards the value of the subject-matter and such jurisdiction was exercisable by the Additional District Judges as well---Decree vis-a-vis the amount of profit claimed in the suit, therefore, was not inexecutable.

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

----O. XXXVII, Rr. 1 & 2, O.XXI, R.23-A & S.115---Revision---Suit for recovery of money on the basis of cheque---Defendant (petitioner in revision) did not furnish proper surety bonds to the Court to meet the condition of leave at the very first instance; defendant failed to comply with the judgment of High Court passed in regular first appeal and the surety bonds were not furnished within the time provided; defendant had not challenged the order of the High Court in first appeal and review thereof before the Supreme Court and the said judgments of High Court had thus attained finality; Trial Court had competently passed the order directing the defendant to deposit the decretal amount in terms of O.XXI, R.23-A, C.P.C. but said order was not complied with and on dismissal of defendant's objection petition defendant did not challenge the order, rather moved two applications under S.12(2), C.P.C. which again were dismissed and said orders were not assailed any further, which all showed that throughout the attitude of the defendant and his conduct, had been to avoid his liability, towards the plaintiff and that most of the pleas raised had not been set as grounds of attack in the revision petition---High Court, in circumstances, declined to exercise its discretionary jurisdiction in favour of the defendant.

Malik Gul Hazsan & Co. v. Allied Bank of Pakistan 1996 SCMR 237; The State v. Asif Adil and others 1997 SCMR 209; Aurangzeb v. Massan and others 1993 CLC 1020; Muslim Commercial Bank Ltd. v. Akbar Fibre Mills Ltd. 1993 CLC 2209; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; Rehmat Ali v. Additional District Judge, Multan 1999 SCMR 900; Abdul Sattar and others v. Ibrahim and others PLD 1992 Kar. 323; Mercantile Fire and General Insurance Co. of Pakistan Ltd. v. Messrs Imam & Imam Ltd. 1989 CLC 2117; Col.(Retd.) Ashfaq Ahmed and others v. Sh. Muhammad Wasim 1999 SCMR 2832; Fidaally v. Syed Iqbal Shabbir and another PLD 1960 Kar. 241; Messrs Fulbrite (Pakistan) Ltd. Karachi v. Messrs United Bank Ltd. Karachi PLD 1976 Kar. 478; Rangaswami Naddar v. Minor - Pitchaimani Nadar AIR 1942 Mad. 29; N.P. Ganapathy Naucker and others v. A.M. Govindarajulu Naidu AIR 1947 Mad. 70; Muhammad Aslam v. Falak Sher 1990 CLC 1119 and Muhammad Yousaf v. Allah Yar PLD 1987 Lah. 101 ref.

A. K. Dogar for Petitioner.

Waqar Mushtaq Ahmed for Respondent.

Date of hearing; 2nd June, 2005.

P L D 2005 Lahore 631

Before Syed Shabbar Raza Rizvi, J

ABDUL RAZZAQ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4505-B of 2005, decided on 12th July, 2005.

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

----S. 295--Scope and application of S.295, P.P.C.---Provision of S.295, P.P.C. is attracted against a person who destroys, damages, or defiles any place of worship or any object held sacred by any class of persons---F.I.R. in the present case, did not indicate that the accused destroyed, damaged or defiled any place of worship though he was present in the mosque---Exact allegation against the accused was that he uttered some words against the religion of the complainant and also snatched religious books which were being read by him---Such act of the accused did not amount to destruction, damage or defiling of the mosque, a religious place in the context of the present case.

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

----S. 295-A---Scope and application of S.295-A, P.P.C.---Provision of S.295-A, P.P.C. is attracted against a person who deliberately and maliciously insults or attempts to insult the religion or the religious belief of a person of class of persons---Section 295-A, P.P.C. could be attracted if the accused had spoken few words against the religion and had snatched the religious books from the complainant, who was Imam Masjid and reading the said books in the mosque.

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

----S. 298--Scope and application of S.298, PP.C.---Section 298, P.P.C. is attracted against a person who utters any words or makes any sound within the hearing of a person with intention of wounding the religious faith of that person-Provision of S.298, P.P.C. would be attracted to the case where the accused had spoken few words against the religion and had snatched the religious books from the complainant, who was Imam Masjid and was reading those books while sitting in the mosque.

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

----Ss. 196, 173 & 4(h)---Penal Code (XLV of 1860), S.295-A---Prosecution of certain offences---Procedure---Joint reading of 5.196, Cr.P.C. and S.295-A, P.P.C. would demonstrate that offence under S.295-A, P.P.C. was not an offence against an individual, actually it was against the State, therefore, the procedure required that Court shall only take cognizance in offence under S.295-A, P.P.C. if the "complaint" was made by order or under authority from the Central Government or the Provincial Government concerned, or some officer empowered in that behalf by either of the two Governments---Individual interest was always subject to collective interest or State interest---Distinction existed between an "F.I.R." and a "complaint"---"Complaint under S.4(h), Cr.P.C. meant the allegation made orally or in writing to a Magistrate, with a view to his taking action under Cr.P.C. that some person, whether known qr unknown, had committed an offence, but did not include the report of the Police Officer---Case under S.295-A, P.P.C. could not proceed on the basis of challan or a final report submitted under S. I73, Cr.P.C. by a Police Officer/Investigating Officer pending against the accused, in view of S.196, Cr.P.C.---Omission to observe the provisions of 5.196, Cr:P.C. were illegality not curable under S.537, Cr.P.C.---Non-compliance of S.196, Cr.P.C. would render the subsequent proceedings nullity in the eye of law---When law required a certain act to be done. in a particular manner, it had to be done in that manner, for its validity---Principles.

Nasir Ahmad v. The State Criminal Appeal No.239 of 1995 and Bashir Ahmad v. The State 2000 PCr.LJ 902 fol.

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

----S. 497---Penal Code (XLV of 1860), S.295-A---Bail, grant of---Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs---Investigation in the case had been completed and challan submitted---Accused had been behind the bars for several months and was not required anymore for the purpose of investigation and recovery, therefore, no useful purpose would be served if he was further kept behind the bars---Sufficient grounds for further inquiry into the guilt of the accused being present, .bail was allowed to him.

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

---Ss. 196, 155(3) & 154---Penal Code (XLV of 1860), S.295-A---Non­compliance of the procedure prescribed under S.196, Cr.P.C.---Effect--- Legislature had treated an offence falling under S.295-A, P.P.C. differently and with care---Complainant had contended that S.196, Cr.P.C. referred to jurisdiction of Court to take cognizance, but did not stop police to register an F.I.R.---Contention of the complainant had no logic and substance---If registration of F.I.R. and subsequent investigation would not lead to a successful prosecution, the whole exercise of registration of an F.I.R. followed by investigation would be a futile exercise---Principles.

Mobashir Latif Ahmad for Petitioner.

Ghulam Mustafa Chaudhary for the Complainant.

Miss Saima Bashir for the State with Barkhurdar S.I.

P L D 2005 Lahore 638

Before Sh. Javaid Sarfraz and Fazal-e-Miran Chauhan, JJ

MUHAMMAD AFZAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.69-M of 2005, decided on 10th May, 2005.

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

----S. 382-B---Period of detention to be considered while awarding sentence of imprisonment---Nature and purpose---Substitution of the word "may" by the word "shall" in S.382-B, Cr.P.C. by virtue of Criminal Procedure Code (Second Amendment) Ordinance LXXI of 1979, has made the provision mandatory and it is obligatory on the Courts to give its benefit to the accused who is awarded sentence of imprisonment---Such benefit is also available to the accused whose sentence of death is reduced to imprisonment for life---Legal valuable right having been conferred upon the accused after the said amendment in S.382-B, Cr.P.C., the same cannot be ignored or refused---Object of granting such benefit is to compensate the accused for the unnecessary delay caused in the commencement of his trial.

PLD 1992 SC 11; PLD 1998 SC 152 and 1998 SCMR 1794 rel.

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

----Ss.382-B & 561-A---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Benefit of S.382-B, Cr.P.C., grant of---Accused on the reduction of his sentence of death to imprisonment for life by the High Court was entitled to get the benefit of S.382-B, Cr.P.C.---No reason had been given in the impugned judgment by the High Court for disallowing the said benefit to the accused which was only an omission---High Court had inherent powers to correct its own orders---Benefit of S.382-B, Cr.P.C. was extended to accused accordingly.

PLD 1992 SC 11; PLD 1998 SC 152; 1998 SCMR 1794 and Jewan Khan v. State 1998 PCr.LJ 1975 ref.

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

----S. 561-A---Inherent powers of High Court---High Court under S.561-A, Cr.P.C. has inherent jurisdiction to correct its own judgment.

Pir Ahmad Shah Ghagah for Petitioner.

Masood Sabir for the State.

Date of hearing: 6th April, 2005.

P L D 2005 Lahore 641

Before Maulvi Anwarul Haq, J

Mst. FATIMA BEGUM and another---Petitioners

Versus

KHUSH NASEEB KHAN and others--Respondents

Civil Revision No.305-D of 1991, heard on 24th May, 2005.

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

-----S. 4---Specific Relief Act (I of 1877), S.42---Succession---Suit for declaration---Last male owner of suit, land allotted to him, had four sons i.e. three defendants in suit and fourth one who predeceased last male owner---Said fourth one was survived by plaintiff as. his widow and the other plaintiff as his daughter---Mutation of suit-land, was taken up and attested at point of time when last male owner was not a confirmed allottee of land---Plaintiff who was daughter of deceased fourth son of last male owner, was entitled to inherit property of her grandfather/last male owner to the extent of her share in the estate of her father---It would be deemed that fourth son survived his father and then plaintiff inherited on the death of her father, her share as per Muslim law---Held, she was entitled to 1/8th share of the land.

(b) Punjab Rehabilitation and Settlement Scheme---

----Para. 46---Inheritance in case of non-confirmed allottee to be governed by para. 46 of Punjab Rehabilitation Settlement Scheme.

Zafarullah and 23 others V. Muhammad Siddiq and others PLD 1980 SC 76 ref.

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

-----S. 115---Revisional jurisdiction---Scope---Section 115, C.P.C. authorised High Court to examine the record and to pass such orders as were deemed to be just and proper---Said relief would flow from the admitted facts on the record and the Court would not wait for a party to take a plea of law in order to enable it to grant relief---Even if a plea was not taken in Trial Court or before Appellate Court or even at the time of admission of revision petition upon facts of the case, High Court was bound to grant relief to which petitioner was entitled.

Muhammad Siddiq and others v. Fateh Muhammad 1989 SCMR 57 ref.

Hakim Amir Bukhsh Awan for Petitioners.

Kanwar Intizar Muhammad Khan and Muhammad Riaz Latifi for Respondents.

Date of hearing: 24th May, 2005.

P L D 2005 Lahore 644

Before Muhammad Muzammal Khan, J

Maj. ZAHID HUSSAIN---Petitioner

Versus

CHAIRMAN, ARBITRATION COUNCIL, CANTONMENT BOARD, LAHORE and 3 others---Respondents

Writ Petition No.10765 of 2005, decided on 8th July, 2005.

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

----S. 7---West Pakistan Rules Under The Muslim Family Laws Ordinance, 1961, R.3(b)---Constitution of Pakistan. (1973), Art. 199---Constitutional petition---Notice of Talaq---Issuance of notice---Transfer of proceedings---Petitioner husband while posted at place where respondent wife also lived with him, issued notice of Talaq under S.7 of Muslim Family Laws Ordinance, 1961 to Chairman Arbitration Council at place "L", copy of which was remitted to respondent, who at relevant time was residing in that area---On application of respondent, Chairman Arbitration Council transferred proceedings to Nazim Union Council it place `S' where respondent alleged that she was residing there, without calling upon petitioner to explain. as to why matter/proceedings be not transferred to place "S" as prayed for by the respondent---Rule 3(b) of West Pakistan Rules Under The Muslim Family Laws Ordinance, 1961 had clearly envisaged that Chairman concerned would mean Chairman of Union Council of Union or Town in which wife at the time of pronouncement of Talaq was residing and not the Chairman to whose jurisdiction she subsequently shifted her abode---According to claim of petitioner, respondent was residing within area "L" when he pronounced Talaq---Petitioner, in circumstances, had correctly remitted notice to Chairman Arbitration Council at place "L" who, without determining that aspect of matter, remitted file to place "S" on simple request of respondent---No provision existed of transfer of notice of divorce by Chairman Union/Town Council either in Muslim Family Laws Ordinance, 1961 or in Rules framed thereunder---In absence of any such provision, transfer of matter/proceedings regarding divorce by Chairman Arbitration Council, was without jurisdiction---Order of transfer of proceedings, was declared to be illegal, void and of no legal effect with the result that notice of divorce by petitioner would be deemed to be pending before Chairman Arbitration Council at place "L" who would decide matter again, accordingly.

Sh. Shahid Waheed for Petitioner.

M. Rasheed Ahmad for Respondent No. 1.

Akhtar Masud Khan for Respondent No.3.

Muhammad Sharif, Secretary, Union Council Shahpur Saddar, District Sargodha.

P L D 2005 Lahore 647

Before Muhammad Jehangir Arshad, J

Rana M. SIDDIQUE---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, BAHAWALNAGAR and others---Respondents

Writ Petition No.1246 of 2004/BWP, decided on 6th April, 2005.

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss. 24, 13 & 6---Suit for pre-emption---Deposit of Zar-e-Soim---Provisions of S.24 of Punjab Pre-emption Act, 1991 though were mandatory entailing penalty of dismissal of suit in case of non-compliance of order passed by Trial Court directing deposit of Zar-e-Soim, but, period of thirty days provided in S.24, was meant for facilitating plaintiff/pre-emptor in matter of deposit of Zar-e-Soim who had to make 1/3rd of sale price available---To direct plaintiff to deposit amount either on same day or on next two, three, four, five days or so on, such exercise of power was neither reasonable nor in consonance with intention of Legislature---Law makers were fully aware of consequences of such provision while providing a period of thirty days; otherwise, they could easily burden the plaintiff to deposit even the whole sale price while filing suit---To contend that period of thirty days could mean even a period of one day or period of full thirty days, was nothing but making mockery of law---Order of Trail Court directing plaintiff to deposit Zar-e-Soim, was an act of the Court and act of Court would not prejudice any party.

Ghulam Hassan v. Jamshaid Ali and others 2001 SCMR 1001; Jehandar Khan v. Muhammad Arif Khan 1991 MLD 2109; Jamshaid Ali and 2 others v. Ghulam Hassan 1995 CLC 957; Ch. Muhammad Yaqoob v.Nazir Hussain and others 1995 CLC 1271; Mst. Zulaikha Khatoon v. Ch. Muhammad Yasin and 5 others 2004 CLC 1443; Rehman ud Din and another v. Sahibzada Jehanzeb 2004 SCMR 418; Wahid Bakhsh v. Abdul Qayum and another 1997 MLD 2945; Muhammad Iqbal v. Wamiq Javaid, Learned Additional District Judge, Sargodha and 2 others; 2001 YLR 739 and Qadir Bakhsh and 10 others v. Kh. Nizam-ud-Din and 4 others 1997 SCMR 1267 ref.

(b) Punjab Pre-emption Act (IX of 1991)---

----Ss. 24 & 6---Suit for pre-emption---Deposit of Zar-e-Soim---Trial Court while directing deposit of Zar-e-Soim, though was not bound to allow maximum period of thirty days to plaintiff, but period fixed for said purpose must be reasonable and should not manifest any harshness on the part of the Court and for. that purpose reasonable time within period of thirty days had to be fixed---Provision of S.24 of Punjab Pre-emption Act, 1991 was mandatory in nature as it entailed consequences of penalty of dismissal of suit in case of failure to comply with order of the Court, but Court should act in a judicious manner while seeking compliance of said section and such provisions should not be used in a manner causing not only financial loss to parties, but also prolonging their agony---Court could extend the period once fixed under S.24 of Punjab Pre-emption Act, 1991 in case involving hardship, but within period of thirty days from date of institution of suit and not beyond thirty days---Since provisions of S.24 of Punjab Pre-emption Act, 1991 were mandatory in nature, it was duty of the Trial Court not only to fix definite and reasonable period for deposit of Zar-e-Soim within period of thirty days but also specify the amount to be deposited by plaintiff within said period in order to avoid any misunderstanding on the part of plaintiff about the specific amount of Zar-e-Soim to be deposited by him.

M.M. Bhatti for Petitioner.

Sh. Karimud Din for Respondents.

Date of hearing: 30th March, 2005.

P L D 2005 Lahore 654

Before Mian Saqib Nisar, J

QASIM ALI---Petitioner

Versus

KHADIM HUSSAIN through Legal Representatives and others---Respondents

Civil Revision No.1761 of 1999, decided on 22nd June, 2005.

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

----Art. 36----Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Plaintiff had contended that since defendant had failed to fulfil his obligation under the agreement and had sold the property in favour of another person therefore, he had brought the suit for specific performance impleading the alleged purchaser as a defendant and also impugning the sale in his favour---Defendant, in his written statement, conceded the agreement to sell in favour of the plaintiff and also pleaded that no sale was made in .favour of the other person through mutation, which according to him, was the result of fraud and misrepresentation---Defendant, however, averred in his written statement that he was prepared to finalize the deal in favour of the plaintiff after the cancellation of alleged mutation, for which he asserted to take appropriate legal action, but did not do so---Purchaser, the other defendant, in his written statement, denied the execution of the agreement to sell with the plaintiff by the first defendant and claimed that the agreement was backdated and also collusive between the plaintiff and the first defendant---Both the lower Courts allowed the suit of the plaintiff and returned findings against the other defendant upon the issue of bona fide purchase---Validity---Both the Courts below, in fact, had basically relied upon the admission of the first defendant about the execution of the agreement to sell but an admission of a co-defendant was not binding upon the other which rule shall more stringently be applicable to the present case, because the other defendant had already purchased the suit property from the first defendant and a mutation in that behalf had been attested in his favour---Other defendant throughout possessed the legal title to the suit property and had every right to defend anc: protect his rights as a lawful owner thereof---First defendant who had ostensibly transferred his interest and rights in the suit property in favour of the other defendant and had never challenged the alienation independently before any forum, except setting up the defence in the present case, his admission about the execution of the salt, agreement could not be received as an admission binding the other defendant, being a co-defendant of the case---Despite the admission of the first defendant, in circumstances, when the other defendant had denied the execution and 4 attestation of sale-deed and claimed same to he the result of fraud and collusion between the first defendant and the plaintiff, it was incumbent upon the plaintiff to have proved the valid execution and attestation of the .agreement to sell---Plaintiff should have produced further corroborative evidence, such as by summoning the relevant record/register of stamp vendor, along with the vendor to establish that the stamp paper for the purpose of the agreement was purchased on or before the crucial date, so as to eliminate the possibility and the doubt that the document was antedated---Both the Courts had glaringly ignored important aspects, which was tantamount to misreading and non-reading of the record and the ignorance and misapplication of law, therefore, such judgments and decrees could not be sustained---Principles.

Saleem and another v. Malik Jalal-ud-Din and 7 others PLD 1982 SC 457 ref.

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

----Arts. 17 & 79---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell land-Proof-Requirements and criteria---Where the execution of a document was in issue, it was essential and mandatory upon the person relying upon the document to examine two of the attesting witnesses- Principles.

Abdul Khaliq v. Muhammad Asghar Khan and 2 others PLD 1996 Lah. 367; Muhammad Yaqoob and others v. Naseer Hussain and others PLD 1995 Lah. 395; Mst. Rasheeda Begum and others v. Muhammad Yousaf and others 2002 SCMR 1089; Altaf Hussain Shah v. Nazar Hussain Shah 2001 YLR 1967 and Mst. Fatima Bibi v. Mst. Nasim Akhtar and others 2000 YLR 2953 rel.

Ch. Manzoor Hussain Basra for Petitioner.

Muhammad Farooq Qureshi Chishti for Respondents.

Date of hearing; 22nd June, 2005.

P L D 2005 Lahore 662

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

Mst. MUNIRA RAFIQUE ANWAR through Legal Representatives---Appellants

Versus

KHALID JAVED ANWAR and others---Respondents

Regular First Appeals Nos.296 and 373 of 1999, heard on 25th May, 2005.

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

----O. VI, R. 2 & O. XIV, Rr. 1, 2, 3 & 5---Pleadings, contents of---Framing of issues---Every pleadings would contain only a statement in a concise form of the material facts on which the party relied for his claim or defence, but not the evidence by which they were to be proved and would, when necessary, be divided into paragraphs, numbered consecutively---Dates, sums and numbers would be expressed in figures---Issues would arise when a material proposition of fact or law was affirmed by one party and denied by the other---Material propositions were those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence and each material proposition affirmed by one party and denied by other would form the subject of a distinct issue---Object of framing of issues was that the parties should be appraised of the points on which they were expected to lead evidence and to avoid any prejudice being caused to either side due to absence of material issues---All the material controversies in pleadings, applications, and affidavits, statements, were to be covered in the form of issues to enable the parties to lead requisite evidence---Every material proposition affirmed by one party and denied by the other, had to be a subject of distinct issue in terms of R.1 of O.XIV, C.P.C.---Rule 5 of O.XIV, C.P.C. empowered the Court to amend issues and frame additional issues, necessary for determining the case at any time before passing of decree---Aim of framing issues was to ascertain real dispute between parties by narrowing the sphere of controversy.

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

----Preamble---Nature, purpose and import of C.P.C.---Civil Procedure Code was itself a Code providing mechanism to decide controversy between the parties within the parameters prescribed thereunder---Civil Procedure Code, consisted of two parts; Sections and Orders---Part 1 of C.P.C. consisted of sections, which was substantive law whereas second part consisted of Orders which was procedural in nature---Duty and obligation of the Court was to frame issues keeping in view the divergent pleas of the parties mentioned in the contents of the plaint and written statement---Court was not bound to frame an issue with regard to controversy arising out of written statement qua the controversy between the defendants in the suit.

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

---S. 107 & O.XIV, R.5---Power to recast issues---Such power stood conferred by R.5 of Order XIV, C.P.C. which was required to be exercised for determining the matters in controversy between the parties and S.107, C.P.C. empowered appellate Court to perform same duty.

Noor Din and others v. Muhammad Hussain NLR 1992 CLJ 78 ref.

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

---O. XIV, R. 1(2)---Material proposition of law and facts must be determined not merely from the allegations in the plaint, but also from the defence put forward in the written statement.

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

---S. 96---First appeal---Trial Court after noting discrepancies in the evidence produced by Appellant had held that appellants had failed to prove the execution of gift in their favour by their late father---Issue regarding execution of oral gift allegedly executed by late father of appellants, was basic issue in the case, which had been decided against appellants by Trial Court---In absence of any infirmity or illegality with regard to findings of Trial Court on said issue, same were upheld in appeal by the High Court.

Sh. Ziaullah for Appellants.

Muhamamd Ishtiaq Javed, Muhammad Farooq Qureshi Chisti and Rao Saeed Ahmed for Respondents.

Date of hearing: 25th May, 2005.

P L D 2005 Lahore 674

Before Muhammad Jehangir Arshad, J

KHURSHID AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.619 of 2005 in Criminal Miscellaneous No. 1392-Q of 2004/BWP, decided on 22nd March, 2005.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss. 336, 337-F(v) & 337-A(i)---Application for suspension of enhanced sentence of Arsh---Sessions Court, while accepting the criminal revision filed by the complainant, had enhanced the amount of Arsh from Rs.19,000 to Rs.200,000 and since by that time the accused had already served out his sentence of imprisonment and had also paid the amount of Arsh as imposed by the Trial Court and had been released from Jail, he was ordered to be taken into custody and sent to Jail till the time he paid whole of the enhanced amount of Arsh---Accused had challenged the said enhancement of the Arsh amount and through a separate miscellaneous application had sought suspension of the same---Said application under S.561-A, Cr.P.C. was maintainable---High Court had got ample powers under S.561-A, Cr.P.C. to pass appropriate orders, in the interest of justice---Order of Sessions Court enhancing the amount of Arsh from Rs.19,000 to Rs.2,00,000 was suspended till the final decision of the main miscellaneous petition and the accused was released on bail in circumstances.

Sajjad Hussain Kanju for Petitioner.

Sh. Ikram ud Din for Respondent/Complainant.

P L D 2005 Lahore 677

Before Ali Nawaz Chowhan, J

Messrs ADIL TAXTILE MILLS---Petitioner

Versus

GOVERNMENT OF PUNJAB---Respondent

Writ Petition No. 1914 of 2004, decided on 28th July, 2005.

(a) Punjab Local Government Ordinance (XIII of 2001)---

----Schedule VI, paras. 89, 90, 44 & S.185---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Dangerous and offensive articles and trades---Demand of licence fee by the Zila Council, Town Council and Union Council---Jurisdiction---Contentions of the petitioners were that a regulatory body had to be established before demand of a fee and said regulatory body had to set the terms of licence, the local areas where dangerous trade or calling was to be allowed in a premises; that as the matter would involve dangerous trade and calling and a licence was required for regulating the said trade, there was also a requirement for providing special services to meet dangers in connection with such trade and these services were required to be indicated to the persons liable for the fee and that whether these bodies who had been previously paying the licence fee shall continue to do so---Validity---Held, Punjab Local Government Ordinance, 2001 had changed the entire spectrum of the local bodies while re-distributing areas and re-assigning duties and powers, therefore, the bodies so created had to meet the requirements reflected in Sixth Schedule, Paras. 89 & 90 of the Punjab Local Government Ordinance, 2001---Fee to be charged was against premises and some standard or yardstick had to be set for charging fee on the basis of the size and area of the premises, therefore, a de novo exercise was required and had to be done even with respect to old payees---Old payees of the fee had a right to demand what had been indicated above under the law without being barred by S. 185, Punjab Local Government Ordinance, 2001 in view of the changed circumstances and they had to be treated equally with the new licensees who had to be enrolled under the new dispensation under the Ordinance---Fee being specific to dangerous trade and calling and paras. 89 & 90 of the Sixth Schedule to the Ordinance required certain regulations and there may also, be yet other requirements vis-a-vis public safety, protection of environments and attending to the safety aspects and the risks involved, the local bodies had to, therefore, formulate a policy through bye-laws in this connection or decide to adopt the model of the bye-laws already given in the Schedule after so declaring---Extent of obligations which the local bodies may like to burden themselves with, would also require an arithmetic calculation and the formulation of a formula on the basis of such calculation for fee to be charged against special services to be rendered---For meeting the new dispensation and the new requirements in the public interest, the local bodies had, therefore, to come out with a proper regulatory system and having done so, they had the locus standi to ask for the fee from the beneficiaries---Demand notices issued to the petitioners were just bald notices which had been issued on the basis of resolutions without keeping in view the requirements and policy of law under the new dispensation---Local bodies were yet to make their own bye-laws specific to the licence for dangerous trades while either adopting the model given or formulating their own, so therefore, in the areas where the fee in question was chargeable, it could only be charged after observance of the exercises pointed out by the High Court, and which exercise may be performed as early as possible for regulating and streamlining the entire system envisaged under the new dispensation.

Pakistan Flour Mills Association and another v. Government of Sindh and others 2003 SCMR 162; Messrs East and West Steamship Co. v. Pakistan and 2 others PLD 1958 SC 41; Ayaz Textile Mills Ltd. v. Federation of Pakistan and another PLD 1993 Lah. 194; Noon Sugar Mills Ltd. v. Market Committee and others PLD 1989 SC 449; Collector of Customs and others v. Sheikh Spinning Mills 1999 SCMR 1402; Haji Ghulam Zamin and another v. A.B. Kondkar and others PLD 1965 Dacca 156 ref.

(b) Punjab Local Government Ordinance (XIII of 2001)---

----Schedule II, Part I, para. 8 & Schedule VI, para. 44---Dangerous and offensive articles and trades---Manufacturing by any process whatever for cloth or yarn is included in para.8, thus empowering the Zila Council to recover the fee.

(c) Punjab Local Government Ordinance (XIII of 2001)---

----Schedule VI, para.44---Dangerous and offensive articles and trades---Only the business of storing or selling papers is reflected in the Schedule and not the manufacturing part, which therefore, will exclude the area where manufacturing of paper is involved.

(d) Punjab Local Government Ordinance (XIII of 2001)-

----Schedule VI, para. 44---Dangerous and offensive articles and trades---Manufacturing of jute is not covered under the Schedule empowering Zila Council to ask for a licence fee, so that is excluded.

(e) Punjab Local Government Ordinance (XIII of 2001)-

----Schedule VI, paras.44, 89 & 90---Dangerous and offensive articles and trades---Petrol and petroleum products are covered under the Schedule as a dangerous and offensive trade and are exempted as per paras. 89 & 90 of Schedule VI to the Punjab Local Government Ordinance, 2001.

(f) Local Government Laws----------

-------Legislative history.

Syed Wagar, Suleman Akram Raja, M. Tariq Malik, Husain. Naqvi, Malik Ijaz Ahmad Awan, Faisal Zaman Kh. for Petitioners

Dr. Mohy-uddin, Amicus Curiae.

Fauzi Zafar, Mirza Azizur Rehman, Abdul Wadood for Respondents.

Aftab Iqbal Ch. A.-G. assisted by Khurshid Anwar Bhinder, Add. A.-G. for the State.

Dates of hearing: 6th, 7th, 8th, 11th, 12th and 13th of July, 2005.

P L D 2005 Lahore 689

Before Maulvi Anwarul Haq, J

SHEIKH MUHAMMAD---Petitioner/ Defendant

Versus

Haji NAZIR AHMAD---Respondent/Plaintiff

Civil Revision No.777-D of 2005, decided on 22nd July, 2005.

Punjab Pre-emption Act (IX of 1991)---

----Ss. 6, 13 & 24--Civil Procedure Code (V of 1908), S.107---Suit for pre-emption ---Deposit of 1/3rd of sale price---Limitation---Section 24(1) of Punjab Pre-emption Act, 1991, had mandated Court to require plaintiff to deposit 1/3rd of sale price of property within such period as the Court might fix and said period would not be extended beyond 30 days of filing of suit as provided under proviso to subsection (1) of S.24 of Punjab Pre-emption Act, 1991---Trial Court in the present case on the very date the suit was filed, directed plaintiff to make deposit of 1/3rd by a date which had made period of 20 days---As on date fixed for deposit of 1/3rd, still 10 more days were left to expire for statutory period of 30 days, plaintiff', who failed to deposit up to fixed date filed application to extend period to deposit 1/3rd, but his application was rejected and his suit was dismissed holding that no provision existed in Punjab Pre-emption Act, 1991 to extend time once granted---Validity---Trial Court, no doubt could not extend period, but it was equally true that no prohibition was expressed in Punjab Pre-emption Act, 1991 upon a Court to exercise jurisdiction in the matter within outer parameter of 30 days fixed by said law---Unless there was an express prohibition in law, it was to be assumed that Court had power to do the act not expressly prohibited---20 days' time was given for deposit of 1/3rd---Trial Court, in circumstances had the power to extend the time up to 30 days commencing from date of institution of suit---Deposit in circumstances was made within the time prescribed by law---Appellate Court having vested with same powers as Trial Court in terms of S. 107, C.P.C., it could not be said that Appellate Court had acted without jurisdiction, permitting deposit of 1/3rd within period prescribed by law.

Muhammad Aziz v. Akhtarian Begum 2004 SCMR 1709; Noor Ahmed v. Additional District Judge, Pattoki, District Kasur and 6 others 2004 MLD 417; Ijaz Ahmad Khan v. Muhammad Asir 2000 CLC 808; Ch. Muhammad Yaqoob v. Nazim Hussain and others 1995 CLC 1271 and Mst. Wafajan v. Mahram Zad 1995 CLC 2002 ref.

M. Zafar Iqbal Mughal for Petitioner/Defendant.

P L D 2005 Lahore 692

Before Ali Nawaz Chowhan and Syed Shabbar Raza Rizvi, JJ

RAHEEL RASHID---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD through Chairman and 2 others---Respondents

Writ Petition No. 11855 of 2005, decided on 21st July, 2005.

National Accountability Ordinance (XVIII of 1999)---

----S. 31-D---Criminal Procedure Code (V of 1898), S.196---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of proceedings---Accused along with his co-accused was involved in the case pertaining to an imprudent loan which could not be so divided as to take` him out of the ambit of the main reference or to attribute to him a different or unconnected culpability---Accused had to face the same trial with his co-accused and as the accusations against him were the off shoot of an imprudent loan, S.31-D of the National Accountability Ordinance, 1999, was fully applicable in his case as well, but since there was no authorization or reference in connection with him, National Accountability Bureau, without such a reference coming from the Governor of State Bank of Pakistan, had no jurisdiction to proceed against the accused until it received such a reference---Contention that as in case of permission under S.196, Cr.P.C. proceedings having commenced ought to be quashed, had no force, because under the present circumstance Court was to be governed by the special law itself i.e. S.31-D of the National Accountability Ordinance, 1999---Proceedings consequently were not quashed---However the Court declared that the proceedings as against the accused being destitute of authorization of the Governor of State Bank of Pakistan, the reference did not vest jurisdiction in the National Accountability Bureau or the Accountability Courts and until that permission was available the same had no authority or power to proceed against the accused in law---Constitutional petition was disposed of accordingly.

Mehmood for Petitioner.

Waqar Hussain Meer, Prosecutor for NAB.

Iftikhar Ahmed, S.H.O.

P L D 2005 Lahore 695

Before Iftikhar Hussain Chaudhry, C J

MUHAMMAD YOUNIS IQBAL and another---Petitioners

Versus

DISTRICT RETURNING OFFICER, (DISTRICT AND SESSIONS JUDGE), GUJRANWALA and 9 others---Respondents

Writ Petition No. 14075 of 2005, decided on 3rd August, 2005.

(a) Punjab Local Government Ordinance (XIII of 2001)---

----S. 152(1)(e)---Inter-Board Committee of Chairmen's Memo. No.IBCC/ES/Misc./1219, dated 21-7-2005---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Qualification for candidates--Minimum educational qualification prescribed for the candidates for the seats of Nazim and/Naib Nazim---Term "equivalence"---Connotation--Provision of S.152(1)(e), Punjab Local Government Ordinance, 2001 envisages that a candidate for the seats of Nazim and/or Naib Nazim must possess Matriculation Certificate; or Secondary School Certificate; or Certificate issued by any other institution, which is equivalent to said Certificates---Federal and Regional Boards of Intermediate and Secondary Education of all the Provinces in the Country, are the only . institutions, which can grant Matriculation or Secondary School Certificates---No other institution in the country is competent to issue Matriculation or Secondary School Certificate---Boards of Intermediate and Secondary Education in the country maintain a reasonable standard of education and examinations, maintain integrity of records and various certificates of education granted by the Boards, carry universal respect and acceptance, but this is not so as regards the cases of other institutions, foreign or local---Notwithstanding the claim of private institutions or inscription of Matric on face of certificates issued by these institutions, these cannot be treated or accepted, as Matriculation Certificates, unless the competent Authority grants equivalence status to such certificates---Certificates issued by other institutions arc not matriculation or Secondary School Certificates, therefore, they have to be granted equivalence status by the competent Authority---Term equivalence means parity or equality---Equivalence denotes and means hundred per cent. parity and equality in every sense---Limited, partial or substantial parity with the official Matriculation Certificate, cannot be treated as making a person eligible under S.152(1)(e), Punjab Local Government Ordinance, 2001---Very concept that a certificate, which is not hundred per cent. at par or equivalent to the Matriculation Certificate, should be treated as such, is a proposition, which at the face of it is preposterous and unacceptable---Such a certificate therefore, would not make a candidate eligible under S.152(1)(e) of the Punjab Local Government Ordinance, 2001 to contest election for an office of a Local Government---Candidate must be Matriculate in terms of provisions of S.152(1)(e) of the Punjab Local Government Ordinance, 2001 to be eligible to contest the election---Without Matriculation Certificate or a certificate, which has been declared to be at par in all respects with the matriculation or Secondary School Certificate, -a candidate is ineligible to contest the election and cannot be permitted to take part in the election process---Principles.

(b) Words and phrases---

----"Equivalence"---Connotation.

Azam Nazeer Tarar for Petitioners.

.Muhammad Akbar Tarar, Addl. A.-G.

Ghulam Hader Al-Ghazali for Respondent No.3.

P L D 2005 Lahore 700

Before Syed Shabbar Raza Rizvi, J

SAQIB MUKHTAR---Petitioner

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE and 4 others-Respondents

Writ Petition No. 14152 of 2005, decided on 23rd August, 2005.

Constitution of Pakistan (1973)---

---Art. 199, 184(3), 9, 10, 14, 4, 25, 5 & 244---Habeas corpus petition---Facts showed the peculiar circumstances of the case where the incident took place between the detenus and two army officials ---F.I.R. was registered at the instance of one of the said army officers---Police raided and arrested, four out of seven detenus while three detenus, themselves, after obtaining bail before arrest, appeared before the police and thereafter they disappeared from the scene and remained so, for more than a month ---Detenus were not produced despite several previous orders, however, they were produced before the High Court---Despite whatever happened the petitioners were satisfied, that they had been produced in the Court and they did not want to make any statement---Counsel appearing for the petitioners wanted to withdraw the habeas corpus petition as instructed by the petitioners---High Court, disposed of the petition accordingly and observed that in the present case, prima facie, fundamental rights of the petitioners under Arts. 9, 10, 14 and 25 to be read with Art.4 of the Constitution had been violated; that all citizens of Pakistan were entitled to be treated in accordance with law and no one was above the law, therefore, if any person committed an offence, he should be dealt with in accordance with law and by the concerned agencies only; that if Government officials of any department or organization would take law in their own hands, how could powerful individuals be stopped from doing the same and that everything is needed to be done within a system, and strictly in accordance with law---High Court further observed that in the past and present, the level of civilization of any Nation was judged from the strength and independence of its judicial system; that judiciary itself had no force to get its orders executed, it was other organs of the State who had to do the same; that strength of judiciary lay in the strength of the society; that respect and obedience to judicial orders enhanced strength of a Nation and a Country and brought stability to it and that it was in the interest of everyone that Rule of law must prevail and it certainly elevates esteem and stature of Government of the day---Principles.

The fundamental rights of citizens and other persons are guaranteed under the Constitution of Pakistan. Not only that, the framers of the Constitution empowered the Supreme Court and the High Courts of Pakistan to protect these fundamental rights. For the same reasons, the Supreme Court and the High Courts of Pakistan have been conferred upon required powers under Articles 184(3) and 199 of the Constitution to enforce the same rights if the infringement of these rights is reported. Likewise, Article 199(2) of the Constitution gives right to citizens of Pakistan an unabridged right to move a High Court for enforcement of any fundamental right guaranteed by the Constitution. In the present case, prima facie, fundamental rights of detenus under Articles 9, 10, 14 and 25, read with Article 4 have been violated.

Under Article 199(1)(i), High Court is under obligation to satisfy itself that a detenu is not being held in custody without lawful authority or in unlawful manner. The said duty has been performed by High Court by ordering production of the detenus as well as getting the orders implemented and by asking detenus if they wanted to record their statements.

The Constitution of Pakistan has created no right or duty in vain. Article 9 provides that no person shall be deprived of his life and liberty save in accordance with law. Article 9 is closely followed by Article 10 which requires that when a person is arrested, he shall not be denied the right to consult and be defended by a Lawyer of his choice. Likewise, such arrested or detained person is required to be produced before a Magistrate within a period of 24 hours of such arrest. No person can be detained or kept in custody beyond the said period without the authority of a Magistrate. In case, the above requirements are not fulfilled, the detention/custody would amount to deprivation of liberty guaranteed under Article 9 of the Constitution. The detenus were never produced before any Magistrate; they were not allowed to meet their counsel, therefore, apparently their rights under Articles 9 and 10 were infringed. In addition to that.., whether they were in custody of police or with any other agency, the obedience to the Constitution and law is an inviolable obligation of all. In this regard provisions of Article 5 should be read with provisions of Article 244 of the Constitution. The language of these two Articles suggests that the command is very clear, and no body can be relieved of obligation mentioned therein, in any circumstance.

The declared and avowed policy of the present Government is to have an enlightened society. The conduct of the police and some others in this case is not consistent or reflective of the said policy. All citizens of Pakistan are entitled to be treated in accordance with law. Similarly, no one is above the law. Therefore, if any person commits an offence, he should be dealt with in accordance with law and by the concerned agencies only. If Government officials of any department or organization will take law in their own hands, how can powerful individual be stopped from doing the same? Therefore, everything needs to be done within a system, and strictly in accordance with law. High Court appreciated that detenus have been produced before the High Court and orders of High Court have been complied with.

In the past and present, the level of civilization of any Nation is judged from the strength and independence of its Judicial System. Judiciary itself has no force to get its orders executed. It is other organs of the State who have to do it. Therefore, strength of the Judiciary lies in the strength of Society. Respect and obedience to judicial orders enhances strength of a nation and country and brings stability to it. It is in the interest of everyone that Rule of law must prevail and it certainly elevates esteem and stature of Government of the day.

The counsel for the petitioner, on instructions, submits that he is satisfied that detenus have been produced, therefore, wants to withdraw this habeas corpus petition to move for bail or any other relief, under the law, before the appropriate fora. The detenus also state that they do not want to proceed any further and want to withdraw this petition. Consequent to the above statements of the counsel for the petitioner and detenus, writ petition was disposed of.

Constitutional Law of Pakistan, 2nd Edna Vol. II, p. 1370 by Mr. Justice Syed Shabbar Raza Rizvi quoted.

Farooq Amjad Mir and Sardar Khurram Latif Khan Khosa for Petitioner.

Aftab Iqbal Chaudhary, Advocate-General, Punjab and Ch. Khurshid Anwar Binder, Addl. A.-G. for Respondents.

Malik Pervez Akhtar, Dy. Attorney-General for the State.

Dr. Usman S.P. and Waqar S.P.

P L D 2005 Lahore 709

Before Syed Zahid Hussain, J

CHIEF EXECUTIVE FESCO LTD., FAISALABAD and 2 others---Petitioners

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, SARGODHA and another---Respondents

Writ Petition No. 13737 of 2005, heard on 8th September, 2005.

Constitution of Pakistan (1973)---

----Arts. 175(2) & 199---Constitutional petition---Jurisdiction of District and Sessions Judge was sought to be invoked in the nature of a complaint against human rights violations which was entirely misconceived inasmuch as the Court can exercise only such jurisdiction qua a subject-matter, person or lis, as is conferred by law---Ancillary/"incidental" power and "inherent jurisdiction" of Court---Distinction---"Ancillary"/" incidental" power and "inherent" jurisdiction of a Court is not to be confused with what is sometimes, claimed as "inherent" jurisdiction of Court, a claim which is no longer tenable in view of Art.175(2) of the Constitution---What is "inherent" is an inseparable incident of a thing or an institution in which it inheres---Obligatory rather mandatory for a Court in the first instance is to satisfy itself about the existence of its jurisdiction and power to decide the matter brought before it---Additional District and Sessions Judge, did not advert to such aspect and summarily passed the impugned order and issued the impugned directions, without even giving opportunity to the parties to lead evidence in support of their respective stances---Such a summary disposal of a matter when the very existence of jurisdiction of the Court was disputed and objected to was not warranted by law---Order passed by illegally assuming jurisdiction would be unwarranted by law and a nullity---Additional Sessions judge acted without jurisdiction in passing the order and issuing directions, when his jurisdiction did not extend to any such matter---If the complainant had any legitimate and valid grievance, he had the statutory forum available to him under the law to agitate the matter but he erroneously invoked the jurisdiction of the District -and Sessions Judge of the District in the matter---Assumption of jurisdiction by Additional District and Sessions Judge to whom the matter was entrusted lacked the backing of any contemporaneous law on the subject, the order was not sustainable in law which was declared of no legal effect by the High Court under its Constitutional jurisdiction.

Sind Employees Social Security Institution and another v. Adamjee Cotton Mills Ltd. PLD 1975 SC 32 rel.

Saeed Ahmed Bhatti for Petitioners.

Ali Nawaz Bakhar for Respondent No.2.

Date of hearing: 8th September, 2005.

P L D 2005 Lahore 712

Before Umar Ata Bandial, J

MUHAMMAD ABID HASSAN and others---Petitioners

Versus

D.R.O. and others---Respondents

Writ Petition No. 14350 of 2005, decided on 18th August, 2005.

(a) Punjab Local Government Ordinance (XIII of 2001)---

----Ss. 152(1)(v) & 150---Chief Election Commission of Pakistan Letter No.F.3(1)/2005-Election, dated 18-7-2005---Constitution of Pakistan (1973), Art. 199 --- Constitutional petition---Election of Nazim and Naib Nazim---Disqualification of one of the joint candidates on the charge of being activist of a banned organization and having been involved in three criminal cases including one that of murder---Validity---Nature and quality of evidence required to incur the said disqualification was reflected by the word "involved" used in S. 152(1)(v) of the Punjab Local Government Ordinance, 2001 which could be defined to mean "implicated", "affected" or "concerned in some degree"---Mere implication of a candidate in any activity having one or more of the stated prejudicial effects mentioned in S.152(1)(v) of the Ordinance fell within the mischief of said disqualification and it was not necessary that a person should be accused of or be found guilty of the commission of a criminal offence in order to be disqualified---Election Commission of Pakistan vide its Letter No.F.3(1)/2005-Election, dated 18-7-2005 had notified that present as well as past membership of a candidate in such an organization was a ground of his disqualification from election which letter could find authority under the Local Government Elections Order, 2000 read with S. 150 of the Punjab Local Government Ordinance, 2001---Said letter of the Election Commission of Pakistan dispensed with the need to show any overt act of violence or participation in political activity by a candidate in order to cause his disqualification---Membership of banned organization was sufficient to demonstrate a mind-set which was proscribed---High Court, in circumstances, held that a valid case for the petitioner's disqualification was made out and the order passed by the Deputy Returning Officer was well-founded---Principles.

Ballentine's Law Dictionary, Third Edition, 1969 and Chambers 21st Century Dictionary 1999 ref.

(b) Punjab Local Government Ordinance (XIII of 2001)---

----S. 152(1)(v)---Election of Nazim and Naib Nazim---Disqualification- -In case of disqualification of one joint candidate, their panel falls as a whole.

Ch. Fawad Hussain for Petitioners.

M. Sohail Dar for Respondent No.5.

Yawar Ali Khan, Deputy Attorney-General.

P L D 2005 Lahore 716

Before Sayed Zahid Hussain, J

NIAZ through Legal Heirs and others---Petitioners

Versus

MUHAMMAD SALEH---Respondent

Civil Revision No.944 of 2005, heard on 21st September, 2005.

Specific Relief Act (I of 1877)-

----S. 12---Civil Procedure Code (V of 1908), S.11, Explanation IV---Suit for specific performance---Time extended for decree-holder to deposit money---Objection petition before Executing Court to the effect that since the balance price had not been paid within the time fixed, the decree could not be executed---Time for deposit of sale price was extended "subject to just exceptions"---Just exceptions---Connotation---Decree-holders in the present case, were fully conscious of the fact that application for extension of time had been made and also knew about the passing of order granting extension of time "subject to all just exceptions" which aspect had either not been pressed before the Supreme Court or in any case would be deemed to have been rejected---Effect---Explanation IV of S.11, C.P.C. provided that where the parties have had an opportunity of controverting a matter, that should be taken to be the same thing if the matter had been actually controverted and decided---Meanings of phrase "subject to all just exceptions" was that the order which contained this expression would be effective unless and until the other party, who would be affected by such an order took exception to it and raised objections which were ultimately upheld to be just and valid---Court can, in appropriate cases, grant extension of time even while dismissing the appeal---Extension in time, in the present case, being well justified, deposit made by the decree-holder, in circumstances, within the time extended through an interim order was given effect to and contention that Courts below had acted illegally and with material irregularity in treating the deposit made by the decree-holder in time, was repelled.

Ghulam Muhammad and another v. Irshad Ahmed and another PLD 1982 SC 282; Pir Bakhsh represented by his legal heirs and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145; Bhai Khan v. Allah Bakhsh and another 1986 SCMR 849; Nazir Ahmad and another v. Abdullah 1999 SCMR 342 and Allah Ditta and others v. Lal Din and others 1982 SCMR 642 ref.

Muhammad Sarwar Awan for Petitioners.

A.R. Shaukat for Respondent.

Date of hearing: 21st September, 2005.

P L D 2005 Lahore 721

Before Abdul Shakoor Paracha, J

ASIF MAHMOOD---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No. 1096 of 2005, decided on 24th June, 2005.

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

----Arts. 5 & 199---Loyalty to State and obedience to Constitution and law---Person committing any offence against State not protected by fundamental rights---First duty of the citizen of the country is loyalty to State and if a person commits any offence against the State, then he is not entitled to the protection of Fundamental Rights and is liable to be prosecuted and dealt with in accordance with law enforced for the purpose.

(b) Pakistan Army Act (XXXI of 1952)---

----Ss. 2(1)(d)(i) & 73---Constitution of Pakistan (1973), Art. 5, 10(2) & 199---Constitutional petition---Arrest and detention of accused by Army Authorities---Validity---Accused had been taken into custody by the Army Authorities under S.2(1)(d)(i) of the Pakistan Army Act, 1952---Non-production of accused within 24 hours of his arrest before a Magistrate in accordance with the provisions of Art.10(2) of the Constitution for obtaining his remand was of no consequence---Arrest of accused under an oral order of C.O.A.S. was also permissible under the Pakistan Army Act though not preferable---Accused had been arrested under the Pakistan Army Act in due course of law---Matters relating to the members of the Army force were immune from scrutiny by High Court in view of sub-Art.(3) of Art. 199 of the Constitution, except where the judgment is mala fide, without jurisdiction or corum non judice---Accused detenu although had not been an Army personnel, yet he had been arrested under the Army Act and his' case was covered with the bar as contained in Art. 199(3) of the Constitution---Constitutional petition was consequently not maintainable and the same was dismissed accordingly.

Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others PLD 1996 SC 632; Brig. (Red.) F.B. Ali and another v. The State PLD 1975 SC 506; Ex-Lt.-Col. Anwar Aziz v. Federation of Pakistan through Secretary Ministry of Defence, Rawalpindi and 2 others PLD 2001 SC 549; Mst. Naheed Maqsood v. Federation of Pakistan and 4 others 1997 CLC 13 and Muhammad Mushtaq v. Federation of Pakistan 1994 SCMR 2286 ref.

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

----Art. 199(3) & (5)---Constitutional jurisdiction---Scope---Where clauses (3) and (5) of Art.199 of the Constitution are attracted, the ouster of jurisdiction, if any, is absolute and it is not conditional upon the existence of some circumstances.

Ex-Lt.-Col. Anwar Aziz v. Federation of Pakistan through Secretary Ministry of Defence, Rawalpindi and 2 others PLD 2001 SC 549; Mst. Naheed Maqsood v. Federation of Pakistan and 4 others 1997 CLC 13 and Muhammad Mushtaq v. Federation of Pakistan 1994 SCMR 2286 ref.

Zameer Hussain for Petitioner.

Lt.-Col. Iqbal Hashmi AJAG. for Respondents.

Date of hearing: 13th June, 2005.

P L D 2005 Lahore 728

Before Umar Ata Bandial, J

MUBASHIR IQBAL---Petitioner

Versus

SECRETARY, EXCISE AND TAXATION, GOVERNMENT OF PUNJAB, LAHORE and 5 others---Respondents

Writ Petition No.7033 of 2005, heard on 4th July, 2005.

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

----Art. 199---Provincial Motor Vehicles Ordinance (XIX of 1965), S.25---Constitutional petition---Public auction---Petitioner, in the present case, participated in auction of attractive vehicle registration numbers conducted by the Director, Excise and Taxation of Provincial Government and gave highest bid for a specific number; bid amount was subject to immediate deposit and this was done by the petitioner; four days later, Secretary, Excise informed him that his auction bid of the specific number along with bids for several other registration numbers had been declined approval by the "Administrative Department" and no reason for such refusal was given in the said order---Validity---Cancellation of auction by a public authority could not be at its whim but had to be with reference to relevant criterion that was set out in the terms of the auction---Reserved price fixed for the registration number under auction could be an effective check on underbidding in the present case---Authorities had applied a criterion of valuation that it chose not to apply in the immediate preceding cases---Inconsistency was a tendency that encouraged arbitrariness---Fact that a public authority might, in its discretion, act one way or the other in respect of Similar cases as had happened in the present case owing to lack of settled criterion characterized such action to be unreasonable---Engagement of a public authority in the holding of public auction involved the exercise of a commercial function---Commercial activity presently being undertaken by the Authorities was the sale of a licence which was type of public property, to private person, and in such cases of sale, there was an additional requirement of transparency as being an active consideration for the scrutiny and evaluation of such proceedings---Requirement of transparency in an auction was not less and could be accomplished primarily when clear terms of the auction were set out and duly notified to interested parties---Such manner shall, in essence, establish predictability of the fate of the auction of a public authority which was particularly important in commercial activities of the State because it lent: commercial credibility to the action of a public authority---If it was perceived that the public authority was at liberty to act inconsistently and arbitrarily then genuine parties would be discouraged to participate in the auction because manipulation might be perceived to have a chance to sway the decision---High Court, in circumstances, directed the authorities that it should revisit and revise their auction policy and to incorporate therein, relevant, practicable and reasonable criteria that would operate to enhance the transparency, fairness and reasonableness of the auctions conducted by them---Constitutional petition was disposed of by the High Court by giving option to the petitioner to raise his bid price to a specified amount and get attractive number in another series which was consented to by both the parties.

Obaid Ullah and another v. Habib Ullah and others PLD 1997 SC 835 ref.

(b) Public auction---

----Active considerations to be kept in view---Principles.

Obaid Ullah and another v. Habib Ullah and others PLD 1997 SC 835 ref.

Shahid Azeem for Petitioner.

Fawad Malik, A.A.-G. for Respondents.

Date of hearing: 4th July, 2005.

P L D 2005 Lahore 732

Before Mian Saqib Nisar and Sh. Azmat Saeed, JJ

Chaudhry KHALID MAHMOOD---Appellant

Versus

Chaudhry SAID MU14AMMAD --- Respondent

Regular First Appeal No.269 of 2002, decided on 5th September, 2005.

Stamp Act (II of 1899)---

---Ss. 35, proviso (a) & 36---Promissory note not duly stamped---Raising such objection in written statement and framing of an issue thereon---Admission of such promissory note in evidence without objection by defendant---Validity---Such promissory note though not invalid would be inadmissible in evidence as defect of deficiency of stamps thereon not curable---Suit based on such promissory note, thus, would be liable to be dismissed---Provisions of S. 36, Stamp Act, 1899 were mandatory and had an effect to override 5.35 imposing complete bar to question admissibility of a document including such promissory note once admitted in evidence rightly or wrongly, thus, no Court could reject and exclude same from its consideration, rather same would be read as a valid piece of evidence and such issue' would become redundant---Principles.

An insufficiently stamped pronote shall be inadmissible in evidence, it cannot be made admissible by impounding and paying the penalty, and the suit based upon such a pronote shall be dismissed.

According to the law, a deficiently stamped document including a pronote is not invalid, but the only vice and the disability attached to such a document under section 35 of the Stamp Act, 1899, is about its inadmissibility in evidence or that it cannot be acted upon, unless duly stamped. Proviso (a) to the section 35, however, provides the mechanism, as to how and subject to what conditions, the defect can be cured, but with the exception of certain documents including a pronote. This means that the defect of deficiency of stamps on a pronote is incurable and it remains to be inadmissible in evidence. This is the ultimate purport of section 35 of the Stamp Act, 1899 when construed along with the first proviso.

The above section 35 is followed by section 36, which provides that "where an instrument has been admitted in evidence, such admission shall not, except as provided by section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped." This is a very comprehensive and a powerful provision with the command that if an instrument deficiently stamped is once admitted into evidence, except for the cases falling under section 61, the admission of a document cannot be called into question. A deficiently stamped pronote is not covered by section 61 and section 36 by itself has not created any exception for such a pronote. Section 36 is mandatory in nature, which has the clear effect of overriding section 35 and imposes a complete bar to question the admissibility of a document once it has been admitted into evidence rightly or wrongly and this includes all such documents falling under proviso (a) to section 35.

The provisions of section 36 are mandatory and once a document including an insufficiently stamped pronote, is rightly or wrongly admitted in evidence and is marked as an exhibit, it is impermissible for 'the Court of first instance, or in appeal or revision etc., to reject and exclude from its consideration such document, which shall be read as a valid piece of evidence, notwithstanding its deficiency. In the present case the promissory note, forming part of the evidence as Exhibit without any objection of the defendant would be read into evidence and in such situation the Issue would become redundant, and Court cannot dismiss suit, which was decreed in circumstances.

Cap. (Retd.) Muhammad Arshad and another v. Asad Munir and another 2003 YLR 2955; Rehmat Ali v. Wahid Bux NLR 1979 Civil SC 809; Sardar Muhammad Ramzan v. Muhammad Yahya Khan 2000 CLC 296; Abdul Hashem v. Serajul Haque and others PLD 1961 Dacca 596; Amin Jute Baling Co. Ltd. v. Aminpur Union Cooperative Multi-purpose Society Ltd. PLD 1961 Dacca 102; Muhammad Hanif v. Kissan Dost (Pvt.) Limited 2003 CLD 224; Farid Akhtar Hadi v. Muhammad Latif Ghazi 1993 CLC 2015; Samiullah v. Muhammad Ahmed and 6 others PLD 1977 Karachi 49; Eskandar Ali v. Mst. Alhamra Begum and others PLD 1969 Dacca 214;Ch. Muhammad Saleem v. Muhammad Akram and others PLD 1971 SC 516; Javed Chand and others v. Pukhraj Surana AIR 1961 SC 1655; Mangala Lakshmappa v. Pathala Masud Sahib AIR 1934 Madras 700; Ganga Ram v. Het Ram and others AIR 1965 Rajasthan 47; Mian Sher Rehman v. Muhammad Sharif Khan and others PLD 1984 Pesh. 2; Shankar Dattatraya Prabhavalkar and others v. Municipal Corporation of the City of Bombay and another AIR (33) 1946 PC 53; Chandra Sekhar Mirra v. Gobinda Chandra Das AIR 1966 Orissa 18; Jatindra Mohan Deb Laskar v. Khara Singh and others AIR 1964 Assam 138; K.M. Muneer v. Mirza Rashid Ahmed PLD 1964 (W.P.) Kar. 172; K.M. Muneer v. Mirza Rashid Ahmad PLD 1963 (W.P.) Karachi 905. Mt. Bittan Bibi and another v. Kuntu Lal and another AIR 1952 Allahabad 996 and Muhammad Ashiq and another v. Niaz Ahmad and another PLD 2004 Lahore 95 rel.

Atif Amin for Appellant.

Ali Akhar Qureshi for Respondent.

Syed Mansoor Ali Shah: Amicus Curiae.

Date of hearing: 7th July, 2005.

P L D 2005 Lahore 742

Before Syed Zahid Hussain, J

Dr. Mrs. YASMEEN ABBAS---Petitioner

Versus

Rana MUHAMMAD HANIF and others---Respondents

Writ Petition No.90-R of 2003, decided on 30th September, 2005.

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

----S. 89-A & O.XXIII, R.3---Settlement of disputes through compromise---Benefit---Resolution of dispute in such a way being a recognized mode, would relieve parties of expensive and lengthy agonizing litigation and save valuable time of Court.

(b) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

---- S. 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Evacuee property---Compromise between parties---Price of disputed property already paid by both parties---Settlement Department, thus, could not have any legitimate grievance---Courts had encouraged compromise in disputes relating to evacuee properties---Parties would be bound by compromise arrived at between them---High Court directed parties to approach Settlement Department for necessary amendments in their title documents.

Muhammad Aslam v. Member, Board of Revenue (Settlement and Rehabilitation Wing) Chief Settlement Commissioner and 6 others PLD 1980 SC 45 rel.

Shuja ud Din Hashmi for Petitioner.

Hamid Ali Mirza for Respondents.

P L D 2005 Peshawar 1

Before Nasir-ul-Mulk, C.J. and Shah Jehan Khan, J

BASHIR AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 589 of 2004, heard on 1st October, 2004.

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

----S. 9(c)---Appreciation of evidence---Prosecution case was that police who had gone to the house of accused in order to arrest a proclaimed offender who was alleged to be close friend of the accused and was hiding in his house---Said proclaimed offender was not found in the house of accused which consisted of only one room but instead upon searching the house found a bag containing three bags of heroin, each weighing one kilogram---Police officers concerned admittedly had not obtained a search warrant---Entry into the house of accused without search warrant would have been justified had it been for arrest of the proclaimed offender---Prosecution had failed to bring anything on record showing that said person had been declared as proclaimed offender---Since purpose of raiding the house of accused was to arrest the alleged proclaimed offender, the very entry of police in the house of accused, was illegal---Once alleged proclaimed offender was not found in the house of accused, there was no reason as to why police officials should have gone around and started searching bags lying in that house-Search was unwarranted when both prosecution witnesses had admitted that they had no information that accused had been indulging in narcotics---Police should have simply left the house once they found that the alleged proclaimed offender was not there---Major contradiction appeared in statements of prosecution witnesses with regard' to presence of accused in the house and recovery memo.---Such contradictions had created doubt about recovery of heroin from the house of accused and benefit of such doubt must go to the accused---Conviction and sentence recorded against accused by Trial Court, were set aside and he was acquitted of charge framed against him and was set at liberty.

Noor Alam Khan for Appellant.

Aftab Khan for the State.

Date of hearing: 1st October, 2004.

P L D 2005 Peshawar 5

Before Shah Jehan Khan and Dost Muhammad Khan, JJ

PERVEZ AFZAL and 91 others---Petitioners

Versus

PAKISTAN ENGINEERING COUNCIL through Chairman and 4 others---Respondents

Writ Petition No. 119 of 20.04, decided on 14th September, 2004.

(a) Pakistan Engineering Council Act (V of 1976)-----

----S. 10 & First Sched.---Accreditation granted to an engineering institution by Pakistan Engineering Council--Effect---Accreditation once granted in ordinary course would have retrospective effect---Students of engineering institution who had already appeared in first year examination, would be entitled to be registered as engineers after getting final degrees from such institution---Principles.

Section 10 of Pakistan Engineering Council Act, 1976 is silent on the effect of accreditation. The combined study of entire scheme of said Act would show that accreditation is granted to already established institution of engineering education, where students are already admitted and all its facilities, laboratories and allied facilities are fully operative, because the inspectors team is to assess the teaching standards and that of different faculties and the laboratories with equipments along with the knowledge of the students admitted therein, where after report is to be submitted to the enrolment/executive committee recommending whether to grant or not to grant accreditation. In this way, if any such institution commences its study courses in the month of January of a calendar year and application for accreditation is made in the middle of that year, while the inspectors team visits the institution in the month of December of the same year and then accreditation is granted by the Pakistan Engineering Council in the next year, then the said institution" is stood recognized and the degrees granted to the students are necessarily to be registered by the "PECT" irrespective of the actual date of granting accreditation, thus in ordinary course once accreditation is granted, it would have a retrospective effect and the students of that institution, who had already appeared in the first year examination would be entitled to be registered as engineers after getting final degrees from the said institution. The "PECT" while granting accreditation to engineering institution is required by law to amend the First Schedule by issuing notification including the name of the institution thereto, which is published in the official Gazette. It is a cardinal principle of law that a notification conferring privileges and rights may be retrospective in its operation. On this principle too the accreditation granted by the "PEC" to the institution would take effect retrospectively.

Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652 and State Bank of Pakistan v. Messrs Faisal Spinning Mills Limited 1997 SCMR 1244 rel.

(b) Notification—

----Notification conferring privileges and rights would be retrospective in its operation.

Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652 and State Bank of Pakistan v. Messrs Faisal Spinning Mills Limited 1997 SCMR 1244 rel.

(c) Pakistan Engineering Council Act (V of 1976)------

----Ss. 10, 12, 16, 17, 18, 19, 20 & First Sched.---Powers of Pakistan Engineering Council to impose conditions on admitted students while granting accreditation to their institution---Scope--Council could not impose any condition on admitted students---After grant of accreditation to an institution and issuance of notification to such effect, passing out engineers carrying its degrees would be entitled to be registered with Council as of right---Council for its satisfaction could deal with such engineers separately while considering their applications for registration but not while granting accreditation to an institution---Process of accreditation and registration related to two different phases/stages, which could not be made simultaneously.

(d) Pakistan Engineering Council Act (V of 1976)-----

----S. 10 & First Sched.---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Accreditation granted by Pakistan Engineering Council to an institution while imposing conditions of remedial education and re-appearance of petitioners in examination without hearing them--­Validity---Right from commencement of process of accreditation till same was granted, petitioners had neither been given fair opportunity of hearing nor they had been competently and effectively represented in such process before Council---Institution without consulting petitioners had submitted plan, to Council for their remedial education and re­appearance-in examination---Without testing the credentials and academic knowledge of petitioners, Council had imposed such condition--­Petitioners had been condemned unheard, thus, decision taken by Council was not sustainable in law---High Court accepted Constitutional petition with direction to Council to re-consider registration of petitioners as engineer in relevant discipline to which their qualifications related.

Muhammad Sadiq and others v. University of Sindh and another PLD 1996 SC 182 ref.

Q.M. Jamil for Petitioners.

Muhammad Ali for Respondents Nos. 1 and 2.

Shumail Ahmed Butt for Respondents Nos. 4 and 5.

Date of hearing: 5th August, 2004.

P L D 2005 Peshawar 16

Before Shahzad Akbar Khan, J

ABDUL KHALIQ---Petitioner

Versus

CHAIRMAN, EVACUEE TRUST PROPERTY and others---Respondents

C. R. No. 90 of 2001, decided on 11th October, 2004.

Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

---S. 14---Specific Relief Act (I of 1877), S. 42---Civil Procedure Code (V of 1908), O.VII, R.11 & S.9---Suit for declaration--Rejection of plaint---Defendant had sought rejection of plaint on the ground that since matter pertained to dispute with regard to Evacuee Trust Property, Civil Court had no jurisdiction over the matter---Validity---Matter was squarely governed by Evacuee Trust Properties (Management and Disposal) Act, 1975 and S. 14 of said Act had clearly put a bar on jurisdiction of Civil Courts with regard to matter in question---Section 9, C.P.C. which had conferred general jurisdiction of Civil Courts had also created an exception for the suits the cognizance whereof was either expressly or impliedly barred---Section 14 of .Evacuee Trust Properties (Management and Disposal) Act, 1975, had provided an express bar on jurisdiction of Civil Court---Appellate Court had rightly rejected plaint in terms of O.VII, R.11, C.P.C.---Judgment of Appellate Court did not suffer from any infirmity or jurisdictional defect within contemplation of S.115, C. P. C.

1992 SCMR 1313; 1996 SCMR 250; 1999 MLD 2505 and 1995 SCMR 1748 ref.

Malik Fazal-e-Hussain for Petitioner.

Adam Khan Jadoon for Respondents.

Date of hearing: 11th October, 2004.

P L D 2005 Peshawar 19

Before Ijaz-ul-Hassan Khan, J

ABDUL WAHEED---Petitioner

Versus

MUHAMMAD BILAL --- Respondent

Civil Revision No.93 of 2004, decided on 9th September, 2004.

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

----Art. 117---Burden of proof---Burden of proof always lay upon plaintiff and plaintiff could not be benefited from shortcomings of defendant's case, where case of plaintiff was doubtful and entire evidence of plaintiff was self contradictory and highly discrepant.

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

----O. VII, R.2 & O.XLI, R.31---Suit for recovery of amount---Plaintiff had produced sufficient evidence in support of his case---Totally independent witnesses produced by plaintiff had fully supported version of plaintiff and they had demonstrated complete unanimity on all material particulars of the case---Said witnesses were subjected to fairly lengthy cross-examination, but they could not be shaken---Appellate Court had rightly placed reliance on statements of said witnesses and reversed findings of Trial Court---Material on record had established that suit amount was outstanding against defendant which was not paid by him despite repeated requests of plaintiff---Appellate Court had fully attended to the controversy involved and stated points arising for determination and its decision thereon--- Impugned judgment of Appellate Court was in consonance with material on record and provisions of O.XLI, R.31, C.P.C. had not been violated in the case---Parties were alive to the controversy involved and they were given reasonable opportunity to produce evidence in support of their respective contentions ---No prejudice seemed to have been caused to defendant---Appellate Court had discussed total evidence on record---No misreading or non-reading of evidence on part of Appellate Court was proved and Appellate judgment was not shown to have been tainted with any illegality or irregularity--­No interference in judgment of Appellate Court, would be permissible in revisional jurisdiction of High Court in circumstances---Imposition of costs on defendant, however appeared to be against spirit of law--­Finding to that effect being erroneous, could not be allowed to remain intact.

Mir Nawaz Khan and others v. Gul Ayub Khan and another 2003 CLC 1428 ref.

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

----Ss. 96 & 115---Powers of First Appellate Court---Revisional jurisdiction---Exercise of---First Appellate Court was well within its right to re-appraise evidence on record and reverse findings of Trial Court while exercising powers under S.96, C.P.C.---High Court had very limited jurisdiction to reverse findings of First Appellate Court while exercising powers under S.115, C.P.C. unless and until same were result of misreading and non-reading of evidence or any violation of principles laid down by Superior Courts---First Appellate Court had a right to re-appraise evidence on record and after re-appraisal, to come to a different conclusion.

N.S. Vankatagiri Ayyangar and another v. The State Hindu Religious Endowments Board Mad. PLD 1949 PC 26 ref.

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

----O. XLI, R.31---Appellate judgment---Points for determination--­Appellate judgment should state the points arising for determination, its decision thereon and reasons for its decision---Was necessary for Appellate Court to record the points for determination, so that it could be determined whether Court had dealt with all points---Appellate Court must state its reasons for decision---Judgment in reversal must contain a definite findings on the questions involved and for its reason for reversal and Appellate Court must fully examine all the arguments of lower Court---Provisions of O.XLI, R.31, C.P.C. were mandatory---Judgment of First Appellate Court had to set out points for determination, record decision thereon and. give its own reasons for said decision.

Government of the Punjab through Secretary Housing and Physical Planning and another v. Muhammad Ashraf 2004 YLR 1245 and Juma Khan v. Mst. Shamim and 3 others 1992 CLC 1022 ref.

Muhammad Waheed Anjum for Petitioner.

Muhammad Younis Thaheem for Respondent

Date of hearing: 9th September, 2004.

P L D 2005 Peshawar 25

Before Ejaz Afzal Khan and Dost Muhammad Khan, JJ

Messrs PEARL CONTINENTAL HOTEL, through Executive Manager, Khyber, Peshawar‑‑‑Petitioner

Versus

GOVERNMENT OF N.‑W.F.P. through Secretary Excise and Taxation of N.‑W.F.P. Peshawar and 3 others‑‑‑Respondents

Writ Petition No.650 of 2003, decided on 3rd November, 2004.

(a) North West Frontier Province Hotel Tax Rules, 2003‑‑‑

-‑‑R.4‑‑‑North‑West Frontier Province Finance Ordinance (XXIII of 2002), Ss.4 & 5 [as inserted by North‑West Frontier Province Finance (Amendment) Ordinance (VII of 2003)]‑‑‑West Pakistan Finance Act (I of 1965), S.12‑‑‑Constitution of Pakistan (1973), Arts. 199 & 163‑‑­Constitutional petition‑‑‑Vires of North‑West Frontier Province Hotel Tax Rules, 2003 insofar as the Rules allegedly, were inconsistent with S.4, N.W.F.P. Finance Act, 2003 and the authority of the Department to initiate the process of assessment and orders passed thereagainst pursuant thereto‑‑‑Held, there was no conflict between the two provisions and in case there was any, that was capable of being reconciled‑‑‑Mode suggested by R.4, N.‑W.F.P. Hotel Tax Rules, 2002 was also the same except that the expression "total number of lodging unit available" used in S.4, N.‑W.F.P. Finance Ordinance, 2002 had been phrased as "maximum number of lodging units" in the rule with the addition of the words "maximum charges made for a lodging unit on any day during the year for which the tax was assessed"‑‑‑Perusal of both Rule and section would reveal that there was no such conflict between the two, as a matter of fact the latter explained and qualified the expression "total number of lodging units "available" and the expression "room rent" used in the former‑‑‑Principles.

According to section 4 of the N.‑W.F.P. Finance Act, 2002, a mode has been prescribed for the levy and collection of tax on hotels payable by the owners or management thereof at the rate of 5% of the room rent per lodging unit per day on the basis of 50% of the total number of lodging units available therein. The mode suggested by R.4, N.‑W.F.P. Hotel Tax Rules, 2002 is also the same except that the expression 'total number of lodging units available' used in the section has been phrased as "maximum number of lodging units" in the rule with the addition of the words "maximum charges made for a lodging unit on any day, during the year for which the tax is assessed".

The question in the present case is whether the difference in the phrase with the addition of the words mentioned above, will ever constitute a conflict which is not capable of being reconciled? A careful perusal of the section and the rule would reveal that there is no such conflict between them. As a matter of fact, the latter explains and qualifies the expression 'total number of lodging units available' and the expression 'room rent' used in the former. Similarly a mountain cannot be made out of a mole hill when even according to the ordinary dictionary meaning, the word "available" means present or at hand and thus cannot be stretched to exclude a unit under repair when there is nothing either express or implied in the statute to justify any such inference, moreso when the' formula of taxing 50% the total lodging units is primarily meant to obviate such needs and eventualities. The Courts of law are not supposed to wrest the language of a statute to create causes omissus by assuming that the legislature intended to include it but omitted to do so and thus read what is not there.

It is true that the rules being a product of subordinate legislation can neither, override nor over‑reach a provision of the substantive statute but if they explain the latter and provide aid to facilitate its understanding, it shall, in certain cases, be quite legitimate to read and refer to them especially when they, on all counts, conform to and are subordinate to the substantive statute. In this view of the matter, there is no conflict between the two and in case there is any, that is capable of being reconciled.

The contention that after deletion of section 12 of the West Pakistan Finance Act, 1965, the Deportment is left with no authority to assess or collect hotel tax, notwithstanding being ingenious, is not legally respectable when the rules under the N.‑W.F.P. Finance Ordinance, 2002 have since been framed and the officials of the Department have been empowered and authorized to do the needful.

The contention that when despite fixed rates the classes of occupants enumerated in the segment are charged differently, the Assessing Authority could not levy tax on fixed rates in derogation of what is actually charged by the owner/Management, is also without force, firstly because it has never been averred anywhere in the petition muchless specifically that the rates shown in the Hotels Guide or displayed in the hotel itself are not the ones which are actually charged, secondly because such construction is not warranted by the statute or the rules made thereunder, thirdly because it opens room for discretionary powers of the officials of the Department which almost invariably tend to open floodgates for corruption and fourthly because the taxing statute in the third world countries are now so enacted and enforced as would ensure transparency irk the process of assessment and collection of tax and thus eliminate such powers which tend to facilitate its evasion, therefore, the room rent mentioned in the Hotels Guide or displayed in the hotel itself shall be considered to be the one as charged unless of course it is altered or modified.

The contention that where a provision of taxing Statute being vague and ambiguous is susceptible to two interpretations, the one which is in favour of the person taxed is to be adopted is also devoid of force as there is nothing vague or ambiguous in the Statute.

Messrs Firdous Spinning and Weaving Mills Ltd and others v. Federation of Pakistan and 2 others PLD 1984 Kar. 522; B.P. Biscuit Factory Ltd., Karachi v. Wealth Tax Officer and another 1996 SCMR 1470; Messrs Micropak (Pvt.) Ltd. Lahore v. Income Tax Appellate Tribunal Lahore and 2 others 2001 PTD 1180. Lt.‑Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty and others PLD 1961 SC 119 and Province of West Pakistan and another v. Mahboob Ali and another PLD 1976 Supreme Court 483 distinguished.

Zafar Ali Khan and another v. Government of N.‑W.F.P. through Chief Secretary and 3 others PLD 2004 Pesh. 263 ref.

(b) Interpretation of Statutes‑‑‑

‑‑‑‑ Rules being a product of subordinate legislation, can neither override nor overreach a provision of the substantive Statute, but if the Rules explain the latter and provide aid to facilitate its understanding, it shall, in certain cases, be quite legitimate to read and refer to them, especially when they, on all counts, conform to and are subordinate to the substantive statute.

Yahya Afridi for Petitioner.

Barrister Jehanzeb Rahim, A.‑G. for Respondents.

Date of hearing: 21st October, 2004.

P L D 2005 Peshawar 33

Before Malik Hamid Saeed and Muhammad Qaim Jan Khan, JJ

Mian SHAFIQUE AHMED ‑‑‑Petitioner

Versus

SENIOR SUPERINTENDENT OF POLICE, PESHAWAR and 4 others‑‑‑Respondents

Writ Petition No.692 of 2000, decided on 28th September, 2004.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑S.154‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(3)‑‑‑Penal Code (XLV of 1860), Ss.337‑F(ii)/182/186‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Registration of criminal case‑‑­petitioner/complainant had alleged that accused/respondents with the help of Bailiff of the Court including Local Police tried to get possession of his petrol pump and forced petitioner to sign over warrant of possession‑‑‑Petitioner had alleged that on refusal of petitioner to sign warrant of possession, one of accused hit him on his head forcefully in presence of S.H.O. and petitioner who received grievous hurt became senseless and accused snatched his bag containing huge money‑‑­Petitioner had alleged that police concerned had not registered case against respondents/accused despite his utmost efforts‑‑‑Petitioner in his Constitutional petition had prayed that concerned police be directed to register case against accused/respondents‑‑‑Validity‑‑‑Section 154, Cr.P.C. had made it obligatory for an officer incharge of Police Station that every information relating to commission of a cognizable offence if given orally to an officer incharge of a Police Station, would be reduced to writing by him or under his direction‑‑‑Superior Courts, time and again, had interpreted said provisions of law in very clear terms and there remained no ambiguity for Station House Officer to make any excuse in that regard when information of committing a cognizable offence was given to him by an informant‑‑‑Allegations levelled by petitioner against respondents in the present case had constituted commission of a cognizable offence which should be probed by some investigating agency‑‑‑Refusal/reluctance of police to register case upon complaint of petitioner was violative of S.154, Cr.P.C.‑‑‑High Court accepting Constitutional petition, directed to register case against respondents‑‑‑Regarding apprehension of false allegation of petitioner against respondents, it could be stated that Legislature had placed check and balance on same upon complainant through S.182, P.P.C.

2000 PCr.LJ 320; PLD 2000 Lah. 208; PLD 1999 Lah. 521 and 1999 PCr.LJ 1645 ref.

Nusrat Yasmin for Petitioner.

Muhammad Ayaz Khan, D.A.‑G. for Respondents Nos. 1, 4 and 5.

Khalid Khan for Respondent No.2.

M. Shaukat Hussain for Respondent No.3.

Date of hearing: 28th September, 2004.

P L D 2005 Peshawar 39

Before Tariq Parvez Khan and Qazi Ehsanullah Qureshi, JJ

NASRULLAH and another‑‑‑Appellants

Versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No.277 of 2004, decided on 22nd September, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/34‑‑‑Appreciation of evidence‑‑‑Circumstantial evidence‑‑­Where prosecution relied on circumstantial evidence, it was rule of prudence which had become rule of law by practice, that each piece of circumstantial evidence should be above‑board, independently proved and connected accused with commission of crime‑‑‑Such evidence in fact should be like links of the chain which would fit into each other and would lead from one end other linking crime with accused.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b)/34‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑‑Appreciation of evidence‑‑‑Allegation of strangulating the deceased‑‑‑Pieces of rope collected by Police were not sealed into parcel‑‑‑In absence of any blood‑stains on said pieces of rope or in absence of any other identifying marks, it could not be concluded that same pieces were used for strangulating deceased‑‑‑Such evidence was of no help to prosecution‑‑‑Recovery of hand‑cart not being from a place which was under exclusive control of accused and being commonly available, was excluded from consideration‑‑‑Motor car owned by one of prosecution witnesses was allegedly recovered from house of other prosecution witness who, if on date of recovery of said car, was not present in the house, was not even later on examined by police as to how .said vehicle was parked in his house and as to who had brought it there‑‑‑Prosecution witness in his examination‑in‑chief had stated that two accused were present in the said house, but their presence was not shown in recovery memo.‑‑‑No witness from the public was associated with the recovery of motor car nor with the arrest of two accused from the same house‑‑‑Mere recovery of motor car in absence of convincing evidence that two accused were found present and arrested, would not advance prosecution case against two accused‑‑‑Arrest of accused persons was also open to serious doubt‑‑‑Date of arrest of accused and place of their arrest being not certain, physical connection of two witnesses with motor car, was doubtful‑‑‑Confession of accused which was recorded on oath, would be taken out of consideration‑‑‑Even otherwise confession made under duress, promise or threat could not be taken into evidence‑‑‑Confessions of accused were recorded after delay of nine days and no explanation had been tendered by police for said delay which had created substantial doubt in their voluntariness‑‑­Recovery of wrist watch allegedly belonging to deceased was also doubtful as dummy wrist watches were procured not through any independent source by Magistrate, but Investigating Officer was asked to procure the same‑‑‑Possibility could not be ruled out that Investigating Agency had manipulated procurement of wrist watch which was planted on accused with allegation that it belonged to deceased‑‑­Prosecution having failed to connect accused with crime, their conviction and sentences were set aside and they were acquitted of the charge.

2002 PCr.LJ 1072 ref.

Attaullah Khan for Appellants.

Akhtar Naveed, Dy. A.‑G. for the State.

Tasleem Bibi Present in person.

Date of hearing: 22nd September, 2004.

P L D 2005 Peshawar46

Before Ijaz‑ul‑Hassan Khan and Ejaz Afzal Khan, JJ

SHAFI ULLAH and another‑‑‑Appellants

Versus

MUHAMMAD SAEED and 3 others‑‑Respondents

Criminal Appeal No.30 of 2004 and Murder Reference No.5 of 2004, decided on 29th September, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑No direct evidence was available in the case and prosecution evidence rested on circumstantial evidence which had totally failed to connect accused with commission of offence‑‑‑Statements of two prosecution witnesses were discrepant and pregnant with serious infirmities which could not be relied upon and made basis of conviction of accused in absence of strong corroborative evidence which was lacking in the case‑‑‑No direct evidence was available and accused were sought to be linked with the crime only by the statements of witnesses, confession of one of accused and recoveries‑‑‑Neither evidence was led by prosecution to show place of occurrence nor accused were alleged to have been seen near any such place‑‑‑Recovery of gun or matching of crime empty with the gun was not sufficient ground by itself to prove commission of murder by accused‑‑‑No evidence of deceased having been last seen in the company of accused was available‑‑‑Trial Court by convicting accused had placed implicit reliance on confessional statement of one of accused persons, but it had legally erred in not making its assessment in its true perspective‑‑­Confession was recorded on oath which was hit by provisions of S.5 of Oath Act, 1873 and was not admissible in evidence‑‑‑Magistrate had also failed to observe legal mandatory provisions of Ss.164/364, Cr.P.C. and the confession was recorded after three days of police custody of accused who allegedly made confessional statement‑‑‑Confession was retracted, which further remained uncorroborated from other material evidence‑‑­Motive over money affair was not found to exist between accused and deceased‑‑‑Complainant had not appeared in the case, which had made prosecution story doubtful‑‑‑Prosecution evidence did not inspire confidence‑‑‑Occurrence was unseen and corroborative evidence was so weak, untrustworthy that it could not remove inherent defects in prosecution story‑‑‑Case was based on circumstantial evidence and in the case of circumstantial evidence every chain of evidence of prosecution, must be linked with other chain of evidence of prosecution which was lacking in the case‑‑‑There being no satisfactory basis for upholding conviction and sentence of accused, their conviction and sentence ordered by Trial Court were set aside and accused were acquitted of charge and were set free.

Muhammad Israf and another v. The State 2002 PCr.LJ 1072; State through Advocate‑General, N‑W.F.P. Peshawar v. Mumtaz and 2 others 1987 PCr.LJ 1796; Muhammad Islam and another v. The State 1995 SCMR 1615; Muhammad Bakhsh v. The State PLD 1956 SC 420; Khan Muhammad and others v. The State 1999 SCMR 1818; Haroon alias Harooni v. The State and other 1995 SCMR 627; Manzoor v. The State PLD 1973 Lah. 714 and Asal Muhammad v. The State PLD 1994 Pesh. 227 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Circumstantial evidence‑‑‑In a case resting on circumstantial evidence, no link in the chain should be missing and all circumstances must lead to the guilt of accused‑‑­Circumstantial evidence for securing conviction must be irreversible, authentic and would exclude all possibilities of innocence of accused‑‑‑In case of an un-witnessed crime, all possible circumstances were to be taken into consideration and thereafter a conclusion was to be drawn and on that basis investigation started‑‑‑Statement of a witness must be in consonance with probabilities, fitting in the circumstances of case and also inspired confidence in the mind of a reasonable prudent man.

Haroon alias Harooni v. The State and others 1995 SCMR 627 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Onus to prove‑‑‑To get accused convicted in an offence of capital punishment, prosecution was bound to prove its case, wherein no weakness could be found to give benefit of doubt to accused‑‑‑When an accused was charged with offence, then entire onus had to be discharged by prosecution and it was obligatory that offence should be proved beyond any reasonable doubt‑‑­Onus would never shift to defence‑‑‑Last seen evidence was a weak type of evidence and solely on that basis conviction could not be sustained.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Medical evidence‑‑‑Evidentiary value‑‑‑Medical evidence itself without further corroboration could not connect accused with crime‑‑‑Such evidence only established death and would not indicate at all as to who had hand in the commission of offence.

Masood Ahmad and others v. The State 1995 SCMR 127 and Saifullah and others v. The State 1986 PCr.LJ 2794 ref.

(e) Oaths Act (X of 1873)‑‑‑

‑‑‑‑S. 5‑‑‑Confession‑‑‑Confession recorded on oath‑‑‑Validity‑‑‑Such confession is inadmissible.

Muhammad Karim Anjum Qasuria for Appellants.

Muhammad Sharif Chaudhry, D.A.‑G. for the State.

Sanaullah Khan Gandapur for the Complainant.

Dates of hearing: 27th and 28th September, 2004.

P L D 2005 Peshawar 57

Before Ijaz‑ul‑Hassan Khan and Ejaz Afzal Khan, JJ

Haji ABDUL HAKEEM and another‑‑‑Petitioners

Versus

JUDGE SPECIAL COURT ANTI‑TERRORISM, D. I. Khan and 3 others‑‑‑Respondents

Writ Petition No.87 of 2004, decided on 4th October, 2004.

Anti‑Terrorism Act (XXVII of 1997)‑‑‑

‑‑‑‑Ss. 6, 7, 8 & 23‑‑‑Penal Code (XLV of 1860), S.302/34---Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Anti Terrorism Act, 1997, applicability of‑‑‑Transfer of case from Anti-Terrorism Court to ordinary Court‑‑‑Anti‑Terrorism Act, 1997 would attracted only when act or threat to commit an act had nexus to Ss.6, 7 & 8 of Anti‑Terrorism Act, 1997 and consequences of the act or threat to commit an act falling within the ambit of S.6 of Anti‑Terrorism Act, 1997, were be striking a terror and creating a sense of fear a insecurity among the people‑‑‑Ordinary crimes and physical harm to t victim would not fall within the ambit of Anti‑Terrorism Act, 1997‑‑‑For taking cognizance of an offence, the Court had to see psychological impact of violence which was always considered a decisive factor---Court also had to see that a criminal act designed to create a sense of fear and insecurity in the minds of general people and creating a panic in the society, was parameters for bringing an offender within the ambit of Anti‑Terrorism Act, 1997‑‑‑Present case did not qualify to be a terrorist act within the contemplation of S.6 or Schedule of Anti‑Terrorism Act, 1997‑‑‑High Court accepting Constitutional petition, directed that case be transferred to the Court of ordinary jurisdiction under S. 23 of Anti-Terrorism Act, 1997.

Basharat Ali v. Special Judge, Anti‑Terrorism Court‑II, Gujranwala PLD 2004 Lah. 199; Muhammad Ramzan and another v. The State and 3 others 2004 YLR 2818; Sardar Moazam Khan v. The State and another PLD 2004 Pesh. 175; Mehram Ali's case PLD 1998 SC 1445; Government of Balochistan through Additional Chief Secretary v. Azizullah Memon PLD 1993 SC 341; Darvesh M. Arbey v. Federation of Pakistan PLD 1997 Lah. 846 and PLD 2003 SC 224 ref.

Saleemullah Khan Ranazai for Petitioners.

Muhammad Sharif Chaudhry, D.A.‑G. for the State.

Respondent No.3 in person.

Date of hearing: 4th October, 2004.

P L D 2005 Peshawar62

Before Shahzad Akbar Khan and Fazlur Rehman Khan, JJ

Mst. KHANUM JEE‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.48 of 2000, decided on 12th October, 2004.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/309/311/324/34‑‑‑Criminal Procedure Code (V of 1898), S.345‑‑‑Appreciation of evidence‑‑‑Partial compromise ‑‑‑Effect-‑­Accused were charged for offences under Ss.302 (four counts), 324 & 34‑‑‑All legal heirs of four deceased, except mother of one of deceased, entered into compromise with accused during the trial‑‑‑Co-­accused were acquitted in view of said compromise and accused was convicted under S.311, P.P.C. and was sentenced as Ta'zir with a direction to pay share of Diyat amount to legal heir of deceased who did not agree to the compromise‑‑‑All major legal heirs of four deceased except one had waived their rights of Qisas and had forgiven the accused in the name of Allah‑‑‑Shares of minors of deceased in their Diyats had been deposited in the Court‑‑‑Out of five legal heirs, only mother of one of deceased was contesting the case and had challenged the propriety of punishment of accused‑‑‑Validity‑‑‑Held, punishment awarded by Trial Court to accused, was quite in accordance with law and in the best interest of parties, needed no further enhancement.

2003 SCMR 561 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/309/311/324/34‑‑‑Criminal Procedure Code (V of 1898), S.345‑‑‑Award of punishments as Ta'zir‑‑‑Partial compromise ‑‑‑Effect‑‑­Where punishments were awarded as Ta'zir, partial compromises (where some of legal heirs of deceased did not enter into compromise) were not allowed to absolve accused of their liabilities‑‑‑Partial compromise in appropriate cases, however, was allowed to be a mitigating circumstance for awarding lesser punishment, but quantum/propriety of punishment would not come up for consideration.

Sheikh Muhammad Aslam v. Shaukat Ali alias Shauka 1997 SCMR 425; PLD 2003 SC 635 and 2004 PCr.LJ 530 ref.

Fazal‑e‑Haq Abbasi for Appellant.

Ghulam Younas Khan Tanoli and Muhammad Aslam Khan for Respondent No. 1.

Date of hearing: 12th October, 2004.

P L D 2005 Peshawar69

Before Talaat Qayum Qureshi, J

Haji MUHAMMAD AMEEN‑‑‑Petitioner

Versus

Messrs FRONTIER CERAMICS LTD. PESHAWAR‑‑‑Respondent

Civil Revision No. 1493 of 2004, decided on 26th January, 2005.

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

‑‑‑‑S. 115 & O.XIII, Rr.1, 4 & 7‑‑‑Admission of document in evidence‑‑‑If a document was once admitted in. evidence, objection against its admission was not allowed even at appellate stage what to speak of raising objection at revisional stage.

Malik Din and another v. Muhammad Aslam PLD 1969 SC 136; Abdullah and 3 others v. Abdul Karim and others PLD 1968 SC 140; Muhammad Akram v. Syed Imrao Ali Shah 1988 CLC 2228; Abdul Hamid v. Muhammad Zamir and 2 others 1990 MLD 1617 and National Bank of Pakistan v. Said Mir 1987 CLC 1103 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 133‑‑‑Non‑cross‑examining a witness‑‑‑Effect‑‑‑If a witness was not cross‑examined on facts and his statement went un-rebutted and un­questioned, such statement could be taken as correct.

Muhammad Akhtar v. Mst. Mana and 3 others 2001 SCMR 1700; Mst. Noor Jehan Begum v. Syed Mujtaba Naqvi 1990 SCMR 2300; Aminul Haq v. Abdul Wasi 2004 CLC 555 and Haji Din Muhammad through L.Rs. v.Mst. Hajira Bibi PLD 2002 Pesh. 21 ref.

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

‑‑‑‑O.VI, R.1‑‑‑Pleadings‑‑‑Plea not taken in pleading‑‑‑Party could not be allowed to lead evidence about the plea which was not taken in pleadings and statement to that extent was to be ignored.

Din Muhammad and others v. Sardar Muhammad Zaman 2001 SCMR 1992 and Binyamin and 3 others v. Chaudhry Hakam and another

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction‑‑‑Scope‑‑‑When Courts of competent jurisdiction had properly appreciated evidence available on record, in absence of any misreading/non‑reading of evidence or any material irregularity or any jurisdictional error or defect, their concurrent findings could not be interfered with by High Court in exercise of its revisional jurisdiction.

Muhammad Iqbal Khalil for Petitioner.

P L D 2005 Peshawar 67

Before Talaat Qayum Qureshi, J

MUHAMMAD AYUB KHAN and others‑‑‑Applicants

Versus

Mst. AMTULZARI and others‑‑‑Respondents

R.S.A. No. 1 of 1998, decided on 17th January, 2005.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XLI, Rr.17 & 19‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Dismissal of appeal for non‑prosecution‑‑‑Application for restoration of appeal‑‑­Limitation‑‑‑Appeal having been dismissed for non‑prosecution, appellants filed application for restoration of appeal after delay of 3 years, 2 months and one day from its dismissal without mentioning plausible explanation for condonation of such inordinate delay‑‑‑Delay of each day was to be explained for condonation of delay, but that had not been done in the case despite appellants had knowledge of dismissal of their appeal‑‑‑Application filed by appellants for restoration of appeal being hopelessly barred by time, same was dismissed.

Lal Din v. Deputy Commissioner 1982 SCMR 201; Federation of Pakistan v. Jamaluddin and others 1996 SCMR 727; Income Tax Officer v. Sheikh Miran Bakhsh Ltd. and 25 others 1986 SCMR 1255 and M.E.O, and another v. Syed Qamoos Khan and 20 others PLD 2004 Pesh. 40 ref.

Mazullah Barkandi for Appellants.

Abdul Latif Afridi for Respondents.

Date of hearing: 17th January, 2004.

P L D 2005 Peshawar 77

Before Shahzad Akbar Khan and Fazlur Rehman Khan, JJ

BIBI INAYAT SULTAN and another‑‑‑Petitioners

Versus

SARDAR HABIB KHAN and 2 others‑‑‑Respondents

Writ Petition No.94 of 2004, decided on 13th January, 2005.

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

‑‑‑‑S. 5 & Sched.‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Suit for maintenance‑‑‑Plaintiff/wife was divorced by husband twenty years ago through divorce deed‑‑‑Daughter of the spouse who was 35, years old now was serving as a teacher‑‑‑Both mother and daughter had left the house of the husband/father 20 years back‑‑‑Daughter had not married and no valid reason had been advanced by her as to why she was not getting married despite being of advanced age of 35 years and had preferred to live with her mother who had also severed relations with her husband‑‑‑Husband though being father of the daughter was under obligation to maintain his daughter, but he was not bound to, maintain the daughter who being of advanced age was capable of being maintained out of her own earning as she being a teacher was getting salary out of which she could very conveniently meet her expenses‑‑‑Father, in circumstances could not be saddled with responsibility to make payment of maintenance to the daughter for the whole life when she had chosen to remain unmarried without any valid reasons‑‑‑Appellate Court having rightly dismissed suit filed by plaintiffs, Constitutional petition filed against said order being destitute of merits was dismissed.

1994 SCMR 2098 and 1992 SCMR 1273 ref.

Muhammad Ilyas Khan for Petitioners.

Amjad Ayub Khan for Respondents.

Date of hearing: 13th January, 2005.

P L D 2005 Peshawar 81

Before Malik Hamid Saeed and Dost Muhammad Khan, JJ

MUHAMMAD UZAIR SIDDIQUI‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 155 of 2004, heard on 9th December, 2004.

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

‑‑‑‑S. 9‑‑‑Penal Code (XLV of 1860), Ss.417/418/468‑‑‑Appreciation of evidence‑‑‑No entry was found in daily diary of police regarding secret information allegedly received by, the Police‑‑‑Prosecution had failed to establish beyond reasonable doubt that 43 Kgs `Charas' was recovered from possession/control of accused, but prosecution had succeeded proving his guilt to the extent of 172 grams of Charas from his possession because that much quantity was sent to Chemical Examiner whose report being part of evidence was in positive‑‑‑Guilt of accused, in circumstances had been proved to the extent of having in his possession 172 grams of Charas and not 43 Kgs. as alleged‑‑‑Accused in circumstances was not liable to imprisonment for life term‑‑‑To inflict capital punishment of death or of life imprisonment, prosecution was under statutory obligation to furnish first degree of proof through high quality evidence reasonably creating nexus of accused with commission of offence‑‑‑Object and intent of .law makers behind enacting cl.(c) of S.9 of Control of Narcotic Substances Act, 1997 providing deterrent punishment was to suppress the mischief of trafficking, transporting, importing or exporting narcotic substances at large scale‑‑‑Was difficult to hold in the present case that in fact 43 Kgs. Charas was recovered from accused as alleged by prosecution‑‑‑Conviction of accused was maintained under S.9(b) of Control of Narcotic Substances Act, 1997 and sentence of life imprisonment awarded to him by Trial Court was reduced to three years' R.I.

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

‑‑‑‑Ss. 9 & 33(4)‑‑‑Criminal Procedure Code (V of 1898), S.516‑A‑‑­Appreciation of evidence‑‑‑Destruction of remaining quantity of narcotics‑‑‑Procedure‑‑‑To establish that a particular quantity of narcotics was recovered from accused, prosecution was duty bound to establish by leading evidence to that effect‑ ‑‑Proviso to subsection (4) of S.33 of Control of Narcotic Substances Act, 1997 required that pending inquiry or trial, the bulk of narcotic substance was to be disposed of/destroyed according to the procedure laid down by provisions of S.516‑A, Cr.P.C.‑‑‑Whenever prosecution required the Court to draw an inference that the sample preserved would be construed to be the entire bulk of narcotics having been destroyed with the order of the Court, it would bring on record the written permission granted by Trial Court and the certificate of its destruction issued either by Trial Judge or Magistrate supervising such process which would contain all reasonable details and reference to F.I.R. number; date of occurrence; title of the case with particulars of accused; the section of law applied and description of Police Station where case was registered and date, time and place where narcotics were destroyed‑‑‑Said documents were to be brought on record in evidence and for that purpose at least Magistrate who supervised the process of destruction was to be produced along with police officer/person who had taken samples from the bulk for production at the trial otherwise it would be difficult for the Court to draw required inference as envisaged by third proviso to S.516‑A, Cr.P.C., more particularly in a case where defence denied the recovery of particular quantity of narcotics from accused.

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

‑‑‑S. 9(a)(b)(c)‑‑‑Appreciation of evidence‑‑‑Severity of punishment‑‑­All three clauses i.e. (a)(b)(c) of S.9 of Control of Narcotic Substances Act, 1997 had provided different quantum of sentences of imprisonment including death sentence depending entirely and exclusively on quantity of narcotics involved‑‑‑Most severe punishment/sentence was provided in third proviso that where quantity of narcotics exceeded 10 K.Gs., punishment would be death and would not be less than imprisonment for life‑‑‑Severity of punishment had direct nexus with quantity of narcotics recovered from accused‑‑‑Duty of prosecution was two fold, firstly it was to establish the guilt of accused for having in his possession or under his control contraband narcotics and secondly to establish through evidence the particular quantity said to have been recovered‑‑‑In second case if no .evidence was adduced to prove the exact quantity recovered from accused, Court ordinarily would be unable to award sentence prescribed by cl.(c) of S.9 of Control of Narcotic Substances Act, 1997 or for, that matter one under third proviso, to cl.(c) of said section.

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

‑‑‑‑S. 9‑‑‑Appreciation of evidence‑‑‑No one would be construed into a crime in absence of legal proof/evidence.

Sidiya Siddiqui and, Miss Farhana Marwat for Appellant.

Pir Liaqat Ali, Addl. A.‑G.‑ for the State.

Date of hearing: 9th December, 2004.

P L D 2005 Peshawar 88

Before Ijaz‑ul‑Hassan Khan and Ejaz Afzal Khan, JJ

WASIM REHAN‑‑‑Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary Defence and 3 others‑‑‑Respondents

Writ Petition No. 122 of 2004, decided on 15th December, 2004.

North‑West Frontier Province Public Property (Removal of Encroachment) Act (V of 1977)‑‑‑

‑‑‑‑Ss. 3, 5, 8 & 12‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Maintainability‑‑‑Petitioner had alleged that Cantonment Board, a year back had erected barriers at the entry of each and every road of the Cantonment and had employed an Army Sepoy on same and they had started interfering with the rights of movements of citizens on public path, which had created great unrest in the general public‑‑‑Petitioner had prayed that action of Cantonment Board be declared illegal, without lawful authority and ineffective upon the rights of petitioner and general public‑‑‑Petitioner had further prayed that Cantonment Board be restrained from violating fundamental rights guaranteed by the Constitution‑‑‑Validity‑‑Condition precedent for exercise of jurisdiction under Art. 199 of the Constitution was that no other adequate remedy was provided by law to petitioner‑‑‑Adequate remedy was available to petitioner, in the present case, to voice his grievance in terms of relevant provisions of North‑West Frontier Province Public Property (Removal of Encroachment) Act, 1977 Petitioner, otherwise was not an aggrieved party‑‑‑High Court, could not exercise its Constitutional jurisdiction in circumstances.

Shujaullah Khan for Petitioner.

P L D 2005 Peshawar 89

Before Ijaz‑ul‑Hassan Khan and Ejaz Afzal Khan, JJ

JAVED KHAN‑‑‑Petitioner.

Versus

Mst. FOZIA AZIM and another‑‑‑Respondents

Writ Petition No. 165 of 2004, decided on 14th December, 2004.

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

‑‑‑‑S. 5 & Sched.‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional jurisdiction of High Court‑-‑Scope‑‑‑Suit for recovery of dower‑‑‑Family Court accepting claim of wife with regard to four Tolas of gold ornament given to her by husband at time of marriage, decreed her suit‑‑ Evidence on record had revealed that at the time of marriage, alleged gold ornament were given by husband to wife in lieu of dower which subsequently were taken back by him‑‑‑Statement of wife in that respect had remained unchallenged‑‑‑Family Court had considered matter from all angles and had come to correct conclusion that wife was entitled to recovery of alleged gold ornaments‑‑‑Finding of Family Court could not be successfully challenged in Constitutional petition, unless Family Court was found to have exceeded jurisdiction, acted without jurisdiction or its finding was shown to have passed on no evidence‑‑‑Constitutional jurisdiction would not lie to challenge an order on the ground that evidence in case was not correctly appreciated‑‑‑Finding of fact recorded by Court of competent jurisdiction, could not be disturbed simply on the ground that another view could be possible on the same evidence‑‑‑High Court in its Constitutional jurisdiction, could not sit as a Court of appeal and could not substitute finding of fact recorded by Court below‑‑­Judgment of Family Court had revealed that plausible reasons had been given in support of conclusion arrived at by Family Court and no case of misreading or non‑reading of evidence had been made out‑‑‑Appraisal and evaluation of evidence by Court could not be made in Constitutional petition.

Muhammad Anwar Awan for Petitioner.

P L D 2005 Peshawar 92

Before Talaat Qayum Qureshi, J

KHAN BADSHAH and others‑‑‑Appellants

Versus

NASIR and others‑‑‑Respondents

R.F.A. No. 81 of 2004, decided on 25th January; 2005.

Civil Procedure Code (V of 1908)‑‑

‑‑‑‑O. XVII, R. 3 & O. VI, R.18‑‑‑Specific Relief Act (I of 1877), Ss.8, 42 & 54‑‑‑Suit for declaration, recovery of possession and perpetual injunction‑‑‑Non‑filing of amended plaint‑‑‑Rejection of plaint‑‑­Permission sought by plaintiffs for amendment in their plaint was granted and plaintiffs were directed to file amended plaint confining the same to amendment allowed to them by Trial Court, but plaintiffs had failed to file said mended plaint as per directions of Trial Curt‑‑‑ Trial Court while applying provisions of O.XVII, R. 3, C.P.C. dismissed suit file by plaintiffs for non‑compliance of its earlier orders‑‑‑Appeal filed by plaintiffs against judgment and decree of Trial Court having been ­returned to them due to lack of pecuniary jurisdiction, plaintiff had filed present appeal before High Court‑‑‑Held, if a party, who had obtained an order for amendment, had not amended plaint accordingly within the time allowed for that purpose and if no time was fixed by the Court, within 14 days from date of order permitting to amend was passed, said party would not be permitted to amend plaint after expiration of limitation time or 14 days unless time was properly extended by the Court‑‑‑Provisions of O.XVII, R. 3, C.P:C. were not applicable in the case because trial Court should have dealt with the matter in accordance with O.VI, R. 18, C.P.C. and Trial Court had no power to dismiss the suit‑‑‑Plaintiffs earlier filed appeal before District Judge, which was returned to them and plaintiffs filed present appeal 17 days after the same was returned to them‑‑‑In order to get condonation of delay each day was to be explained by plaintiffs‑‑‑Though no explanation was available on record as to why 17 days were spent after appeal was returned to them, but impugned judgment/decree being illegal having been passed on wrong premises, delay in filing appeal was condoned‑‑­Appeal was allowed on payment of costs.

Faquir Muhammad v. Mullah Mahmood PLD 1973 Quetta 1; Mst. Mussarat Ara Khanum v. Umaid Ali and another PLD 1999 Quetta 36; Muhammad Ramzam v. Zulfiqar Ahmad 2003 SCMR 785; Chairman/Secretary, Pakistan Railways v. Muhammad Sharif Javaid Warsi PLD 2003 SC 6; Muhammad Ashraf v. Qamar Sultana PLD 2003 SC 228; Mrs. Tomlinson v. Murammat GORAN (60 IC 376 L.) and Rahman v. Ahmad Din AIR 1926 Lah. 571 ref.

Hidayatullah Khan for Appellants.

Mazullah Barkandi for Respondents.

Date of hearing: 25th January, 2004.

P L D 2005 Peshawar 96

Before Tariq Parvez Khan and Qazi Ehsanullah Qureshi, JJ

MERAJ AHMAD KHAN‑‑‑Petitioner

Versus

Syed MASOOM SHAH and 9 others‑‑‑Respondents

Writ Petition No. 705 of 2003, decided on 11th May, 2004.

North‑West Frontier Province Local Government Ordinance (XIV of 2001)‑‑‑

‑‑‑‑Ss. 3, 5, 54 & 56‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Authority of Tehsil Nazim to issue authorization for a bus stand‑‑‑Tehsil Nazim in view of Ss. 54 & 56 of North‑West Frontier Province Local Government Ordinance, 2001 was competent and empowered to issue authority for holding or managing a bus stand.

Syed Sardar Hussain for Petitioner.

Gul Sadber Khan for Respondents Nos. 1 and 2.

Muhammad Aman Khan for Respondent No.3.

Pir Liaqat Ali Shah Addl. A.‑G. for the Remaining Respondents.

Date of hearing: 11th May, 2004.

P L D 2005 Peshawar 98

Before Shah Jehan Khan, J

BASHIR KHAN‑‑‑Petitioner

Versus

THE STATE through Advocate‑General, N.‑W.F.P. Peshawarand another‑‑‑Respondents

Bail Application No.97 of 2005, decided on 21st February, 2005.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 497, 87 & 204‑‑‑Penal Code (XLV of 1860), Ss. 302, 34, 148 & 149‑‑‑Bail, refusal of‑‑‑Accused had pressed his bail application on sole ground of consistency as his co‑accused had already peen allowed bail ­Trial Court which was not recalled by the High Court‑‑‑Complainant had opposed bail on the ground that case of accused was distinguishable from the co‑accused due to his noticeable abscondence‑‑‑ Validity‑‑‑Accused who was well aware of the charge against him, opted not to surrender before law for sufficient long time‑‑‑Abscondence of accused was deliberate and unexplained which had made his case distinguishable from, co‑accused‑‑‑Motive behind occurrence was political rivalry between accused and complainant‑‑‑Not only unexplained prolonged abscondence of accused for which he was proceeded against under Ss. 87 & 204 Cr.P.C., but motive was also attributed to accused which made his case distinguishable from the bailed out accused‑‑‑Fugitive from law would lose some of procedural and substantive rights‑‑‑Bail of co‑accused was not helpful to accused not only on ground that unexplained deliberate prolonged abscondence of accused and a direct motive had distinguished his case from co‑accused, but also on the ground that principles for grant and cancellation of bail were altogether different‑‑‑Accused, prima facie, was connected with commission of offence and accused did not agitate grant of bail on merits of prosecution case, but only had agitated the ground of consistency which was not conceivable due to said distinguishable features‑‑‑Bail petition was dismissed with direction to Trial Court to commence trial of accused without any further delay.

Inayatullah v. The State PLD 2003 Kar. 416; Ibrahim v. Hayat Gul and others 1985 SCMR 382; Jan Muhammad v. The State and another 1978 SCMR 287; Muhammad Imranullah Khan v. The State 1995 PCr.LJ 167 and Sardar v. The State PLD 1979 Pesh. 16 ref.

Muhammad Zahoorul Haq for Petitioner.

Muhammad Ayaz Khan, A.A.‑G. for the State.

M. Mohibullah Kakakhel for the Complainant.

Date of hearing: 21st February, 2005.

P L D 2005 Peshawar 101

Before Malik Hamid Saeed and Salim Khan, JJ

Khawaja MUHAMMAD SHABIR‑‑‑Petitioner

Versus

MUHAMMAD SIDDIQUE and 2 others‑‑‑Respondents

Writ Petition No.726 of 2004, decided on 14th February, 2005.

Frontier Crimes Regulation (III of 1901)‑‑‑

‑‑‑‑Ss. 4 & 8‑‑‑Civil Procedure Code (V of 1908), O.VII, R. 2‑‑­Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Suit for recovery of amount‑‑‑Issuance of warrant of arrest‑‑‑Some amount being outstanding against petitioner, respondent instituted suit for recovery of said amount in Civil Court at Peshawar‑‑‑Respondent later on filed application before respondent Additional District Magistrate under Frontier Crimes Regulation, 1901 on which District Magistrate issued warrant of arrest against petitioner and attempt was also made by police to arrest him‑‑‑Validity‑‑‑Dispute between petitioner and respondent had arisen at Peshawar and civil suit regarding the same was pending at Peshawar which was to be decided on its own merits‑--­Warrant issued by the Deputy Commissioner was not executable at Peshawar as it was not covered by provisions of S. 8 of Frontier Crimes Regulation, 1901‑‑‑Constitutional petition was accepted in circumstances.

Jamil Khan for Petitioner.

Iqbal Ahmad Durrrani for Respondent.

Pir Liaqat Ali Shah, Addl. A.‑G. for the State.

Date of hearing: 14th February, 2005.

P L D 2005 Peshawar 105

Before Nasir‑ul‑Mulk, C J

ABDUL WAHAB and others‑‑‑Applicants

Versus

GHULAM MUHAMMAD and others‑‑‑Respondents

C.A./TA No.72 of 2004, decided on 20th December, 2004.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 24‑‑‑Transfer of case‑‑‑Application for‑‑‑Transfer application alleged that counsel for applicants had divulged to applicants that they would not be able to get justice from Presiding Officer of the Court concerned and advised them to move application for transfer of appeals‑‑‑Said counsel had not filed affidavit in that respect‑‑‑Held, it was unfortunate that a counsel should advise his client to move High Court for transfer of a case on ground that he apprehended that Judicial Officer would not decide case impartially and fairly‑‑‑Counsel should have had the moral courage to furnish affidavit in support of his advice and state reasons for his apprehension‑‑‑Main allegation in application for transfer of case was against Reader of Appellate Court where appeals were pending‑‑‑Preliminary enquiry had already been ordered in that respect‑‑‑No allegation was found against Appellate Court where appeals were pending adjudication‑‑‑In view of situation which had developed during pendency of application for transfer of case, it would be in the interest of justice as well as parties that case be transferred to another Judge‑‑‑Case transferred accordingly.

Abdul Latif Afridi for Applicants.

S. Masood Kausar Bar‑at Law, M. Alam and S. Yunis Jan for Respondents.

Date of hearing: 20th December, 2004.

P L D 2005 Peshawar 107

Before Nasir‑ul‑Mulk, C.J. and Talaat Qayum Qureshi, J

MUHAMMAD ASIF BANGASH ‑‑‑ Petitioner

Versus

A.S.P., KOHAT and 4 others‑‑‑Respondents

Review Petition No. 12 of 2000 in Writ Petition No. 1066 of 1998, decided on 22nd February, 2005.

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

‑‑‑‑S. 114 & O.XLVII, R. 1‑Constitution of Pakistan (1973), Art. 199‑‑­Review‑‑‑Review could be sought on discovery of new and important matter or evidence which, after exercise of due diligence, was not within the knowledge of the person seeking review; or could not produce same at the time when decree was passed; or order made; or on account of some mistake or error apparent on the face of record or for any other sufficient cause‑‑‑Ground taken in the present case by applicant for review was that his counsel representing him in the Constitutional petition, had withdrawn the same without his instructions‑Such was no ground on which impugned judgment/order could be reviewed, when nothing was in review application even to remotely suggest that said counsel of applicant while withdrawing Constitutional petition with permission of Court to tile suit, was motivated by any consideration of fraud or that he colluded in any manner with the other side‑‑‑Applicant though had stated that withdrawal of Constitutional petition, was without his instruction, but Wakalatnama executed by him whereby said counsel was engaged to plead his Constitutional petition, had authorized the counsel to withdraw Constitutional petition‑‑‑Counsel representing applicant in Constitutional petition being fully authorized to withdraw Constitutional petition, his statement with regard to its withdrawal was binding on him.

Mobile Eye Service of Pakistan, Karachi v. Director Social Welfare/Registration Authority, Government of Sindh, Karachi and another PLD 1992 Kar. 183 ref.

(b) Counsel and client‑‑‑

‑‑‑‑Authority given to a lawyer was manifest from the wording of `Wakalat Nama' and no escape could be made therefrom‑‑‑Admission made by lawyer on the question of law was not at all binding on his client because if lawyer agreed to a proposition which was against law, no estoppel was created against his client because no estoppel was against law‑‑‑Principle that authority of an Advocate would flow and emanate from Wakalat Nama, was well‑established and should normally be adhered to.

Mst. Noor Jehan v. Azmat Hussain Farooqi and another 1992 SCMR 876; Surendra Shankar Walker v. L.S. Walker and others AIR 1960 PC 158; Talah Safdar and another v. Bashir Ahmad and others 1997 CLC 601; Answ Enterprises and 2 others v. Askari Commercial Bank Ltd. Lahore PLD 2000 Lahore 154; Mst. Sooban Bibi and 3 others v. Mst. Khatoon and 3 others PLD 2001 Lah. 245 and Muneer Akhtar v. Mst. Shahnaz Begum 2000 CLC 1743 ref.

Mian Muhibullah Kakakhel for Petitioner.

Muhammad Ayaz Khan, Addl. A.‑G. for Respondents.

Date of hearing: 22nd February, 2005.

P L D 2005 Peshawar 112

Before Nasir‑ul‑Mulk, C.J. and Muhammad Raza Khan, J

Mst. PARVEEN‑‑‑Petitioner

Versus

GOVERNMENT OF N.‑W.F.P. through Secretary Home 'and Tribal Affairs, Peshawar and 5 others‑‑‑Respondents

High Court Petition No. 1585 of 2004, decided on 24th February, 2005.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 491 & 514‑‑‑Constitution of Pakistan (1973), Art. 45‑‑‑Habeas corpus petition‑‑‑Forfeiture of surety bonds ‑‑‑Remission‑‑‑Entitlement‑‑­Detenu who stood surety in thirteen different cases had furnished bail bonds as surety‑‑‑Accused released on bail absconded in all the thirteen cases, and proceedings under S.514, Cr.P.C. were initiated against detenu by different Courts on different dates‑‑‑Since detenu was unable to pay penalty imposed in any of the cases, he was imprisoned for various terms on different dates‑‑‑Period of detention in eight cases had expired whereas in remaining cases detention period had yet to be completed‑‑‑Since order of imprisonment under S.514(4), Cr.P.C. against detenu was not made in consequence of conviction, it could not be termed as sentence‑‑‑Prisoner .imprisoned by order under S.514(4), Cr.P.C. was not entitled to be benefited from remission granted either under Prison Rules or by order of President of Pakistan under Art.45 of Constitution‑‑‑Detenu though was not entitled to remissions claimed by him, but in circumstance of case it was directed that his period of imprisonment in cases that he had been detained under orders made under S.514(4), Cr.P.C. would be considered to run concurrently and not consecutively and in five remaining cases period of detention had yet to expire on the basis that periods of imprisonment were considered to run consecutively‑‑‑Period of imprisonment imposed in favour of said cases, was six months each and one month in one case‑‑‑Taking the period of imprisonment concurrently, last period of imprisonment of six months had already expired‑‑‑Superintendent of Jail was directed to set detenu at liberty.

Mahabir Singh v. Emperor AIR (3) 1944 Calcutta 17 ref.

Muhammad Habib Qureshi for Petitioner.

Pir Liaqat Ali Shah, A.A.‑G. for Respondents.

Date of hearing: 13th January, 2005.

P L D 2005 Peshawar116

Before Nasir‑ul‑Mulk, C.J. and Muhammad Qaim Jan Khan, J

MANZOOR AHMAD QURESHI‑‑‑Petitioner

Versus

CHAIRMAN, JOINT ADMISSION COMMITTEE, KHYBERMEDICALCOLLEGE, PESHAWARand 9 others‑‑‑Respondents

Writ Petitions Nos. 1640, 1682, 1697, 1726, 1733, 1757, 1758, 1763 of 2004 and 109 of 2005, decided on 24th February, 2005.

Educational institution‑‑‑

‑‑‑‑ Admission in Medical College‑‑‑Criteria of eligibility for seats reserved for backward areas‑‑‑Prospectus provided that candidates applying for seats reserved for backward areas like Gadoon Amazai, Dir Upper, Dir Lower and Shangla were required to have passed their SSC and F.Sc. (Part I & II) from their District of domicile‑‑‑Subsequently by a Notification requirement of passing Matric and F.Sc examination for candidates applying against said seats was dispensed with, the effect of said Notification was that candidates belonging to said areas who had passed their Matric and F.Sc. examination from elsewhere were made eligible to compete for said reserved seats‑‑‑Candidates, in the present case, who had passed their Matric and F.Sc. (Part I & II) from educational institutions in their own District, were denied admission as a result of said Notification which made candidates having better merits, eligible though they had been educated in institutions outside their own District‑‑‑Seats reserved for FATA and backward areas were to be restricted to candidates who had passed their Matric and F.Sc. examination from such areas‑‑‑Underlying principle for reservation of such seats, was to provide opportunity to those candidates to gain admission in Professional Colleges who, because of local social and economic conditions and relatively poor educational facility, were placed at a disadvantage against those who were living and getting their education in developed areas‑‑‑Mere possession of domicile of backward areas, would not qualify the holder to reserved seat for such areas unless he had studied in such areas‑‑‑Seats reserved in Medical Colleges for said backward areas of N.‑W.F.P. were restricted to only those candidates who had acquired their Matric and F.Sc. (Pre‑Medical) from such backward areas‑‑‑Subsequent Notification, was struck down as illegal by the High Court‑‑‑Committee concerned would thus allocate seats in accordance with merits of candidates from respective backward areas accordingly‑‑‑Constitution of Pakistan (1973), Art.199.

Attiya Bibi Khan v. Federation of Pakistan 2001 SCMR 1161 and Chairman, Joint Admission Committee, Khyber Medical College v. Raza Hassan and others 1999 SCMR 965 ref.

Ali Jamil Qazi for Petitioner.

Waseemuddin Khattak, Arbab M. Usmod, A.A.‑G. and Abdul Latif Afridi for Respondents.

Date of hearing: 9th February, 2005.

P L D 2005 Peshawar128

Before Muhammad Raza Khan, J

SHAFIULLAH KHAN‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Criminal Revision No.22 of 2004, decided on 18th April, 2005.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.354‑A‑‑‑Criminal Procedure Code (V of 1898), S.439‑‑‑Stripping' as occurring in S.354‑A, P.P.C. meaning and scope‑‑‑Son of respondent/complainant who was charged in murder case having absconded, police raided house of respondent and during that process, petitioner/police officer allegedly pulled away sheets covering the heads of womenfolk and they were also beaten‑‑‑Respondent/complainant filed private complaint against petitioner police officer under S.354‑A, P.P.C. and case was transmitted and was allocated to Additional Sessions Judge who entertained complaint and after recording statement of complainant, fixed case for framing of charge‑‑‑Application of petitioner for deleting S.354‑A, P.P.C. and for entrusting case to Judicial Magistrate, was rejected by Additional Sessions Judge‑‑‑Analysis of S.354‑A, P.P.C. would indicate that two basic ingredients were to be satisfied to attract said penal provision; firstly, the woman should be stripped off the clothes and; secondly, she should be exposed to public view in such condition‑‑‑Complainant had argued that removal ofDopatta' from the head of a Muslim lady would amount to stripping off her clothes and the exposure and that in circumstances, S.354‑A, P.P.C. was strictly applicable‑‑‑Dictionary meaning of word `stripping' was to remove the clothes or covering from a person and making him or her naked‑‑‑Said word would also mean "the undressing of the person"‑‑‑"Strip" would imply pulling or tearing off clothes, outer cover, etc. and even would connote forcible or even violent action and total deprivation‑‑‑Removal of "Dopatta" from the head of a lady, in circumstances would not fall within purview of penal clause of S.354‑A, P.P.C.‑‑‑Removal of head gear could not be considered to be total deprivation of clothes of woman and woman moving without "Dopatta" was never considered to be naked in any sense of the term‑‑‑Removal of "Chaddar" was considered to be the height of insult and violation of the privacy of females, but interpretation of removal of "Chaddar" from head could not in any case, be termed as stripping off the clothes or making a female naked‑‑­Section 354‑A, P.P.C., would not at all be applicable to circumstances of case as stated in the complaint‑‑Impugned order of Additional Sessions Judge was set aside‑‑‑Section 354‑A, P.P.C. was deleted from the panel of charges and case was ordered to be transferred to Judicial Magistrate for further proceedings by High Court in revision.

(b) Words and Phrases‑‑‑

‑‑‑‑"Stripping", meaning and scope explained.

Sanaullah Khan Gandapur for Petitioner.

Muhammad Sharif Chaudhry D.A.-G. for the State.

Tahir Iqbal for the Complainant.

Date of hearing; 18th April, 2005.

P L D 2005 Peshawar 132

Before Dost Muhammad Khan, J

XEN PESCO (WAPDA) MANSEHRA through Chairman, PESCO and 4 others‑‑‑Petitioners

Versus

GAS MASTERS CNG FILLING STATION, MANSEHRA through Khalid Latif and others‑‑‑Respondents

Civil Revision No.70 of 2004, decided on 8th April, 2005.

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

‑‑‑‑O. XXXIX, R.2‑B‑‑‑Object and purpose of R.2‑B of O.XXXIX, C.P.C.‑‑‑Law‑maker had introduced R.2‑B in O.XXXIX, C.P.C. with the object to suppress the mischief of delay in disposal of those cases in which temporary injunction was granted‑‑‑Outer limit of six months i.e. the terminus provided for the initial order of injunction was with the object to place an embargo on the powers of the Courts granting temporary injunction in pending cases for indefinite period so to ensure the speedy disposal of such cases‑‑‑Proviso to rule (2‑B) of O.XXXIX, C.P.C. had further laid emphasis that copy of order extending temporary injunction would be submitted to High Court which was a further check on discretionary powers of subordinate Courts‑‑‑Aim and object behind the‑ said provision of law was that District Courts would decide cases in which temporary injunctions were granted as quickly as possible‑‑‑After enactment of rule (2‑B), O.XXXIX,. C.P.C. the extension of temporary injunction was no more a matter of routine and it could not be extended in the old fashion‑‑‑Court, while extending same, would have to record sound reasons‑‑‑Absolute discretion earlier vested in Courts had been taken away‑‑‑All subordinate Courts, in circumstances, were required to send copy of order extending temporary injunction each time to High Court without fail‑‑‑Word "extension" had been used in rule (2‑B), O.XXXIX, C.P.C. with a definite object to which no different meaning widening its scope could be given, because such a construction would certainly defeat the very purpose for which the rule was enacted‑‑‑In the present case the beneficiary of injunction order was found indulging in delaying tactics by protracting the trial in the main case, that could be considered as a disentitling factor for extension of temporary injunction order‑‑‑Whenever the Court for valid reason would extend initial order of injunction, then main case would be given priority for disposal and before the expiry of extended period, the Court would decide main case in all circumstances.

(b) Words and Phrases‑‑‑

---"Extension" and "confirm or confirmation" ‑‑‑Meaning and scope, explained.

Malik Mehmood Akhtar for Petitioners.

Abdul Latif Khan for Respondents.

Date of hearing: 8th April, 2005.

P L D 2005 Peshawar 136

Before Dost Muhammad Khan, J

Mst. KISHWAR NASEEM‑‑‑Petitioner

Versus

HAZARA HILL TRACT and others‑‑‑Respondents

Civil Revision No.241 of 2004, decided on 11th March, 2005.

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

‑‑‑‑S. 115, provisos (1) & (2)‑‑‑Constitution of Pakistan (1973), Art. 24‑­Revision‑‑‑Scope‑‑‑Cancellation of allotment of plot without proper notice to the allottee‑‑‑Filing of revision petition by allottee beyond statutory period‑‑‑Sufficient cause‑‑‑Object and purpose of provisos (1) & (2) to S.115, C.P.C. were to avoid delay in disposal of revision petitions filed in the High Court unaccompanied by all the required documents sufficient for the just decision of the case so that the requirements of calling for the record of the subordinate Court was dispensed with and the period of limitation of 96 days provided for filing revision petition was made qualified by the words "which shall provide a copy of such decision within three days thereof"‑‑‑High Court emphasized on the subordinate Courts to comply with the mandatory requirements of S.115, proviso (2), C.P.C.‑‑‑Sufficient cause for not filing the revision petition within a statutory period illustrated‑‑­Principles.

The introduction and addition of the two provisos, into section 115, C.P.C. by the legislature with quick succession, was with the view to avoid delay in disposal of revision petitions filed in the High Court unaccompanied by all the required documents sufficient for the just decision of the case so that the requirements of calling for the record of the subordinate Court is dispensed with. Under the second proviso, the period of limitation of 90 days provided for filing revision petition is immediately qualified by the words "which shall provide a copy of such decision within three days thereof".

It has been judicially noticed that subordinate Courts, ordinarily, in majority of cases, do not comply with the mandatory requirements of the second proviso, thus failing to discharge their essential and mandatory statutory obligation by pushing the aggrieved party to the ordeals of old practice of applying to the copying agency for getting copies of the judgments and decrees of the subordinate Courts, the pleadings, the evidence of the parties and all those documents which are required to be placed before the High Court with the revision petition for just decision. Non‑performance of such obligation by the subordinate Courts shall be viewed more seriously if the Court penalizes or taxes the aggrieved party, on the ground of limitation, provided in the second proviso. It is, one of the cardinal principles of interpretation of statute that construction on any provision of a statute shall be made in a manner to suppress the, mischief and advance the cause of justice. The second principle of equal considerable worth is that Courts shall not shut their doors for an aggrieved party, on ground of technicalities, who has a genuine grievance.

The proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless those are essential to be complied with on grounds of public policy ……… any system which, by giving effect to the form and not to the substance defeats substantive right is defective to that extent.

In genuine cases, where either the Court or the copying agency has a contribution in not providing the copies, the approach of the Court shall be liberal because it should not be forgotten that the scope of revisional powers, though hedged by conditions, is never the less vast and corresponds to a remedy of certiorari and the supervisory jurisdiction can be invoked by the Court suo motu and the Court can also make such order in the case as it thinks fit. The Court may extend the time to file the required documents or to call for the record itself where, it proposes to act suo motu.

It is paramount and bedrock principle of justice that no party to a lis shall be prejudiced by the act of the Court.

In the present case undeniably, the appeal Court failed to provide the required copies of the documents to the petitioner to be filed with the revision petition within three days as is required by the second proviso, a corresponding duty imposed by law on the Court, putting the petitioner on the tight rope of limitation period of 90 days fixed for filing the revision petition. Even the copying agency had failed to comply with the mandatory rules of its manual by not intimating to the petitioner the date on which the copy was to be prepared and delivered as is evident from the additional documents brought on record with the permission of the Court. The petitioner being a lady, after returning to Pakistan from U.K. was staying at Lahore at the relevant time thus there was a gap of communication between her and her counsel. Therefore, she could not be visited with a penalty as suggested in the preliminary objection by the defendants because, there is more than sufficient cause palpable on record for not filing the revision petition within the statutory period.

While interpreting any provision barring a remedy on the ground of technicality like limitation period, Court has to see first that denial of remedy to the aggrieved party shall not result into grave injustice.

For doing substantial justice and to rectify grave errors both of law and jurisdiction, committed by the subordinate Courts, High Court is neither bereft nor denuded of the suo motu revisional powers to be exercised in genuine cases, otherwise the corrective and supervisory jurisdiction of High Court, primarily meant for this object, would be brought to naught.

In the present case, both the Courts below had not only misconceived the correct factual position but had also failed to apply the correct law and principle of law on the subject. The petitioner's plea that she was residing in U.K. right from the year 1960 and had returned to Pakistan few months prior to the institution of her first suit, has not been questioned by the respondents in any manner rather from the defence taken by them, the same is well established. In fact they have conceded on this point to a considerable extent.

Both the Courts below, without exercising the required degree of judicial care and caution and without applying the correct law, have jumped at the conclusion that, notices were issued at different occasions/dates to the petitioner on 'the given address of her nominee and the last one on the address of her brother, and in this way have tagged her with the requisite knowledge. The conclusion so drawn is based on no legal evidence. In order to establish the service of the notices on the petitioner, the respondents had produced senior clerk, the only witness, besides confronting the petitioner with the notices allegedly issued and sent to her. The petitioner had squarely denied the receiving of any notice allegedly dispatched to her by the respondents. Some of the notices were tendered in evidence subject to objection. Neither the dispatch register of the department was produced or tendered in evidence nor the concerned dispatch clerk was produced to establish that indeed the questioned notices were drawn, entered in the dispatch register and were duly posted on the given address to the petitioner or her nominee. Similarly neither postal receipts nor A.D. cards were produced to prove that the notices were duly served on the petitioner. Out of these questioned notices some have been returned by the postal authorities with remarks/endorsements that the addressee was not found on the given address.

When admittedly the petitioner was abroad for a considerable period leaving behind no constituted and authorized agent except the last one, her brother, who had also retired from service and who had also denied the service of any notice on him, it was all the more essential for the respondents to have got published a notice in the press in the name of the petitioner about the proposed penal action in case of non‑compliance.

The provision of Article 24 of the Constitution in a strict commanding language squarely prohibits the depriving of any person of his property save in accordance with law. The petitioner has been condemned unheard and her property (the suit plot) has been resumed and the allotment in her favour has been cancelled in disregard of the clear prohibition divesting her of her lawful ownership over the same by the respondents, without laying down any solid foundation for such a drastic action. Thus the impugned action of the respondents‑defendants is in violation of law and principle of natural justice, thus, could not be sustained on any premises whatsoever. Moreover, she had categorically stated that partial compliance was made by her with one of the condition of auction by constructing two rooms on the suit plot which is still in her possession and this claim of the petitioner has not been challenged to any manner by the respondents‑defendants.

Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382 and Riasat Ali v. Muhammad Jaffar Khan and 2 others 1991 SCMR 496 quoted.

Deputy Commissioner Pashin v. Abdul Salam and others PLD 1993 Quetta 121; Sultan Khan and 3 others v. Sultan Khan 2004 MLD 918; Gulzar Ahmad's case 2005 CLC 307; Muhammad Islam's case (2004 MLD 1029; Ezat Khan's case PLD 2001 Kar. 396; Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286; Punjab Road Transport Corporation's case 2003 CLC 1239; Mst. Gohar Taja's case 2003 YLR 1994 and Faizullah and other's case PLD 2003 Pesh. 217 ref.

(b) Interpretation of statutes‑‑‑

---Construction on any provision of a statute is to be made in a manner so as to suppress the mischief and advance the cause of justice.

(c) Administration of justice‑‑‑

‑‑‑‑ Courts not to shut their doors on an aggrieved party, on ground of technicalities, who has, a genuine grievance.

(d) Administration of justice‑‑‑

‑‑‑‑ No party to a lis shall be prejudiced by the act of the Court.

(e) Administration of justice‑‑‑

‑‑‑‑While interpreting any provision barring a remedy on the ground of technicality like limitation period, Court has to see first that denial of remedy to the aggrieved party shall not result into grave injustice.

(f) Interpretation of statutes‑‑‑

‑‑‑‑While interpreting any provision barring a remedy on the ground of technicality like limitation period, Court has to see first that denial of remedy to the aggrieved party shall .not result into grave injustice.

(g) Limitation‑‑‑

‑‑‑‑ While interpreting any provision barring a remedy on the ground of technicality like limitation period, Court has to see first that denial of remedy to the aggrieved party shall not result into grave injustice.

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

‑‑‑‑S. 115‑‑‑Suo motu revision by High Court‑‑‑Scope‑‑‑High Court, for doing substantial justice and to rectify grave errors both of law and jurisdiction, committed by the subordinate Courts is neither bereft nor denuded of the suo motu revisional powers to be exercised in genuine cases, otherwise the corrective and supervisory jurisdiction of High Court primarily meant for this object, would be brought to naught‑‑‑High Court, while exercising suo motu revisional powers is justified to interfere with the impugned judgments and decrees, which are nullity in the eye of law and have caused serious miscarriage of justice.

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

‑‑‑‑S. 27‑‑‑Proper service by post‑‑‑Essential conditions for drawing legal presumption regarding proper service‑‑‑Non‑compliance with the mandatory conditions‑‑‑Effect.

Section 27 of the General Clauses Act, lays down essential conditions for drawing legal presumption regarding proper service by post which includes putting proper address of the addressee, pre‑paying the postal charges (receipts) and the posting of the notice by registered post. The evidence led by the respondents‑defendants in the present case did not fulfil these mandatory conditions. They had deliberately suppressed the relevant copies of the dispatch book/register, the postal receipts and A.D. cards, if any received back. In the absence of such evidence, merely bringing on record copies of the notices allegedly issued to the petitioner or her nominee would not give rise to the presumption that the same were in fact dispatched to her or that she had received the same in due course, moreso, when the petitioner and her brother both have categorically repudiated the service of such notices upon them.

Piridno and another v. Khurshid Begum 1989 SCMR 880 ref.

(j) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 24‑‑‑Provision of Art. 24 of the Constitution in a strict commanding language squarely prohibits the depriving of any person of his property save in accordance with law‑‑‑Where the petitioner had been condemned unheard and her property had been resumed and the allotment in her favour had been cancelled in disregard of the clear prohibition divesting her lawful ownership over the same by the authorities, without laying down any solid foundation for such a drastic action, such action of the authorities was in violation of law and principles of natural justice thus could not be sustained on any premise whatsoever.

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

‑‑‑‑S. 115‑‑‑Concurrent findings recorded by Courts below on question of fact‑‑‑Interference by High Court in revision‑‑‑Scope‑‑‑Principles.

Ordinarily concurrent findings recorded by Courts below on question of fact are immune from interference in revisional jurisdiction of the High Court but when such findings are based on no evidence or when they violate any principle of law while recording such findings or the same are based on misreading or non‑reading of material evidence and are the result of mis and non‑application of the correct law, it becomes the duty of the High Court to interfere with the same so that patent injustice caused to the aggrieved party is rectified.

Abdul Sattar Khan for Petitioner.

Malik Manzoor Hussain for Respondents.

Date of hearing: 7th March, 2005.

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P L D 2005 Peshawar 153

Before Shah Jehan Khan and Ijaz-ul-Hassan Khan, JJ

Mian MUHAMMAD ZIA through General-Attorney and 6 others---Petitioners

Versus

NAVID ABRAR and 3 others---Respondents

Writ Petitions Nos. 1413 and 1419 of 2001, decided on 6th April, 2005.

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

----S. 17(2)(i)---Constitution of Pakistan (1973), Art. 199--­Constitutional petition ---Ejectment of tenant on ground of default in payment of rent---Stay of ejectment proceedings---Jurisdiction of Rent Controller--During pendency of trial of case, application moved by tenants seeking stay of ejectment proceedings till disposal of suit for specific performance, had been allowed by Additional Controller of Rents and proceedings were stayed as prayed for by tenants---Said order of Rent Controller had been challenged by landlords in Constitutional petition mainly on the ground that Additional Rent Controller had no jurisdiction to entertain application for stay of proceedings as no provision existed under Cantonments Rent Restriction Act, 1963 empowering Controller to suspend/stay proceedings in ejectment case and that agreement to sell would not, per se, create a right in property agreed to be sold---Validity---Constitutional petition challenging an interlocutory order was not maintainable for the reasons that where law itself had not given right of appeal against certain orders, same could not be challenged in any forum to gain similar object which had been barred by statute itself---If Constitutional petition was allowed to be invoked in cases where appeal was specifically barred, it would negate the very. purpose of statute and render provisions meaningless---Objection that Additional Rent Controller had not been empowered to suspend proceedings in ejectment case was not valid, because a Court or Tribunal of competent jurisdiction, was empowered to pass an order in the interest of justice in exercise of its inherent powers, having regard to facts and circumstances of the case---Impugned order had been passed for valid reasons and no prejudice seemed to have been caused to landlords--­Objection regarding soundness or otherwise of alleged agreement to sell, could conveniently be urged and pressed into service before the Court, seized of the matter.

Mrs. Annetta Haroon v. Mst. Sughran Bibi and others 2000 SCMR 716; Iqbal and 6 others v: Mst. Rabia Bibi and another PLD 1991 SC 242; Fazal Din v. Muhammad Hussain 1994 CLC 1474; Niaz Khalil v. Sh. Muhammad Shafiq 1995 SCMR 791; Kh. Noorul Qadir Darabu v. Ejaz Ahmad and others PLD 1997 Kar. 501 and Zar Faroosh v. Sikandar Aziz and 5 others PLD 1997 Pesh. 64 and Muhammad Daud v. Mst. Surriya Iqbal and another PLD 2000 Pesh. 54 ref.

Muhammad Riaz Yousufzai for Petitioners.

Hashim Raza for Respondent.

Date of hearing: 6th April, 2005.

P L D 2005 Peshawar 156

Before Salim Khan, J

ZAIRSHAD---Petitioner

Versus

FAZLE AKBAR---Respondent

Civil Revision No.978 of 2004, decided on 2nd May, 2005.

North-West Frontier Province Pre-emption Act (IV of 1987)---

----Ss. 6 & 13---Civil Procedure Code (V of 1908), O.XLI, R.31---Suit for pre-emption ---Improvements on suit property and market value of property---Suit was decreed by Trial Court, but Appellate Court accepting appeal against judgment of Trial Court, set aside the same--Non-speaking judgment of Appellate Court regarding points concerning improvements and market value of suit property, warranted interference of High Court due to non-recording of some part of evidence and due to non-compliance with provisions of O.XLI, R.31, C.P.C.---High Court in exercise of its revisional jurisdiction, set aside impugned judgment and decree of Appellate Court and remanded case to decide afresh in accordance with law.

Government of N.-W.F.P. through Secretary, Forest Department, Peshawar and 2 others v. Zain Khan PLD 1993 Pesh. 131 ref.

Tariq Javed for Petitioner.

M. Fakeem Wali for Respondent.

Date of hearing: 2nd May, 2005.

P L D 2005 Peshawar 158

Before Shahzad Akbar Khan and Salim Khan, JJ

SAFDAR ALI and 2 others---Petitioners

Versus

HABIBULLAH and 2 others---Respondents

Writ Petition No. 152 of 2001, decided on 14th March, 2005.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13(2)(i) & 15---Constitution of Pakistan (1973), Art.199--­Constitutional petition ---Ejectment of tenant on ground of default in payment of rent---Ejectment application was filed by landlord on ground that tenants had failed to make payment of rent for a period of 36 months which was calculated to the tune of Rs.3,60,000---Contention of tenants was that period of tenancy having been fixed between parties as 15 years, no ejectment application could be filed before expiry of said period of 15 years---Tenants termed ejectment application as pre-mature and was not maintainable---Validity---Contention of tenants was repelled because relief sought by tenant was on equitable basis---If tenants would press for observance of condition of 15 years stipulated in agreement arrived at between parties, they were equally bound to discharge their own obligations of making payment of rent to landlords according to terms of said agreement---He who seeks equity, must do equity---Tenants admittedly had not made any payment of rent to landlord from the very inception of tenancy and huge amount of Rs.3,60,000 was claimed to be outstanding against tenants and no argument could be advanced to justify said default in payment of rent--­In absence of payment of rent, it would be highly unfair to say that landlord should be kept waiting for a long period of 15 years and should not bring any action against delinquent tenants--­Tenants were rightly ordered to be ejected on ground of default in payment of rent by Rent Controller and Appellate Authority below.

Javed A. Khan for Petitioners.

Mian M. Younus Shah for Respondent No. 1.

Respondents Nos. 2 and 3: Ex parte.

Date of hearing: 14th March, 2005.

P L D 2005 Peshawar 162

Before Shahzad Akbar Khan and Salim Khan, JJ

GUL DIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 157 of 2005, decided on 13th April, 2005.

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

----S. 9(b)---Appreciation of evidence---Serious discrepancies and infirmities in the testimony of all the three prosecution witnesses had destroyed the evidentiary worth of the prosecution evidence making the recovery of the narcotics from the accused highly doubtful---Delay of two weeks in sending the sample to the Forensic Science Laboratory was not explained and its safe custody during the said two weeks was not proved---Accused was acquitted in circumstances.

2001 YLR 2959; 2003 PCr.LJ 680; 2003 MLD 259; Mst. Iqbal Bibi v. The State 2000 PCr.LJ 1812; Mushtaq v. The State 2002 PCr.LJ 1312; Munawar Hussain and others v. The State 1993 SCMR 789 ref.

Mian Fazal Amin for Appellant.

M. Ayaz Khan, Dy. A.-G. for the State.

Date of hearing: 13th April, 2005.

P L D 2005 Peshawar 166

Before Ijaz-ul-Hassan Khan and Shahzad Akbar Khan, JJ

SARDAR KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.25 of 2005, decided on 19th April, 2005.

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

----S. 9(c)---Appreciation of evidence---Prosecution evidence was consistent on all material particulars, worthy of credence and inspired confidence---Recovery witnesses were not shown to be motivated by any ill-will or enmity towards the accused---No discrepancy or flaw creating dent in the prosecution version could be pointed out---Discrepancies highlighted in the prosecution evidence were minor in nature and unable to vitiate the trial---Police Officer, a witness to the commission of the offence, was not legally debarred from becoming a complainant and an Investigating Officer in the case---Police officials were competent witnesses of recovery and their testimony could not be discarded simply due to their connection with the police department---Plea taken by accused had no foundation and had not been satisfactorily proved--­Entire bulk recovered from the accused was not required by law to be sent to Chemical Examiner for opinion and report, as a meagre quantity separated out of the lot sent for analysis was sufficient to serve the purpose and on this ground alone admissibility of the report could not be challenged---Conviction and sentence of accused were upheld in circumstances.

Muhammad Ashraf v. Sultan and 5 others 1997 SCMR 441; Tariq Parvez v. The State 1995 SCMR 1345; Johar Ali and another v. The State 2003 PCr.LJ 680; Mashal Khan v. The State 2005 PCr.LJ 254; Fida Jan v. The State 2001 SCMR 36 and Mian Gul Bacha Khan and another v. The State PLD 2004 Pesh. 246 ref.

(b) Criminal trial---

----Contradiction---Connotation---Contradiction means negation of prosecution version---Mere discrepancies in the details of the facts does not amount to contradiction.

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

----S. 9(c)---Multiple capacity of police officer---No legal prohibition exists for a police officer to be a complainant if he is a witness to the commission of an offence and also to be an Investigating Officer so long as it does not in any way prejudice the accused.

Mashal Khan v. The State 2005 PCr.LJ 254 ref.

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

----S. 103---Search to be made in presence of witnesses---Intent and import---Main aim and object of enacting S.103, Cr.P.C. is to ensure effecting of recovery honestly and fairly and to exclude any possibility of concoction and transgression---Section 103, Cr.P.C. never meant to disbelieve the statements of official witnesses in any other circumstance.

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

----S. 9(c)---Appreciation of evidence---Police witnesses---Police officials are competent witnesses of recovery memo. and their statements cannot be discarded merely because they belong to police department.

Fida Jan v. The State 2001 SCMR 36 and Mian Gul Bacha Khan and another v. The State PLD 2004 Pesh. 246 ref.

(f) Criminal trial---

---- Burden of proof---Plea of accused---Principles---When an accused at a criminal trial takes a specific plea, the onus invariably shifts and he is required to produce evidence and prove his innocence or at least his plea should be supported by the attending circumstances and it should not be unfounded altogether.

(g) Criminal trial---

---- Withholding of best evidence---Effect---When best evidence is not produced in the Court, the inference is to be drawn against the party withholding such evidence.

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

----S. 9(c)---Entire recovered bulk not to be sent to Chemical Examiner---Law does not require that the entire bulk recovered from the accused should be sent to Chemical Examiner for opinion and report--­Meagre quantity separated out of the lot sent for analysis is considered sufficient to serve the purpose and on this ground alone admissibility of the report cannot be challenged.

Jahangir Khan Afridi for Appellant.

Tariq Khan Kakar for the State.

Date of hearing: 19th April, 2005.

P L D 2005 Peshawar 172

Before Shah Jehan Khan and Fazlur Rehman Khan, JJ

PARVEZ---Appellant

Versus

FARHAD ALI and another---Respondents

Criminal Appeal No.973 of 2004, decided on 21st April, 2005.

(a) Penal Code (XLV of 1860)--‑----

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---Deceased at the time of recording of the Murasila was in full senses, capable of giving version of the occurrence and the omission to obtain a certificate from the Medical Officer to that effect was a mere irregularity, which did not cast any doubt on the dying declaration---Dying declaration had been legally proved by producing its author police officer as a prosecution witness---No delay had occurred in recording the said Murasila which on the death of the injured had been treated as dying declaration---Record did not show that at the time of recording the said dying declaration, the deceased was influenced by any of his relatives---No infirmity having been pointed out in the dying declaration, the same had been rightly relied upon by the trial Court---Conviction of accused was consequently maintained---Motive for the offence had neither been stated by the deceased in his dying declaration nor the same had been disclosed by the defence which had remained shrouded in mystery---Death sentence awarded to accused was reduced to imprisonment for life in circumstances.

PLD 1966 SC 708; PLD 1990 SC 686; 1992 PCr.LJ 2026; 1999 PCr.LJ 707; 1999 PCr.LJ 1087; 1996 PCr.LJ 1689; 1999 PCr.LJ 1305; 2001 PCr.LJ 268 and 2001 SCMR 1474 ref.

(b) Penal Code (XLV of 1860)--‑--

----S. 302(b)---Dying declaration, corroboration of---No doubt, sometimes a dying declaration alone cannot be made a basis of conviction and as a matter of abundant caution Superior Courts ask for its corroboration, but it is not a rule of law but requirement of prudence---Where dying declaration is proved to be free from any influence or infirmity, it becomes a substantive piece of evidence and it alone can become a basis of conviction.

1996 PCr.LJ 1689; 1999 PCr.LJ 1305; 2001 PCr.LJ 268 and 2001 SCMR 1474 ref.

M. Zahoorul Haq for Appellant.

Abdul Munaf Mohmand for the Complainant.

Muhammad Waseem Tariq, State Counsel.

Date of hearing: 21st April, 2005.

P L D 2005 Peshawar 180

Before Nasir-ul-Mulk, C. J. and Qazi Ehsanullah Qureshi, J

GHULAM KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.713 of 2004, heard on 8th October, 2004.

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

----S. 9---Appreciation of evidence---Sentence, reduction in---Narcotic substance was recovered from immediate possession of. accused and respectable persons of area had pointed out to the Police about selling of narcotic by accused---Prosecution witness had stated that at the time of receiving information, accused was at a distance of 5/10 paces from police party---Investigating Officer, however, had explained that he had to go around village to be able to get accused---Even otherwise question of distance was not very relevant---Testimony of marginal witness and Investigating Officer was in consonance with narration of facts given in F.I.R.---Forensic Science Laboratory had certified that sample sent to Laboratory was of Charas---Significant inconsistency, however, was found between statements of two witnesses regarding shape in which narcotics were recovered---Neither number of slabs were known to witnesses nor their weight---Prosecution did not state that samples were taken from each of the slabs---Sample was taken from only one slab weight of which was not known---Conviction of . accused, in circumstances could only be maintained for sample that was consumed during Laboratory examination which weighed 4 grams---Sentence of three years of imprisonment in circumstances would be excessive for possessing of 4 grams of Charas---Conviction of accused under S.9(c) of Control of Narcotic Substances Act, 1997 was converted into S.9(a) of said Act and sentence was reduced accordingly to imprisonment already undergone by accused and sentence of fine was set aside.

Noor Alam Khan for Appellant.

Shah Nawaz Khan for the State.

Date of hearing: 8th October, 2004.

P L D 2005 Peshawar 183

Before Muhammad Raza Khan, J

DARYA KHAN---Petitioner

Versus

PASHAM KHAN and another---Respondents

Criminal Miscellaneous Bail Cancellation Petition No.113 of 2004, decided on 27th April, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.302/34---Bail cancellation of---Prosecution was double minded and police had given counter-version about the occurrence---Trial had commenced---Nothing was available to show that accused, after grant of bail, had committed any overt-act to hamper investigation of trial of the case---Petition for cancellation of bail was dismissed in circumstances.

Sanaullah Khan Gandapur for Petitioner.

Abdul Latif Khan Baloch and Muhammad Yaqoob Khan Merwat for Respondents.

D.A.-G. for the State.

Date of hearing: 20th April, 2005.

P L D 2005 Peshawar 184

Before Talaat Qayum Qureshi and Ijaz-ul-Hassan Khan, JJ

HIDAYAT ULLAH---Petitioner

Versus

ZAHIR MUHAMMAD and 5 others---Respondents

Writ Petitions Nos.203 and 204 of 2005, decided on 26th May, 2005.

Civil Procedure Code (V of 1908)---

----O. I, R.10---Power of Court to strike out or add parties to proceedings---Scope---Parties to suit, classification of---Necessary parties would be those persons, who ought to have been. joined as parties and in whose absence no effective decree could be passed---Proper parties would be those persons, whose presence before Court was necessary to effectually and completely adjudicate upon and settle all points involved in suit---Either upon or without application of either party, Court could add or strike out parties at any stage of proceedings up to the time decree was drawn up---Principles.

Abdul Sattar Khan for Petitioner.

Abdul Samad Khan for Respondents.

Date of hearing: 26th May, 2005.

P L D 2005 Peshawar 186

Before Shahzad Akbar Khan and Fazlur Rehman Khan, JJ

FARMAN ALI and 7 others---Petitioners

Versus

KHANI AMAN and 400 others---Respondents

Writ Petition No.1605 of 2004, decided on 12th May, 2005.

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

----Ss. 10 & 26---Consolidation of lands---Bar of jurisdiction of Civil Court---Parties claiming to be co-owners of lands falling in two villages---Resolution made by parties during consolidation proceedings agreeing thereby to mutually transfer their respective lands to each other in two villages---Non-giving effect to such Resolution in consolidation proceedings---Petitioner claiming title to disputed land on basis of such Resolution contended that such dispute was outside the jurisdiction of Consolidation Authorities---Validity---Giving effect or refusing to give effect to such resolution had amounted to adjustment or refusal to adjust land in consolidation proceedings-Such dispute would fall exclusively within jurisdiction of Consolidation Authorities under S.10 of Consolidation of Holdings Ordinance, 1960---Civil Court would have no jurisdiction to entertain any claim with respect to such dispute.

Abdul Jabbar and 6 others v. Member, Board of Revenue (Consolidation) and 105 others PLD 1976 Lah. 281 and Nawab v. Ghulab and 4 others 2004 SCMR 1833 rel.

Abdul Maabood Khattak for Petitioners.

M. Muazzam Jamil for Respondents (on pre-admission notice).

P L D 2005 Peshawar 190

Before Talaat Qayum Qureshi, J

CHAIRMAN, PESCO---Petitioner

Versus

ASHFAQ AHMAD---Respondent

Civil Revision No.470 of 2005, decided on 30th May, 2005.

Electricity Act (IX of 1910)---

----Ss.26(6) & 54-C---Specific Relief Act (I of 1877), Ss. 42 & 54---Civil Procedure Code (V of 1908), S. 9---Suit for declaration and perpetual injunction---General jurisdiction of Civil Courts---Plaintiff had sought declaration to the effect that electricity bill for relevant month was wrong, incorrect and ineffective upon rights of plaintiff---Perpetual injunction restraining defendant to claim amount of disputed bill was also sought as consequential relief---Suit having been concurrently decreed by Trial Court and Appellate Court, defendant had filed revision petition against said orders---Defendant had contended that only remedy available to plaintiff was to file an application under S.26(6) of Electricity Act, 1910 before Electric Inspector and that suit filed by plaintiff was not maintainable and concurrent judgments and decrees of Courts below were coram non judice---Contentions of defendant were repelled firstly because said objection was never raised by defendant before the Courts below, defendant, in circumstances could not be allowed to raise such objection for the first time at revisional stage; secondly subsection (6) of S.26 of Electricity Act, 1910 dealt with. "Meter" only---Provisions of S.26(6) of Electricity Act, 1910 could be invoked where there was difference or dispute between a licensee and a consumer with regard to "Meter", maximum demand or other measuring apparatus as the same was or was not correct---Dispute in the present case between parties was not with regard to "Meter", or maximum demand indicator or other measuring apparatus---Simple question involved in the case was that electricity of plaintiffs was disconnected by defendant, but despite such disconnection same was shown and payable which was challenged by plaintiff by filing of suit---No bar existed in the Electricity Act, 1910 in filing civil suit and Civil Court being Court of general jurisdiction could try the same---Suit was maintainable, in circumstances---Courts below had properly appreciated evidence available on record---In absence of any misreading or non-reading of evidence or any illegality or material irregularity in impugned concurrent findings of Courts below, revision against impugned judgments, was dismissed.

Abdul Qadir Khattak for Petitioner.

P L D 2005 Peshawar 194

Before Muhammad Qaim Jan Khan and Fazlur Rehman Khan, JJ

Mst. ANAR MAMANA and another---Petitioners

Versus

MISAL GUL and 2 others---Respondents

Writ Petitions Nos.883 of 2003 and 252 of 2004, decided on 6th May, 2005.

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

----S. 5 & Sched.---Suit for maintenance by wife and daughter---Plea of defendant was that plaintiffs having left his house on their own accord, they were not entitled to maintenance---Validity---Defendant had deserted plaintiffs in year 1988---Defendant in order to bring back plaintiffs to his house had sent a "Jirga" to house of wife's parents in year 2000 just before filing of suit---Defendant during such period had failed either to visit his house or provide any maintenance to plaintiffs, who had no alternative, but to abandon his house and go to house of wife's parents---Defendant's plea was rejected and suit of plaintiffs was decreed in circumstances.

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

----S. 5 & Sched.---Muslim Family Laws Ordinance (VIII of 1961), S.9---Limitation Act (IX of 1908), Art.120---Past maintenance suit for---Limitation---Such suit would be governed by Art.120 of Limitation Act, 1908 prescribing period of six years from date of accrual of cause of action.

2004 CLC 1168; PLD 1972 SC 302; 1990 CLC 934; .1991 CLC 129; 1992 CLC 1926 and PLD 1993 Lah. 810 rel.

(c) Islamic Law---

----Maintenance claimed by daughter---Entitlement---Daughter would be entitled to maintenance till her marriage.

Taj Muhammad Khattak for Petitioners.

Malik Muhammad Rehan Awan for Respondents.

Date of hearing: 6th May, 2005.

P L D 2005 Peshawar 197

Before Shah Jahan Khan Yousafzai and Salim Khan, JJ

NOORAB KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.69 of 2005, decided on 23rd February, 2005.

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

• S. 9(c)---Appreciation of evidence---Investigating Officer as prosecution witness had stated that accused was holding a black bag containing Charas in his hand while other prosecution witness had contradicted him by saying that accused had tied Charas on his foot by means of plastic tape and it was hidden---Both eye-witnesses had admitted that place of recovery was thickly populated area and public was easily available to join investigation, but no efforts whatsoever were made by police officials to associate any person from the public--Investigating Officer prepared Mashirnama at the time of recovery and nothing else was done on the spot---Charas was stated to be in shape of two slabs wrapped in a black plastic---Separation of samples on the spot and sealing same was not mentioned in statement of Investigating Officer recorded under S.161, Cr.P.C.---Said two slabs of Charas lying in bag were consisted of 17 sub-slabs, but sample for examination was not obtained from each slab---Omission to obtain samples from each sub-slab had caused serious doubt on case of prosecution, benefit whereof would go to accused---Samples of recovered contraband was sent to Forensic Science Laboratory after 72 hours of recovery---Such unnecessary delay in sending sample could be considered a material circumstance in favour of accused coupled with overall facts and circumstances of case---Case of prosecution was not only doubtful, but unexplained delay in sending samples to Forensic Science Laboratory had created further doubt in case of prosecution---Extending benefit of doubt to accused, his conviction and sentence were set aside and he was acquitted of charge.

Noor Alam Khan for Appellant.

Abdul Karim Khan for the State.

Date of hearing: 23rd February, 2005.

P L D 2005 Peshawar 201

Before Shahzad Akbar Khan, J

MUHAMMAD NOOR and others---Petitioners

Versus

MARWAT KHEL and others---Respondents

Civil Revision No.917 of 2003, decided on 20th May, 2005.

Specific Relief Act (I of 1877)---

----S. 42---West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964), Ss.5, 6, 14, 15 & 17---Suit for declaration---Order of Collector redeeming mortgaged land on payment of mortgage money not challenged in appeal and revision---Suit challenging validity of such order---Maintainability---Mortgage would stand extinguished on payment of mortgage money and property would be restored to mortgagor---Such order having attained finality could not be challenged before Civil Court---Plaintiff was legally under obligations to comply with such order---Suit was dismissed in circumstances.

Raham Badshah Khattak for Petitioners.

Nusrat Yasmin for Respondents.

Date of hearing: 20th May, 2005.

P L D 2005 Peshawar 204

Before Ijaz-ul-Hassan Khan, J

RIZWANULLAH---Appellant

Versus

THE STATE and another---Respondents

Jail Criminal Appeal No.577 of 2004, heard on 24th May, 2005.

(a) Criminal trial---

----Appreciation---Benefit of doubt---Appreciation of evidence---Prosecution primarily was bound to establish guilt against accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the Court to draw conclusion whether prosecution had succeeded in establishing accusation against accused or otherwise---If the Court would come to the conclusion that the charges so imputed against accused had not been proved beyond reasonable doubt, then accused would become entitled to his release on getting benefit of doubt in prosecution---Requirement of criminal law was that prosecution should be duty bound to prove its case beyond any reasonable doubt and if any single, and slightest doubt was created, benefit of same must go to accused and same would be sufficient to discredit prosecution story and would entitle accused to acquittal---Conviction of accused could be based on evidence which connected accused with offence beyond any reasonable doubt and in reaching that conclusion evidence had to be of high quality and good standard---If a version suffered from a taint of exaggeration or did not fit in with the surrounding circumstances, it would not merit blind credence simply because it flowed from the mouth of a witness who had no interest or enmity to falsely implicate accused---If a best piece of evidence was available with the party and same had been withheld, then it was fair to presume that had the same been produced in the case, it would have not supported prosecution case---Prosecution though was not bound to produce all persons who had seen occurrence, but if a material witness was withheld then inference was to be drawn against prosecution that such witness was not supporting case of prosecution.

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

----Ss. 324 & 34---Appreciation of evidence---Case against accused was totally of no evidence and the Trial Court had failed to apply its judicial mind to the facts of the case---Manner in which Trial Court had proceeded in case was violative of principles governing safe administration of criminal justice---Complainant had stated at the trial that when he reached the spot, he received firing on back and lost senses on account of injuries---Complainant had also admitted that he was fired at from behind and had not seen accused firing at him---That aspect of case appeared to have escaped notice of Trial Court---Claim of prosecution witness of having accompanied the complainant and seen the occurrence stood belied by host of circumstances---Said witness being an interested witness had reason for false implication of accused---No implicit reliance could be placed on testimony of said witness-Said witness was definitely not present at the spot and had not seen occurrence and it appeared that on receipt of information he reached the site of occurrence and took his injured brother to the hospital---Delay in lodging F.I.R. had not been explained---Possibility of consultation and deliberation could not be excluded, in circumstances of case---Occurrence had taken place in broad daylight in a thickly populated area, but no independent and disinterested witness from locality had been produced in proof of prosecution story---Cousin of complainant stated to have joined complainant party at the crucial time had not been cited as a witness which went to the root of prosecution case---Injuries received by accused in consequence of cross-firing between complainant and absconding co-accused had not been explained and factum of cross-firing had been suppressed---Motive was also too weak and flimsy-Accused had no reason to join hands with co-accused and participate in incident in question---Trial Court had overlooked the material favouring accused and discarded same in a manner uncalled for and unwarranted in law---Conclusion of Trial Court, in circumstances was not maintainable---Trial Court had not applied its mind to the various aspects of the case and had illegally convicted and sentenced accused---Prosecution case being highly doubtful, accused was entitled to benefit of doubt---Conviction and sentence awarded to accused by Trial Court were set aside and accused was acquitted of charge against him giving him benefit of doubt.

Aftab Khan for Appellant.

Umar Zafran for the State.

Imdad Hussain for the Complainant.

Date of hearing; 24th May, 2005.

P L D 2005 Peshawar 209

Before Talaat Qayum Qureshi, J

BAKHTIAR AHMED---Petitioner

Versus

MUHAMMAD SAEED---Respondent

Civil Revision No.779 with C.M.A. No.726 of 2005, decided on 24th June, 2005.

Civil Procedure Code (Y of 1908)---

----O. VII, R. 2---Qanun-e-Shahadat (10 of 1984), Art. 163---Oaths Act (X of 1873), Ss. 8, 9, 10 & 11---Suit for recovery of amount---Decision on oath---During pendency. of suit, defendant had himself made application to the effect that he was ready to take oath on Holy Qur'an and his wife would stand divorced if his, oath was wrong that he had paid the entire amount to plaintiff---Defendant further offered that in case plaintiff would take oath on Holy Qur'an suit filed by him be decreed in his favour---Plaintiff admitted that he was ready to take oath on Holy Qur'an as per offer of defendant and took Oath on Holy Qur'an in the Court---Trial Court decreed suit accordingly and judgment and decree of Trial Court was upheld by Appellate Court---Defendant who challenged concurrent judgment of Courts below in revision, had contended that no decree could be passed even if plaintiff had taken oath on Holy Qur'an---Validity---Contention of defendant was repelled as offer made by defendant voluntarily, was accepted by plaintiff and on oath of plaintiff Trial Court was satisfied that claim of plaintiff was genuine---Defendant could not be allowed to make mockery of Holy Book and could not be allowed to resile from offer given by him for it amounted to a binding contract unless it was found to be void or stood frustrated---Trial Court had properly decreed the suit and Appellate Court had rightly dismissed appeal of the defendant---In absence of illegality, material irregularity or jurisdictional error or defect, concurrent findings of Courts below could not be interfered with in revision before High Court.

PLD 1991 SC 383; 1987 CLC 1512; Muhammad Ali Butt v. Inspector General of Police, Punjab, Lahore and 10 others PLD 1997 SC 823 and Attiqullah v. Kafayatullah 1981 SCMR 162 ref.

Muhammad Siddique Haider Qureshi for Petitioner.

P L D 2005 Peshawar 214

Before Tariq Parvez Khan and Ejaz Afzal Khan, JJ

Mst. BAS KHANA and others---Appellants

Versus

MUHAMMAD RAEES KHAN and others---Respondents

F.A.O. No.75 with C.M. No.270 of 2003, decided on 15th April, 2004.

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

----O. VII, Rr.2 & 11---Suit for recovery of amount---Rejection of plaint---On institution of suit by plaintiffs for recovery of amount as their share in business, defendants, on being served raised objection as to the maintainability of suit and Trial Court after hearing the parties, rejected plaint mainly on ground that form of suit was not proper and that suit for rendition of account was the proper remedy in the circumstances of the case---Validity---Plaintiffs in their suit had claimed a specific amount as their share as well as monthly income thereof in the business left by their propositus---Averments made in the plaint had clearly suggested that a serious triable issue had been raised by plaintiffs which could not be decided without regular proceedings and that too before submission of written statement .by defendants---No need or justification was available for Trial Court to short circuit the matter by proceeding with such an indecent and un-called for haste in rejection of plaint.

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

----S. 104 & O.XLIII, R.1(a)---Limitation Act (IX of 1908), Ss.5 & 14---Maxim: actus curiae neminem gravabit---Applicability---Appeal against order of return of plaint---Limitation---Condonation of delay---Appeal filed before Appellate Court was entertained and was admitted to regular hearing on the same date---Subsequently when respondents raised objection about its competency on account of pecuniary jurisdiction, it was returned by Appellate Court, against which appeal had been filed---Plea of appellants was that where appellants pursued their remedy with all diligence at their back and called in a wrong forum, any delay so consumed in such thrum, could well be condoned under Ss.5 & 14 of Limitation Act, 1908 when order sought to be impugned was illegal on the face of it---Contention of respondent was that filing or prosecution of appeal in a wrong forum even in good faith or on account of mistaken advice of counsel, would. not furnish a justification for condonation of delay and that appeal being hopelessly time-barred, 'was liable to be dismissed--Validity---Record revealed that appellants, soon after announcement of order, applied for its attested copy and after getting same, filed appeal---Appellants had been pursuing their appeal with due diligence---Appeal was filed in a wrong forum, appellants asked for its return the moment it transpired that the forum was wrong, and soon thereafter presented it before the High Court---Nothing was on record which could give an indication that appellants had acted with negligence---Contention of respondent, that filing or prosecution of appeal in a wrong forum, even in good faith or on account of mistaken advice of counsel, would not furnish a justification for condonation of delay, was repelled---When appeal was entertained and even admitted by Court without adverting to its competency on account of pecuniary jurisdiction, all the time so consumed from its entertainment to its return, could not be debited in the account of appellants and they could not be allowed to suffer for the act of the Court--Had it been returned on the first date of hearing, appellants could have presented it in the High Court well within time---Since time was consumed due to the act of the Court, it would certainly constitute sufficient cause for condonation of delay according to principle enshrined in maxim "actu's curiae neminem gravabit", (an act of the Court. shall prejudice no person)---Case for condonation of delay, had been made out, in circumstances.

Bashir Ahmed v. Muhammad Sharif and 4 others PLD 2001 SC 228; Mst. Khadija Begum and 2 others v. Mst. Yasmeen and 4 others PLD 2001 SC 355; Sheikh Muhammad Saleem v. Faiz Ahmad PLD 2003 SC 628; Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584; Jai Berhrm v. Kedar Nath AIR 1922 PC 269; P.M. Amer v. Qabool Muhammad Shah and 4 others 1999 SCMR 1049; Syed Haji Abdul Wahid and another v. Syed Sirjuddin 1998 SCMR 2296 and Karachi Electric Supply Corporation Ltd. v. Lawari and 4 others PLD 2000 SC 94 ref.

Muhammad Ullah Khan for Appellants.

Taj Muhammad Khan for Respondents.

Date of hearing: 15th April, 2004.

P L D 2005 Peshawar 221

Before Dost Muhammad Khan and Jehan Zaib Rahim, JJ

ZAHOOR AHMAD and 5 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.208, 217, Murder Reference No.4 and Criminal Revision No.35 of 2003, decided on 24th May, 2005.

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

----Ss.302(b)/149, 429/149, 436/149 & 148---Appreciation of evidence---General allegations had been made against the accused of either assisting the principal accused or aiding in the commission of the crime---Accused although had been attributed D.B. Shotguns, yet not a single pallet was recovered from the crime spot or from the walls wherein the firing was made---Ocular version was belied by the medical evidence---Possibility of false implication of accused could not be completely ruled out in circumstances and they were acquitted 'on benefit of doubt accordingly.

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

----Ss.302(b)/149, 429/149, 436/149 & 148---Appreciation of evidence---Guidelines---Where the parties do not come out with the true story, each party generally tries to minimize its own part in the incident---Court in such a case must not be deterred by the incompleteness of the tale from drawing the inferences which probably flow from the evidence and the circumstances---It is not only legally possible but is also a legal necessity to act on the third probable version which is shorn of embroidery and falsehood of both the interested parties.

Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502 and Zahid Parvez v. The State PLD 1991 SC 558 ref.

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

----Ss.302(b)/149, 429/149, 436/149 & 148---Appreciation of evidence---Delay of six hours in lodging the F.I.R. on the crime spot was not fatal to the case in view of the peculiar and horrifying .features of the crime---Minor contradictions and omissions in the statements of the prosecution witnesses being negligible could be safely ignored---Ocular account as a whole could not be discarded only because it was not supported by medical evidence---Crime room had caught fire due to the act of the principal accused and the assistance rendered by his co-accused could not be brushed aside---Motive for-the occurrence against both the accused had been admitted by the defence---Parties being neighbours were well-known ,to each other and had come in close contact exchanging harsh' words 'before the commission of the offence, question of misidentification or non-identification, therefore, did not arise---Principal accused had admitted the commission of the crime wherein he had been attributed major rather exclusive role and he was not entitled to the benefit of any mitigation---Death sentence awarded to the principal accused under S.302(b), P.P.C. was consequently confirmed---Co­accused had chained the door of the crime room from outside after the same was set on fire and his role was secondary in nature as any timely intervention by anybody by unchaining the door could save the victims from the thick smoke---Death sentence of co-accused under S.302(b), P.P.C. was reduced to imprisonment for life in circumstances---Rest of the convictions and sentences of both the accused were maintained.

Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502 and Zahid Parvez v. The State PLD 1991 SC 558 ref.

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

----Ss. 302(b)/149, 429/149, 436/149 & 148---Appreciation of evidence---Principles---Evidence of witness is divisible---Part of the evidence of witnesses which is corroborated by other evidence can be relied upon, while uncorroborated part of their evidence is to be discarded.

Qazi Muhammad Arshad for Appellants.

Muhammad Akbar Khan Swati for Respondents.

Dates of hearing: 29th and 31st March, 2005.

P L D 2005 Peshawar 238

Before Muhammad Qaim Jan Khan and Muhammad Raza Khan, JJ

Syed MEHMOOD ALI QADRI through Legal Heirs---Petitioners

Versus

GOVERNMENT OF N.-W.F.P. through Collector, D.I. Khan and 9 others---Respondents

Writ Petition No.122 of 2003, decided on 19th May, 2005.

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

----O. VI, R.17---Amendment of pleadings---Amendment of pleadings could be allowed to meet the ends of justice and for determination of real question in controversy between the parties---Rule 17 of Order VI, G.P.C. though had provided for ample discretion with the Court to allow amendment of plaint or written statement at any stage of the proceedings, but such discretion had to be exercised judiciously---Exercise of discretion had been qualified with the condition that purpose of such amendment should be to determine the basis of dispute---Provision of O.VI; R.17, C.P.C. would be invoked where there were "apprehensions of multiplicity" of suits---Amendment could be allowed for the purpose of furthering the ends of justice so that the interest of substantial justice should be advanced---Amendments were also allowed in the case of a clerical error or bona tide wrong description of property---1f a legal plea was sought to be raised which would go to the root of the case, amendment could be allowed.--1f earlier pleadings were faulty due to defective drafting, amendment could be allowed keeping in view the principle that a party should not be penalized for the wrong of others--Application for amendment of plaint in the present case was filed more than 13 years after the date of knowledge of the fact that was intended to be introduced through amendment and matter was being, delayed for almost one and a half decades---Application for amendment, in circumstances, was mala fide and frivolous and had been rightly declined by the Courts of law.

1993 SCMR 593; PLJ 1987 SC 617(sic); 1989 SCMR 732; 1986 SCMR 1488; 1996 SCMR 1858; 1993 SCMR 2289; PLD 1985 SC 345; PLD 1986 SC(AJ&K) 98 and 1998 MLD 1381 ref.

(b) Power of attorney---

----Revocation of power of attorney---Power of attorney was merely an instrument of the appointment of an agent to act on behalf of the principal---Such instrument could be revoked at any time by the principal at his will and in certain cases, like death and insolvency, power of attorney was automatically revoked---Even during the currency of a valid power of attorney, the principal could not be denied the right of his personal participation---Power of attorney was identical to the concept of agency where the agent merely represented principal, but the rights and powers of principal were never abridged or withdrawn by appointment of an agent.

Ghazanfer Ali Bangash for Petitioners.

Muhammad Sharif Ch. D.A.-G. for Respondent No.1.

Rustam Khan Kundi for Respondents Nos.2 and 5.

Date of hearing: 19th May, 2005.

P L D 2005 Peshawar 243

Before Shahzad Akbar Khan, Ijaz-ul-Hassan Khan and Ejaz Afzal Khan, JJ

AMIR ZAMAN KHAN and 2 others---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No. 712 and Criminal Revision No. 155 of 2003, decided on 26th July, 2005.

Per Ijaz-ul-Hassan Khan, J; Shahzad Akbar Khan; J. agreeing, Ejaz Afzal Khan, J, [Contra]---

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

----Ss. 302(b), 324 & 34---Appreciation of evidence---Ocular account of occurrence furnished by complainant, was supported by medical evidence, recovery of piece of glass from the spot, motive and noticeable abscondance of accused---Report of incident was lodged promptly containing all material facts relating to occurrence---Defence, despite lengthy cross-examination had not been able to dislodge eye-witness on any material point---Discrepancies pointed out by the accused in the statement of complainant, were insignificant and not fatal to prosecution case---Stamp of injuries on person of complainant, his presence at the venue of occurrence could not be disputed---Complainant had given a straightforward and honest account of incident and his statement could be safely relied upon to sustain conviction of accused---Argument that complainant being nephew of deceased was highly interested and as such could not be relied upon, was not tenable both legally and logically in absence of any defect in its intrinsic probative worth and in absence of any motive on his part to falsely implicate accused---Promptly lodged F.I.R. contained all relevant details of occurrence including names of accused as well as role played by them during occurrence---Little time was, in circumstances, available in case for consultation and deliberation for the purpose of substitution or false involvement of accused---Immediately after occurrence, accused went into hiding and remained fugitive from law---Conduct of accused persons after occurrence, was indicative of their guilt when considered in conjunction with ocular and circumstantial evidence or the case ---Abscondance, though by itself was not sufficient to convict an accused, but was a strong piece of corroborative evidence of direct and circumstantial evidence, in the case---Prosecution had proved its case against accused beyond any shadow of doubt and accused were responsible for commission of crime---Appeal against judgment of Trial Court was dismissed and conviction and sentences awarded to accused, were maintained.

Fayaz Hussain Shah v, The State 2002 SCMR 1848; Mehmood Ahmed and 2 others v. State 1995 SCMR 127; Said Ahmed v. Zamured Hussain and 4 others 1981 SCMR 795 and Ali Haider v. The State PLD 1958 SC 392 ref.

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

----Ss. 302(b) & 324---Appreciation of evidence---Conviction could he based on statement of solitary eye-witness, provided same was confidence inspiring and intrinsic worth of same rang true and satisfied conscience of the Court---Quality of evidence was to be seen and not the quantity---Conviction could be based on testimony of solitary eye-witness, if it was confidence inspiring without any further corroboration.

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

----S. 544-A---Penal Code (XLV of 1860), Ss.302(b), 324 & 34---Compensation to legal heirs of deceased---Awarding of---Trial Court having not awarded compensation to legal heirs of deceased in terms of S.544-A, Cr.P.C., accused were ordered by the High Court to pay Rs.50,000 each to legal heirs of deceased as compensation and in default thereof, accused would undergo six months' R.I.---Other sentences awarded to accused would remain intact.

Per Shahzad Akbar Khan, J. agreeing with Ijaz-ul-Hassan Khan, J.

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

---- Ss. 302(b), 324 & 34---Appreciation of evidence---Interested witness---Statement of interested witness had to be looked into with great care and caution---Presence of stamp of injuries on prosecution witness, would not necessarily mean that witness spoke the truth---Injuries on a person would speak about his presence on the spot and for the purpose of determining his truthfulness, his testimony had to be looked into in surrounding circumstances---Testimony of interested witness should not be straightaway rejected---Testimony of even a partisan witness could not be rejected outrightly and could be considered for basing conviction of accused thereon provided statement of such a witness would qualify conditions highlighted by Supreme Court---Falsity of a witness was chiefly attributed to the factors like error of perception or moral aberration of witness---No evidence in the present case, was highlighted to indicate that before making report, complainant had made any kind of consultation for bringing a false charge against accused---Version given in F.I.R. was narrated by prosecution witness in Trial Court with meticulous exacutitute---Said witness was combingly cross-examined, but nothing traumatic in form of inconsistency or improvement or earlier version could be elicited by defence---Occurrence had taken place in broad daylight and there was no difficulty in identification of accused---Statement of complainant did not bear any stain of either error of perception or moral aberration---Medical report also fully supported statement of complainant---Number of injuries on the bodies of deceased, complainant and prosecution witness, were also not disproportionate to number of accused---Non-securing of empties by Investigating Officer, could not destroy case of prosecution as occurrence had taken place on a ,highly busy road and possibility could not be ruled out that empties were displaced by fast moving vehicles---Abscondance of accused was also a visible factum of case and no explanation had been given for their abscondance---Abscondance of accused had borne upon their guilt and provided necessary corroboration to testimony of eye­witness---Prosecution, in circumstances had proved its case against accused.

Ghulam Sarwar v. The State PLD 1983 Pesh. 152; Zaab Din and another v. The State PLD 1986 Pesh. 188; Attaullah and others v. The State PLD 1990 Pesh. 10; Fida Hussain and another v. The State and another 2004 PCr.LJ 2052; Niaz v. The State PLD 1960 SC (Pak.) 387; Shihab Din v. The State PLD 1964 SC 177; Roshan and 4 others v.The State PLD 1977 SC 557; Muhammad Sharif v. The State PLD 1978 SC(AJ&K) 146 and Shehruddin v. Allah Rakhio and 5 others 1989 SCMR 1461 ref.

Per Ejaz Afzal Khan, J. Contra.

Barrister M. Zahoorul Haq for Appellants.

Muhammad Saeed Khan, Addl. A.-G. for the State.

Abdur Rauf Gandapur for the State.

Abdul Latif Afridi and Sher Muhammad Khan for the Complainant/Respondent No.2 (present).

Date of hearing: 27th April, 2005.

P L D 2005 Peshawar 259

Before Muhammad Qaim, Jan Khan and Salim Khan, JJ

Mst. JANAT ZARA---Petitioner

Versus

DISTRICT RETURNING OFFICER/DISTRICT AND SESSIONS JUDGE, HANGU and 3 others---Respondents

Writ Petition No. 1357 of 2005, decided on 9th August, 2005.

North-West Frontier Province Local Government Ordinance (XIV of 2001)---

---S. 87---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Rejection of nomination papers----Petitioners Submitted nomination papers with the intention that she was contesting as candidate for seat reserved for women, but she was issued Form for the seat of Muslim (General) which she submitted---Returning Officer rejected said form on the ground that petitioner was a lady who was not allowed to contest election on seat for Muslim (General)---Appeal of the lady was also rejected by District Returning Officer---Validity---According to S.87 of North-West Frontier Province Local Government Ordinance, 2001, only two seats were reserved for Muslim women and only women could contest against said seats, but seats for Muslim General were open to male as well as female because those seats were not reserved only for male persons---Form, though could not be changed at the time of scrutiny and Petitioner could not be allowed to contest on seat reserved for women, but Returning, Officer and District Returning Officer, did not properly interpret relevant law as petitioner was eligible for contesting election against seat for Muslim (General) and her Form for said seat should have been accepted, if not found defective on any other ground---Form/application of petitioner submitted for seat of Muslim (General) tvas fit for acceptance against said seat---Constitutional petition was admitted and allowed to the effect that petitioner was a candidate for the seat of Muslim (General) of Union Council; that she had to be enlisted in the list of contesting candidates for said seat; that a symbol had to be it allotted to her; that she would stand allowed to contest against said seat; and that result would have to be announced in accordance with election laws/rules.

Naved Maqsood Sethi for Petitioner.

Muhammad Ayaz, Dy. A.-G. for Respondents.

Date of hearing: 9th August, 2005.

P L D 2005 Peshawar 261

Before Ijaz-ul-Hassan Khan, J

FARIDOON KHAN---Petitioner

Versus

SARFARAZ---Respondent

Civil Revision No.610 of 2004, decided on 11th July, 2005.

North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Demands of pre-emption--- Procedure--- Demands of pre-emption according to Islamic Law of pre-emption before institution of a suit by prospective pre-emptor as provided under S. ,13 of North-West Frontier Province Pre-emption Act, 1987 had been termed as Talb-i-Muwathibat',Talb-i-lshhad' and Talb-i-Khusumat'---Talb-i-Muwathibat' was to be made immediately by a pre-emptor in a sitting or meeting in which he had come to know of sale and there and then declaring his intention to exercise the right of pre-emption ---Pre emptor, in case of Talb-i-lshhad', was required to send a notice in writing attested by two truthful witnesses under registered cover acknowledgment due to the vendee confirming his intention to exercise the right of pre-emption soon after the,Talb-i-Muwathibat', but not later than two weeks---After Talb-i-Muwathibat' andTalb-i-Ishhad', pre-emptor was required to make `Talb-i-Khusumat' by filing a suit in the Court of competent jurisdiction to enforce his right of pre-emption.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Evidence on record had revealed that plaintiff/pre-emptor had successfully proved on record the making of Talbs, in accordance with requirements of S.13 of North-West Frontier Province Pre-emption Act, 1987, by production of informer as well as marginal witness and also himself appearing as witness---Making of Talb-i-Muwathibat',Talb-i-Ishhad' and Talb-i-Khusumat' stood proved on record, but Appellate Court, while applying hypertechnical approach and while giving undue importance to minor slip of tongue of plaintiff's witness, discarded such an extensive evidence without any valid ground---Defendant/vendee had not asserted either in his written statement or in his Court statement that he was abroad at the time when notice ofTalb-i-lshhad' was given to him---Appellate Court, on its 'own and without their being any evidence to that effect, illegally held that as defendant was abroad, notice of Talb-i-Ishhad' could not be served on him and so did not accept making ofTalb-i-lshhad'---Such approach of Appellate Court, was contrary to settled principle of law, justice, equity and fair play and was also unwarranted under law---Judgment of Trial Court decreeing suit of plaintiff was based on sound reasoning and proper appreciation of evidence and Appellate Court had no jurisdiction to interfere with the same---Material on record had not been properly assessed and approached by Appellate Court, which had resulted in manifest injustice---Only glaring omissions, contradictions and dishonest improvements introduced in evidence of witness, would render it unreliable, but in the present case no such glaring contradiction or inconsistency could be pointed out by defendant---High Court accepting revision set aside impugned judgment of Appellate Court and restored that of Trial Court.

Abdul Qayum through L.Rs. v. Mushk-e-Alam and another 2001 SCMR 798 and Yar Muhammad v. Bashir Ahmad PLD 2003 Pesh. 179 ref.

Abdul Sattar Khan for Petitioner.

Qazi Muhammad Anwar for Respondent.

Date of hearing: 1st July, 2005.

P L D 2005 Peshawar 265

Before Ijaz ul Hassan Khan and Ejaz Afzal Khan, JJ

DIL AGHA---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No.272 of 2005, decided on 1st September, 2005.

(a) Explosive Substances Act (VI of 1908)---

----S. 5---Appreciation of evidence---Sentence, reduction in---Positive report of Expert with regard to hand-grenades and a pistol allegedly recovered from accused and evidence of both prosecution witnesses had fully supported recovery of said weapons---Evidence had fully established that hand-grenades and pistol in question were recovered from possession of accused at given date, time and place---Incriminating statements of said prosecution witnesses were enough to connect accused with commission of crime---Defence could not show as to why police would involve accused falsely, especially when none of police party had any enmity against him---Prosecution witnesses, who were police officials, had made consistent statements on material points and accused had failed to point out any discrepancy in their statements---Contradictions pointed out by accused were so minor that on basis of those it could not be held that trial of accused stood vitiated---Accused had not urged any rancour or animosity against police officials/prosecution witnesses with accused---No presumption in such like cases, could be drawn that police witnesses were not reliable---Police witnesses were competent witnesses in the eye of law unless it could be demonstrated that police officials had any motive or reason to falsely implicate accused---Statements of police officials could not be discarded only because they happened to be employees of police department---Accused could not point out any serious defect in investigation, other than certain minor lapses, which did not affect validity of trial---In absence of any illegality, and infirmity in impugned judgment warranting interference, appeal against impugned judgment was dismissed.

Abdus Sattar and others v. The State 2002 PCr.LJ 51; Muhammad Hanif v. The State 1996 PCr.LJ 706 and 2002 PCr.LJ 1312 ref.

(b) Explosive Substances Act (VI of 1908)---

----S. 5---Sentence--Accused was previous non-convict youngman and entire future was in front of him---Conviction of accused was maintained, but his sentence was reduced from 10 years' R.I. to 3 years' R.I. accordingly.

Miss Farhana Marwat for Appellant.

Umar Zafran for the State.

Date of hearing; 1st September, 2005.

P L D 2005 Peshawar 269

Before Muhammad Raza Khan, J

MUHAMMAD RAMZAN---Petitioner

Versus

AFRIDI VARIETY CENTER through Proprietor---Respondent

Civil Revision No. 169 of 2005, decided on 8th June, 2005.

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

----O. VII, R. 2, O.IX, R.13 & O.V, R.20---Suit for recovery of amount---Substituted service---Ex parte decree, setting aside of---In present suit process was issued to defendant, but there being no personal service an ex parte decree was passed as a result of a substituted service and application for setting aside same was dismissed---Ex parte decree for recovery, of money, based on substituted service, was not to be encouraged---Instead of delaying the matter by rejection of application for setting aside ex parte decree Court should have allowed same on payment of costs and decided matter on merits, particularly when service of process was defective, defendant should have been provided opportunity to contest suit on merits.

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

----O. V, R.10-A & 20 & O.VII, R.2---Service of summons, modes of---Scheme of---Civil Procedure Code, 1908, contained in its O.V, originally provided for service of summons through process serving agency and on failure to serve process on defendant, different means of substituted service could have been applied---Order V, C.P.C. was amended and R.10-A was inserted in 1972---Purpose of said amendment was to adopt alternative procedure for the service of summons in transparent and expeditious manner---Normally process of alternate service was resorted to when service of summons through normal channel was either not possible or defendant resided beyond territorial limits of the District and process was issued through registered A.D.---Word "simultaneously" in the beginning of R.10-A, C.P.C., indicated that both modes should be undertaken simultaneously irrespective of the fact of residence of defendant---In North-West Frontier Province, R.10-A of Order V, C.P.C. had to be strictly complied with---Had it to be done, simple suit for recovery of amount should not have been prolonged for four and a half years.

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

----Ss. 128(2)(f) & 89A, O.V, R.5, O.X, R. 1A, O.XV & O.VII, R.2---Small Claims and Minor Offences Courts Ordinance (XXVI of 2002), Preamble---Summary procedure in simple matters---Summary procedure could be adopted initially by summons under R.5 of O.V, C.P.C. for the final disposal of suit by using special form for the purpose---After service of summons for final disposal of summary procedure prescribed in O.X and O.XV, C.P.C. would be helpful in expeditious disposal of simple matters either on the first day of hearing or at the adjourned date, if needed---Parties would be required to produce all evidence on the first day of hearing---Such type of matters could also be referred to Alternate Dispute Resolution under section 89A, read with R.1A of O.X, C.P.C. and issue could be resolved through mediation and arbitration.

High Court observed that time has come to adopt the alternate means of dispute resolution for expeditious disposal of the cases to avoid delays during conventional litigation process. The law has simply provided for the reference of cases to alternate means and such provision can be properly applied through the consent of the parties. The enforcement of Small Claims and Minor Offences Courts Ordinance, 2002 is a further step to implement the concept of the application of ADRs whereunder any claim up to Rs. 1,00,000 must be referred to the "Salis" who has to give his view-point within prescribed period. After the availability of proper arrangement, such simple matters can be referred to the "Salis" for quick disposal, however, the principles of the said Ordinance can be applied in simple matters with the consent of the parties under the above provision of C.P.C. as well.

Ahmed Ali Khan Marwat for Petitioner.

Minhajuddin Alvi for Respondent.

Date of hearing: 8th June, 2005.

2005 C L C 1241

[Quetta]

Before Amanullah Khan, J

Haji JAN MUHAMMAD---Petitioner

Versus

Mst. ANWARI HUSSAIN and 14 others---Respondents

Civil Revision No.252 of 2001, decided on 11th March, 2005.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42--Civil Procedure Code (V of 1908), S.115---Suit for possession and declaration---Title of plaintiff in respect of suit property was based on registered sale-deed executed by initial owners of said land in favour of plaintiff---Documents produced on record had revealed that Vendors of suit property were initial owners of the property even prior to independence and said property remained in their names till its transfer in the name of plaintiff through registered sale-deed---Defendant could not prove their title in respect of suit property but despite that Courts below concurrently dismissed the suit---Both Courts below had misread and mis­appreciated documentary evidence produced by plaintiff and had committed a grave illegality and irregularity by rejecting document produced on record without giving cogent reasons---Serious prejudice had been caused to the case of plaintiff---Both Courts below fell in error in discarding evidence on record and findings arrived at by both Courts were based on conjectures, presumption and wrong assumption of law--­High Court, in circumstances would be well within its rights to set aside both judgments in exercise of its revisional jurisdiction---Impugned judgment and decrees concurrently passed by Trial Court and Appellate Court were set aside and suit filed by plaintiff was decreed.

Saheb Khan through L.Rs. v. Muhammad Pannah PLD 1994 SC 162; Samar Gul and others v. Mohabat Khan and others 2000 SCMR 974; Muhammad Bakhsh v. Ellahi Bakhsh and others 2003 SCMR 286; Maj. Rashid Beg v. Rehmat Ullah Khan and 4 others PLD 2001 SC 443 and N.S. Vankatagiri Ayyangar and another v. The State Hindu Religious Endowments Board Madras PLD 1949 PC 26 ref.

Sundar Dass for Petitioner.

Tahir Muhammad Khan for Respondents Nos. 1 to 13.

Rashid Awan for Respondents Nos. 14 and 15.

Date of hearing: 25th February, 2005.

2005 C L C 1866

[Quetta]

Before Mehta Kailash Nath Kohli and Muhammad Nasir Khan, JJ

FAUJI FOUNDATION OF PAKISTAN---Petitioner

Versus

GQVERNMENT OF BALOCHISTAN through Secretary, Government Revenue Department and 3 others---Respondents

C.P. No.720 of 2000, decided on 28th June, 2005.

(a) West Pakistan Board of Revenue Act (XI of 1957)---

----S. 8---Review---Jurisdiction of Board of Revenue---Scope---Board of Revenue is authorized under S.8 of West Pakistan Board of Revenue Act, 1957, to exercise right of review in respect of any order, discovery of new and important matter or mistake or error on the face of record.

(b) Balochistan Cancellation of Illegal Allotments of State Land Act (V of 1996)---

----S. 4---Land Lease Policy, 1998---West Pakistan Board of Revenue Act (XI of 1957), S.8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Government lands---Allotment, cancellation of---Disputed land was allotted to respondents at very nominal price which was, leased out to petitioner---Subsequently Board of Revenue cancelled the allotment in favour of respondents---Plea raised by petitioner was that order passed by Board of Revenue was illegal and status of petitioner was that of occupancy tenant---Validity---Petitioner could not be allowed to retain ill-gotten gains---Even provisions of Land Lease Policy, 1998, were not followed at the time of transfer---Original transfer in favour of respondents was also void having been made without backing of law---Board of Revenue had no jurisdiction to transfer/sell Government land without determination of tenancy and without advertising same in newspapers publicly---Transaction had taken place within twenty eight days, which appeared to be collusive and shaky---Petitioner did not approach High Court with clean hands---Petition was dismissed in circumstances.

Munawar Kashan and another v. Government of Balochistan through Secretary, Revenue, Balochistan Civil Secretariat, Quetta and 2 others 2000 MLD 2015; Sardar Ahmed Yar Khan Jogezai and 2 others v. Province of Balochistan 2002 SCMR 122; Nawabzada Jahangir Shah Jogezai and others v. Province of Balochistan and others decided on 2nd November, 1998 and 2000 .MLD 2015 ref.

Muhaimnad Aslam Chishti for Petitioner.

Amin-ud-Din Bazai, Addl. A.-G. for Respondents Nos. 1 to 3.

Mirza Hussain Khan for Respondents Nos.4 to 32.

Date of hearing: 20th June, 2005.

P L D 2005 Quetta 40

Before Raja Fayyaz Ahmad, C.J. and Akhtar Zaman Malghani, J

Raja RAB NAWAZ, ADVOCATE‑‑‑Petitioner

Versus

Maulvi AGHA MUHAMMAD and 2 others‑‑‑Respondents

Constitutional Petition No.71 of 2003, heard on 20th February, 2003.

Conduct of General Elections Order [7 of 2002]‑‑‑

‑‑‑‑Art. 8‑A‑‑‑Senate Election Act (LI of 1975), S.78‑‑‑Representation of the People Act (LXXXV of 1976), S.99‑‑‑Notification No.(2)(11)2002­-Cord, dated 29‑7‑2002‑‑‑ University Grants Commission Act (XXIII of 1974), Preamble‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑‑Election to Senate‑‑‑Academic qualification of candidate‑‑‑Candidate had been declared by the Member, Election Commission of Pakistan, the Appellate Authority, as a validly nominated candidate for contesting Senate Election‑‑‑Petitioner was not a contesting candidate independently or on the basis of political party ticket for the elections of the Senate nor he was an elector‑‑‑Constitutional petition related to the issuance of writ in the nature of quo warranto within the meaning of Art. 199(1)(b)(ii)‑‑‑Petitioner being not an aggrieved person could not question the order passed by the Appellate Authority by invoking Constitutional jurisdiction of the High Court under Art.199 of the Constitution‑‑‑Order sought to be set aside, passed by the Appellate Authority, had also not been specifically mentioned nor appropriate reliefs had been sought for in the Constitutional petition‑‑‑Petition being defective in its form and not maintainable was dismissed in limine‑‑­Principles.

As per provisions of Article 8‑A of the Conduct of General Elections Order, 2002 a person shall not be qualified to be elected or chosen as a member of Majlis‑e‑Shoora (Parliament) or the Provincial Assembly unless he is at least a graduate possessing a bachelor degree in any discipline or any degree recognized as equivalent by the University Grants Commission under the University Grants Commission Act, 1974 (XXIII of 1974) or any other law for the time being in force. In the present case Sanad of Madrassa was attached with the nomination papers filed by the candidate with the Returning Officer claiming that the same was equivalent to a bachelor degree of a University, therefore, the candidate was to satisfy that the sable had been recognized as equivalent by the University Grants Commission/Higher Education Commission. Perusal of the order passed by the Appellate Authority showed that no such material was produced by the candidate before it nor it fell within the parameters of the dictum laid down by the Supreme Court in Maulana Abdullah v. Returning Officer 2003 SCMR 195 nor same could be produced by the candidate before the Appellate Authority so far as equivalence of the Sanad was concerned. Apart from such an aspect of the case, admittedly the petitioner was not a contesting candidate independently or on the basis of political party ticket for the elections of the Senate nor he was an elector, therefore, in such view of the matter; he had been asked to satisfy as to whether he could be treated as an aggrieved person to challenge the order passed by the Appellate Authority by invoking extraordinary jurisdiction of High Court under Article 199 of the Constitution in his capacity as a citizen and as to whether in view of the relief claimed in the Constitutional petition, simpliciter declaration could be granted without specifically claiming relief with regard to the order passed by the Appellate Authority but the petitioner failed to satisfy the Court on such legal aspect and he simply contended that this Constitutional petition had been filed within the purview of Clause‑1(b)(ii) of Article 199 of the Constitution for which the petitioner need not be an aggrieved person and secondly; appropriate consequential reliefs could be granted by High Court irrespective of the fact that relief in specific terms in respect of order passed by the Appellate Authority had not been claimed. Court offered to the petitioner that he could be allowed to suitably amend the memo of Constitutional petition as the facts and circumstances of the case may admit including the relief clause, to which he showed his unwillingness. Present Constitutional petition related to the issuance of writ in the nature of quo warranto within the meaning of Clause‑1(b)(ii) of Article 199 of the Constitution. Moreover; the petitioner being not an aggrieved person in view of the above noted facts could not question the order passed by the Appellate Authority by invoking Constitutional jurisdiction of the Court under Article 199 of the Constitution and secondly; since the order contended to be set aside passed by the Appellate Authority had not been specifically mentioned nor appropriate reliefs had been sought for in the Constitutional petition, therefore, the same being defective in its form and not maintainable for the foregoing reasons was dismissed in limine.

Maulana Abdullah v. Returning Officer and others 2003 SCMR 195 fol.

Petitioner in person.

Respondents in person.

Date of hearing: 20th February, 2003.

P L D 2005 Quetta45

Before Raja Fayyaz Ahmed C J

ABDUL SHAKOOR and 3 others‑‑‑Petitioners

Versus

DAD KHAN and 7 others‑‑‑Respondents

Civil Revision No. 188 of 1999, decided on 3rd May, 2000.

Balochistan Civil Disputes (Shariat Application) Regulation, 1976‑‑‑

‑‑‑‑Arts. 4(2) & 3‑‑‑Civil Procedure Code (V of 1908), O.XLIII & S.115‑‑‑Majlis‑e‑Shoora being Appellate Court simultaneously enjoys the revisional powers by virtue of Art. 4(2) of Balochistan Civil Disputes (Shariat Application) Regulation, 1976‑‑‑Principles.

By virtue of Clause (2) of Article 4 of the Balochistan Civil Disputes (Shariat Application) Regulation, 1976 it has been provided that every Majlis‑e‑Shoora shall be deemed to be a District Court within the meaning of the Code (C.P.C.) therefore, such of the provisions of the Regulation shall be read in conjunction with the provisions of Article 3 of the Regulation which provides that notwithstanding anything contained in the Regulation the provisions of C.P.C. shall apply to the proceedings under the Regulation; required effect whereof would be that the Majlis‑e-­Shoora simultaneously being the District Court within the meaning of C.P.C., shall have the jurisdiction to exercise revisional powers as a District Court within the purview of 'section 115, C.P.C. in case of an interlocutory order not made appealable by any of the provisions of C.P.C. In the present case Majlis‑e‑Shoora while dealing with the matter about the competency of the appeal failed to take notice of the provisions of Clause 2 of Article 4 of the Regulation whereby for the purposes of the Regulation, every Majlis‑e‑Shoora had been' declared to be a District Court within the meaning of Civil Procedure Code and redundancy to such provisions of the Regulation could not be attributed, accordingly. Since order passed by the Qazi was not appealable within, the purview of Order XLIII, C.P.C., same could have been validly assailed by filing 'revision under section 115, C.P.C. before the Majlis‑e‑Shoora, and the Appellate Court, in exercise, of inherent powers vesting in it under section 115, C.P.C., had converted the same into revision in the interest of justice, but the Appellate Court dismissed the appeal and by holding that the, revisional powers were not available to the Majlis‑e‑Shoora, despite the fact that every Majlis‑e‑Shoora under the aforesaid provisions of the Regulation had been declared to be a `District Court', and the Majlis‑e‑Shoora being Appellate Court simultaneously enjoyed the revisional powers by virtue of Clause (2) of Article 4 of the Regulation.

Impugned order passed by Majlis‑e‑Shoora was set aside in circumstances with the direction that the appeal filed by the petitioners be treated as revision against the order passed by Qazi and be disposed of on its own merits in accordance, with law after hearing the parties.

K.N. Kohli for Petitioners.

Khushnood Ahmed for Respondents.

Date of hearing: 4th November, 1999.

P L D 2005 Quetta 50

Before Raja Fayyaz Ahmed, C.J., and Akhtar Zaman Malghani, J

MUJTABA ‑‑‑ Petitioner

Versus

RAZIA and 2 others‑‑‑Respondents

Constitutional Petitions Nos.74 and 196 of 2004, decided on 2nd November, 2004.

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

‑‑‑‑S. 5, Sched.‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Suit for dissolution of marriage, recovery of dower amount, maintenance allowance and for the custody of the minors against the petitioner/defendant‑‑‑Ex parte decree was passed against the petitioner/defendant‑‑‑Defendant, at the time of passing of ex parte decree, was confined in jail‑‑‑Even in the .civil proceedings, if an order, be it a final or interlocutory, adverse to the interest of any party concerning his rights in personam or in rem had been passed and if such person be in jail, he had to be informed accordingly, through the Superintendent of Jail‑‑‑No such information, in the present case, was conveyed to the defendant(petitioner) in respect of the impugned decree, therefore, it could not be assumed, in absence of any other material, that he had active knowledge of the ex parte decree passed against him nor even the application submitted before the Appellate Court seeking. condonation of the delay in filing the appeal beyond the prescribed period of limitation was contested by the plaintiff by filing counter affidavit, therefore, grounds urged in the application for condonation of delay remained un-rebutted‑‑‑Such aspect of the case germane to the question of limitation was not attended to by the Appellate Court nor the validity or legality of the impugned decree based upon the proceedings ordered to be taken ex parte, were taken into consideration by the Appellate Court, which consequently rendered its judgment and decree as not sustainable‑‑‑Order passed by the Family Court whereby the defendant was ordered to be proceeded ex parte was a nullity in the eye of law, void and without jurisdiction‑‑‑Subsequent proceedings taken in the case and the ex parte decree passed in consequence thereof also were without any legal effect and that being so, made the question of limitation pertaining to the filing of appeal as worthless and to no credence‑‑‑High Court, set aside the said orders declaring same to be of no legal effect‑‑‑Suit instituted by plaintiff as ordered to be expeditiously decided as provided by law after hearing the parties‑‑‑Defendant, subject to the final decision by the Family Court, was directed to deposit with the Family Court interim maintenance at the rate of Rs.1200 per month on monthly basis with effect from the specified date for the three minors/daughters of the spouses presently in the custody of their mother (plaintiff)‑‑‑Principles.

Qahir Shah for Petitioner.

Iftikhar‑ul‑Haq for Respondents.

Date of hearing: 27th October, 2004.

P L D 2005 Quetta 57

Before Raja Fayyaz Ahmed, C.J., and Akhtar Zaman Malghani, J

LASBELLA INDUSTRIAL ESTATE DEVELOPMENT AUTHORITY (LIEDA)‑‑Appellant

Versus

Messrs BALOCHISTAN MATCH LTD. through Chief Executive and others‑‑‑Respondents

R.F.As. Nos.23 and 24 of 2004, decided on 27th October, 2004.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XVII, R. 3‑‑‑Dismissal of suit for non‑prosecution on account of successive failure of the plaintiff to produce evidence on the five different dates fixed by the Court for the purpose‑‑‑Conditions which must co‑exist for application of O.XVII, R. 3, C.P.C. enumerated‑‑­Principles illustrated.

Following conditions must co‑exist for application of provisions of O.XVII, R. 3, C.P.C.

(i) Adjournment must have been granted to the, party at his request or for other reasons;

(ii) It must have been granted to it for the purpose mentioned in the rule;

(iii) The party who had taken the time defaulted in doing the act for which he took the time from the Court;

(iv) There must be some material on record for decision of the case on merits, and; the Court must decide the suit forthwith that is within a reasonable time.

A decision as envisaged by rule 3 of Order XVII must be a decision on merits; i.e. on consideration of such material as may be necessary and available, and it should not be a summary decision as for the purpose, the Court was to hear the parties and to give judgment on each and every issue in the light of the evidence brought on record. Therefore, where the decision was not on merits of the case it would not sustain, hence from the provision of rule 3 it is quite clear that in the event of default, the Court may proceed to decide the suit forthwith meaning thereby that on the basis of such material as may be available before the Court, the suit can be decided without allowing the defaulting party another opportunity to produce his witnesses or to perform such other act as may be necessary for the progress of the case.

Order XVII, rule 3, C.P.C. applies where a party, who is granted time‑ to perform some act not only fails to do so, but is also absent on the date to which the hearing is adjourned. It is immaterial whether the adjournment was granted at the instance of the party or for other reasons and where a defendant does not appear at an adjourned hearing, this rule applies irrespective of the fact whether he appeared at the first hearing or not and the Court has to exercise its discretion and its hands are not tied by the previous ex parte order.

In the instant case all the prerequisites for the exercise of the discretion vesting in the Court mentioned above, were not in existence such as; that there was no material available with the Trial Court to have decided the case on merits in the light of the issues framed out of pleadings of the parties, and secondly; the plaintiff on the crucial date was represented by the junior counsel who appeared on behalf of the plaintiff's counsel and submitted application for adjournment on the ground that she was to appear before the High Court. The close scrutiny of the impugned order indicated that the Trial Court in view of the written request made for adjournment did not allow the same merely for the reason that cause‑list of the case in which she was supposed to appear before the High Court was not appended with the application nor even title and case number was mentioned in the application, hence; the Court declined to accede to the request for adjournment and; had the case number and title of the case been mentioned in such application the Trial Court would have, 'in all probabilities, adjourned the case on such ground. Scrutiny of the case file summoned from the Trial Court showed that along with the application filed under Order IX, rule 9, C.P.C., photostat copy of the order passed by the High Court was filed which showed that counsel had appeared before the High Court as an official liquidator and for appearance before the said Court she must have left for the Headquarter on the date on which the impugned order was passed and on her behalf her junior in the chamber had appeared before the Court, as such the plaintiff was deemed to have been present before the Court, as it could not be said that the plaintiff on such date was absent, hence;, one of the prerequisites for the exercise of discretionary powers under rule 3, Order XVII, C.P.C. i.e. the party concerned was absent when the case was taken up for hearing, was also wanting. Moreover it is worthwhile to note that only two witnesses intended to be produced were present before the Court, but they could not be examined due to failure of the plaintiff's counsel to appear before the Court and they were also bound down to appear on next date to which the case was adjourned, but they failed to appear before the Court on the said date and subject to the payment of cost of Rs.500 final opportunity was afforded to the plaintiff for production of witnesses/evidence and on failure by the plaintiff to produce witnesses as above said the impugned order was passed. As the plaintiff's witnesses were present on the crucial date but could not be examined due to default of the plaintiff's counsel, therefore, it could not be said, that the plaintiff successively failed to produce evidence at the trial. Repeated failure on the part of the plaintiff's counsel in making appearance before the Court and the default on the part of the plaintiff to produce evidence, was not appreciable, as it was obligatory on the part of the plaintiff to have expeditiously completed its side of evidence for which ample opportunity was provided by the Trial Court to whom obviously further indulgence in producing evidence on the part of the Court though was not justified, yet keeping in view the provisions of rule 3 of Order XVII, C.P.C. all the essentials for the exercise of discretion referred to above were wanting in the case, therefore, the impugned order being not sustainable had to be set aside. However, the subsequent order rejecting the application filed by the plaintiff seeking for restoration of the suit being appropriate and in accordance with law, was maintained.

The result was that the impugned order and decree was set aside and the case stood remanded to the Trial Court to proceed further with the case in accordance with law with the direction to the plaintiff to complete its side of evidence within six weeks from the date of receipt of notice by the Trial Court.

1993 SCMR 504; PLD 1991 SC 25; 1990 CLC 1293; 1993 MLD 377; 1992 CLC 1940; PLD 1993 Pesh. 192; PLD 1991 Pesh. 25; PLD 1969 Kar.418; 1990 CLC 1743; PLR 1970 (1) W.P. 838 ; and .1983 SCMR 619 ref.

Malik Sarwar Khan Awan for Appellant.

Muhammad Ayaz Khan Sawati for Respondent.

Date of hearing: 20th September, 2004.

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P L D 2005 Quetta 77

Before Raja Fayyaz Ahmed, C J

Haji BEHRAM KHAN ZARKOON --- Petitioner

Versus

AKHTAR JAN---Respondent

Civil Revision No.308 of 2001, decided on 4th March, 2002.

Civil Procedure Code (V of 1908)---

----O. XXXVII, R.2 & O.X, R. I---Suit for recovery of money based on negotiable instrument---Application for leave to appear and defend suit­--Violation of procedure by the Court and its impact elaborated.

The plaintiff instituted a suit under Order XXXVII, rule (2), C.P.C. and after registration of the suit summons in the prescribed mode was issued to the defendant specifying therein that he can apply for leave to appear and defend the suit supported by affidavit or declaration showing that there was a legitimate cause to defend the suit or reasons that he could be allowed to appear and defend the suit within specified time. In response to the summons, the defendant applied for leave to defend the suit on the grounds mentioned in the application and supported by affidavit. On behalf of the defendant his counsel made appearance and the Court, after hearing the parties' counsel in the light of their respective contentions raised before the Court, instead of deciding the application for leave to defend the suit, with the consent of the parties' counsel, sent the disputed cheques to the concerned branches of the banks for verification of the signature of the account holders. On a subsequent date, in view of the reports sent to the Court by the Managers of the Banks, on the request of the plaintiff's counsel, it summoned Managers of the said branches of the Bank, who were orally examined and substance of their examination was noted in the relevant order sheets. The counsel for the defendant took the objections before the Court that the Managers of the banks could not be examined at the given stage of the proceedings and in any case if the Court was to consider substance of the examination of the representative of the banks, he should have been provided opportunity to cross-examine them but such opportunity was declined on the ground that they were summoned only for the satisfaction of the Court and for verification of the reports earlier sent by them to the Court. Bare perusal of the provisions of Order XXXVII, C.P.C. would go to show that on institution of a suit based upon negotiable instrument summary procedure had been provided and a defendant was not entitled to appear or defend the suit unless he obtained leave from Court to appear and defend the suit. Admittedly in response to the summons issued to the defendant, such application was filed by him and the same was required to have been decided' by the Court on its own merits by determining as to whether leave to defend the suit was to be refused or granted and thus the Trial Court was supposed to proceed as the case may be under sub-rule (2) of rule 2 and under rule 3 Order XXXVII. In the present case leave was given to appear and defend the suit but the Trial Court, in violation of the prescribed procedure, adopted the above said course regarding verification of the disputed signatures of the account holder by calling reports from the concerned banks, (though consented to by the parties counsel) and after that summoned the Managers of the banks for verification of the reports submitted by them and orally examined them and reduced the substance of examination in the relevant order sheets, even without affording opportunity of cross-examination to the defendant. The course so adopted by the Trial Court in the suit, filed under Order XXXVII, C.P.C. was not permissible under the law nor the reports submitted by the Managers of the banks and their `subsequent oral examination by the Court, could be considered for the purpose of deriding the application filed by the defendant for leave to defend the suit. Only in connection with the suits other than those instituted under Order XXXVII, C.P.C. a Court, at the first hearing of the suit, could competently ascertain from each party or his pleader whether he admitted or denied such allegations of fact as ­were made in the plaint or written statement, and as were not expressly or by necessary implication admitted or denied by the party against whom they were made and such admission, and denials were required to be recorded within the meaning of Order X, rule 1, C.P.C., whereas; under rule 2 of the said Order a Court is competent to orally examine any party to the proceedings present in person. The Provisions of Order X could not be made applicable to a suit filed under Order XXXVII, C.P.C. at the stage where even no written statement was filed and the question pertaining to the leave to defend the suit or otherwise was yet to be decided by the Court and, secondly; under the said Order only a party to the proceedings or their pleaders or any companion capable to answer could be orally examined by the Court within the purview of rule 2 of Order X, C.P.C. but in the present case Managers of the banks were orally examined by the Court out of whom none was a party to the proceedings or representative of either of them, consequently; the reports sent to the Court by the Managers of the banks regarding disputed signatures inscribed/appearing on the cheques in question and their subsequent oral examination by the Court being violative of the relevant provisions of law, were void and without jurisdiction to be kept out of consideration while deciding the application filed by the defendant seeking for leave to defend the suit which had to be disposed of at the earliest after hearing the parties, on its own merits.

Thus in view of the above discussion and reasons Civil Revision Petition was allowed by the High Court in the above terms, leaving to parties to bear their own costs.

1996 CLC 1758 and 1999 SCMR 85 distinguished.

Sohail Ahmed Rajput for Petitioner.

Rashid Awan for Respondent.

Date of hearing: 23rd November, 2001.

P L D 2005 Quetta 86

Before Amanullah Khan, Actg. C.J., and Fazalur Rehman, J

ABDUL SALAM and others---Appellants

Versus

THE STATE and others--Respondents

Criminal Appeals Nos.4 of 2002(ATA) and 10 of 2003(ATA), decided on 14th March, 2005.

(a) Penal Code (XLV of 1860)--‑

----Ss. 302(b), 392 & 324---Appreciation of evidence---Entire prosecution case was based on the identification parade and the statement of a prosecution witness who had seen the accused soon after the incident running away along with a bag---Prosecution witnesses had made material improvements in their statements which did not fit in the circumstances of the case---Presence of said witnesses at the scene of occurrence was doubtful and their testimony was worthless---No description of the accused was given by both the witnesses of the identification parade as to how they had identified him---Legal formalities were not complied with in conducting the identification parade and possibility of the accused having been shown to the witnesses before conducting the same could not be ruled out---Incident had taken place in broad daylight on a busy road where even the' passersby had received fire-arm injuries during dacoity, but neither any eye-witness was examined in the case, nor any crime empties were recovered from the spot---Prosecution witnesses, who were policemen, appeared to have been examined to strengthen and support the prosecution case---Accused was extended the benefit of doubt and acquitted in circumstances.

Asghar Ali alias Sabah and others v. State and others 1992 SCMR 2088 and Lal Singh v. The Crown (1924) 5 Indian LR 396 and Muhammad Ismail Khan v. Manzoor Ahmed and others PLD 1966 SC 664 ref.

(b) Qanun-e-Shahadat (10 of 1984)--‑

----Art. 22---Identification parade---Principles---No reliance can be placed on the identification parade unless description of the accused is given by the witness in his police statement.

Asghar Ali alias Sabah and others v. State and others 1992 SCMR 2088 and Lal Singh v. The Crown (1924) 5 Indian LR 396 ref.

(c) Qanun-e-Shahadat (10 of 1984)--‑

----Art. 22---Identification parade---Evidence of identification---Principal evidence of identification is the evidence of a witness given in Court as to how and under what circumstances he came to pick out a particular accused person and the details of the part which he played in the crime--Statement made by such a witness at an identification parade might be used to corroborate his evidence given in Court, but otherwise the evidence of identification furnished by an identification parade can only be hearsay except as to the simple fact that a witness was in a position to show that he knew a certain accused person by sight.

Asghar Ali alias Sabah and others v. State and others 1992 SCMR 2088 and Lal Singh v. The Crown (1924) 5 Indian LR 396 ref.

(d) Penal Code (XLV of 1860)--‑

----Ss. 302(b), 392 & 324---Identification of accused in Court---Effect---Identification in Court of a person produced as an accused months after the event cannot satisfy the requirements of law for proving the identity of the culprit.

Asghar Ali alias Sabah and others v. State and others 1992 SCMR 2088 and Lal Singh v. The Crown (1924) 5 Indian LR 396 ref.

(e) Penal Code (XLV of 1860)--‑--

----Ss. 302(b), 392 & 324---Appreciation of evidence---Principles---Prosecution has to stand on its own legs and any doubt arising out of the case has to be resolved in favour of accused.

(f) Penal Code (XLV of 1860)--‑

----Ss. 302(b), 392 & 324---Circumstantial evidence---Court in a case resting wholly on circumstantial evidence must, as observed by wills in his treatise on Circumstantial Evidence, remember that the "processes of inference and deduction are essentially involved frequently of a delicate and perplexing character liable to numerous causes of fallacy"---Mere suspicion will not be sufficient to justify conviction---Before the guilt of accused can be inferred merely from inculpatory circumstances, such circumstances must be found to be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt---Circumstances sought to be relied upon must have been established beyond all doubt, but this only means a reasonable doubt, i.e., a doubt such as would assail a reasonable mind and not any and every kind of doubt and much less a doubt conjured up by pre-conceived notions---But once the circumstances have been found to be so established, they may well furnish a better basis for decision than any other kind of evidence.

Muhammad Ismail Khan v. Manzoor Ahmed and others PLD 1966 SC 664 ref.

W.N. Kohli for Appellant (in Criminal Appeal No.4 of 2002)(ATA).

Muhammad Khalid Dogar Public Prosecutor for the State (in Criminal Appeal No.4 of 2002)(ATA).

Muhammad Khalid Dogar Public Prosecutor for Appellant (in Criminal Appeal No.10 of 2003)(ATA).

W.N. Kohli for Respondent (in Criminal Appeal No.10 of 2003)(ATA).

Date of hearing: 22nd February, 2005.

P L D 2005 Quetta 95

Before Mehta Kailash Nath Kohli, JJ

FAIZULLAH---Petitioner

Versus

JUDICIAL MAGISTRATE/FMC, NOSHKI and 3 others---Respondents

Criminal Revision No.6 of 2005, decided on 4th April, 2005.

West Pakistan Border Area Food Stuff (Control) Order, 1958---

----S. 6---Food Stuff (Control) Order, 1990, S.2-C(iv)(a)---Constitution of Pakistan (1973), Arts. 4, 23 & 25---Smuggling of foodstuff---Accused had admitted the guilt and he now could not turn around and say that the impugned order was illegal---Section 2-C(iv)(a) of the Food Stuff (Control) Order, 1990, had authorised the Havaldar Levies to take into possession the vehicle and rice intended to be smuggled towards Border Area---Area from where the rice was seized admittedly was a prohibited area of the Border---Rice having belonged to other persons, accused could not file application for release of the same---Law had prohibited movement of the food stuff described in the Schedule in the Border Area in order to restrict smuggling to other countries---Articles 4, 23 and 25 of the Constitution were not violated in any way---Accused was not entitled to transfer the food stuff without a valid permit from the competent Authority---Revision petition was dismissed in circumstances.

1996 SCMR 1476 and 1995 SCMR 1639 ref.

Sardar Nazir Durrani for Petitioner.

Amanullah Tareen, Asstt. A.-G. for Respondents.

Date of hearing: 28th March, 2005.

P L D 2005 Quetta 99

Before Ahmed Khan Lashari and Muhammad Nadir Khan, JJ

HASLAN and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Jail Appeal No.(S) 20 and Criminal Revision Petition No.12 of 2003, decided on 30th April, 2005.

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

----S. 302(c)---Appreciation of evidence---Retracted extra-judicial confession of accused was sufficiently corroborated by the record to the effect that the deceased while coming out of the house of the accused at mid-night did not stop on query and was fired upon which resulted in his death---Said version appeared to be reasonably possible which had given the right of private defence of life and property to the accused who in exercise of such right fired one shot in dark night on the deceased considering him to be a thief, which proved fatal---Accused had not committed any offence by exceeding the limits---Prosecution had failed to prove the charge of Qatl-i-Amd---Accused was acquitted in circumstances.

2001 PCr.LJ 445; 2003 SCMR 419; 2003 SCMR 540, 2003 SCMR 554; 1995 SCMR 614; Imtiaz v. The State 1996 SCMR 1937 and 1993 SCMR 550 ref.

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

-----S. 302(c)---Burden of proof---Prosecution is duty bound to prove its case beyond reasonable doubt---Defence has only to make possibility of its version being true and it is not required to prove its plea beyond doubt---Accused may or may not take a plea, the benefit arising out of prosecution record is to be extended in his favour.

1993 SCMR 550 ref.

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

----S. 302(c)---Appreciation of evidence---Private defence of life and property--Court can accept the plea of exercise of right of private defence of property and life if spelt out from the prosecution record, though it was not specifically introduced or proved.

1993 SCMR 550 ref.

Anwar-ul-Haq Ch. for Appellant (in Criminal Jail Appeal No.(S)20 of 2003).

Daud A. Baloch for the Complainant (in Criminal Jail Appeal No.(S)20 of 2003.

Abdul Raheem Mengal, A.A.-G. for the State (in Criminal Jail Appeal No.(S)20 of 2003).

Muhammad Dawood a Baloch for Petitioners (in Criminal Revision Petition No.12 of 2003).

Anwar-ul-Haq Ch. for Respondent (in Criminal Revision Petition No.12 of 2003).

Abdul Raheem Mengal, A.A.-G. for the State '(in Criminal Revision Petition No.12 of 2003).

Date of hearing; 16th October, 2004.

P L D 2005 Quetta 110

Before Ahmed Khan Lashari and Mehta Kailash Nath Kohli, JJ

AHMED JAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.(S)59 of 2004, decided on 5th March, 2005.

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

-------S. 302(b)---Appreciation of evidence---Delay in lodging the F.I.R. had not been satisfactorily explained by the prosecution and every possibility of deliberations and false implication of accused could be entertained---Delay in making the report might not gain much importance in the presence of positive and trustworthy prosecution evidence, but it would become significant in the absence of such evidence---Despite the fact that shops were open .at the time of occurrence which had been witnessed by many people, no independent evidence was produced by prosecution---Accused was acquitted on benefit of doubt in circumstances.

PLD 2002 SC 1048 ref.

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

----S. 302(b)---Appreciation of evidence---Delay in lodging the F.I.R.---Unexplained delay in lodging the F.I.R. is not fatal by itself and is immaterial in the presence of prosecution evidence strong enough to sustain conviction, but it assumes significance when the prosecution evidence and other circumstances of the case tend to tilt the balance in favour of the accused.

PLD 2002 SC 1048 ref.

Mithal Khan for Appellant.

Abdul Rahim Mengal, Asstt. A.-G. for the State.

Date of hearing: 5th March, 2005.

P L D 2005 Quetta 116

Before Muhammad Nadir Khan, J

NAZIR AHMED---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.(S) 1 of 2005, decided on 15th June, 2005.

Penal Code (XLV of 1860)---

----Ss. 337-F(v) & 459---Appreciation of evidence---Un-explained delay of more than five' hours in lodging FIR., could not be ignored---No explanation was provided as to why such a long time was taken for providing medical aid to complainant who in cross-examination stated that on receiving of bullet wound he became unconscious---Prosecution witness, who was shown to be the witness of incident as well as of site inspection made by Investigating Officer in the morning of incident at about 10/10-30 a.m., stated about tracing of foot prints through tracker---After identification of accused who was already known to prosecution witnesses, tracing out of his foot-prints, had created doubt about his identification at the time of incident---Recovered T.T. Pistol allegedly used in the crime was not referred to firearm expert to match it with two empties allegedly taken into possession from the scene of crime---In absence of any such evidence, said recovery could not be of any help to prosecution to prove charge against accused---Complainant had stated that accused had entered his house to commit theft, but his said plea was found to be without any substance as neither accused was alleged to he found taking away his cattle tied in the courtyard nor any other article of complainant was being removed by accused---All said facts had made the prosecution case doubtful---Statement of prosecution witness and complainant without any independent corroboration, could not be made basis for conviction of accused--Conviction and sentences awarded to accused by Trial Court were set aside and accused was acquitted of the charge against him.

2000 PCr.LJ 367; 1996 PCr.LJ 668 and 1986 PCr.LJ 733 ref.

Nazir Aftab for Appellant.

Abdul Rahim Mengal, Asstt. A.-G. for the State.

Date of hearing: 14th April, 2005.

P L D 2005 Quetta 121

Before Amanullah Khan Yasinzai and Ahmed Khan Lashari, JJ

JAVED IQBAL and another---Petitioners

Versus

RETURNING OFFICER and another---Respondents

Constitutional Petition No.189 of 2005, decided on. 2nd June, 2005.

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

---Ss. 2 & 5---Legal Practitioners and Bar Council Rules, 1976, Rr.3, 4 & 10(1)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Balochistan Bar Council Election---Non-enlistment of the name of proposer of candidate in the roll of Electoral College published by Bar Council---Nomination papers of candidate, rejection of---Validity---Proposer had filed application seeking correction of such Roll after rejection of nomination papers as his name was not appearing therein---Candidate and his proposer had disputed such Roll and rejection of nbmination paper on flimsy grounds---High Court would not enter into such disputed and factual controversy requiring detailed enquiry and recording of evidence by Election Tribunal---High Court dismissed Constitutional petition in limine.

PLD 1993 Quetta 42; 1998 SCMR 1535; PLD 1982 Quetta 126; PLD 1982 Quetta 129; PLD 1989 Kar. 53 and PLD 1984 Quetta 117 ref.

(b) Legal Practitioners and Bar Council Rules, 1976---

----Rr. 3, 4 & 10---Nomination papers, rejection of---Powers of Returning Officer---Scope---Scrutiny of nomination papers by Returning Officer must be based on electoral roll, which, for such purpose, would be final---Remedy of candidate would lie before Election Tribunal in ease of rejection of his nomination papers on the ground of being not resident of relevant area.

P L D 1989 Kar. 53 and PLD 1984 Quetta 117 rel.

H. Shakil Ahmed, Ali Ahmed Kurd and Qahir Shah for Petitioners.

Respondent No.1 Returning Officer.

Amanullah Kanrani for Respondent No.2.

Date of hearing: 30th May, 2005.

P L D 2005 Quetta 127

Before Amanullah Khan Yasinzai and Ahmed Khan Lashari, JJ

Mst. SHAGUFTA SHIREEN and others---Appellants

Versus

Mst. MARIAM BIBI and others---Respondents

R.F.A. No.67 of 1998, decided on 17th May, 2005.

(a) Islamic Law---

----Gift deed and will---"Marz-ul-Maut"---Plaintiff alleged such documents to have been executed by donor during "Marz-ul-Maut"---Proof---No medical evidence was placed on record to infer that donor:", was suffering from a particular disease, which caused a sense of imminent danger of death and eventually resulted in his death---Reliance of plaintiff upon order sheets of two previous cases, wherein deceased on account of his inability to appear personally in such Courts was examined through Local Commission--Validity---Such order sheet did not disclose the type of disease from which donor was suffering---Such non-appearance of deceased would not make him incapacitated and no inference could be gathered therefrom that he was suffering from "Marz--ul-Maut"---Examination of deceased in such cases through Commission at his own house would not render him incapacitated nor any inference could be gathered therefrom that he was in state of "Marz-ul-Maut"---Gift deed was executed by deceased two years prior to his death, which could not be said to be in a state of "Marz-ul-Maut" for a period of two years or totally incapacitated to understand the nature of his transaction---Gift-deed registered with sub-Registrar. recited therein handing over possession of property and acceptance of gift by donee through his guardian-.--Record showed that donor after execution of gift deed was residing in same property with donee, without any objection and after donor's death, donee was residing therein---Entire burden was upon plaintiff to prove such plea, which he had failed to prove---Gift was, held to have been validly executed by the deceased.

Shahzad and 2 others v. Mst. Ali Begum through Legal Heirs and another 1988 CLC 1507 and Bakht Zamin v. Said Majid 1996 CLC 1805 rel.

(b) Islamic Law---

----"Marz-ul-Maut"---Connotation---"Mari-ul-Maut" is a malady inducing an apprehension of death in the person, who was suffering from it and which ultimately resulted in his death.

Shahzad and 2 others v. Mst. Ali Begum through Legal Heirs and another 1988 CLC 1507 and Bakht Zamin v. Said Majid 1996 CLC 1805 rel.

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

----Arts. 117, 118 & 129(g)---Gift deed---"Marz-ul-Maut", plea of--Proof---Burden would lie upon plaintiff to prove that deceased was incapacitated or in the state of "Marz-ul-Maut" at the time of execution of gift deed---Non-entering of donee-defendant in witness box would not invalidate his case.

Shahzad and 2 others v. Mst. Ali Begum through Legal Heirs and another 1988 CLC 1507 rel.

(d) Islamic Law-

----Gift---Oral or in writing---Effect---Non-entering of gift deed in Revenue Record---Effect---Gift could also be oral---Gift in writing would have over-riding effect on any other document---Where gift was complete in all respects, possession was handed over by donor and accepted by donee, then mere non-entering of property in donee's name in Record of Rights would not invalidate entire transaction---Gift deed being a registered document would be valid and could be acted upon anytime.

H. Shakil Ahmed assisted by Mujeeb Ahmed Hashmi for Appellants.

Mumtaz Hussain Baqri, Kamran Murtaza, Imran ul Haq, Muhammad Qahir Shah and Sunder Dass for Respondents.

Date of hearing: 29th March, 2005.

P L D 2005 Quetta 139

Before Muhammad Nadir Khan and Mehta Kailash Nath Kohli, JJ

ABDUL QADOOS---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 173 of 2004, decided on 27th June, 2005.

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

----S. 9(c)---Juvenile Justice System Ordinance (XXII of 2000), S.7---Appreciation of evidence---Accused had not denied the recovery of opium and had identified the same---Recovery witnesses had no animosity against the accused for his false implication in the case---Recovery of narcotics, thus, was proved---However, Trial Court on having received an application regarding the accused being a juvenile, was duty bound to have obtained a report from the Medical Board under S.7 of the Juvenile Justice System Ordinance, 2000 and to have passed an appropriate order after conducting the enquiry---Mere observation that the accused by appearance looked major was contrary to the provisions of the said Ordinance---Conviction of accused was maintained but his sentence of six years' R.I. was reduced to five years' R.I. in circumstances---Matter, however, was remanded to Trial Court to follow the provisions of Juvenile Justice System Ordinance, 2000, and after holding inquiry if the accused was found to be a child at the time of commission of the offence, all the benefits ensuing therefrom should be extended to him. Appeal was disposed of accordingly.

Ali Muhammad and another v. The State 2003 SCMR 54 ref.

Jameel Khan Lodeen for Appellant.

Amin ud Din Bazai, Addl. A.-G. for the State.

Date of hearing: 21st June, 2005.

P L D 2005 Quetta 145

Before Raja Fayyaz Ahmed, C. J. and Akhtar Zaman Malghani, J

SAIFULLAH KHAN---Petitioner

Versus

Hafiz HAMDULLAH and 4 others---Respondents

Constitutional Petition No.46 of 2003, decided on 27th July, 2005.

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

----Arts. 63(2), 113 & 225---Representation of the People Act (LXXXV of 1976), Ss. 14 & 99---Election of Provincial or National Assembly---Disqualification of candidate---Questioning membership of successful candidate---Stages prescribed under law for raising such questions highlighted.

Question of disqualification can be raised, firstly; at the stage when the candidate is being elected and secondly after having become a member. First stage is over, when nomination papers, without any objection from any of the candidates or elector, are accepted by Returning Officer. Question of second stage can be considered by Election Tribunal on the appeal filed by a candidate against the successful candidate or by the Election Commission under Article 63(2) read with Art. 113 of the Constitution, where question of disqualification from being a member is referred to him by the Speaker of the Assembly. Thus no remedy is available to an elector or voter to question the membership of a successful candidate, once election is over, even though the disqualification carried by the member has come to his knowledge after the election.

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

----Art. 199---Writ of quo warranto---Term "aggrieved person" would not apply stricto senso in such writ---Principles.

The bar that the person applying for writ under Article 199 of the Constitution should be an aggrieved person, does not apply to the petition for writ of quo warranto, because it in its nature is an information laying against a person, who claimed or usurped an office, franchise or liberty and is intended to enquire by what authority lie supports his claim in order to have the right to the office, franchise or liberty be determined, therefore,- the term "aggrieved person" does not apply stricto senso to the writ of quo warranto, and any person can lay information before the Court for enquiring from the person holding a public office as to under what authority he is holding the office.

Farzand Ali v. Province of Pakistan PLD 1970 SC 98 and PLD 1963 SC 203 rel.

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

----S. 99(1A)(k)---Conduct of General Elections Order (Chief Executive's Order No.7 of 2002), Art.8-D(2)(k)---Constitution of Pakistan (1973), - Art.199---Constitutional petition---Election of Provincial Assembly---Disqualification of successful candidate---Candidate previously a Government servant---Tendering of resignation on 1-12-2001 and its acceptance on 1-1-2002---Plea of candidate was that his resignation was accepted on 13-11-2003 with effect from 1-12-1999, thus, was eligible to contest election held on 12-10-2002---Validity---Resignation could be withdrawn or recalled before its acceptance by competent authority---Resignation, in absence of any rule or law, would become effective only when same was accepted---Government could accept resignation even on the date of its having tendered or even from a later date or not accept same at all---Candidate's resignation became . effective, when same was accepted on 13-11-2003 as he could withdraw same until same was accepted---Acceptance of resignation with retrospective effect could not' remove disqualification as provided in Art.8-D(2)(k) of Conduct of General Election Order, 2002 read with S.99(1A)(k) of Representation of the People Act, 1976---Candidate was disqualified to be elected and to be member of Provincial Assembly---High Court accepted Constitutional petition and notification of Election Commission notifying candidate to be duly elected member was declared to be without lawful authority and of no legal effect, resultantly constituency concerned would fall vacant.

1672 of 2003 (unreported); PLD 1988 SC 416; PLD 2003 Quetta 94 and PLD 1991 Lah. 200 ref.

Farzand Ali v. Province of Pakistan PLD 1970 SC 98; PLD 1963 SC 203; PLD 1958 Kar. 75; 1985 SCMR 1178 and 1984 SCMR 1578 rel.

(d) Civil service-

----Resignation can be withdrawn or recalled before its acceptance by Competent Authority---Open to competent authority to accept resignation even on the date of its having tendered or even from a later date or not to accept same at all---Resignation, in absence of any rule or law, would become effective only on its acceptance.

PLD 1958 Kar. 75 and 1985 SCMR 1178 fol.

(e) Representation of the People Act (LXXXV of 1976)---

----S. 14(5)(5-A)---Constitution of Pakistan (1973), Art.199---Election dispute---Constitutional jurisdiction of High Court is wider than Election Appellate Tribunal constituted for limited purpose.

H. Shakil Ahmed for Petitioner.

Kamran Murtaza, Rauf Ata, Ch. Mumtaz Yousaf and Amanullah Tareen for Respondents.

Date of hearing: 19th May, 2005.

P L D 2005 Quetta 157

Before Akhtar Zaman Malghani and Mehta Kailash Nath Kohli, JJ

UMEED KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.62 of 2005, decided on 8th July, 2005.

(a) Penal Code (XI.V of 1860)---

----S. 302(b)/34---Appreciation of evidence---Fatal shot had been fired by the absconding accused with his pistol---Eye-witnesses were closely related to each other and resided at far-off places from the place of incident---Possibility of exaggeration and false implication of accused could not be ruled out---No direct role was attributed to accused in the occurrence---Prosecution had failed to prove pre-concert and common intention to commit the murder within the purview of S.34, P.P.C.---Medical evidence was in direct conflict with ocular testimony---Accused was acquitted in circumstances.

Shihab Din v. State PLD 1964 SC 177; Athar Khan and 2 others v. State PLD 1972 Lah. 19; Mehrullah and 2 others v. State PLD 1999 Quetta 88; Muhammad Akbar and 2 others v. The State PLD 1991 SC 923; Mushtaq Ali and 2 others v. The State 1999 MLD 506; 2002 PCr.LJ 1072 and Bagh Ali v. Muhammnad Anwar and another 1983 SCMR 1292 ref.

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

----S. 34---Acts done by several persons in furtherance of common intention---Intent and import---Joint action by a number of persons is not necessarily an action performed with a common object, but it may be performed on the spur of the moment as a reaction to some incident and such a case would fall within the ambit of S.34, P.P.C.---Mere presence of an accused at the place of incident with a co-accused who commits the offence may not be sufficient to visit the former with vicarious liability---Strong circumstances must exist manifesting a common intention---Common motive, pre-planned preparation and pre-concert are generally the elements which constitute common intention---Common intention may develop even on the spur of the moment or during the commission of offence and conversely it may undergo a change during the commission of the offence.

Mehrullah and 2 others v. State PLD 1999 Quetta 88 and Muhammad Akbar and 2 others v. The State PLD 1991 SC 923 ref.

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

---- S. 34---Common intention---Determination of---Section 34, P.P.C. declares a rule of criminal liability and does not itself create a distinct offence---In order to determine the common intention regard must be had not only to a particular act but all the acts that were done---Provisions of Ss.33, 35, 36 and 38, P.P.C. are also to be kept in mind to understand the scope of S.34, P.P.C.

Athar Khan and 2 others v. State PLD 1972 Lah. 19; Mushtaq Ali and 2 others v. The State 1999 MLD 506 and 2002 PCr.LJ 1072 ref.

Muhammad Aslam Chishti for Appellant.

Abdul Karim Langove for the State.

Date of hearing: 28th June, 2005.

P L D 2005 Supreme Court 1

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Tassadduq Hussain Jilani, JJ

Ch. MUHAMMAD SIDDIQUE and 2 others---Petitioners

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Law and Justice Division, Islamabad and others---Respondents

Constitutional Petitions Nos.23 of 1999 and 21 of 2004, decided on 5th November, 2004.

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

----Art.184(3)---Invocation of original jurisdiction of Supreme Court under Art.184(3) of the Constitution---Conditions---"Question of public importance" ---Concept.

Clause (3) of Article 184 and sub-clause (c) of clause (1) of Article 199 of the Constitution are for the enforcement of any of the fundamental rights conferred by Chapter 1 of Part II.

Articles 199 and 184(3) regulate the jurisdiction of the superior Courts and do not oust it. Perusal of clause (3) of Article 184 unequivocally postulates that two conditions are precedent for invoking said clause. Firstly, the petition must clearly demonstrate that the grievance relates to violation of fundamental rights. Secondly, the violation is of nature of public importance, which has been interpreted to mean any invasion of individual freedom, liberty, fundamental rights, including effectiveness and safeguard for their implementation. Therefore, having regard to the connotation of the words "public importance", the facts and circumstances of each case would have to be scrutinized on their own merits.

The issues arising in a case, cannot be considered as a question of public importance; -if the decision of the issues affects only the rights of an individual or a group of individuals. The issue, in order to assume the character of public importance, must be such that its decision affects the rights and liberties of people at large. The adjective `public' necessarily implies a thing belonging to people at large, the nation, the State or a community as a whole. Therefore, if a controversy is raised in which only a particular group of people is interested and the body of the people as a whole or the entire community has no interest, it cannot be treated as a case of public importance.

What is meant by a question of public importance. The term `public' is invariably employed in contradistinction to the terms private or individual, and connotes, as an adjective, something pertaining to, or belonging to the people, relating to a nation, State or community.

A case does not involve a question of public importance merely because it concerns the arrest and detention of an important person like a Member' of Parliament. In order to acquire public importance, the case must obviously raise a question, which is of interest to, or affects the whole body of people or an entire community.

Mian Muhammad Shahbaz Sharif v. Federation of Pakistan PLD 2004 SC 583 and Watan Party's case PLD 2003 SC 74 ref

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

----Arts. 184(3), 18 & 25---Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Ordinance (II of 2000), Ss.4 & 5---Punjab Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Act (V of 2003), Ss.4 & 5--­Constitutional petitions before Supreme Court under Art. 184(3) of the Constitution---Maintainability---Petitioner had challenged the vires of Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Ordinance, 2000 whereby restriction on wasteful expenses on the occasion of marriage had been imposed and the vires of Punjab Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Act, 2003 limiting the number of invitees to 300 and placing restriction of one dish food only thereunder and that these laws directly affect a number of businesses and thus were hit by Arts. 18 & 25 of the Constitution---Held, petitioners had alleged violation of fundamental rights guaranteed under Arts. 18 and 25 of the Constitution; the questions raised in the petitions were of great public importance, which involved interpretation of various provisions of the Constitution and decision of Supreme Court, one way or the other, would directly affect the entire population of the country---Constitutional petitions under Art. 184(3) therefore-were maintainable.

(c) Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Ordinance (II of 2000)-----

----S.4---Punjab Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Act (V of 2003), S.4---Marriage functions and Walima---Islamic concept ---Walima and other marriage functions prevalent in the society have been made a source of ostentatious display of wealth inasmuch as people spend huge moneys on the occasions of Barat, Walima and other functions which have taken the form of Asraaf (extravagance), which has been strictly prohibited in the Holy Qur'an---Supreme Court while pointing out the evils of such ceremonies observed that it is the duty of the State to take steps to encourage the celebration of marriage ceremonies in simple and informal ways, such as performance of Nikah in the mosque of the locality so that the element of inconvenience/harm was eliminated from the society.

Perusal of various Ahadith unambiguously reveals that Walima is a feast arranged on the occasion of marriage. It comes from the root (altayyam) meaning to join together. This is so called as it is held on the occasion of joining of wife and husband together. Majority of the jurists hold that it is a Sunnah while a few hold that it is Mustahab (commendable) and a few others are of the view that it is Wajeb (compulsory). The feast invariably is given by the husband.

Walima is an invitation to meals given by the bridegroom intended basically to make the factum of marriage known to the people of the locality lest there is any doubt about the new relationship between a man and a woman.

Walima invitation is a pre-Islamic concept liked and adopted by the Holy Prophet (PBUH). Only such items be given in Walima as the person celebrating Walima can afford from his own resources.

The invitation of Walima should be offered to all and sundry in the vicinity and should not be confined to relatives, friends, influential, etc.

The Walima and other marriage functions prevalent in our society have been made a source of ostentatious display of wealth inasmuch as the wealthy people spend huge moneys on the occasion of Baraat, Walima and other functions. This has taken the form of Asraaf (extravagance), which is strictly prohibited in the Holy Qur'an.

Such functions shall be free from "Asraaf" and "Tabzeer" and such functions shall also be free from such actions and deeds, which are prohibited in Islam and may lead towards un-Islamic actions and deeds. No doubt, Walima is a Sunnah, but always it shall be within limits as narrated in various Ahadith. Extravagance i.e. ostentatious and wasteful expenditures on the occasion of Walima are always discouraged right from the very beginning. By enormous expenditure social vices are created leaving behind horrifying consequences. These evils have generated social inequalities in the society.

Marriage Functions (Prohibition of Ostentatious and Wasteful Expenses) Ordinance, 2000 has been framed with the noble object of prohibiting extravagance and ostentatious displays on the marriage functions. It is an important step to prepare the society as a whole for a change in its behaviour towards this issue and thereby curb the tendency of wasteful expenses so as to relieve the poorer segments of the society of the undue burden of exorbitant expenditures incurred on these occasions.

Sections 4 and 5 of the Marriage Functions (Prohibition of Ostentatious Display and Wasteful Expenses) Ordinance, 2000 provide for hot and/or cold soft drinks. This law never prohibited holding of Walima. People are at liberty to celebrate marriage and Walima. What is prohibited is extravagance and ostentatious display of wealth. This is quite in line with the teachings of Islam. Islam lays great emphasis on simple way of life. It is the duty of the State to take steps to encourage the celebration of marriage ceremonies in simple and informal ways, such as performance of Nikah in the mosque of the locality so that the element of inconvenience/harm is eliminated from the society.

The exploitative customs observed on the eve of marriage ceremonies in our country and the social evils emanating therefrom have not only added to the miseries of the poor but have put at stake their very existence too. It is customary in our society that ostentatious display of Jahez and other dowry articles takes place in front of all the guests with a view to making it known to them as to what is being given to the bride by her parents and the parents of the bridegroom. Dowries are given and now also openly demanded. The lower middle and poor classes of society are being crushed under the evils of extravagance and ostentatious displays of wealth. It is unacceptable as it is against all norms and values known to a civil society. It must stop. The functions celebrated on the eve of marriage such as Mayun, Mehndi/Rasm-e-hina, Baraat, etc. and even the custom of giving large dowries all are of Hindu origin and have nothing to do with the Islamic concept of marriage. The Muslims of the sub-continent had offered great sacrifices for the establishment of an independent Sate wherein they could lead their lives in accordance with the teachings of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet (may peace be upon him). The Constitution of Pakistan contains sufficient provisions whereby the State is obliged to take steps to eradicate social evils. This issue needs to be seen in this larger context.

Al-Bokhari and Muslim with reference to Mishkat Hadith 3:56; Shahi Al-Bokhari--Hadith 84 Narrated by Anas; Haidth 103 narrated by Abu Musa. (9:alanbya),(31:alaraf),(141:alaneam) ref.

(d) Punjab Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Act (V of 2003)-----

----Preamble---Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Ordinance (II of 2000), Preamble---Constitution of Pakistan (1973), Art. 143, 184(3) and Concurrent Legislative List, Fourth Schedule, Item 5---Constitutional petition before Supreme Court under Art. 184(3) of the Constitution---Petitioner had challenged the vires of Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Ordinance, 2000 whereby restriction on wasteful expenses on the occasion of marriage had been imposed and the vires of Punjab Marriage Functions (Prohibition of Ostentations Displays and Wasteful Expenses) Act, 2003 limiting the number of invitees to 300 and placing restriction of one dish food only thereunder---Held, Item 5 in the Concurrent Legislative List, Fourth Schedule to the Constitution, speaks about marriage and divorce, infants and minors; adoption and Walima emanates from marriage and the Federal Government is competent to enact law on the said subject---Federal Government has already enacted law in the shape of Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Ordinance, 2000 which is valid and in force---Government of the Punjab was not legally competent to enact the Punjab Marriage Functions, (Prohibition of Ostentatious Displays and Wasteful Expenses) Act, 2003---Federal Law having Supremacy under Art. 143 of the Constitution, as such the law enacted by the Provincial Assembly viz. Punjab Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Act, 2003 being ultra vires was struck down and Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Ordinance, 2000 holds the field and is applicable throughout Pakistan and the guests be served in terms of Ss.4 & 5 of the said Ordinance---Principles.

Item 5 in the Concurrent Legislative List, Fourth Schedule to the Constitution, speaks about `marriage and divorce, infants and minors adoption'. Walima emanates from marriage and the Federal Government is competent to enact law on said subject. Indeed, the Federal Government has already enacted law in the shape of Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Ordinance No.II of 2000, which is valid and in force. The Government of the Punjab was not legally competent to enact the Punjab Marriage Functions (Prohibition of. Ostentatious Displays and Wasteful Expenses) Act (V of 2003). On this point, Article 143 of the Constitution is clear.

Act. 143 shows that the Punjab Marriage Functions (Prohibition of Ostentatious Displays 'and Wasteful Expenses) Act No. V of 2003 enacted by the Punjab Provincial Assembly is inconsistent with the Ordinance No.11 of 2000 promulgated by the Federal Government and as such is void. The Ordinance No.11 of 2000 holds the field as it was neither withdrawn nor amended nor struck down by the Supreme Court, as such the Punjab Provincial Assembly enacted the Punjab Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Act (V of 2003) in violation of "he spirit of the Constitution. Besides, two materially different laws on the same subject--one passed by the Federal Legislature and the other by a Provincial Legislature, are against the spirit of federation. Since Federal law has supremacy under Article 143 of the Constitution, as such the law enacted by the Provincial Assembly, viz, the Punjab Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Act (V of 2003) being ultra vires, is struck down.

Marriage Functions (Prohibition of Ostentatious and Wasteful Expenses) Ordinance, 2000 holds the field and is applicable throughout Pakistan and the guests be served in terms of sections 4 and 5 of the said Ordinance.

Maqbool Elahi Malik, Senior Advocate Supreme Court, Khalil Ahmed Advocate Supreme Court, M.A. Zaidi, Advocate-on-Record and Sh. Masood Akhtar, Advocate-on-Record (absent) for Petitioners.

Raja Muhammad Irshad, Deputy Attorney-General and Ch.Akhtar Ali, Advocate-on-Record for Respondents (in Constitutional Petition No.23 of 1999).

Syed Shabbar Raza Rizvi, Advocate-General Punjab and Ms. Afshan Ghazanfar, Asstt. Advocate-General for Respondents (in Constitutional Petition No.21 of 2004).

Dr. Qazi Khalid Ali, Addl. Advocate-General, Sindh.

Jehanzeb Rahim, Advocate-General, N.-W.F.P.

Raja Abdul Ghafoor, Advocate-on-Record/Advocate Supreme Court on behalf of Advocate-General Balochistan.

Muhammad Hanif Abbasi (in person) (in C.M.A. No.1466 of 2001).

Dates of hearing: 23rd and 24th September, 2004.

P L D 2005 Supreme Court 19

[Shariat Review Jurisdiction]

Present: Justice Abdul Hameed Dogar, Chairman, Justices Muhammad Nawaz Abbasi, Mian Shakirullah Jan, Dr. Allama Khalid Mahmud and Dr. Rashid Ahmed Jullundhari, Members

FEDERATION OF PAKISTAN through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan, Islamabad---Petitioner

Versus

ZAFAR AWAN---Respondent

Civil Shariat Review Petitions Nos.1 and 2 of 1991, decided on 11th October, 2004.

(On review from the judgment dated 30th November, 1991 of this Court passed in Civil Shariat Appeals Nos. 16 and 17 of 1989).

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

----Ss.402-C & 197---Pakistan Criminal Law Amendment Act (XL of 1958), S.6(5)---Constitution of Pakistan (1973), Art.188---Review of judgment--Deadline for amending S.402-C, Cr.P.C.---Federal Shariat Court declared the provisions of S.197 Cr.P.C. and S.6 (5) of Pakistan Criminal Law Amendment Act, 1958, as repugnant to Injunctions of. Islam---Judgment passed by Federal Shariat Court was maintained by Shariat Appellate Bench of Supreme Court---Review of the judgment passed by Shariat Appellate Bench of Supreme Court was sought on the ground that the provisions of S.402-C, Cr.P.C. had no been examined---. Validity---Counsel for petitioner / Federation of Pakistan conceded that S.402-C, Cr.P.C. had no nexus with the provisions of S.197 Cr.P.C. and S.6(5) of Pakistan Criminal Law Amendment Act, 1958---In order to bring the provisions of Chapter XVI, P.P.C., dealing with the offences of the human body, in conformity with the Injunctions of Islam, amendment was brought in Penal Code, 1860, vide Criminal Law (Second Amendment) Ordinance, 1990, whereby Ss.299 to 338-H, P.P.C. were substituted---Corresponding amendment was made in S.345 Cr.P.C. whereby offences mentioned in Chapter XVI, P.P.C. were made compoundable with the consent of the victim or as the case may be, of the legal heirs of .victim---In Criminal Procedure Code, 1898, S.402-C was added in Chapter XXIX, after.S.402-B, Cr.P.C. vide Criminal Law (Fourth Amendment) Ordinance, 1991, so as to bring it in conformity with the Injunctions of Islam as laid down by the Holy Qur'an and Sunnah; it was vide the added provision of law that the composition, suspension, remittance and commutation of sentences passed under any of .the sections in Chapter XVI of Penal Code, 1860, would not be done without the consent of the victim or as the case might be of his heirs--­Contentions of the petitioner were neither convincing nor in consonance with the provisions of law, as such, were misconceived---Supreme Court gave a deadline of 31st March, 2005, to Federal Government for making necessary amendments up to such date, failing which the provisions of law would cease' to have effect---Review petition was dismissed.

Hafiz S.A. Rehman, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate-on-Record for Petitioner (in both cases).

Nemo for Respondent (in both cases).

Date of hearing: 11th October, 2004.

P L D 2005 Supreme Court 22

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

MUHAMMAD IQBAL through, Special Attorney Faiz Sultan---Petitioner

Versus

PARVEEN IQBAL---Respondent

Civil Petition No. 1398 of 2004, decided on 17th September, 2004.

(On appeal from the judgment dated 24-5-2004 of the Lahore High Court, Lahore passed in T.A. 161/C/04).

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

----S.7(2), proviso---West Pakistan Family Courts Rules, 1965, R.6--­Constitution of Pakistan (1973), Art.185 (3)---Transfer of guardianship application to the place of residence of wife--Plea raised by the husband was that under R.6 of West Pakistan Family Courts Rules, 1965, suit for dissolution of marriage or dower could only be competently filed before the Family Court where wife ordinarily resided---Validity---Irrespective of suit for dissolution of marriage and dower, under the proviso to S.7(2) of West Pakistan Family Courts Act, 1964, suit for maintenance, personal property, belongings of wife, custody of children and visitation rights of parents to meet their children could also be instituted before Family Court where wife resided---Record showed that wife was residing with her son at place. J' in the house of her parents--Guardian Judge at placeJ' had the jurisdiction to try the suit---Guardian petition had been rightly withdrawn from Family Court at place C' and was transferred to Family Court at placeJ'---Order of transfer was proper and it did not require any interference---Leave to appeal was refused.

Pirzada Noor Ali Shakoori, Advocate' Supreme Court and M.A. Zaidi, Advocate on Record for Petitioner.

Respondent (in person).

Date of hearing: 17th September, 2004.

P L D 2005 Supreme Court 24

Present: Syed Deedar Hussain Shah and Sardar Muhammad Raza Khan, JJ

ARBAB MIR MUHAMMAD –Petitioner

Versus

Mst. IRAM ILTIMAS and 4 others---Respondents

Civil Petition for Leave to Appeal No. 1314 of 2002, decided on 8th October, 2004.

(On appeal from. judgment dated 4-6-2002, passed by the Peshawar High Court, Peshawar, in W.P.No.412 of 2000).

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 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, in 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-bearer of either of committee or sub-committee--­Section 12 of the Ordinance had not provided that in absence of non­official members of sub-committee, that the recommendations by the sub-committee would have no legal sanction---Recommendations of sub­committee for registration of pesticide in favour of the respondent was proper, irrespective of the lapse of time provided under the notification-­Petition was dismissed in circumstances.

Abdul Samad Khan, Advocate-Supreme Court for Petitioner.

Muhammad Munir Paracha, Advocate Supreme Court and M.S Khattak, Advocate-on-Record for Respondent No. 1.

Date of hearing: 8th October, 2004.

P L D 2005 Supreme Court 27

Present: Syed Deedar Hussain Shah, Sardar Muhammad Raza Khan and Faqir Muhammad Khokhar, JJ

Mrs. YASMEEN MALIK and others---Petitioners

Versus

Mrs. SAFIA BEGUM and others---Respondents

Civil Petition for Leave to Appeal No.672-K of 2004, decided on 13th October, 2004.

(On appeal from the judgment/order, dated 23-6-2004, passed by the High Court of Sindh, Karachi, in C.P. No.331 of 2003).

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

----S.15---Constitution of Pakistan (1973), Art.185 (3)---Ejectment of tenant---Bona fide personal need of landlady---Proof---Concurrent findings of fact by the Courts below---Landlady being widow required the premises for her own use and use of her only son---Rent Controller allowed the ejectment application and eviction order passed against tenants was maintained by Appellate Court as well as by High Court--­Validity---Evidence of landlady was in line with the application filed by her for ejectment of tenants---Landlady was widow and she had proved bona fide personal need for herself and for her son, which fact was not rebutted during the evidence recorded by Rent Controller---Judgment passed by High Court was based on valid and sound reasons and was in consonance with the law laid down by Supreme Court---Neither there was misreading of material evidence, misconstruction of facts and law, nor it involved any substantial question of public importance warranting interference by Supreme Court---Leave to appeal was refused.

Mrs. Shahnoor Fazal v. Ghulam Akbar Mangi 1987 SCMR 2051 distinguished.

K.A. Wahab, Advocate-on-Record for Petitioners.

Ismail Memon, Advocate Supreme Court for Respondent No. 1.

Date of hearing: 13th October, 2004.

P L D 2005 Supreme Court 29

Present: Faqir Muhammad Khokhar and Tassaduq Hussain Jilani, JJ

MUHAMMAD ASHRAF---Petitioner

Versus

DISTRICT JUDGE, JHELUM and others---Respondents

Civil Petition No. 1251 of 2002, decided on 7th October, 2004.

(On appeal from the order dated 28-5-2002 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in Writ Petition No. 1261 of 1996).

Constitution of Pakistan (1973)---

----Arts.185(3) & 199---Constitutional petition dismissed for non­ prosecution---Engagement of counsel before other Court--Sufficient cause---Appearance of parties on each and every date---Counsel for petitioner was busy before another Bench of High-Court and petitioner himself was not present---High Court dismissed the petition for non­ prosecution and declined to restore the same---Validity---Unlike the case before Trial Court no evidence was to be recorded in Constitutional petition---Party was not mandated to appear on each and every day when the party had executed power of attorney in favour of counsel---No specific direction was on the record for appearance of the party--­Explanation given by the counsel duly supported by affidavit that he was appearing before another Bench of High Court in same premises had been conceded to be a `sufficient cause' even by the counsel of respondent---Supreme Court converted the petition for leave to appeal into appeal and the Constitutional petition was restored---Appeal was allowed.

Muhammad Din v. Muhammad Amin PLD 1995 Lah. 15; Safiullah Siddiqui v. Karachi Electric Supply Corporation Limited 1997 SCMR 926; Muhammad Swaleh and another v. United Grain and Fodder Agencies PLD 1964 SC 97. and Begum and others v. Mst. Begum Kaniz Fatima Hayat and others 1989 SCMR 883 distinguished.

Muhammad Munir Peiacha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for Petitioner.

Nemo for Respondents Nos. 1, 2 and 4.

Sh. Zamir Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No. 3.

Date of hearing: 7th October, 2004.

P L D 2005 Supreme Court 34

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

Mst. FATIMA GUL---Petitioner

Versus

Malik SAEED AKHTAR---Respondent

Civil Petition No. 1769 of 2004, decided on 6th October, 2004.

(On appeal from the judgment dated 10-6-2004 in F.A.O. No.70 of 2004 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi).

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

----Ss.17 & 27---Constitution of Pakistan (1973), Art. 185 (3)---Ejectment of tenant---Striking off defence---Tentative rent order, non-compliance of---Wilful default in deposit of rent---Holding of inquiry by Rent Controller---Reason for non-deposit of rent by tenant was that her son met with an accident in another city and the doctor had advised him rest till 19-1-2004 and the rent was deposited on 20-1-2004---Rent Controller being not satisfied with the reason for non-deposit passed eviction order which was maintained by High Court---Plea raised by the tenant was that the Rent Controller did not hold any inquiry before passing eviction order---Validity---High Court and Rent Controller had rightly concurred in holding that default in deposit of rent was neither unavoidable nor beyond the control of tenant---High Court was right in arriving at finding that the default in deposit of rent in Court was contumacious, due to negligence and not unavoidable and the case was not covered by dictum laid down by Supreme Court in case titled Ghulam Muhammad Khan Lundkhor v. Safdar Ali, reported as PLD 1967 SC 530---Rent Controller had passed order under S.17(8) of Cantonments Rent Restriction Act, 1963, and directed the tenant to make compliance with regard to `the deposit of rent and not to her son, therefore, it was the duty of the tenant to have either deposited herself or through any of her agents---In case the agent or son failed to deposit rent within the statutory period, then the tenant would be liable/responsible for the consequences---Both the Courts below had concurrently found that cause shown for non-deposit of monthly future rent could not be termed to be unavoidable or beyond the control of tenant---Summary inquiry was held by Rent Controller whereby tenant was called upon to explain the commission of default under the provisions of S.17(9) of Cantonments Rent Restriction Act, 1963, and also heard the tenant which was sufficient compliance of S.27 of Cantonments Rent Restriction Act, 1963---Detailed inquiry was not required to be held under the provisions of S.27 of Cantonments Rent Restriction Act, 1963---Supreme Court declined to interfere with the eviction order passed by Rent Controller---Leave to appeal was refused.

Ghulam Muhammad Khan Lundkhor v. Safdar Ali PLD 1967 SC 530 rel.

Fazal Muhammad v. Province of the Punjab through Secretary Food Department, Lahore and another PLJ 1982 Lah. 556; Zahoor Ahmed v. Mehra through Legal Heirs and others 1999 SCMR 105; Abdul Ghafoor v. Haji Muhammad Hussain 1977 SCMR 217 Muhammad Hassan Khan and others v. Mirza Abdul Hamid 1981 SCMR 799; Khalid Hameed v. Additional District Judge Sahiwal and others 1991 SCMR 359; Municipal ,Committee Gujranwala through its Administrator v. Barkat Bibi and S others 1979 SCMR 264; Haji Fazal Karim v. Additional District Judge, Lahore and others PLD 1982 SC 306 and Muhammad Anwar v. Abdul Shakoor 1982 SCMR 1120 ref.

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

----S.17---Ejectment of tenant---Striking off defence---Tentative rent order, non-compliance of---Adjustment of rent from security deposit--­Tenant failed to deposit future rent as directed by Rent Controller, therefore, eviction order was passed against her---Plea raised by the tenant was that the rent for defaulted month could have been adjusted from the security deposit---Validity---No covenant in the tenancy agreement existed to the effect that in case of default adjustment of payment of rent could be made from the security deposit---No covenant in the tenancy agreement having been provided for such adjustment and no advance rent was deposited with the landlord hence no adjustment could be made towards rent of defaulted period from the security deposit.

Khadim Hussain v. Nasir Ahmad 2003 SCMR 1580 and Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190 rel.

Dr. Babar Awan, Advocate Supreme Court for Petitioner.

M. Akram Shaikh, Senior Advocate Supreme Court for Respondent.

Date of hearing: 6th October, 2004.

P L D 2005 Supreme Court 40

Present: Syed deedar Hussain Shah, Sardar Muhammad Raza Khan and Faqir Muhammad Khokhar, JJ

MUHAMMAD NAWAZ and another---Petitioners

Versus

THE STATE and others---Respondents

Criminal Petitions Nos. 199-L and 342 of 2002, decided on 20th October, 2004.

(On appeal from the judgment dated 11-2-2002 passed by the Lahore High Court, Lahore in Criminal Appeals Nos.577 and 584 of 1996).

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

----Ss. 302(a) & 302(b)---Re-appraisal of evidence---Grave and sudden provocation---Proof---Mitigating circumstances---Effect---Repeating of fire shots---Accused appeared at the scene already armed with lethal weapon like .12 bore shotgun and fired shots at injured prosecution witnesses and again fired fatal shot at the deceased who was running away to save his life---Accused did not cool down and kept on firing indiscriminately and caused injury to a lady also---Accused was convicted under S.302(b), P.P.C. and was awarded death sentence as Ta'zir which was maintained by High Court---Accused did not assail the conviction but sought reduction of sentence from death to life imprisonment---Plea raised by the accused was that the incident was a result of grave and sudden provocation and requirement of Qisas were not fulfilled---Validity---Although punishment as Qisas under S.302(a), P.P.C. was not warranted under law and circumstances, yet S.302(b), P.P.C. also contained the punishment of death as Ta'zir---Even if the requirements of Qisas in a particular case were not fulfilled, still the convict could be sentenced to death as Ta'zir under S.302(b), P.P.C.--­Provision of imprisonment for life given in S.302(b) P.P.C. could be resorted to only if any mitigating circumstance sanctioned by law 'or practice existed---Plea regarding mitigating stance was not proved which was neither reflected from prosecution evidence nor proved by the accused through defence evidence---Conduct of the accused at the place of occurrence had remained so grave, so desperate and so persistent that he could not now turn around and claim mitigation in the sentence--­Whole act of firing on the spot effective as well as fatal had been performed singularly by the accused---Supreme Court refused to show any leniency acid the accused deserved the normal penalty of death as Ta'zir---Death sentence awarded by Trial Court was maintained---Appeal was dismissed.

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

----Ss. 302(a) & 302(b)---Appreciation of evidence---Principle--Benefit of all favourable instances in prosecution evidence must go to accused regardless of whether he has taken any such plea or not.

(c) Evidence---

---- Suggestion during evidence---Effect---Mere suggestion denied by witness does not lead to any conclusion.

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

----S. 302(b)---Re-appraisal of evidence---Benefit of doubt---Mitigating circumstances---Role attributed to the acquitted accused was minor at the first instance and also was not, satisfactorily proved in all its required details---Some of the accused had done nothing effective and some were merely present at the spot---Effect---Trial Court had rightly acquitted the accused---Supreme Court declined to interfere with the order of acquittal passed by Trial Court---Appeal was dismissed.

Muhammad Munir Peracha, Advocate Supreme Court for Petitioner (in Cr.P. No.342 of 2002).

Nemo for Respondent (in Cr.P. No.342 of 2002).

Ibne Hassan, Advocate Supreme Court for Petitioner (in Cr.P.No.199-L of 2002).

Nemo for Respondents (in Cr.P.No.199-L of 2002).

Date of hearing: 20th October, 2004.

P L D 2005 Supreme Court 45

Present: Mian Muhammad Ajmal, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

MUHAMMAD ASLAM SUKHERA and others ----Petitioners

Versus

COLLECTOR LAND ACQUISITION, LAHORE, IMPROVEMENT TRUST, LAHORE and another---Respondents

Civil Review Petitions Nos. 1-L, 2-L and 3-L of 1998, decided on 15th October, 2004.

(On review from judgment dated 28-10-1997 passed by this Court in Civil Petitions. Nos.673, 674, 675-L of 1996).

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

----S.3(2), proviso ---Intra-Court Appeal---Bar to such remedy--­Applicability---Bar under proviso to S.3 (2) of Law Reforms Ordinance, 1972, to the remedy of Intra-Court Appeal, is in those cases in which the relevant law provides the remedies of appeal, revision or review.

(b) Words and phrases---

----"Original"---Meaning---Word "original" is susceptible to different meanings in the context of a particular statute---Word original' does not always meanfirst in order'.

Macmillan and Company Limited v. K. and J. Cooper AIR 1924 PC 75 and Re Oriental Bank 54 LJ Ch. 481 ref.

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

----S.3(2)---Expression original order'---Connotation---Expressionoriginal order' in S.3 (2) of Law Reforms Ordinance, 1972, was used in generic sense in contradistinction to orders passed in appeal, revision or review.

(d) Supreme Court Rules, 1980---

----O. XXVI, R.1---Review jurisdiction, exercise of---Principles:-

Following are the principles with regard to review judgment of the Supreme court.

Every judgment pronounced by Supreme Court is presumed to be considered solemn and final decision on all points arising out of the case.

(ii) If Court has taken a conscious and deliberate decision on a point of fact or law, a review petition does not lie.

(iii) Fact that view canvassed in the review petition is more reasonable than the view found favour with the Court in the judgment / order of which review is sought, is not sufficient to sustain a review petition.

Abdul Ghaffar Abdul Rehman v. Asghar Ali PLD 1998 SC 363 rel.

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

----Ss. 26 & 54---Constitution of Pakistan (1973), Art. 199---Supreme Court Rules, 1980, O.XXVI, R.1---Review of judgment---Filing of Constitutional petition instead of appeal---Petitioners being dissatisfied with the award of compensation, filed Constitutional petition before High Court and then filed Intra-Court Appeal---Constitutional petition as well as Intra-Court Appeal were dismissed by High Court and the judgments were maintained by Supreme Court---Validity---Petitioners failed to point out any apparent error or defect in the judgment sought to be reviewed--­Grounds urged by petitioners had already been considered by Bench of three Judges of Supreme Court---Petitioners, instead of filing appeal in High Court against award and then appeals to Supreme Court under S.54 of Land Acquisition Act, 1894, opted to file Constitutional petitions under Art. 199 of the Constitution for the reasons best known to them--­Judgment passed by Supreme Court did not suffer from any legal infirmity so as 'to justify a review---Petition was dismissed.

Haji Muhammad Saifullah Khan v. Federation of Pakistan and others PLD 1990 SC 79; Muhammad Aslam Sukhera and others v. Collector, Land Acquisition and others 1998 SCMR 167; Wasim Sajjad v. Federation of Pakistan through Cabinet Secretary PLD 2001 SC 233; Syed Ikhlaq Ahmed v. Administrator (Residual Properties) Additional Commissioner (Revenue), Lahore Division, Lahore and 3 others 2004 SCMR 413; Pakistan through Ministry of Finance and Economics Affairs and another v. FECTO Belarus Tractors Limited PLD 2002 SC 208; Federation of Pakistan through Secretary Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and others 1999 SCMR 2189; Farhat Ali Khan v. Ch. Muhammad Siddique and others 1998 SCMR 2190 and Mst. Zainab Khatoon v. Mst. Ghulam Fatima 1980 SCMR 331 ref.

Talib H. Rizivi, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioners (in all petitions).

Raja Abdur Rehman, A.A.-G. (On Court Notice).

Muhammad Rashid Ahmed, Advocate Supreme Court and Sh. Salahuddin, Advocate-on-Record for Respondent No.2 (in all petitions).

Date of hearing: 22nd June, 2004.

P L D 2005 Supreme Court 52

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

AYATULLAH DR. IMRAN LIAQUAT HUSSAIN ---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN, ISLAMABAD and another---Respondents

Civil Petition for Leave to Appeal No. 1106-K of 2002, decided on 18-8-2004.

(On appeal from the judgment of the High Court of Sindh, Karachi, dated 11-10-2002 passed in C. P. No. 1547-D of 2002).

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

----Arts.63, 199, 184 & 185(3)---Representation of the People Act (LXXXV of 1976), S. 14(5-A)---Disqualification for membership of Parliament---Constitutional petition before High Court--­Maintainability---Contention of the petitioner before the High Court was that the Election Commission of Pakistan be directed to reject nomination papers of all those candidates who were not faithful to the declaration by the Founder of Pakistan and did not bear true faith and allegiance to Pakistan and would not uphold the sovereignty and integrity of Pakistan, specially the candidate of one particular political party and those candidates who were holding tickets from said political party shall be strictly condemned to participate in the election of 10-10-2002 and their election campaign should be banned until the judgment of Constitutional petition be fulfilled---Petitioner in his arguments before the Supreme Court in petition for leave to appeal against dismissal of the Constitutional petition by High Court leveled a number of allegations against the Quaid of the political party and further contended that the legal and factual aspects of the controversy had not been appreciated in its true perspective by the High Court which resulted in serious miscarriage of justice; that proper opportunity of hearing was not afforded to the petitioner and the main contention as agitated by the petitioner that Quaid of the Political Party in question, who was anti of Pakistan and deadly against the Quaid-e-Azam Muhammad Ali Jinnah, had not been adverted to, which caused serious prejudice against the petitioner and Press clippings attached with the Constitutional petition and brought to the notice of the High Court to substantiate the case of petitioner, were ignored without any rhyme and reason, thus it was a case of misreading and non-reading of record and on that score alone the judgment of the High Court was liable to be set aside ---Validity---Held--­Provisions of Representation of the People Act, 1976 were capable enough to meet all sort of such eventualities which were never invoked by the petitioner at opportune moment who preferred to watch the entire process of elections till its conclusion as a silent spectator and woke up from deep slumber when all the democratic institutions such as National Assembly, Senate and Provincial Assemblies were functioning as a result of elections held in 2002---Petitioner could have very conveniently invoked the provision enumerated in S.14(5-A) Representation of the People Act, 1976 for initiation of appropriate action by the Election Tribunal being the concerned Constitutional forum having exclusive jurisdiction to dilate upon and determine such issue---Petitioner could have approached the High Court and Supreme Court after availing all the remedies available under the election laws for redressal of his grievance---Forum available in the hierarchy of election laws could not be by-passed without sufficient lawful jurisdiction which was lacking in the case---No doubt the allegations leveled against the Political Party in question, were very serious but genuineness and authenticity of such allegations could not be determined by the Supreme Court merely on the basis of Press Clippings and Speeches made on various occasions besides that all the elected members of Senate, National Assembly and Provincial Assemblies belonging to the said Political Party were not impleaded as a party and they could not be condemned unheard which would be in violation of principles or natural justice, fair play and equity and High Court, on this score alone could dismiss the Constitutional petition--­Contention that present petition for leave to appeal before the Supreme Court fell within the realm of "public interest litigation" was repelled because the public had exercised its right of franchise and elected their representatives who could not be deseated on the basis of "public interest litigation" and prescribed procedure under relevant election laws were to be followed---Petition for leave, to appeal was dismissed in circumstances.

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

----Art. 63---Disqualification for membership of Parliament---Scope and applicability of Art.63 of the Constitution.

Article 63 of the Constitution provides mode to oust a member of the Parliament if he incurs disqualification subsequent to his election as member. The Speaker of the National Assembly or the Chairman of the Senate as the case may be, may .make a reference to the Election Commission for decision of the question as to whether a member who had suffered disqualification ceased to hold his office or not. When a matter is brought to the notice of the Speaker with reference to the disqualification of a member, he would have to apply his mind to the fact whether a question such as contemplated in, Article 63(2) had arisen or not. For instance, if the information upon which he was, required to make a reference was un relatable to any of the grounds contained in sub­ clauses (a) to (e) or clause (i) of Article 63 of the Constitution, he would be entitled to refuse to make a reference. However, his function under Article 63(2) is clearly of a very limited character. He will no doubt apply his mind to the very limited point whether a question had or had not arisen. In fact, in a proper case, he might be directed by the superior Courts to make a reference where he had refused to do so, if a petition was brought for that relief.

Ghulam Muhammad Mustafa Khar v. Chief Election Commission, of Pakistan and others PLD 1969 Lah. 602 ref.

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

----Arts. 63 & 113---Disqualification for membership of Parliament or Provincial Assembly---If a question arises whether a particular person has incurred any of the disqualifications mentioned in Arts. 63(1)(a) to (p) and 113, Constitution, then the jurisdiction to decide the question, via the Speaker or the Chairman of the Senate, would be that of the Chief Election Commissioner, whose jurisdiction would be exclusive in the matter and if the latter is of the opinion that the member has become disqualified, the member will cease to be a member of the House--­Contention that members of the National Assembly, Senate and Provincial Assemblies could be disqualified by the Supreme Court in exercise of the powers conferred upon it under Art.63 of the Construction, was repelled.

President v. Benazir Bhutto PLD 1991 Kar. 164 and Muhammad Abdul Haque v. Fazlul Qadir Chaudhry PLD 1963 Dacca 669 ref.

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

----Arts. 225 & 199---Election dispute---Exercise of power under Art.199 of the Constitution is subject to Constitution including Art.225 of the Constitution---Exercise of jurisdiction by High Court under Art. 199 of the Constitution---Scope---Principles.

Article 225 of the Constitution is expressed in the negative form to give exclusive jurisdiction in election cases to the Tribunals appointed by the Election Commission thus to exclude or oust the jurisdiction of alt Courts in regard to election matters and to prescribe only one anode of challenge. If the election dispute is about the conduct or validity of election, it could only be challenged, through election petition, a statutory remedy provided under the law. The Constitution itself prohibits the disputes relating to corrupt or illegal practices, being called in question by any other mode or manner except by way of election petition under the provisions of the Representation of the People Act, 1976. Therefore, writ jurisdiction was barred as other adequate remedy was available. However, the bar created by Art.225 does not apply where the matter has once been finally decided by the Tribunal created for the purpose and it is only such disposal which is being questioned in the writ proceedings. Hence, there is no bar to an application to the High Court under Art. 199 of the Constitution against the decision of an Election Tribunal and the High Courts may issue appropriate writs of mandamus or certiorari in such eases.

As a rule where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute must be availed of Hence ordinarily the Court, in exercise of its writ jurisdiction, declines to interfere in cases of section because it is desirable that the decision on a matter of disputed election should, as soon as possible become final and conclusive so that the, constitution of a House or Assembly may be distinctly and speedily known. There is another reason why the Court declines to enter into these questions because in such cases there are found to be serious disputes on questions of fact which cannot be properly decided in writ jurisdiction. If it was to do so, it would enter into a field of investigation which is more appropriate for a Tribunal rather than for a Court exercising the exceptional power of issuing writs. The Court has therefore avoided interfering with election disputes, although it cannot be said that the writ jurisdiction of the Court cannot at all be attracted in such cases. For instance, where actions are characterized as being done in bad faith, the exercise of public power may be called in questions in writ proceedings. So far as the dispute of pre-election qualifications or disqualifications of members is concerned, it could only be determined in accordance with the Election Law in force and the High Court in its jurisdiction under Article 199 of the Constitution is not competent to determine such disputes.

All steps in conduct of election could be challenged only by way of election petition by a rival candidate. The blanket cover is, therefore, provided to all litigable challenges in respect of every kind of order passed in the course of election process because the provisions of Article 199 were subject to Constitution including Article 225 and exercise of power under Article 199 could not be placed on higher footing than that contained under Article 225 of the Constitution. As filing of nomination form containing false information, would be a step in the conduct of election and could only be assailed through election petition, a statutory remedy has been provided under the law with mandate under Article 225 of the Constitution.

High Court, under Article 199 of the Constitution has no power to interfere with the process of election at an intermediate stage or to question the correctness of the decision of the Election Tribunal on any ground whatsoever upon an election petition filed to question the validity of the election. Exercise of power under Art. 199 cannot be placed on any higher footing than that emanating from Art.225 of the Constitution. Article 225 is expressed in the negative form to give exclusive jurisdiction to the Tribunals appointed by the Election Commission and thus to exclude or oust the jurisdiction of all Courts in regard to election matters and to prescribe only one mode of challenge. The Election Tribunals are final judges of facts as well as of law, including the interpretation of law and, it would be incorrect to say that their determinations are "without lawful authority" because the High Court does not agree with them. All questions of law which have to be decided for determination of the election disputes must be decided and finally determined only by the authorities mentioned in Article 225. The Article is intended to protect the determinations of the authorities designated in it from being subjected to judicial review by the High Court under Article 199 on grounds such as an error of law apparent on the face of the record. Legislature expects every statutory authority to act within the limits of the law and if any such authority steps out of these limits or refuses to function as the .law requires it to function and it proceeds to make an order not within the limits of the law; such order can be declared under Art. 199 as without lawful authority and to be of no legal effect. Therefore, orders passed even by election, authorities which are outside the limits of the law, are not immune from challenge and correction, by the High Court under Article 199. Undoubtedly, in doing so the High Court will exercise its jurisdiction with extreme circumspection, in full consciousness of the normal rule that it should not interfere with the process of elections at an intermediate stage; but leave it to the Tribunal to correct all errors committed after the election is over. Where a finding of fact given by the Election Tribunal is based on no evidence at all, it is not immune from review of High Court.

Election Commission of Pakistan v. Javed Hashmi and others PLD 1989 SC 396; Muhammad Tariq Chaudhry v. Syed Masroor Ahsan, PLD 1991 Lah. 200; Niaz Ahmed Khan, Advocate, v. Province of Sindh PLD 1977 Kar: 604; Muhammad Sadique v. Muhammad Hussain 1983 CLC 2734; Qazi Ghulam Ahmed, v. G.F. Elahi Election : Tribunal Chakwal PLD 1962 Lah. 786; Shankar v. Returning Officer, Kolaba AIR 1952 Bom. 277; A.M. Khan Leghari, v. Government of Pakistan PLD 1967 Lah. 227, Fazl-I-Mehmood v. Ch. Muhammad Hussain Chatha PLD 1964 Lah, 74; Mian Ghulam Dastagir Bari, v. Rai Salahuddin v. PLD 1987. Lah. 39; Mian Jamal Shah v. The Member Election Commission PLD 1996 SC 1 and Walayat Khan v. Ghulam Muhammad 1968 SCMR 109 ref.

Petitioner in person.

Nemo for Respondents.

Syed Zaki Muhammad Dy. A-G. and Anwar Mansoor Khan, A.-G. Sindh (On Court Notice).

Date of hearing: 18th August, 2004.

P L D 2005 Supreme Court 63

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

PIR MAZHARUL HAQ and others---Appellants

Versus

THE STATE through Chief Ehtesab Commissioner, Islamabad---Respondent

Criminal Appeals Nos. 247, 248 and 260 of 1997, decided on 5-11-2004.

(On appeal from the judgment of the High Court of Sindh, Karachi dated 20-11-1997 passed in Ehtesab Reference No.8 of 1997).

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

----Art.68---"Previous bad character"---Relevance---Safe course to be adopted by the Court---Principles.

The exclusionary rule of evidence may appear to be too formal arid somewhat strict and inflexible, but it has its roots deep down in law. It is no disproof of good character that a man has been suspected or accused of a previous crime. The only safe course, therefore, is to found the verdict exclusively on evidence duly received and on inferences logically to be drawn from such evidence...And no evidence is to be received which is second hand rendering of testimony not produced, though producible, by which higher degree of certainty could be secured.

The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of error and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best brought to light and exposed by the test of cross-examination.

A person who relates a hearsay is not obliged to enter into any particulars, to answer any questions, to solve any difficulties, to reconcile any contradictions, to explain any obscurities, to remove any ambiguities. He entrenches himself in the simple assertion that he was told so, and leaves the burden entirely on his dead or absent author.

Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869; Abdul Nabi v. State 2004 SCMR 1510; Monir on Law of Evidence; Wharton "Criminal Law Evidece, 9th Edn. and Theory of Hearsay Rules in S.1362 ref.

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

----Art.132---Where no opportunity to cross examine the deponent has been given his testimony would be inadmissible.

Muhammad Afzal v. Muhammad Altaf Hussain 1986 SCMR 1736 ref.

(c) Criminal trial---

----Accused must always be presumed to be innocent and the onus of proving everything essential to the establishment of the offence is on the prosecution---All that May be necessary for the accused is to offer some explanations of the prosecution evidence and if the same appears to be reasonable even though not beyond doubt and to be consistent with the innocence of the accused, he should be given the benefit of it--­Principles.

Case-law ref

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

----S. 14---Presumption against accused accepting illegal gratification--­Scope---Conviction cannot be award to the accused for the simple reason that S.14, National Accountability Ordinance 1999 cannot be used to undermine the rule of law that save in every, exceptional class of cases the burden to prove the guilt of an accused always rests on the prosecution and it does not cast any burden on an accused person to prove that no crime was committed by him by proving facts specially within his knowledge nor does it warrant the conclusion that if anything is unexplained which the court thinks the accused could explain he ought therefore to be found guilty Ordinary rule that applies to criminal trials viz. that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the rule of evidence contained in S.14, National Accountability Ordinance 1999 which cannot be used to make up for the inability of the prosecution to produce evidence of circumstances necessary to prove the guilt of the accused it is only in cases where the facts proved by the evidence give rise to a reasonable inference of guilt unless the same is rebutted that such inference can be negatived by proof of some fact which in its nature can only be within the special knowledge of the accused—If the prosecution fails to prove the essential ingredients of the offence no duty is cast on the accused to prove his innocence.

Shambu Nath Mehra v. State 1956 SC 404; E v. Santa Singh 1944 L 339; State v. Pranjivan Gandalal 1952 Sau. 35; J.A. Humphrey v. Crown PLD 1952 L. 623; E v. Damapala 1937 R.83; Kanakasabai Pillai v. E 1940 M.1; Senerviratue v. R. 1936 PC 289; Attygalie v. R 1936 PC 169; Raghunath Gope v. E 1941 P 175; Mattial Chasravarty v. The King 1949 C 586; Lachman Singh v. The King 1949 C 235 and Narayanan v. Executive Officer, ILR (1964) 1 Ker. 177 ref.

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

----S. 14---Presumption against accused accepting illegal gratification--­Scope---Every accused who faces trial in the Accountability Court or against whom a Reference has been sent the presumption as envisaged in S.14 of the National Accountability Ordinance, 1999 would not start running against him---Where the prosecution has failed to discharge the onus of proof by adducing cogent, concrete and forthright evidence the presumption of guilt would not arise against him and thus the question of conviction would not arise---In no circumstances the defence should be expected to prove the accusation.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 and Rehmat v. State PLD 1977 SC 515 ref.

Aitzaz Ahsan, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellant (in Cr.A. No.247 of 1997).

Kh. Naveed Ahmed, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate-on-Record for Appellant (in Cr.A. No.248 of 1997).

Abdul Rahim Qazi, Advocate Supreme Court and Raja Abdul Ghaffor, Advocate-hit-Record for Appellant. (in Cr.A. No.260 of 1997).

Mrs. Naheeda Mehboob Elahi, Standing Counsel for the State, Ch. Akhtar Ali and M.A.Zaidi, Advocates-on -Record for Respondent (in all Appeals).

Dates of hearing: 10th, 11th and 12th May, 2004.

P L D 2005 Supreme Court 86

Present: Nazim Hussain Siddiqui, C J

THE STATE---Petitioner

Versus

NASIR JAVED RANA, CIVIL JUDGE 1ST CLASS/MAGISTRATE SECTION 30, RAWALPINDI ---Respondent

Suo Motu Case No.1 of 2004, decided on 26th October, 2004.

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

----S. 167---Penal Code (XLV of 1860), Ss.420, 471 read with S.468, P.P.C.---High Court (Lahore) Rules and Orders Vol. III, Chap. 9, Part B, Rule 7---Constitution of Pakistan (1973), Art. 184---Suo Motu action by Supreme Court---Remand---Magistrate who grants remand is under legal duty to satisfy himself if under the circumstances remand is to be granted or not---Liberty of a person cannot be curtailed and he has a legal right to explain his point of view before the Magistrate when remand is to be granted and it is a sacred duty of a Magistrate to safeguard the rights of the people---Remand is not to be granted automatically after the police makes such a request---Remand order would be illegal if at the time of its passing, accused was not produced before the Court, which passed the remand order---Magistrate, in the present case, wherein dispute was of civil nature about a house, emanating from a general power of attorney executed as far back as eight years and matter was finally decided by the Supreme Court, without applying his mind and to favour, somebody; granted physical remand of the accused, a senior Advocate of Supreme Court, though the accused was not produced in the Court---Validity--Magistrate, in circumstances, had deliberately mis conducted himself and passed an illegal order, handing over a senior lawyer in police custody in an atmosphere and in a manner, which had seriously jeopardised the sanctity attached to a Court of law and had not observed the legal formalities before passing the remand order---Magistrate, not only passed a wrong order but also took a brazen-faced stand that the accused was produced before him--­Magistrate had a strong tendency of committing any mischief and was absolutely unfit for judicial service, his judicial powers were ordered to be withdrawn by the Supreme Court with a direction that another judicial officer be posted in his place---Supreme Court referred the matter to the High Court for further action against the Magistrate according to law and directed that the proceedings shall be concluded as early as possible, preferably within two months--Employees, serving in the Court of Magistrate, who had filed false affidavits just to please the Magistrate were ordered to be suspended forthwith by the District-and Sessions Judge and he should take disciplinary action against them and such proceedings shall be completed as early as possible, but not' later than three months from the receipt of the present order of the Supreme Court---Advocates who had filed false, affidavits, were guilty of grave indiscipline and misconduct, Provincial. Bar Council shall proceed against them according to law and such proceedings were directed to be concluded as early as possible, but not later than four months, till the proceedings were concluded, these Advocates were restrained by the Supreme Court from appearing before any Court of law.

Farooq Badar v. Inspector-General of Police, West Pakistan PLD 1969 Lah. 1.020; Muhammad Siddiq v. Province of Sindh PLD 1992 Kar. 358; Senator Asif Ali Zardari.v. State 2000 MLD 921; Allah Rakhi v. S.S.P. 2000 PCr.LJ 1576; Asma Khatoon v. Shabbir Hussain Shah PLD 1996 Kar, 517 and Abdul Majid v. Abbas Hussain Shah 1995 SCMR 429 ref.

Habib-ul-Wahab-ul-Khairi (present in person).

Sh. Muhammad Saleem, Muhammad Aamir Naeem, Mrs. Farhat Zafar, Ms. Irshad, Sh. Anwarul Haq, Advocates and Engineer Usman Hameed Butt and Abdul Aleem Zaigham (in person).

Rana Nasir Javed, Civil Judge 1st Class/Magistrate, Section 30, Rawalpindi (present in person).

Ms. Afshan Ghazanfar, A.A.-G. for the State.

Date of hearing: 19th October, 2004.

P L D 2005 Supreme Court 93

Present: Iftikhar Muhammad Chaudhry, Sardar Muhammad Raza Khan and Falak Sher, JJ

MUHAMMAD YOUNAS and others---Petitioners

Versus

THE STATE---Respondent

Criminal Review Petition No.8 of 2000, decided on 25th November 2002.

Supreme Court Rules, 1980-----

---O. XXVI, R.6 & O.XXXIII, Rr.1 & 6---Constitution of Pakistan (1973), Art. 188---Review by Supreme Court---Advocate Supreme Court had not moved an application seeking his exemption from addressing the Court in the Review Petition in terms of O.XXVI, R.6 of the Supreme Court Rules, 1980, but the application for the purpose on which order of the Supreme Court was passed was filed under the residuary provision i.e. O.XXXIII, R.1, read with R.6 of Supreme Court Rules, 1980--­Validity---In presence of specific provisions of law the residuary provision generally meant to exercise inherent jurisdiction like S.151, C.P.C. was .not invoked, therefore, the application submitted under O.XXXIII, Rr.1 & 6 of the Supreme Court Rules, 1980 in this behalf was not competent---Principles---Supreme Court, in the interest of justice; reviewed its earlier order on the application under O.XXXIII, Rr.1 & 6 of the Rules by recalling the same.

In the present case, Advocate Supreme Court had not moved an application seeking his exemption from addressing the Court in the Review Petition in terms of Order XXVI, rule 6 of the Supreme Court Rules. The application on which order was passed by the Court was filed under the residuary provisions i.e. Order XXXIII, rule 1 read with Rule 6 of the Rules'. In presence of specific provisions of law the residuary provision generally meant to exercise inherent jurisdiction like section 151, C.P.C. is not invoked, therefore, the application submitted in this behalf by the counsel was not competent.

Supreme Court has always discouraged substitution of another counsel at the stage of hearing of the Review Petition, definitely with a view that if such practice is adopted, there would be no end to litigation and replacement of original counsel by another counsel at the Review stage for the reasons that he intends to argue a substantial question of law having public importance, would lead to no end to the litigation.

The Order XXVI, rule 6 of the Supreme Court Rules manifestly insists upon the presence of the counsel who has originally argued the case to address the Court so that -to could be confined to the arguments which he has earlier addressed and if a new Advocate is allowed, perhaps he would be urging altogether new points treating as if he is addressing arguments in appeal and not in Review Petition, Besides it, finality is always attached to the judgment of Supreme Court and in view of the limited scope of the Review under Article 188, of the Constitution of Pakistan in review proceedings case cannot be reopened for the lengthy arguments on the points on which final arguments I were not addressed.

Held: It would be in the interest of justice to review earlier order by recalling the same. Accordingly objection raised was sustained.

Abdul Majeed and another v. Chief Settlement Commissioner and others 1980 SCMR 504; Waheeduddin Kitchlew v. Murree Improvement Town Trust, and others 1981 SCMR 611; Rashid and another v. The State 1983 SCMR 295; Mst. Maqbool Begum and others v. Gullan and others 1983 SCMR 903 and Jiwana and others v. Fazal Rahim Khan and others 1984 SCMR 1332 ref.

M. Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Muhammad Munir Bhatti, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioners.

S.M.Zafar, Senior Advocate Supreme Court; Tariq Mehmood Khokhar, Addl. A.-G., Punjab and Ch. Akhtar Ali Advocate-on-Record for the Complainant.

Date of hearing: 25th November, 2002.

P L D 2005 Supreme Court 99

Present: Rana Bhagwandas, Hamid Ali Mirza and Sardar Muhammad Raza Khan, JJ

Mrs. ALIA TAREEN, MANAGING DIRECTOR, PAKISTAN GENERAL HOSPITAL, QUETTA and others‑‑‑Appellants

Versus

AMANULLAH KHAN, ADVOCATE and 3 others‑‑‑Respondents

Civil Appeals Nos. 1492 of 1997 and 1311 of 1998, decided on 12th October, 2004.

(On appeal from a common judgment dated 1‑12‑1997 passed by the High Court of Balochistan, Quetta in R.F.As. Nos.28 and 41 of 1996).

Per Sardar Muhammad Raza Khan, J; Rana Bhagwandas, J. agreeing‑‑Hamid Ali Mirza, J. Contra—

(a) Torts‑‑

‑‑‑‑ Suit for damages grounded on the negligence of doctors and hospital administration, who were professional in their trade alleging that in a delivery case a specific medicine was administered to the lady which caused rupture of her uterus resulting in her death‑‑‑"General damages" and "special damages"‑‑‑Definition‑‑‑Such special damages must be specifically pleaded, and proved‑‑‑Wrong done to the plaintiff, in a suit for damages, must be proved to be immediate, direct and proximate result of the act or acts of negligence attributed to the defendant‑‑­Standard of care to be observed by a professional‑‑‑Degree‑‑‑Doctor or Surgeon not to be held to be negligent if he acted in accordance with the practice accepted at a relevant time as proper by a responsible body of medical opinion, irrespective of the fact that other doctors might have adopted different practices in similar conditions‑‑‑When the actions of a doctor or any other like professional are to be scrutinized in a claim for damages, the Court has necessarily to see as to whether he acted with the utmost care that he was required to observe and with the utmost skill that he possessed‑‑‑Such professional is expected that he should also foresee certain consequences being probable in the circumstances‑‑­Principles‑‑‑Plaintiff had failed to prove that the patient died of rupture of the uterus or that the rupture had at all taken place‑‑‑No act of defendants either of negligence or of omission was proved to have been the direct and immediate result of the death of the lady‑‑‑Supreme Court accepted appeal, set aside the impugned judgment and the plaintiff's suit for damages was dismissed.

The long and short of what is extensively given in the plaint, is that the Caesarian Section Operation was conducted, the baby was delivered alive but after that when the patient was shifted to the room, her condition deteriorated, she started bleeding and ultimately she breathed her last. The baby was normal and healthy. It is said that prior to and after operation, such drugs were administered to the patient which are never given in the circumstances. The cause of death is alleged to be the rupture of uterus and post partum shock. With such allegations and lengthy background given in the plaint, the husband of deceased lady brought a suit for damages against the hospital, as such, the Managing Director, Administrator of the Hospital and the Gynaecologist for the recovery of a sum of rupees ten million as damages.

The defendants in their respective and equally lengthy written statements totally denied the allegations brought forth by the plaintiff. They pleaded that ‑the hospital was a well‑equipped renowned hospital where innumerable delivery cases and Caesarian Section Operations have been and are being conducted day in and day out. That Gynaecologist being the family doctor of the plaintiff had conducted many such cases of his family. That she had a long practical experience of 27 years to her credit as the leading Gynaecologist. That there were two sets of Anaesthesia Apparatus available in the Hospital out of which one had been taken for repairs while the other was available in perfectly functional condition but the available Anaesthetist expressed her inability to work on it and hence the patient was to be taken to another renowned hospital in the city.

The present one is a suit for damages grounded on the negligence of the defendants who are professional In their trade.

Damages in the Law of Torts are of numerous kinds but in the present case the kinds relevant are general damages and special damages. The terms general damages are defined as, " without reference to the special character, condition, or circumstances of the plaintiff", the general damages are implied or presumed " to have accrued from the wrong complained of, for the reasons that they are its immediate, direct, and proximate result, or such as necessarily result from the injury, or such as did in fact result from the wrong, directly and proximately. " The term "special damages" is defined as "those which are the actual, but not the necessary, result of the injury complained of, and which in fact follow it as a natural and proximate consequence in the particular case, than is, by reasons of special circumstances or conditions." Such special damages must be specially pleaded and proved. This brings us to the conclusion that in a suit for damages, the wrong done to the plaintiff must be proved to be the immediate, direct and proximate result of the act or acts of negligence attributed to the defendants.

It is expected of a professional man that he should show a fair, reasonable and competent degree of skill. It is not required that he should use the highest degree of skill, for there may be persons who have higher education and greater advantages that he has, nor will he be held to have guaranteed a cure. An example is furnished to the effect that a barrister is not expected to be right: it is enough that he exercises reasonable care. So a medical practitioner should not be found negligent simply because one of the risks inherent in, an :operation of that kind occurs, or because in a matter of opinion he legitimately took a view which unfortunately happened to produce an adverse result, in the particular circumstances.

The standard of care to be observed by a professional has always been that of the ordinary skilled person exercising and professing to have that special skill. A Doctor or surgeon was not to be held negligent if he acted in accordance with the practice accepted at a relevant time as proper by a responsible body of medical opinion, irrespective of the fact that other doctors might have adopted different practices in similar conditions.

It is absolutely necessary that the proof of that fault or omission should be one of two kinds, either to show that the thing which he did not do was a thing which was commonly done by other persons in like circumstances, or to show that it was a thing which was so obviously wanted that it would be folly in anyone to neglect to provide it.

When the actions of a doctor or any other like professional are to be scrutinized in a claim for damages, the Court has necessarily to see as to whether he acted with the utmost care that he was required to observe and with the utmost skill that he possessed.

When professionals like one in the present case are in action, it is expected of them that they should also foresee certain consequences being probable in the circumstances. Such test involves two propositions: first, if a consequence which actually results from the defendant's tort is a probable or foreseeable consequence, then the defendant may be liable; second, if a consequence which actually results from the defendant's tort is an improbable or unforeseeable consequence, then the defendant is not liable.

One must not, therefore, find him negligent simply because something happens to go wrong; if, for instance; one of the risks inherent in an operation actually takes place or some complication ensues which lessens or takes away the benefits that were hoped for, or if in a matter of opinion he makes an error of judgment, one should only find him guilty of negligence when he falls short of the standard .of a reasonably skilful medical man. In short, when he is deserving of censure, for negligence in a medical man, is deserving of censure.

But where the conduct of doctor, or indeed of any professional man, is, concerned, the circumstances are not so precise and clear‑cut as in the normal case of negligence. In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care.

First comes the allegation that the doctor incharge had administered syntosinon that caused the rupture of uterus. From the evidence on record it is quite apparent that so long as the patient remained in the Hospital and even after when she was shifted to another Hospital, no such complication had arisen except that the doctor, in her experience and opinion, considered the caesarian section operation to be the need of the moment. It is also proved from the record that no rupture of uterus had taken place so long as the patient remained at the first Hospital and hence the administration of syntosinon cannot be blown out of proportions. It is a normal drug (synthetic exytocic) administered for inducing uterine contractions and is always administered along with dextrose solution. When the patient reached the second Hospital, a treatment chart was prepared where the diagnosis was only given as caesarian section. No mention at all is there of the rupture of uterus, so much so, that even .in the said Hospital syntosinon was prescribed. No untoward incident thus occurred due to the administration of syntosinon.

In cases of damages the act complained of must be the direct and immediate result of the omission. In the present case the death has never beep the direct, and immediate result of the non‑availability of any particular anaesthesia machine. The shortcoming at one Hospital was met with at the other Hospital and the child was duly delivered through caesarian section. The mishap is never proved to be the direct and immediate result of carriage of the patient, as alleged, through Suzuki van which, on the other side, is pleaded to be a complete Ambulance as required.

Rupture of uterus is of two kinds; one during pregnancy and the other during labour. The present case is not one of rupture during pregnancy and one can skip over it. Rupture during labour is caused by (i) obstructed labour, (ii) intrauterine manipulation (iii) forcible dilation of the Cervix (iv) injudicious use of oxytocic drugs (v) a weak scar in the uterus after previous caesarian section etc. and (vi) degeneration of uterine muscle.

In the present case the previous three deliveries of patient were normal and hence there was no scar of caesarian section leading to any possibility of the rupture. It has also come on record that up to the time the patient reached the other Hospital no rupture had taken place. It has also come in evidence from the mouth of professional witnesses and even admitted by the plaintiff's witness, that the child cannot remain alive if the rupture of uterus takes place. Due to rupture, the fetus is thrown into body cavity and due to lack of blood and oxygen, the fetus dies there and then. In the present case the baby girl was delivered alive and healthy. The possibility of rupture of uterus is, therefore, excluded altogether.

Cause of death can only be gathered safely through a postmortem examination which was never conducted in the instant case.

Black's Law Dictionary 5th Edn., pp.353, 354; Law of Torts, 20th Edn. By Heuston and Buckley (SIR 1994); Morton v. William Dixon Ltd. (1909 SC 807, 809) and Jackson and Powell on Professional Negligence 4th Edn. London (Sweet & Maxwell, 1997) ref.

(b) Medical jurisprudence‑-----

‑‑‑‑ Rupture of uterus‑‑‑Kinds‑‑‑Causes of rupture of uterus during labour enumerated.

Rupture of uterus is of two kinds; one during pregnancy and the other during labour. The present case is not one of rupture during pregnancy and one can skip over it. Rupture during labour is caused by (i) obstructed labour, (ii) intrauterine manipulation (iii) forcible dilatation of the Cervix (iv) injudicious use of oxytocic drugs (v) a weak scar in the uterus after previous caesarian section etc. and (vi) degeneration of uterine muscle.

(c) Medical jurisprudence‑‑‑

‑‑‑‑ Rupture of uterus‑‑‑Effect on delivery of the baby stated.

In the present case the previous three deliveries of patient were normal and hence there was no scar of caesarian section leading to any possibility of the rupture. It has also come on record that up to the time the patient reached the other Hospital no rupture had taken place. It has also come in evidence from the mouth of professional witnesses and even admitted by the plaintiff's witness, that the child cannot remain alive if the rupture of uterus takes place. Due to rupture, the fetus is thrown into body cavity and due to lack of blood and oxygen, the fetus dies there and then. In the present case the baby girl was delivered alive and healthy. The possibility of rupture of uterus is, therefore, excluded altogether.

(d) Medical jurisprudence‑‑‑

‑‑‑‑ Post‑mortem‑‑‑Cause of death can only be gathered safely through a post‑mortem examination.

Per Hamid Ali Mirza, J.‑‑Contra.—

[pp. 122, .125,128, 131, 132,133, 134, 135, 136, 137, 138, 140, 143, 144, 145, 146,: 150, 151,. 152] O, P, Q, R. S. T. U, V, W, X, Y, Z, AA, BB, CC, DD, EE, FF, GG, HH, II, JJ, KK, LL, MM, NN, OO, PP, QQ, RR & SS

Haji Salman Ali & Co. v, Province of Balochistan through Secretary Irrigation & Power PLD 1994 Quetta 13; Kayumarz v. Messrs ­Mohammadi Tramway Company PLD 1968 Karachi 376; Government of the Punjab through Secretary Health v. Salamat Ali Khan PLD 1991 SC 699; Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and another AIR 1969 SC 128; Achutrao Haribhau Khodwa & others v. State of Maharashtra and others 1996 PSC 1200; Lindsey County Council v. Marshall 1936 AER (Vol.2) 1076; Gold and others v. Essex County Council 1942 AER (Vol.1): 326; Collins v. Hertfordshire County Council and another 1947. AELR (Vol.1) 633; Cassidy v. Ministry of Health 1951 AELR (Vol.1) 574; Jones v. Manchester Corporation and others 1952 AELR (Vol.2) 125, Butterworth Medical Dictionary; Chambers Dictionary; Oxford Advanced Learner's Dictionary; Blakiston's Gould Medical Dictionary; Halsbury's Laws of England, 4th Edn. Vol. 30, paras.34 & 40; Morton v. William Dixon Ltd. 1909 SC 807; Munro Kerr's Operative Obstetrics 8th Edn.; Medical Journal, March, 1997 Vol. 13(2); Medical Journal by Talat J. Hasan, Razia Korejo and Sadiqa N. Jafri; Journal by Pakistan Medical Association, Vol. 43, No.9, Sep. 1993 by Nusrat H. Khan of Dow Medical College, Civil Hospital Karachi; Professional Negligence and Liability Reports by Andrew Tettenborn published by Sweet and Maxwell Galloway (or Hunter) v. Hanley decided on Feb. 4, 1955 and Bolam v. Friern Hospital Management Committee, decided on Feb. 26, 1957; Dr. Atta Muhammad Khanzada v. Muhammad Sherin 1996 CLC 1440; Chin Keow v. Government of Malaysia and another 1967 WLR 813 and Roe v. Minister of Health and another Wooley v. Same 1954 2 QB 66 ref.

Haji Salman Ali & Co. v. Province of Balochistan through Secretary Irrigation and Power PLD 1994 Quetta 13 and Kayumarz v. Messrs Mohammadi Tramway Company PLD 1968 Kar. 376 distinguished.

Syed Iftikhar Hussain Gillani, Advocate Supreme Court with Mehr Khan Malik, Advocate‑on‑Record for Appellant (in Civil Appeal No. 1492 of 1997).

M. Shakeel Ahmed; Advocate Supreme Court for Respondent No, (in Civil Appeal NO. I492 of 1997).

Nemo for Respondents Nos. 2 and 3 (in Civil Appeal No.1492 of 1997)

Sh. Khizar Hayat, Advocate Supreme Court with Imtiaz Muhammad Khan, Advocate‑on‑Record for Appellant (in Civil Appeal No. 1492 of 1997).

Sh. Khizar Hayat, Advocate Supreme Court with Imtiaz Muhammad Khan, Advocate‑on‑Record for Respondent No.4 (in Civil Appeal No.1311 of 1998).

M. Shakeel Ahmed, Advocate Supreme Court for Respondent No. (in Civil Appeal No. 1311 of 1998).

Respondents Nos. 2 and 3: Ex parte (in Civil Appeal No. 1311 of 1998)

Dates of hearing: 16th to 18th February, 2004.

P L D 2005 Supreme Court 153

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Tassaduq Hussain Jillani, JJ

BOARD OF GOVERNORS, AREA STUDY CENTRE FOR AFRICA AND NORTH AMERICA, QUAID‑E‑AZAM, UNIVERSITY, ISLAMABAD and another‑‑‑Petitioners

Versus

Ms. FARAH ZAHRA‑‑‑Respondent

Civil Petition No.2196 of 2004, decided on 5th November, 2004.

(On appeal from the judgment/order dated 1‑9‑2004 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in I.‑C. A. No. 177 of 2004).

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

‑‑‑S. 3‑‑‑High Court (Lahore) Rules and Orders, Vol. V, Chap.I, R.4‑‑­Intra‑Court Appeal‑‑‑Certified copy of judgment‑‑‑Requirement‑‑­Attaching of certified copy of order or judgment is not required under Chap.I, R.4 of High Court (Lahore) Rules and Orders, for filing Intra‑Court Appeal.

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

‑‑‑S. 3‑‑‑High Court (Lahore) Rules and Orders, Vol. V. Chap. I, R.4‑‑‑Limitation Act (IX of 1908). S.5‑‑‑Intra‑Court Appeal‑‑­Condonation of delay‑‑‑Misconception of law‑‑‑Appeal filed by appellant was time‑barred‑‑‑Plea raised by the appellant was that the delay was caused due to obtaining certified copy of judgment passed by High Court‑‑‑Validity‑‑‑Ordinarily Supreme Court would not have excluded the period spent for obtaining certified copy of the judgment but both the parties were under the impression that a certified copy was required for filing Intra‑Court Appeal and that was the reason that issue of obtaining certified copy was neither raised by the respondent before Division Bench of High Court which passed the order nor in the concise statement filed by the respondent before Supreme Court nor even during arguments‑‑‑Such mistake, therefore, was bona fide and Supreme Court excluded the period spent for obtaining certified copy of the judgment while computing the period of limitation‑‑‑Order passed by Division Bench of High Court was set aside and the appeal was remanded to High Court for decision afresh.

PLD 1957 Kar. 843; PLD 1960 Kar. 741; 1975 SCMR 445; 1983 CLC 2853; PLD 1993 Lah. 141; 1971 SCMR 779; 1999 SCMR 108; 2000 SCMR 354 and 2003 SCMR 1772 ref.

(c) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S.5‑‑‑Condonation of delay ‑‑‑Suo motu powers of Court‑‑‑In suitable cases, Court for reasons to be recorded, can suo motu enlarge time and condone delay.

Sarwar Khan v. Mir Ali and 10 others 1980 CLC 110 rel.

Gulzarin Kiani, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate‑on‑Record for Petitioners.

Syed Iqbal Haider, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondent.

Date of hearing: 21st October, 2004.

P L D 2005 Supreme Court 160

[Shariat Appellate Jurisdiction]

Present: Abdul Hameed Dogar, Chairman, Muhammad Nawaz Abbasi, Mian Shakirullah Jan, Dr. Allama Khalid Mahmud and Dr. Rashid Ahmed Jullundhari, Members

GUL SUBHAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Shariat Appeal No.33 of 2003, decided on 12th October, 2004.

(On appeal from the judgment dated 13‑12‑2000 of the Federal Shariat Court in Cr. Rev. No.12/I/99).

Prohibition (Enforcement of Hadd) Order (IV of 1979)‑‑‑

‑‑‑‑Art. 15(1)‑‑‑Criminal Procedure Code (V of 1898), Ss.417, 435 & 516‑A‑‑‑Constitution of Pakistan (1973), Art.203‑F‑‑‑Confiscation of vehicle‑‑‑Locus standi to get possession‑‑‑Ownership on the basis of open transfer letter ‑‑‑Charas weighing 197 Kg. was recovered from the truck in‑question‑‑‑Accused persons arrested in the case were acquitted by Trial Court for the reason that the prosecution could not prove them to be the driver and conductor of the truck‑‑‑Truck in‑question was ordered to be confiscated under Art. 15(1) of Prohibition (Enforcement of Hadd) Order, 1979, as it was involved in transportation of narcotics which was recovered from the secret cavities of the truck‑‑‑Appellant claimed to be the owner of the truck on the basis of sale‑deed whereby he had only paid Rs.1,00,000 out of total consideration as Rs.8,50,000‑‑‑Truck was not transferred in the name of the appellant and application under Ss.417/435/516‑A, Cr.P.C. for the possession of the truck was dismissed by Federal Shariat Court‑‑‑Plea raised by the appellant was that he was bona fide owner of the truck in‑question‑‑‑Validity‑‑‑Trial Court was empowered under Art. 15(1) of Prohibition (Enforcement of Hadd) Order, 1979, to confiscate the property involved in the transportation of contraband despite acquittal of person charged‑‑‑Appellant was not competent to file the appeal as he was neither a bona fide purchaser nor was in possession of the truck lawfully and he did not have locus standi to file the present case‑‑‑Judgment passed by Trial Court‑was based on valid and sound reasons and was .in consonance with the law‑Neither there was any misreading or non‑reading of .material evidence, nor misconstruction of facts and law‑‑‑Appeal was dismissed.

Ejaz Muhammad Khan, Advocate‑on‑Record for Appellant.

Imtiaz Ali, Addl. A.‑G. N‑.‑W.F.P. for the State.

Date of hearing: 12th October, 2004.

P L D 2005 Supreme Court 163

Present: Sardar Muhammad Raza Khan and Faqir Muhammad Khokhar, JJ

Haji ABDUL ALI--‑Petitioner

Versus

Haji BISMILLAH and 3 others‑‑‑Respondents

Civil Petition No. 158‑Q of 2003, decided on 27th October, 2004.

(On appeal from judgment dated 12‑5‑2003 of the High Court of Balochistan Quetta passed in C.P. No.617 of 2001).

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

‑‑‑‑Ss. 335, 383, 396, 397 & 401‑‑‑Remission‑‑‑Period spent, as under trial prisoner‑‑‑Consideration for remission‑‑‑Principles‑‑‑Conviction and sentence of accused cannot be made to run from the date prior to the date of conviction by a competent Court although in certain eventualities the execution of sentence of a convict can be postponed‑‑‑Conviction commences from the time it is passed‑‑‑Criminal Court does not possess power to make a sentence to precede the conviction meaning thereby that the conviction and sentence cannot be ante dated.

The State v. Chandra Khandapani 1968 Crl. LJ 1152; The State v. Jernelsingh AIR 1955 NUC Rajasthan 4613; Gulzar Muhammad v. Crown (1951) 52 Cr1.LJ 238; Dangar Khan and others v. Emperor AIR 1923 Lah. 104; Emperor v. Tha Hmun (1908) 7 Cr.LJ 453; Baghel Singh v. the Emperor (1907) 5 Crl.LJ R 217 and Emperor v. Naga Po Min AIR 1933 Rangoon 28 rel.

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

‑‑‑‑Ss. 382‑B & 401‑‑‑Constitution of Pakistan (1973), Art.45‑‑­Remission‑‑‑ Entitlement‑‑‑Sentencing Court is required to take into consideration the period during which an accused is detained in custody for an offence but such accused under the provisions of 382‑B, Cr.P.C. cannot be treated as a convict from 'the very inception‑‑‑Remissions granted by President under Art.45 of the Constitution or the Provincial Government are not available to a convict for the period during which he had not been convicted of any offence nor was he undergoing any sentence.

Inayat Bibi v. Amjad Ali and others 2001 PCr.LJ 1435 ref.

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

‑‑‑‑S. 402‑C‑‑‑Penal Code (XLV of 1860). S.302 (b) ‑‑‑Constitution of Pakistan (1973), Art.45‑‑‑Special remission of one year ‑‑‑Entitlement-‑­Convict was sentenced to undergo life imprisonment under S. 302(b) P.P.C.‑‑‑Special remission granted by President under Art.45 of the Constitution was not given to the convict‑‑Validity‑‑‑Order of the President passed. in exercise of Constitutional power did not lay down any such limitation or condition that a convict, who was sentenced to life imprisonment under S.302(b), P.P.C., would be disentitled to the remission by virtue of S.402‑C, Cr.P.C.‑‑‑Convict was entitled to the special remission of one year granted by the President under Art.45 of the Constitution‑‑‑Language, of the order of remission passed by the President was similar to one used in the previous orders of remissions passed by the President, the benefit whereof had been given to the convict by the High Court‑‑‑Judgment passed by High Court in exercise of Constitutional jurisdiction was modified to the extent that the convict was entitled to the remission of one year in his sentence of imprisonment for life in terms of the order passed by the President under Art.45 of the Constitution‑‑‑Appeal was allowed.

Tariq Mehmood, Advocate Supreme Court for Petitioner.

H. Shakeel Ahmed, Advocate Supreme Court for Respondent.

Salahuddin Mengal, Advocate‑General, Balochistan for the State.

Date of hearing: 21st September, 2004.

P L D 2005 Supreme Court 168

[Shariat Appellate Jurisdiction]

Present: Abdul Hameed Dogar, Chairman, Muhammad Nawaz Abbasi, Mian Shakirullah Jan, Dr. Allama Khalid Mahmud and Dr. Rashid Ahmad Jullundhari, Members

MUSLIM SHAH‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Shariat Appeal No.65(S) of 2001, decided on 20th October, 2004.

(On appeal from the order dated 24‑5‑2001 of the Federal Shariat Court passed in Cr.A. No.4/P of 2000 and Criminal Revision No. 1/P/2000).

(a) Criminal Trial‑‑‑

‑‑‑‑Confessional statement‑‑‑Effect‑‑‑Confessional statement although retracted would be sufficient piece of evidence for conviction if it is found true, voluntary and having not been obtained by coercion, inducement or torture.

(b) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)‑‑‑

‑‑‑‑S. 17 (4)‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Constitution of Pakistan (1973), Art.203‑F (2) (a)‑‑‑Re‑appraisal of evidence‑‑‑Retracted confessional statement‑‑‑Delay of six days in recording of confessional statement‑‑‑Corroborated circumstantial evidence‑‑‑Accused persons to commit dacoity, entered the house of complainant, murdered his cook with fire arm and then robbed gold ornaments, cash in rupees and dollars‑‑‑Confession though retracted was corroborated by, strong circumstantial piece of evidence‑‑‑Crime empty secured from the place of occurrence matched with the pistol recovered from the accused‑‑­Confession was corroborated by recovered gold bangles, other gold ornaments and currency‑‑‑Trial Court convicted and sentenced the accused for life imprisonment but Federal Shariat Court in exercise of revisional jurisdiction converted the sentence into death penalty‑‑‑Plea raised by the accused was that the retracted confessional statement was recorded with a delay of six days‑‑‑Validity‑‑‑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 into for further corroboration‑‑‑Supreme Court did not take into consideration the delay of six days as the retracted confessional statement was corroborated by other circumstantial evidence‑‑‑Supreme Court maintained the sentence of death awarded to the accused by Federal Shariat Court‑‑‑Appeal was dismissed.

Wazir Khan v. The State 1989 SCMR 446; The State v. Minhun alias Gul Hassan PLD 1964 SC 813 and Khuda Bukhsh v. The State 2004 SCMR 331 fol.

Javaid Aziz Sindhu, Advocate Supreme Court for Appellant.

Imtiaz Ali, Addl. A.‑G. N.‑W.F.P. for the State.

Date of hearing: 20th October, 2004.

P L D 2005 Supreme Court 173

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Tassaduq Hussain Jillani, JJ

Syed MASROOR SHAH and others‑‑-Applicants/Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No.53 of 2001 in Criminal Petition No. Nil of 2001, decided on 27th September, 2004.

(On appeal from the judgments dated 2‑1‑2001 of the Peshawar High Court, Peshawar, passed in Ehtesab Appeal No.5 of 2000).

(a) Appeal (criminal)‑‑‑

‑‑‑‑ Right of appeal, exercise of‑‑‑Principles‑‑‑Right of appeal cannot be availed unless it is conferred in a clear manner by some enactment or statute or the rules having the sanctity of some law‑‑‑Such right is to be specifically provided for and the same cannot arise by implication‑‑­Right of appeal is not a mere matter of procedure but is a vested right of a party from the commencement of the action in the Court of first instance‑‑‑Parties by agreement cannot confer jurisdiction upon a Court‑‑‑Right of appeal depends upon the language as used in the statute and if the words of statute are precise and unambiguous, they must be held to have their natural and ordinary meaning‑‑‑Order passed by any Court irrespective of the fact whether it is ordinary criminal Court or Accountability Court, there would be no appeal unless it is provided for by the statute‑‑‑Right of appeal cannot be assumed unless expressly given by the statute.

Wahid Bux v. Afzal Transport Co Ltd. PLD 1966 Lah. 684; Emperor v. Nim AIR 1932 Sind 88; Daulat Singh v. State AIR 1950 Madh. B.112; Monograph 1178 Helsbury's Laws of England, 2nd Edn. Vol.8; Kaluram v. Gopal AIR 1951 Madh‑B 67; Superintendent and Rememb. of Legal Affairs, Government of East Pakistan v. Bazlur Rahman PLD 1960 Dacca 200; Province of Assam v. Lakhi Nayak AIR 1950 Assam 43; Wahid Bus v. Afzal Transport PLD 1966 (W.P.) Lahore 684; Surendra Das v. Bhola Prasad Kairi AIR 1950 Assam 22; Salim‑ud-­Din Ahmad v. Rahim Shaikh AIR 1926 Cal. 1113; Zahida Sattar v. Federation of Pakistan PLD 2002 SC 408 and H.M. Saya and Company v. Wazir Ali Industries PLD 1969 SC 65 rel.s

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

‑‑‑‑S. 32‑‑‑Words `party to the proceedings' substituted by words any person convicted or the Prosecutor General Accountability'---Connotation‑‑‑Words so substituted mean that scope of appeal was made limited and confined to a specific sphere by conferring the right of appeal only upon a convicted person or the Prosecutor General Accountability at, the discretion of National Accountability Bureau.

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

‑‑‑‑S.32‑‑‑Words any person'‑‑‑Connotation‑‑‑Wordsany person' as appearing in S.32 of National Accountability Ordinance, 1999, means a persons convicted for any offence under National Accountability Ordinance, 1999, or the Prosecutor General, National Accountability Bureau‑‑‑Right of appeal cannot be conferred to anyone else except as mentioned in S.32 of National Accountability Ordinance, 1999.

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

‑‑‑‑S. 32‑‑‑Supreme Court Rules, 1980, O.XXXIII, R.6‑‑‑Permission to file petition for leave to appeal‑‑‑Locus standi‑‑‑Applicant was aggrieved of the confiscation of property by Accountability Court in its final judgment‑‑‑Applicant was neither party before Accountability Court nor he made any attempt to get himself impleaded as a party before Accountability Court‑‑‑Effect‑‑‑Controversy regarding confiscation of property by Accountability Court had been set at naught by Supreme Court in case titled Zahida Sattar v. Federation of Pakistan, reported as PLD 2002 SC 408‑‑‑Main criminal petition for leave to appeal was pending adjudication before Supreme Court and the question regarding confiscation of property was sub judice which would be decided in accordance with law and on its own merits‑‑‑Applicant had no right to file appeal because no such right had been conferred upon him under National Accountability Ordinance, 1999‑‑‑Application was dismissed.

Zahida Sattar v. Federation of Pakistan PLD 2002 SC 408 rel.

Muhammad Munir Peracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Appellants/Petitioners.

Nemo for the State.

Date of hearing: 27th September, 2004.

P L D 2005 Supreme Court 181

[Shariat Appellate Jurisdiction]

Present: Abdul Hameed Dogar, Chairman, Muhammad Nawaz Abbasi, Mian Shakirullah Jan, Dr. Allama Khalid Mahmood and Dr. Rashid Ahmed Jullundhari, Members

Syed NADEEM SHAH and others‑‑‑Appellants

Versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous Application No.54(S) of 2004 and Criminal Shariat Appeal Nos. 10(S) and 11(S) of 2003, decided on 5th October, 2004.

(On appeal from the judgment dated 24‑4‑2002 of the Federal Shariat Court passed in Criminal Appeal No.49‑K of 2001).

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

‑‑‑‑Ss. 11 & 16‑‑‑Penal Code (XLV of 1860), S.366‑‑‑Re‑appraisal of evidence‑‑‑Inconsistent version of prosecution‑‑‑Abduction‑‑‑Proof‑‑­Accused were convicted by Trial Court for abduction as described under S.366, P.P.C. and sentenced them to ten years imprisonment‑‑‑Federal Shariat Court, in appeal, found the accused guilty under S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and maintained the sentence awarded by Trial Court‑‑‑Plea raised by the accused was that the version of prosecution was not consistent and had given different stories of the incident‑‑‑Further plea raised by the accused was that as per medical evidence, neither any mark of violence was found on the body of abductee, nor she was subjected to the act of rape and her hymen was found intact‑‑‑Validity‑‑‑Prosecution had been changing its stance from the very beginning‑‑‑Complainant had not taken one plea but had been changing version as per his desire‑‑‑No offence as contemplated under S. 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was made out as the prosecution had failed to bring on record the evidence that abductee was abducted or induced to compel for marriage against her will or she was forced or seduced to illicit intercourse or that there was even likelihood of her being forced or seduced to illicit intercourse‑‑‑Even no case under S.366, P.P.C. was made out‑‑­Conviction and sentence under S.11 of the Ordinance were not sustainable in law‑‑‑Judgment passed by Federal Shariat Court was set aside and accused were acquitted from the charge under S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979‑‑‑Appeal was allowed.

Muhammad Ilyas Siddiqui, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Appellants (in Criminal Shariat Appeal No.10(S) of 2003).

Kazi Khalid Ali, Addl. A.‑G. Sindh for the State (in Criminal Shariat Appeal No.10(S) of 2003).

Date of hearing: 5th October, 2004.

P L D 2005 Supreme Court 186

Present: Nazim Hussain Siddiqui, C.J., Abdul Hameed Dogar and Tassaduq Hussain Jillani, JJ

Ch. MUHAMMAD SIDDIQUE and 2 others‑‑‑Petitioners

Versus

GOVERNMENT OF PAKISTAN through Secretary Ministry of Law and Justice Division, Islamabad and others‑‑‑Respondents

Civil Review Petitions Nos. 239 and 240 of 2004, decided on 20th December, 2004.

(Oil appeal from the judgment dated 5‑11‑2004 of this Court passed in Constitutional Petitions Nos. 23 of 1999 and 21 of 2004).

(a) Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Ordinance (II of 2000)‑‑­-

‑‑‑‑Preamble‑‑‑Punjab Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Act (V of 2003), Preamble‑‑Constitution of Pakistan (1973). Arts. 188 & 185‑‑‑Review of Supreme Court judgment‑‑‑Contentions of the petitioner were that petition in the case was heard by a Bench of Supreme Court headed by the then Chief Justice of the Supreme Court and after conclusion of the arguments the petition was allowed in open Court which was noted by the Court Associate on the original file by writing the word "allowed" that said order, which was announced, was reported in the print and electronic media, as such the same could not be ignored; that for re‑hearing the matter the Bench should have been constituted of the Judges, who heard and decided the matter then: that the Ulema Judges of the Supreme Court were also required to be the members of the Bench; that offering food to the, guests at marriage ceremony did not fall within the scope of "Asraaf"; that it was almost mandatory in the light of sayings of the Holy Prophet that there may be some festivity, which included offering of food to the guests, who had come to join marriage ceremony; that there were lots of other occasions apart from marriage where rich food was served like 'Chehlum etc.' and no such embargo had been imposed thereon: as such there was no justification whatsoever for such restriction on meals during marriage ceremony and that serving of meals did not create any burden on the host because the persons participating in the marriage contribute towards expenses‑‑‑Validity‑‑‑Held, judgment allegedly announced was not a judgment in the eye of law, neither it was written nor signed and solitary word "allowed" appearing on the title of the file could not confer on it legal status of a valid judgment, such being not a judgment within the meaning of taw, as such the matter was re­heard‑‑‑So many other cases like the present one had been heard afresh by the Supreme Court after retirement of the Judges, who failed to deliver the judgment, as was required under the law‑‑‑Mere fact that some reports appeared in the print and electronic media did not, ipso facto, bring the oral utterances within the ambit of valid judgment‑‑­Observations of the Court during the 'course of arguments were not necessarily the part of the judgment which were made only to comprehend the issues involved in the matter‑‑‑Two Judges of the Bench which heard the matter had already retired, it was not the right of the petitioner to select the 'Judges of their own choice‑‑‑To constitute a Bench was a prerogative of the Chief Justice and the parties could not ask for a Bench of their choice‑‑‑Plea of "Asraaf" having been dealt with in the impugned judgment, the same could not be re‑agitated by using different phraseology and words‑‑‑Court had dealt with the provisions relating to, the marriage functions within the scope of Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Ordinance, 2000 and the Punjab Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Act, 2003 and plea of "Chehlum etc." was new one and was not taken at the time when filial arguments for deciding the petitions in question, were heard‑‑‑90% of the population of the country could not afford huge expenses and the poor parents of the girls invariably were exposed to insurmountable financial problems resulting from lavish expenditure on the occasion of the marriage and various Ahadiths had revealed that Valima was only "Mubah" and was not obligatory‑‑When the matter was heard no Aalim Judge was a member of the Bench nor any such prayer was made and in proceedings instituted under Art.184(3) of the Constitution, Aalim Judge was not the requirement of law as the moot point involved was whether Ordinance II of 2000 .being valid and in force, the Government of Punjab could enact the Act V of 2003‑‑‑Review petition having no merits was dismissed by the Supreme Court.

(b) Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Ordinance (II of 2000)‑‑‑

‑‑‑‑Preamble & Ss.4 & 5‑‑‑Punjab Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Act (V of 2003), Preamble‑‑‑Constitution of Pakistan (1973), Arts.184(3) & 185‑‑‑Vires of Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses). Act, 2003‑‑‑Supreme Court had struck off the Punjab Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Act, 2003 passed by the Provincial Assembly while the Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Ordinance, 2000 was held to be holding the field and applicable throughout Pakistan and guests be served in terms of Ss.4 and 5 of the said Ordinance‑‑‑Supreme Court directed the Chief Secretaries, Inspectors‑General Police of the Provinces, Chief Commissioner and Inspector‑General Police of Federal Capital Territory and District Administration to ensure that the judgment of Supreme Court was implemented in letter and spirit and action against those, who contravened the provisions of the Ordinance were initiated promptly.

(c) Judgment‑‑‑

‑‑‑‑Valid judgment‑‑‑Neither the judgment was written nor signed‑‑­Solitary word "allowed" appearing in title of the ‑file of the case could not confer the legal status of a valid judgment‑‑‑Mere fact that some reports had appeared in the print or electronic' media, would not, ipso facto, bring the oral utterances of a Judge within the ambit of valid judgment‑‑‑Observations of the Court during the course of arguments were not necessarily the part of the judgment and were made only to comprehend the issues involved in the matter.

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

‑‑‑‑Arts. 185 & 188‑‑‑Appeal before Supreme Court‑‑‑Held, it was not the right of petitioner/appellant to select the Judges of their own choice‑‑‑To, constitute a Bench was a prerogative of the Chief Justice and the parties could not ask for a Bench of their choice.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 188‑‑‑Review of Supreme Court judgment‑‑‑Scope‑‑‑Point raised having been dealt with in the impugned judgment same could not be re­agitated by using different phraseology and words.

(f) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 188‑‑‑Review of Supreme Court judgment‑‑‑Scope‑‑‑New plea which was not taken at the time when final arguments for deciding the petitions in question, were heard could not be considered in review petition.

(g) Islamic jurisprudence‑‑‑

‑‑‑‑ Custom‑‑‑Valima is only Mubah and is not obligatory.

(h) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.184(3)‑‑‑Constitutional petition under Art. 184(3) of the Constitution challenging vires of a statute‑‑‑Aalim Judge need not be included in the Bench hearing such matter.

Nemo for Petitioners.

Nemo for Respondents.

Muhammad Hanif Abbasi for General Public.

Date of hearing: 20th December, 2004.

P L D 2005 Supreme Court 193

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas, Syed Deedar Hussain Shah, Hamid Ali Mirza, Sardar Muhammad Raza Khan, Faqir Muhammad Khokhar, and Tassaduq Hussain Jillani, JJ

ARSHAD MEHMOOD and others‑‑‑Appellants

Versus

GOVERNMENT OF PUNJAB through Secretary, Transport Civil Secretariat, Lahoreand others‑‑‑Respondents

Civil Appeals Nos. 224 to 227 of 2003 and Constitutional Petition No.18 of 2004 and A.W C.M.As. Nos. 1383, 2376 and 2604 of 2004, decided on 7th December, 2004.

(On appeal from the judgments/orders dated 19‑4‑2001, 10‑12‑2002 and 20‑1‑2003 passed by Lahore High Court, Lahore in Writ Petitions No. 660/2000, 19239/2002, 2418/2001 and 692/2003).

(a) Provincial Motor Vehicles Ordinance (XIX of 1965)‑‑‑

‑‑‑‑S. 69‑A [as inserted by Punjab Motor Vehicles (Amendment) Ordinance (XLVI of 1999)]‑‑‑Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance (V of 1970), Preamble‑‑­Constitution of Pakistan (1973), Arts. 18, 3 & 185(3)‑‑‑Leave to appeal was granted by the Supreme Court to examine the questions viz. whether insertion of S.69‑A, in the Provincial Motor Vehicles Ordinance, 1965 by Punjab Motor Vehicles (Amendment) Ordinance, 1999 was in public interest and was not violative of the Constitutional guarantee of right of trade and business under Art. 18 of the Constitution and was in consonance with the provisions of Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970; whether addition of S.69‑A in the Provincial Motor Vehicles Ordinance, 1965 would not amount to protect and promote the vested interest of a specific class by depriving large number of people associated with the transport business of their legitimate right of earning and they had not been denied the equal and fair opportunity of right of business as provided under the Constitution; that the exclusion of wagons and mini bus owners from transport business under franchise routes scheme was not a departure from the policy of constitution of free competition and would not amount to take away the right of people from using the vehicles of their own choice as' means of transport and compel them to travel through the franchise transport; that imposing of unreasonable restriction on the free trade and business was not a social and economic exploitation as provided in Art.3 of the Constitution and that the provision of S.69‑A of the Ordinance for exclusion of wagons and mini buses as stage carriages from the franchised routes in the private sector was not a discriminatory law and the distinction created was based on reasonable classification.

(b) Interpretation of Constitution‑‑‑

‑‑‑‑Principles‑‑‑Constitution is a living document which portrays the aspiration and genius of the people and aims at creating progress, peace, welfare, amity among the citizens and the nations abroad; it is the basic structure on which the entire edifice is built, therefore, it has to be interpreted in a manner which may keep it alive and blossom under all circumstances and in every situation.

Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341 ref.

(c) Interpretation of Constitution‑‑‑

-----Principles‑‑While interpreting Constitutional provisions Courts should keep in mind. social setting of the country, growing requirements of the Society/nation, burning problems of the day and the complex issues facing the people, which the Legislature in its wisdom through legislation seeks to solve‑‑‑Judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid.

Messrs Illahi Cotton Mills and others v. Federation of Pakistan and‑ another PLD 1997 SC 582 ref.

(d) Words and phrases‑‑‑

‑‑‑‑"Franchise"‑‑‑Connotation‑‑‑Franchise is a privileged contract between the "grantor" and "grantee" in respect of a trade or business to the exclusion of any one else, which does not belong to citizens generally, with a view to create a "monopoly" in respect thereof, which is also known as CARTEL.

American Jurisprudence 2nd Edn., Vol. 36, p.723 and Black's Law Dictionary, 5th Edn., p.592 quoted.

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

‑‑‑‑Art.18‑‑‑Freedom of trade, business or profession‑‑‑Right of trade/business or profession under Art. 18 of the Constitution is not an absolute right but so long a trade or business is lawful a citizen, who is eligible to conduct the same, cannot be deprived from undertaking the same, subject to law which regulates it accordingly.

(f) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 18‑‑‑Freedom of trade, ‑business or profession‑‑‑" Reasonableness of restriction "‑‑‑Definitions.

Following definitions can be considered for purpose of ascertaining the meaning of "reasonableness of restriction" on the fundamental rights of the citizens to conduct any lawful trade or business:‑‑

(i) The limitation imposed upon a person on enjoyment of a right should not be arbitrary or of an excessive nature beyond what is required in the interest of the public.

(ii) The Court would see both to the nature of the restriction and procedure prescribed by the statute for enforcing the restriction on the individual freedom. Not only substantive but procedural provisions of statute also enter into the verdict of its reasonableness.

(iii) The principles of natural justice are an element in considering reasonableness of a restriction but the elaborate rules of natural justice may be excluded expressly or by necessary implication where procedural provisions are made in the statute.

(iv) Absence of provisions for review makes the provisions unreasonable.

(v) Retrospectivity of a law may also be the relevant factor of law, although a retrospectivity of law does not make it automatically unreasonable.

(vi) Reasonable restriction also includes cases of total prohibition of a particular trade or business which deprive a person of his fundamental right under certain circumstances.

Messrs Dwarka Prand v. State of U.P. AIR 1954 SC 224; P.P. Enterprises v. Union of India AIR 1982 SC 1016; Kishan Chand v. Commissioner of Police AIR 1961 SC 705; Haradhan Saha v. State of W.B. (1975) 3 SCC 198; K.T. Moopil Nair v. State of Kerala AIR 1961 SC 552; Narottamdas v. State of Maddhya Pradesh and others AIR 1964 SC 1667; Narindra Kumar v. Union of India AIR 1960 SC 430 ref:

(g) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 18‑‑‑Freedom of trade, business or profession‑‑‑Government has the authority to regulate a lawful business or trade‑‑‑" Reasonable restriction" does, not mean "prohibition" or "prevention" completely, except under certain circumstances.

(h) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 18‑‑‑Provincial Motor Vehicles Ordinance (XIX of 1965), S.69‑A‑‑‑ Franchise‑‑‑Grant of franchise on specified routes‑‑ ‑Freedom of trade, business or profession‑‑‑Word "qualification" has been used in Art. 18 of the Constitution to confer a right upon a citizen to enter upon any lawful profession or occupation and not to conduct any lawful trade or business‑‑‑Person without having a qualification can run a business or trade of transport.

Black's Law Dictionary, p.1116 ref.

(i) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 18 & 3‑‑‑Provincial Motor Vehicles Ordinance (XIX of 1965), S.69‑A ‑‑‑Grant of franchise on specified routes‑‑‑Validity‑‑‑Freedom of trade, business or profession‑‑‑Competent Authority can regulate any trade or profession by a licensing System but this rule has to, be read conjunctively with Proviso (h) of Art. 18 of the Constitution, according to which an element of free competition to regulate a trade is discouraged, it would negate Art.3 of the Constitution, which deals with the elimination of all forms of exploitation and if due to non‑competition franchise is granted on specified routes, that would tantamount to monopolize the trade/transport business.

(j) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 9 & 2A‑‑‑Security of person‑‑‑Word "life" used in Art.9 of the Constitution includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally ‑‑‑Word "life" in the Constitution has not been used in a limited manner; a wide meaning should be given to enable a man not only to sustain life but to enjoy it‑‑‑Legislature, under the Objectives Resolution, which is part of the Constitution, has to ensure an egalitarian society, based on Islamic concept of fair play and social justice.

Shehla Zia v. WAPDA PLD 1994 SC 693 and Shaukat Ali v. Government of Pakistan PLD 1997 SC 341 ref.

(k) Provincial Motor Vehicles Ordinance (XIX of 1965)‑‑‑

‑‑‑‑S. 69‑A [as inserted by Punjab Motor Vehicles (Amendment) Ordinance (XLVI of 1998)]‑‑‑Constitution of Pakistan (1973), Arts. 18, 8 & 25‑‑‑Franchise‑‑‑Grant of franchise on specified routes ‑‑‑Vires of S.69‑A, Provincial Motor Vehicles Ordinance, 1965‑‑‑Conditions imposed under S.69‑A of the Ordinance are very harsh, unjust; arbitrary, oppressive and contrary to principles of natural justice, because if an adverse action is likely to be taken against a person, detrimental to his interest, he is entitled to the right of hearing before finalization of such action‑‑‑Grant of franchise on specified routes is contrary to the provisions of Art. 18(b) of the Constitution, therefore is void under Art. 8 of the Constitution‑‑‑Section 69‑A has created a classification between franchise holders and appellant transporters, such classification is not permissible under Art.25 of the Constitution because the differentia between both classes must have rational nexus to the object sought to be achieved by such classification, as such S.69‑A of the Ordinance is also violative of Art.25 of the Constitution‑‑‑Section 69‑A, Provincial Motor vehicles Ordinance, 1965 being ultra wires the Constitution, impugned judgments of the High Court were set aside by the. Supreme Court‑‑­Supreme Court, however, observed that it was not too late for the Provincial Government to suitably amend the Motor Vehicles Ordinance, 1965, if need be, in the public interest and welfare, consistent with the provisions of Art. 8 of the Constitution, ensuring fair opportunity to the transporters to conduct their business freely, with a provision of better facilities of travel to the passengers in a dignified manner, through reliable Stage Carriages; that Government may examine to run transport on the specified routes itself, as contemplated by the Proviso (c) of Art.18 of the Constitution and Government may take other steps, which were deemed fit by it in the public interest for solving the problems of transport in the Urban areas of the Province‑‑‑Principles.

Perusal of section 69‑A of the Provincial Motor Vehicles Ordinance, 1969(as amended) reveals that it has introduced "franchise system" for operating "stage carriages" absolutely different from the system prescribed by the Ordinance. One of the salient features of this law is that under its subsection (2) Government has been empowered to declare the routes "franchise", to be granted under its instructions by the Regional Transport Authority, to the exclusion of all other operators of stage carriages and upon grant of a "franchise" on a specified route, the Regional Transport Authority under subsection (4) has been empowered to cancel all existing stage carriages permits on such routes or a portion of route. Such oppressive provision has been inserted in the statute without realizing that the operators of stage carriages are already carrying on a lawful trade under valid permits, since long without any allegation of violating the law under which route permits were granted to them. Furthermore, no notice, before cancelling their lawful licences, was given to them as section 69‑A does not envisage such provision. Thus it can be safely held that a right which has accrued to them to carry on a lawful business, according to the Ordinance, could not be denied to them by introducing "franchise" system by the Provincial Government, in view of the guarantees, provided to them under Article 18 of the Constitution. It is to be noted that under the scheme of the Ordinance of the Provincial Government, except supervising had no administrative role to play as the trade of transport is regulated by the Regional or Provincial Transport Authority. Thus, there is reason to believe that under section 69‑A of the Ordinance, an administrative role has been given to the Provincial Government for effectively carrying out its, object including the exclusion of all other transporters, who are already in a lawful business, because if an operator possesses valid route permit for plying the vehicles on a route or the routes obtained by him from Regional Transport Authority or the Provincial Transport Authority, legally Government cannot exclude him from the business except in terms of section 62 of the Ordinance. However, it is no body's case that the Regional Transport Authority, after insertion of section 69‑A in the Ordinance, ever exercised its jurisdiction under section 62 of the Ordinance and cancelled their permits.

In view of above background Supreme Court considered it appropriate to examine the constitutionality of section 69‑A of the Ordinance, particularly power of Government of Punjab to grant franchise in the trade/business of transport.

Common question raised was whether section 69‑A of the Ordinance; inserted by the Government of Punjab is contrary to the fundamental rights of the appellants, enshrined in Article 18 of the Constitution because in pursuance thereof, appellants have been restrained/ousted completely from the trade/business of transport, which they were carrying on against valid route permits issued by competent authority under the provisions of the Ordinance for the last many years and in which they had made huge investment for purchase of vehicles i.e. wagons, suzukis, etc. The franchise of routes on which they were plying their stage carriages have been given to the private respondents in pursuance of the scheme of section 69‑A of the Ordinance.

In the present case the Government of Punjab,' instead of promulgating section 69'‑A of the Ordinance for the purpose of granting franchise on specified routes to the respondents by excluding all other transporters, running their stage carriages against valid route permits on the same routes, ought to have granted route permits to respondents as well under the Ordinance, in order to cater the pressure of the passengers on those routes with clear direction to them to charge less fare from passengers, compared to the fare which is being charged by the appellants transports, who are already plying their vehicle on the same routes and if owing to such free competition, if any of them had failed to compete, it could have excluded itself from the business, instead of providing a cause of grievance to the appellants, to whom right to live has been denied as they are not in a position to survive, on account of being excluded from the business in terms of Article 9 of the Constitution.

Section 69‑A of the Ordinance is couched in such a language that one feels no difficulty to draw an inference that a new system is being introduced, which is absolutely different and distinct from the licensing system of running the transport as has been provided under the Ordinance, 1965, without providing right of hearing to these stage carriages' owners, who are being excluded from the trade, but no right of appeal or revision against the order of Secretary, Regional Transport Authority or the Government, has been provided, therefore, due to this reason as well, section 69‑A seems to be unreasonable law. Thus it can be safely concluded that the restrictions imposed by section 69‑A of the Ordinance leading to exclude the appellants from the trade/business of transport had prevented/prohibited the appellants and many other transporters to enjoy the guaranteed fundamental right of freedom of trade/business as per Article 18 of the Constitution.

In pursuance of sub‑section (4) of Section 69‑A of the Ordinance, route permits of the appellants have been cancelled in violation of principles of natural justice, as subsection (4) .of Section 69‑A, expressly or by necessary implication provides that they would be entitled to right of hearing before the cancellation of their permits to run a valid stage carriage, which they were possessing since long and on the basis of the same, were plying their vehicle on the specified routes.

Under licensing system, unless the business is unlawful or indecency is involved therein, the legislature can enact laws, which will promote a free competition in the fields of trade, commerce and industry. At any rate, if restrictions are to be imposed to regulate such trade or business, those should not be arbitrary or excessive in nature, barring a majority of persons to enjoy such trade. In the present case, as per the requirement of section 69‑A of the Provincial Motor vehicles Ordinance, 1965 the appellants, who are the owners of the stage carriages as per the definition under section (2)37 of the Ordinance, would not be in a position to run the business on the specified routes, franchise of which has been offered to the respondents because it has been inferred from the facts of the case that for one route they have to arrange a fleet of stage carriages. Obviously the appellants are not in a position to arrange such fleet, on account of their financial position or being un‑influential person. They are also not in a position to obtain hefty loans from the financial institutions, as have been given to respondents at 70% and 30% ratio, and thus unable to compete with the respondents. Consequently, such conditions would appear to be not only arbitrary but oppressive in nature and tend to deprive them from enjoying the fundamental right of freedom of trade and business, as per Article 18 of the Constitution. Therefore, in such situation it becomes duty of the Court to see the nature of the restrictions and procedure prescribed therein for regulating the trade and if it comes to the conclusion that the restrictions are not reasonable then the same are bound to be struck down.

The conditions imposed under Section 69‑A of the Ordinance are held to be very harsh, unjust, arbitrary, oppressive and contrary to principles of natural justice, because if an adverse action is likely to be taken against a person; detrimental to his interest, he is entitled to the right of hearing before finalization of such action.

Crux of definition of "franchise" is special privilege to grant to a particular person/party to do a specific business, to the exclusion of all other persons, dealing in the same business. Such act would not be reasonable. A perusal of proviso (b) of Article 18 of the Constitution indicates that regulation of the trade, commerce or industry is permissible in the interest of free competition therein. Meaning thereby that without free competition amongst traders, no trade commerce or industry can be regulated To understand the concept of free competition, this clause may be read, keeping in view proviso (c) of Article 18 of the Constitution, according to which only Federal Government or Provincial Government or a Corporation controlled by such Government can carry on any trade, business, industry or service to the exclusion, complete or partial, of such other person, which would mean that under clause (c), a right has been given only to the Government to create monopoly and confer right of franchise to any of the functionaries mentioned therein to the purpose of carrying on a business. As far as private persons are concerned, they cannot be excluded from carrying on trade for the purpose of creating monopoly and granting franchise of a particular trade. The concept of franchise is alien to Constitution because with reference to running of transport on the route owned by the public, all citizens have equal rights and they cannot be deprived of the same for the reason that some for them had obtained franchise on the said route. The provisions of section 69‑A of the Ordinance cannot be pressed into service to exclude all other citizens including the appellants, preventing them from use of the highways for the purpose of running the business of transport.

In the trade of transport by inserting section 69‑A of the Ordinance, grant of franchise on specified routes is contrary to the provisions of Article 18(b) of the Constitution, therefore, same deserves to be declared void, under Article 8 of the Constitution.

Punjab Motor Vehicle (Amendment) Ordinance, 1999 through which S.69‑A was added to the Provincial Motor Vehicles Ordinance, 1965 could not be placed before the Provincial Assembly to make it an Act because during its subsistence Provincial Assembly was suspended on account of Military takeover on 12th October, 1999, therefore, it may be legitimately presumed that in the enactment of section 69‑A of the Ordinance the public views through elected representative are not included. Thus in the absence of public opinion in promulgating section 69‑A of the Ordinance, it may not be difficult to infer that it was not promulgated in the public interest and general welfare etc. Indeed had this law been discussed in the Assembly, through the representatives of the public, it might have changed its complexion, to bring it within the command of Article 18 of the Constitution.

In the present case, right of franchise on specified routes has not been granted to private respondents in pursuance of aim directives of the policy but in accordance with provisions of section 69‑A of the Ordinance and Supreme Court is not debarred to examine its validity on the touchstone, of Article 8 of the Constitution, because if any law is promulgated in derogation from fundamental rights, it would be declared void because at the cost of fundamental rights, guaranteed by the Constitution, the executive Government is not empowered to frame a policy.

If a law, under which certain proceedings have been drawn, fails to stand the test of Article 8 of the Constitution and is liable to be declared void then any proceedings drawn under it, howsoever solemn, cannot sustain in law.

Supreme Court while considering the validity of section 69‑A of the Ordinance on the touchstone of Articles 8 and 18 of the Constitution has not entered into factual controversy with regard to proper exercise of discretion by the competent authority, in the discharge of its functions under section 69‑A of the Ordinance and its effect, whether alternative routes have been granted to the appellants to operate their stage carriages and the controversy which has been raised in respect of grant of franchise on the specified routes with mala fide intention, as contended by appellants and franchise holders, for the reason that in impugned judgments, High Court has not attended to the factual aspects of the case. It would not be fair and in the interest of justice to enter into factual controversy for the first time also because it would be against the well‑settled practice of the Supreme Court.

In the present case appellants and the respondents both are similarly placed being owners of stage carriages and prior to the grant of franchise to the private respondents, appellants were in possession of valid route permits for plying their stage carriages on the specified routes but their route permits stood cancelled due to grant of franchise to the respondents in view of the provisions of section 69‑A of the Ordinance. It means that section 60‑A of the Ordinance has created a classification between franchise holders and appellants (transporters). Such classification is not permissible under Article 25 of the Constitution, because the differentia between both the classes must have rational nexus to the object sought to be achieved by such classification. As such section 69‑A of the Ordinance is also violative of Article 25 of the Constitution.

Supreme Court observed that it is not too late for the Government of Punjab:‑‑

(a) To suitably amend the Motor Vehicles Ordinance, 1965, if need be, in the public interest and welfare, consistent with the provisions of Article 8 of the Constitution of Islamic Republic of Pakistan, ensuring fair opportunity to the transporters to conduct their business freely, with a provision of better facilities of travel to the passengers in a dignified manner, through reliable stage carriages.

(b) It has been noticed that the respondents while obtaining franchise on specified routes have obtained 70% loans against their equity of 30% therefore, the Government may examine to run transport on the specified routes itself, as contemplated by the proviso (c) of Article 18 of the Constitution.

(c) Government may take any other Constitutional or administrative steps, which are deemed fit by it in the public interest for solving the problems of transport in the urban areas of the Province of Punjab.

Section 69‑A of the Provincial Motor Vehicles Ordinance, 1965 (as amended) is declared ultra vires of the Constitution of Islamic Republic of Pakistan, as a consequence whereof the impugned judgments are set aside. However, existing arrangements may continue for a period of four months enabling the Provincial Government to take appropriate legislative/administrative measures in accordance with Constitution and law.

Grammar of Politics, 5th Edn. p.175 by Harold J. Allasky; Administrator Market Committee, Kasur v. Muhammad Sharif PLD 1994 SC 1048; Saghir Ahmed v. The State of U.P. and others AIR 1954 SC 728; Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341; Messrs Illahi Cotton Mills and others v. Federation of Pakistan and another PLD 1.997 SC 582; American Jurisprudecne 2nd Edn. Vol 36, p.723; Black's Law Dictionary 5th Edn., p.592; Messrs Dwarka Prasad v. State of U.P. AIR 1954 SC 224; P.P. Enterprises v. Union of India AIR 1982 SC 1016; Kishan Chand v. Commissioner of Police AIR 1961 SC 705; Haradhan Saha v. State of W.B. (1975) 3 SCC 198; K.T. Moopil Nair v. State of Kerala AIR 1961 SC 552; Narottamdas v. State of Maddhya Pradesh and others AIR 1964 SC 1667; Narindra Kumar v. Union of India AIR 1960 SC 430; Municipal Corporation of the City of Toranto v. Virgo 1896 AC 88, 93; Government of Pakistan through Secretary .Ministry of Commerce and another v. Zamir Ahmed Khan PLD 1975 SC 667; Zamir Ahmed Khan v. Government of Pakistan and another 1978 SCMR 327; Mehtab Jan and another v. Municipal Committee Rawalpindi PLD 1958 W.P. Lah. 929; Government of Pakistan v. Syed Akhlaque Hussian and another PLD 1965 SC 527; Messrs Haider Automobile Ltd. v. Pakistan PLD 1969 SC 623; Messrs East and West Steamship Co. v. Pakistan PLD 1958 SC 41; Black's Law Dictionary, p.1116; Harnam Singh v. R.T.A. Calcutta Region AIR 1954 SC 190; Shela Zia v. WAPDA PLD 1994 SC 693; Shaukat Ali v. Government of Pakistan PLD 1997 SC 342; Pakistan International Airlines (PIAC) v. Nasir Jamal Malik 2001 SCMR 935; Krishna Kakkan v. Government of Kerala and others AIR 1997 SC 128; Pratap Pharma (Pvt.) Limited v. Union of India AIR 1997 SC 2648; Aitchison College, Lahore v. Muhammad Zubair PLD 2002 SC 326; Kondala Rao v. Andhra Pradesh S.R.T. Corporation AIR 1961 SC 82; Deputy Assistant Iron and Steel Controller, Madras v. L. Manichchand Proprietor K.M. Corporation AIR 1972 SC 935; State of Maharashtra v. Lok Shikshan Sanstha AIR 1973 SC 588; Chairman RTA v. Pak. Mutual Insurance Co. PLD 1991 SC 14 and I.A. Sharwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad 1991 SCMR 1041 ref.

(l) Provincial Motor Vehicles Ordinance (XIX of 1965)‑‑‑

‑‑‑S. 69‑A [as inserted by Punjab Motor Vehicles (Amendment) Ordinance (XLVI of 1999)]‑‑‑Constitution of Pakistan (1973), Arts. 18 & 199‑‑‑Franchise‑‑‑Grant of franchise on specified routes ‑‑‑Validity‑‑­Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑High Court seized with the Constitutional petition under Art.199 of the Constitution ought to have conducted an inquiry in the interest of justice to ascertain as to whether addition of S.69‑A in the Provincial Motor Vehicles Ordinance 1965 was for the public interest and general welfare and thus a valid law according to Art.18 of the Constitution‑‑‑Such exercise could always be undertaken in the interest of justice or the Court could always direct the Governments to decide the validity of S.69‑A of the Ordinance.

Pratap Pharma (Pvt.) Limited v. Union of India AIR 1997 SC 2648 ref.

(m) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 18‑‑‑Freedom of trade, business or profession ‑‑‑Franchise‑‑­Concept of franchise of a particular trade is alien to the Constitution.

(n) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 18‑‑‑Freedom of trade, business or profession‑‑‑Creation of monopoly‑‑‑ Scope‑‑‑Federal Government or the Provincial Government or a Corporation controlled by anyone of them can create a monopoly to the exclusion of any other person for the purpose of running a business as per mandate of Art. 18, proviso (c) of the Constitution.

Deputy Assistant Iron and steel Controller, Madras v. L. Manichchand Proprietor K.M. Corporation AIR 1972 SC 935; State of Maharashtra v. Lok Shikshan Sanstha AIR 1973 SC 588; Government of Pakistan v. Zamir Ahmed Khan PLD 1975 SC 667 and Messrs. Illahi Cotton Mills's case PLD 1997 SC 582 distinguished.

(o) Provincial Motor Vehicles Ordinance (XIX of 1965)‑‑‑

‑‑‑‑S. 69‑A [as inserted by Punjab Motor Vehicles (Amendment) Ordinance (XLVI of 1999)]‑‑‑Constitution of Pakistan (1973), Arts.8, 18 & 185‑‑‑Laws inconsistent with and in derogation of Fundamental Rights‑‑‑Grant of franchise on specified routes‑‑‑Validity‑‑‑Such right has not been granted to the private persons in pursuance of any directives of the policy but in accordance with provisions of S.69‑A of the Provincial Motor Vehicles Ordinance, 1965‑‑‑Supreme Court was not debarred 'to examine its validity on the touchstone of Art.8 of the Constitution, because if any law was promulgated in derogation of fundamental rights guaranteed by the Constitution, the executive Government was not empowered to frame a policy‑‑‑If a law, under which certain proceedings had been drawn failed to stand the test of Art.8 of the Constitution and was liable to be declared void then any proceedings drawn under such law, howsoever, solemn, could not sustain in law.

Chairman RTA v. Pak. Mutual Insurance Co. PLD 1991 SC 14 and Administrator Market Committee, Kasur, and others v. Muhammad Sharif 1994 SCMR 1048 ref.

(p) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.185‑‑‑Appeal to Supreme Court‑‑‑Factual controversy‑‑‑High Court, in the impugned judgment had not attended to the factual aspects of the case‑‑‑Supreme Court declined to enter into factual controversy for the first time.

(q) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.25‑‑‑Equality of citizens ‑‑‑Classification‑‑‑Differentia between both the classes must have rational nexus to the object sought to be achieved by such classification.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Appellants (in C.A. No.224 of 2003 and C.M.A. No.2604 of 2004).

Syed Shabbar Raza Rizvi, A.‑G. (Punjab) a/w Mrs. Afshan Ghazanfar A.A.‑G. Punjab and Maqbool Illahi Malik, Senior Advocate Supreme Court for Respondents (in C.A. No.224 of 2003 and C.M.A. No.2604 of 2004).

Ch. Muhammad Anwar Khan, Advocate‑on‑Record/Advocate Supreme Court for Applicant i C.M.A. No.2604 of 2004).

A. K. Dogar, Senior Advocate Supreme Court for Appellant (in C.A. No.225 of 2003).

Syed Shabbar Raza Rizvi, A.‑G. (Punjab) a/w Mrs. Afshan Ghazanfar A.A.‑G. Punjab and Syed Ali Zafar, Advocate Supreme Court and Ch Muhammad Akram Advocate‑on‑Record for Respondents (in C.A. No.225 of 2003).

Nasir Saeed Sheikh, Senior Advocate Supreme Court for Appellant (in C.A. No.225 of 2003).

Syed Shabbar Raza Rizvi, A.‑G. (Punjab) a/w Mrs. Afshan Ghazanfar A.A.‑G. Punjab Aftab Gul Advocate Supreme Court and Arshad Ali Ch. Advocate‑on‑Record for Respondents (in C.A. No.226 of 2003) .

Tariq Mehmood, Advocate Supreme Court and Maher Khan Malik, Advocate‑on‑Record for Appellants/Applicants (in C.A. No.227/2003 and C.M.A. No.1383/2004).

Syed Shabbar Raza Rizvi, A.‑G.(Punjab) a/w Mrs Afzhan Ghazanfar A.A.‑G. (Pb.) and Ch. Muhammad Akram. Advocate‑on­-Record for Respondents (in C.A. No.227/2003 and C M.A. No. 1383 of 2004).

Habib‑ul‑Wahab‑ul‑Khairi, Senior Advocate Supreme Court and Maher Khan Malik, Advocate‑on‑Record for Petitioner (in Const. Petition No. 18 of 2004).

Nemo for Respondents (in Const. Petition No.18 of 2004).

Nemo for Applicant (in Civil Misc. Application No.2370 of 2004).

Syed Shabbar Raza Rizvi, A.‑G. (Pb), a/w Mrs. Afshan Ghazanfar A.A.‑G. (Pb.) and Ch. Muhammad Akram, Advocate‑on-Record for Respondents (in Civil Misc. Application No.2370 of 2004).

Dates of hearing: 25th and 29th October, 2004.

P L D 2005 Supreme Court 244

Present: Iftikhar Muhammad Chaudhry and Javed Iqbal, JJ

MEHRAB KHAN‑‑‑Petitioner

Versus

ABDUL NABI‑‑‑Respondent

Civil Appeal No. 1538 of 2004 in Civil Petition No.217‑Q of 2003, decided on 11th November, 2004.

(On appeal from the judgment of the High Court of Balochistan, Quetta, dated 3‑10‑2003 passed in C.R. No.219 of 2001).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XVIII, R. 18‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑­Power of Court to inspect‑‑‑Factual controversy‑‑‑Requirements‑‑‑Court, though was empowered to inspect the site but at the same time it was under an obligation to record the evidence of the parties with opportunity to the other side of cross‑examine the witnesses if it wanted to form an opinion in respect of particular factual controversy‑‑‑Where, admittedly no evidence had been recorded nor opportunity of cross‑examination was given and after compiling the report before passing decree, no opportunity of hearing was given to the petitioner, the petition for leave to appeal was converted into appeal by the Supreme Court and judgments of Courts below, were set aside and the case was remanded to the Civil Court to proceed afresh in accordance with law.

Ugam Singh v. Kesrimal AIR 1971 SC 2540 fol.

Hatim v. Elahi Bakhsh 1986 CLC 798(2) ref.

Muhammad Riaz Ahmed, Advocate‑on‑Record for Petitioner.

Jehanzeb Jadoon, Advocate Supreme Court and M.W.N. Kohli, Advocate‑on‑Record (absent) for Respondent.

Date of hearing: 11th November, 2004.

P L D 2005 Supreme Court 246

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Falak Sher, JJ

THE COLLECTOR CUSTOMS‑‑‑Appellant

Versus

ABDUL JABBAR and others‑‑‑Respondents

Civil Appeal No.283 of 2003, decided on 30th November, 2004.

(On appeal against the. judgment dated 20‑6‑2002 passed by the Peshawar High Court, Circuit Bench Abbottabad in Tax Appeal No. 2 of 2001).

(a) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Preamble‑‑‑Provincially Administered Tribal Areas (Application of Laws) (Second) (Amendment) Regulations (III of 1975), Preamble‑‑­Constitution of Pakistan (1973), Arts. 247 & 185(3)‑‑‑Leave to appeal was granted by Supreme Court to examine the questions as to whether the provisions of Customs Act, 1969 had been extended to the Kohistan District of Hazara Division within the contemplation' of Article 247 of the Constitution; whether the area in question having once been detached from the Malakand Division (to which the Customs Act, 1969) was extended and subsequently attached to Kohistan District of Hazara Division (to which Customs Act, 1969 was not then extended) would still be deemed to be a part of Malakand Division for the purpose of the extension of Customs Act, 1969 and whether the area in question, even if attached to Hazara Division, was a part of Hazara Kohistan Tribal Area and if so, to what effect; and whether Jiljal Check Post on Karakurram Highway was a part of Tribal Area of Hazara or settled district of Hazara Division.

(b) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Preamble‑‑‑Provincially Administered Tribal Areas (Second) (Amendment) Regulations (III of 1975) Preamble‑‑‑Constitution of Pakistan (1973), Arts. 246 & 247‑‑‑Held, Customs Act, 1969 was extended to the Tribal Area in Kohistan‑‑‑Principles.

Abdul Khan and 2 others v. The State and another PLD 1995 Quetta 12 fol.

Superintendent, Land Customs, Torkham (Khyber Agency) v. Zewar Khan and 2 others PLD 1969 SC 485 ref

Hamid Farooq, Deputy Attorney‑General for Appellant.

Abdul Latif Yousafzai, Advocate Supreme Court for Respondent No. 1.

Respondents Nos.2 and 3: Ex parte.

Date of hearing: 30th November, 2004.

P L D 2005 Supreme Court 252

[Shariat Appellate Jurisdiction]

Present: Justice Abdul Hameed Dogar, Chairman, Justices Muhammad Nawaz Abbasi, Mian Shakirullah Jan, Dr. Allama Khalid Mahmud and Allama Rashid Ahmad Jullundhari, Members

MUHAMMAD ABDULLAH YOUSAF and others‑‑‑Appellants

Versus

Miss NADIA AYUB and others‑‑‑Respondents

Criminal Appeals Nos. 31(S) & 32(S) of 2003, decided on 1st November, 2004.

(On appeal from the judgment of Federal Shariat Court dated 21‑12‑2001 passed in Crl.A.17/I/2000).

(a) Offence of Zina ('Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑‑S. 11‑‑‑Constitution of Pakistan (1973), Arts. 203-D, 203‑F & 189‑‑­Kidnapping, abducting or inducing or compelling woman to marry‑‑­Award of sentence‑‑‑Powers and jurisdiction of Courts‑‑‑Scope‑‑‑Courts cannot pass a sentence of lesser imprisonment than the life imprisonment under S.11, Offence of Zina (Enforcement of Hudood) Ordinance 1979 in departure from the statutory provision‑‑‑Unless the words "may be extended to life" are substituted for the words "shall be imprisonment for life" in S.11, Offence of Zina (Enforcement of Hudood) Ordinance 1979, in accordance with the requirement of provisions of Art.203‑D of the Constitution or by the legislature in exercise of its legislative powers, the Courts cannot, on the basis of observations of Shariat Appellate Bench of Supreme Court in Hasham Khan v. The State PLD 1991 SC 567, award imprisonment for a term lesser than imprisonment for life provided in law ‑‑‑Shariat Appellate Bench of Supreme Court however observed that the Government may examine S.11 of the Ordinance and make necessary amendment, as proposed in Hasham Khan's case‑‑‑Principles.

Shariat Appellate Bench of Supreme Court while interpreting section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 in the case Hasham Khan v. State PLD 1991 SC.567 had observed that probably the legislature intended to insert in section 11 the words "may be extended to life" instead of "shall be the imprisonment for life" and while raising the presumption of such intention of law makers, substituted the words "may be extended to life imprisonment" for the words "shall be life imprisonment" in the judgment and reduced the sentence of the convict in the said case from life imprisonment to a term of R.I. for 10 years.

The laws are enacted through the process of legislation by the Parliament and the function of the Courts is to apply and interpret the laws in the spirit in which same are enacted. This is not the function of the Courts to add or omit any word from a provision of law or to re­write or re‑enact any law or change its language, through the method of interpretation of laws: The Shariat Appellate Bench of this Court, in exercise of its powers under Article 203‑F read with Article 203‑D of the Constitution of Pakistan (1973), can declare a law repugnant to the Injunctions of Islam and direct the Government for enactment of law in accordance with the Injunctions of Islam but while interpreting a provision of law, it is not supposed to change the words of an existing provision of law without declaring it repugnant to the Injunctions of Islam.

There is no cavil about the legal position that the judgment of the Supreme Court on a question of law, is binding on all Courts and authorities in the country by virtue of Article 189 of the Constitution but the change in the provision of section 11 of Offence of Zina (Enforcement of Hadood) Ordinance, 1979 in the manner in which it was made by the Shariat Appellate Bench of the Supreme Court would not be in conformity to the provisions of Article 203‑D of the Constitution and consequently, would not be considered a law declared for the purpose of Article 189 of the Constitution.

The observation made in Hasham Khan v. State, supra, was based on the assumption that law makers intended to insert the words "may extend to life" instead of "shall be life imprisonment" and the inadvertent omission could be supplied in the law. The Shariat Appellate Bench of the Supreme Court in the above judgment neither declared the sentence of life imprisonment provided under section 11 of Offence of Zina (Enforcement of Hadood) Ordinance, 1979 repugnant to the Injunctions of Islam nor recommended the Government to amend the said section in the light of its observations and the Government, also had not taken any step for the amendment in the above provision, therefore, even if legislature had such an intention, the Shariat Appellate Bench of this Court, without examining the vires of the above provision of law in the light of Injunctions of Islam, could not competently change the words of the existing provision. Shariat Appellate Bench of the Supreme Court, therefore, approved the earlier view taken by Shariate Appellate Bench of Supreme Court in Muhammad Sharif v. State (PLD 1985 SC 319) and Ishtiaq Ahmed v. State (PLD 1984 SC 380) that the Courts cannot pass a sentence of lesser imprisonment than the life imprisonment under section 11 of Offence of Zina (Enforcement. of Hadood) Ordinance, 1979 in departure from the statutory provisions. The Federal Shariat Court and Shariat Appellate Bench of Supreme Court in exercise of the powers under Article 203‑D, can examine the vires of a law or a provision of law on the touchstone of Injunctions of Islam and can also declare a law or a provision of law, repugnant to the Injunctions of Islam and direct the Government for necessary amendment by a certain date. The amendment so proposed if is not made by the date fixed by the Court, it becomes the law of the country but the Federal Shariat Court or Shariat Appellate Bench of Supreme Court, in exercise of this power, cannot substitute the words of a provision with the consideration that legislature intended to legislate the law in that manner, without declaring such provision repugnant to the Injunctions of Islam wholly or partially.

Shariat Appellate Bench of Supreme Court in its criminal jurisdiction, was not supposed to award a sentence as Tazir punishment which is not provided under the law. The duty of the Court is to expound the law as it stands and should not read into section of an Act words which are not used by the legislature. The Court has only to interpret the law and read the intention of legislation from the language used by the legislature. There is a strong presumption that Parliament does not make mistakes and if ambiguity is found in legislation, it must be corrected by legislature and is not the function of the Court to repair it.

The Courts have no power to treat an Act of Parliament as being altered in such a way to agree with the Judge's idea of what is right or reasonable. Unless the words "may be extended to life" are substituted for the words "shall be imprisonment for life" in section 11 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979, in accordance with the requirement of provisions of Article 203‑D of the Constitution or by the legislature, in exercise of its legislative powers, the Courts cannot, on the basis of an observation of Shariat Appellate Bench, award imprisonment for a term lesser than imprisonment for life provided in law. The Government may examine the above provisions of law and make necessary amendment, as proposed.

Muhammad Sharif v. State PLD 1985 SC 319 and Ishtiaq Ahmed v. Sate PLD 1984 SC 380 fol.

Hasham Khan v. State PLD 1991 SC 567 dissented from.

Attorney‑General v. Bihari re Australian Factors Ltd. (1966), 67 SR (N.S.W.) 150 ref.

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

‑‑‑‑S. 11‑‑‑Constitution of Pakistan (1973), Art.203‑F‑‑‑Reappraisal of evidence‑‑‑ Abduction‑‑‑Concept‑‑‑Elopement‑‑‑Determination‑‑­Principles‑‑‑Abducted girl was subjected to inducement and seduction and the accused persons kept her in custody by force and against her will for 33 days but she purposely kept silent during the period she remained in their custody to avoid any unfortunate incident‑‑‑No convincing evidence was available to suggest that the abductee was a willing and consenting party to the transaction and every piece of material evidence was considered in determining the question of guilt of the accused‑‑­Assessment of evidence and statement of victim girl proved that it was a deceitful abduction in which no presumption of elopement could be raised on the basis of false claim of marriage‑‑‑Accused, during the period victim girl remained in their custody, forcibly obtained signatures on the Nikahnama and on an affidavit showing her willingness for marriage with one of them and they also made an attempt to exploit her parents‑‑‑Transaction, in circumstances, fully satisfied the essential elements of abduction to constitute an offence under S.11, Offence of Zina (Enforcement of Hadood) Ordinance, 1979 and commission of offence by the accused persons stood proved beyond any doubt‑‑‑Shariat Appellate Bench of the Supreme Court maintained the conviction and sentences awarded to the accused persons by the Federal Shariat Court in circumstances.

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

‑‑‑‑S. 11‑‑‑Constitution of Pakistan (1973), Art.203‑F‑‑‑Reappraisal of evidence‑‑‑Female accused was neither mentioned in the F.I.R. nor in Supplementary Statement by the complainant thus her case was distinguishable from the male accused‑‑‑Female accused being real sister of the main accused must be aware of the whole situation but such fact alone, would not be sufficient to suggest her involvement in the transaction of abduction of victim girl‑‑‑Case against the female accused being not free from doubt, Shariat Appellate Bench of the Supreme Court, while giving her benefit of doubt; acquitted her from the charge of S.11, Offence of Zina (Enforcement of Hadood) Ordinance, 1979‑‑­Principles.

M. Bilal, Senior Advocate Supreme Court with Tariq Bilal, Advocate Supreme Court and Ch. Muhammad Akram, Advocate‑on­-Record for Appellants (in Cr.A.No.31(S)/2003).

Dr. Babar Awan, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Respondents (in Cr.A.No.31(S)/2003).

Raja Abdur Rehman, A.A.; G., Punjab and Sh. Mehmood Ahmed, Advocate Supreme Court for the State (in Cr.A.No.31(S)/2003).

Dr. Babar Awan, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Appellants ((in Cr.A.No.32(S)/2003).

Raja Abdur Rehman, A.A.‑G., Punjab for the State (in Cr.A.No.32(S)/2003).

Date of hearing: 1st November, 2004.

P L D 2005 Supreme Court 270

Present: Iftikhar Muhammad Chaudhry, Actg. C.J., Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

THE STATE through National Accountability Bureau, Islamabad‑‑‑Petitioner

Versus

Haji NASIM‑UR‑REHMAN‑‑‑Respondent

Criminal Review Petition No.44 of 2003, Criminal Miscellaneous Application No.230 of 2003 and Criminal Original Petition No.41 of 2002, decided on 2nd November, 2004.

(On review from the judgment/order dated 8‑5‑2003 passed by this Court in Criminal Miscellaneous Appeal No.27 of 2001).

Per Iftikhar Muhammad Chaudhry, Actg. C.J.; Rana Bhagwandas, J. agreeing‑‑

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

‑‑‑‑Arts. 185(3) & 188‑‑‑Supreme Court Rules, 1980, O.XXIII, R.8, first proviso‑‑‑National Accountability Ordinance (XVIII of 1999), Ss.18(g), 24 & 31‑A‑‑‑Criminal Procedure Code (V of 1898), S.497‑‑­Criminal petition for leave to appeal‑‑‑Bail‑‑‑Abscondance of accused‑‑­Effect‑‑‑Obligatory upon the convict, who approaches the Court that first of all, he should surrender to the order of imprisonment, meaning thereby that on surrendering before the Court, he should be taken into custody and then Court might order his release on bail and if such person is not taken into custody or not admitted to bail, then he will be deemed to be fugitive from law and would not be entitled to any relief‑‑‑If a convict became fugitive, he disentitled himself to the relief claimed from the Court‑‑‑When the convict absconded after filing a petition for leave to appeal, or obtaining bail orders, he would deprive himself of the relief claimed in the petition‑‑‑Respondent (convict), in circumstances, was not entitled to the relief, which was allowed to him vide order under review‑‑‑Judgment being contrary to the principles of law laid down by the Supreme Court as well as to statutory provisions of law i.e. O.XXIII, Rr.8, first proviso of the Supreme Court Rules, 1980 it shall be deemed to have been given per incuriam‑‑‑Advocate‑on‑Record or Advocate Supreme Court who appeared on behalf of the convict, had to ensure that the convict surrendered to the order of imprisonment and on his arrest the Advocate could request for suspension of the sentence of the convict, otherwise it would be presumed that the Advocate was not discharging his duties faithfully.

Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236; Province of the Punjab v. S. Muhammad Zafar Bukhari PLD 1997 SC 351; Hayat Bakhsh v. State PLD 1981 SC 265; Chan Shah v. The Crown PLD 1956 FC 43; Awal Gul v. Zawar Khan PLD 1985 SC 402 and Banazir Bhutto v. State 1999 SCMR 1619 ref.

(b) Supreme Court Rules, 1980‑‑‑

‑‑‑‑O. XXIII, R.8 & first proviso‑‑‑Interpretation of O.XXIII, R.8, first proviso, Supreme Court Rules, 1980.

Banazir Bhutto v. State 1999 SCMR 1619 ref.

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

‑‑‑‑Art. 185‑‑‑Appeal to Supreme Court‑‑‑Supreme Court encourages decision of cases on merits and if the order is just, reasonable and fair, the same needs no interference.

Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236 and Province of the Punjab v. S. Muhammad Zafar Bukhari PLD 1997 SC 351 ref.

(d) Judgment in per incuriam‑‑‑

‑‑‑Definition.

Jewett's Dictionary of English Law, 2nd Edn.; Bourier's Law Dictionary; Bellentine's Law Dictionary, 3rd Edn.; Black's Law Dictionary; Words and phrases 1st Edit. by D. Varagarajan; Whartan's Law Lexicon; Province of the Punjab v. Dr. S. Muhammad Zafar Bkhari PLD 1997 SC 351 and N.‑W.F.P. and another v. Sheikh Muzaffar Iqbal PLD 1994 SC 539 ref.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 188‑‑‑Supreme Court Rules, 1980, O.XXVI, R.1‑‑‑National Accountability Ordinance, (XVIII of 1999), Ss.18(g), 24 & 31‑A‑‑‑Maxim: fiat justitia ruat coelum‑‑‑Applicability‑‑‑Review of Supreme Court judgment‑‑‑Errors apparent on the face of record‑‑‑Respondent had succeeded in getting relief contrary to law as well as provisions of Supreme Court Rules, 1980 and the consistent practice, prevalent for the hearing, of petition for leave to appeal tinder Art. 185(3) of the Constitution, being a person fugitive from law, he had not surrendered to the order of imprisonment passed by the Accountability Court, therefore he was not entitled to the relief, which had been extended to him‑‑‑Order of the Court though mentioned that the respondent had surrendered but record was silent whether he was taken into custody or not‑‑‑Judgment under review suffered from number of errors on the face of record‑‑­Order under review, in circumstances, called for interference, notwithstanding the fact that in post remand proceedings, High Court had accepted the appeal filed by the respondent and case had been remanded to the Accountability Court for fresh trial, in accordance with law under S.31‑A of the National Accountability Ordinance, 1999‑‑‑Supreme Court following the maxim fiat justitia ruat coelum (Courts are required to do justice though the heavens may fall) and for the sake of administration of justice, set aside the portion of the order under review, whereby the judgment of the High Court was set aside and case was remanded for hearing of the appeal, was kept intact‑‑‑Grant of unbridled protection to the respondent for not arresting him by the National Accountability Authorities or any other agency without prior permission of the Court, was recalled with the clarification that if the respondent was involved in any criminal case, he could be arrested and interrogated in accordance with law and no prior permission shall be required to be obtained from the Supreme Court‑‑‑Respondent, nevertheless shall continue to remain on bail for a period of two weeks; in the meantime he will apply to the Accountability Court for bail‑before‑arrest but if he failed to get the bail, he shall be dealt with by the Accountability Court in accordance with law.

Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236; Province of the Punjab v. S. Muhammad Zafar Bukhari PLD 1997 SC 351; Hayat Bakhsh v. State PLD 1981 SC 265; Chan Shah v. The Crown PLD 1956 FC 43; Awal Gul v. Zawar Khan PLD 1985 SC 402; Banazir Bhutto v. State 1999 SCMR 1619; Jewett's Dictionary of English Law, 2nd Edn.; Bourier's Law Dictionary; Bellentine's Law Dictionary, 3rd Edn.; Black's Law Dictionary; Words and phrases 1st Edn. by D. Varagarajan; Whartan's Law Lexicon and N.‑W.F.P. and another v. Sheikh Muzaffar Iqbal PLD 1994 SC 539.(sic) ref.

(f) Maxim: Fiat Justitia ruat coelum‑‑‑

‑‑‑‑Let justice be done, though the heavens should fall‑‑‑Applicability.

Per Muhammad Nawaz Abbasi, J. (adding separate note) agreeing with Iftikhar Muhammad Chaudhry, Actg. C.J.

Naveed Rasul Mirza, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Petitioner.

Fakhr‑ud‑Din G. Ibrahim, Senior Advocate Supreme Court, Yahyah Afridi, Advocate Supreme Court, Mehr Khan Malik, Advocate-­on‑Record for Respondent.

Respondent (in person).

Date of hearing: 16th September, 2004.

P L D 2005 Supreme Court 288

Present: Iftikhar Muhammad Chaudhry, Actg. C. J. Faqir Muhammad Khokhar and Tassadduq Hussain Jillani, JJ

SHAFQAT ALI and others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Petitions Nos.752 to 753‑L of 2003, decided on, 26th January, 2005.

(On appeal against the judgment dated 3‑10‑2003 passed by the Lahore High Court, Lahore in Criminal Appeals Nos.1944‑1946 of 2000).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/148/149‑‑‑Appreciation of evidence‑‑‑If a witness has furnished wholly reliable evidence, it is bound to be accepted even without corroboration, whereas halfly reliable evidence needs strong corroboration for its acceptance‑‑‑Statement of prosecution witness, in the present case, had been accepted as a whole in respect of happening of the incident, whereas the statements of other two prosecution witnesses had also not been disbelieved by the Trial Court as well as by the High Court as the same related to the actual incident‑‑‑Contention that on disbelieving the evidence of said other two witnesses on the point of hatching conspiracy, the whole story could be disbelieved was repelled by following the principle of sifting grain from the chaff.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/148/149‑‑‑Appraisal of evidence‑‑‑Occular account furnished by prosecution witnesses got corroboration from the medical evidence and contention that contradictions existed in the ocular and medical evidence could not be substantiated by pointing out any major contradiction sufficient to disbelieve the ocular testimony furnished by the prosecution witnesses and consequently holding that they were not present at the place of incident‑‑‑Held, as far as medical evidence or expert's opinion was concerned, it was always treated to be confirmatory in nature and if there was ocular account fully reliable in support of incident, then the minor contradictions in medical and ocular evidence could be outweighed.

Muhammad Hanif v. The State PLD 1993 SC 895 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 338‑E, 302, 148 & 149‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Qatal‑e‑Amd‑‑‑Compromise‑‑‑Petitions for leave to appeal against conviction though were dismissed, but Supreme Court observed that as far as the convict with whom legal heirs of the deceased had entered into compromise, he could approach the Trial Court for acceptance of the same under S.338‑E, P.P.C. as, observed in Safdar Ali v. State PLD 1991 S.C. 202.

Muhammad Hanif v. The State PLD 1993 SC 895 fol.

Irshadullah Chatta, Advocate Supreme Court, Walayat Umer, Advocate‑on‑Record and Khadim Hussain Qaiser, Advocate Supreme Court for Petitioners (in both the cases).

Aftab Ahmed Bajwa, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record for Respondents (in both cases).

Date of hearing: 26th January, 2005.

P L D 2005 Supreme Court 293

Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ

Mst. NASEEM AKHTAR‑‑‑Petitioner

Versus

MUHAMMAD RAFIQUE and others‑‑‑Respondents

Civil Petition No.2470 of 2002, decided on 3rd December, 2004.

(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 31‑10‑2002 passed in W.P. No.3183 of 2002).

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

‑‑‑‑S.8‑‑‑West Pakistan Family Courts Act (XXXV of 1964), S.5‑‑­Dissolution of marriage‑‑‑Khula‑‑‑Emotion of hatred‑‑‑Determination‑‑­No yardstick can be fixed to define or determine factum of hatred‑‑­Emotion of hatred can be inferred on the basis of circumstances of each case specially from the statement of wife recorded by Family Court‑‑­Emotion of love and hatred cannot be adjudged on rational basis‑‑‑Only aspect which requires consideration in such cases would be as to whether husband and wife can live together in order to perform their matrimonial obligations and not the solid proof qua hatred or aversion.

Amanullah v. District Judge, Jaranwala 1996 SCMR 411 rel.

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

‑‑‑‑S.5‑‑‑Muslim Family Laws Ordinance (VIII of 1961), S.8‑‑­Dissolution of marriage‑‑‑Hatred towards husband‑‑‑Wife filed suit for dissolution of marriage but Family Court dismissed the same on the ground that she could not substantiate the alleged hatred and aversion against her husband‑‑‑Judgment and decree passed by Family Court was maintained by Lower Appellate Court as well as by High Court‑‑­Validity‑‑‑Hatred and aversion could neither be prescribed nor confined within the limited sphere and no mechanism had been evolved to express `hatred or aversion' precisely and in a definite manner‑‑‑Suit for dissolution of marriage was filed by wife on 6.12.2000, which itself was demonstrative of the fact that she did not want to live with her husband which indicated the degree of hatred and aversion‑‑‑Wife personally submitted to Supreme Court that the Court might hang her and whatever might be the circumstances, she was not prepared to live with her husband; as such the same was hatred or aversion and nothing else‑‑­Judgments and decrees passed by the Courts below were set aside and petition for leave to appeal was converted into appeal‑‑‑Suit for dissolution of marriage was decreed in favour of the wife‑‑‑Appeal was allowed.

Mehr Khan Malik, Advocate‑on‑Record for Petitioner.

Razzaq A. Mirza, Advocate Supreme Court for Respondent No. 1.

Date of hearing: 3rd December, 2004.

P L D 2005 Supreme Court 297

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

Mst. ANWAR BEGUM‑‑‑Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION KALRI WEST, KARACHI and 12 others‑‑‑Respondents

Civil Petition No. 1092‑K of 2002, decided on 29th December, 2004.

(On appeal from the order dated 30‑10‑2002 of the High Court of Sindh, Karachi, passed in Constitution Petition No. 1687 of 2002).

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

‑‑‑‑S. 154‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Constitution of Pakistan (1973), Art.185(3) & 199‑‑‑Registration of second F.I.R.‑‑­Accused mentioned in the first F.I.R. lodged by Manager of deceased were unknown and untraceable‑‑‑Police refused to record second F.I.R. as per widow's version‑‑High Court in Constitutional petition directed Police to consider widow's version by examining her and her witnesses during investigation‑‑‑Validity‑‑‑Widow from the day of incident had been alleging murder of her husband to be managed by his real brothers in league with complainant of first F.I.R. its Investigating Officer and others named accused‑‑‑Veracity and truthfulness of first F.I.R. had become highly doubtful in such circumstances‑‑‑Widow was right in asking for registration of another F.I.R. as per her own version‑‑‑Widow had been moving applications and making representations to high‑ups in Police, but all in vain‑‑‑Discretionary powers under Art. 199 of the Constitution must be exercised by High Court in good faith, fairly, justly and reasonably having regard to all relevant circumstances and in accordance with the principles laid down by Superior Courts‑‑‑Disposal of Constitutional petition on technical grounds without adverting to grievance of widow was not legal‑‑‑Widow had made out a case for registration of second F. I. R. ‑‑‑Supreme Court accepted appeal with direction to Police to register fresh F.I.R. on basis of widow's version within a week and report its compliance to Officer‑in‑Charge of Court.

Muhammad Ishaque v. S.P. Jaffarabad and another PLJ 1998 Quetta 1; Kaura v. The State and others 1983 SCMR 436 and Jamshed Ahmad v. Muhammad Akram Khan and another 1975 SCMR 149 ref.

Wajid Ali Khan Durani and others v. Government of Sindh and others 2001 SCMR 1556 fol.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Such jurisdiction was discretionary with High Court to be exercised in good faith, fairly, justly and reasonably having regard to all relevant circumstances and in accordance with the principles laid down by Superior Courts.

Rana M. Shamim, Advocate Supreme Court and K.A. Wahab, Advocate‑on‑Record for Petitioner.

Respondent No. 1 (in person).

Nooruddin Sarki, Advocate Supreme Court and Suleman Habibullah, Advocate‑on‑Record for Respondents Nos.2 to 8.

Muhammad Sarwar Khan, Addl. A.‑G. Sindh with Ali Asghar Shah, D.S.P. (On Court Notice).

Date of hearing: 29th December, 2004.

P L D 2005 Supreme Court 303

Present: Khalil‑ur‑Rehman Ramday and Tassadduq Hussain Jillani, JJ

NAZAR MUHAMMAD ‑‑‑Appellant

Versus

MUHAMMAD NAWAZ through Legal Heirs and others‑‑‑Respondents

Civil Appeal No.472 of 2002, decided on 7th January, 2005.

(On appeal from the judgment dated 22‑5‑2001 of the Lahore High Court, Lahore, in R.S.A. No.96 of 1985).

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S.21‑‑‑Civil Procedure Code (V of 1908), S.94‑‑‑Limitation Act (IX of 1908), Art. 152‑‑‑Appeal, filing of‑‑‑Limitation‑‑‑Determination‑‑­Forcible dispossession of vendee ‑‑‑Restoration of possession‑‑‑Suit filed by pre‑emptors was dismissed by Trial Court and appeal was also dismissed by Appellate Court being barred by limitation‑‑‑High Court remanded the matter to Lower Appellate Court for determination of limitation after recording of evidence‑‑‑Lower Appellate Court, in post remand proceedings and after recording of evidence, found the appeal within time and allowed the same, thus the suit was decreed in favour of pre‑emptors ‑‑‑Judgment and decree passed by Lower Appellate Court in post remand proceedings was affirmed by High Court‑‑‑Pre‑emptors, after the decision of Lower Appellate Court in post remand proceedings, forcibly possessed vendee ‑‑‑Plea raised by vendee was that the appeal before Lower Appellate Court was barred by limitation and he could not be forcibly dispossessed‑‑‑Validity‑‑‑Observation of High Court in the judgment, that "this application remained pending with Hafizabad Copying Agency till 3‑11‑1966, therefore, the period from 23‑9‑1966 till 3‑11‑1966 has to be excluded" was a misreading of evidence; similarly the finding, that "meaning thereby that the copying officials at Gujranwala had duly checked the record, that the application was transmitted to Gujranwala from Hafizabad" was not borne out from the record/evidence led ‑‑‑Pre‑emptors failed to adduce evidence to rebut the report of Copying Agency Hafizabad on the, basis of which Lower Appellate Court found the appeal to be time‑barred in the earlier round of litigation‑‑‑Pre‑emptors never challenged the veracity of report of Copying Agency even on administrative side by way of complaint/application before District Judge‑‑‑Appeal was time‑barred and the concurrent judgments of Lower Appellate Court and High Court could not be sustained ‑‑‑Pre‑emptors conceded that there was no document to show that it was consensual surrender of possession on the part of vendee ‑‑‑Such conduct of pre‑emptors betrayed scant regard for law‑‑‑Supreme Court set aside the judgments and decrees passed by Lower Appellate Court and High Court and restored that of the Trial Court‑‑‑Supreme Court directed District Police Officer to ensure handing over the possession to vendee within three weeks‑‑‑Appeal was allowed.

S.M. Masud, Advocate Supreme Court and Mahmudul Islam, Advocate‑on‑Record (absent) for Appellant.

Maqbool Sadiq, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record (absent) for Respondents.

Dates of hearing: 6th and 7th January, 2005.

P L D 2005 Supreme Court 311

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

LAND ACQUISITION OFFICER AND ASSISTANT COMMISSIONER, HYDERABAD ‑‑‑Appellant

Versus

GUL MUHAMMAD through Legal Heirs‑‑‑Respondents

Civil Appeals No. 965 to 968 of 1999, decided on 28th December, 2004.

(On appeal from the judgment dated 2‑10‑1998 in C.M.As. Nos.504/93, 458/94 and 228/94 in 1st Appeals Nos. 16 to 18 and 49 of 1998 passed by the High Court of Sindh, Hyderabad Circuit).

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

‑‑‑‑S. 25(1)‑‑‑Limitation Act (IX of 1908), S.12 & Art. 156‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Land acquisition‑‑‑Enhancement of compensation‑‑‑Validity‑‑‑ Supreme Court granted leave to appeal to consider, whether High Court was justified to enhance the rate of compensation to Rs.70,000, when respondents predecessor had himself demanded compensation @ of Rs.40,000 per acre, which enhancement was against the provisions of S.25(1) of Land Acquisition Act; and whether petitions/appeals were barred by law of limitation.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 12 & First Sched., Art. 156‑‑‑First appeal before High Court‑‑­Computation of period of limitation‑‑‑Exclusion of time requisite in obtaining certified copies of judgment and decree‑‑‑Application for certified copies was made on 17‑2‑1987‑‑‑Cost was deposited and copies were prepared on 7‑3‑1987‑‑‑Copies were delivered on 9‑3‑1987‑‑­Appeal filed on 5‑5‑1987 was within time after excluding such requisite period.

Chollistan Cooperative Wool Development Marketing Union Ltd. Bahawalpur v. Nasir Ahmad and another 1983 SCMR 1105; Cholistan Cooperative Wool Development and Marketing Union Ltd. v. Bashir Ahmad and others PLD 1982 Baghadad‑ul‑Jadid 65; and Ramasami Pillai v. The Deputy Collector of Madura and another ILR 43 (1920 Madras 51 rel.

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

‑‑‑‑O. XXVII, Rr. 1, 2‑‑‑Sindh Law Department Manual‑‑‑Qanun‑e­-Shahadat (10 of 1984), Art.129(e)‑‑‑Appeal and review by Provincial Government filed in High Court through Assistant Advocate‑General and Additional Advocate‑General respectively‑‑‑ Non‑placing on record sanction order of Solicitor authorizing Advocate‑General to file appeal/review‑‑‑Validity‑‑‑Filing of such sanction order along with appeal would not be necessary for same being internal business between Solicitor and Advocate‑General‑‑‑Advocate‑General, if filed appeal in pursuance of such sanction he would be deemed to have performed his official function in accordance with usual course of business‑‑‑Such filing of appeal was proper‑‑‑Principles.

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

‑‑‑‑Ss. 9 & 25(1)(3)‑‑‑Land acquisition‑‑Enhancement in rate of compensation‑‑‑Due service of notice issued under S.9 of Land Acquisition Act, 1894‑‑‑Landowner claiming compensation at d specific rate by filing objection/application in response to such notice‑‑­Validity‑‑‑Provisions of S.25 of Land Acquisition Act, 1894 had limited jurisdiction of Court in matter of enhancement of compensation‑‑‑No question of waiver of such provisions would arise‑‑‑Mandatory for Court in view of S.25(1) of Land Acquisition Act, 1894 not to enhance amount what was claimed by landowner in pursuance of such notice‑‑‑Such being a statutory duty cast upon Court must be given effect to and same was not a benefit conferred on any party‑‑‑Landowner would not be entitled to claim more than what they had claimed in pursuance of service of such notice‑‑‑High Court had no jurisdiction to enhance such claimed rate of compensation in cross‑objection tiled by landowner‑‑‑Principles illustrated.

Hyderabad Development Authority and another v. Karam Khan Shoro 1985 SCMR 45; Prasannakumar Datta v. Secretary of State AIR 1934 Cal. 525 and Punjab State v. Messrs Lachman Dass Sons AIR 1964 Punjab 68 fol.

(e) Duty of Court‑‑‑

‑‑‑‑ Court cannot do what the statute expressly forbids.

(f) Interpretation of statutes‑‑‑

‑‑‑‑ Mandatory provisions‑‑‑Status‑‑‑Effect‑‑‑Neither by consent nor by waiver, such provisions of a statute could either be modified or waived.

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

‑‑‑‑Ss. 23(2) & 28‑A [as added by Land Acquisition (Sindh Amendment) Ordinance (XXIII of 1984)]‑‑‑Awarding of Additional compensation @ 15% per annum of compensation fixed from date of notification till payment of entire amount of compensation‑‑‑Validity‑‑‑Such additional compensation could be awarded in view of S.28‑A Land Acquisition Act, 1894.

Province of $indh through Collector of District Dadu and another v. Ramzan and others PLD 1004 SC 512 fol.

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

‑‑‑‑S. 114 & O.XLVII, R.1‑‑‑Review‑‑‑Error apparent on the face of record‑‑‑Connotation‑‑‑Misconstruction of law, misreading of evidence on record and non‑consideration of pleas raised before a Court, would amount to an error floating on the surface of record‑‑‑Principles illustrated.

Abdul Haleem Pirzada, Advocate Supreme Court for Appellants (in all cases).

Ghulam Rasool Qureshi, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate‑on‑Record for Respondents (in all cases).

Date of hearing: 28th December, 2004.

P L D 2005 Supreme Court 322

Present: Sardar Muhammad Raza Khan and Falak Sher, JJ

Haji MUHAMMAD SIDDIQUE‑‑‑Petitioner

versus

Rana MUHAMMAD SARWAR‑‑‑Respondent

Civil Petition No.3096‑L of 2002, decided on 15th February, 2005.

(On appeal from the judgment dated 3‑6‑2002 passed by the Lahore High Court, Lahore in Regular First Appeal No.701 of 2001).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXXVII, R. 3(2)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑­Suit for recovery of money on the basis of pronote‑‑‑Grant of leave to defend the suit‑‑‑Scope‑‑‑Provisions of O.XXXVII, R. 3(2), C.P.C. lay down and empower the Court to grant leave to defend either unconditionally or subject to such terms as to payment into Court or giving security‑‑‑Demand of the Court for furnishing security was thus not unlawful ‑‑‑Defendant in the present case, had not objected to the order for furnishing of security by the Court and sought various adjournments to arrange for the security‑‑‑Decree, on account of non­compliance of the order of the Court was rightly passed by the District Judge and upheld by the High Court‑‑‑No valid reasons being available to interfere, Supreme Court dismissed the petition for leave to appeal.

Rao Munawar Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 15th February, 2005.

P L D 2005 Supreme Court 323

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Harneed Dogar, JJ

Mrs. SHAHIDA FAISAL ‑‑‑Appellant

versus

FEDERATION OF PAKISTAN and others‑‑‑Respondents

Civil Appeal No.800 of 2000 and C.M.A. No. 1061 of 2003, decided on 3rd March, 2005.

(On appeal from the judgments of the Lahore High Court, Lahore, dated 25‑4‑2000 and 14‑6‑2000 passed in W.P. No.739 of 2000).

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

‑‑‑‑S. 25‑A‑‑‑"Wilful default"‑‑‑Question as to whether "wilful default" had been committed or not, squarely fell within the jurisdictional domain of Accountability Court‑‑‑Said question being a question of fact could only be determined on the basis of evidence, which had already been recorded by the Accountability Court‑‑‑Impact, import and significance of the provisions as contained in S. 25‑A, National Accountability Ordinance, 1999, shall at first instance be examined by the Accountability Court‑‑‑Other factors to be kept in view by the Accountability Court pointed out by the Supreme Court.

Determination as to whether "wilful default" has been committed ' or not, squarely falls within the jurisdictional domain o t' Accountability Court. The question as to whether "wilful default" has been committed or not being question of fact can only be determined on the basis of evidence which has already been recorded by the Accountability Court. The impact, import and significance of the provisions as contained in section 25‑A of the NAB Ordinance shall, at first instance, be examined by the Accountability Court.

The Accountability Court while determining the question of "wilful default", shall also examine the provisions as contained in sections 23, 63 and 64 of the Contract Act, 1872. The Accountability Court shall also examine the question as to whether the offence of "wilful default" which was incorporated in "Schedule of Offences" of the National Accountability Ordinance, 1999 (XVIII of 1999) could have been tried irrespective of the fact that it was specifically made an offence as well as the application of the principle of retrospectivity and continuity. The question as to whether the agreements between debtor and Bank rescheduling the liabilities on the basis whereof decree was accorded by High Court, were in public interest and impact of the decree which had attained finality also required examination by the Accountability Court. The Accountability Court would also examine as to whether the powers conferred upon the Chairman NAB under section 25‑A of the NAB Ordinance prior to its substitution with amended section 25‑A could be exercised suo motu when no such application was made by debtor. The question as to whether Bank had committed any illegality or the rescheduling was collusive in view of the fact that pursuant to section 8 of the Banking Companies (Recovery of Loans; Advances Credits and Finances) Act, 1997, the only course available for the Bank was to file a suit for the recovery of amount due and as to whether any amount was written off, released or adjusted for extraneous considerations or on political influence other than bona fide business reasons and if so whether it was so done in the public interest or otherwise? should be examined by the Accountability Court. Whether the Chairman NAB could have declared the rescheduled agreement as `null and void' being not in the public interest, also required consideration by the Accountability Court.

The difference between the original section 25‑A and substitutes' section 25‑A of the NAB Ordinance and the question of retrospectivity shall also be examined by the Accountability Court.

Unlimited or unfettered powers have not been conferred upon the Chairman NAB under clause (g) of section 25-A of the Ordinance to approve the decision of the Governor, State Bank of Pakistan and it is for the Accountability Court to accord approval which would of be a mechanical exercise. The "approval" must be accorded after diligent application of mind and keeping in view all the circumstances and chequered history of the case.

The substantial change in the previous stance, of the NAB, its reasoning, fresh arrangements arrived at, the agreements executed on different occasions are the points which required consideration by the Accountability Court in this regard.

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

‑‑‑‑S. 25‑A‑‑‑Chairman, National Accountability Bureau had not been conferred unlimited or unfettered powers under S. 25‑A(g) of National Accountability Ordinance, 1999 to approve the decision of Governor, State Bank of Pakistan, and it was for the Accountability Court to accord approval which should not be a mechanical exercise‑‑‑Approval must be accorded after diligent application of mind and keeping in view all the circumstances and chequred history of the case‑‑‑Substantial change in the previous stance by National Accountability Bureau, its reasoning, fresh arrangements arrived at, the agreements executed on different occasions, were the 'points which required consideration by the Accountability Court in this regard.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Rai Muhammad Nawaz Kharal, Advocate Supreme Court, Khawaja Haris, Advocate Supreme Court, Ch. Muhammad Akram and M.A. Zaidi, Advocates‑on‑Record for Appellant.

Raja Muhammad Irshad, D.A.‑G. and Rao Muhammad Yousaf, Advocate‑on‑Record for Respondent No. 1.

Irfan Qadir, Prosecutor General, Abdul Baseer Qureshi, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on-­Record for Respondent No.2.

Syed Ali Zafar, Advocate Supreme Court and Arshad Ali Ch., Advocate‑on‑Record for Respondent No.3.

Dates of hearing: 2nd and 3rd March, 2005.

P L D 2005 Supreme Court 337

Present: Khalil‑ur‑Rehman Ramday and Mian Shakirullah Jan, JJ

PROVINCIAL GOVERNMENT through Collector, Kohat and another‑‑‑ Appellants

versus

SHABBIR HUSSAIN ‑‑‑Respondent

Civil Appeal No.906 of 2000, decided on 22nd February, 2005.

(On appeal from the judgment dated 22‑11‑1999 of the Peshawar High Court passed in C.R.No.466 of 1994).

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

‑‑‑‑O. IX, Rr. 11 & 13‑‑‑Ex parte decree after filing of written statement by defendant, but in absence of any evidence led by plaintiff‑‑­Not justified‑‑‑Such decree was set aside and suit was remanded to Trial Court for its decision on merits and in accordance with law.

Kamran Co. and others v. Messrs Modern Motors and another PLD 1990 SC 713 fol.

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

‑‑‑‑O. IX, R.11‑‑‑Suit involving matter relating 'to public interest and public property‑‑‑Ex parte decree, passing of‑‑‑Duty of Court not to shut its eyes to legal and factual aspects involved in suit, but to protect public interest and public property, being its final custodian‑‑‑Principles highlighted.

The Courts of law must always keep in mind that even where the law permitted passing of an ex parte decree, the Judicial Officers should not adopt the said course of action with their eyes completely shut to the factual and legal aspects involved in the matter e.g. if a suit is filed seeking a decree to export herion from Pakistan and supposing none comes forward, for whatever reasons, to defend the said suit, then could it be legal or, permissible for a Court to pass a decree granting a relief which was absolutely illegal and unlawful? Likewise, Judicial Officers are required to exercise caution when they are dealing with matters relating to public property and public interest of which the Courts of law are the final custodians. Court have never leaned in favour of giving of preferential treatment to the Government Departments or agencies but Court are equally obliged, while granting relief, to ensure that public interest is not permitted to be jeopardized and public property is not allowed to be squandered through mere collusion of some representative of a Governmental agency.

Irtiqa Rasool Hashmi v. Water and Power Development Authority and another 1980 SCMR 722; Messrs Lahore Art Press through its Proprietor, Muhammad Mohsin and another v. National Bank of Pakistan, Anarkali Branch, Lahore PLD 1990 Lah. 300; Kamran Co. and others v. Messrs Modern Motors and another PLD 1990 SC 713; Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4, others 1987 SCMR 1365; Water and Power Development Authority v. Zahoor Ahmad 1994 SCMR 960; Naseem Ahmad Chaudhry v. Chairman, Punjab Labour Appellate Tribunal, Lahore and 4 others 1995 SCMR 1655; Syeda Tahira Begum and another v. Syed Akram Ali and another 2003 SCMR 29; Muhammad Bashir and another v, Province of Punjab through Collector of District Gujrat and others 2003 SCMR 83; Riaz Hussain and others v. Muhammad Akbar and others 2003 SCMR 181; Mst. Arshan Bi through Mst. Fatima Bi and others v. Maula Bakhsh through Mst. Ghulam Safoor and others 2003 SCMR 318; Jameela Pir Bukhsh and others v. Appellate Authority and others 2003 SCMR 1524; Nasir Hamid Qureshi v. Mst. Abbasi Begum and others 2003 SCMR 1553 and Province of Punjab through Secretary Education and another v. Mufti Abdul Ghani PLD 1985 SC 1 ref.

Hafiz Aman, Advocate Supreme Court for Appellant

Sheikh Wazir Muhammad Advocate Supreme Court for Respondent.

Date of hearing: 22nd February, 2005

P L D 2005 Supreme Court 343

Present: Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

FIDA HUSSAIN and others‑‑‑Petitioners

versus

ABDUL AZIZ‑‑‑Respondent

Civil Petition No.2689 of 2004, decided on 28th February, 2005.

(On appeal from order dated I1‑10‑2004 of the Peshawar High Court, Peshawar passed in C. R.No.1106 of 2004).

(a) Islamic Law‑‑‑

‑‑‑‑Gift‑‑‑Attestation of mutation‑‑‑Proof‑‑‑Gift mutation alleged by plaintiff to have been made in his favour by donor was earlier in time, while gift alleged by defendant from the same donor was later in time‑‑­ Mutation in favour of plaintiff was not reflected in Khasra Girdawaris or Record of Rights‑‑‑Mutation did not show delivery of possession of property from donor to plaintiff‑‑‑Report allegedly made to Patwari Halqa was silent regarding delivery of possession to plaintiff‑‑‑Plaintiff did not challenge gift mutation made by donor in favour of defendant‑‑­ Mutation in favour of defendant was incorporated in subsequent Khasra Girdawaris and Record of Rights showing delivery of possession of property to him by donor‑‑‑Held: Plaintiff had failed to prove genuineness or authenticity of gift mutation inin his favour –Defendant had succeeded in proving gift of property in cur with all its necessary ingredients‑‑‑Plaintiffs suit was dismissed in circumstances‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.42.

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

‑‑‑‑S. 42‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 129(e)‑‑‑Record of Rights, entries in‑‑‑Presumption of correctness would be attached to such entries of Record of Rights which were properly maintained by Revenue Authorities.

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

‑‑‑‑S. 42‑‑‑Mutation‑‑‑Evidentiary value‑‑‑Attestation of mutation by Revenue Authorities by itself would not be sufficient proof or evidence of title.

Moolchand and 9 others v. Muhammad Yousuf (Udhamdas) and 3 others PLD 1994 SC 462; Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCMR 1832; Nasrullah Khan v.Rasul Bibi 2001 SCMR 1156.; Jamsher and others v. Abdul Jalil and others PLD 1964 (W.P.) Pesh. 159; Manzoor Ahmed Sahi v. P&T Co-Operative Housing Society Ltd. Karachi PLD 1962 (W.P)Kar.476;(Thakur) Nirman Singh and others v. (Thakur) Lal Rudra Partab Narian Singh and other AIR 1962 PC 100; Abdul Rahim and another v. Mrs. Jannatay Bibi and 13 others 2000 SCMR 346; Abdul Majeed and 6 others v. Muhammad Sughan and 2 others 1999 SCMR 1245 and Muhammad and others v. Sardul PLD 1965 Lahore 472 ref.

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

‑‑‑‑S. 42‑‑‑Mutation proceeding‑‑‑Validity‑‑‑Proceedings taken by Revenue Officer would not be considered to be proceedings by a Court of law.

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

‑‑‑‑S. 42‑‑‑Limitation Act (IX of 1908), Arts.14 & 91-----Mutation‑‑‑Not an instrument within meaning of Arts.14 & 91 of Limitation Act, 1908.

(Thakur Nirman Singh and others v. (Thakur) Lal Rudra Partab Narian Singh and others AIR 1962 P.C 100 fol.

Tariq Mehmood, Advocate Supreme Court and Mehr urn Malik, Advocate‑on‑Record for Petitioners.

Nemo for Respondent.

Date of hearing: 28th February, 2005.

P L D 2005 Supreme Court 347

Present: Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

Mst. IRSHAD BEGUM and 2 others‑‑‑Appellants

versus

MUHAMMAD ARSHAD and 62 others‑‑‑Respondents

Civil Appeals Nos. 1615 and 1616 of 1999, decided on 14th February, 2005.

(On appeal from the judgment dated 16‑10‑1997 passed by Lahore High Court, Bahawalpur Bench, Bahawalpur in Writ Petitions No. 1536 of 1994 and 660 of 1995).

(a) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑‑

‑‑‑‑S. 4‑‑‑Subsequent allotment of same land while its original allotment was intact‑‑‑Validity‑‑‑Where original allotment of land in favour of an allottee was not cancelled, its subsequent allotment to another person would be void and liable to be ignored.

Abdul Ghani v. Noor Muhammad and others 1984 SCMR 1192 rel.

(b) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑‑

‑‑‑‑S. 4‑‑‑Allotment of land to an allottee, if once challenged and remained upheld up to Supreme Court, could not be re‑opened.

(c) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑‑

‑‑‑‑S. 4‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.42‑‑­Constitution of Pakistan (1973), Art.199‑‑‑Evacuee land, allotment of‑‑­Question raised in Constitutional petition before the High Court was that particular piece of land was not part of land transferred to allottee—­Validity‑‑‑Such factual controversy could be agitated in revenue hierarchy and not before High Court in Constitutional .jurisdiction.

Abdul Baseer Qureshi, Advocate Supreme Court and Arshad Ali Chaudhary, Advocate‑on‑Record (absent) for Appellants (in both Appeals).

Ihsanul Haq Chaudhary, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record (absent) for Respondents Nos.1 to 6, 9, 11 to 13, 21, 23, 25, 27 to 32, 38 & 43 (in C.A. No. 1615 of 1999).

S.M. Mohsin Zaidi, Advocate Supreme Court and Ch. Muhammad Akram, Advocate‑on‑Record for Respondents Nos. 47, 49, 51 and 59 (in C.A. 1615 of 1999).

Ex parte : Other Respondents (in C.A.1615 of 1999).

Ch. Muhammad Abdullah, Advocate Supreme' Court for Respondent No. l (in C. A. No. 1616 of 1999).

Ex parte : Respondents Nos. 2 to 4.

Date of hearing : 14th February, 2005.

P L D 2005 Supreme Court 359

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

DEFENCE OFFICERS HOUSING AUTHORITY through Administrator Defence Housing Authority, Karachi‑‑‑Petitioner

versus

MUHAMMAD BASHIR‑‑‑Respondent

Civil Petition No.37‑K of 2003, decided on 30th December, 2004.

(On appeal from the judgment dated 12‑12‑2002 of the High Court of Sindh, Karachi, passed in C.P. No.678 of 1992).

Pakistan Defence Officers Cooperative Housing Society Bye‑Laws‑‑‑

‑‑‑‑No.7(iii)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Civilian Officer in Ministry of Defence‑‑‑Entitlement to commercial plot‑‑­Show‑cause notice‑‑‑Respondent was civilian officer in Ministry of Defence and being member of Pakistan Defence ‑ Officers Cooperative Housing Society, was allotted two plots one commercial and other residential‑‑‑Membership was confined to certain officers working in Ministry of Defence/Military Finance, at the discretion of the Managing Committee as per Bye‑Law No.7(iii) of the Society‑‑‑Defence Housing Authority cancelled the membership of respondent with regard to commercial plot on the ground that he was declared as an associate member‑‑‑Order passed by the Authority was set aside by High Court in exercise of Constitutional jurisdiction ‑‑Validity‑‑‑Petitioner failed to refer any provision of bye‑laws of the Society declaring that an associate member was entitled to one plot only while regular member might have any number of plots‑‑‑No legal infirmity, misreading or non‑reading having been found in judgment of High Court, the same being unexceptional was maintained‑‑‑Leave to appeal was refused.

Nazar Hussain Dhoon, Advocate Supreme Court for Petitiofler.

K.A. Wahab; Advocate‑on‑Record for Respondent.

Date of hearing: 30th December, 2004.

P L D 2005 Supreme Court 361

Present: Nazim Hussain Siddiqui, C.J. and Abdul Hameed Dogar, J

HAIDER ALI RASHEED MOLJI and 9 others‑‑‑Petitioners

versus

Messrs JAFFAR‑E‑TAYYAR COOPERATIVE HOUSING SOCIETY LTD. through President and 11 others‑‑‑Respondents

Civil Petition No. 143‑K of 2005, decided on 13th January, 2005.

(On appeal from the order dated 13‑12‑2004 of the High Court of Sindh, Karachi in C.P. No.D‑1095/2004).

Cooperative Societies Act (VII of 1925)‑‑‑

‑‑‑‑S. 5‑‑‑Karachi Buildings Control Ordinance (V of 197.9), S.6‑‑­Constitution of Pakistan (1973), Art. 185(3)‑‑‑Amenity plot, allotment of‑‑‑Scope‑‑‑Disputed plot was amenity plot reserved for Memorial Hall, Madressa and Imam Bargah‑‑‑Petitioners had raised illegal construction over the plot and constructed residential houses wherein they were residing‑‑‑Founder of the Society had allowed seven persons working as employees of the trust to build their houses without any charges, ‑‑Houses were constructed even without having any layout plan sanctioned by Building Control Authority‑‑‑Validity‑‑‑High Court was right in holding that the construction being unauthorized over the reserved area be demolished within two months‑‑‑Leave to appeal was refused.

Akhtar Ali Mehmood, Advocate Supreme Court and K.A Wahab, Advocate‑on‑Record (absent) for Petitioners.

Samiuddin Sami, Advocate Supreme Court and Faizanul Haq, Advocate‑on‑Record for Respondent No. 1.

Nemo for Respondents Nos. 2 to 12

Date of hearing: 13th January, 2005

P L D 2005 Supreme Court 364

Present: Iftikhar Muhammad Chaudhry, Faqir Muhammad Khokhar and M. Javed Buttar, JJ

THE STATE‑‑‑Petitioner

versus

Haji KABEER KHAN‑‑‑Respondent

Civil Petitions Nos. 99‑L and 100‑L of 2003, decided on 25th February, 2005.

(On appeal against the order dated 18‑12‑2002 passed by the Lahore High Court, Lahore in Writ Petitions Nos. 20213 and 20214 of 2002).

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

‑‑‑‑S. 9(a)(b)‑‑‑Criminal Procedure Code (V of 1898), S.497(5)‑‑­Constitution of Pakistan (1973), Art.185(3)‑‑‑Bail, cancellation of‑‑­Grant of post‑arrest bail to accused on medical ground by High Court‑‑­Validity‑‑‑Accused had never gone to jail, but had been receiving treatment in renowned hospital of the country as indoor patient, where he had gone through Coronary Bypass Surgery etc. and was on medications‑‑‑Accused, while remaining in hospital, had never requested for grant of bail as he was quite satisfied with treatment being offered to him‑‑‑Accused while getting proper treatment in hospital or jail would not be entitled for grant of bail‑‑‑Report called for by Supreme Court from Medical Board of concerned Institute showed that health of accused was improving‑‑‑Bail of accused was cancelled by Supreme Court in circumstances.

Mian Manzoor Ahmad Watto v. The State 2000 SCMR 107; Ch. Zulfiqar Ali v. The State PLD 2002 SC 546 and Muhammad Saeed Mehdi v. The State and 2 others 2002 SCMR 282 ref.

Haji Rahimullah v. The State and another 1970 SCMR 514; Malik Muhammad Yousafullah Khan v. The State and another PLD 1995 SC 58; Muhammad Arshad v. The State 1997 SCMR 1275; Muhammad Aslam Bajwa v. The State PLD 2004 SC 780; Shahabzuddin Chaudhry and another v. The State PLD 2004 SC 785 and Zarin Khan v. The State 1980 SCMR 305 fol.

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

‑‑‑‑S. 497(1)‑‑‑Bail on medical ground, grant of‑‑‑Scope‑‑‑Accused would not be entitled to grant of bail, if he was getting proper treatment either in hospital or in jail‑‑‑Principles stated.

If the ailment with which the accused is suffering is not being properly treated while in custody in jail, then his case on medical ground can be examined.

If accused is suffering from ailments, but is already in hospital; where he is getting the treatment according to his own choice, then his case will not fall within the exceptions of S.497(1),, proviso, Cr.P.C.

If accused has been getting proper treatment in hospital or jail, he would not be entitled to grant of bail.

Haji Rahimullah v. The State and another 1970 SCMR 514; Malik Muhammad Yousafullah Khan v. The State and another PLD 1995 SC 58; Muhammad Arshad v. The State, 1997 SCMR 1275; Muhammad Aslam Bajwa v. The State PLD 2004 SC 780; Shahabzuddin Chaudhry and another v. The State PLD 2004 SC 785 and Zarin Khan v. The State 1980 SCMR 305 fol.

(c) Criminal trial‑‑‑

‑‑‑‑ In criminal administration of justice, each case has to be decided on its own facts and circumstances and Courts are required to exercise jurisdiction independently.

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

‑‑‑‑S. 497(1)(5)‑‑‑Bail on‑medical ground‑‑‑Grant/cancellation of bail, application for‑‑‑Medical report, calling for‑‑‑Scope‑‑‑Court in the interest of justice, during pendency of such application, could call for report from Medical Institute having specialization in diseases with which accused was allegedly suffering.

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

‑‑‑‑S. 497(1)(5)‑‑‑Bail on medical ground, grant of‑‑‑Criteria‑‑‑Right of prosecution to seek cancellation of bail after improvement of health of accused‑‑‑Principles stated.

The Courts are not required to qualify or quantify the nature of disease and once a case is made out under, the recognized principle laid down by Supreme Court in this behalf, bail is to be granted on medical ground leaving prosecution at liberty to move the Court for cancellation of bail, if health of accused has improved during pendency of proceedings, because on the ground of sickness or infirmity, on exceptional term, law has offered an opportunity to an accused to enjoy the concession of bail subject to satisfying the Court about the nature of his ailment as well as on the ground of non‑getting of proper treatment in jail, but no sooner the accused has improved his health, the prosecution can come forward with the request of withdraw the concession of bail.

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

‑‑‑‑S. 9(b)‑‑‑Pre‑arrest bail, grant of‑‑‑Jurisdiction of High Court‑‑­Scope‑‑‑No provision existed in National Accountability Ordinance, 1999 for grant of pre‑arrest bail to accused‑‑‑High Court would exercise its power sparingly in rare and exceptional circumstances for valid reasons to be recorded in writing.

Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division and others PLD 2001 SC 607; Meeran Bux.v. The State PLJ 1986 (sic) 526 and Murad Khan v. Fazal‑e‑Subhan and another PLD 1983 SC 82 rel.

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

‑‑‑‑S. 9(b)‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑‑Grant of pre‑arrest bail to accused by High Court‑‑‑Validity‑‑‑High Court had not recorded reasons indicating exceptional circumstances for exercising extraordinary Constitutional jurisdiction in favour of accused, particularly when he had not been arrested in the case and had not attributed mala fides to prosecution in bail application‑‑‑Bail of accused was cancelled by Supreme Court in circumstances.

Arfan Qadir, PG NAB and Faiz‑ur‑Rehman, Advocate‑on-­Record for Petitioner.

Abid Hassan Minto, Senior Advocate Supreme Court for Respondent.

Date of hearing: 25th February, 2005

P L D 2005 Supreme Court 373

Present: Nazim Hussain Siddiqui, C.J., Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

Messrs MASTER FOAM (PVT.) LTD. and 7 others‑‑‑Appellants

versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Finance and others‑‑‑Respondents.

Civil Appeals Nos. 435 of 1999, 499, 819, 1344 to 1346 and 1348 of 2000, 63 to 65 of 2001, 1852 of 2002 and 1674 of 2003, decided on 8th March, 2005.

On appeal from the judgments dated 27‑10‑1998, 10‑4‑2000, 2‑11‑2000, 13‑10‑2002, 13‑11‑2002, 28‑7‑2003 of Lahore High Court passed in W.P. Nos. 18667, 7820/1998, 1671, 29629, 23563/1997, 21544/1996, 5738/1998, 136/1998, 20710/1999, 12777/2000, 266/2000, 2042/2003 respectively).

(a) Sales Tax Act ( VII of 1990)‑‑‑

‑‑‑‑S. 3(b)‑‑‑Customs Act (IV of 1969), Preamble‑‑‑Constitution of Pakistan (1973), Fourth Schedule; Federal Legislative List, Part I, Item No. 49 & Art. 185(3)‑‑‑Scope of tax‑‑‑Leave to appeal was granted by Supreme Court to consider whether S.3(b), Sales Tax Act, 1990 was repugnant to Item No. 49 of the Federal Legislative List, Fourth Schedule, Part I of the Constitution and that the Customs Act, 1969 and the Sales Tax Act, 1990 were not applicable to the territories of Azad Jammu and Kashmir and the goods in transit were not subject to payment of taxes.

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

‑‑‑‑Art. 1‑‑‑Territory of Azad Jammu and Kashmir is not a part of Pakistan.

Noor Hussain v. State PLD 1966 SC 88 ref.

(c) Sales Tax Act (VII of 1990)‑‑‑

‑‑‑‑5. 3(1)(b)‑‑‑Sales Tax Act (III of 1951), Ss. 3 & 2(c)‑‑‑Constitution of Pakistan (1973), Fourth Schedule, Part I, Federal Legislative List Item No.49‑‑ Import‑‑‑Meaning‑‑‑Import, export, production, manufacture and consumption are distinct taxable events independent and irrespective of sales of goods‑‑‑Purpose of Item No. 49 of Federal Legislative List, Part I of Fourth Schedule, of the Constitution was to expand its scope so as to include, inter alia, import as a separate taxable event as had been the position under the Sales Tax Act, 1951‑‑‑Goods imported in Pakistan, when they entered the territory of Pakistan and became liable to taxation, it was immaterial that ultimately they were to be transported to Azad Jammu and Kashmir‑‑‑Import into Pakistan was a distinct taxable event independent of any event following thereafter‑‑­Principles.

In the present cases precise question for determination was whether the bringing of goods into Pakistan (import) was an independent taxable event attracting sales tax under section 3(1)(b) of the Sales Tax Act 6f 1990 and was not contingent on the ultimate destination of the goods (in this case AJK), or in other words, sales tax would, constitutionally and lawfully be levied on goods brought into Pakistan at the time they were brought in (imported) and was not dependent on a further event happening in respect of goods in Pakistan, such as mixing of the goods or the sale thereof in Pakistan.

Import, export, production, manufacture and consumption are distinct taxable events independent and irrespective of sales of goods. It is thus clear that the purpose of Entry 49 of Part I, Federal List, Fourth Schedule of the Constitution was to expand its scope so as to include, inter alia, import as a separate taxable event as had been the position under the Act of 1951.

A close scrutiny of the relevant provisions appearing in the Sales Tax Acts of 1951 and 1990 unambiguously reveals that they are part of the same family of laws. Insofar as they relate to the import and export of goods, they are pari materia and that one statute specifies what can be imported while the other regulates the levy and collection of tax on imports. The Sales Tax Act of 1951 predates the Sales Tax Act of 1990, therefore while enacting the latter, the Legislature is presumed to have been aware of the former and in particular of the definition of the word import' in section 2(c) thereof, the two statutes have to be construed together and the definition of the wordimport' used in the Sales Tax Act of 1951 would apply to the Sales Tax Act of 1990 and that even if the two statutes are not pari materia, the word `import' has consistently been given its ordinary dictionary meaning by the Courts in Pakistan.

The Courts in Pakistan have consistently given the word import' its natural and ordinary meaning ofbringing into' the country and have rejected the imposition of artificial constraints on it, such as those imposed by the American doctrine of original package. It being so, there is no scope that the word import' should be given a different meaning than what appears in section 3(1)(b) of the Sales Tax Act of 1990, especially when there is nothing in the statute to indicate that different meaning was intended by the Legislature. It appears that the Legislature, by not defining the wordimport' in the Sales Tax Act of 1990 desired the interpretation of said word in accordance with the following principle:‑ "When a Legislature uses iii a statute a legal term, which has received a judicial interpretation, it is to be presumed that the term has been used in the sense in which it has been judicially interpreted, unless a contrary intention appears from the statute".

Thus, the goods were imported into Pakistan when they entered the territory of Pakistan and became liable to taxation accordingly. It is immaterial that ultimately they were to be transported to Azad Jammu and Kashmir. This is for the reason that import into Pakistan is a distinct taxable event independent of any event following thereafter.

Close scrutiny of Entry 49 of the Fourth Schedule, Federal List, Part I of the Constitution and other laws reveal that acceptance of contention that Entry 49 authorizes tax on import only when it is followed by sale or purchase in Pakistan, will render the words imported, exported, produced, manufactured or consumed' redundant and also frustrate the whole purpose of Entry 49. If sale and purchase alone were taxable events, then there was no point in adding the wordsimported, exported, produced, manufactured or consumed'. Clearly, no redundancy can be attributed to the Legislature and on this ground the contention is repelled. It is also to be noted that if the contention is accepted, a situation would arise where import into Pakistan may not be taxed at all. Besides, while examining the validity of a statute, the principle is that there is a presumption of constitutionality of a statute and that every explanation in favour of a statute must be found. Keeping in view the complexity of economic problems, great latitude is shown in favour of fiscal statutes.

Noor Hussain v. State PLD 1966 SC 88; Pakistan v. Public at large PLD 1987 SC 304; The Central India Spinning and Weaving and Manufacturing Co. v. The Empress Mills/Municipal Committee; Wardha AIR 1958 SC 341; Brown v. State of Maryland 6 L Ed. 678; Timber Traders Association v. District Board AIR 1965 Pun. 97; Messrs Najhib Zarab v. Government of Pakistan PLD 1993 Kar. 93; Commissioner of Sales Tax y. Hunza Central Asian Textile and Woollen Mills Ltd. 1999 SCMR 526; Sheikhoo Sugar Mills Ltd. v. Government of Pakistan 2001 PTD 2097 = 2001 SCMR 1376; Pakistan Industrial Development Corporation v. Pakistan 1992 SCMR 891; Riaz Bottlers (Pvt.) Ltd. v. Federation of Pakistan 2000 PTD 485; Pakistan Textile Mill‑owners' Association v. Administrator of Karachi PLD 1963 SC 137; East and West Steamship Co. v. Collector of Customs PLD 1976 SC 618; Messrs Tahseen (Pvt.) Ltd. v. Additional Collector of Customs Dry Port, Rawalpindi 1998 PTD 2561; Concise Oxford Dictionary New Edn., p.593; Blacks Law Dictionary, 6th Edn., p.1115; Mushtaq Awan v. Government of Pakistan PLD 1999 Lah. 372; Understanding Statutes by S.M. Zafar, 2nd Edn., pp.696, 697; WAPDA v. Collector of Central Excise and Sales Tax 2002 PTD 2077; Gramophone Ca, of India v. Birendra Bahadur Pandey (1984) 2 SCC 534; Zaman Cement v. Central Board of Revenue 2001 CLC 1625; 2002 SCMR 312; Lahore Textile anc General Mills Ltd. v. Collelctor of Customs, Lahore PLD 1988 Lah. 563 and Hilal Tanneries Ltd. v. Zila Council, Gujrat 1994 MLD 2366 ref.

(d) Interpretation of statutes‑‑‑

‑‑‑‑ No redundancy can be attributed to the Legislature.

(e) Interpretation of statutes‑‑‑

‑‑‑‑Validity of a statute‑‑‑Principle‑‑‑While examining the validity of a Statute, principle is that there is a presumption of constitutionality of a Statute and that every explanation in favour of a statute must be found.

Mushtaq Awan v. Government of Pakistan PLD 1999 Lah. 372 and Understanding Statutes by S.M. Zafar, 2nd Edn., pp.696, 697 ref.

(f) Interpretation of statutes‑‑­

‑‑‑‑Fiscal Statute‑‑‑Great latitude has to be shown in favour of fiscal statute, keeping in view the complexity of economic problems.

Mushtaq Awan v. Government of Pakistan PLD 1999 Lah. 372 and Understanding Statutes by S.M. Zafar, 2nd Edn., pp.696, 697 ref.

(g) Words & phrases‑‑‑

-----"Import"‑‑‑Connotation.

Concise Oxford Dictionary New Edn., p.593 and Blacks Law Dictionary, 6th Edn., p.1115 ref.

Abid S. Zuberi, Advocate Supreme Court for Appellants (in C.A. No.435 of 1999).

S.M. Zafar, Senior Advocate Supreme Court and Irtaza Naqvi, Advocate for Appellants (in C.A. No.499 of 2000).

Najamul Hasan Kazmi, Advocate Supreme Court for Appellants (in C. A. No. 819 of 2000).

Nemo for Appellants (in C. A. No. 1344 of 2000).

Mahmoodul Islam, Advocate‑on‑Record for Appellants (in C.As Nos. 1345, 1346, 1348 of 2000).

Jawahar A. Naqvee, Advocate Supreme Court for Appellants (in C.As. Nos.63 to 65 of 200‑1).

Ch. Muhammad Akram, Advocate‑on‑Record for Appellants (in C. As. Nos. 1852 of 2002 and 1674 of 2003).

Makhdoom Ali Khan, Attorney‑General for Pakistan with Uzair' Karamat Bhindari, Advocate and Suleman Hameed Afridi, Barrister (On Court Notice).

Fakhruddin G. Ibrahim, Senior Advocate Supreme Court, Raja Abdul Ghafoor, Advocate‑on‑Record for Respondent No‑.3 (in C.As. Nos.435/1999 and 499/2000).

Izharul Haq, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate‑on‑Record for Respondents (in C.As. Nos.819/2000 and 63 to 65/2001).

Sohail Akhtar, Advocate Supreme Court and Sh. Masood Akhtar, Advocate‑on‑Record for Respondents (in C.As. Nos.1344 to 1346 and 1348/2000).

Malik Itaat Hussain, Advocate Supreme Court and M. S. Khattak, Advocate‑on‑Record for Respondents (in C.As. Nos.1852/2002 and 1674/2003).

Dates of hearing: 23rd and 24th November, 2004.

P L D 2005 Supreme Court 393

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Hamid Ali Mirza, JJ

PEARL CONTINENTAL HOTEL and another‑‑‑Petitioners

Versus

GOVERNMENT OF N.‑W.F.P and others‑‑‑Respondents

Civil Petition No.2720 of 2004, decided on 28th March, 2005.

(On appeal from the judgment/order dated 3‑11‑2004 passed by Peshawar High Court, in Writ Petition No.650 of 2003):

North‑West Frontier Province Hotel Tax Rules, 2003‑‑‑--

‑‑‑‑R.4‑‑‑North‑West Frontier Province Finance Ordinance (XXIII of 2002), Ss.4 & 5 [as incorporated under North‑West Frontier Province Finance (Amendment) Ordinance (VII of 2003)]‑‑‑Constitution of Pakistan (1973), Arts. 128 & 185 (3)‑‑‑Leave to appeal was granted by Supreme Court to consider; whether North‑West Frontier Province Hotel Rules, 2003, were framed by Provincial Government with competent authority because S.5 incorporated in North‑West Frontier Province Finance Ordinance, 2002, was not laid before Provincial Assembly, for making it as Act of Provincial Assembly, within the 'period of three months from its promulgation as per Art. 128 of the Constitution; whether North‑West Frontier Province Finance (Amendment) Ordinance, 2003, had been protected under Seventeenth Amendment 2003, of the Constitution, if so, to what effect; whether R.4 of North‑West Frontier Province Hotel Tax Rules, 2003, had been promulgated beyond the scope of S. 4 of North‑West Frontier Province Finance Ordinance, 2002, if so, being ultra vires to the Ordinance, deserved to be struck down; and whether High Court had correctly incorporated the expression used in S.4 of North‑West Frontier Province Finance Ordinance, 2003, namely `lodging units available at the rate of 5 % of the room rent per lodging unit per day".

Naeem ‑ Bukhari, Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Petitioners.

M. Eassa Khan, Addl. A.G., N.‑W.F.P. and Syed Zafar Abbas Zaidi, Advocate Supreme Court for Respondents.

Date of hearing: 28th March, 2005.

P L D 2005 Supreme Court 395

Present: Sardar Muhammad Raza Khan and Mian Shakirullah Jan, JJ

Lieutenant IFFAT KAZMI and anothers‑‑‑ Petitioners

Versus

SHUJA AKBAR SHAH and others‑‑‑Respondents

Civil Petitions Nos. 1397 and 2950 of 2004 and Civil Appeal No.402 of 2004, decided on 1st March, 2005.

(On appeal from the judgment dated 24‑2‑2004 passed by the Lahore High Court, Lahore in Writ Petition No.6908 of 2003).

(a) Islamic Law‑‑‑

‑‑‑‑Talaq‑‑‑Shia sect‑‑‑Under exceptional circumstances that might prevail differently in different cases‑‑‑Talaq pronounced in absence of wife and conveyed to her in writing is a valid Talaq under Shia Law.

Ali Nawaz Gardezi's case PLD 1963 SC 51; Mirza Qamar Raza PLD 1988 Kar. 169 and Mst. Maryam Bano's case 1984 CLC 1961 rel.

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

‑‑‑‑S.5‑‑‑Maintenance allowance, quantum of‑‑‑Determination‑‑‑Family Court fixed maintenance at the rate of Rs.25,000 per month, which was reduced by Appellate Court to Rs.15,000 per month‑‑‑High Court in exercise of Constitutional jurisdiction further reduced the maintenance to Rs.10,000 per month‑‑‑Validity‑‑‑While determining maintenance, it was important to notice the financial status of husband as well as the wife‑‑­Wife was a gazetted officer in Armed Forces while husband was a doctor serving abroad in U.K. and their status was obvious‑‑‑High Court while exercising Constitutional jurisdiction could not have come to a different conclusion as no such circumstances were given, under which the amount could be further reduced to Rs.10,000 per month‑‑‑Amount fixed by the Appellate Court was in accordance with the status of. parties and High Court had no reason to reduce such amount‑‑‑Supreme Court converted petition for leave to appeal into appeal and the judgment passed by High Court was set aside and that of the Lower Appellate Court was restored‑‑‑Appeal was allowed.

Petitioner in person (in both C.Ps.).

Ex pane: Respondent No.2: Ex parte (in both C. Ps. and in (C.A. No.402 of 2004).

Hifz‑ur‑Rehman, Advocate Supreme, Court with Mehr Khan Malik, Advocate‑on‑Record for Respondent No.1 (in both C.Ps.) and for .Appellant (in C.A. No.402 of 2004).

Respondent No. 1 (in person) (in C.A. No. 402 of 2004).

Date of hearing: 1st March, 2005.

P L D 2005 Supreme Court 399

Present: Nazim Hussain Siddiqui, C. J., Javed Iqbal and Abdul Hameed Dogar, JJ

THE STATE through Prosecutor General, NAB, Islamabad‑‑‑Petitioner

Versus

AFTAB AHMED KHAN SHERPAO‑‑‑Respondent

Criminal Petition No.207 of 2002, decided on 7th March, 2005.

(On appeal from the judgment dated 17‑4‑2002 of the Peshawar High Court, Peshawar passed in Ehtesab Criminal Appeal No.1 of 2002).

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

‑‑‑S. 31‑A‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Conviction in absentia‑‑‑Avoiding of process issued by Trial Court‑‑‑Retrospective effect of S.31‑A, National Accountability Ordinance, 1999‑‑‑Trial Court convicted the accused under S.31‑A of National Accountability Ordinance, 1999, for his non‑appearance before Trial Court in compliance with the process issued against him‑‑‑Accused surrendered before High Court and the sentence awarded by Trial. Court under S.31‑A of National Accountability Ordinance, 1999, was set aside by High Court‑‑‑Plea raised by the Authorities was that the conviction was rightly recorded after due process of law and it was established that the accused was wilfully evading and avoiding the process of law‑‑­Validity‑‑‑Accused left Pakistan for London on 31‑1‑2000, on which date offence under 8:31‑A of National Accountability Ordinance, 1999, was not available on statute book and was added on 3‑2‑2000 in the said Ordinance, thus it could not be applied with retrospective effect‑‑­Reference against the accused was filed on 7‑2‑2000, and judgment was delivered on 9‑8‑2000, wherein the accused was declared as proclaimed offender‑‑‑Reference under S.31‑A of National Accountability Ordinance, 1999, was filed on 28‑8‑2000 and the accused was convicted on 30‑9‑2000‑‑‑Accused voluntarily surrendered before High Court on 6‑1‑2002, where appeal against his conviction was pending‑‑‑Judgment of acquittal could not be interfered with unless it was found on. face of it as perverse, arbitrary, capricious or based on non‑reading or misreading 6f evidence, which the Authorities, had failed to prove‑‑Finding of acquittal recorded by High Court vas unexceptional and did not require any interference‑‑‑Leave to appeal was refused.

Muhammad Jaffar Hashmi, Advocate Supreme Court for Petitioner.

Syed Zafar Abbas Zaidi, Advocate Supreme Court and M.S Khattak, Advocate‑on‑Record for Respondent.

Date of hearing: 7th March, 2005.

P L D 2005 Supreme Court 402

Present: Faqir Muhammad Khokhar and Mian Shakirullah Jan, JJ

AHMED KHAN‑‑‑Appellant

Versus

Mst. SAKINA BIBI and others‑‑‑Respondents

Civil Appeal No.277 of 2001, decided on 8th March, 2005.

(On appeal from judgment dated 24‑5‑1999 of the Lahore High Court, Lahore, passed in R.S.A.No.276 of 1979).

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

‑‑‑‑S. 21‑A‑‑‑Land Reforms Regulation, 1972 (M.L.R. 115), para. 25 (3)‑‑‑Pre‑emption suit‑‑‑Right of tenant‑‑‑Status, improvement of‑‑‑Suit land was sold on 18‑9‑1970, and pre‑emptor filed suit on 14‑9‑1971, being co‑sharer‑‑‑Trial Court dismissed the suit on the ground that vendee had improved his status under para.25 (3) of Land Reforms Regulation (M.L.R. 115), as he was tenant in the suit‑land‑‑‑Appellate Court allowed the appeal and decreed the suit‑‑‑Judgment and decree passed by Appellate Court was maintained by High Court in second appeal‑‑‑Plea raised by the vendee was that under para.25 (3) of Land Reforms Regulation (M.L.R. 115), he had superior right of pre‑emption as he was tenant in the suit‑land‑‑‑Validity‑‑‑Right of pre‑emption created under para. 25 (3) of Land Reforms Regulation (M.L.R. 115), was not available to a tenant who had purchased the suit‑land before coming into force of Land Reforms Regulation (M.L.R. 115) and question of improved status did not arise‑‑‑Position of vendee would nave been different if he had purchased the suit‑land on a date falling in Kharif 1971 or at any time thereafter while holding the status of a tenant thereof‑‑‑High Court had rightly taken the view that the vendee could not defeat the right of pre‑emptor merely on the ground that he was a tenant at the time of sale of the suit‑land in year, 1970, as no right of pre­emption was available to a tenant at that time‑‑‑Supreme Court declined to take any exception to the judgment passed by High Court‑‑‑Appeal was dismissed.

Piara Khan v. Bashir Ahmed 1991 SCMR 2107 distinguished.

Fazal Khan and another v. Ghulam Rabbani PLD 1983 SC 265 fol.

Muhammad Younis Bhatti, Advocate Supreme Court for Appellant.

Raja Shafqat Abbasi, Advocate Supreme Court for Respondents.

Date of hearing: 8th March, 2005.

P L D 2005 Supreme Court 405

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

Messrs NATIONAL ELECTRIC CO. and others‑‑‑Appellants

Versus

KHALID SIDDIQUE and others‑‑‑Respondents

Civil Miscellaneous Appeal No.41 of 2001 in C.R.P. No. Nil/2000 in Civil Appeal No. 1230 of 1996, decided on 17th March, 2005.

Supreme Court Rules, 1980‑‑‑

‑‑‑‑O.XXVI, R.6‑‑‑Review‑‑‑Pre‑conditions‑‑‑Filing of review petition by another Advocate‑‑‑Scope‑‑‑Hearing of review petition was not automatic and was subject to various conditions‑‑‑Except with special leave of Supreme Court, no application for review could be entertained unless it was drawn by the Advocate who, appeared at the hearing of the case in which the judgment or order sought to be reviewed was made‑‑­Counsel who filed the review application did not appear at the time of hearing of appeal, therefore, he could not appear in the review petition as of right‑‑‑Supreme Court declined to relax the provisions of O.XXVI, R.6 of Supreme Court Rules, 1980‑‑‑Appellants did not have any case on law and facts‑‑‑Appeal was dismissed.

Muhammad Younas v. State PLD 2005 SC 93; Rashid v. State 1983 SCMR 295; Feroze Din v. Sardar Muhammad 2002 SCMR 1993, and Mukhtar Ahmad v. State PLD 2003 SC 126 rel.

Maqbool Elahi Malik, Senior Advocate Supreme Court and Kh. Mushtaq Ahmed, Advocate‑on‑Record (absent) for Appellants.

S.M. Naseem, Advocate Supreme Court for Respondents.

Date of hearing: 17th March, 2005.

P L D 2005 Supreme Court 408

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

CHIEF EHTESAB COMMISSIONER, CHIEF EHTESAB COMMISISONER'S SECRETARIAT, ISLAMABAD ‑‑‑ Appellant/Petitioner

Versus

AFTAB AHMAD KHAN SHERPAO, EX‑CHIEF MINSITER, N.‑W.F.P. PESHAWAR and others‑‑‑Respondents

Criminal Appeals Nos.51 and 52 of 1998 and Criminal Petition No. 140 of 1998, decided on 7th March, 2005.

(On appeal from the judgment dated 26‑6‑1997 of the Peshawar High Court, Peshawar, passed in Ehtesab Case Nos. 2, 3 and 4 of 1997).

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

‑‑‑‑S.265‑D‑‑‑Discharge of accused‑‑‑Principles‑‑‑Trial Court to examine the entire material placed on record by prosecution, before exercising the powers under S.265‑D, Cr.P.C.

(b) Ehtesab Act (IX of 1997)‑‑‑--

‑‑‑‑S. 3(1)(c)(d)‑‑‑Offence of corruption and corrupt practices‑‑‑Scope‑‑­Allegation against the accused was that he allotted plots to his co‑accused in violation of approved Housing Scheme for construction of Government residences which caused loss to Housing Project ‑‑‑Ehtesab Bench discharged the accused in exercise of powers under S.265‑D, Cr.P.C.‑‑‑Validity‑‑‑Essential requirement for bringing the offence within the ambit of S.3(1)(c)(d) of Ehtesab Act, 1997, was that a holder of public office or any other person covered by such term by abusing his position as a holder, of public office, had sought for himself, or for his spouse or dependents any property, valuable thing .,or pecuniary advantage by corrupt, dishonest or illegal means‑‑‑Prosecution did not produce any evidence to show the same‑‑‑Neither the applications filed by the co‑accused for allotment of plots were produced with the reference, .nor the allotment orders were placed on record; in such circumstances, it could not be said that even offence had commenced‑‑­Grounds which weighed with the Ehtesab Bench to discharge the accused were convincing and were based on sound reasoning and thus were not open to interference‑‑‑Appeal was dismissed.

Ms. Nahida Mahboob Elahi, D.A.‑G. and. Ch. Akhtar Ali, Advocate‑on‑Record for Appellant/Petitioner.

Zehoorul Haq, Senior Advocate Supreme Court, Syed Zafar Abbas Zaidi, Advocate Supreme Court and M.S. Khattak, Advocate‑on­-Record for Respondents.

Date of hearing: 7th March, 2005.

P L D 2005 Supreme Court 412

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

Mst. NARMEEN S. HUSSAIN ‑‑‑Appellant

Versus

ADMINISTRATOR, ABANDONED PROPERTIES MANAGEMENT (CABINET DIVISION), KARACHI and another‑‑‑Respondents

Civil Appeal No. 1063 of 1999, decided on 30th March, 2005.

(On appeal from the judgment dated 2‑12‑1998 of the High Court of Sindh, Karachi passed in C.P. No.D‑1639 of 1991).

Pakistan Citizenship Act (II of 1951)‑‑‑--

‑‑‑‑Ss. 3(d), 16‑A(1)(iii) & 16‑A(2)‑‑‑Abandoned Properties (Taking over and Management) Act (XX of 1975), S.11‑‑‑Renouncing of Pakistani nationality‑‑‑Onus to prove‑‑‑Declaration of property as abandoned‑‑­Mother of appellant migrated from India to Pakistan and had been in service since 1‑2‑1951‑‑‑Disputed plot was purchased by the mother of appellant in auction on.22‑1‑1970 and earnest money was deposited, while remaining price was to be deposited within 2 years‑‑‑Appellant along with her mother, in year, 1972, went to USA for studies‑‑‑Mother of appellant was murdered in year, 1981 in Bangladesh‑‑‑Appellant after completing her education, returned to Pakistan in year 1987, and after completion of necessary formalities and payment of outstanding dues, got the disputed plot transferred in her name‑‑Abandoned Properties Organization, in year, 1988, declared the mother of appellant as Specified Person' on the basis of letter sent by her to the then Chief Martial Law Administrator, whereby she stated to have abandoned her Pakistani citizenship, thus declaring the disputed plot asAbandoned Property'‑ ‑‑Declaration was maintained by appellate authorities as well as by High Court in exercise of Constitutional jurisdiction‑‑‑Plea raised by the appellant was that her mother was Pakistani national and disputed property could not be declared as Abandoned Property'‑‑‑Validity‑‑­Mother of the appellant was citizen of Pakistan, domiciled inn Karachi, even after cut‑off date i.e. 16‑12‑1971, as she had never renounced her Pakistani nationality and the onus to prove the same was upon the Authorities to which they had failed‑‑‑Mother of the appellant; at no time prior to 16‑12‑1971, domiciled in the then East Pakistan and till. her death, she never ceased to be a Pakistani national‑‑‑Any person who before 13‑4‑1951, had migrated to Pakistan from the sub‑continent was Pakistani as good as one who was born in the territories that came to constitute Pakistan after 14‑8‑1947‑‑‑Appellant's mother was in Pakistan on 1‑2‑1951, and she was a citizen of Pakistan under S.3(d) of Pakistan Citizenship Act, 1951‑‑‑Case of mother of appellant did not fall under S.16‑A(2) of Pakistan Citizenship Act, 1951, but would fall under 5.16‑A(1)(iii) of Pakistan Citizenship Act, 1951‑‑‑By sending simply a letter to the. then Chief Martial Law Administrator, it was not sufficient to conclude that the mother of appellant had abandoned her Pakistani citizenship‑‑‑No concrete proof in that regard had been brought on record by the Authorities, as such the findings of all the forums below declaring the property in question asAbandoned Property' were not sustainable in law and were set aside‑‑‑Appeal was allowed.

Bashir Ahmad v: Muhammad Yousaf, Deceased, Represented by Muhammad Shafique 1993 SCMR 183 and Islamuddin and others v. Ghulam Muhammad and others PLD 2004 SC 633 ref.

Shaiq Usmani, Advocate Supreme Court for Appellant.

Nasir Saeed Sheikh, D.A.‑G. and Ch. Akhtar Ali, Advocate‑on­-Record for Respondents.

Dates of hearing: 9th and 10th February, 2005.

P L D 2005 Supreme Court 418

Present: Javed Iqbal, Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ

IMAM DIN and 4 others‑‑Appellants

Versus

BASHIR AHMED and 10 others‑‑‑Respondents

Civil Appeal No.466 of 1999, decided on 1st April, 2005.

(On appeal from the judgment dated 8‑9‑1997 passed by Lahore High Court, Multan Bench, in C.R. 169‑D of 1997)

(a) Contract Act (IX of 1872)‑‑‑--

‑‑‑‑S. 201‑‑‑Termination of agency under power of attorney‑‑‑Death of one of the principals‑‑‑Scope‑‑‑No flexible rule can be laid down as to when more than one person can jointly appoint a person as their agent‑‑­Death of one would result into. termination of the authority of the agent not only with regard to the deceased but also on behalf of the others‑‑­Such question is to be determined in each case on the basis of intention of the parties in the light of terms of the instrument and since agency under the power of attorney is different to that of other contracts, therefore, the agency of power of attorney cannot be stricto senso, adjudged on the touchstone of the principles applicable to the contracts.

(b) Power of Attorney‑‑‑

‑‑‑‑ Rule of construction‑‑‑Authority of attorney‑‑‑Object and scope‑‑­Principal and attorney‑‑‑Relationship‑‑‑Power of attorney is 'a written authorization by virtue of which the principal appoints a person as his agent and confers upon him the authority to perform specified acts on his behalf and thus primary purpose of instrument of such nature is to assign the authority of the principal to another person as his agent‑‑‑Main object of such type of agency is that agent has to act in the name of principal and principal also purports to rectify all the acts and deeds of his agent done by him under the authority conferred through the instrument‑‑‑In view of nature of authority, power of attorney must be strictly construed and proved and further the object and scope of power of attorney must be seen in the light of its recital to ascertain the manner of the exercise of authority in relation to the terms and conditions specified in the instrument‑‑‑Rule of construction of such document is that special powers contained therein followed by general words are to be construed as limited to what is necessary for the proper exercise of special powers and where the authority is given to do a particular act followed by general words, the authority is deemed to be restricted to what is necessary for the purpose of doing the particular act‑‑‑General words do not confer general power but are limited for the purpose for which the authority is given and are construed for enlarging the special powers necessary for that purpose and must be construed so as to include the purpose necessary for effective execution‑‑‑Settled rule is that before an act purported to be done under power of attorney is challenged as being in excess of the powers, it is necessary to show on fair construction, that the authority was not exercised within the four corners of the instrument.

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

‑‑‑‑Ss. 42 & 54‑‑‑Contract Act (IX of 1872), S.201‑‑‑Declaration of title‑‑‑Authority of general power of attorney‑‑‑Onus to prove‑‑­Transfer through oral sale instead of registered sale‑deed as authorized in the‑ power of attorney‑‑‑Concurrent findings of fact by the Courts below‑‑‑Suit‑land was transferred by attorney of vendor (principal) in favour of respondents (vendees) through oral sale‑‑‑Appellants assailed the sale being collusive‑‑‑Suit filed by appellants was dismissed by Trial Court‑‑‑Judgment and decree passed by Trial Court was maintained by Lower Appellate Court as well as by .High Court‑‑‑Plea raised by appellants was that the attorney had no authority to sell the suit‑land orally‑‑Validity‑‑‑Vendor (principal) denied that the attorney had authority to have conducted the sale on his behalf and acted without his consent and knowledge‑‑‑Respondents were under heavy burden to prove that the attorney was holding valid and genuine power of attorney on the basis of which the attorney under the instructions of his principal passed on the title in land‑‑‑Attorney was specifically authorized to sell the property through registered sale‑deed and in the light of , strict construction of power of attorney, implied authority of oral sale could not be presumed‑‑‑Attorney was not given general authorization for disposal of property in any manner rather his authority of sale was restricted, to sale by registered sale‑deed and consequently his failure to act in the manner as provided in the document rendered the transaction invalid‑‑‑Power of sale of land was given to the attorney specifically by means of registered sale‑deed and probably the purpose of restricting the power of sale only by registered sale‑deed was to avoid any misuse of such power and to ensure that the sale was with the consent and knowledge of the principal, therefore, in the light of rule of strict construction of such instrument it would be visualized that the oral sale was not within the authority of the agent under the instrument‑‑‑Alleged power of attorney was executed and registered in year, 1962, whereas the transaction of oral sale had taken place in April, 1985 and there was nothing on record to suggest that at the time of sale, the attorney was holding a valid authority‑‑‑Respondents failed to bring on record any explanation as to. why the attorney, without seeking instructions from principal, preferred to enter into oral transaction of sale and why the respondents did not consider it necessary to confirm about the authority of the attorney and genuineness of the transaction from the owner‑‑­Respondents did not produce any independent person to prove the payment of sale price to principal (vendor) or that the sale had taken place on his instructions and thus the manner in which the attorney and the respondents had conducted in the matter, created a serious doubt about the bona fides of respondents and genuineness of the transaction‑‑­All the three Courts were misdirected and misled in striving to a conclusion which was against the law and facts of the case and was found to be suffering from serious jurisdictional error‑‑‑Judgments and decrees passed by the Courts below were set aside and the suit filed by the appellants was decreed‑‑‑Appeal was allowed.

Fida Muhammad v. Muhammad Khan PLO 1985 SC 341 ref.

(d) Power of attorney‑‑‑

‑‑‑‑Implied authority of attorney‑‑‑Scope‑‑Attorney was specifically authorized to sell the property through registered sale‑deed and in the, light of strict construction of power of attorney, implied authority of oral sale could not be presumed.

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

‑‑‑‑Arts. 75 & 76‑‑‑Document, proof of‑‑‑Secondary evidence‑‑­Principles‑‑‑In absence of original document, its certified copy is not admissible in evidence‑‑‑Notwithstanding the presumption of correctness being attached with certified copy of a document pertaining to the official record, if the availability or existence of document is disputed and original is not produced, its certified copy would not be admissible in evidence without proving the non‑availability of the original.

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

‑‑‑‑S. 115‑‑‑Revisional jurisdiction of High Court‑‑‑Scope‑‑‑Such jurisdiction under S.115 C. P. C. is invoked only in the cases of exercise of jurisdiction by the lower Courts not vested in them by law or the Courts had failed to exercise the jurisdiction so vested or jurisdiction was exercised in .an illegal manner or that some material, irregularity was committed‑‑‑In a case in which it was found that the findings of subordinate Courts were suffering from misreading, non‑reading of evidence or that the inference drawn was .in utter disregard of the law and‑ facts of the case, High Court must interfere in the matter in its revisional jurisdiction and correct the illegality committed by the subordinate Courts‑‑‑Supreme Court ordinarily would not interfere in the matters in which High Court in its revisional jurisdiction, affirmed or reversed the findings of fact in. the light of principle laid down for exercise of such jurisdiction‑‑‑In exceptional circumstances in a case in which a substantial question of law was involved, or miscarriage of justice had been done, Supreme: Court, in the light of the concept of doing the complete justice, found it necessary to interfere in the matter and undo the injustice done to a party.

Shumal Begum v. Culzar Begum 1994 SCMR 818 rel.

M. Farooq Qureshi, Advocate Supreme Court for Appellants.

Gulzarin Kiani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondents Nos. 1 and 2.

Respondents Nos. 4 to 11: Ex parse

Date of hearing: 1st February, 2005.

P L D 2005 Supreme Court 430

Present: Iftikhar Muhammad Chaudhry, Khalil‑ur‑Rehman Ramday and M. Javed Buttar, JJ

Messrs GADOON TEXTILE MILLS LTD. and others‑‑‑Petitioners

Versus

CHAIRMAN, AREA ELECTRICITY BOARD, WAPDA, (PESCO), PESHAWAR and others‑‑‑Respondents

Civil Review Petitions No.27 to 36 of 2005, decided on 17th March, 2005.

(On review from the judgment/order dated 11‑2‑2005 passed by this Court in C.A.No.220‑225, 228, 229 and 1443 of 1999 and C.P. No.2981 of 2063).

(a) Supreme Court Rules, 1980‑‑‑

‑‑‑‑O. I, R.5‑‑‑Civil Procedure Code (V of 1908), Preamble‑‑­Proceedings before Supreme Court‑‑‑Civil Procedure Code; 1908, applicability of‑‑Proceedings before Supreme Court are regulated by its own Rules and provisions of Civil Procedure Code, 1908, are not applicable as per O.I, R.5 of Supreme Court Rules, 1980.

Dost Muhammad Khan v. Mst. Bibi Rukia PLD 1986 SC 353 rel.

(b) Supreme Court Rules, 1980‑‑‑

‑‑‑‑O. XXXIII‑‑‑Supreme Court, powers of‑‑‑Principles of res judicata‑‑­Applicability‑‑‑In pursuance of inherent powers available to Supreme Court under O.XXXIII of Supreme Court Rules, 1980, the Court, to do complete justice, is not debarred from following the principles of res judicata to ensure certainty, stability and finality to its decisions‑‑­Supreme Court being the Court of ultimate jurisdiction and in the larger interest of public, it can invoke any acceptable principle for advancement of cause of justice instead of expressing its inability not to exercise its jurisdiction merely for technical reasons.

Corpus Juris Secundum Vol. 34 rel.

(c) Res judicata‑‑‑‑

‑‑‑‑Principles of res judicata‑‑‑Scope‑‑‑Erroneous decision on question of law‑‑‑Effect‑‑‑Principle of res judicata is based on public policy and necessity, to ensure an end to litigation‑‑‑Even erroneous decision on question of law operates as res judicata between the parties to it ­Correctness or otherwise of judicial decision has no bearing upon the question whether or not it operates as res judicata.

Wasi Ahmed Rizvi v. Federation of Pakistan PLD 1982 SC 20; Mubarik Ali v. Fazal Muhammad PLD 1995 SC 564; Mohanlal v. Benoy Kishna AIR 1953 SC 65 and Sobhag Singh v. Jai Singh AIR 1968 SC 1328 rel.

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

‑‑‑‑Art. 188‑‑‑Supreme Court Rules, 1980, R.XXVI‑‑‑Notification No.2125‑GKD/Tarrif/T‑73, dated, 3‑6‑1987‑‑‑Review of Supreme Court judgment‑‑‑Plea not raised but attended to‑‑‑Plea raised by the petitioners that the question of curtailing 50% rebate in electricity tariff for an additional period of five years excluding the industries mentioned in negative list, was not specifically pleaded by the petitioners ‑‑‑Validity‑‑­Although the question was not specifically pleaded by the petitioners, yet the same had been attended to by the majority opinion of Supreme Court as well as by Single Judge who recorded the minority opinion and on such question all the Judges of Supreme Court were unanimous‑‑‑Such question having been disposed of finally, it could not be re‑opened on the same grounds which were agitated during earlier round of, litigation‑‑­Petitioners were debarred from re‑agitating the same question‑‑‑Review petition was dismissed.

Gadoon Textile Mills v. WAPDA ,1997 SCMR 641; Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883; Amanul Mulk v. Ghafoor ur Rehman 1997 SCMR 1796 and Hafiz Noor Muhammad and others v. Ghulam Rasul and others 1999 SCMR 705 ref.

Abdul Ghafoor v. Chief Settlement Commissioner 1985 SCMR 464; Adalat Khan v. Mst. Begum Bibi 1991 SCMR 1381; Muhammad Sharif v. Inayat Ullah 1996 SCMR 145; Hafiz Noor Muhammad and others v. Ghulam Rasul and others 1999 SCMR 705; Khushi Muhammad v. Province of Punjab 1999 SCMR 1633; Province of Punjab v. Malik Ibrahim and Sons 2000, SCMR 1172; Fecto Belarus Tractors Ltd., v. Pakistan 2001 PTD 1829; 'Managing Director, SSGC Ltd., v. Ghulam Abbas PLD 2003 SC 724;Collector of Central Excise and Land Customs v. Aziz‑ud‑Din Industries Ltd., PLD 1970 SC 439; M.Y. Electronics Industries (Pvt) Ltd., v. Government of Pakistan 1998 SCMR 1404 and Friends Textile Mills v. Government of Pakistan 2004 SCMR 346 distinguished.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Abdul Latif Yousafzai, Advocate Supreme Court, Mian Gul Hassan Aurangzeb; Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Petitioners (in C.R.P. Nos.2'7 to 31 of 2005).

Wasim Sajjad, Senior Advocate Supreme Court, Abdul Latif Yosafzai, Advocate Supreme Court and M.S. Khattak, Advocate‑on-­Record for Petitioners (in C.R.P. Nos. 32 to 34 of 2005).

Muhammad Asif, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Petitioners (in C.R.P. Nos. 35 and 36 of 2005).

Nemo for Respondents (in all cases).

Dates of hearing: 16th and 17th March, 2005.

P L D 2005 Supreme Court 443

Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Faqir Muhammad Khokhar, JJ

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, QUETTA through Controller of Examinations and others‑‑‑Appellants

Versus

YASIR ARAFAT and others‑‑‑Respondents

Civil Appeal No. 993 of 2002, heard on 4th January, 2005.

(On appeal from judgment dated 3‑6‑2002 of the High Court of Balochistan, Quetta in C.P. No.27 of 2002).

Per Faqir Muhammad Khokhar, J; Sardar Muhammad Raza Khan, J. agreeing‑‑[Majority view].—

Educational institution‑‑‑--

‑‑‑Examination‑‑‑Internal discipline of students, maintenance of‑‑‑Procedure‑‑‑Using of unfair means‑‑‑Candidates were proceeded against for using unfair means during examinations‑‑‑Extra sheets used by the candidates did not bear signatures of authorized officer nor the same were shown to have been issued to them by the officer concerned‑‑­Candidates had given ditto answers to same, questions using same sentences, contents and material word by word without there being slightest difference or variation of sentences, grammar and words‑‑­Board of Intermediate and Secondary Education after giving show‑cause notice to the candidates, cancelled their result‑‑‑High Court in exercise of Constitutional jurisdiction, set aside the order passed by the Board‑‑­Validity‑‑‑Held, in the matter of maintenance of internal discipline of students, the examining bodies were not required to follow the rules of procedure and evidence like that of Criminal Courts‑‑‑Even the examination of witnesses in presence of students might not be feasible or practicable in certain eventualities‑‑‑Bodies like Boards of Intermediate and Secondary Education were required to act fairly, justly and reasonably in the cases of disciplinary action against the candidates who appeared in examination‑‑‑Strict application of rules of natural justice was not insisted upon in such cases‑‑‑As long as the candidate was given fair and reasonable opportunity of defending his case then in the absence of any proof of malice or arbitrariness on the part of authorities concerned, High Court was not expected to substitute the findings of fact recorded by domestic Tribunals based on the relevant material on record‑‑‑High Court was not correct in observing that if some unfair means were used, the same were to be pointed out at the time of examination‑‑‑Any negligence or collusion by the officials of Board of Intermediate and Secondary Education could not provide a valid justification for condoning the use of unfair means by candidates‑‑­Judgment passed by High Court was set aside and the order of the Board was restored‑‑‑Appeal was allowed.

Ahmed and 3 others v: Vice‑Chancellor, University of Engineering and Technology and another PLD 1981 SC 464; Imran Ahmed Khan v. Province of Punjab through Secretary, Health and others Civil Petition No. 1175 of 1997); Rahat Siddiqui v. Board of Intermediate and Secondary Education, Lahore 1977 SCMR 213; Masood Pervaiz v. The Disciplinary Committee University of the Punjab, Lahore 1982 SCM.R 1084; Nasir Saeed v. Federal Board of Intermediate and Secondary Education, Islamabad and 2 others 1998 SCMR 710; University of the Punjab v. Gulfam Akhtar 1987 SCMR 706; Board of Intermediate and Secondary Education and 2 others v. Umar Asif Malik 1999 SCMR 1583 and Shoukat Ali v, Controller of Examinations, University of the Punjab, Lahore and another 1981 SCMR 364 ref.

Per Muhammad Nawaz Abbasi, J.‑‑[Contra]‑‑

Educational institution‑‑‑

‑‑‑‑Examination‑‑‑Internal discipline of students, maintenance of‑‑­Procedure‑‑‑Using of unfair means‑‑‑Candidates were proceeded against on the allegations of use of extra sheets and solving papers by use of unfair means and change of examination centre for such purpose‑‑‑Board of Intermediate and Secondary Education, after giving show‑cause notice to the candidates, cancelled their result‑‑‑High Court in exercise of Constitutional jurisdiction, set aside the order passed by the Board‑‑­Validity‑‑‑Allegations against the candidates were based on the observation of subject specialist that the answers to certain questions in answer sheets of candidates were found same word by word‑‑‑Authorities had not been able to point out any law under which change of centre was restricted‑‑‑Nothing was available on record to show that the candidates were responsible for not making entries of extra sheets bearing signatures of examiner which were supplied to them in examination hall or that the extra sheets were subsequently added with answer books‑‑‑In absence of any positive proof of use of unfair means, the candidates could not be penalized for the negligence of staff of Board of Intermediate and Secondary Education‑‑‑Supreme Court did not find it fair to award punishment of cancellation of result of candidates with a considerable delay at the cost of irreparable loss of their educational career‑‑‑Supreme Court declined to uphold the decision of the Board quashing the' results and maintained the judgment passed by High Court‑‑‑Appeal was allowed.

Educational institution‑‑‑

‑‑‑‑Examination‑‑‑Internal discipline of students, maintenance of‑‑­Procedure‑‑‑Using of unfair means‑‑‑In matters relating to educational institutions, fair treatment of concerned authority in their pecuniary jurisdiction is presumed sufficient and procedure of regular inquiry or trial in which witnesses are examined and accused is allowed cross­ examination and fulfillment of such other legal formalities, is not needed‑‑‑Authorities in educational institutions, in disciplinary matters must obtain .information in formal manner and may call information from any source but exercise of his power, must be subject to the conditions that the, person against whom action is required to be taken must have been given a fair opportunity to correct or controvert any material to be used against him‑‑ Domestic Tribunals like University or a Secondary Board of Education, are not bound to observe formalities of judicial Tribunals but it does not mean that these forums .while dealing with the valuable rights of students can take away their rights on conjectural grounds even if such grounds appear to be permissible unless there is valid proof of their tangibility and one may feel to the truth of a particular fact‑‑‑In absence of a legal proof of existence of such fact, it cannot on the basis of suspicion, be presumed to be proved.

Constitution of Pakistan‑(1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction, of High Court‑‑‑Judicial review‑‑‑Educational institution, decision of‑‑‑Using of unfair means by candidates in examination‑‑Effect‑‑‑High Court under its Constitutional jurisdiction is not supposed to annul the action taken by an educational institution on the ground that the action was improper but at the same time, High Court is not debarred from judicial review of the action taken by an authority in educational institution, to see whether the action was in strict observance of rules of fairness and natural justice and was in accordance with law‑‑‑In view the rule of compassionate and sympathetic attitude of guardians towards their wards, subject to the discipline of the educational institution, the concerned authorities should not deal with the affairs of the students in a manner in consequence to which a student is made to suffer permanent loss in life.

Abdul Karim Kundi, Advocate Supreme Court for Appellants.

Respondent No. 1 (in person).

Date of hearing: 4th January, 2005.

P L D 2005 Supreme Court 455

Present: Sardar Muhammad Raza Khan and Tassaduq Hussain Jillani, JJ

Mst. NASEEM FATIMA through Legal Heirs and others‑‑‑Petitioners

Versus

Sheikh ALA‑UD‑DIN and others‑‑‑Respondents

Civil Petitions Nos.26 and 104‑L of 2005, decided on 10th March, 2005.

(On appeal from the judgment dated 19‑11‑2004 passed by Lahore High Court, Lahore in Civil Revisions Nos.905/2000 and 841 of 2000).

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 100‑‑‑Presumption logic behind it‑‑‑Scope‑‑‑Original document to be presented before the Court‑‑‑Presumption is completely rebuttable ‑‑‑Presumption is attached only to a‑document, which purports to or is proved to be thirty years old‑‑‑In case the original document is not before the Court no assessment can be made by the Court as to whether same, in fact, is thirty years old, or whether there are any signatures in original on the document or whether such signatures are legible, capable of being discriminated or deciphered and further capable of being compared with any other signatures‑‑‑Unless the original is before the Court, no such observations can be made.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 100‑‑‑ Presumption‑‑‑ Applicability‑‑‑ Original document, production of‑‑ ‑Requirement‑‑‑Rebuttable presumption is discretionary and the Court may or may not resort to the presumption‑‑‑Such presumption attached to thirty years old document carries logic behind it‑‑‑If the document is proved to be thirty years old, the chances of forgery are minimized‑‑‑Fleeting passage of time casts certain peculiar features upon the documents' tenor, the texture, the language, the signature, the thumb‑impression, the specific date, the existence of witnesses and the paper on which it is written‑‑‑All such features cannot be attended to, examined and appreciated unless the document in original is before the Court‑‑‑To derive benefit of oldness form a document of thirty years, it must be produced in original.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Ejectment of tenant‑‑‑Execution of eviction order‑‑‑Predecessor‑in‑interest of the landlords purchased the premises from predecessor‑in‑interest of tenants through registered sale‑deed‑‑‑After the sale of the premises, the tenants remained in possession of the premises as tenants through rent deed‑‑­Tenants dragged the landlords in different civil litigations and failed twice up to the level of Supreme Court‑‑‑Effect‑‑‑There were concurrent findings of three Courts against the tenants essentially, involving the questions of fact; as such the same was itself sufficient for Supreme Court not to show indulgence‑‑‑Same principle was applicable to High Court as well which declined to interfere with the concurrent findings of fact arrived at by the two Courts below, not cursorily but by discussing all the pros and cons of the case in the light of available record‑‑‑Present case was such where the tenants had unjustifiably dragged the litigation to such an extent that the landlords could neither receive rent nor enjoy .the possession of the property since 24‑9‑1967 despite having purchased the same from a rightful owner through a registered deed‑‑‑Supreme Court declined to interfere with the judgment passed by High Court and burdened the tenants with heavy costs‑‑‑Leave to appeal was refused.

S.M. Masud, and. Dr. Shaukat Hussain Advocates Supreme Court for Petitioners.

Ahmad Waheed Khan, Advocate Supreme Court for Respondents.

Date of hearing: 10th March, 2005.

P L D 2005 Supreme Court 461

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

COLLECTOR, CUSTOMS, CENTRAL EXCISE AND SALES TAX, QUETTA ‑‑‑Appellant

Versus

Messrs Haji AHMEDULLAH & COMPANY, QUETTA and another‑‑‑Respondents

Civil Appeal No. 1543 of 2004, decided on 10th February, 2005.

(On appeal from the judgment of the High Court of Balochistan, Quetta, dated 13‑4‑2004 passed in Custom Appeal No. 15 of 2003).

(a) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 32 & 196‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Mis­ declaration by importer‑‑‑Release of goods on payment of duty‑‑­Appellate jurisdiction of High Court‑‑‑Appeal filed by the authorities was dismissed by High Court‑‑‑Contention of the authorities was that in the present case the imported items were liable to be forfeited outright, instead of giving option to the importer for the release of same on payment of duty etc.‑‑‑Importer contended that scope of appeal under S.196 of Customs Act, 1969, was limited only to the extent of question of law; whereas in the case question of fact was being raised which the High Court was not bound to examine‑‑‑Importer also contended that appeal was not competent as it was filed by a person who was not authorized in that behalf according to law, therefore, High Court rightly dismissed the petition filed by the authorities‑‑‑Leave to appeal was granted by Supreme Court to examine the respective contentions.

(b) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S.196‑‑‑Appellate jurisdiction of High Court ‑‑‑Applicability‑‑­Principles‑‑‑High Court, in its appellate jurisdiction cannot transgress certain limits by giving relief, which could not have been granted under the relevant provisions of Customs Act, 1969.

(c) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 32 & 181‑‑‑Notification S.R.O. No. 374(I)/2002, dated 15‑6‑2002‑‑‑Evasion of customs duty ‑‑‑Mis‑declaration‑‑‑Option to pay fine‑‑‑Principles‑‑‑Committing fraud and forgery‑‑‑Notice was served on importer by customs authorities for committing forgery and fraud to get the goods released‑‑‑Authorities confiscated the goods and imposed 300% penalty upon the importer‑‑‑Customs, Excise and Sales Tax Appellate Tribunal allowed the appeal of importer and the order of authorities was set aside‑‑‑Appeal against the order of Appellate Tribunal was dismissed by High Court‑‑‑Validity‑‑‑Held, it was not necessary to give option to delinquents, who were responsible for‑forgery and fraud to get such consignment released in lieu of confiscation as it would not be in consonance with the provisions as contained in Ss.32 and 181 of Customs Act, 1969‑‑‑Present case was not that of mis‑declaration simpliciter or bona fide mistake but on the contrary it was a case of tampering, fraud, forgery, duplication/counterfeiting of relevant documents and, therefore, the importer was not entitled to get any relief in view of his fraudulent conduct‑‑‑As fraud was committed by importer for evasion of customs duty, the question of any option under the garb of Notification S.R.O. No.374(I)/2002, dated 15‑6‑2002, did not arise‑‑­Supreme Court set aside the judgments passed by Customs, Excise and Sales Tax Appellate Tribunal and High Court and the order passed by the authorities was restored‑‑‑Appeal was allowed.

Eastern Rice Syndicate v. Central Board of Revenue PLD 1959 SC (Pak.) 364 ref.

(d) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S. 32‑‑‑Mis‑declaration‑‑‑Scope‑‑‑Case where by reason of any inadvertence, error or misconstruction, any duty or tax has not been levied or has been short‑levied or has been erroneously refunded, the provisions of S.32 of Customs Act, 1969, are applicable‑‑‑Where some fraud had been committed knowingly, intentionally and deliberately, then the provisions of S. 32 of Customs Act, 1969, cannot be made applicable.

W.N. Kohli, Advocate Supreme Court for Appellant.

Tariq Mahmood, Advocate Supreme Court and M. Anwar Khan Durrani, Advocate‑on‑Record (absent) for Respondents.

Date of hearing: 10th February, 2005.

P L D 2005 Supreme Court 470

Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ

AFZAL MAQSOOD BUTT‑‑‑Appellant

Versus

BANKING COURT No.2, LAHORE and 8 others‑‑Respondents

Civil Appeals Nos.873 and 874 of 2002, decided on 21st March, 2005.

(On appeal from the judgment dated 12‑9‑2001 passed in W.Ps. Nos.23858 & 23859 of 1998, by Lahore High Court, Lahore, respectively).

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

‑‑‑‑S.18‑‑‑‑Civil Procedure Code (V of 1908), O. XXI, Rr.84 & 85‑‑­Constitution of Pakistan (1973), Art.185 (3)‑‑Leave to appeal was granted by Supreme Court to consider; whether without setting aside the earlier auction, Banking Tribunal could competently issue fresh schedule of auction; and whether confirmation of sale in favour of petitioner, as a result of auction held was legal and valid and High Court in exercise of its Constitutional jurisdiction was justified to set aside the sale and interfered in the matter.

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

‑‑‑‑S. 18‑‑‑Civil Procedure Code (V of 1908), O.XXI, Rr.84 & 85‑‑­Sale price, non‑deposit of‑‑‑Condoning default in deposit of sale price‑‑­Holding of two auctions‑‑‑Appellant Was successful bidder of suit property but sale was not approved in his favour, therefore, he did not deposit money in terms of O.XXI, R.84, C.P.C.‑‑‑Subsequently appellant was directed to deposit the entire amount by a specified date‑‑­Appellant issued a cheque which was dishonoured‑‑‑Fresh schedule of auction, was published and auction was held but in the meanwhile appellant with the permission of Banking Court deposited the amount of dishonoured cheque in cash‑‑‑Banking Court confirmed the auction in favour of appellant and also issued sale certificate‑‑‑Highest bidder of subsequent auction assailed the confirmation of sale in favour of appellant and High Court in exercise of Constitutional jurisdiction set aside that sale‑‑‑Validity‑‑‑In case purchaser failed to deposit sale price in full in terms of O.XXI, Rr.84 and, 85 C. P. C., the sale became invalid and Banking Court was under obligation to resell the property forthwith‑‑‑Appellant having failed to deposit sale price, had lost the right of purchase‑‑‑Banking Court in such circumstances could not justifiably exercise its discretion, to condone the default and permit the appellant to deposit the sale price‑‑‑Payment of sale price under the provisions of O.XXI, R.85, C.P.C. was mandatory and Banking Court in normal circumstances was not supposed to extend the time for deposit of sale price beyond the time provided under the law‑‑‑Failure of auction purchaser to deposit the entire sale price within the prescribed time or within the time allowed by Banking Court, would render the sale invalid‑‑‑Banking Court in circumstances had no option except to re‑sell the property‑‑‑In normal circumstances, after confirmation of sale, it was not set aside but if the sale itself had become invalid, its confirmation would also be invalid‑‑‑Supreme Court keeping in view the illegalities and irregularities committed by Banking Court in the matter did not take any exception to the judgment of High Court but in the given circumstances held that both the auctions were violative of law and Banking Court was under legal obligation to resell the property as per requirement of law‑‑‑Supreme Court directed the Banking Court to hold fresh auction of the property for satisfaction of the decrees‑‑‑Appeal was allowed accordingly.

(c) Auction‑‑‑--

‑‑‑‑ Bid in auction‑‑‑Status and effect‑‑‑Bid in auction is only an offer and without confirmation of sale, it does not create any right in the property in favour of successful bidder‑‑‑Confirmation of sale cannot be claimed as of right.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Ch. Muhammad Akram, Advocate‑on‑Record for Appellant.

Respondents Nos. 1, 3 to 6: Ex parte.

Alamgir, Advocate Supreme Court for Respondent No.2

Nemo for Respondents Nos. 7 and 9.

M.A. Zaidi, Advocate‑on‑Record for Respondent No.8

Date of hearing: 12th January, 2005.

P L D 2005 Supreme Court 477

Present: Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ

SHEHZADO‑‑‑Petitioner

Versus

THE STATE‑‑ Respondent

Criminal Petition No.58 of 2002, decided on 9th February, 2005.

(On appeal from the judgment dated 8‑1‑2002 passed by High Court of Sindh, Karachi, in Special A.T. Appeal No.29 of 1999 and Confirmation Case No. 12 of 1999).

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

‑‑‑‑S. 164‑‑‑Judicial confession recorded on oath‑‑‑Procedural defect‑‑­Effect‑‑‑Confessional statement should not be recorded on oath‑‑‑Mere fact that a judicial confession was recorded on oath would, however, not be, sufficient to reject it as it may be only a procedural mistake in the form of an irregularity in exercise of jurisdiction which may not affect the statement in substance‑‑‑Rule is that notwithstanding the procedural defect in recording the confession, a retracted judicial or extra‑judicial confession if is found true, voluntary and confidence inspiring, can safely be made basis of conviction.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17 (4)‑‑‑Criminal Procedure Code (V of 1898), S.164‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Re­appraisal of evidence‑‑‑Retracted judicial confession‑‑‑Recording of judicial confession on oath‑‑‑Prosecution mainly relied upon confessional statement of the accused recorded by Magistrate‑‑‑Sentence of death awarded by Trial Court to accused under S. 302 P. P. C. was maintained by High Court but that under S.17 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, was converted into S.392 P.P.C. for imprisonment of ten years‑‑‑Plea raised by the accused was that the confessional statement was recorded on oath and was not ‑admissible in evidence and that with the exclusion of judicial confession, there was no other evidence, direct or circumstantial, to connect him with the commission of offence‑‑‑Validity‑‑‑Occurrence disclosed by the accused in his confessional statement was narrated in the same manner as in the F.I.R.‑‑‑Such similarity of confessional statement of accused with the story of F.I.R. suggested the truthfulness of statement of complainant and also of the confessional statement of the accused which was found independent, true and voluntary‑‑‑Complainant and accused were not previously known to each other and there was no reason with the complainant to falsely involve the accused in the case and substitute him for unknown culprit in a case of capital punishment‑‑‑Examination of evidence did not suggest any legal or factual infirmity in the appraisal of evidence and Supreme Court declined to take any exception to the finding of two Courts holding the accused guilty of the charges which was based on sound principles of criminal administration of justice‑‑­Leave to appeal was refused.

Criminal Appeal No.53(S) of 2001 rel.

Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate‑on‑Record for Petitioner.

Nemo. for Respondent.

Date of hearing: 9th February, 2005.

P L D 2005 Supreme Court 484

Present: Hamid Ali Mirza, Muhammad Nawaz Abbasi and Faqir Muhammad Khokhar, JJ

MUHAMMAD RIAZ‑‑‑Appellant

Versus

MUHAMMAD ZAMAN and another‑‑‑Respondents

Criminal Appeal No.96 of 1999, decided on 6th December, 2004.

(On appeal from the judgment dated 17-6‑1998 passed by Lahore High Court, in M.R. No. 461 of 1992 and Cr.A. No. 1009 of 1992).

(a) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑S. 302‑‑‑Constitution of Pakistan (1973), Art.185 (3)‑‑‑Leave to appeal was granted by Supreme Court to consider; whether the judgment of High Court was in consonance with law as enunciated by Supreme Court, keeping in view the evidence on record.

(b) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑S. 302‑‑‑Evidence‑‑‑Material contradictions‑‑‑Effect‑‑‑Material contradictions and discrepancies in evidence in a criminal case may create doubt in prosecution case and if eye witnesses are inimical and interested, such doubt may lead to reasonable possibility of the witnesses being not truthful or inference can be drawn that they, by suppressing the facts, had made a dishonest statement‑‑‑Mere relationship or enmity is not sufficient to discard the evidence of a natural witness or hold him not truthful and trustworthy‑‑‑Not an inflexible rule that in all Circumstances; such contradictions and discrepancies in the evidence must be treated to be injurious to the credibility of a witness and his evidence must be excluded from consideration or he must be held not truthful witness‑‑‑Rather the ultimate test of veracity of a witness is the inherent merit of his own statement.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Re‑appraisal of evidence‑‑‑Ocular account and medical evidence‑‑‑Contradictions‑‑‑Opinion of doctor with regard to number of shots fired‑‑‑Eye‑witnesses, presence of‑‑‑Trial Court awarded death sentence to the accused but High Court in exercise of appellate jurisdiction set aside the conviction and sentence on the ground that the statement of eye‑witnesses was not supported by medical evidence and the witnesses were inimical towards the accused‑‑‑Validity‑‑‑Reasons given by High Court for disbelieving the presence of witnesses at the spot were highly speculative, flimsy and artificial‑‑‑Conclusion that the injuries on the person of deceased were the result of one shot which was probably not fired froth' front and medical evidence was inconsistent with the ocular account of eye‑witnesses, was , also not based on sound reasons‑‑‑Statement of doctor to the effect that the injuries were the result of single shot being only an opinion, which might or might not be correct‑‑‑Such opinion was not sufficient to discard the direct evidence and could not suggest the non‑presence of eye‑witnesses at the spot‑‑­Conflict of medical evidence with ocular account in respect of number and nature of injuries could be relevant to ascertain the role of an individual accused in occurrence but such was not a valid ground to disbelieve the eye‑witnesses and exclude their evidence from consideration‑‑‑Confusion whether the injuries were the result of two shots or a single shot would not, ipso facto, suggest that eye‑witnesses had not seen the occurrence or they suppressed the truth‑‑‑High Court was misled .in rejecting the direct evidence of un‑impeachable character of natural witnesses on the ground that the ocular account was in conflict with medical evidence, whereas except such discrepancy, there was no other contradiction‑‑‑Eye‑witnesses account sought ample support from medical evidence and was worthy of credit‑‑‑High Court, in complete departure to the well known principle of appraisal of evidence, had drawn conclusion from evidence which was not reasonably acceptable in the given facts and had caused miscarriage of justice‑‑‑As the acquittal of accused was not based on the sound principles of criminal administration of justice and was not suitable, the same was set aside‑‑‑Participation of both the accused in the occurrence stood established beyond doubt and notwithstanding the discrepancy in the evidence regarding the number of shots, the accused had played an active role in the occurrence with the intention to kill ‑the deceased and were equally responsible for the murder and by virtue of S.34, P.P.C. shared the equal liability in the crime‑‑­Supreme Court held both the accused guilty of‑charge of murder and sentenced them to imprisonment for life under S.302(b), P.P.C.‑‑‑Appeal was allowed.

(d) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑S. 302‑‑‑Motive‑‑‑Scope‑‑‑Motive is a double edged weapon, which cuts both ways.

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

‑‑‑‑S. 417‑‑‑Appeal against acquittal‑‑‑Supreme Court, jurisdiction of‑‑­Supreme Court declines in interference in appeals against acquittal even if a different conclusion can be drawn unless it is demonstrated with certainty that the consideration on the basis of which accused were acquitted was not supported by evidence.

Ghulam Sakindar v. Mamraz Khan PLD 1985 SC 11 rel.

Munir Ahmad Bhatti, Advocate Supreme Court for Appellant.

Abdus, Saleem, Advocate Supreme Court for Respondents.

Sh. Mehmood Ahmed, Advocate‑on‑Record for the State.

Date of hearing: 6th December, 2004.

P L D 2005 Supreme Court 495

Present: Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ

CYANAMID PAKISTAN LTD. and another‑‑‑Petitioners

Versus

COLLECTOR OF CUSTOMS (APPRAISEMENT), through Assistant Collector Customs House, Karachiand others‑‑‑Respondents

Civil Petitions, Nos. 1235 and 1289 of 2002, decided on 14th Decembers, 2004.

(On appeal from the judgments dated 15‑3‑2002 and 10‑10‑2001 passed by High Court of Sindh, Karachi, in Constitutional Petitions Nos. D‑519/97 and D‑788/97 respectively).

(a) Customs Act (IV of 1969)‑‑‑--

‑‑‑‑S. 18(2)‑‑‑Regulatory duty‑‑‑Scope‑‑‑Regulatory duty is also a customs duty and the purpose of imposing the same under S.18(2) of Customs Act, 1969, is to meet a situation .or a condition which is not covered by customs duty leviable under S.18 (1) of Customs .Act, 1969.

Collector of Customs v. Ravi Spinning Ltd. 1999 SCMR 412; Abdur Rahim v. Federation of Pakistan PLD 1988 SC 670; Yousuf Re­ rolling Mills v. Collector of Customs and another PLD 1989 SC 232; Messrs Qaiser Brother (Pvt.) Ltd. v. Government of Pakistan and others PLD 1991 SC 884 and Assistant Collector Customs Central Excise and Sales Tax Mardan and 2 others‑ v. Messrs Gadoon Textile Mills 1996 SCMR 712 ref.

(b) Customs Act (IV of 1969)‑‑‑

‑‑‑‑S.18 (2)‑‑‑Constitution of Pakistan (1973), Art.77‑‑‑Regulatory duty, imposition of‑‑‑Principles‑‑‑Tax or a duty cannot be imposed except under the authority of an Act of Parliament as provided in Art.77 of the Constitution and such legislative power cannot be delegated to the executive authorities‑‑‑Power of allowing the exemption can be conferred on the executive authorities, and Federal Government, in view of its power under S.18(2) of Customs Act, 1969, can levy the regulatory duty without any limitation or restriction as it may deem fit at such rate as may be specified in the notification.

(c) Customs Act (IV of 1969)‑‑‑--

‑‑‑‑S. 18‑‑‑Notification S.R.O. 350(I)/85, dated 15‑4‑1985‑‑‑S.R.O. 1147(I)/89, dated 27‑11‑1989‑‑‑S.R.O. 1050(I)/95, dated 29‑10‑1995‑‑­Constitution of Pakistan (1973), Art. 185(3)‑‑‑Exemption from payment of duties‑‑‑Scope‑‑‑Amendment of earlier notification‑‑Jurisdiction of Government‑‑‑Grievance of importers was that imposition of regulatory duty by Notification S.R.O. 1050(I)/95; dated 29‑10‑1995, amounted to withdrawal of the exemption available to them as the customs duty as a whole including regulatory duty was exempted under Notification S.R.O. 350(I)/85, dated 15‑4‑1985 read with Notification S.R.O. 1147(I)/89, dated 27‑11‑1989‑‑‑Validity‑‑‑Exemption from payment of duty as a whole or partially, must be strictly construed and must not be extended beyond the express language used in the notification‑‑‑Taxing statutes were construed strictly in favour of subjects whereas the provisions relating to exemptions were construed in favour of Government as taxing authority and the Government, while exercising the power of exemption of duty on a particular article, might impose such condition , limitation and restriction as it deemed fit‑‑‑If notification of such exemption did not operate retrospectively, the goods imported prior to the issue of notification would not qualify for exemption‑‑‑Power of grant of exemption of customs duty on a particular article and the power of withdrawal of such. exemption, subject to reasonable restriction, was always available to Government under the law‑‑‑Not open to Courts to go behind the notification issued by Government on the ground that the power was improperly exercised unless it was shown that the grant of exemption of specific duty was subject to the exercise of certain conditions‑‑‑Object of exemption of duty and tax was to provide protection to manufacturers or importers or exporters of specified goods consumed in the country, in context of the public policy and not for the benefit of individuals‑‑‑Withdrawal of exemption would not be applicable to the goods which were imported between the date of grant of exemption but the same was subject to the condition that bill of entry was filed before the date of withdrawal ‑because the exemption on the particular item was made available from the date of actual import and not from the date of registration of goods for the purpose of import‑‑‑If Government was empowered to issue a notification for grant of exemption of customs duty; it could also withdraw an exemption wholly or partially‑‑‑Notwithstanding the issue of earlier notification under S.18(1) of Customs Act, 1969, the Government was fully empowered to issue notification under S.18(2) of Customs Act, 1969‑‑‑Objection of the importers was misconceived in circumstances‑‑‑Leave to appeal was refused.

Collector of Customs v. Ravi Spinning Ltd. 1999 SCMR 412 and Assistant Collector Customs Central Excise and Sales Tax Mardan and 2 others v. Messrs .Gadoon Textile Mills Ltd. Swabi through its General Manager 1994 SCMR 712 ref.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and Aziz A. Sheikh, Advocate Supreme Court for Petitioners (in both cases).

Raja Muhammad Irshad, Dy. A.‑G. for Respondents.

Date of hearing: 14th December, 2004.

P L D 2005 Karachi 498

Before Rahmat Hussain Jafferi and Gulzar Ahmed, JJ

ABDUL KARIM BROHI---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.D-39 of 2002, decided on 10th March, 2005.

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

----S. 9(c)--Criminal Procedure Code (V of 1898), S.561-A---Government of Sindh Notification No.V(3)SOJ/98, dated 15-9-1999---Quashing of Order---De facto doctrine---Applicability---Additional Sessions Judge had exercised the jurisdiction bona fide under Notification No.V(3)SOJ/98, dated 15-9-1999 issued by the Government of Sindh and convicted and sentenced the accused---Government was competent to issue the said Notification, but a legal defect having been found therein the same had been declared illegal by the High Court---Additional Sessions Judge was not usurper or intruder, but he had discharged his function and duties under colour of lawful authority---Doctrine of de facto, thus, was applicable in the case---Had the decision been given after the declaration of the aforesaid Notification as illegal, the proceedings in the case would have been vitiated---Conviction having been awarded in the case by the Additional Sessions Judge before the said declaration, the proceedings and the conviction were saved on the doctrine of de facto---Petition was dismissed accordingly.

Muhammad Rafique v. State (Criminal Transfer Application No.D-8 of 2004); Muhammad Ali v. Federation of Pakistan PLD 1998 SC 1445 and Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161 ref.

Abdul Baqi Jan Kakar for Appellant.

Muhammad Ismail Bhutto for the State.

.

P L D 2005 Supreme Court 502

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

Civil Appeals Nos.514 to 536 and 1604/2003

UTILITY STORES CORPORATION OF PAKISTAN through Managing Director, Islamabad‑‑‑Appellant

Versus

SULTAN MAHMOOD and others‑‑‑Respondents

(On appeal from the judgment dated 26‑12‑2002 of Federal Service Tribunal passed in Appeals Nos. 428, 31, 32, 419, 420, 421', 422, 423, 430, 436, 438, 439, 446, 447, 457, 844 (R)(CE)/2001, 31, 32, 33, 35, 36, 48, 199 (P)CE/2001 and 22(L)CE/2001 respectively).

Civil Appeals Nos.1295 to 1304 of 2003

UTILITY STORES CORPORATION OF PAKISTAN through Managing Director, Islamabad‑‑‑Appellant

versus

JAVED MUSHTAQ and others‑‑‑Respondents

(On appeal from the.. judgment dated 2.‑6‑2003 of Federal Service Tribunal, Islamabad passed in 266 to 275(L)(CE)/2001).

Civil Appeals Nos.1355 & 1356 of 2003

UTILITY STORES CORPORATION OF PAKISTAN through Managing Director, Islamabad‑‑‑Appellant

Versus

GHAZALA NAQVI and others‑‑‑Respondents

(On appeal from the judgment dated 21‑12‑2001 of Federal Service Tribunal, Islamabad passed in Appeals Nos. 491 and 492(R)CE of 2001).

Civil Appeals Nos. 1286 to 1381 of 2004

UTILITY STORES CORPORATION OF PAKISTAN through Managing Director, Islamabad‑‑‑Appellant

versus

EHSANULLAH KHAN anal others‑‑Respondents

(On appeal from the judgment dated 12‑3‑2004 of Federal Service Tribunal passed in Appeals Nos. 37 to 46, 49 to 72, 113, 117, 118, 120 to 138(P)CE/2001, 433, 434, 437, 440 to 442, 474 to 476, 478, 479, 484, 486, 487, 489, 490, 493 to 503, 538, 539, 542, 543, 546 to 548, 551, 654, 672, 673, 890 and 119(R)(CE)/2001 respectively).

C.M.A. No.1920/2004 in C. A. No.1286/2004

UTILITY STORES CORPORATION OF PAKSITAN through Managing Director, Islamabad‑‑‑Appellant

Versus

ZAFAR IQBAL‑‑‑Respondent

Civil Appeals Nos.514 to 536, 1295 to 1304, 1355, 1356, 1604 of 2003 and 1286 to 1381 of 2004 and C.M.A. No.1920 of 2004, decided on 28th March, 2005.

(a) Removal From Service (Special Powers) Ordinance (XVII of 2000)‑‑---­

‑‑‑‑Ss. 3 & 5‑‑‑Dismissal/removal from service‑‑‑Pre‑conditions‑‑‑When there were no charges of inefficiency, guilty of misconduct, corruption etc. and no inquiry as required under S.3 of Removal from Service Ordinance, 2000, was conducted against civil servant, the provisions of Removal. from Service Ordinance, 2000 could not be invoked.

(b) Utility Stores Corporation of Pakistan(Pvt.) Ltd. Service Rules, 1981—­

‑‑‑‑Rr.4 & 18 (g)‑‑‑Removal from Service (Special Powers) Ordinance (XVII of 2000), S.3‑‑‑Service Tribunals Act (LXX of 1973), Ss.2‑A & 4‑‑‑Removal from service‑‑‑Principle of audi alteram partem‑‑ Applicability‑‑‑Retrenchment, principle of lifo (last in first, out) ‑‑‑ Utility Stores Corporation of Pakistan (Pvt.) Ltd. removed its employees from service under the provisions of Removal from Service (Special Powers) Ordinance, 2000, without giving any show‑cause notice. to them‑‑‑Order of removal from service was assailed before Service Tribunal under Ss.2‑A and 4 of Service Tribunals Act, 1973‑‑‑Service Tribunal allowed appeals filed by the employees and directed the Corporation to reinstate them‑‑‑Plea raised by the Corporation that removal was with the object of retrenchment' and no show‑cause notice was required under Utility Stores Corporation of Pakistan (Pvt.) Ltd. Service Rules, 1981‑‑­Validity‑‑‑Corporation failed to prove that retrenchment was necessary‑­Procedure adopted by the. Corporation for removing the employees from service was neither in law nor on facts was justified‑‑‑Principle of lifo was also not applied, instead discriminated treatment was given` to the employees‑‑‑Although financial difficulties of the Corporation were argued before the Supreme Court, yet no document to substantiate the contention was referred to‑‑‑Corporation failed to bring necessary amendments in Utility Stores Corporation of Pakistan (Pvt) Ltd. Service Rules, 1981 and present was not a case of termination simpliciter‑‑‑All observations made by Service Tribunal in its judgment held the field and the Corporation could proceed against the employees having complied with the deficiencies pointed out by the Tribunal‑‑‑Supreme Court declined to interfere with the judgment passed by Service Tribunal‑‑­Appeal was dismissed.

United Bank Limited through President v. Shamim Ahmed Khan and 41 others PLD 1999 SC 990; Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others 2002 PLC (C.S.) 526; Mehreen Zaibun Nisa v Land Commissioner, Multan and others PLD 1975 SC 397; Pakistan and others v. Public at Large and others PLD 1987 SC 304; Mrs. M.N.Arshad and others v. Miss Naeema Khan and others PLD 1990 SC 612; Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Ltd., Rawalpindi PLD 1991 SC 14; Delhi Transport Corporation v. DTC Mazdoor Congress and others AIR 1991 SC 101; Chairman, Pakistan Broadcasting Corporation, Islamabad v. Nasir Ahmed and 3 others 1995 SCMR 1593; Pakistan Railways through General Manager v. Ghulam Rasool 1997 SCMR 1581; Muhammad Ahmed, v. Government of Sindh and another 1999 SCMR 255; Fazal Ilahi and others v. PTC and others 2001 SCMR 768; Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101; Muhammad Janan v. General Manager, Pakistan Mineral Development Corporation (Pvt.) Ltd., Islamabad PLD 2003 SC 156; Aamir Ikram and 10 others v. District Health officer, Vehari and others PLD 2003 SC 266; Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas and others PLD 2003 SC 724; SME Bank Limited through Kaiser H. Naseem, President v. Mehfooz Elahi Piracha and 2 others 2003 PLC (C.S.) 1282; Nasim Ahmad v. Water and Power Development Authority through Chairman, Lahore and another 2004 SCMR 56; Arshad Jamal v. N.‑W.F.P. Forest Development Corporation and others 2004 SCMR 468; Farast Hussain and others v Pakistan National Shipping Corporation through Chairman and others 2004 SCMR 1874; WAPDA v. Fida Hussain 2004 PLC (CS) 1240; Ghulam Mustafa Khairati v. Federation of ,Pakistan through Secretary, M/o Finance, Islamabad and another 2005 PLC (CS) 417; Ikram Bari and others v. National Bank of Pakistan through its President & others 2005 SCMR 100 ref

Malik Akhtar Hussain Awan, Advocate Supreme Court, M. Jaffar Hashmi, Advocate Supreme Court and Malik Muhammad Nawaz, Advocate Supreme Court for Appellants (in all Cases).

M.A. Zaidi, Advocate‑on‑Record for Appellants (in C.As. Nos.514 to 536, 1.355‑56/2003, 1286 to 1381/2004).

Karam Ilahi Bhatti, Advocate‑on‑Record for Appellants (in C.As. Nos. 1295 to 1304/2003).

Muhammad Akram Sh., Senior Advocate Supreme Court, Hafiz S.A. Rehman, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Respondents (in C.A. No.514/2003).

Muhammad Akram Sh., Senior Advocate Supreme Court, F.K. Butt, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on­-Record for Respondents (in C. As. Nos. 515 to 529, 536, 1295 to 1304 and 1604 of 2003).

Hafiz S.A. Rehman, Senior Advocate Supreme Court, Abdul Aziz Kundi, Advocate‑on‑Record (absent) for Respondents (In C.As. Nos.530 to 532/2003).

Amjad Ali Shah (in person) (in C.A.No.535 of 2003).

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court, Ch. Muhammad Akram, Advocate‑on‑Record for Respondents (In C.As. Nos. 1286, 1289, 1291, 1292, 1294, 1296, 1297, 1299 to 1304, 1375, 1376, 1306 to 1308, 1311 to 1313, 1315, 1317, 1318, 1322, 1328, 1330, 1332, 1333, 1335 to 1339, 1341, 1355, 1357, 1361, 1365, 1367 to 1370 & 1376/2004).

Sadiq Muhammad Warraich, Advocate Supreme Court for Respondents (in C.As. Nos. 1287 to 1290, 1293, 1295, 1298, 1305, 1309, 1310, 1314, 1316, 1319; 1321, 1323 to 1326, 1329, 1331, 1340, 1342 to 1353, 1356, 1362, 1372 to 1374, 1377 to 1381/2004).

Zafar Iqbal (in person) (In CA.A. No.1920/2004 in C.A. No.1286/2004).

Date of hearing: 28th March, 2005.

P L D 2005 Supreme Court 511

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

MUHAMMAD SALEEM ULLAH and others‑‑‑Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, GUJRANWALA and others‑‑‑Respondents

C. P. L. As. Nos.2912‑L and 3045‑L of 2002, decided on 5th April, 2005.

(On appeal from a common judgment of Lahore High Court, Lahore, dated 22‑7‑2002 passed in W.P., 1777/97 and C.R.719/98 respectively).

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

‑‑‑‑S.11‑‑‑Res judicata, principle of‑‑‑Applicability‑‑‑Essential conditions required to be fulfilled to establish the plea of res judicata.

The provisions of section 11, C.P.C. are clear and definite, therefore, subject to conditions contained therein, the Court in which the suit is filed, may proceed with it in certain specified circumstances and mere fact that an issue in the suit, directly or indirectly was connected with the dispute in the earlier litigation would not be sufficient to prevent the subsequent adjudication of such issue.

The rule of res judicata is based on the consideration that same cause should not be tried for the second time between the same parties and there must be an end to the litigation between the parties. The principle is that since the cause of action in a suit merges in the judgment, therefore, no second suit can be filed on the basis of same cause of action unless it is shown' that it was recurring in nature, thus, the essential condition required to be fulfilled to establish the plea of res judicata would be that the matter in issue and the material point in dispute between the parties in the earlier litigation was directly and substantially in issue in the subsequent litigation. If matter in issue in the subsequent litigation was not substantially decided in the earlier litigation, it would not be res judicata actually or constructively because for res judicata, it is essential to show that earlier decision in the matter was based on proper adjudication on the relevant issue either of law or fact or mixed issue of law and fact. The decision on an issue of fact based on evidence and decision on issue of law on the basis of set of facts, directly and substantially by a competent Court, is certainly res judicata and the verdict given by the superior Courts in Constitutional jurisdiction, on a point of law or on a question of fact based on proved facts and admissible evidence would operate as res judicata inter se parties but decision on a disputed question of fact in Constitutional jurisdiction, without any evidence would not operate as res judicata to the adjudication of such question of fact in the subsequent litigation. In nutshell, the adjudication on question of law or fact or mixed question of law and fact on the basis of established set of facts and the determination of such questions in the judgment, would essentially be res judicata if the facts were found to have satisfied the requirement of law but the finding or mere observation on a question of fact without proper adjudication and any evidence, would not operate as res judicata. In the light of this rule, even in the matter of. application of general principle of res judicata, at least the condition of final decision on merits of the dispute between the parties must‑exist.

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

‑‑‑‑O. VII, R.11 & S.11‑‑Rejection of plaint‑‑‑ Res judicata, principle of‑‑‑Applicability‑‑‑Principles.

In certain circumstances, Court shall not try a suit or issue involving a matter no longer open to contest, either on a question of law or fact, by reason of an earlier decision if the matter in issue in the subsequent suit directly and substantially is the same which was involved in the earlier litigation. The plaint in the subsequent suit can certainly be rejected under Order VII, rule 11, C.P.C. on the basis of principle of res judicata without framing issues and recording evidence but Order VII, rule 11, C.P.C. contemplates rejection of plaint only on the basis of averments made in the plaint to consider whether there is failure of cause of action or the suit is barred under some provision of law but the plaint cannot be rejected under Order VII, rule 11, C.P.C. on the basis of pleas raised by the defendant in the written statement in his defence as at this stage, the pleas are only contentions which are not based on the evidence. Order VII, rule 11, C.P.C. becomes operative only when the plaint is liable to be rejected on the basis of its contents taken to be true and correct but the Court can also rely upon the documents annexed to the plaint and brought on record with written statement to consider the question of application of Order VII, rule 11, C.P.C.

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

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

‑‑‑‑Arts. 184 & 199‑‑‑Civil Procedure Code (V of 1908), S.11‑‑?Constitutional jurisdiction of superior Courts ‑‑‑Res judicata, principle of‑‑‑Applicability‑‑‑Essentials.

The judgments of the superior Courts in Constitutional jurisdiction on the questions of law or facts have binding force and the parties are not allowed to reopen the settled issues, directly or indirectly but to claim the bar of res judicata, on the basis of a judgment of superior Court rendered in the Constitutional jurisdiction, it is essential to prove that the dispute brought before the Court was previously adjudicated in the proper manner and was conclusively decided in such jurisdiction. The decision on the question of law on the basis of settled principle and a decision on a question of fact on the basis of proved facts and legal evidence, would be res judicata and parties, would not be permitted to re‑open the settled issues but a decision on a disputed question of fact based on no evidence, would not debar the judicial determination of such question in a subsequent adjudication. There can be no departure from the settled law, that the principle of res judicata cannot be pressed into service unless it is established that the matter in issue was earlier adjudicated on merits and conclusively decided.

(d) Islamic law‑‑‑

‑‑‑‑Succession‑‑‑Proof‑‑‑Principles.

Under the law of Shariah on death of a Muslim his property is distributed amongst his heirs in order of succession and the general rule regulating the succession is that the heir most nearly related to the deceased, would take in preference to one more remotely connected and in case of any dispute regarding the claim of a person in the inheritance as successor of the last male owner, the claimant must prove the existence of his relationship with deceased to establish his right in the succession and the most natural and, reliable evidence to prove such relationship in addition to the pedigree table prepared in due process of law, is the evidence of the persons who have the direct knowledge of such relationship between the claimant aid deceased owner and in absence of such proof it ‑is not possible to raise a presumption of existence of such relationship. The succession of a Muslim in Shariah is deemed to have opened on his death and the property owned by him would be distributed amongst his heirs in accordance with law of Shariah, therefore, it would be essential to ascertain as to who were those heirs who would have inherited him on opening of his succession and without ‑tracing out the line of succession, the distribution of property amongst the claimants presuming them to be the legal heirs of last male owner, would amount to defeat the purpose of law of succession and also deprive the other legal heirs of the deceased who had the preferential right in the inheritance.

(e) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)‑‑‑--

‑‑‑‑Ss. 2‑A & 2‑‑‑Rule of succession‑‑‑Limited interest‑‑‑Principles‑Held, on the termination of limited interest the inheritance would be deemed to have devolved on the date of death of last male owner on all his legal heirs who were in existence at the time of his death and would be deemed to have become joint owners under the law of Shariah‑‑?Notwithstanding the custom, a person who died under the domain of Islamic law, the succession to his estate subject‑matter of limited interest would be deemed to have opened under Islamic law on the date of hip death and all his legal heirs, who were in existence at the time of his death, would be entitled to inherit him in accordance with the rule of succession in Shariah.

Additional Settlement Commissioner (Land) v. Muhammad Shafi PLD 1971 SC 791; Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC‑407; Mst. Fazal Nishan and others v. Ghulam Qadir and others 1992 SCMR 1773; Mst. Ghulam Janat and others v. Ghulam Janat through Legal Heirs and others 2003 SCMR 362; Sardar v. Mst. Nehmat Bibi and 8 others 1992 SCMR 82 and Muhammad Yousaf through Legal Heirs and 2 others v. Mst. Karam Khatoon through Legal Heirs and 2 others 2003 SCMR 1535 ref.

(f) Islamic law‑‑‑

‑‑‑‑Succession‑‑‑Classes of heirs‑‑‑Determination‑‑‑Principles.

The Muslims in the matter of inheritance, are governed strictly in accordance with law of Shariah and the rights of heirs of a deceased in his property, are certainly determined in order of the succession according to which the heirs connected with the deceased by the tie of blood, are divided into three classes namely, sharers, residuaries and distant kindred and the rule of proximity is that a nearer blood relation would inherit in preference to remote and if the claimants are equal in degree, the method of determining their right would be on the basis of line of relation. The collaterals in the order of succession, inherit after sharers and residuaries therefore, there can be no departure from the rule of law of inheritance in Islam that in presence of sharers and residuaries, the estate of a Muhammadan would not devolve upon the collaterals, except in a case in which the only surviving sharer is husband or wife and in such a case after allotting the share of spouse, the remaining would go to collaterals. However, according to some of the Muslim jurists, if intestate dies leaving no other, legal heir, except a wife or a husband, entire would go to her/him as the case may be, whereas other say that it would go to State. The right of a missing legal heir or one who, for the time being, is not traceable, would not be destroyed, unless a presumption of his being dead is raised under the law but no such presumption can be raised regarding the non‑existence of any other legal heir of the deceased except the claimant at the time of opening of his succession without proper adjudication and decision of the matter on the basis of legal evidence. A person who displaces a natural succession to the property by claiming that except him, there was no other legal heir of deceased, must discharge the burden which lies upon him to prove, firstly that he was connected with the deceased in a manner in which he would have inherited his property along with or to the exclusion of others and secondly, that at the time of opening of his succession, there was no other legal heir of the deceased in existence to have preferential right of inheritance in his property.

(g) Islamic jurisprudence‑‑‑

‑‑‑‑ Administration of justice ‑‑‑Res judicata, or estoppel principles of‑‑?Applicability‑‑‑Scope‑‑‑Principles.

The law of Shariah is supreme law and is not subordinate to any other law or judgment of any Court including the High Court and tire Supreme Court, therefore, the decision made by a Court in respect of a matter concerning the law of Shariah, if is found in conflict or not in consonance with the law of Shariah, there would be no bar on its subsequent adjudication for decision in accordance with the law of Shariah and in such cases, the rule of res judicata or estoppel would not be applicable as these rules do not run against the law of Shariah.

(h) Islamic law‑‑‑

‑‑‑‑Succession‑‑‑Determination‑‑‑Res judicata principle of‑‑?Applicability‑‑‑Scope‑‑‑Principles. The succession of a deceased Muslim, is a matter which concerns law of Shariah and for application of the doctrine of res judicata in a case involving dispute of succession, it would be essential to establish that in the previous litigation, the question regarding the existence of right of claimant in the succession of last male owner, was adjudicated and conclusively decided and it was also determined that except the claimant, there was no other legal' heir of the deceased who would have inherited his property as sharer or residuary at the time of opening of his succession.

(i) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)‑‑‑-

‑‑‑‑Ss. 2‑A & 2‑‑‑Civil Procedure Code (V of 1908), S.11 & O.VII, R.11‑‑‑Rule of succession ‑‑‑Res judicata, principle of ‑‑‑Applicability‑‑? Scope‑‑‑Rejection of plaint‑‑‑Judgments of High Court and Supreme Court showed that the adjudication in earlier litigation was confined to the question regarding the status of widow as to whether as a limited owner or full owner, the land was allotted to her and if she was a limited owner on the termination of her limited interest, what would be her share in the property under Islamic law but the question that at the time of opening of succession of original male owner of the property (husband of the widow), on his death, as to who were his other legal heirs in existence who would have been entitled to his succession, was not at all under consideration‑‑‑Question regarding the existence of relationship inter se the husband of widow and other claimant to be heir or that who ,ere legal heirs of the owner who would have been entitled to inherit his property on his death was neither discussed nor decided by the High Court or by the Supreme Court in the earlier round of litigation‑‑?Controversial question of fact involved in the present suit relating to the genuineness of the claim of claimant as heir of deceased owner of inheritance in his property was not, as such, adjudicated and decided either by the revenue Courts or by the High Court and Supreme Court in the first round of litigation, therefore dispute in respect of succession of deceased owner would essentially need determination on merits in the light of rule of succession under Islamic law arid rejection of plaint on the basis of res judicata, would not be proper and legal without decision of the specified questions‑‑‑Decision of High Court and Supreme Court that on termination of ‑limited interest, widow would get 1/4th in the property owned by, her husband and remaining would be distributed amongst his other legal heirs in accordance with the rule of succession of Islamic law, could not be reopened in the suit but the question as to who would have been entitled to inherit his property on the opening of his succession and whether the claim of alleged heirs to be the collaterals of deceased male owner was factually correct and if not the widow, in absence of any other legal heir of her deceased husband after inheriting her share would not be entitled to get the remaining portion as residuary, having not been adjudicated and decided, would be open for‑decision in accordance with law‑‑‑Supreme Court converted the petitions into appeals, set aside the impugned judgment and remanded the case to the Trial Court for decision of all the issues involved in the suit on merits, in accordance with law.

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

‑‑‑‑S. 41‑‑‑Defective title‑‑‑Subsequent vendee ‑‑‑Transfer of property to ostensible owner‑‑‑Protection of S.41, Transfer of Property Act; 1882‑‑?Scope‑‑‑Reasonable case ‑‑‑Lis pendens, rule of ‑‑‑Applicability‑‑?Essential conditions to be fulfilled for the purpose of benefit of S.41, Transfer of Property Act, 1882‑‑‑In absence of the proof either in the form of evidence, oral or documentary or admission of vendee that he had the knowledge of defective title of vendor and the pendency of litigation before the sale, it would be difficult to hold that vendee had not taken reasonable care required to be taken by the purchaser before sale and consequently, the question of fact regarding the bona fides of the purchaser could not be effectively decided without recording evidence and providing him proper opportunity of hearing‑‑‑Principles.

Muhammad Nawaz Khan v. Muhammad Khan 2002 SCMR 2003 ref.

S.M. Masud, Advocate Supreme Court and Mahmudul Islam, Advocate‑on‑Record for Petitioners (in C.P.No.2912‑L of 2002).

Nemo. For Respondents (in C.P.No.2912‑L of 2002).

Malik Amjad Pervez, Advocate Supreme Court and Ch.Talib Hussain, Advocate‑on‑Record for Petitioners (in C.P.No.3045‑L of 2002).

C.M. Latif Rawn, Advocate Supreme Court and Muhammad Aslarn Ch., Advocate‑on‑Record for Respondents (in C.P.No.3045‑L of 2002)

Date of hearing: 30th August, 2004.

P L D 2005 Supreme Court 530

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

Mirza SHAUKAT BAIG and others---Appellants/Petitioners

Versus

SHAHID JAMIL and others---Respondents

Civil Appeal No. 1212 of 2004, Civil Petitions Nos. 2479-L and 320-L of 2004, decided on 8th February, 2005.

(On appeal from the judgments dated 31-5-2004 and 14-1-2004 passed by the Lahore High Court in W.Ps. Nos. 2630 of 2004 and 15843 of 2003 respectively).

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

----S. 6(1)(b)(c)---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal had already been granted in another case wherein the question pertaining to the jurisdiction of Special Judge under the Anti-Terrorism Act, 1997, in terms of S.6(1)(b) or (c) was involved and in order to avoid conflicting judgments leave to appeal was granted in the present case as well.

Muhammad Farooq v. Ibrar PLD 2004 SC 917 ref.

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

----S. 6---"Terrorism"---Meaning---When an offence falls within scope and ambit of S.6 of the Act---Principles---Interpretation of S.6, Anti-Terrorism Act, 1997---Section 6, of the Act is exhaustive and is capable enough to meet all kinds of "terrorism" and does not revolve around the word "designed to" as used in S.6(1)(b) of the Act or mens rea but the key word is "action" on the basis whereof it can be adjudged as to whether the alleged offence falls within the scope of S.6 of the Act or otherwise---Word "designed to" can be equated with words wilfully, knowingly and deliberately---Significance and the import of word "action" cannot be minimized and requires interpretation in a broader perspective---Act is meant for the internal security of the country having no concern with the "terrorism" prevailing at global level---"Terrorism" means the use or threat of "action" where the "action" falls within the meaning of S.6(2) of the Act and creates a serious risk to safety of the public or a section of public, or is designed to frighten the general public and thereby prevents them from coming out and carrying on their lawful trade and daily business, and disrupts civil life---Such act shall amount to terrorism as enumerated in S.6 of the Act---Court cannot pick and choose one or two sentences or a few words for academic purpose and their scholarly interpretation by ignoring the Objects and Reasons for the promulgation of the Act and its Preamble---"Intention"---Role of, in determining the act of terrorism---Section 6 creates a statutory offence and hence the question of knowledge or mens rea is immaterial if in any case the legislature has omitted to prescribe a particular mental condition, the presumption is that the omission is intentional and in such a case mens rea is not applicable---Striking off terror is sine qua non for the application of the provisions as contained in S.6 of the Act which cannot be determined without examining the nature, gravity and heinousness of the alleged offence, contents of F.I.R. its cumulative effects on the society or a group of persons and the evidence which has come on record---What was the real intention of the offender can only be adjudged on the basis of evidence which cannot be determined by invocation of Constitutional jurisdiction by the High Court and the Special Judge can take care of the matter which can be transferred by him if it does not fall within his jurisdictional domain--­Principles.

Section 6, Anti Terrorism Act, 1997 is unambiguous, plain and simple which hardly requires any scholarly interpretation and is capable enough to meet all kinds of terrorism. It is an exhaustive section and does not revolve around the word "designed to" as used in section 6(1)(b) of the Act or mens rea but the key word, is "action" on the basis whereof it can be adjudged as to whether the alleged offence falls within the scope of section 6 of the Act or otherwise? The significance and the import of word "action" cannot be minimized and it requires interpretation in a broader perspective.

No provision of law can be interpreted on the basis of "pick and choose" of a few words and in case of any confusion the relevant provisions of law should be read in toto along with the preamble of the statute coupled with the objects and reasons thereof to remove the confusion, if any, which altogether was not available and in absence whereof the question of any academic exercise or scholarly interpretation by considering the various events happened on global level, having no concern with the Act, does not arise.

Initially the Anti-Terrorism Act is meant for the internal security of the country having no concern with the terrorism prevailing at global level.

It must not be lost sight of that the provisions of section 6(1)(a) and (b) of the Act are not independent and the word "action" as used cannot be restricted within a limited sphere which has been further clarified in section 6(2) of the Act to remove all the doubts and ambiguities, if ally, clause (i) of section 6(2) of the Act is very significant which cannot be kept aside being an integral part of section 6 of the Act which shall be read in toto to see what in fact the terrorism is?

"Terrorism" means the use of threat of "action" where the "action" falls within the meaning of subsection (2) of section 6 of the Act and creates a serious risk to safety of the public or a section of the public, or is designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupts civil life. Such action shall amount to terrorism as enumerated in section 6 of the Act. Court cannot pick and choose one or two sentences or a few words for academic purpose and scholarly interpretation by ignoring the objects and reasons for the promulgation of the Act and its preamble.

While interpreting a particular statute the preamble must be present in the mind of the Judge and where the language of the statute permits an exercise of choice or interpretation, the Court must choose the interpretation which is guided by the principles embodied therein but it does not mean that the preamble or object and reason is to be given preference and it can only be considered where the language is somewhat ambiguous. The purpose of a preamble, however, is that in case of any doubt as to the intention of the law makers it may be looked at in order to ascertain the true meaning of a particular provision but it cannot control the substantive provisions of the enactment. Had there been some doubt, which is not existing regarding the language as employed in section 6 of the Act, the Court has to consider the preamble of the Act to make a proper interpretation which has not been done in the present case. Much emphasis has been laid on the words "designed to" as used in section 6 of the Act by ignoring that the normal rule of interpretation is that the words used by the Legislature are generally a safe guide to its intention. No principle of interpretation of statutes is more firmly settled than the rule that the Court must deduce the intention of Parliament from the words used in the Act. But if the words of an instrument are ambiguous in the sense that they can reasonably bear more than one meaning, that is to say, if the words are semantically ambiguous, or if a provision, if read literally, is patently incompatible with the other provisions of that instrument, the Court would be justified in construing the words in a manner which will make the particular provision purposeful. That, in essence, is the rule of harmonious construction.

"Intention" plays a dominant role in determining the act of terrorism but there is no yardstick on the basis of which it could be defined precisely and with exactitude. By Intention is meant the expectation of the consequence in question. It is a universal principle, that when a man is charged with doing an act, of which the probable consequence may be highly injurious, the intention is an inference of law resulting from the doing of the act. Intention does not imply or assume the existence of some previous design or fore-thought. It means an actual intention, the existing intention of the moment, and is proved by, or inferred from, the acts of the accused and the circumstances of the case. Criminal intention simply means the purpose or design of doing an act forbidden by the Criminal Law without just cause or excuse. An act is intentional if it exists in idea before it exists in fact, the idea realizing itself in the fact because of the desire by which it is accompanied. The word "intent" does not mean the ultimate aim and object. Nor is it used as a synonym for motive. It hardly needs any explanation that intention cannot be proved by direct evidence which is rarely available and therefore, it has to be inferred from surrounding circumstances.

The presumption of law is that a man intends the natural and inevitable consequences of his own act and thus it is not necessary to consider his state of mind at the time of committing the offence for the purposes of determining whether he intended to commit it or otherwise. It may not be out of place to mention here that if an offender intentionally commits an offence and consequences beyond his immediate purpose result, it is for the Trial Court to examine and determine how far the offender can be held to have the knowledge that he was likely by such act to cause the actual result which cannot be adjudged by the High Court while exercising its Constitutional jurisdiction. Section 6 of the Act creates a statutory offence and hence the question of knowledge or mens rea is immaterial "if in any case the legislature has omitted to prescribe a particular mental condition, the presumption is that the omission is intentional. In such a case the doctrine of mens rea is not applicable."

The provisions as contained in section 6 of the Anti-Terrorism Act is penal/criminal in nature like all other penal provisions which can be divided into "actusreus" i.e. the act in question and "mens rea" i.e. the requisite mental element. It is not essential for a penal provision to contain both such ingredients as the provisions which omit the mens rea are called strict liability offences. In the absence of express language in a statute whether mens rea is an ingredient of an offence under that statute it is necessary to look at the objects and terms of the statutes. A bare perusal of section 6 of the Act would reveal that the Legislature intends, by necessary implication, the exclusion of mens rea in dealing with the contravention of section 6 of the Act which cannot be incorporated, added or inserted in by any Court as such insertion or addition can only be made by the Legislature. The words "designed to" as used in section 6 of the Act do not mean that the offence must be committed with the intention to create terror, sensation or insecurity but it depends upon the nature of the offence and its result on the basis whereof intention of the offender could be determined. The words "designed to" as used in section 6 of the Act can be equated to that of wilful' "which means intending the result which actually comes to pass; design; intentional; not incidental or involuntary. Again it sayswilfully' is generally used to mean with evil purpose, criminal intent or the like. Wilfully, is also interpreted to mean deliberately and intentionally, not accidentally or inadvertently.

The words "designed to" are equated to that of wilfully, knowingly and deliberately. It would have no substantial bearing on the impact of section 6 of the Act whether the words knowingly, deliberately and wilfully have been mentioned specifically or otherwise as it would have no impact on the meaning, aim, scope and objects of the provisions of section 6 of the Act. Mens rea' (guilty intention) is an important ingredient of offences made punishable under the Act but specific use of the wordmens rea' in the enactment is not necessary, if this expression can be conveyed by any other word as has been done by the Legislature in section 6 of the Act by using the words "designed to".

Even in the case of a statutory offence the presumption is that mens rea is an essential ingredient unless the statute creating the offence by express terms or by necessary implication rules it out. The mere omission of the word "knowingly" or "intentionally" is not sufficient to rebut this presumption for all that such words do is to say expressly what is normally implied. Thus where the words used in the statute are not clear or unambiguous an examination of the general scheme and object of the statute becomes necessary to determine whether the general rule of liability has been departed from. In some cases even the quantum of the punishment has been taken into account for determining this question, though this by itself cannot, be conclusive.

Where a criminal act is designed to create a sense of fear or insecurity in the mind of the general public that can only be adjudged by keeping in view the impact of the alleged offence and manner of the commission of alleged offence. The Anti-Terrorism Act was brought into force for the prevention and elimination of terrorism, sectarian violence and for expeditious dispensation of justice in the heinous offences as stipulated in the Act itself. So far as the concept of "terrorism" is concerned there is no substantial change between the Suppression of Terrorism Activities (Special Courts) Act (XV of 1975) and the Anti­-Terrorism Act (XXVII of 1997) except a few minor changes having no bearing on the meaning and scope of terrorism.

Striking of terror is sine qua non for the application of the provisions as contained in section 6 of the Act which cannot be determined without examining the nature, gravity and heinousness of the alleged offence, contents of F.I.R., its cumulative effects on the society or a group of persons and the evidence which has come on record. In so far as the factum of intention is concerned that cannot be evaluated without examining the entire evidence which aspect of the matter squarely falls within the jurisdictional domain of the Court constituted under the Act and such questions cannot be decided by invocation of Constitutional jurisdiction without scrutinizing all the circumstances in a broader prospect by keeping in view the ground realities in mind. There could be no second opinion that where the action of an accused results in striking terror or creating fear, panic, sensation, helplessness and sense of insecurity among the people in a particular vicinity it amounts to terror and such an action squarely falls within the ambit of section 6 of the Act and shall be triable by a Special Court constituted for such purpose. What was the real intention of the offender could only be adjudged on the basis of evidence which cannot be determined by invocation of Constitutional jurisdiction and Special Judge, who is usually a Senior Sessions Judge, can take care of the matter which can be transferred by him if it does not fall within his jurisdictional domain. There is no denying the fact that it was never the intention of legislature that every offender irrespective of the nature of the offence and its overall impact on the society or a section of society must be tried by the Anti-Terrorist Court but the question as to whether such trial shall be conducted or not initially falls within the jurisdictional domain of Anti­-Terrorist Court which cannot be interfered with in the absence of sufficient lawful justification which appears to be lacking in these cases. It is, however, obligatory for such Courts to watch carefully the nature of accusation and examine the entire record with diligent application of mind to, determine as to whether the provisions as contained in the Act would, prima facie, be attracted or otherwise? Where such Courts are of the view, after taking cognizance of the offence, that the alleged offence does not fall, prima facie, under the provisions of the Act, it must transfer the same to regular Court without loss of time.

Mehrarn Ali v. Federation of Pakistan PLD 1998 SC 1445; (1887) PR No.62 of 1887; (34 Cr.LJ 1055 Ramsukh); (PC) AIR 1918 PC 354; Consul Confizon v. H.M. Prosecutor General, PLD 1959 Lah. 495 PLD 1958 Lah. 395; PLD 1963 Kar. 118; Taj Muhammad's case PLD 1961 Lah. 221; Rehmat Ullah's case PLD 1965 SC 640; Legal Remembrance, Bengal v. Ambika Charan Dalal (1946) 2 Cal. 127; Abdul Ghani v. State PLD 1961 Dacca 21; Halsbury's Laws of England, Vol. 10, 3rd Edn.p.508; Maxwell on Interpretation of Statutes; Daluram Behani v. The State 7 PLR Dac. 1168 = (1975) 9 DER 667; (1899) 1 QB 283; Words and Phrases, Permanent Edn. vol. 45, p.275; Halsbury's Laws of England, 4th Edn., Vol. 11, para. l252; Frank R. Prassel's book Criminal Law, Justice and Society 1979 End. P.150; Black's Law Dictionary, 5th Edn.; Stroud's Judicial Dictionary Vol. 4, 3rd Edn.; Law Terms and Phrases Judicially Interpreted by Sardar Muhammad Iqbal Khan Mokal; Madras State Waqf Board v. Tajammal Hussain AIR 1968 Mad. 332; Kedar Nath v. The State AIR 1965 All. 233; Cyclopaedic Law Dictionary, 2nd Edn.; Pakistan v. Hardcastle Waud (Pak), Ltd. PLD 1967 SC 1; Muhammad Farooq v. Ibrar PLD 2004 SC 917; Province of Sindh v. Ghulam Hussain 2002 SCMR 908; Zia Ullah v. Special Judge 2002 SCMR 1225; Najam-un-Nisa v. Judge, Special Court 2003 SCMR 1323 and Muhammad Mushtaq v. Muhammad Ashiq PLD 2002 SC 841 ref.

(c) Interpretation of statutes---

---- Principles of interpretation of criminal statutes enumerated.

Following are the well-entrenched principles of interpretation of criminal statutes:--

(1) All penal statutes are to be construed strictly, that is to say, the Court must see that. the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any notion that there has been a slip, that there has been a casus omisus, that the thing is so clearly within the mischief that it must have been intended to be included and would have been included if thought of. On the other hand, the person charged has a right to say that the thing charged, although within the words, is not within the spirit of the enactment. But Where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument, according to the fair common-sense meaning of the language used, and the Court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instruments.

(2) Criminal enactments are not to be extended by construction. When an offence against the law is alleged, and when the Court has to consider whether that alleged offence falls within the language of a criminal statute, the Court must be satisfied, not only that the spirit of the legislative enactment has been violated, but also that the language used by the legislature includes the offence in question, and makes it criminal.

(3) Nothing is to be regarded as within the meaning of the statute which is not within its letter---which is not clearly and intelligibly described in the very words of the statute itself.

(4) Also in the interpretation of Acts the elementary rule is to give full and accurate effect to every word used in them. The Courts in the exposition of penal statutes, are not to narrow the construction. They are to look to the words in the first instance, and where the words are plain, they are to decide on them. If the words be doubtful, they are then to have recourse to the subject-matter; but at all events it is only a secondary rule. It is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction.

Once Lord Halsbury said, "It seems to me that, construing the statute by adding to it words which are neither found therein nor for which authority could be found in the language of the statute itself, is to sin against one of the most familiar rules of- construction, and I am wholly unable to adopt the view that, where a statute is expressly said to codify the law, you are at liberty to go outside the code so created, because before the existence of that code another law prevailed." In the construction of a statute the duty of the Court is limited to interpret the words used by the legislature and it has no power to fill in any gaps disclosed. To do so would be to usurp the function of the Legislature."

(5) The object of the legislature must be ascertained from within the four corners of the Act. It is not open to the Court to speculate as to what the Legislature probably meant, and then do violence to the language of the enactment in order to give effect to the presumed intention. Where the words of a section in a statute are plain, the Court must give effect to them, and the Court is not justified in depriving the words of their only proper meaning in order to give effect to some intention which the Court imputes to the Legislature from other provisions of the Act. Such a course can only be justified where. a literal construction of the section is inconsistent with the meaning of the statute as a whole.

(6) It is the duty of a Court to attempt to find the intention of the Legislature, and to give effect to that intention. The more literal construction ought not to prevail, if it is opposed to the intention of the Legislature, as apparent from the statute, and if the words are sufficiently flexible to admit of some other construction by which that intention would be better effectuated. But if such a method of interpretation leads to manifest anomalies and is calculated to defeat the professed and declared intention of the Legislature, it is open to the Court to say goodbye to the rule mentioned above and to so interpret the words used as to give effect to the intention of the Legislature.

(7) A statute should be interpreted according to the plain meaning of the words and should not be given a wider meaning than what the words used would actually denote. Although it may, perhaps, be legitimate to call history in aid to show what facts existed to bring about a statute, the inferences to be drawn therefrom are extremely slight. In construing an Act the Court must always have regard to the scheme of the Act as appearing from a perusal of the language of the whole enactment.

(8) Where the language of a statute is plain and unambiguous effect must be given to it apart from the notions of justice and expediency and it is not within the province of a Court to scan the wisdom or the policy of the Legislature. It is not the duty of the Court to make law but to expound it as it stands according to the real sense of the words.

(9) The paramount duty of the judicial interpreter is to put upon the language of the Legislature, honestly and faithfully, its plain and rational meaning and to promote its object ……….. it is for the Legislature, not the Court; to define a crime and ordain its punishment. It is unquestionably a reasonable expectation that, when the Legislature intends the infliction of suffering, or an encroachment on natural liberty or rights, or the grant of exceptional exemption powers, and privileges, it will not leave its intention to be gathered by mere doubtful inference, or convey it in "cloudy and dark words" only. A Court is not at liberty to put a limitation on general words which is not called for by the sense, or the objects, or the mischief of the enactment, and no construction is admissible which would sanction a fraudulent evasion of an Act. But the rule of strict construction requires that the language shall be so construed that no cases shall be held to fall within it which do not fall both within the reasonable meaning of its terms and within the spirit and scope of the enactment. Where an enactment may entail penal consequences, no violence must be done to its language to bring people within it, but rather care must be taken that no one is brought within it who is not within its express language. To determine that a case is within the intention of a statute, its language must authorize the Court to say so, but it is not admissible to carry the principle that a case which is within the mischief of a statute is within its provisions so far as to punish a crime not specified in the statute, because it is of equal atrocity or of a kindred character with those which are enumerated. If the Legislature has not used words sufficiently comprehensive to include within its prohibition all the cases which fall within the mischief intended to be prevented, it is not competent, to a Court to extend them. It is immaterial, for this purpose; whether the proceedings prescribed for the enforcement of the penal law be criminal or civil.

(10) The rule of strict construction, however, whenever invoked, comes attended with qualifications and other rules no less important, and it is by the light which each contributes that the meaning must be determined. Among them is the rule that sense of the words is to be adopted which best harmonises with the context and promotes in the fullest manner the policy and object of the Legislature. The paramount object, in construing penal as well as other statutes, is to ascertain the Legislatures' intent, and the rule of strict construction is not violated by permitting the words to have their full meaning, or the more extensive of two meanings, when best effectuating the intention. They are, indeed, frequently taken in the widest sense, sometimes even in a sense more wide than etymologically belongs or is popularly attached to them, in order to carry out effectually the legislative intent, or, to use Lord Coke's words, to suppress the mischief and advance the remedy.

(11) In construing an Act of Parliament the Court always has to ascertain the intention of the Legislature from the language of the whole enactment, and it sometimes becomes necessary to do a certain amount of violence to the language in which a particular passage is couched in order to give effect to the intention to be gathered from the enactment as a whole. Where the words used themselves declare the intention of the Legislature, it is inadmissible to consider the advantages or disadvantages of applying the plain meaning whether in the interest of the prosecution or the accused. Where the meaning of words used in a statute is plain, it is not the .duty of the Courts to busy themselves with supposed intentions of the Legislature in framing the statute. When the grammatical meaning of a section is clear and unique that alone must be applied unless that meaning leads to an impossible, that is, an unworkable construction, in which case the Court should consider what variation will do the least violence to the grammatical meaning and still make the provision work. The grammatical meaning cannot be departed from simply because it leads to a very unjust conclusion. Different provisions of a statute should be given an interpretation which would make them consistent, rather than one which makes one provision inconsistent with the other.

(12) If the language used by the Legislature in an enactment is clear whatever its legislative background may be, the intention of the Legislature can only be gathered from the words used 'in the enactment.

(1872) L.R. 4 PC 184, 191 (1823) I B & C. 297, 299; (1933) 60 Cal. 742; (1945) Nag. 382; (1870) LR 5 CP 503, 513, 514; 1881 8 Cal. 214; (1918) 4 PLJ 74.20 Cr.L.J. 161, (1919) AIR (P) 27, Fb.;(1896) 18 All. 364, 365. (1786) ITR 96.101. (1902) 29 I.A. 196.29. Cal 707, 715, 4 Bom. LR. 793, 796; (1891) AC 107, 144; (1806) 23 I.A 18,23 Cal. 563. (1952) AC 189. (1912) 40 Cal. 433; (1936) 38 Bom. LR 1164, 1178, [1937] Bom. 183; FB.(1938) 40 Bom. LR 1275; (1936) 39 Bom. LR 548, [1937] Bom. 655, FB. [1938] All. 702, FB; (1931) 27 NLR 70, 32 Cr.LJ 1266, [1931] AIR (N) 177; [1906] 2 KB 676, 716; (1937) 39 Bom. LR. 105, 1068, [1938] Bom. 58, FB; [1947] Nag. 970; Interpretation of Statutes, 10th Edn. Ch.X pp.262, 265, 271, 273, 275, 284. Craies on Statute, Law, 4th Edn., p. 449, at seq; Blackstone's Commentaries on the Laws; of England, 4th Edn., Vol. I, p.62;-(1935) 37 Bom LR 739, 744, 60 Bom. 55; (1939) 66 I.A. 65, 41 Bom. LR. 428, 18 Pat. 234, [1941] Nag. 581; [1953] ALJ 197; (1952) 55 Bom. LR 74; Interpretation of Statutes by Mr. M. Farani; Interpretation of Statutes, 7th Edn. 1984 by Dr. Tahir Mahmood; Interpretation of Statutes 3rd Edn. by Vepa P. Sarathi; Understanding Statutes by Mr. S.M. Zafar; Principles of Statutory Interpretation, 5th Ed. 1992 By Justice G.P. Singh; Maxwell on the Interpretation of Statutes, 12th Edn. By P.St. J. Langan; Principles of Statutory Interpretation, 3rd Edn. By G.P. Singh; Statutory Construction by Earl T. Crawford and Interpretation of Statutes. by M. Mahmood ref.

(d) Interpretation of statutes---

----No provision of law can be interpreted on the basis of "pick and choose" of a few words and in case of any 'confusion the relevant provisions of law should be read in toto along with the preamble of the statute coupled with the objects and reasons thereof to remove confusion, if any.

(e) Terrorism---

----Concept---Position concerning the concept of "Terrorism" is not clear---Question as to "what is Terrorism and what is not" abundantly made clear.

Article of Mr. Ghayoor Ahmed, a former Ambassador, quoted.

(f) Interpretation of statutes--

---- Preamble of a statute---Utility.

A preamble is a legitimate aid in discovering the purpose of a statute. The preamble of a statute has been said to be a good means of finding out its meaning and intent and, as it were, a key to the understanding of it. The study' of preamble to a piece of legislation provides a clue to arrive at the intention of the law-maker. Apart from the preamble as a key to find out the intention of the Legislature the history of the legislation, can also be looked into. The Court may properly be referred to what is generally known as contemporaneous circumstances. Such circumstances include the history of the time existing when the law was enacted, the previous state of law, the evil intended to be corrected, the general policy of State or the established policy of the Legislature can also be considered. It can be referred to in certain cases to ascertain the intention of the Legislature. It affords, in a case where the language of the enactment is not clear, "a key to the construction of the Statute" and can, therefore, be referred to for the purpose of finding out the object and the intention of the enactment., If, however, there is an inconsistency or conflict in the plain meaning of the Act and the Preamble, latter has to give in. and the statute is to be construed according to its plain meaning. A preamble sheds useful light on what a statute is intended to achieve or remedy. 'It is true that the preamble cannot control, restrict, extend or otherwise add to or detract from a substantive provision of the statute, where it is expressed in clear unambiguous language. But there is weighty judicial authority in which preamble has been referred to, with advantage, as an aid to the construction of the main provision of statutes. Preamble has long been accepted, at any rate, since the middle of the 19th Century, "as a legitimate aid to construction". There is a long array of authorities bearing on the point. In all these cases the broad principle was accepted that preamble is the key to a statute and affords a clue to its scope, particularly where the words construed by themselves are fairly capable of more than one construction. An interpretation, which is more in consonance with the avowed policy underlying the Act as decipherable from its title and preamble, is to be preferred to an interpretation, which is at tangent with its object. The preamble, however, cannot either restrict or extend the enacting parts when the language is not open to doubt. Rights whether public or private are not to be taken away or even hampered by mere implications from the language in the absence of express words used in the statute. It does not affect unambiguous provision of statute. It may be, that sometimes, it is permissible to have recourse to the preamble, however, it has not the same weight as the enacting provision themselves. It is only in exceptional cases where the enacting provisions are equivocal that the Courts sometimes refer to the preamble as an aid to finding out the true legislative intendment which the draftsman has failed to demonstrate. Though the preamble may be considered to be a key to the Act itself, it cannot normally be applied to explain the Act except where the provisions contained in its body are otherwise vague. Where the language of the section is clear; the preamble cannot control its provisions. It will not qualify enactment which in itself is clear and unambiguous: The preamble cannot either restrict or extend the enacting part, when the language and the object and scope of the Act are not open to doubt. In short the general rule is that the express provision of an enactment, if it is clear and unambiguous, cannot be curtailed or extended with the aid of the preamble, but when the object or meaning of certain provision is not clear then it is perfectly legitimate to have recourse to the preamble to explain it. The preamble of the statute has been said to be a good means of finding out its meaning, and, as it were a key to the understanding of it. Of course it does not mean that if there are express provisions in the Act which go beyond what has been briefly stated in the preamble the express provision will not prevail. But the provision of the Act has to be read in conjunction with the preamble in order to arrive at a finding as to what was the purpose of the legislation.

While interpreting a particular statute the preamble must be present in the mind of the Judge and where the language of the statute permits an exercise of choice or interpretation, the Court must choose the interpretation which is guided by the principles embodied therein but it does not mean that the preamble or object and reason is to be given preference and it can only be considered where the language is somewhat ambiguous. The purpose of a preamble; however, is that in case of any doubt as to the intention of the law makers it may be looked at in order to ascertain the true meaning of a particular provision but it cannot control the substantive provisions of the enactment.

PLD 1986 Journal 93, PLD 1981 FSC 23, PLD 1966 BJ. 30, PLD 1969 Lah. 563, PLD 1972 Kar. 421, PLD 1969 Lah. 908, PLD 1952 Dacca 272, PLD 1962 Lah. 990, PLD 1975 SC 1, PLD 1950 Pesh. 22, PLD 1953 Sindh 15, PLD 1952 Dacca 425, PLD 1958 Pesh. 73, PLD 1966 Dacca 1 ref.

(g) Interpretation of statutes---

----Harmonious interpretation---Court must deduce the intention of Parliament from the words used in the, Act, but if the words of an instrument are ambiguous in the sense that they can reasonably bear more than one meaning, that is to say, if the words are semantically ambiguous, or if a provision, if read literally, is patently incompatible with the other provisions of that instrument, the Court would be justified in construing the words, in a manner which will make the particular provision purposeful---Such, in essence, is the rule of harmonious construction.

Shahid Nabi Malik v. Chief Election Commissioner PLD 1997 SC 32 ref.

(h) Criminal trial---

----Intention does not imply or assume the existence of some previous design or forethought---Intention means an actual intention, the existing intention of the moment, and is proved by, or inferred from, the acts of the accused and the circumstances of the case.

(1887) PR No. 62 of 1887 ref.

(i) Words & phrases---

----"Intent"---Meaning---Intent does not mean the ultimate aim and object nor the same is used as synonymous with motive.

34 Cr.LJ 1055 Ramsukh ref.

(j) Words & phrases--

----"Wilfully"----Connotation.

According to Halsbury's Laws of England, Fourth Edition, Vol. 11, para. 1252 wilfully' means deliberately and intentional, not accidentally or inadvertently. Intent is probably the most common, at least for the major traditional offences, but some codes call the proof ofwilful', voluntary',malicious', corrupt', orpurposeful' product instead. These terms are generally accorded similar legal meanings, subject to limited variation from one jurisdiction to another.

An act is done wilfully and knowingly when the actor intends to do it and knows nature of the act. Further that an act or omission is `wilfully' done, if done voluntarily and intentionally and with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done; that is to say, with bad purpose either to disobey or to disregard the law. When used in criminal context it generally means an act done with a bad purpose, without justifiable excuse; stubbornly, obstinately, perversely. The word is also employed to characterize a thing done .without ground for believing it is lawful or conduct marked by a careless disregard whether or not one has the right so to act.

The legal meaning of wilful is purposely without regard to bona fides or collusion and deliberately and intentionally but does not involve obstinacy of an obstructive kind and it means an intentional disobedience. The term `wilfully' amounts to nothing more than this that the person whose action is in question, knows that he is doing and intends to do what he is doing and is a free agent. Wilful means wantonly, intentional, deliberately and consciously and not accidentally or by inadvertence. Reference is made there to Madras State Waqf Board. v. Tajammal Hussain (AIR 1968 Mad. 332) and Kedar Nath v. The State (AIR 1965 All. 233).

Wilfully' means in the common sense, voluntary, or intentional In criminal law the term generally means more thanvoluntary' and implies an evil mind or intent.

(1899) 1 QB 283; Words and Phrases, Permanent Edn. Vol. 45, p.275; Halsbury's Laws of England, 4th Edn., Vol. 11, p.1252; Frank R. Prassel's Book Criminal Law, Justice and Society 1979 Edn. p.150; Black's Law Dictionary, 5th Edn.; Stroud's Judicial Dictionary Vol. 4, 3rd Edn.; Law Terms and Phrases Judicially Interpreted by Sardar Muhammad Iqbal Khan Mokal; Madras State of Waqf Board v. Tajammal Hussain AIR 1968 Mad. 332; Kedar Nath v. The State AIR 1965 All. 233 and Cyclopaedic Law Dictionary 2nd Edn. quoted.

(k) Constitution of Pakistan (1973)---

----Art. 189---Judgments of Supreme Court are binding upon the High Court---Any decision of the Supreme Court, shall to the extend that it decides a question of law or is based upon or enunciates a principle of law shall be binding on all other Courts in Pakistan---Supreme Court, noted the language as used in the judgment impugned which appeared to be derogatory and contemptuous and observed that same could not be ignored lightly and it was directed that care and caution must be observed while offering comments on any judgment, delivered by the Supreme Court in order to avoid the possibility of suo motu action by the Supreme Judicial Council and initiation of proceedings under the contempt laws.

The judgments of Supreme Court being apex Court are binding upon the High Court in view of the provisions as enumerated in Article 189 of the Constitution of Islamic Republic of Pakistan which, inter alia, provide that any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law shall be binding on all other Courts in Pakistan. The ultimate responsibility of interpreting the law of the land is that of the Supreme Court. Therefore any decision of the Supreme Court shall to the extent that it decides a question of law or is based upon or enunciates a principle of law is binding on all other Courts in Pakistan. Law declared by Supreme Court becomes the law of the land and is binding not only on all Courts in Pakistan but also on all functionaries of the Government.

Where a judgment of Supreme Court has become effective as from a specified date, it would be binding not only on High Court and Courts subordinate to it but also on all other Courts of Pakistan from that date. Therefore, High Court rightly preferred Supreme Court decision over decision of Full Bench of High Court. The decision of Supreme Court cannot be ignored on the ground that certain grounds were not urged before Supreme Court. Apart from the Constitutional obligation imposed upon the Courts even the propriety demands that the Courts must follow such a law without any hesitation. Unless the law se declared is altered or overruled by the Supreme Court itself, the High Court has no option but to follow it.

Supreme Court noted that the language as used in the judgment impugned appeared to be derogatory and contemptuous which could not be ignored lightly and it was directed that care and caution must be observed while offering comments on any judgment delivered by the Supreme Court in order to avoid the possibility of suo motu action by the Supreme Judicial Council and initiation of proceedings under the contempt laws.

PLD 1971 SC 324; PLD 1985 SC 228; PLD 1987 Lah.71; 1981 SCMR 520; PLD 1973 Lah 1; PLD 1975 Lah. 65; and PLD 1964 Pesh. 250 ref.

Munir Ahmed Bhatti, Advocate Supreme Court for Appellant (in C.A. No. 1212 of 2004).

Raja Muhammad Arif, Advocate Supreme Court for Responder No. 1 (in C. A. No. 1212 of 2004).

M.A. Zafar, Advocate Supreme Court for Petitioner (in C.P. No.320-L of 2004).

M. Hanif Khatana, Addl. A.-G. with Ms. Afshan Ghazanfar, Addl. A.-G. Punjab for Petitioner (in C.P. No.2479-L of 2004).

M. Hanif Khattana, Addl.A.-G. Punjab and Ms. Afshan Ghazanfar, A.A.-G. Punjab for A.-G. Punjab.

Date of hearing: 8th February, 2005.

P L D 2005 Supreme Court 570

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Tassaduq Hussain Jillani, JJ

MUHAMMAD NASIM TURYALI and others---Appellants

Versus

GHULAM SARWAR KHAN and others---Respondents

Civil Appeals Nos. 1374, 1375 and 1672 of 2003 and Civil Miscellaneous No. 1437 of 2004 in C. A. No. 1374 of 2003.

(On appeal from the judgment dated 8-10-2003 passed by Election Tribunal of Balochistan, Quetta in Election Petitions Nos. 3 and 4 of 2003).

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

----Art. 63(1)(e) & (k)---Disqualification for membership of Assembly--­Expression "service of any statutory body or anybody which has a controlling share or interest" not to be confused with "civil service" or a "civil servant"---Person appointed as Management Trainee and was in the service of the company which was owned by the Federal Government was squarely hit by Art. 63(1)(e) & (k) of the Constitution.

The Expressions "service of any statutory body or anybody which is owned or controlled by the Government or in which the Government has a controlling share or interest" should not be confused with "Civil Service" or a "Civil Servant". It is not circumscribed by any concept of salary or fee. It connotes any service, post or office in the statutory body regulated by the Rules or Regulations framed by the competent authority. The only rider is that the said statutory body should either be owned or controlled by the Government. Person appointed as Management Trainee and was in the service of the Company which was owned by the Federal Government was squarely hit by Article 63(1)(e) and (k) of the Constitution of Islamic Republic of Pakistan.

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

----Art. 63(1)(e) & (k)---Disqualification of the elected candidate was found to be on account of his being in service of a company owned by Federal Government---Disqualification from which the candidate suffered was not generally known at the time of election either to the candidate or to the constituency and it was a controversial issue both of law and fact---When the election of a returned candidate is annulled on account of disqualification the votes cast in his favour could either be treated as thrown away votes or the electorate may be given a fresh choice to elect their representative---Former course could be adopted only when the disqualification of the candidate in question was known to the electorate and they knowingly chose to vote for such a person who was subsequently found to be disqualified to contest election---Voters, in the present case, would have a right to ask for fresh election---Principle.

The disqualification from which the elected candidate suffered was known to the electorate and even residents did not raise this objection at the time of filing the nomination papers. The question of candidate's disqualification was a controversial question both of fact and law. When the election of a returned candidate is annulled on account of disqualification the votes cast in his favour could either be treated as thrown away votes or the electorate may be given a fresh choice to elect their representative. The former course can be adopted only when the disqualification of the candidate in question was known to the electorate and they knowingly chose to vote for such a person who was subsequently found disqualified to contest the election. The principle is that, since despite the disqualification being known and notorious the electorate voted in favour of the said candidate, they have thrown away their votes and have no right to seek fresh election. However, if this disqualification was not known to the voters and the question entailed recording of evidence and a judicial pronouncement as in the present case then the votes cast in favour of such a candidate could not be treated as thrown away votes. In the event of such a disqualification the voters have a right to ask for fresh election.

Rashid Ahmed v. Barkat Ali PLD 1968 SC 30; Muhammad Afzal Khan v. Ch. Manzoor Elahi PLD 1975 SC 1296; Saeed Hassan v. Asghar Ali PLD 1976 SC 6 and Ahmad Saeed v. Election Tribunal 2003 SCMR 1611 fol.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellant (in C.As. Nos. 1374, 1375 and C.M.A. No. 1437 of 2004 and for Respondent No. 1 (in C.A. No. 1672 of 2003).

Qazi Muhammad Anwar, Senior Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Appellant (in C. A.No.1672 of 2003).

Makhdoom Ali Khan, Attorney-General for Pakistan (on Court Notice).

Date of hearing: 25th February, 2005.

P L D 2005 Supreme Court 577

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

COLLECTOR OF CUSTOMS (APPRAISEMENT), KARACHI and others---Appellants

Versus

FAUJI FERTILIZER CO. LTD. and others---Respondents

Civil Appeals Nos. 1093 and 1876 of 1996, decided on 9th May, 2005.

(On appeal from the judgments dated 18-10-1994 and 22-12-1994 of the High Court of Sindh, Karachi, in Constitutional Petitions Nos.D-1188 and D-1093/1993 respectively).

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

----Ss. 19 & 32(3)---S. R. O. 959(I)/89 dated 23-9-1989---S.R.O.515(I)/89 dated 3-6-1989---S.R.O. 393(I)/74 dated 21-3-1974---Constitution of Pakistan (1973), Art. 185(3)---Manufacturing of fertilizers---Leave to appeal was granted to consider contentions raised which required interpretation of S.R.O. 959(I)/89 dated 23-9-1989 and were of general importance involving duties and taxes and to determine the points viz. whether "catalyst" was integral or component part of machinery/plant and whether "catalyst" was a chemical and consumable.

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

----Ss. 19 & 32(3)---S.R.O. 959(I)/89 dated 23-9-1989---S.R.O.515(I)/89 dated 3-6-1989---Manufacture of fertilizers---" Catalyst"---Definition--­Exemption of "catalyst" from customs duty and sales tax---"Catalyst" is an essential and integral part of the plant including all chemical reactors without which the whole machinery remains incomplete and which is utilized in fertilizer production---Catalyst cannot be considered as raw material---Catalyst being an integral part of the fertilizering plant and machinery, shall be exempted from the customs duty and sales tax--­S.R.O.959(I)/89 dated 23-9-1989 has made the position clear which indicates that "plant and machinery" not manufactured locally and imported for the expansion of the existing unit manufacturing fertilizer shall be exempted from whole of the customs duty and sales tax subject to conditions specified under S.R.O.515(I)/89 dated 3-6-1989---Merely because catalyst does not find mentioned in Chapters 84 and 85 of Pakistan Customs Tariff and mentioned separately would have no substantial bearing on merits of the case because the controversy has been set at rest by the S.R.Os. which are capable enough to meet all sorts of such eventualities---Catalysts, Expoxy Grout and Speciality Paints being integral parts of the plant and machinery, shall be exempted from customs duty and sales 'tax pursuant to the provisions contained in S.R.O.515(I)/89 dated 3-6-1989 and S.R.O.959(I)/89 dated 23-9-1989 being the relevant S.R.Os.--­Principles.

Carbide and Carbon Chemicals Corp. v. Coe, 102 F.2d 236, 240, 69 App. D.C.372; General Chemical Co. v. Standard Wholesale Phosphate and Acid Works, 22 F. Supp. 332 at 340. D.C. Md.; Certificate from M/s. Faster Wheeler, U.K.--the Consultants; Certificate from M/s. Haldor Topsoe, Denmark--the Manufacturer and Supplier of Catalysts and Ammonia Technology; Words Customs Organizations and Cambridge Advanced Learner's Dictionary Catalyst noun (c), Merriam-­Webster Dictionary; American Heritage Dictionary 4th Edn. 2000 and Encyclopaedia Britannica Catalyst ref.

(c) Plant and Machinery---

----What includes---" Plant and machinery" are not two different entities because a plant cannot be functional without machinery and machinery being integral part of the plant, both "plant and machinery" can be considered interchangeable and synonymous keeping in view a little difference between the two and their dependence upon each 'other because they are not separable and a plant cannot be made functional without a machine---Principles.

Corpus Juris Secumdum Vol. 70; Halsbury's Laws of England Vol. 23; Yarmouth v. France (1887), 19 Q.B.D. 647 p.658; Sundaram Motors (Pvt.) Ltd. v. Commissioner of Income Tax, Madras 1972 PTD 119; Chambarbaugwalla (RMD) v. Union of India 1957 SCR 53 ITR 165 (SC); Commissioner of Income Tax v. Raju (1966) 60 ITR 246 (SC); Holome v. Guy (1877) 5 Ch. D 901; National Provincial and Union Bank of England v. Charnley, 1 KB 1923 (CA); Hinton (Inspector of Taxes) v. Maden and Ireland. Ltd. (1959) 3 All. Err. 356; Munby v. Furlong (Inspector of Taxes) 1977 Ch. 539; IRC v. Barclay Curle & Co. Ltd. (1969) 1 All. ER 732; Hohn Hall, Junior & Co. v. Rickman (1996) 1 KB 311; McVeigh Inspector of taxes v. Arthur Sanderson & Sons Ltd. (1969) 2 All ER 771; Cooke Inspector of Taxes v. Beach Station Caravans Ltd. (1974) 3 All. ER 159; Scholfield (Inspector of Taxes) v. R and H Hall Ltd. (1975) STC 353 (NI CA); IRC v. Scottish and Newcastle Breweries Ltd. (1982) 2 All ER 230 and Leeds Permanent Building Society v. Procter (Inspector of Taxes (1982) 3 All ER 925 ref.

S.M. Zafar, Senior Advocate Supreme Court for Appellants.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, M. Afzal Siddiqui, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents (in C. A.No.1093 of 1996).

Khalid Anwar, Senior Advocate Supreme Court for Respondent No. 1 (in C. A.1876 of 1996).

Respondent No.2. Ex parte.

Dates of hearing: 8th and 10th June, 2004.

P L D 2005 Supreme Court 600

Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Saiyed Saeed Ashhad, JJ

Sardarzada ZAFAR ABBAS and others---Appellants

Versus

Syed HASSAN, MURTAZA and others---Respondents

Civil Appeals Nos. 1590, 1746 and 1815 of 2003, decided on 5th May, 2005.

(On appeal from the judgment dated 8-9-2003 passed by the Election Tribunal Punjab, Lahore High Court, Lahore in Election Petitions Nos.77, 106 and 13 of 2002).

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

---Ss. 55(3), 54 & 63(a)---Civil Procedure Code (V of 1908), O. VI, R.15---Election petition---Verification of an election petition though mannered in accordance with civil law yet it entails penal consequences and hence is mandatory---Procedure.

The verification on oath of the contents of an election petition is provided under section 55(3) of the Representation of the People Act of 1976. It provides that every election petition and every schedule or annexure to petition shall be signed by the appellant and verified in the manner laid down in the Code of Civil Procedure, 1908. The Code contains such provisions under Order VI, rule 15, which requires the verification of pleadings on oath. Such verification is not to be signed in routine by the deponent but being on oath, it requires to be attested either by the Oath Commissioner or any other authority competent to administer oath. It needs hardly to be emphasized that every oath is to be practically administered.

So far as the provisions of civil law are concerned, such verifications generally are of directory in nature. An omission to do so can be rectified subsequently during trial and even the Court can direct such rectification. While, on the other hand, under election laws such verification on oath is mandatory because of being' followed by penal consequences under section 63(a) of the Act that makes it mandatory far the Tribunal to dismiss election petition if the provisions of sections 54 and 55 of the Act have not been complied with. The verification on oath of an election petition though mannered in accordance with civil law yet it entails penal consequences and hence is mandatory.

Iqbal Zafar Jhagra's case 2000 SCMR 250 fol.

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

----Ss. 56, 52, 53 & 54---Contention was .that once an election petition, under S.56, Representation of the People Act, 1976 stood forwarded by the Chief Election Commissioner to the Election Tribunal, the Tribunal could not enter into the question of verification and dismiss the petition on ground of non-verification--- Validity---Requirements of S.55 of the Act would be gone into by the Tribunal itself and not by the Chief Election Commissioner---Such objection could validly be raised before the Election Tribunal alone---Principles.

Section 56 of the Representation of the People Act, 1976 provides that if the Commissioner finds that any provision of sections 52, 53 or 54 of the Act, has not been complied with, the petition shall be dismissed forthwith and if it is not so dismissed, it shall be referred to the Tribunal for trial. It is quite significant that the lawmaker, having specifically referred to sections 52, 53 and 54 of the Act, has distinctly omitted to mention section 55 of the Act. Meaning thereby, that the requirements of section 55 of the Act would be gone into by the Tribunal itself and not by the Chief Election Commissioner. Such objection can validly be raised before the Tribunal and Tribunal alone.

Muhammad Azad Gul's case 1997 CLC 1132 distinguished.

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

----S. 55---Election petition---Verification on Oath---Whether the verification should be, at the end of election petition on the same page or any verification given on a separate page would meet the requirement though in the shape -of an affidavit---Held, there was practically no difference whatsoever by verifying a statement on Oath and by verifying the same statement on affidavit---Objection as to why such verification was, on a separate page or leaf, was rather, too immature to be taken notice of and sustained.

In the given circumstances, there is no material difference between a verification on oath and a verification through an affidavit. An affidavit is a sworn statement in writing while a verification is a confirmation in law by oath in order to establish the truth, accuracy and reality of a statement of fact. Thus, there is practically no difference whatsoever by verifying a statement on oath and by verifying the same statement on affidavit. It also loses significance when such, affidavit on oath is. attested by the authority competent to administer oath. The objection as to why such verification is on a separate page or leaf is rather too immature to be taken notice of and sustained.

(d) Representation of the People Act (LXXXV of 1976)---

----S. 55---Election petition---Verification---Contention was that Election petitioner in his verifications .had failed to give reference to the paragraphs of the pleadings as to what he happened to verify upon his own knowledge and what he happened to believe upon information received and believed to be true---Validity---Such objection was not very material because at times the entire statement happened to be given on the basis of one's knowledge and at times on the basis of information received---It depended upon the facts of each case, as to what category the assertions belonged and situation was likely to differ from case to case.

S.M. Masud, Advocate Supreme Court for Appellant (in C.A. No. 1590 of 2003).

Hasnaat Ahmad, Advocate Supreme Court for Respondent No. 1 (in C. A. No. 1590 of 2003).

Other Respondents: Ex parte (in C.A. No. 1590 of 2003).

Izhar-ul-Haq, Advocate Supreme Court for Appellant (in C.A. No. 1746 of 2003).

Respondents: Ex parte (in C. A. No. 1746 of 2003).

Appellant (in person) (in C. A. No. 1815 of 2003).

Shahid Karim, Advocate Supreme Court for Respondent No.1 (in C. A. No. 1815 of 2003).

Other Respondents: Ex parte (in C.A. No. 1815 of 2003).

Date of hearing: 5th May, 2005.

P L D 2005 Supreme Court 605

Present: Iftikhar Muhammad Chaudhry, Rana Bahgwandas and Mian Shakirullah Jan, JJ

FECTO BELARUS TRACTOR LTD. ---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Finance Economic Affairs and others---Respondents

Criminal Original Petition No. 15 of 2002 and Criminal Miscellaneous Application No. 179 of 2002 in Civil Review Petition No.80 of 1999, decided on 11th May, 2005.

(a) Judgment---

----Order in a judgment---Order made by a Court of unlimited jurisdiction in the course of continuous litigation are either regular or irregular---No distinction can be drawn between orders that are "void" in the sense that they can be ignored with impunity by those persons to whom they are addressed, and orders which are "voidable" in the sense that they may be enforced until set aside, since any order must be obeyed unless and until it is set aside and there are no orders which are void ipso facto without the need for proceedings to set them aside---If a contravention of an order is to be visited with penalties of a criminal Mature that order must be in clear and unmistakable language--­Obligation must not rest upon any implication to be derived from any word used in respect of other matters by the Court; it must be couched in express terms and must be brought directly to the notice of the party.

Issacs v. Roberton (1984 (3) All. ER 140 and Hayat Ahmed Khan v. Bashir Sadiq PLD 1952 Lah. 48 quoted.

(b) Contempt of Court---

---- Refund of customs duty, sales tax and service charges to the petitioner---Allegation of violation of judgment of the Supreme Court--­Petitioner insisted for initiating contempt proceedings against the officers of Central Board of Revenue as according to it they were responsible for violating the judgment of the Supreme Court---Supreme Court declined to be persuaded to subscribe to its contention; firstly for the reason that the Central Board of Revenue or its officers, in the letters addressed to the petitioner from time to time, had not denied the refund of customs duty, sales tax and service charges to petitioner, secondly in the judgment of Supreme Court, no directions were made to the Government as well as Central Board of Revenue for the refund immediately and in the judgment of the High Court which was restored by the judgment of the Supreme Court, it was held therein that petitioner was entitled to exemption of customs duty, Sales Tax and Service Charges in view of the authorization letter by the Government, Petitioner had not furnished any bank guarantee before the High Court for the purpose of release of goods nor the High Court as well as the Supreme Court dilated upon the question whether the burden of customs duty and sales tax had been passed on or not by the petitioner to the end customer of goods; thirdly the Central Board of Revenue had been insisting the petitioner to furnish its accounts, enabling it to make the refund if permissible under the law but petitioner, instead of doing so, approached the Court with contempt proceedings for the purpose of causing harassment to the Board or its officers; fourthly entitlement of the petitioner for the refund would be determined in accordance with law as well as practice in vogue, which had attained the status of law and fifthly .power of punishment for contempt was not used to cast slander or to ridicule any person, but essentially to devise ways and means for doing complete justice with utmost impartiality for the general benefit thereby, promoting public goods, so that aggrieved party could fearlessly invoke the jurisdiction of the Court to avail all remedies which were permissible under the law, and to have complete satisfaction of redress as regards wrong done to him---Principles.

Masroor Ahsan v. Ardeshir Cowasjee PLD 1998 SC 823 ref.

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

----S. 11, Explanation IV ---Res judicata, principle of---Any matter which might or ought to have been made ground of defence or attack, in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

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

----S. 11---Constructive res-judicata--- Principles enumerated.

Following are the principles for examination of question of constructive res judicata in accordance with S.11, C.P.C.:-

1. The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually or constructively in the former suit.

2. The former suit must have been a suit between the same parties or between parties under whom they or anyone of them claim.

3. The parties as aforesaid must have litigated under the same title in the former suit.

4. The Court which decided the former suit must have been a Court competent to try the subsequent suit in which such issue is subsequently raised.

5. The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit.

Province of Punjab v. Ibrahim and Sons 2000 SCMR 1172 quoted.

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

----Ss. 33 & 19---Sales Tax Act (VII of 1990), S. 66---Civil Procedure Code (V of 1908), S. 11---Refund of sales tax and customs duty--­Constructive res judicata, principle of---Applicability---No order had been passed for the refund of tax and duty---Relief regarding exemption from customs duty and sales tax had been given to the petitioner in view of the letter by the Government to be a notification, issued under S.19 of the Customs Act, 1969---Supreme Court had not dilated upon the question of refund of Customs duty and sales tax on taking into consideration whether the burden of the Customs duty and sales tax had been passed on to the customers or not---Question relating to passing on the burden by the petitioner was never agitated by either of the parties before the Supreme Court as well as before the High Court---Query by the Central Board of Revenue from the petitioner," whether burden of sales tax had been passed on to the actual consumer of goods or not" was not barred under the principle of constructive res judicata in circumstances.

Province of Punjab v. Ibrahim and Sons 2000 SCMR 1172 ref.

(f) Sales Tax Act (VII of 1990)---

----Ss. 3-B & 66---Customs Act (IV of 1969), Ss. 33 & 18-B---Sales of Goods Act (III of 1930), S. 64-A---S.R.O. No.92(I)/1994 dated 22-9-1994---S.R.O.1189(I)/1994 dated 11-12-1994---S.R.O.388(I)/1996 13-6-1996---S.R.O. 414(I)/1996 dated 13-6-1996--- Exemption---Refund of sales tax, Customs duty and service charges---Principles---Sales Tax is an indirect tax, burden whereof is to be borne by the purchaser and the vendor is bound to reimburse the amount to the Federal Government in terms of S.3-A Sales Tax Act, 1990---Likewise Customs duty is an indirect tax, burden of which has to be borne by the purchaser, according to the mandate of S.64-A, Sales of Goods Act, 1930--­Petitioner, in circumstances, had no right to claim refund of customs duty and sales tax which it had recovered from the end users as an agent of the Government, if its burden had been passed on by it, being the property owning purchasers, otherwise it will, remain with the Government, who would spend it on the welfare of general public--­Petitioner had to establish to the satisfaction of the Central Board of Revenue, that the burden of sales tax had been passed on to the end user, equal to the bank guarantee, furnished by it---Failure of petitioner to do so would result that an adverse presumption would be drawn. against it under Art. 129 of the Qanun-e-Shahadat, 1984---Supreme Court declined to order refund of the tax, burden whereof had been passed on to the consumer---Principles.

The Customs Duty is an indirect tax, burden of which has to be borne by the purchaser, according' to mandate of section 64-A of the Sales of Goods Act, 1930.

In view of S.64-A, Sales of Goods Act, 1930 it may also be noted that the petitioner had no right to claim refund of Customs Duty and Sales Tax, which it had recovered from the end user as an agent of the Government, if its burden had been passed on by it, being the property owning purchasers, otherwise it will remain with the Government, who would spend it on the welfare of general public.

Thus entitlement of the vendor to claim refund of Customs Duty and Sales Tax, depends upon producing evidence that burden of the same had not been passed on. In addition to it, section 3-B of the Sales Tax Act casts a duty upon the vendor to return such amount to the Federal Government. Although under the Customs Act, 1969, there is no identical provision but on the principle of fairplay and equity, vendor having received indirect tax, cannot pocket the same.

The principle of passing on burden of indirect tax has nexus with the doctrine of unjust enrichment, according to which windfalls are prohibited to a person in respect of amount which is not owned by him nor it had sustained any loss in respect thereof.

Petitioner in the present case in its own right had no legal authority to retain Customs Duty and Sales Tax with it and it was its duty to have transferred the same to the C.B.R. However, to resolve the controversy the C.B.R. constituted a Committee, calling upon the petitioner to substantiate as to whether burden of Sales Tax had been passed on to the end user or not and in such situation, petitioner ought to have established to the satisfaction of the Committee that the burden of Customs Duty and Sales Tax, equal to the amount of bank guarantee, furnished by it, had been passed on to the purchaser or not but it failed to do so with the result that an adverse presumption may be drawn against it under Article 129 of the Qanun-e-Shahadat, 1984 that the incidence of Sales Tax and Customs Duty had been passed on to the purchaser. Alternatively petitioner should have invoked the equitable jurisdiction of the Courts, either by filing a suit or a writ petition in terms of section 72 of the Contract Act, for getting the refund of Sales' Tax and Customs Duty. Essentially petitioner did not invoke the equitable jurisdiction of the Courts, presumably for the reason that it had already passed on the incidence of Customs Duty and Sales Tax to a third party. Supreme Court declined to refund the tax, burden whereof had been passed on to the consumer.

There was not an iota of evidence on record to substantiate that incidence of Customs Duty and Sales Tax had not been passed on to the purchasers, therefore, it would be presumed that the burden had been passed on to the third party/end consumer, as such petitioner would not be entitled to refund of the Customs Duty and Sales Tax. Besides, in view of section 3-B of the Sales Tax Act, petitioner was even otherwise bound to reimburse the collected Sales Tax to the Government. As far as the Customs Duty is concerned, the Government was also entitled to recover the same from the petitioner on the principles of equity as petitioner had no right to retain the same and it had also not suffered any loss in respect of the tax, which belonged to a third person, therefore, petitioner was not entitled to the same.

Authorization letter by the Ministry was not issued by the relevant executive authorities of the Federal Government in accordance with the provisions of Article 90 of the Constitution of Islamic Republic of Pakistan read with Rule 12 of the Rules of Business 1973, coupled with the reasons that authorization letter was not gazetted in order to make it public therefore, it could have not furnished basis for granting relief to the petitioner. If the basis of the judgment i.e. authorization letter has been successfully removed, how can the petitioner be entitled to the relief on the basis thereof. So far as Protection of Economic Reforms Act, 1992 is concerned, it would not provide any relief to petitioner in the face of non obstante clause therein.

The judgment based on the said letter had decided the question of exemption of Customs Duty and Sales Tax but it had nothing to do with the question of refund, therefore, for this additional reason as well, on the basis of the judgment, the petitioner could not claim relief of refund of the amount and for that matter it ought to have chosen another equitable remedy as discussed hereinabove.

The imposition of Service Charges as imposed under section 18-B of the Customs Act 1969, towards the pre-shipment inspection is ultra vires of the powers of the Federal Legislature. It is to be noted that Officers of the Board have placed on record sufficient material which indicates that the petitioner had neither deposited indirect tax i.e. Sales Tax and Customs Duty nor had sold the goods at the agreed rate. They had been selling the same at a much higher rate, and in this manner, they had been earning profit. This fact has not been denied by the petitioner as such applying the principle of unjust enrichment, the petitioner is not found entitled for the same as well. However, if upon furnishing documentary evidence, petitioner satisfies the concerned authorities of the CBR that the goods were sold by it at the agreed per unit, inclusive of Customs Duty and Sales Tax, then it would be entitled to the refund of Service Charges, otherwise it would also be liable to pay the balance of the amount acquired by it by selling the goods at a price higher contrary to commitment made by it with the Government.

Petitioner is not entitled to the refund of Customs Duty and Sales Tax. However, Service Charges are refundable subject to observations made.

Messrs Army Welfare Sugar Mills Ltd. v. Federation of Pakistan 1992 SCMR 1652; Orient Paper Mills v. State of Orissa AIR 1961 SC 1438; Amar Nath Om Prakash v. State of Punjab AIR 1985 SC 218; Mafatlal Industries Ltd. v. Union of India 1997 (5) SCC 536; Prof. George C. Palmer in his work The Law of Restitution 1986 Supplement, at page 255; Messrs Abbasi Textile Mills Ltd. v. Federation of Pakistan PLD 1958 SC Pak. 187; Commissioner of Sales Tax RWP. v. Messrs Sajjad Nabi Dar PLD 1977 Lah. 75; Messrs Sajjad Nabi Dar and Co. v. Commissioner of Income Tax Rwp. PLD 1977 SC 437; Commissioner of Sales Tax v. Messrs Zalin Ltd. 1985 SCMR 1292; Messrs Air Home International v. Government of Punjab 2002 FCLC 780; State of M.P. v. Vyankatlal AIR 1985 SC 901; Entry Tax Officer, Banglore v. Chandanmal Champalal and Co. 1994 (4) SCC 463; Collector of Central Excise v. L.M.L. Limited 2000 (3) SCC 579; Union of India v. Raj Industries and another 2000 (2) SCC 172; S.R.F. Ltd. v. Assistant Collector of Central Excise 2002 (1) SCC 480 and Shree Digvijay Cement Co. v. Union of India 2003 (2) SCC 614 ref.

(g) Sales Tax Act (VII of 1990)---

----S. 6---Customs Act (IV of 1969), S. 19---Sales Tax (Amendment) Ordinance (XXV of 2002), Preamble---Customs (Amendment) Ordinance (XXIV of 2002), Preamble---Vires of Sales Tax (Amendment) Ordinance, 2002 and Customs (Amendment) Ordinance, 2002---President of Pakistan had issued both the Ordinances competently in exercise of powers conferred upon him by the Constitution and the law, prevailing at that time---Both the Ordinances had been saved and declared to be valid and legal to all intents and purposes, under Art.270-AA of the Constitution, thus their vires could not be questioned---Both the Ordinances were declaratory in nature and had been promulgated to remove certain doubts which had been created by an authorization letter issued by the Federal Ministry of Food, Agriculture and Livestock on the basis of which Supreme Court had decided the matter whereby exemption of Sales Tax and Customs Duty was granted to the petitioner contrary to S.6, Sales Tax Act, 1990 & S.19 of the Customs Act, 1969---Such Ordinances which were declaratory in nature ordinarily operate retrospectively---Principles.

The President of Pakistan issued both the Ordinances i.e. Customs (Amendment) Ordinance, 2002 and Sales Tax (Amendment) Ordinance, 2002 on 7th June 2002, competently in exercise of powers conferred upon him by the Constitution and the law, prevailing at that time. In addition to it after passing of Constitution 17th Amendment Act, 2003 by the Parliament vide Article 270-AA of the Constitution, both the Ordinances have been saved and declared to be valid and legal to all intents and purposes thus their vires cannot be questioned for this reason.

A perusal of both the Ordinances indicates that they are ,declaratory in nature and have been promulgated to remove certain doubts which have been created by the authorization letter dated 26th June, 1996 issued by the Government whereby exemption of Sales Tax and Customs Duty was granted to petitioner contrary to the provisions of section 6 of the Sales Tax Act, 1990 and section 19 of the Customs Act, 1969. Whenever there is any ambiguity or doubt, in respect of a law, promulgated either by law makers or by the authority in exercise, of delegated powers to make subordinate legislation, such declaratory legislation can be made. The Statutes of declaratory nature ordinarily operate retrospectively.

Besides, the language used in both the Ordinances manifests clear intention of the law giver that it would apply with retrospective effect and shall be deemed always to have been so inserted in respective statutes. Identical language was used in section 5 of the Finance Act, 1988 in pursuance whereof section 31-A was inserted in the Customs Act, 1969 with retrospective effect.

When a legislature intends to validate a tax declared by a Court to be illegally collected under an invalid law, the cause for ineffectiveness or invalidity must be removed before the validation can be said to have taken place effectively. It will not be sufficient merely to pronounce in the statute by means of a non obstante clause that the decision of the Court shall not bind the authorities, because that will amount. to reversing a judicial decision rendered in exercise of the judicial power which is not within the domain of the legislature. It is therefore necessary that the conditions on which the decision of the Court intended to be avoided is based, must be altered so fundamentally, that the decision would not any longer be applicable to the altered circumstances. One of the accepted modes of achieving this object by the legislature is to re-enact retrospectively a valid and legal taxing provision, and adopting the fiction to make the tax already collected to stand under the re-enacted law. The legislature can even give its own meaning and interpretation of the law under which the tax was collected and by "legislative fait" make the new meaning binding upon Courts. It is in one of these ways that the legislature can neutralize the effect of the earlier decision of the Court. The legislature has, within the bounds of the Constitutional limitations, the power to make such a law and give it retrospective effect so as to bind even past transactions. In ultimate analysis, therefore, the primary test of validating piece of legislation is whether the new provision removes the defect which the Court had found in the existing law and whether adequate provisions in the validating law for a valid imposition of tax were made.

Vested rights cannot be taken away save by express words or necessary intendment. It also cannot be disputed that the legislature, which is competent to make a law, has full plenary powers within its sphere of operation to legislate retrospectively or retroactively. Therefore, vested rights can be taken away by such a legislation and it cannot be struck down on that grounds. A statute cannot be read in such a way as to change accrued rights, the title to which consists in transactions past and closed or any facts or events that have already occurred.

In other words liabilities that are fixed or rights that have been obtained by the operation of law upon facts or events for or perhaps it should be said against which the existing law provided are not to be disturbed by a general law governing future rights and liabilities unless the law so intends.

When a statute contemplates that a state of affairs should be deemed to have existed, it clearly proceeds on the assumption that in fact it did not exist at the relevant time but by a legal fiction it has to be assumed as if it did exist.

When a statute enacts that something shall be deemed to have been done which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to.

In the Ordinances under discussion the Legislature has shown its intendment in clear terms that they would be applicable with retrospective effect.

Unless the basis for judgment in favour of a party is not removed, it could not affect the rights of a party in whose favour the same was passed, but in the present case, the Legislature had promulgated two Ordinances in order to remove the basis on which the judgment of the Supreme Court was founded, therefore, this judgment has no bearing on the present case.

Date of opening of LCs would not be crucial under section 30 of the Customs Act to assess Tax as such examining from this angle as well, it can safely be concluded that, merely for the reason of opening LCs up to the date of the letter from the Federal Ministry the case of petitioner would not fall within the category of past and closed transaction.

Both the Ordinances contain non obstante clauses, raising presumptions that the provisions of the Ordinance shall prevail over any other law for the time being in force and including but not limited to the Protection of Economic Reforms Act, 1992 (XII of 1992) and notwithstanding any decision or judgment of any forum, authority or Court, no person shall, in the absence of a notification by the Federal Government published in the official Gazette expressly granting and affirming exemption from customs duty, be entitled to or have any right to any such exemption from or refund of Customs duty on the basis of:--

(i) The doctrine of Promissory Estoppel; or

(ii) On account of any correspondence; or

(iii) Admission; or

(iv) Promise; or.

(v) Commitment; or

(vi) Concessionary order made or understanding given whether in writing or otherwise; or

(vii) By any Government department or authority.

Contents of the Ordinance No.XXV of 2002 are identical to that Ordinance of XXIV 2002 except incorporation of the provisions of section 31-A(I) of the Customs Act, 1969 with retrospective effect in the Sales Tax Act, 1990.

Authorization letter by the Ministry was not issued by the relevant executive authorities of the Federal Government in accordance with the provisions of Article 90 of the Constitution of Islamic Republic of Pakistan read with Rule 12 of the Rules of Business 1973, coupled with the reasons that authorization letter was not gazetted in order to make it public therefore, it could not have furnished basis for granting relief to the petitioner. If the basis of the judgment i.e. authorization letter has been successfully removed, how can the petitioner be entitled to the relief on the basis thereof. So far as Protection of Economic Reforms Act, 1992 is concerned, it would not provide any relief to petitioner in the face of non obstante clause therein.

Abdul Hamid and another v. The State PLD 1963 Kar. 363; Interpretation of Statutes 7th Edition (page 857); Mehreen Zaibun Nisa v. Land Commissioner, Multan PLD 1975 SC 397; Al-Samrez's case 1986 SCMR 1917; Hotel Industries Ltd. v. Province of West Pakistan PLD 19787 Lah. 53; Barkat Ali v. Administrator Thal Development Bhakkar PLD 1978 Lah. 867; Muhammad Hussain v. Muhammad 2000 SCMR 367; Income Tax Officer, Central Circle-II, Karachi v. Cement Agencies PLD 1969 SC 322; N.D.F.C. v. Anwar Zaib White Cement Ltd. 1999 MLD 1888; Province of East Pakistan v. Hasan Askary PLD 1971 SC 82 and Moossa and Co. v. Collector of Customs Karachi PLD 1977 Kar. 710 ref.

(h) Interpretation of statutes---

---- Statute of declaratory nature ordinarily operate retrospectively.

(i) Interpretation of statutes---

---- When a statute enacts that something shall be deemed to have been done which in fact and in truth was not one, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to.

(j) Judgment---

----Unless the basis for the judgment in favour of a party is not removed, it could not affect the rights of a party in whose favour the same was passed, but when the Legislature had promulgated Ordinance in order to remove the basis on which the judgment was founded, said judgment would have no bearing on the case.

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

---S. 30---Date of opening of letter of credit would not be crucial under S.30, Customs Act, 1969 to assess Tax.

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

----Art. 185---Civil Procedure Code (V of 1908), O.II, R.2 & S.11--­During the earlier hearing of the matter at different stages, neither there was any occasion to attend to an aspect of the case nor the respondent--­Authority could have been allowed to agree to the point being irrelevant at that stage---While attending the question of res judicata, respondent­--Authority, was not precluded under O.II, R.2, C.P.C., to raise the said point.

Khalid Anwar, Senior Advocate Supreme Court and M.A. Zaidi Advocate-on-Record for Petitioner.

Makhdoom Ali Khan, Attorney-General for Pakistan; Faisal Hussain Naqvi, Advocate; Suleman Afridi, Advocate; M. Ramzan Bhatti, Member Customs and Shahid Ahmed Member Sales Tax for Respondent No. 1.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Afzal Siddiqui, Advocate Supreme Court; Mian Gul Hasan Aurangzeb, Advocate and Arshad Ali Chaudhry, Advocate-on-Record for Respondents Nos.2 to 10.

Date of hearing: 11th to 14th January, 2005.

P L D 2005 Supreme Court 658

Present: Mian Shakirullah Jan, M. Javed Buttar and Saiyed Saeed Ashhad, JJ

Ch. MUNEER HUSSAIN---Appellant

Versus

Mst. WAZEERAN MAI alias Mst. WAZIR MAI- Respondent

Civil Appeal No.1461 of 1999, decided on 6th April, 2005.

(On appeal from the judgment dated 6-11-1997 of the Lahore High Court, Multan Bench, Multan passed in R.F.A. No.83 of 1990).

(a) Contract Act (IX of 1872)‑---

--S. 16---Specific Relief Act (I of 1877), Ss. 12 & 42— Qanun-e-Shahadat (10 of 1984), Art. 78---Suit for specific performance of agreement to sell and declaration---Beneficiaries of the documents executed by ignorant/illiterate/Parda-observing ladies, have to prove by overwhelming evidence, the execution of such documents by such ladies and they have to further prove that such transactions and such documents were explained to the executants who had independent advice at the relevant time---Semi-illiterate Parda-observing females are entitled to the protection of law governing such ladies---Court has to be very careful in recording findings as to the execution of any agreement by such ladies and it would not be sufficient to show that the document was read over to the Parda-observing lady but it must further be proved that she understood its nature and effect---Where the evidence had not established that the documents in question were executed by such a lady or that they were executed by her voluntarily out of her own free-will and that at the time of execution of the documents she had an independent advice of her close relatives and that the contents of the documents were read over to her and nature of the transaction was explained to her, onus was on the beneficiary of the document which he failed to discharge in the present case---Beneficiary of the document had not been able to point out any non-reading of evidence or illegality in the impugned judgment of the High Court wherein execution of documents by the lady was disbelieved---Lady was being continuously victimized and was out of possession of her landed property for the last 26 years and was suffering because the beneficiaries of the document thought that she being a helpless lady, he could grab her property---Supreme Court declined interference.

Moonshee Buzloor Ruheem v. Shumsoonnissa Begum and Jodonath Bose v. Shumsoonisa Begum (Moore's Indian Appeals 1863-65 Vol-II 551); Farid-un-Nisa v. Mukhtar.Ahmad and another (1925 Indian Appeals-342); Sudisht Lal v. Mussamut Sheobarat Kore PC Vol.VII Cal. 245); Tara Kumari v. Chandra Mauleshwar AIR 1931 PC 303; Sm. Karunamoyee Debi v. Sm. Maya Moyi Novi Debi and others AIR 1948 Cal. 84; Crown v. Bahadar Khan PLD 1954 Pesh. 39; Mst. Hawa v. Muhammad Yousaf and others PLD 1969 Kar. 324; Suratan Nessa Bibi v. Muhammad Naeemuddin Mondal and others PLD 1965 Dacca 531; Sree Sree Gopal Jeo Bigraha and others; v. Mst. Mahmuda Begum and others PLD 1968 Dacca 265; Ayana Dasi v. Arena Bala Dasi and others PLD 1961 Dacca 140; National Bank of Pakistan v. Hijra Bai and others PLD 1985 Kar. 431; Wali Muhammad v. Muhammad Ibrahim and others PLD 1989 Lah. 440; Syed Mansoor Ahmad v. Mst. Maqbool Begum & others 1990 SCMR 1259; Janat Bibi v. Sikandar Ali PLD 1990 SC 642; Mst. Hafiza Bibi v. Ali Hussain and others 1994 SCMR 1194; Amirzada Khan and another v. Itbar Khan and others 2001 SCMR 609; Ghulam Muhammad v. Farooq Ahmed and others 2002 SCMR 1801; Khawas Khan through Legal heirs v. Sabir Hussain Shah and others 2004 SCMR 1259 and Muhammad Tufail and 4 others v.Akbar Ali and 4 others 2004 SCMR 1370 ref.

(b) Qanun-e-Shahadat (10 of 1984)--‑

----Art. 78---If a document is alleged to be signed or to have been written by any person, the signature or writing must be proved in that person's handwriting---Article 78, Qanun-e-Shahadat, 1984 places emphasis on the proof of identity of author of questioned documents and said Article does not say that mere proof of handwriting/signatures/thumb-impressions of executant will prove truth of the said document.

Madhu Lal v. Asian Assurance Company AIR 1954 Bom. 305; Bank of Poona v. N.C. Housing Society Ltd. Poona and others AIR 1968 Born. 106; Hamid Qayyum and others v. Muhammad Azeem and another PLD 1995 SC 381 and Sanaullah and another v. Muhammad Manzoor and another PLD 1996 SC 256 ref.

Zafar Iqbal Khan, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Appellant.

Zafar Iqbal Ch., Advocate Supreme Court for Respondent.

Date of hearing: 6th April, 2005.

P L D 2005 Supreme Court 670

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Mian Shakirullah Jan, JJ

Civil Appeal No.1184 of 1999

PROVINCE OF N.-W.F.P. through Secretary, Local Government and Rural Development, Peshawar---Appellant

Versus

PAKISTAN TELECOMMUNICATION CORPORATION through Chairman and others---Respondents

(On appeal from judgment of Peshawar High Court, Peshawar dated 22-10-1998 passed in Writ Petition No.657 of 1994).

Civil Appeal No.1493 of 2004

PAKISTAN TELECOMMUNICATION COMPANY LIMITED---Appellant

Versus

PROVINCE OF N.-W.F.P. through Secretary, Excise and Taxation, Peshawar and others---Respondents

(On appeal from judgment of Peshawar High Court, Peshawar dated 26-2-2003 passed in Writ Pakistan No.609 of 2002).

Civil Appeals Nos.1184 of 1999 and 1493 of 2004, decided on 30th of May, 2005.

(a) Pakistan Telecommunication Corporation Ordinance (XVI of 1990)-----

----Preamble---History of Pakistan Telecommunication Corporation after its establishment under the Pakistan Telecommunication Corporation Ordinance, 1990 traced.

(b) North-West Frontier Province Local Councils (Octroi) Rules, 1984---

----R. 136---Pakistan Telecommunication Act (XVIII of 1991), S.6(2-A)---Pakistan Telecommunication Corporation Ordinance ()VI of 1990), Preamble---Pakistan Telecommunication (Re-organisation) Act (XVII of 1996), Preamble---N.-W.F.P. Rules of Business (1984), R.136---Rules of Business (Federal), 1973, Entry, Serial No.2--S.R.O. 119(I)/2000 dated 13-3-2000, Entry No.17-A---Constitution of Pakistan (1973), Art. 165---Imposition of octroi tax on the goods and articles of Pakistan Telecommunication Corporation brought into the limits of Municipal Corporation---Levy of octroi tax was challenged on the premise that Corporation being successor of Telephone and Telegraph Department of the Federal Government was exempt from payment of octroi tax under Art. 165 of the Constitution and R.136, N.-W.F.P. Local Councils (Octroi) Rules, 1984 and that any power, privilege or concession granted to Pakistan Telegraph and Telephone Department would be fully available to the Telecommunication Corporation by virtue of S.6(2-A), Pakistan Telecommunication Act, 1991---Government and Municipal Corporation contended that since the Telecommunication Corporation was engaged in commercial activities, it was not entitled to any exemption from payment of octroi tax and that S.6(2-A) of the Pakistan Telecommunication Act, 1991 pertained to privileges and not to exemptions---Validity---Held, nature and composition of the Telecommunication Corporation, though styled as such by virtue of various duties and functions performed by it under different provisions of Pakistan Telecommunication Act, 1991, Pakistan Telecommunication Corporation essentially and primarily performed functions of Telegraph and Telephone Department of the Federal Government and would, thus, be entitled to exemption from payment of octroi tax, which was available to Telegraph and Telephone Department before coming into existence of Telecommunication Corporation---Principles.

Writ Petition No.657 of 1994 (Peshawar); Karachi Development Authority v. Central Board of Revenue NLR 2000 AC 53; Union Council Ali Wahan v, Associated Cement (Pvt.,) Ltd 1993 SCMR 468; Central Board of Revenue v. S.I.T.E PLD 1985 SC 97; National Fertilizer Marketing Ltd. v. Secretary, Local Government 1992 MLD 1203; Andhra Pradesh State Road Transport Corporation v. Income Tax Officer AIR 1964 SC 1486; Zila Council v. Daewoo Corporation 2001 SCMR 1012 and WAPDA v. Government of Sindh PLD 1998 Kar. 209 ref.

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

--S. 4---Pakistan Telecommunication Act (XVIII of 1991), Ss.12, & 6(2-A)--Pakistan Telecommunication (Re-organization) Act (XVII of 1996), S. 35---Constitution of Pakistan (1973), Arts. 165 & 165-A---Levy of property tax by Provincial Government on the urban property of Pakistan Telecommunication Corporation---Contention of the Corporation was that Corporation being a statutory body created, controlled and owned by Federal Government was exempt from payment of property tax by virtue of Art. 165 Of the Constitution and S.4, N.-W.F.P. Immovable Property Tax Act, 1958; that all assets and liabilities of erstwhile Telegraph and Telephone Department were transferred and vested in the Telecommunication Corporation; that the properties, rights and liabilities of the Corporation were vested in Pakistan Telecommunication Corporation Limited, therefore it being successor of the Corporation was entitled to same exemptions and protection of law and that according to S.6(2-A), Pakistan Telecommunication Act, 1991, any power, privilege or concession granted to the Telegraph and Telephone Department being available to the Corporation, same shall, mutatis mutandis, be applicable to the Pakistan Telecommunication Corporation Limited, hence the Corporation was entitled to exemptions available to the 'Telegraph and Telephone Department and later on to the Corporation---Government of N.-W.F.P. refuted the claim of the Corporation on the ground that Corporation after being registered as a company limited under the Companies Ordinance, 1984 neither its properties were exempt from payment of property tax nor was the protection of Art. 165 of the Constitution available to it---Validity---Held, assets and liabilities of the Company now permanently vest in the Company and not in the Federal Government-Neither the provisions of Art. 165 of the Constitution nor the provisions of S.4(a) N.-W.F.P. Urban Immovable Property Tax Act, 1958 advance the cause of the Company---Limited Company with private participation could hardly be construed to be a Government Department and even after unveiling the veil of incorporation, it remained a juristic person absolutely different from a natural person or a Government Department---Law heavily leans in favour of liability for payment of tax rather than exemption from payment of tax and on the basis of the available record and data, after incorporation of the Corporation as a public limited company it was no longer immune and exempt from the payment of property tax---Pakistan Telecommunication Corporation Limited was not the successor of the former Pakistan Telecommunication Corporation and in all material particulars, its properties and income could not be construed to be the property and income of Federal Government by any stretch of argument---Principles.

?

Writ Petition No.657 of 1994 (Peshawar); Karachi Development Authority v. Central Board of Revenue NLR 2000 AC 53; Union Council Ali Wahan v. Associated Cement (Pvt.) Ltd 1993 SCMR 468; Central Board of Revenue v. S.I.T.E PLD 1985 SC 97; National Fertilizer Marketing Ltd. v. Secretary, Local Government 1992 MLD 1203; Andhra Pradesh State Road Transport Corporation v. Income Tax Officer AIR 1964 SC 1486; Zila Council v. Daewoo Corporation 2001 SCMR 1012 and WAPDA v. Government of Sindh PLD 1998 Kar. 209 ref.

Barrister Jahanzeb Rahim, Advocate-General, N.-W.F.P. for Appellant (in Civil Appeal No.1184 of 1999).

Hamid Khan, Senior Advocate Supreme Court, Hafiz S.A. Rehman, Senior Advocate Supreme Court, Salman Aslam Butt, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.1 (in Civil Appeal No.1184 of 1999).

Hamid Khan, Senior Advocate Supreme Court, Hafiz S.A. Rehman, Senior Advocate Supreme Court, Salman Aslam Butt, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant (in Civil Appeal No.1493 of 2004).

Barrister Jahanzeb Rahim, Advocate-General, N.-W.F.P. for Respondents (in Civil Appeal No.1493 of 2004).

Date of hearing: 6th December, 2004.

P L D 2005 Supreme Court 686

Present: Javed Iqbal, Mian Shakirullah, Jan and Tassaduq Hussain Jillani, JJ

THE STATE through Collector Customs and Excise, Quetta---Appellant

Versus

AZAM MALIK and others---Respondents

Civil Appeals Nos.440 and 441 of 2002, decided on 26th April, 2005.

(On appeal from the judgment dated 6-12-2000 passed by High Court of Balochistan Quetta in Constitutional Petitions Nos. 256 and 257 of 1998).

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

----Ss. 185-F & 185-G---Criminal Procedure Code (V of 1898), S.265-K---Central Law Officers Ordinance (VII of 1970), S.4-A---Rules of Business (1973), R.14---Constitution of Pakistan (1973), Art. 199---Appeal against acquittal---Questions, in the present case, arose as to whether the expression "Any person" was confined to a private individual who stood convicted or penalized or it included any person i.e. private individual, corporate person or a person in authority who was aggrieved of an order passed under the Customs Act, 1969; that whether appeal filed by the Collector of Customs through an Advocate was competently filed in terms of S.158-F Customs Act, 1969 or the same was hit by 5.185-G(2) of the Customs Act, 1969, and whether the prosecution had not furnished sufficient material/evidence to warrant prosecution or "no probability of the accused being convicted of any offence" in terms of 5:265-K, Cr.P.C. to warrant passage of fife orders of acquittal of the accused---Held, Legislature did not intend to restrict representation by law officers alone to the exclusion of other Advocates, if the competent Authority in the Federal Government so decided---Serious allegations of tampering/overwriting/cutting of the relevant register of bills of entry were levelled, the matter was inquired into at the departmental level and the allegations were found to be correct---Ex facie, there was documentary, oral and circumstantial evidence to prove the charges---In the face of such material the Trial Court could not have invoked S.265-K, Cr.P.C. and acquit the accused---Special Appellate Court (Customs) having gone through the material and the evidence recorded during trial, was of the prima facie view that it was not a case of acquittal and remanded the case to Trial Court for trial---High Court, under Art. 199 of the Constitution, in circumstances, could not interfere in the matter---High Court having not correctly appreciated the import of Ss. 185-F & 185-G of the Customs Act, 1969, its impugned judgment was not in accord with the mandate of law and warranted interference by the Supreme Court---Case registered against the accused persons was directed to be treated as pending to be decided by Sessions Judge/Special Judge Customs and Trial Court shall ensure that the trial was concluded within two months of the receipt of Supreme Court judgment---Principles.

"Any person" has been qualified by two expressions namely "including the Federal Government" and "aggrieved by an order". Although "Any person" has not been defined in the Customs Act yet it does not mean that this expression is wide enough to- include every person in this wide world. It is necessarily circumscribed by the context in which it appears in the appeal or revision as the case may be. The word "aggrieved" qualifies the former expression and in the context of a penal statute "Any person" aggrieved would mean a person who is convicted in a case of tax evasion or a related criminal transaction or a person or authority who, in the discharge of his functions under the law, is interested in recovering the tax or prosecuting a tax evader or a person who is aggrieved of adverse remarks in the order passed by the Trial Court which is sought to' be challenged in appeal or revision. The use of the word "including" does not have the import of restricting or limiting the scope of the right. It has been used in the sense of "moreover" or "as well". It does not necessarily place a meaning limited to the "inclusions". Thus "including" the Federal Government would mean that besides "Any 'person" the Federal Government, if aggrieved in the context in question, may also appeal.

?

Unlike the Criminal Procedure Code, the Customs Act does not provide a separate provision for filing an appeal against conviction (as provided in terms of section 410 of the Criminal Procedure Code) and for an appeal against acquittal (as stipulated in terms of section 417 of the Code of Criminal Procedure). Under the Customs Act there is only one section catering for appeals both against conviction and acquittal. Hence the word "aggrieved" refers to a person either way i.e. aggrieved of conviction or acquittal.

The right of appeal under section 417 of the Code of Criminal Procedure was initially limited i.e. only the Provincial Government could direct the Public Prosecutor to file an appeal against acquittal before the High Court. The ambit of this section was enlarged by Act XIX of 1994 whereby section 2-A was inserted, which stipulates "a person aggrieved by the order of acquittal passed by any Court other than a High Court, may within 30 days file an appeal against such order. The concerned agencies of the Government would come within ambit of the "person aggrieved".

?

The Collector was an "aggrieved person" as the F.I.R. was registered by the Assistant Collector concerned and he could file appeal against acquittal.

?

The right of appeal has not been given to the Federal Government only and therefore a Law Officer appointed under the Central Law Officers Ordinance, 1970 alone could not file the appeal. The expression "including the Federal Government" has been used to enlarge the scope and the Federal Government too has been given the right of appeal and it does not restrict the said right in any manner to the Federal Government alone.

?

A careful examination of subsection (2) of section 185-G of the Customs Act read with section 4-A of Central Law Officers Ordinance, 1970 would show that the law-makers did not intend to restrict representation by Law Officers alone to the exclusion of other Advocates if the competent authority in the Federal Government so decided. If such a restricted meaning is accorded to this provision it would tie down the hands of the Federal Government and in a complicated or important case requiring legal expertise and outstanding professional acumen it may not be able to engage an Advocate of that standing. This could not have been the legislative intent.

?

A careful examination of the provisions of 185-G, Customs Act, 1969 and S.4-A, Central Law Officers Ordinance, 1970 would show that these are enabling provisions which authorize the Law Officer appointed under the law to conduct proceedings before Special Appellate Court Customs on behalf of the Federal Government without tendering a power of attorney on behalf of the Government, as would be required from a practising Advocate.

It, however, appears that the wording of section 185-G Customs Act, 1969 did create some confusion and in some cases such a restricted view was taken.

?

It was perhaps to remove this confusion and doubt that subsection (2) of section 185-G was amended by Ordinance XXVII of 2002.

?

The argument that since there is nothing on record to indicate that the Law, Justice and Human Rights Division in the Federal Government was consulted before filing the appeal, therefore, the same was incompetent, is not tenable because the Rules of Business 1973 though framed under Articles 90 and 99 of the Constitution of Islamic Republic of Pakistan, are required to be followed by the Departments in the transaction of their official business but those are meant primarily to regulate the internal working of the departments. Rule 14 of the said Rules is meant to ensure that all issues requiring interpretation of law or any legal issue arising out of any case should be referred to the Law Department for consultation so that the matter is properly attended to and proper legal advice is given. These Rules, however, are essentially regulatory provisions and non-compliance of them may reflect on the concerned officer under the Service Rules and in absence of bona fides may make him liable to disciplinary action. But so far as the filing of a case in a Court is concerned it is not visited with any penal consequence either under the Rules of Business or Statute concerned. It may also be relevant to note that neither the Collector nor even the Law Department has disowned the filing of appeal before the Special Appellate Court Customs Balochistan in the instant case.

?

There were serious allegations that there was tampering/over?writing/cutting of the relevant register of bills of entry, the matter was inquired into at the departmental level and the allegations were found to be correct. Ex facie there was documentary, oral and circumstantial evidence to prove the charges. In the face of this material the Trial Court could not have invoked section 265-K, Cr.P.C. and acquitted the accused.

?

The accused persons, who were acquitted by the Trial Court under section 265-K, Cr.P.C., were facing serious charges of tampering with record with a view to evade millions of rupees of public revenue, the trial was in progress and the statement of some of the witnesses had been recorded. The Special Appellate Court Customs having gone through the material and the evidence recorded during trial was of the prima facie view that it was not a case of acquittal under the afore-referred provision and while setting aside the order of acquittal remanded the case to the Trial Court for trial. Could in such circumstances the High Court, in exercise of its writ jurisdiction, interfere with the order of remand and thus impede the process of justice? The answer is in the negative. The High Court while passing the impugned judgment ignored the salutary and well-established principle of the exercise .of writ jurisdiction i.e. that even if the order impugned is without jurisdiction it may not be exercised in aid of injustice or to perpetuate an ill-gotten gain.

?

High Court had not correctly appreciated the import of section 185-F and G of the Customs Act. The impugned judgment, therefore, was not in accord with the mandate of law and warranted interference. The case registered against the accused persons shall be treated as pending to be decided by Sessions Judge/Special Judge Customs. The Trial Court shall ensure that the trial is concluded within two months of the receipt of Supreme Court judgment.

?

Kadir Bakhsh and others v. The Crown PLD 1955 FC 79; The State v. Muhammad Hussain PLD 1968 SC 265; The State v. Muhammad Nasim Baig 1989 PCr.LJ 1842; State through Advocate-General, Sindh v. Hanif Ahmed and others 1994 SCMR 749; Haji Abdullah Jan and others v. The State 2003 SCMR 1063; Rex v. Keepers of the Peace and Justices in the `County of London 1945 Law Reports King's Bench Division, p.528; The State through Deputy Director (FIA) of Pakistan at Quetta v. Zahid Nadeem and 4 others 1996 MLD 506; The State v. M. Ashraf 1986 PCr.LJ 137; The State through Public Prosecutor v. Shoukat Ali 1998 PCr.LJ 1503 and The Chief Settlemetn Commissioner, Lahore V. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 ref.

The State v. Muhammad Hussain PLD 1968 SC 265; Kadir Bakhsh and others v. The Crown PLD 1955 FC 79 and The State through Advocate-General, Sindh v. Hanif Ahmed and others 1994 SCMR 749 distinguished.

Raja Muhammad Irshad, D.A.G. and Raja Abdul Ghafoor, Advocate-on-Record for Appellant (in both Appeals).

Abdul Hafeez Pirzada, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents (in C.A. No.440 of 2002).

Fakhruddin G. Ebrahim, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents (in C.A.No.441 of 2002).

Date of hearing: 26th April, 2005.

P L D 2005 Supreme Court 705

Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Tassaduq Hussain Jillani, JJ

MUHAMMAD YOUSUF SIDDIQUI---Petitioner

Versus

Haji SHARIF KHAN through L.Rs. and others---Respondents

Civil Petition No.274-K of 2002, decided on 12th May, 2005.

(On appeal from the judgment/order, dated 31-3-2000 passed by High Court of Sindh at Karachi in High Court Appeal No.195 of 1999).

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

----S. 12(2)---Contract Act (IX of 1872), Ss. 188 & 214---General Power-of-attorney---Fraud and misrepresentation---Recitals of deed of power of attorney showed that the primary object of the Principal was improvement of property---Raising of flats on the said property and to take all incidental and other necessary steps in order to sell, alienate the flats and to appoint attorney if the situation so required---General power­of-Attorney nowhere granted to the attorney authority to dispose of the entire property by way of compromise in the pending suit in which petitioner along with two other defendants had filed a contesting joint written statement---In absence of any specific stipulation the General Attorney could not assume that power to effect compromise and make a conceding statement in favour of respondent, when he had his own proprietary interest as a partner and Managing Director of respondent company---Attorney's own interest required that he should have sought special permission from the Principal to effect such compromise---Act of attorney, to effect compromise in Court, in absence of any specific stipulation in the General Power-of-Attorney, was misrepresentation and it had elements of fraud---Principal having not delegated the authority to effect a compromise in a suit, the agent/attorney, could not have engaged a counsel/attorney for a purpose for which he had not been vested the authority---Agent cannot sub-delegate a power which was not delegated to him by the Principal---Where the concurrent judgments reflected misreading of evidence and non-application of law and that the judgment and decree had been procured through misrepresentation same was squarely hit by mischief clause of S.12(2), C.P.C.---Supreme Court. converted the petition into appeal and allowed the same by setting aside the impugned judgment.

Fida Muhammad v. Pir Muhammad Khan and others PLD 1985 SC 341 and Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811 ref.

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

---Ss. 188 & 214---General Power-of-Attorney in connection with property---Validity of acts under Power-of-Attorney---Scope.

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

The second aspect which needs caution on question of validity of acts under a Power-of-Attorney is that notwithstanding an authority to alienate principal's property, the Attorney is not absolved from his two essential obligations, amongst others:

Firstly, in cases of difficulty (and it will be a case of difficulty if the Power-of-Attorney is susceptible to doubt about its interpretation) to use all reasonable diligence in communicating with the principal and seeking to obtain his instructions, and Secondly, if the agent deals on his own account with the property under agency, e.g., if he purchases it himself or for his own benefit, he, in his own interest, should obtain the consent of the principal in that behalf after acquainting him with all material circumstances on the subject, failing which the principal is at liberty to repudiate the transaction.

Fida Muhammad v. Pir Muhammad Khan and others PLD 1985 SC 341 and Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 181 1 ref.

Fazal-e-Ghani, Senior Advocate Supreme Court for Petitioner.

Muhammad Ali Saeed, Advocate Supreme Court for Respondents.

Date of hearing: 12th May, 2005.

P L D 2005 Supreme Court 719

Present: Nazim Hussain Siddiqui, C.J., Iftikhar Muhammad Chaudhry, Javed Iqbal, Abdul Hameed Dogar and Faqir Muhammad Khokhar, JJ

PAKISTAN LAWYERS FORUM and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitution Petitions Nos.13, 14, 39 and 40 of 2004 and 2 of 2005 and C.P.L.A. No.927-L of 2003, decided on 13th April, 2005.

(On appeal against the judgment, dated 10-4-2003 of the Lahore High Court, Lahore passed in I.C.A. No.844 of 2002).

Legal Framework Order [C.E.O's 24 of 2002]---

----Preamble---Constitution (Seventeenth Amendment) Act (III of 2003), Preamble---President to Hold another Office Act (VII of 2004), Preamble---Constitution of Pakistan (1973), .Arts.260 & 184(3)---Constitutional petition before Supreme Court under Art.184(3) of the Constitution---Contentions of the petitioners were that President of Pakistan was liable to be proceeded against by the Supreme Court pursuant to Art. 6 of the Constitution for having violated the judgment of the Supreme Court in Syed Zafar Ali Shah's case; that promulgation of the Referendum Order, 2002 was illegal and contrary to the Constitutional provisions and so was the said Order without justification; that General Parvez Musharraf failed to hand over power to the civilians; that Constitution (Seventeenth Amendment) Act, 2003 was liable to be struck down on the grounds that it had been enacted by a Parliament which was not properly constituted and the same was violative of the basic structure of the Constitution; that Clauses (7) and (8) of Article 41 of the Constitution were in irreconcilable conflict with Art. 43, which was a higher provision and these must, therefore, yield to it in accordance with the doctrine of harmonious construction; that President to hold another Office Act, 2004 was ultra vires the Constitution and was liable to be struck down on the ground that the same was violative of the Constitution, there was no item in the Federal Legislative List, which could serve as the jurisdictional basis for its enactment, as such, it was beyond the scope of Fourth Schedule of the Constitution and assent to it was given by an "Acting President" who lacked the Constitutional authority to do so; that the Chief of Army Staff could not be the President of Pakistan for the reason that the post of Chief of Army Staff was not excluded from the definition of "Service of Pakistan" under Art. 260 of the Constitution, as such the President was disqualified from being elected as a member of the Parliament and also to be the President of Pakistan; and that as a member of the Armed Forces he had made Oath under Art, 244 of the Constitution in the form set out in the Third Schedule not to engage in political activities whatsoever---Validity---Held, petitioners in fact, wanted reappraisal of all the events, which took place on 12th October, 1999 and thereafter---Points which had already been agitated and decided conclusively could not be reopened---Supreme Court, after survey of entire case-law on the points raised, recorded its conclusions on each contention of the petitioners and dismissed the Constitutional petitions.

The submissions of the petitioners can be summarized as follows. ---

(i) The President of Pakistan is liable to be proceeded against by Supreme Court pursuant to Article 6 of the Constitution for having violated the judgment of this Court delivered in Syed Zafar Ali Shah's case;

(ii) The promulgation of the Referendum Order, 2002 was illegal and contrary to the Constitutional provisions and so was the LFO without justification;

(iii) General Pervez Musharraf failed to hand over power to the civilians;

(iv) The 17th Amendment is liable to be struck down on the grounds, namely;

(a) That it has been enacted by a Parliament which was not properly constituted; and

(b) That it is violative of the basic structure of the Constitution.

(v) Clauses (7) and (8) of Article 41 of the Constitution are in irreconcilable conflict with Article 43, which is a higher provision and these must, therefore, yield to it in accordance with the doctrine of harmonious construction;

(vi) Another Office Act, 2004 is ultra vires the Constitution and is liable to be struck down on the ground that it is violative of the Constitution. There is no item in the Federal Legislative List, which could serve as the jurisdictional basis for its enactment. As such, it is beyond the scope of the Fourth Schedule to the Constitution. Assent to it was given by an "Acting President" who lacked the Constitutional authority to do so;

(vii) The Chief of Army Staff (COAS) cannot be the President of Pakistan for the reason that the post of COAS is not excluded from the definition of "Service of Pakistan" under Article 260 of the Constitution. As such, the President is disqualified from being elected as a member of Parliament and also to be the President of Pakistan;

(viii) As a member of the Armed Forces he had made oath under Article 244 of the Constitution in the form set out in the Third Schedule not to engage in political activities whatsoever.

The petitioners in fact want reappraisal of all the events, which took place on 12 October, 1999 and thereafter. The points which have already been agitated and decided conclusively cannot be reopened. In Syed Zafar Ali Shah's case all such points have already been decided and subsequently they were affirmed in Wasim Sajjad's case in which the review petition filed against Syed Zafar Ali Shah's judgment was dismissed.

The Referendum Order could not be challenged on the basis that it was tantamount to an amendment of the Constitution. There was nothing undemocratic in referring an issue directly to the electorate, rather than to the representatives of the electorate, and referendums were regularly held in various western countries to decide matters of public interest. Under the circumstances, it is no longer open to the petitioners to question the vires or validity of the Referendum Order. Besides, the Referendum Order subsequently has been validated by Parliament through a specific reference in Article 270 AA, the Constitution which has been inserted in the Constitution through the 17th Amendment.

The issue as to whether or not amendments to the Constitution made through the LFO were within the competence of the then Chief Executive has now become academic with the passage of the 17th Amendment. Further, the amendments made to the Constitution through the. LFO have been left unchanged by the 17th Amendment. These have been specifically validated and are now to be examined, not with respect to the competence of the Chief Executive, but with respect to the constituent powers of Parliament.

The argument that General Parvez Musharraf acted in violation of Syed Zafar Ali Shah's case is misconceived for the reason that it ignores all the Constitutional developments in Pakistan over the past two years. For example, the argument ignores the fact that elections were held to the National and Provincial Assemblies as per the schedule given by this Court in Syed Zafar Ali Shah's case, that elections were subsequently held to the Senate, that an elected Prime Minister was sworn in along with a full cabinet of elected ministers and above all, that the Constitution was fully restored. Ignoring all these developments, the petitioners stick to their misconception that power has not been handed over to the Parliament. There is no evidence to support this argument but the petitioners want the Supreme Court to believe as such.

It was strenuously argued that no democracy can exist unless the Prime Minister has complete and undiluted control over the Armed Forces. The Simple answer to this proposition is that it can be done only by amending the Constitution and for that Parliament and not this Court is the appropriate forum. It is not the function of this Court to re-write the Constitution. Democracy is not a set of mathematical formula. The principles of democracy differ from country to country. On the strength of subjective consideration, Supreme Court is not legally competent to reverse the process/Constitution.

As to the issue of striking down the 17th Amendment on procedural grounds, an Amendment to the Constitution, unlike any other statute can be challenged only on one ground, viz., it has been enacted in a manner not stipulated by the Constitution itself. It is not disputed that Supreme Court has the jurisdiction, to strike down a Constitutional amendment on the ground that it has been promulgated in a manner other than that provided for by the Constitution itself.

Precisely stated, the argument is that Parliament has not been properly constituted, in that Parliament is defined by Article 50 of the Constitution to be comprised of the National Assembly, the Senate and the President. It is further argued that the Constitution itself has stipulated that only a person elected in accordance with the provisions of the Constitution and specifically in accordance with clauses (3) and (4) of Article 41 can be considered a valid President, and that since General Parvez Musharraf has not been so elected, he is not the President. At the time, the 17th Amendment was enacted, General Pervez Musharraf was the duly appointed President of Pakistan by virtue of Article 41(7)(b) of the Constitution of Pakistan. This provision contains a non obstante clause and it is to have effect notwithstanding anything contained in the Constitution. No procedural challenge to the 17th Amendment can therefore be sustained on the grounds that Parliament was not validly constituted at the time the said measure was enacted.

The validly and competence of elected Parliament cannot be challenged on the basis that the person conducting the election was not somehow qualified or authorized to hold that election.

In these cases, General Parvez Musharraf was clearly authorized to hold election, indeed he was under obligation to do so by virtue of the judgment of this Court in Syed Zafar Ali Shah's case. The issue before the Supreme Court does not relate to the competence of General Parvez Musharraf as the Chief Executive to make Constitutional amendments but to the competence of a duly elected Parliament to make Constitutional choices.

The 17th Amendment is not merely a pro forma rubber-stamping by. Parliament of the various Constitutional amendments made by General Parvez Musharraf through the LFO. Instead, it can be seen from a clause by clause comparison of the LFO and the 17th Amendment that Parliament has independently applied its mind to each and every provision of the LFO and has then reached an independent conclusion as to whether to validate any particular provision, to amend it or even to repeal it. The LFO was a package of 31 Constitutional amendments, which were made by the then Chief Executive of Pakistan. Many of them have been validated by the 17th Amendment. For instance, the amendment to Article 17 of the Constitution by the LFO has been validated. In other cases through the 17th Amendment new provisions have been added or the LFO inserted provisions amended. A proviso to clause (7) of Article 41 has been added whereby the President could continue to be the COAS after 31st December, 2004 if a law was enacted to that effect by Parliament. A new clause (8) was added whereby the President was required to take a vote of confidence from the Parliament and the four Provincial Assemblies. The LFO has increased the size of the National Assembly from 217 to 342 seats, which included 60 seats for women, and 10 for minorities. The size of the Senate was increased from 81 to 100. Likewise the size of all Provincial Assemblies was increased and seats were reserved for women and minorities. The voting age was reduced from 21 years to 18 years. Women and non-Muslims on reserved seats have been elected through a system of proportional representation. The 17th Amendment validates these changes. By amendment through Article 58(2)(b), the LFO gave the President the power to dissolve the National Assembly if the Government could not be carried on in accordance with the provisions of the Constitution and an appeal to the electorate became necessary. Governors were given similar powers in the Provinces. The 17th Amendment now makes it incumbent on the President or on the Governors, as the case may be, to refer the matter to the Supreme Court within 15 days after such dissolution and the Supreme Court is required to answer the reference within 30 days. The qualifications and disqualifications of the Members of Parliament and Provincial Assemblies were amended.

A new provision was inserted for the old Article 63-A, which provided for disqualification on grounds of defection. Under Articles 70 and 71, a Mediation Committee has been set up and under Article 73 the Senate is enabled to make recommendations in respect of Money Bills. On the return of a bill by the President under Article 75 the requirement that it be considered by a Joint Sitting of the Parliament has been omitted and bills are now to be reconsidered by the Parliament sitting in separate Houses. By an amendment in Article 101, the Governor of a Province is now to be appointed by the President in consultation with the Prime Minister and under Article 140-A Local Government has been entrenched in the Constitution. Article 152-A relating to the National Security Council inserted in the Constitution by the LFO was omitted by the Seventeenth Amendment. The clog on the power of the High Court not to pass an interim order for a period of more than six months was removed. The service of the Judges of the Federal Shariat Court was made pensionable. The Supreme Judicial Council was given suo motu powers. The composition of the Election Commission of Pakistan was changed. In Article 224 specific powers were conferred on the President to appoint a Care-taker Cabinet on the dissolution of the National Assembly and on the Governor to appoint such a Cabinet at the Provincial level with the approval of the President. Under Article 243 the appointments of the Chairman, Joint Chiefs of Staff Committee and the three Services Chiefs are now to be made by the President in consultation with the Prime Minister. By an amendment in Article 268 of the Constitution, entries 27 to 30 and 35 in the Sixth Schedule are to stand omitted after six years.

The 17th Amendment adds a new Article 270-AA providing validation to all orders, ordinances, proclamations and actions of the transitional period of extra-Constitutional deviation including the Referendum Order and the LFO. Entries 25 to 35 were added in the Sixth Schedule of the Constitution. This list of changes is not exhaustive. It is merely illustrative. It is specifically noted that the Constitution had earlier .been amended through the LFO to provide for a National Security Council by insertion of Article 152A. That Article has been omitted by the 17th Amendment. Likewise, the power of the President to dissolve the National Assembly as contained in Article 58(2)(b) has been qualified by making such decision compulsorily referable to the Supreme Court. Even Article 270AA as originally provided" in the LFO has been deleted in its entirety and replaced with an entirely different Article.

The present Constitutional structure rests on the foundation of the 17th Amendment. Without it, the civilian rule may not have been possible.

By striking down anyone or more of the provisions of the 17th Amendment, Supreme Court will only destroy the entire system prevailing now.

General Elections have now been held here and 18 year olds have voted. This enlarged electorate has cast its votes for an expanded Parliament and four Provincial Assemblies. The elected members have taken oath of their respective offices. The Speakers and Deputy Speakers of the National Assembly and Provincial Assemblies have been elected. The Chairman and Deputy Chairman Senate have been elected. The Prime Minister and the four Chief Ministers have been elected. Governors have been appointed in the four Provinces. The President has taken a Vote of Confidence as required by clause (8) of Article 41 of the Constitution. All these Constitutional functionaries have made oath under the Constitution and are occupying their respective offices. Appointments to civil services and armed forces have been made. Service Chiefs have been appointed. Judges and the Chief Justices of the superior Courts have been appointed and have taken oath under the Constitution.

The Government is functioning in accordance with the Constitution. If the petitions are accepted and the 17th Amendment struck down, this entire Constitutional edifice will collapse. The President, the Prime Minister, the Governors, the Chief Ministers, the Parliamentarians, the Members of the Provincial Assemblies, 3 Services Chiefs and Judges of superior judiciary appointed by the President, all will cease to hold office at once. The Government of the country will cease to function and total anarchy will prevail. The Government under the Constitution will be undone and a vacuum will be created. This is not the function of the judiciary. In short, accepting the petitions and striking down the 17th Amendment would invite chaos and create a Constitutional crisis. Supreme Court must allow the Government to function and the institutions to gain strength and mature with time. The alternative route leads straight to the political thicket. If the petitioners have a grievance, their remedy lies with the Parliament and failing that in the Court of the people and not with the Court.

It has been urged by the petitioners that the 17th Amendment in its entirety or at least specifically, Article 41(7)(b) and Article 41(8) should be struck down as violative of the basic structure of the Constitution. Supreme Court does not have the jurisdiction to strike down provisions of the Constitution on substantive grounds.

There is a significant difference between taking the position that Parliament may not amend salient features of the Constitution and the position that if Parliament does amend these salient features, it will then be the duty of the superior judiciary to strike down such amendments. The superior Courts of Pakistan have consistently acknowledged that while there may be a basic structure to the Constitution, and while there may also be limitations on the power of Parliament to make amendments to such basic structure, such limitations are to be exercised and, enforced not by the judiciary (as in the case of conflict between a statute and Article 8), but by the body politic, i.e., the people of Pakistan.

The theory of basic structure or salient features, insofar as Pakistan is concerned, has been used only as a doctrine to identify such features.

The conclusion which emerges from the survey is that prior to Syed Zafar Ali Shah's case, there was almost three decades of settled law to the effect that even though there were certain salient features of the Constitution, no Constitutional amendment could be struck down by the superior judiciary as being violative of those features. The remedy lay in the political and not the judicial process. The appeal in such cases was to be made to the people not the Courts. A Constitutional amendment posed a political question, which could be resolved only through the normal mechanisms of parliamentary democracy and free elections.

Pakistan has its own unique political history and its own unique judicial history. It has been the consistent position of the Supreme Court that the debate with respect to the substantive vires of an amendment to the Constitution is a political question to be determined by the appropriate political forum, not by the judiciary. That in the present petitions Supreme Court cannot abandon its well-settled jurisprudence.

The argument made by the petitioners is that the addition of the proviso to Article 41(7) was destructive of the parliamentary form of Government, in that, it allowed the President to retain control of the Armed Forces, which was the true test of power.

Clearly, Article 41(7) makes no change whatsoever to the balance of powers between the President and the Prime Minister, particularly in relation to the Armed Forces. Furthermore, whether General Pervez Musharraf can Constitutionally hold the office of the COAS while also being President of Pakistan is a very different question from whether the 17th Amendment has impermissibly altered the balance of powers between the President and the Prime Minister. It is not open to dispute that vide Item 50 of the Schedule to P.O. 14 of 1985, Article 243 of the Constitution was amended in 1985 through the addition of sub-Article (1A) which reads explicitly as follows:

"Without prejudice to the generality of the foregoing provision, the supreme command of the Armed Forces shall vest in the President."

No change has been made in Article 243(1A) by the 17th Amendment and the addition of sub-Article (1A) to Article 243 was approved by this Court in Achakzai's case. No challenge to Article 41(7) is therefore sustainable on this ground.

The alternative argument (which was only faintly argued by the petitioners) is that the mere fact that clauses (7) and (8) of Article 41 permit a serving General, and COAS, to function as the President of Pakistan is unacceptably violative of the parliamentary form of governance. The argument is not tenable, in that:

(i) Pakistan has very recently emerged from a period of Constitutional deviation and there is no practical option but to allow the transition to proceed smoothly.

(ii) Furthermore, clauses (7) and (8) of Article 41 have the concurrence of two-thirds of the elected representatives of a sovereign nation. Even to the extent that these are open to examination by Supreme Court, it would be appropriate for Supreme Court to defer to Parliament's assessment as to their acceptability.

(iii) The impugned provisions are not unprecedented. After the restoration of parliamentary democracy following the rule of General Zia ul Haq, sub-Article (7) was amended to provide that he would continue to be President by virtue of the mandate earlier obtained by him through a referendum. The vires of the said amendment were examined and upheld by the Supreme Court in Achakzai's case as well as in the case reported as Al Jehad Trust's case (PLD 1997 SC 34, 133) and hence no objection is maintainable with respect to Article 41(7), as currently drafted. In fact, in the present case, General Pervez Musharraf is the President not only by virtue of an earlier referendum but by virtue of a vote of confidence obtained from a freely elected Parliament and all the Provincial Assemblies of the four Provinces. The procedure followed was identical to that stated in the Second Schedule to the Constitution. The continuation in office of General Parvez Musharraf as President of Pakistan subject to a vote of confidence obtained from Parliament therefore represents the affirmation of parliamentary supremacy, not its negation. It also cannot be ignored that clause (8) of Article 41 which provided for such a vote was not a part of the LFO but has been inserted by the Seventeenth Amendment.

According to the petitioners, the mere fact that General Parvez Musharraf is today President by virtue of a vote of confidence under Art.41(8), and not by virtue of an election held under Article 41(4) is' enough to destroy Pakistan's "parliamentary form of governance." However, this argument is unsustainable on several grounds.

(i) In the first instance, it may be noted that the appointment of a President on the basis of a vote of confidence is not historically unprecedented. In fact, Article 282 of the Interim Constitution of 1972 specifically provided that Mr. Zulfiqar Ali Bhutto would be deemed to be the President if he succeeded in obtaining a vote of confidence from Parliament. This was in spite of the fact that the Interim Constitution specifically provided that the President will be elected by the National Assembly. No exception can therefore be taken to sub-Article (8) of Article 41 on the ground that it is violative of parliamentary form of governance.

(ii) It may further be noted that the vote of confidence obtained by the President pursuant to sub-Article (8) of Article 41 was obtained and tabulated in exactly the same manner, and subject to exactly the same rules, as those normally applicable to presidential elections under Article 41(4). The only difference between the mandate received by the President pursuant to the vote of confidence and the mandate that the President would have received, had there been an election under Article 41(4), is that no votes were cast for opposing candidates. According to the petitioners, the mere fact that there were no opposing candidates is enough, by itself, to invalidate the no confidence vote. However, it can scarcely be argued that the validity of an electoral mandate depends on the presence of competing candidates: after all, a person who runs unopposed for a particular office is still deemed to have been validly elected notwithstanding the absence of opponents.

The Constitution has now for a considerable period of time provided for a balance of powers between the President and the Prime Minister.

Therefore, it is no longer correct to think of the Constitution of Pakistan as providing for a purely parliamentary system according to the Westminster model. Instead, what can be seen is that over time, Pakistan has evolved its own political system so as to suit the political conditions found here. No objection can now be taken to the said system on the basis that it provides for a balance of powers (as opposed to concentrating all powers in the hands of the Prime Minister). As such, the vehement protests of the petitioners that the impugned provisions have destroyed the basic structure of the Constitution appear to be considerably overwrought and no weight can be placed on those arguments.

In the present case, while it has been argued that there is a conflict between the provisions of Article 43 and clauses (7) and (8) of Article 41, the conflict in question is not irreconcilable. The reason why the conflict is not irreconcilable is because both clauses (7) and (8) of Article 41 contain non obstante clauses which provide that the said clauses are to have effect notwithstanding anything contained in the Constitution. Clause (7) of Article 41 specifically overrides Article 43. In short, Parliament has made it very clear in enacting and validating clauses (7) and (8) of Article 41 that the said clauses take precedence of the other provisions of the Constitution including Article 43. There is, therefore, no conflict between the impugned amendments and Article 43.

In fact, the theory of harmonious construction requires that in the present case, full effect be given to clauses (7) and (8) of Article 41 because that is the clear intent of Parliament and in the event of conflict between, these clauses and any other provision of the Constitution including Article 43 these. clauses will prevail. In this context, it may be noted that in each of the cases in which the theory of harmonious construction was applied by the Supreme Court, none of the clauses contained a non obstante clause. The petitioners' argument is therefore unsustainable to the extent it seeks to rely on the theory of harmonious construction.

Another Office Act is not liable to be struck down as ultra vires of Article 43 of the Constitution. The simple reason for this is that, General Pervez Musharraf is the President of Pakistan under clauses (7) and (8) of Article 41, both of which provide that he shall hold that office notwithstanding anything in the Constitution to the contrary. Clause (8) obviously takes into account Article 43 as well while clause (7) specifically overrides Article 43. Article 43 is therefore simply not applicable to the President in office and hence there is no conflict between the provisions of the 17th Amendment and Article 43.

The provisions of Article 63(1)(d) have been made applicable to the continuation in office of the President after 31 December, 2004 by virtue of the proviso to clause (7) of Article 41, which was inserted by the 17th Amendment.

Any other clause or paragraph of Article 63 of course does not apply to the President since it is settled law that the President is only required to be qualified to be a member of Parliament (as provided by Article 62) and is consequently not hit by the disqualifications contained in Article 63 of the Constitution. The argument of the petitioners that the President is subject to all the disqualifications contained in Article 63 of the Constitution ignores the settled law on this point as discussed and upheld most recently in Qazi Hussain Ahmed's case.

The argument 'that the COAS could not have assumed the office of the President because of the definition of the "Service of Pakistan" in Article 260 and the disqualifications in respect of such persons contained in Article 63 is untenable as these have no application to the President.

The argument that on account of the oath made by him as a member of the Armed Forces under Article 244 read with the Third Schedule to the Constitution disqualified the COAS from being the President is misconceived. It overlooks the fact that clauses (7) and (8) of Article 41 carry non obstante clauses and these are to have effect notwithstanding anything contained in the Constitution. Clauses (7) and (8) of Article 41; therefore, override Article 244 and the oath in the Third Schedule like they override Articles 43 and 260 of the Constitution.

Since Article 63(1)(d) has now been made specifically applicable to the continuance in office by the President after 31st December, 2004 through the proviso, it is, therefore, clear that the President would be disqualified from continuing in office qua President if he was to hold an office of profit in the service of Pakistan, except "an office declared by law not to disqualify its holder". All that has happened in the instant case is that by virtue of Another Office Act, Parliament has declared that the office of the COAS is an office, which does not disqualify its holder. The President is, therefore, not barred by the proviso to clause (7) of Article 41 from continuing in office as both the Chief of Army Staff (COAS) and the President because the position of COAS has been declared by law not to disqualify its holder as expressly contemplated by Article 63(1)(d).

The. petitioners further argued, in this context, that the Continuation of the President as the COAS was violative of Article 41(7) since it was intended by Parliament that there would be a bar on the President continuing to hold both the offices of the President and the Chief of Army Staff after 31st December, 2004 and that there was an understanding amongst the various political parties and the President to that effect.

Supreme Court in the exercise of its Constitutional jurisdiction does not examine disputed questions of fact. Even if the said "understanding" or "agreement" was before the Court it would not be guided in its interpretation of the Constitution by such a document. It will perform its Constitutional duty. It will interpret the Constitution according to its plain meaning. If the words are clear and unambiguous it needs no external aids for interpretation.

As there is no ambiguity in the language of the proviso to clause (7) of Article 41, this Court must give effect to it irrespective of what may be the political understanding or agreement or what one of the participants may have written in his reminiscences or what a public or Constitutional functionary, including the President may have said in a public address.

The most important consideration for the Supreme Court in interpreting the Constitution is not the alleged factual background and circumstances in which a particular provision of the Constitution was adopted but the actual text of the provision. In this context, it can very easily be seen that had it been the intent of Parliament to place an absolute bar on the holding of two offices by the President, it could very easily have provided so by referring to Article 43, rather than Article 63(1)(d), in the proviso to sub-Article (7) of Article 41 subsequently inserted by the 17th Amendment. The very fact that Parliament chose to insert a reference to Article 63(1)(d), rather' than Article 43, in the proviso added to Article 41(7) shows that Parliament did not intend the ban on holding of two offices to be absolute after December 31, 2004 but instead to be dependent upon the will of Parliament itself. Since Parliament has now authoritatively provided for holding of two offices by the President through Another Office Act, there is no conflict (Constitutional, statutory or otherwise) left for this Court to resolve.

It was argued with respect to Another Office Act, 2004 that Parliament lacked the legislative competence to make any law with respect to the qualifications (or disqualifications) of the President. This argument is readily controverted because entry 41 of the Federal Legislative List refers explicitly to "Elections to the office of the President" which entry must, upon any reasonable interpretation, be deemed to provide sufficient legislative authority for the impugned Act.

In addition to entry 41, it may also be noted that entry 58 of the Federal Legislative List refers to "Matters, which under the Constitution are within the legislative competence of Majlis-e-Shoora (Parliament) or relate to the Federation". In the instant case, Article 63(1)(d) itself provides that Parliament may, by law provide that certain public office shall be deemed not to disqualify its holder from holding an elected office. In light of the clear Constitutional mandate, as well as the settled principle of law that entries in legislative lists are to be interpreted broadly, no exception can be taken to Another Office Act on the ground that Parliament lacked the legislative competence to enact such a law.

An alternate challenge to Another Office Act was presented by the petitioners on the ground that the said Act had not been competently enacted, in that assent to the said Act had been given not by the President himself but by the Chairman of the Senate, who was then the acting President. In support of this contention, the petitioners placed reliance upon the provisions of clauses (1) and (2) of Article 49 of the Constitution and the different language used therein.

In this context, it is noted that Article 260 of the Constitution defines the term "President" to include not only the President of Pakistan but also any "person for the time being acting as, or performing the functions of, the President of Pakistan". Thus, no distinction is drawn in the said definition between the President and the person who is either acting as President or performing the functions of the President. Thus, while there is certainly a distinction between the language of sub-Articles (1) and (2) of Article 49, it is a distinction without a difference.

Any imposition of restrictions on the powers of an Acting President would run contrary to the intent of the framers of the Constitution. In this context, it is noted that Article 15 of the Constitution of Pakistan, 1962 explicitly provided for certain limitations on the powers of an Acting President. Similarly, Article 64 of the Constitution of India, 1949 provides for certain limitations on the powers of the Vice-President who otherwise under Article 65 is entitled to act as President during the absence of the President. Given these two historical precedents, it can therefore be concluded that by not putting in any explicit restrictions on the powers of an Acting President, the framers of the 1973 Constitution were making a deliberate choice.

There was no Constitutional requirement upon the Chairman of the Senate to take a fresh oath, since the oath of Chairman of the Senate already provided for that eventuality and hence the Acting President has all the powers of the elected President whose vacancy he was filling in.

Even otherwise, it makes no sense for the Supreme Court to impose restrictions upon the role of the Acting President. If such restrictions were imposed upon the Acting President, it would follow that in times of emergency, the country would be unable to respond effectively if the President was out of the country for any reason. No such intention can be attributed to the founders of the Constitution and the argument of the petitioners is rejected on this ground.

It may also be noted that in the present case, the argument of the petitioners is somewhat disingenuous because had Another Office Act, 2004 been, in fact, signed into effect by the President himself, the petitioners would have challenged it on the ground that no man can be a Judge in his own cause. In the given circumstances, it was not only legally but also otherwise appropriate for Another Office Act to be assented to by the Acting President and hence the petitioners' arguments in this regard are rejected.

The petitioners also argued that the statute be struck down because it was not a "good thing". It is not the function of the judiciary to legislate or to question the wisdom of the Legislature in making a particular law. The wisdom or policy of the legislature is not open to question in the exercise of the power of judicial review.

Lastly, the petitioners argued that the statute be struck down because that would be the more appropriate thing to do and would be in consonance with popular demand. Statutes are not to be struck down lightly. The Court must make every attempt to reconcile the statute to the Constitution and only when it is impossible to do so, must it strike down the law.

Statutes are presumed Constitutional and the burden of proving otherwise is on the petitioners. Supreme Court has never struck down a statute on subjective notions of likes and dislikes or what is popular and unpopular. That is not its function. It is as much its duty to uphold a statute, which is Constitutional as is its duty to strike down an un-Constitutional statute.

Supreme Court must have due regard for the democratic mandate given to Parliament by the people. That requires a degree of restraint when examining the vires of or interpreting statutes. It is not for the Supreme Court to substitute its views for those expressed by legislators or strike down statutes on considerations of what it deems good for the people. Supreme Court is and always has been the judge of what is Constitutional but not of what is wise or good. The latter is the business of Parliament, which is accountable to the people.

The petitioners also submitted that it is imperative to take action against the President under Article 6 of the Constitution because under section 3 of the High Treason Act, 1973, no Court can examine a charge on grounds of treason unless a reference is forwarded to the Court by the President, which in this case is not possible. It is noted that section 3 does not require a reference from the' President but this duty has been assigned to the Federal Government. This provision remains in its original form since enacted. The petitioners' argument is misplaced. The petitioners do not seek a striking down but virtually insist on re-writing the same and pray that after doing so, Supreme Court may taken cognizance of the matter and initiate a prosecution against the President. Suffice it to say that it is not the function of the Courts of law. Even otherwise, on facts, which are incontrovertible, there is no basis for initiating such a prosecution.

Wukala Mahaz's case PLD 1998 SC 1263; Syed Zafar Ali Shah's case PLD 2000 SC 869; Mahmood Khan Achakzai's case PLD 1997 SC 426; Qazi Hussain Ahmed's case PLD 2002 SC 853; Wasim Sajjad's case (sic); Nazar Muhammad Khan v. Pakistan PLD 1986 Kar. 301; Nazar Muhammad Khan v. Pakistan PLD 1986 Kar. 516; Asma Jilani's case PLD 1972 SC 139; Brig. (Retd.) F.B. Ali's case PLD 1975 SC 507; Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57; Kesvavanda Bharati v. State of Kerala AIR 1973 SC 1461; Dewan Textile Mills v. Federation PLD 1976 Kar. 1368; Niaz A. Khan v. Federation of Pakistan PLD 1977 Kar. 604; Federation of Pakistan v. United Sugar Mills Ltd. PLD 1977 SC 397; Jehangir Iqbal Khan v. Federation of Pakistan PLD 1979 Pesh. 67; Fauji Foundation v. Shamim-ur-Rehman PLD 1983 SC 457; Darwesh M. Arbey v. Federation of Pakistan PLD 1980 Lail. 684; Fazlul Quader Chawdhary's case PLD 1963 SC 486; Abdul Mujeeb Pirzada's case 1997 SCMR 232; Thirteenth Amendment to the Constitution and the Provincial Councils Bill (1990) LRC (Const.) 1; Phang Chin Hock v. Public Prosecutor (1980) 1 MLJ 70; Ahmed Tariq Rahim's case PLD 1992 SC 646; Al-Jehad Trust case PLD 1997 SC 84; United states v. Public Utilities Commissioner of California 345 U.S. 295, 319 (1953); Zafar Ali Shah v. Federal Government of Pakistan 1994 CLC 5; Punjab Province v. Malik Khizar Hayat Khan Tiwana PLD 1956 FC 200; Federation of Pakistan v. Saeed Ahmad PLD 1974 SC 151; Shirin Munir v. Government of Punjab PLD 1990 SC 295; Zulfiqar Ali Babu v. Government of Punjab PLD 1997 SC 11; Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue 2002 SCMR 312; Amalgamated society of Engineers v. Adelaide Steamship Co. Ltd. 28 CLR 129; The Province of East Pakistan v. Sirajul Haq Patwari PLD 1966 SC 854; Mehreen Zaibun Niza v. Land Commissioner PLD 1975 SC 397; Multiline Associates v. Ardeshir Cowasjee 1995 SCMR 362; Messrs Elahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582; Dr. Tariq Nawaz v. Government of Pakistan 2000 SCMR 1956; Mian Asif Aslam v. Mian Muhammad Asif PLD 2001 SC 499; Pakistan Muslim League (Q) v. Chief Executive of Pakistan PLD 2002 SC 994 and Book "The Supreme Court" by Chief Justice of the United States Supreme Court, William H. Rehnquist ref.

A.K. Dogar, Senior Advocate Supreme Court in person (in C.Ps. Nos.13 of 2004, 2 of 2005 and C.P.L.A. No.927-L of 2003).

Moulvi Syed Iqbal Haider in person and Ch. Muhammad Akram, Advocate-on-Record for Petitioner (in C.P. No. 14 of 2004).

Zafarullah Khan, Advocate Supreme Court in person (in C.P. No.39 of 2004).

Engineer Jameel Ahmed Malik in person (in C.P. No.40 of 2004).

Makhdoom Ali Khan, Attorney-General for Pakistan, Nasir Saeed Sheikh, Deputy Attorney-General for Pakistan, Faisal Naqvi, Advocate, Khurram Hashmi, Advocate and M.S. Khattak, Advocate-on-Record for Respondent No. 1 (on Court notice).

Aftab Iqbal Chaudhry, Advocate-General, Punjab (on 4th and 5th April, 2005), assisted by Najeeb Faisal Chaudhry, Additional Advocate-General, Punjab, Ms. Afshan Ghazanfar, Assistant Advocate-General, Punjab (on behalf of Advocate-General, Punjab, adopted arguments of Attorney-General for Pakistan), Raja Saeed Akram, Assistant Advocate-General, Punjab and Syed Sajjad Hussain Shah, Assistant Advocate-General, Punjab (on Court notice).

Anwar Mansoor Khan, Advocate-General, Sindh (on 4th to 8th and 11th April, 2005) (on behalf of Advocate-General, Sindh, Nasir Saeed Sheikh, D.A.-G. adopted arguments of Attorney-General for Pakistan).

Salahuddin Mengal, Advocate-General, Balochistan (on 4th to 8th April, 2005).

Ms. Afshan Ghazanfar, Assistant Advocate-General, Punjab (on behalf of Advocate-General, Balochistan, adopted arguments of Attorney-General for Pakistan).

Muhammad Issa Khan, Additional. Advocate-General, N.-W.F.P. for Advocate-General, N.-W.F.P.

Dates of hearing: 4th, 5th, 6th, 7th, 8th, 11th, 12th and 13th April, 2005.

P L D 2005 Supreme Court 775

Present: Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ

MUHAMMAD HAYAT and others---Appellants

Versus

SARWAR KHAN and others---Respondents

Civil Appeal No.1575 of 2001, decided on 7th March, 2005.

(On appeal from the judgment dated 18-5-2001 of the Lahore High Court, Lahore passed in C.R.No.420-D of 1984).

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

----Ss. 20, 21, 22 & 23---Constitution of Pakistan (1973), Art.185(3)---Grant of land under Horse Breeding Scheme---Leave to appeal was granted by the Supreme Court to consider the questions that whether in view of order passed by the Collector whereby -A" was held successor of the estate left by one of the lessees, the High Court had not erred in ignoring the said order which had attained finality and held the field; that whether the Courts below had not fallen into error by ignoring the agreement entered into by lessee and his three sons which was acted upon in the life time of the lessee and his three sons; that whether it was not binding on the other successors-in-interest (sons) of the lessee and whether, after the death of the lessee when one of his sons died issueless while other son survived by one son and the third one was survived by one son 'after their death, the property would not devolve on "A" under Ss,20, 21, 22, 23 of the Colonization of Lands (Punjab) Act, 1912 as held by the Collector in his order.

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

---Ss. 20, 21, & 22-Grant of land under "Horse Breeding Scheme"---Association deed executed in respect of land subject-matter of grant by the original lessee---Character and effect of such deed---Interpretation of document---Principles---Instrument in question provided in clear words that the parties would equally share the benefit of the grant and would be deemed to be joint owners of .land on the acquisition of its proprietary rights---Execution and existence of said document being not disputed, the conclusion drawn by the Court of first instance with respect to the rights of executants was based on the consideration of its genuineness and the perusal of the document would not suggest any ambiguity or suspicion in its contents---Document was executed by original lessees and their brothers and father by virtue of which they agreed for the joint cultivation of the land treating same as a joint property of the family with ultimate right of ownership, therefore, notwithstanding the grant of proprietary rights in the name of last lessee in the order of succession, the right of ownership of the executants of deed in the land created by virtue of the association deed, would not be extinguished---Association deed, in-plain words, reflected the character of an undertaking of joint interest in the land obtained on lease which was subsequently capable of conversion into absolute title---Inclusion of any beneficial entitlement in the deed, would be an effective declaration of equitable ownership which would conclude the question of title- Person could establish a good possessionary title on the basis of a document before the commencement of action even though he may have no legal title on the crucial date-Executants of deed of association, having proved their uninterrupted possessionary title of the land which was not even denied by the last lessee and thus it was established that land in dispute was in their continuous possession under the family settlement which was sufficient to establish equitable title and in consequence thereto, the right of ownership created under the association deed would not be extinguished by afflux of time---Agreement related to an internal arrangement of the original grantee with his brothers and father in respect of the affairs of the land and being not in conflict with the condition of lease, was not violative of either of the Schemes in question or law---Such deed would neither override the terms of the lease and create any right of the executants of the deed in the lease-hold-rights nor would be binding on the Government for the purpose of grant of proprietary rights in favour of any 'other 'person except of lessee---Status of executants of the document as joint owners of the property under the agreement in question was unexceptionable---Agreement executed by the original grantee in respect of the land, subject-matter of grant, being not against the public policy or law, was valid and would be binding on his successors---Principles.

Muhammad Nawaz Khan v. Muhammad Khan and 2 others 2002 SCMR 2003 and Hussain Bakhsh and others v. Muhammad Alam and 3 others PLD 1960 (W.P.) Lah. 869 ref.

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

----Ss. 20, 21, & 22---Specific Relief Act (I of 1877), S.42---Grant of land under "Horse Breeding Scheme"---Association deed in respect of the land, the subject-matter of grant by the original lessee---Accrual of cause of action for filing suit for declaration---Cause of action would accrue on the (late of sale and not on the acquisition of proprietary rights by the lessee---If there was subsisting right in the property, the right to bring the suit would be continuing so long the right subsisted and the date of accruing the right to sue in a suit for declaration, would be the date of denial of such right in the property---Overt act of the denial in the present case, would be the date of sale and not the date of acquisition of proprietary right, therefore, neither the suit would be barred by limitation nor it would be hit by the principle of estoppel by waiver.

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

----S. 41---Claim of vendee of bona fide purchasers and their entitlement to the protection of S.41, Transfer of Property Act, 1882---Requirements of law---Transferee must make necessary inquiry about the clear title and the interest of third person who is in possession of property to show his bona fides and establish that transaction was in good faith---Equitable doctrine envisaged under S.41, Transfer of Property Act, 1882 ,would not be attracted unless the party claiming such benefit satisfied the requirement of law.

Mian Allah Nawaz, Advocate Supreme Court for Appellants.

Gnlzarin Kiani, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents.

Respondent No.4(i) and 10(iv): Ex parte.

Date of hearing: 7th March, 2005.

P L D 2005 Supreme Court 787

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

Syed NAZIR HUSSAIN RIZVI---Petitioner

Versus

ZAHOOR AHMAD and another---Respondents

Civil Petitions Nos.226 and 227-K of 1999, decided on 30th March, 2005.

(On appeal from the judgment dated 9-2-1999 of the High Court of Sindh, Karachi, passed in H.C.As. Nos. 52 and 53 of 1989).

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

---O. VI, R.17---Amendment of pleadings---Criterion.

The proposed amendment can neither change the complexion of the suit nor introduce a new cause of action. No amendment will be allowed where its effect would be to convert the character of the suit.

The fundamental character of the suit including the subject-matter and cause of action cannot be allowed to be substituted.

Subject to certain exceptions "even alternative and inconsistent Pleas may be allowed to be raised by way of amendment".

A new ground of claim can be introduced because merely introduction of fresh matter cannot alter the nature of the suit and leave ought not be refused in such cases.

A line of distinction is to be drawn between an alternative case' andan inconsistent case' which are neither synonymous nor interchangeable.

No two facts can be said to be inconsistent if both could have happened and the test of inconsistency is that a plaint which contains both cannot be verified as true but a party can, put forward more than one source of his right or defence in which case he is pleading in the alternative.

An alternative or inconsistent plea can be raised but contradictory and mutually destructive pleas cannot be taken.

Shahsawar v. Najamul Hassan 1981 SCMR 730; Khudeja v. Jehangir Khan 1971 SCMR 395; Atlantic Steamer's Supply Co. v. m.v. Titisee PLD 1993 SC 88; Ghulam Bibi v. Sarsa Khan PLD 1985 SC 345; Ghulab v. Fazal Ilahi PLD 1955 Lah. 26; Ghulamali v. Pakistan PLD 1960 Kar. 581; Alauddin v. Central Exchange Bank Limited PLD 1060 Lah. 446;Muhammad Essa v. Haseena Begum 1989 SCMR 476 and Budho v. Ghulam Shah PLD 1963 SC 553 ref.

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

----O. VI, R.17 & O. XXXVII, R.2---Amendment of pleadings---Suit for recovery of money 'on the basis of promissory note---Plaintiff, in the present case, in fact wanted through amendment of pleadings to pray that in case the decree on the basis of promissory note was not granted by way of summary procedure, the suit may be treated as an ordinary suit and decree be awarded subject to merit by following the ordinary procedure---Validity---Proposed amendment could not be considered as cbntradictory or mutually destructive but on the contrary it would reduce. the possibility of multiplicity of litigation which was the prime object of the provisions as contained in 0. VI, 'R. 17, C.P.C.---Principle.

Muhammad Sharif, Advocate Supreme Court and M. Shabbir Ghaury, Advocate-on-Record (absent) for Petitioners (in both cases).

Nemo for Respondents.

Date of hearing: 30th March, 2005.

P L D 2005 Supreme Court 792

Present: Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday and Muhammad Nawaz Abbasi, JJ

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY, KARACHI---Appellant

Versus

SHAMIM KHAN through L. Rs. and 5 others---Respondents

Civil Appeal No.993 of 1999, decided on 11th April, 2005.

(On appeal from the judgment dated 18-11-1998 passed by High Court of Sindh in Constitution Petition No.D-715 of 1998).

(a) Pakistan Defence Officers Housing Authority Order [P.O.No.7 of 1980]---

----Art.17(h)---Bye-laws of Pakistan Defence Officers Housing Society, Bye-Laws Nos.7 & 8---Person while on deputation with Defence Officers Cooperative Housing Society was allotted a residential plot; society was dissolved and 'substituted by the. Defence Officers Housing Authority---Allotment of plot to the said person was. cancelled by the Authority on the ground of his ineligibility to become the member of the Society-Validity-Authority did not enjoy unlimited power of cancellation of allotment made by the Society rather such power was confined only to the extent of allotments which were made in contravention of the bye-laws of the Society---Article 17(h) of Pakistan Officers' Housing Authority Order, 1980 provided; that all allotments and transfers of plots, whether residential, commercial or otherwise, made by the Society before its dissolution shall be deemed to be allotments and transfers made by the Authority---Executive Board, however, could cancel such allotments which would fall within the ambit of Art.17(i) of the Pakistan Defence Officers Housing Authority Order, 1980---Principles.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope--Controversial question of facts requiring adjudication on the basis of evidence could not be undertaken by the High Court under its Constitutional jurisdiction---Where the material facts were admitted by the respondent, High Court could interfere.

Nazar Hussain Dhoon, Advocate Supreme Court for Appellant.

Abul Anam, Advocate Supreme Court for Respondents.

Date of hearing: 11th April, 2005.

P L D 2005 Supreme Court 797

Present: Hamid Ali Mirza, Sardar Muhammad Raza Khan and Muhammad Nawaz Abbasi, JJ

GOVERNMENT OF SINDH through Local Government, Karachi---Petitioner

Versus

KHURSHEED AHMED JUNEJO and others---Respondents

Civil Petition No.355-K of 2005, decided on 27th May, 2005.

(On appeal from the judgment dated 10-5-2005 passed by the High Court of Sindh at Karachi in Constitution Petition No.D-1500 of 2004).

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

----S.186(2)---West Pakistan Land Revenue Act (XVII of 1967), S. 6---Government of Sindh, in exercise of powers conferred by S.6, West Pakistan Land Revenue Act, 1967 through four separate notifications, carved out four new Districts from the existing four Districts---Four separate notifications were subsequently issued by the Sindh Government in exercise of powers conferred by S.186(2) of Sindh Local Government Ordinance, 2001 whereby the Nazims and Naib Nazims of the existing Districts were removed in consequence of the creation of new Districts---Validity---Held, by creation of new Districts the elected representatives of the original Districts could not be said to have ceased to hold office---If a District Coordination Officer could look after the affairs of two Districts, why not the elected representatives could do so till the new elections were held in due course---Removal of elected representatives, under the law, was a mere presumption not supported either by the West Pakistan Land Revenue Act, 1967 or by the Sindh Local Government Ordinance, 2001---Government of Sindh, in the present case had misconstrued the provisions of S.186(2) of Sindh Local Government Ordinance, 2001 and misinterpreted in deriving power for removal of District Nazims and Naib Nazims.

Aftab Hossain's case PLD 1970 Dacca 798 ref.

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

----Ss. 2(x), 5, 7, 10, 11, 23, 24 & 186(2)---Scope and application of Ss.2(x), 5, 7, 10, 11, 23, 24 & 186(2) of Sindh Local Government Ordinance, 2001.

Anwar Mansoor Khan, Advocate-General, Sindh for Petitioner.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Muhammad Afzal Siddiqui, Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Respondents Nos. 1 to 3.

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court for Respondents Nos. 5 and 6.

Date of hearing: 27th May, 2005.

P L D 2005 Supreme Court 803

Present: Hamid Ali Mirza, Sardar Muhammad Raza Khan and Muhammad Nawaz Abbasi, JJ

Professor Dr. NIZAKAT BEGUM, AYUB MEDICAL COLLEGE, ABBOTTABAD---Petitioner

Versus

GOVERNMENT OF N.-W.F.P. through Secretary Health and 2 others---Respondents

Civil Petition No.23-P of 2004, decided on 29th June, 2005.

(On appeal from the judgment dated 27--10-2003 of the N.-W.F.P. Service Tribunal, Peshawar passed in Service Appeal No.651 of 2002).

North-West Frontier Province Removal From Service (Special Powers) Ordinance (V of 2000)---

--Ss. 2(d), 9 & 10---North-West Frontier Province Corporation Employees (Special Powers) Ordinance (VIII of 1978), S.5---North-West Frontier Province Medical and Health Institutions Reforms Act (XII of 1999), Ss.1(2), 3, 5(2), 10(2) & 15---N.-W.F.P. Government Notification No.SOII-II/3-1599, dated 10-3-2000---Employee of Ayub Medical College and Ayub Teaching Hospital being a "person" within the meaning of N.-W.F.P. Removal From Service (Special Powers) Ordinance, 2000 will have a remedy vide S.10 of the said Ordinance before the Service Tribunal of the Province, therefore, it could, not be said that the appeal filed by the said employee was incompetent---Principles.

Nasir Mehfooz, Advocate Supreme Court for Petitioner.

Hamid Farooq Durrani, A.-G., N.-W.F.P. for Respondents.

Date of hearing: 29th June, 2005.

P L D 2005 Supreme Court 806

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

PAKISTAN RED CRESCENT SOCIETY and another---Appellants

Versus

Syed NAZIR GILLANI---Respondent

Civil Appeal No. 1080 of 1998, decided on 1st June, 2005.

(On appeal from the judgment dated 19-3-1997 of the Lahore High Court, Rawalpindi Bench, passed in I.C.A. No.2 of .1992).

Pakistan Red Crescent Society Act (XV of 1920)---

----Ss. 2, 4 & 5---Pakistan Red Crescent Society (Staff) Service Regulations, 1974---Constitution of Pakistan (1973). Art.199---Constitutional petition before High Court by employee of the Society seeking his reinstatement in Society's Service---Maintainability----Legal Character of Pakistan Red Crescent Society---Determination---Society could not be treated as a person performing function in connection with the affairs of the Federation or the Province---Pakistan Red Crescent Society (Staff) Service Regulations, 1974 being non-statutory, employee of the Society would not be legally entitled to the invocation of Constitutional jurisdiction of High Court seeking his reinstatement---Employee of a Corporation, in the absence of violation of law or any statutory rules could not press into service the Constitutional jurisdiction of High Court or Civil jurisdiction for seeking relief of reinstatement in service as in the case of such an employee where protection could not be sought under any statutory instrument or enactment the relationship between the employer and employee was that of a Master and Servant---Remedy for such an employee against wrongful dismissal or termination was to claim damages--Constitutional jurisdiction as conferred upon the High Court under Art.199 of the Constitution could not have been invoked by the employee of the Society.

Muhammad Saleemullah v. Trustees of the Port of Karachi and others PLD 1975 Kar.358; Mrs. M.N. Arshad v. Mrs. Naeema Khan PLD 1990 SC 612; Walayat Ali Mir v. P.I.A.C. 1995 SCMR 650; Dr. Anwar Ali Sahto v. Federation of Pakistan PLD 2002 SC 101; Managing Director, SSGC Ltd., v. Ghulam Abbas PLD 2003 SC 724; I.A Sharwani v. Government of Pakistan 1991 SCMR 1041; I)r. Naveeda Tufail v: Government of the Punjab 2003 SCMR 291; Zalar All Shah v. Pervez Musharraf, Chief' Executive of Pakistan PLD 2000 SC 869; Karachi Development Authority v. Wali Ahmed Khan 1991 SCMR 2434; Anwar Aziz v. Federation of Pakistan PLD 2001 SC 549: Tahira Almas v. Islamic Republic of Pakistan PLD 2002 SC 830; Muhammad Nazir Khan v. Mubashar Hasan PLD 1974 Lab. 49 and Muhammad Baran v. Member (Settlement and Rehabilitation) PLD 1991 SC .691 distinguished.

Principal, Cadet College, Kohat. v. Muhammad Shoab Qureshi PLD 1975 SC 678; Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194; Chairman WAPDA v. Syed Jamil Ahmed 1993 SCMR 346: Muhammad Umar Malik v. The Muslim Commercial Bank Ltd. 1995 SCMR 453, Habib Bank Ltd. v. Syed Zia-ul-Hassan Kazmi 1998 SCMR 60; .Mrs. Anisa Rehman v. 1994 SCMR 2232; Muhammad Salimullah v. Trustees of the Port of Karachi PLD 1975 Kar. 758; Ziaullah Khan Niazi v. Chairman Pakistan Red Crescent Society 2004 SCMR 189; Chairman' WAPDA v. Jamil Ahmed 1993 SCMR 346; Muhammad Yusuf Shah v. Pakistan International Airlines Corporation PLD 1981, SC 224; The Principal, Cadet College, Kohat and another v. Muhammad Shoaib Qureshi PLD 1,984 SC 170; National Bank of Pakistan v. Sindh Labour Appellate Tribunal and others 1990 PLD 197; National Bank of Pakistan v. Manzoorul Hassan 1989 SCMR 832; Muhammad Mumtaz Javed v. Pakistan through, Secretary, Ministry of Communication, Government of Pakistan and2 others 1988 PLC (C.S.) 705; Mrs. M. N. Arshad and others v. Miss Naeema Khan and others. PLD 1990 SC 6.12; Messrs Malik and Haq and another v: Muhammad Shamsul Islam Chowdhury and 2 others PLD 1961 SC 531; Zainul Abidin v. Multan Central Cooperative BankLimited Multan PLD 1966 SC 445; The Chairman, East Pakistan Industrial Development Corporation, Dacca and `another v. Rustom Aim and another PLD 1966 SC 848;, Abdul Salani Mehta v. Chairman, Water and Power Development Authority and another 1970 SCMR 40; Lt. Col. Shujauddin Ahmad v. Oil & Gas Development Corporation 1971 SCMR 566: R.T.A. Janjua v. National Shipping Corporation PLD 1974 SC 146; Syed Akbar Ali Bokhari v. State Bank of Pakistan and others PLD 1977 Lah. 234 and The Evacuee Trust Property Board and another v. Muhammad Nawaz 1983 SCMR 1275 ref.

Khawaja Muhammad Farooq, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Appellants.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent.

Date of hearing: 16th December, 2004.

P L D 2005 Supreme Court 819

Present: Nazim Hussain Siddiqui, C.J., Faqir Muhammad Khokhar and Nasir-ul-Mulk, JJ

MUHAMMAD IKHLAQ MEMON---Appellant

Versus

ZAKARIA GHANI and others---Respondents.

Civil Appeal No.670 of 2002, decided on 27th June, 2005.

(On appeal from judgment dated 7-3-2002 of the High Court of Sindh at Karachi, passed in Special H.C.A.No.94 of 2001).

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

---S. 18(2)---Execution of decree---Sale of pledged or mortgaged property---Provision of S.18(2), Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, provides the mode and procedure of execution of decree by the Banking Court and for the recovery of the decretal amount by following the provisions of C.P.C. or any other law .and in such other manner as it may deem fit---Banking Court, therefore, can, in an appropriate case, make a departure from the provisions of C.P.C. while executing the decree---Section 18(2) of the Act permits the Banking _Court to sell a pledged or mortgaged property with or without intervention of the Court either by public auction or by inviting sealed tenders.

Ch. Abdul Majeed v. Sadaqat Ali and others 2004 SCMR 1325 and Hudabia Textile Mills Ltd. and others v. Allied Bank of Pakistan Ltd. PLD 1987 SC 512 fol.

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

----S. 18---Civil procedure Code (V of 1908), O.XXI, Rr.84, 85, 92, & S.65---Execution of decree---Sale of pledged or mortgaged property---. Legal rights and interests of auction purchaser---Banking Court, in the present case, had itself given a period of one month; to the auction purchaser to deposit the balance of purchase money which was extended by the Court. Auction purchaser made the requisite payment to the Court accordingly---Auction purchaser, in circumstances, could not be penalized merely on the ground that he had failed to make such deposit within a period of 15 days as stipulated in O.XXI, R.85, C.P.C.---Banking Court however, had decided to follow the procedure, by making a reference to O.XXI, R.85, C.P.C. for the first time, while extending the date of deposit by the auction purchaser---Properties in dispute were put to sale four times through proper advertisements in the Press by inviting sealed tenders---Banking Court did not receive any bid on three occasions---Auction purchaser was the only person who had made the offer on the fourth occasion by making deposit of initial amount and also raised the bid---Higher bid, if any, did not find place in the Court's order---Negotiated offer made by the auction purchaser having been accepted by the Banking Court, auction purchaser had acquired legal rights and interests in the properties purchased by him---Once payment of the sale price by the auction purchaser, in compliance with the orders of the Court, had been made, it was the duty of the Court to confirm the sale as required by O.XXI, R.92, C.P.C.---Even where the Court had failed to pass an order of confirmation of sale that would not lead to de privation of right of auction-purchaser or cause prejudice to him and in such a case, it would be deemed that the sale stood confirmed and purchaser would be deemed to have become absolute in his title by virtue of S.65, C.P.C. which would relate back to the date of sale---High Court, in capacity as Banking Court sold the properties to the auction purchaser in a just, fair and transparent manner to which no exception could be taken---Held, sale which was otherwise validly made in favour of the auction purchaser could not be set at naught merely for the reason that the Banking Court had fixed the period of one month and had extended it further to enable purchaser to deposit the balance amount which was beyond the period of 15 days as fixed by O.XXI,R. 85, C.P.C.

Rashid Ehsan and others v. Bashir Ahmad and another PLD 1989 SC 146; Messrs Masoom Industries and others v. Habib Bank Ltd. 2005 SCMR 746; Dar Okaz Printing and Publishing Limited Liability Company v. Printing Corporation of Pakistan Private Limited PLD 2003 SC 808; Imtiaz Ahmed v. Muhammad Ali PLD 1963 SC 382; Sajawal Khan v. Wali Muhammad 2002 SCMR 134; Fida Hussain v. The State PLD 2002 SC 46; Ghulam Hussain v. Jamshaid Ali 2001 SCMR 1001; lmran Ashraf v. The State 2001 SCMR 424; State v. Asif Adil 1997 SCMR 209; Iftikhar Baig v. Muhammad Azam 1996 SCMR 762; Sherin v. Fazal Mehmood 1995 SCMR 584; Abdur Rashid v. Abdul Salam 1991 SCMR 2012; Fateh Khan v. Bozemir PLD 1991 SC 782; Muhammad Hanif v. Muhammad PLD 1990 SC 859; Ghulam Haider v. Raj Bharri PLD 1988 SC 20; Abdul Ghani v. Rasool PLD 1977 SC 102 and Janak Raj's case AIR 1967 SC 608 ref.

(c) Estoppel---

----No estoppel against statute---Mere concession on a question of law by a party would not operate as an estoppel; it is the duty of the Court to interpret and apply the law correctly regardless of any concession made by a party or its counsel.

Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382; Ikram Bus Service and others v. Board of Revenue, West Pakistan PLD 1963 SC 564; Shahul Hameed v. Tahir Ali 1980 SCMR 469; Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690 and Government of West Pakistan through Secretary, P.W.D (Production Branch,), Lahore, v. Mian Muhammad Hayat PLD 1976 SC 203 ref.

Syed Sharifuddin Pirzada, Senior advocate Supreme Court, Rana Waqar Ahmed, Advocate, and Mehr Khan Malik, Advocate-on-Record for Appellants.

Muhammad Akram Sh., Senior Advocate Supreme Court for Respondents Nos. 1 to 5.

M.A. Zaidi, Advocate-on-Record for Respondent No.6.

Muhammad Afzal Sandhu, Advocate Supreme Court for Applicant.

Date of hearing: 27th May., 2005.

P L D 2005 Supreme Court 831

Present: Hamid Ali Mirza, Sardar Muhammad Raza Khan and Muhammad Nawaz Abbasi, JJ

PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Chairman

and others---Appellants/Petitioner

Versus

SAMINA MASOOD and others---Respondents

Civil Appeals Nos. 1613 to 1617 of 2003 and Civil Petition No.3332 of 2003, decided on 28th June, 2005.

(On Appeal from the judgment dated 22-8-2001 of the High Court of Sindh, Karachi passed in C:Ps. Nos. D-364, D-376, D-392, D-429/1999, D-1618 of 2001 and Lahore High Court, Rawalpindi Bench, Rawalpindi dated 29-10-2003 in W.P. No.901 of 1999, respectively).

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

----S. 3---Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985, Regln.25---Constitution of Pakistan (1973), Art.199---lntra-Court appeal---Scope---Vires of Regln.25, Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985---When judgments rendered are not in the exercise of original civil jurisdiction but Constitutional jurisdiction, S.3(1), Law Reforms Ordinance, 1972 is not applicable---Provision of S.3(2), Law Reforms Ordinance, 1972 provides that if a judgment by a Single Judge of a High Court is rendered under Art.199(1) of the Constitution, excepting sub-paragipah (i) of paragraph (b) of the said clause, the appeal shall also lie before a Bench of two or more Judges of the same High Court---Vires of Regulation 25 Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985 having been challenged before the High Court in the Constitutional jurisdiction squarely fell under Art. 199(1)(c) of the Constitution, hence was appealable through an Intra-Court appeal before two or more Judges of the same High Court---Principles.

Mst. Karim Bibi v. Hussain Bakhsh PLD 1984 SC 344 ref.

(b) Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985---

----Regln. 25---Constitution of Pakistan (1973), Arts.25(2) & 199---Constitutional jurisdiction of High Court under Art.199 of the Constitution was invoked to challenge the vires of Regulation 25 of Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985 whereunder an Air Hostess was to retire on attaining age of thirty-five years extended from time to time to forty-five years; whereas, their other colleagues in groups I to IV were to retire on attaining the age of sixty---Such difference in retirement age had been challenged by numerous Air Hostesses before Karachi as well as Lahore High Court on the sole ground that the difference, being a discrimination based on sex, was in utter violation of Art.25(2), of the Constitution---Validity---Air Hostesses were not a group as such, but their nomenclature actually was Cabin Crew, also described as Pursers and senior Pursers and in this description and even in view of Regulation 25 of Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985, the Cabin Crew included male Stewards as well as Air Hostesses, performing exactly the same duties and belonging to exactly the same pay groups I to IV--Held, nothing could be a discrimination based on sex better than what has been found in the present. case where people similarly placed exactly in the same group were discriminated only for being females---Principles---Supreme Court, while directing that there shall be no discrimination between the retiring ages of female and male Cabin Crew belonging to the same group remarked that if any member of the Cabin Crew at certain age did not physically fulfil the requirements of the department concerning flying duties, they may, after medical examination, be entrusted any other duties/ground duties in the same pay group.

Government of Balochistan v. Azizullah Memon PLD 1993 SC 341; Asdullah Mangi v. PIAC 2005 SCMR 445 and Miss Shirin Dokht v. Government of Pakistan 1995 PLC (CS) 251 ref.

(c) Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985---

----Regin. 25---Constitution of Pakistan (1973), Arts. 199 & 25---Service Tribunals Act (LXX of 1973), Ss.2-A & 4--- Constitutional jurisdiction of High Court under Art.199 of the Constitution was invoked to challenge the vires of Regulation 25 of Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985 whereunder an Air Hostess was to retire on attaining age of thirty-five years extended from time to time to forty-five years; whereas, their other colleagues in groups I to IV were to retire on attaining the age of sixty---Such difference in retirement age had been challenged by numerous Air Hostesses before Karachi as well as Lahore High Courts on the sole ground that the difference, being a discrimination based on sex, was in utter violation of Art.25(2), of the Constitution---Controversy raised by the Airlines was that matter brought by the Air Hostesses before the High Courts, essentially related to terms and conditions of service and hence, in view of S.2-A, Service Tribunals Act, 1973, the remedy of Air Hostesses lay before the Federal Service Tribunal and not before the High Court---Validity---Held, at the time of filing the Constitutional petition no order, whether original or appellate made by Departmental Authority against the Air Hostesses was in field within the contemplation of S.5, Service Tribunals Act, 1973 so as to be challenged before the Service Tribunal---Age of retirement fixed by,Regln.25 was a term and condition but the same had not been violated by the Department, had the Department done so, the Air Hostesses had the right to challenge the same before the Service Tribunal---No order had been passed by the Departmental Authority or original or appellate in violation of the already existing terms and conditions of service and thus, for getting a term and condition struck down on the basis of being violative of the fundamental rights guaranteed by the Constitution, Air Hostesses could only resort to -the High Court under Art.199 of the Constitution---Principles.

Abdul Bari's case PLD 1981 Kar. 290; I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041; Raziuddin v. Chairman PIAC PLD 1992 SC 531; Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539; Syed Asghar Ahmad Naqvi v. Province of Sindh PLC 1996 (C.S.) 803 and Dr. Muhammad Tahir Achakazi v. Government of Balochistan 1999 SCMR 1989 ref.

(d) Judgment---

----"Judgment in personam" and "judgment in rem"---Distinction---Judgment deciding subjective interest of an individual can be treated as Judgment "in personam" while judgment declaring vires of Regulation being a conclusive adjudication was judgment "in rem".

Pir Bakhsh v. Chairman Allotment Committee PLD 1987 SC 145 ref.

Aftab Gul, Advocate Supreme Court with Mr. Arshad Ali Chaudhry, Advocate-on-Record for Appellant (In Cas. Nos. 1613 to 1617 of 2003).

M. Yawar Ali, Advocate Supreme Court for Petitioners (In C.p. No.3332 of 2003).

Respondent No.2 (in person) (in C.P. No.3332 of 2003).

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Respondents Nos.1, 3-6, 9, 10, 12 and 13 (In C.A. No.1613 of 2003).

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos.1, 4, 7, 9 and 10 (In C.A. No.1614 of 2003).

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents No.1 (In C.A. No.1615 of 2003).

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent (In C.A. No.1616 of 2003).

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos.1, 3-7, 8 (In C.A. No.1617 of 2003).

Dates of hearing: 27th and 28th June, 2005.

P L D 2005 Supreme Court 842

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Mian Shakirullah Jan, JJ

KHYBER TRACTORS (PVT.) LTD. through Manager---Appellant

Versus

PAKISTAN through Ministry of Finance, Revenue and Economic Affairs, Islamabad---Respondents

C. Misc. Appls. Nos.762 & 763 of 2002 & 2542 & 2543 of 2003, in Civil Petitions Nos. 129 and 130 of 2000, decided on 11th January, 2005.

(On appeal against the judgment dated 2-12-1999 passed by the Lahore High Court, Lahore in ICAs. Nos.790 and 812 of 1998).

(a) Jurisdiction---

----Question of jurisdiction of a forum is always considered to be very important and any order passed by a Court or a forum, having no jurisdiction, even if it is found to be correct on merits, is not sustainable---Jurisdiction of a Court lays down a foundation stone for a judicial or a quasi-judicial functionary to exercise its powers/authority and no sooner the question of jurisdiction is determined in negative, the whole edifice, built on such defective proceedings, is bound to crumble down.