PLD 2006 Judgments

P L D 2006 Federal Shariat Court 1

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

Syed SHABBIR HUSSAIN KAZMI and others---Petitioners

Versus

GOVERNMENT OF PAKISTAN and others---Respondents

Shariat Petitions Nos. 8/L, 6/L of 1993, 36/L, 37/L, 58/L of 1992 and 10/1-, 7/L, 9/L of 1993; decided on 10th October, 2005.

(a) Bonded Labour System (Abolition) Act (III of 1992)---

----Ss. 2(a)(b), (c), (d), (e), 5, 6, 7, 8 & 11---Constitution of Pakistan (1973), Arts. 203-D, 9, 10, 11, 14, 15 & 18---Repugnancy to Injunctions of Islam---Brick kiln owners had assailed Ss.2, 5, 6, 7, 8 & 11 of the Bonded Labour System (Abolition) Act, 1992 as being repugnant to Injunctions of Islam---Validity---Held, impugned definitions in S.2, Bonded Labour System (Abolition) Act, 1992 i.e. "advance (peshgi)", "bonded debt", "bonded labour", "bonded labourer" and "bonded labour system" were not violative of Islamic Injunctions on the subject; on the contrary, these were intended to achieve the lofty ideals put forth by the Holy Qur'an and Sunnah of upholding the dignity of man in general and preservation/protection of the fundamental rights of working class in the society in particular---Likewise Ss. 5, 6, 7, 8 & 11 of the Act were not repugnant to the Injunctions of Islam as said provisions had been incorporated therein with the object of abolition of bonded labour in all its forms and manifestations---Islamic Injunctions on the subject and principles recorded---Federal Shariat Court, however, observed that the object for which the Bonded Labour System (Abolition) Act, 1992 was passed could not be achieved so far---Court provided guidelines for the purpose and directed that copy of the present judgment be forwarded to the specified authorities.

The Bonded Labour System (Abolition) Act, 1992, as a whole, was a beneficial statutory dispensation of vital importance as it was intended to curb and put to irreversible end the reprehensible institution of bonded labour not only in the brick kiln industry but also in other sectors in the country like Haris tenants-at-will, labourers in mining industry, glass bangle industry, tanneries etc.

The Bonded Labour System (Abolition), Act, 1992 was passed by the legislature strictly in line with directives of the two judgments of the Supreme Court. By purporting to challenge the vires of the impugned provisions of the Act what the petitioners in the present case, really sought was the effacement of the binding effect of the two judgments, which was not permissible in law.

The judgments of Supreme Court declaring the law on the subject could not be called in question by a person or by a batch of persons though he/they might not be party to the judgments.

?

Supreme Court decision was binding on all persons though they were not party before Supreme Court.

Even an obiter in a judgment by Supreme Court carries binding effect.

?

A perusal of the said judgments of the Supreme Court would show that these indeed protected/upheld the following fundamental rights of the labourers:--

(i) Security of life or liberty of a person---Article 9.

(ii) Safeguard as to arrest and detention---Article 10.

(iii) Prohibition of all forms of forced labour---Article 11.

(iv) Upholding of inviolability of dignity of man---Article 14.

(v) Guarantee of freedom of movement---Article 15.

(vii) Freedom of trade, business or profession---Article 18.

Islam had fifteen centuries ago etched out in detail the fundamental rights of the mankind by unequivocal commandment.

In Islam a workman is not entitled to anything until his work be finished.

Forced labour is repugnant to Islam in the extreme.

How much regard the Holy Prophet (peace be upon him) had for the rights of the workers is conveyed by probably his last Hadith shortly before he left this world and met his Creator.

Even if the worker does not claim his rights, according to Islam the owner should be alive to his rights and cognizant of his full responsibility; he should fulfil his obligations, failing which he shall be held answerable before God on the Day of Judgment.

Naturally, the proprietor or the owner would like to extract as much work as possible from the servant or worker. But Islam aims at expelling this idea out of his mind.

Islam has called exploitation of worker the gravest possible violation of human rights and decency; it has also laid down, guidelines for prevention thereof. It cannot tolerate his exploitation, in any form, for a single moment.

Thus Islam has formulated a social system based on the fundamental human rights and the relationship between the owner and the worker is comprehensively covered by it. This system favours neither the emergence of a capitalist class nor of a technocrat class or bureaucracy but of an egalitarian system in which the rule of law prevails.

Contention of the petitioner that the workers employed in brick kiln performed their duties under contract with the owners which was with reference to the practice of payment of advance amount to them by way of peshgi, is wholly without force.

Islam has taken great care to ensure that the worker is not duped/lured into performance of contract which is fraudulent/unconscionable/ vague. Such a course of action leads to exploitation of the workers as the employer by handing over certain amount to the worker obtains assurance from him that he would continue to work till such time that the services rendered by him do not offset/liquidate the liability of said amount.

It is common knowledge that almost all the workers in the brick kiln are illitrate; no deed is drawn specifying the terms and conditions of the contract with the result that the worker engaged at the brick kiln is kept groping in dark, all the time, as to when he would be treated to have discharged the liability qua the advance amount. After extracting sufficient work from him, if and when the worker approaches the employer for settlement of account, he is usually confronted with the reply that he had yet to complete the job entrusted to him. In the meantime, the advance amount having been utilized by the worker, the employer conveniently hands over further amount to him so as to keep him engaged at his brick kiln. This process goes on ad infinitem. There cannot be worse form of exploitative bondage of labour. The advance (peshgi) is a tool of intimidation to extract surplus work without payment of wages therefor.

Islam is the greatest emancipator of mankind and zealously upholds the dignity of worker in particular. Perusal of the Ayats of Holy Qur'an and the Ahadiths of Prophet (peace be upon him), quoted in the judgment would prove that exploitation of down-trodden and toiling labourer is strictly forbidden so that he is saved from eking out his livelihood in abject servitude. The Peshgi system being vague and unconscionable, besides being exploitative in nature, is violative of the Injunctions of Islam.

?

The Holy Prophet (peace be upon him) had interdicted the employment of a labourer without prior fixation of his wages.

Two beneficent conclusions of far-reaching effect, are deducible from these Ahadiths. It is postulated that the nature and extent of the job entrusted to the workers should be well-defined at the time of the contract. The worker, on the completion of the job, is to be paid his wages without any delay whatsoever. Thus only piece-rate work can be entrusted to the worker in the brick kiln industry i.e. specific number of bricks to be prepared in lieu of mutually agreed amount as his wages.

?

Definition in the Bonded Labour System (Abolition) Act, 1992 are not violative of Islamic Injunctions on the subject. On the contrary, these are intended to achieve the lofty ideals put forth by Holy Qur'an and Sunnah of upholding the dignity of man in general and preservation/protection of the Fundamental rights of working class in the society in particular.

Likewise the impugned sections 5, 6, 7, 8 and II of the Act cannot be held to be repugnant to the Injunctions of Islam, as these provisions have been incorporated therein with the object of abolition of bonded labour in all its forms and manifestations.

Federal Shariat Court, however, observed that the object for which the Act was passed could not be achieved so far. Almost every day reports about unlawful detention of labourers, working in different brick kilns along with their family members, for extracting forced labour from them, appear in the National press.

Perusal of the act would show that under section 9 the Provincial Government had been conferred powers to impose such duties on a District Magistrate (now District Nazim), as may be necessary to ensure that the provisions of the Act are properly enforced.

Likewise, under section 10 the District Magistrate/District Nazim and the officer designated by him have been held responsible for promotion of the welfare of the freed bonded labourer by securing and protecting his economic interests.

Section 15 provides for constitution of Vigilance Committees at District level comprising of elected representatives of the area, representatives of the District Administration, Bar Associations, Press, recognized Social Services and Labour Departments of the Federal and Provincial Governments.

It is unfortunate that so far no specified authority, (vide section 9) in any district in Pakistan has taken care to exercise its powers so as to alleviate the misery and torture being inflicted upon the brick kiln labourers by many owners, in their respective jurisdictions. Likewise, no Vigilance Committees have been formed anywhere in the country. This state of affairs is alarming, to say the least. It has immensely distressed the Court.

It is for the Government functionaries to ensure the due and purposeful enforcement of the Act, in its letter, and spirit, so that the menace of forced labour, rampant in brick kilns, and other similar establishments, all over the country, is checked and comprehensively exterminated.

A brick kiln squarely falls within the purview of "factory" vide section 20) of the Factories Act, 1934. Industrial Relations Ordinance, 1969 and West Pakistan (Standing Orders) Ordinance, 1968 are also attracted to such establishment. It is high time that all the brick kilns are duly registered as factories to enable the Labour Inspector to pay regular visits to them and take suitable action/measures, in accordance with the Labour Laws, to achieve the objective of banishment of practice of forced labour from this industry.

As late as in 2004 Bonded Labours Research Forum; in collaboration with the Ministry of Labour, Manpower and Overseas Pakistanis, Government of Pakistan and I.L.O. carried out assessment/study of bonded labour qua different sectors of life in Pakistan, inter alia, the brick kilns. Dr. Ali Ercelawn of Pakistan Institute of Labour and Research Forum did a commendable job in preparing a paper after thorough study of the problem, suggesting ways and means of curbing the pernicious practice of bonded labour in brick kilns and other similar segments of society. No action, so far, seems to have been taken on this report either. The statutory functionaries must realize their responsibility of enforcement of the mechanism as provided by the Act i.e. Bonded Labour System (Abolition) Act, 1992 and see to it that the desired results are achieved.

Federal Shariat Court directed that a copy of present judgment be forwarded to (i) Ministry of Law, Justice and Parliamentary Affairs; (ii) Ministry of Labour, Manpower and Overseas Pakistanis, Government of Pakistan, as well as to all the Provincial Governments in the Country.

Enforcement of Fundamental Rights re: Bonded Labour in Brick Kiln Industry 1989 SCMR 139; PLD 1990 SC 513; Messrs Shenoy and Co., Bangalore and others v. Commercial Tax Officer, Circle II, Bangalore and others AIR 1985 SC 621; Messrs Star Diamond Co. India v. Union of India and others AIR 1987 SC 179; National Bank of Pakistan v. Banking Tribunal and others PLD 1994 Kar. 358; M.Z. Khan v. Aziz-ud-Din Ahmad Khan 2004 YLR 84; 5:1; 29th Forced Labour Convention, 1930; Universal Declaration of Human Rights by United Nations on 10th December, 1948; Charter of the United Nations; 28:27; Sunan Al-Jami'a Tirmizi Chapter 29 Hadees No.1945 Publication, Egypt; Baihaqi, Vol.6, p.121 and Baihaqi al-Sunan al Kubra, Vol.6, P. 120

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

----Art. 189---Judgment of Supreme Court---Binding nature---Judgments of Supreme Court declaring the law on the subject cannot be called in question by a person or by a batch of persons though he/they might not be party to the judgment; even an obiter in a judgment by Supreme Court carries binding effect.

Messrs Shenoy and Co., Bangalore and others v. Commercial Tax Officer, Circle II, Bangalore and others AIR 1985 SC 621; Messrs Star Diamond Co. India v. Union of India and others AIR 1987 SC 179; National Bank of Pakistan v. Banking Tribunal and others PLD 1994 Kar. 358 and M.Z. Khan v. Aziz-ud-Din Ahmad Khan 2004 YLR 84 ref.

(c) Islamic jurisprudence-

----Dignity of labour in Islam.

28:27; Sunan Al-Jami'a Tirmizi Chapter 29 Hadees No. 1945 Publication, Egypt; Baihaqi, Vol.6, p.121 and Baihaqi al-Sunan al Kubra, Vol. P. 120

Irshad Ahmad Qureshi for Petitioners (in Sh.Ps. Nos.8/L, 6/L, 7/L, 9/L of 1993 and 36/L, 37/L of 1992).

S.M. Ayub Bukhari for Petitioner (in Sh. P. No.58/I of 1992). Irshad Ahmad Qureshi and Malik Rab Nawaz Noon for Petitioners (in Sh. P. No. 10/L of 1993.

Sardar Abdul Majeed for Federal Government (in Sh.P. No.9-L of 1993).

Amin-ud-Din Brazo, Addl.A.-G. Balochistan and Muhammad Shuaib Abbasi, for A.-G. Balochistan (in Sh.P. No.9-L of 1993).

Shafqat Munir Malik, Asstt. A.-G. for A.-G. Punjab (in Sh.P. No.9-L of 1993).

Muhammad Arshad Lodhi, A.A.-G. and Muhammad Shoaib Abbasi for A.-G. Sindh (in Sh.P. No.9-L of 1993).

Muhammad Sharif Janjua for A.-G., N.-W.F.P. (in Sh. P. No.9-L of 1993).

Miss Asma Jahangir: Amicus Curiae.

Zafarullah Khan for Pakistan Institute of Labour Education and Research.

Dates of hearing: 2nd November, 14th December, 2004, 22nd and 23rd February, 2005.

P L D 2006 Federal Shariat Court 26

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

Moulvi IQBAL HAIDER---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Law Justice and Parliamentary Affairs, Islamabad---Respondent

Shariat Petition No.9/I of 2005, decided on 15th December, 2005.

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S. 10(4)---Anti-Terrorism Act (XXVII of 1997), S.7---Constitution of Pakistan (1973), Arts. 203-D & 227---Repugnancy to Injunctions of Islam---Petitioner had challenged vires of S.10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 as well as S.7 of Anti-Terrorism Act, 1997, on the ground that those were repugnant to Injunctions of Qur'an and Sunnah; as those carried the sentence of death as 'Tazir' without keeping in view prescribed standard of Tazkiya-Tush-Shuhud---Petitioner had prayed that both S.10(4) of Offence of Zina (Enforcement of Hadood) Ordinance, 1979 and S.7, Anti-Terrorism Act, 1997 be declared as repugnant to Injunctions of Islam and prayed for suspension of sentence awarded under the said sections---Contentions raised by petitioner were devoid of force as Verses of Holy Qur'an quoted by him did not at all pertain to issue under consideration---Said Verses in no way dealt, by any stretch of imagination, with the question of compoundability of punishment awarded under 'Tazir' by a Court of law---Term 'Tazir' was used for punishment which was not fixed by Holy Qur'an and Sunnah and was left to discretion of Head of State, Majlis-e-Shoora or Qazi and was based on principles laid down by Holy Qur'an and Sunnah---In fact it was a penal punishment which was actually a reformative, deterrent and punitive measure for those offences for which no Hadd punishment had been laid down in Shariat---Such punishments were considered by Muslim jurists throughout, to be in harmony with Hadd as they aimed at correction and eradication of various criminal/moral acts or Social evils---Tazkiya-Tush-Shuhud, though desired, was not a mandatory requirement for cases wherein Tazir punishment was awarded---Courts were to determine credibility of witnesses and to properly appreciate evidence on record before awarding any punishment to accused---Petitioner could not make any specific reference to any Verse of Holy Qur'an nor could cite any judgment from Sunnah of Holy Prophet (peace be upon him) to support his contentions---Petition being not maintainable, was dismissed, in circumstances.

Muhammad Saleem and others v. The State 2005 SCMR 849; Amjad Javid v. The State 2002 SCMR 1247; Hamid v. The State 2003 SCMR 416; Abdul Salam v. The State 2000 SCMR 338; Riaz Ahmad v. The State PLJ 1990 SC 105; Ghulam Ali v. The State PLD 1986 SC 741; Sanaullah v. The State PLD 1991 FSC 186; Mumtaz Ahmad & another v. The State PLD 1990 FSC 38; Arshad Ali v. The State 1993 PCr.LJ 2540; Amjad Pervez v. The State 2004 YLR 1592 and Gul Bahar v. The State 2004 PCr.LJ 1394 ref.

(b) Criminal trial---

----Courts, while administering justice, should be well aware of the principle that no person was convicted on unreliable testimony---Courts have to take every precaution, which was humanly possible to consider and re-consider the facts of each case and while sifting grain from chaff, should very minutely go through evidence before' recording conviction and awarding sentence to any accused and particularly so in cases involving capital punishment---Such was always a question of fact and was followed invariably by the Courts in each and every case.

?

Muhammad Ali Bhatti for Petitioner.

Date of hearing: 13th December, 2005.

P L D 2006 High Court (AJ&K) 1

Before Syed Manzoor Hussain Gilani, C.J.

GENUINE RIGHTS COMMISSION through Munir Ahmed Farooqi, Advocate and others---Petitioners

Versus

FEDERAL GOVERNMENT through Chief Secretary, Islamabad and 11 others---Respondents

Writ Petitions Nos.547 and 563 of 2001, decided on 29th January, 2002.

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

----Sched. III, Item 14 & S.44---Constitution of Pakistan (1973), Art.1(2)(d)---Writ petition---State Bank of Pakistan controls the licensing policy of the Banks and once it issues a policy, it is applied to all the Banks wherever they are and does not need ratification or adaptation by the Azad Jammu and Kashmir Council as the Council only coordinates the business---Contention that Azad Kashmir is not a part of Pakistan, hence policy of State Bank of Pakistan does not apply in Azad Kashmir unless the Azad Jammu and Kashmir' Council adopts the same is devoid of force---Azad Kashmir is a territory included in Pakistan in view of Art.1(2)(d) of the Constitution of Pakistan and it cannot be said that the State Bank of Pakistan is a foreign Bank or that the Azad Kashmir is a foreign territory for Pakistan or vice-verse.

Raja Muhammad Hanif Khan and Ishfaq Hussain Kiani for Petitioners.

Raja Akram Khan and Khawaja Aslam Habib for Respondents.

P L D 2006 High Court (AJ&K) 5

Before Sardar Muhammad Nawaz Khan, J

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary, Muzaffarabad and 3 others---Appellants

Versus

Messrs AMEEN GENERAL ENTERPRISES through Managing Director, Muzaffarabad Azad Kashmir---Respondent

Civil Appeal No.41 of 2004, decided on 2nd March, 2006.

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

----Ss. 8, 30, 33, 39 & Sched. 1, R.2---Appointment of umpire---Objection against---Where the parties or the arbitrators were required to appoint an umpire and they failed to appoint him, any party could serve other party or arbitrators with a written notice to concur in the appointment---Court, in the present case, was found to have nominated even number of arbitrators, said arbitrators were required under R.2, Sched. 1 of Arbitration Act, 1940 to appoint umpire in not less than one month from the last date of their respective appointment, but they failed to do so---None of the parties served them with the notice to do the needful nor as required by subsection (c) of S.8 of Arbitration Act, 1940, any appointment of umpire was made by a party nor other party was asked to supply the vacancy---Subsection (2) of S.8 of Arbitration Act, 1940 indicated that in case notice was served by a party and the appointment of umpire was not made within 15 clear days, the Court would, on the application of the party who gave notice assume the jurisdiction to appoint the umpire after hearing other party---When parties to arbitration failed to comply with the legal requirement provided under S.8 of Arbitration Act, 1940 and no application was made to the Court for appointment of umpire, the Trial Court was not competent to appoint the umpire---No provisions existed in the Arbitration Act, 1940 empowering the Court to appoint the umpire during pendency of a suit, except S.8 of the Act---Appointment of umpire in present case by ignoring the legal requirement for its appointment was an act without jurisdiction on the part of the Trial Court---Appointment of umpire which had been made by the Court having no jurisdiction, was non-existent because it was found to have been made by an ab initio void order---Court could assume jurisdiction only on the application of the party who appointed umpire and ask the other party to concur in the appointment or supply the vacancy and the needful was not done within 15 days---Edifice raised on the strength of such a void order, could not be allowed to stand and award by the umpire was not valid award which could be made basis for rule of the Court---Objection regarding appointment of umpire raised before the trial Court having not prevailed, said objection could he allowed to be raised in appeal against final judgment because under law, appeal had been provided against final judgment of the Trial Court and all legal points could be raised at the time of appeal against final judgment---Question of appointment of umpire had rightly been raised before Appellate Court.

PLD 1952 Sindh 52; 1983 CLC 3273; PLD 2002 Kar. 457; 2000 CLC 388; 2004 PLC (C.S.) 843; 2000 YLR 253; PLD 2000 Lah. 314; 1998 SCMR 328; PLD 1983 SC 243; PLD 1967 SC 314; 1993 MLD 1303; 1985 CLC 721; PLD 1967 AJ&K 13; NLR 1983 752; PLD 1966 Dacca 54; PLD 1983 Kar. 601; AIR 1949 All. 399; 1978 DLR SC 21; 1971 DLC 335; PLD 1956 Lah. 494; PLD 1956 Lah. 444; AIR 1955 Punj. 240; PLD 1955 Sindh. 268; PLD 1956 Lah. 494; 1979 CLC 32; 1989 MLD 1487; PLD 1971 Kar. 292; AIR 1954 All. 673; AIR 1958 Cal. 415; MLR 1981 529; PLD 1956 Lah. 494; 1982 CLC 175; 2001 YLR 3398; 1988 SCMR 723; PLD 1985 SC AJ&K 1; PLD 1987 Kar. 575; PLD 1988 SC 39; PLD 1987 SC 393; PLD 1987 Kar. 429; 1989 CLC 885 and 1989 MLD 404 ref.

(b) Administration of justice---

----When a particular procedure was prescribed for doing a thing in a particular manner it should be done in that way alone.

1983 CLC 3273; PLD 2002 Kar. 457 and 2004 PLC (C.S.) 843 ref.

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

----Ss. 8, 30 & 39---Appointment of umpire---Award---Submission before umpire---Effect---When appointment of an umpire was made by a competent authority, though by violating the law on the subject and no party raised objection to his appointment and submitted to his jurisdiction, then such party could be estopped to question the validity of his award---When appointment had been made by incompetent Authority having no jurisdiction to do so, then mere submission of a party before umpire would not debar such party to challenge the validity of his award---Trial Court, in the present case, having no jurisdiction to appoint umpire, submission of appellants before umpire and participation in proceedings, would not cover the legal defect in the appointment of umpire---Umpire whose award had been made rule of the Court while suffering with an inherent legal defect in his appointment, it could not he said that case was not covered by S.30 of Arbitration Act, 1940---Award filed in the Court being an act performed by the umpire whose appointment was found to have been made without jurisdiction, it was a case of legal misconduct covered by S.30 of Arbitration Act, 1940---Such Award having wrongly been made rule of the Court, impugned judgment and decree was not maintainable and were set aside by the High Court and case was remanded to the Trial Court with direction to provide a further chance to the parties for, arbitration, accordingly.

PLD 1983 SC 243; PLD 1967 SC 314; 2000 YLR 253 and PLD 2000 Lah. 314 ref.

Raja Muhammad Hanif Khan and Sardar Abdus Sarni Khan for Appellants

Additional A.-G. for the Government.

Yaqoob Khan Mughal for Respondent.

P L D 2006 Karachi 1

Before Sabihuddin Ahmad C.J. and Zia Perwez, J

CAPITAL INDUSTRIAL ENTERPRISES (PVT.) LTD. through General Manager---Petitioner

Versus

GOVERNMENT OF SINDH through Chief Secretary and 3 others---Respondents

Constitutional Petition No.D-770 of 2005, decided on 28th July, 2005.

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

----Ss. 195 & 196(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Advertisement tax on moving publicity vehicle Petitioner, who was aggrieved by the order of Provincial Government claiming advertisement tax of moving publicity vehicle leviable under Advertisement and Signage Byelaws, 2003 framed by City District Government had contended that vehicles were only displaying the name of product manufactured by petitioner and their trade, name and material did not amount to advertisement and that vehicles being registered in Azad Kashmir, no tax was payable---Validity---Contention that vehicles being registered in Azad Kashmir, no tax was payable, was untenable as nothing was in the Byelaws stipulating that levy was only recoverable from vehicles registered within the territorial limits of City District Government---First contention of petitioner involved determination of a pure question of fact---Remedy of statutory appeal being available, Constitutional petition could not be entertained on that score---Petitioner had urged that no statutory rules pertaining to appeal had been framed under S.195 of Sindh' Local Government Ordinance, 2001---Contention was repelled because under S.196(2) of Sindh Local Government Ordinance, 2001 in absence of statutory rules, rules operative under repealed Sindh Local Government Ordinance, would continue to remain in force.

Syed Mukhtar Hussain Shirazi for Petitioner.

Manzoor Ahmed for Respondent No.2.

Ahmed Pirzada, A.A.-G.

P L D 2006 Karachi 3

Before Attaur Rehman and S. Ali Aslam Jafri, JJ

ZIAUL KARIM and 34 others---Petitioners

Versus

PROVINCE OF SINDH through Secretary, Revenue Department, Karachi and 3 others---Respondents

Constitutional Petition No.D-1548 of 2003, decided on 12th May, 2005.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Claim of petitioners was that they had acquired plot in question from a construction company and had also paid sale consideration, but subsequently they came to know that said construction company had no title to said plot and that it was Government land---Land in question admittedly was not owned by said construction company---Such activity by that company was carried on for many years right under the nose of official functionaries but they had not taken any notice thereof and let the company to cheat petitioners---Petitioners, on their part, while paying consideration to said company, had not entered into any inquiry as to title of said company in disputed property and it was one of many cases in which people like petitioners had been cheated and defrauded by Builders and construction companies and Government functionaries never took any action at the right time to save innocent citizen---High Court, however, being not in a position to grant any relief to petitioners through constitutional petition dismissed the petition with the observation that petitioners were at liberty to approach competent Court/Forum/Authority for redress of their grievance as permitted by law.

Syed Zaki Muhammad for Petitioners.

Manzoor Ahmad for Respondents.

Ahmed Pirzada, A.A.-G.

P L D 2006 Karachi 5

Before Sabihuddin Ahmed, C.J. and Muhammad Afzal Soomro, J

AHMAD HUSSAIN KHAN---Petitioner

Versus

GOVERNMENT OF SINDH through Chief Secretary, Karachi and 4 others---Respondents

Constitutional Petition No.D-804 of 2005, decided on 7th September, 2005.

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

----S. 195 & Sched.---Municipal Administration Ordinance (X of 1960), S.92---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Declaration of manufacture, sale, use of certain items as illegal---Petitioners were engaged in business of manufacture and sale of Ghutka' andPan Masala' purportedly under licence from Town Municipal Administration---City Nazim vide Notification declared that manufacture/sale/use and storage of goods manufactured by petitioners being harmful for human consumption, were illegal and unauthorized---Petitioners had challenged said notification in constitutional petition on the ground that it was beyond the purview of power available to City/District Government as dangerous and offensive trades could only be declared by the Provincial Government---Validity---While under Municipal Administration Ordinance; 1960 the power to declare trade to be dangerous or offensive vested solely in Provincial Government, but present dispensation conferred same concurrently on Provincial as well as Local Government---Contention of petitioners was repelled---Even otherwise licence of petitioners had expired before issuance of impugned notification and petitioners could not show whether any right arising from said licence continued to remain vested with petitioners.

Khalid Mehmood for Petitioners.

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

Manzoor Ahmed for C.D.G.K.

P L D 2006 Karachi 8

Before Sabihuddin Ahmed and Khilji Arif Hussain, JJ

CITY DISTRICT GOVERNMENT, KARACHI ---Petitioner

Versus

GOVERNMENT OF SINDH and others---Respondents

Constitutional- Petition No.D-2777 of 1992, decided on 17th February, 2005.

Land Acquisition Act (I of 1894)---

----Ss. 4 & 10---Constitution of Pakistan (1973), Art. 199-Constitutional petition---Acquisition of land---Allotment of plot before acquisition proceedings---Petitioner (City District Government) acquired 6,600 acres of land for the purpose of a Scheme---Subsequently an area of 163 acres was de-notified through notification which came to be vested in one of respondents (Provincial Government)---Another respondent claimed that plot of 4 acres out of de-notified area was allotted to him, but his claim had not been admitted by the petitioner---Yet another respondent was also allotted 4 acres of land by Provincial Government long before acquisition proceedings---Subsequently when process for acquisition of land commenced, said another respondent (allottee) facing threat of dispossession, moved the High Court seeking appropriate orders against respondent and City District Government and with the consent of parties it was agreed that an alternate plot and monetary compensation would be paid to said another respondent (allottee) and thereafter he would surrender possession in favour of the City District Government---By way of performance of terms of consent order City District Government allotted plot in question to the said another respondent (allottee), but when the (allottee) proceeded to obtain possession of plot it was found that same had already been allotted to somebody who was in possession thereof---Said another respondent (allottee) had recognized said persons' right of possession of plot earlier allotted to him only if an alternate plot was provided and monetary compensation was paid to him---City District Government was unable to deliver possession of plot which was claimed by the respondent (allottee)---City District Government's right and interest over earlier plot would continue to exist to the extent in the lease---Authorities could only lease out properties falling outside notified Scheme and possession of said another respondent (allottee) would not be disturbed, except in terms of the compromise.

Muhammad Anwar Tariq for Petitioner.

M.G. Dastgir for respondent No.5.

Ghulam Abbas Soomro for Respondent No. 10.

Manzoor Ahmad, Advocate.

Nemo for the Remaining Respondents.

P L D 2006 Karachi 10

Before Sabihuddin Ahmed, C.J. and Zia Perwez, J

SHAFIQUR REHMAN and others---Petitioners

Versus

GOVERNMENT OF SINDH through Chief Secretary and others---Respondents

Constitutional Petition No.D-1207 of 2004, decided on 11th July, 2005.

(a) Karachi Development Authority Order (V of 1957)---

----Arts. 51 & 52-A [as amended by Karachi Development Authority (Sindh. Amendment) Act (XXIII of 1994)]---Conversion of an amenity plot into commercial plot---Scope---Article 52-A(2)(3)(4) of Karachi Development Authority Order, 1957 as amended by Karachi Development Authority (Sindh Amendment) Act, 1994---Effect---Prior to such amendment, such conversion could be allowed after inviting public objections---Conversion of amenity plot was completely barred after such amendment and could not be made through amendment in zonal plan or by grant of specific permission---Authority could not violate mandate of statute by allotting a different number to an amenity plot---Lessee could not use amenity plot for commercial purpose even though expressly provided in lease, but lessee might recover damages from Authority/its officer for selling amenity plot on commercial rates or claim difference in cost of amenity plot and commercial plot---Principles.

Abdul Razzak v. Karachi Building Control Authority PLD 1994 SC 51.2 and Syed Mazhar Ali Gilani v. City District Government Karachi and others C. P. No. 1472 of 2003 rel.

Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223 distinguished.

(b) Estoppel-

----No estoppel could be pleaded against express requirements of law.

Junaid Ghaffar for Petitioners.

Ahmed Pirzada, Addl. A.-G. for the State.

Manzoor Ahmed for Respondent No.2.

Anwar Ali Shah for Respondents Nos. 3 and 4.

Muhammad Anwar Tariq for Respondents Nos. 5 and 6.

Date of hearing: 11th July, 2005.

P L D 2006 Karachi 14

Before Mushir Alam and Syed Zawwar Hussain Jaffery, JJ

AL-REHMAN FALAHI SOCIETY through General Secretary---Appellant

Versus

GOVERNMENT OF SINDH through Secretary, House and Town Planning, Karachi and another---Respondents

Constitutional Petition No.D-1567 of 1998 and Revision Application No. 156 of 2004, decided on 14th September, 2005.

Constitution of Pakistan (1973)---

----Art. 199---Civil Procedure Code (V of 1908), Ss.115 & 151---Constitutional petition---Miscellaneous application---Direction was issued by allowing Constitutional petition that respondent would deliver possession of plot in question to the petitioner/Society within 30 days---Revision against such order of High Court was pending adjudication---Pending revision against order of High Court, intervenor had filed application. under S.151, C.P.C. with a prayer that petitioner, after passing order by High Court, having raised illegal construction on amenity plot in question, direction for its demolition be issued---Revision being pending adjudication against order of High Court, ground urged by intervenor in his application with regard to construction over plot in question, could be considered in said revision petition---No substance being available to consider further ground raised by intervenor, application was dismissed.

Muhammad Hanif Kashmiri, Advocate

Manzoor Ahmed, Advocate

Ahmed Pirzada, Addl. A.-G.

Qari Muhammad Maqsoodullah, Intervenor (in person).

P L D 2006 Karachi 16

Before Attaur Rehman and S. Ali Aslam Jafri, JJ

HADI BUX MEMON through Attorney---Appellant

Versus

CITY DISTRICT GOVERNMENT, KARACHI and 5 others---Respondents

High Court Appeal No. 139 of 2005, decided on 31st May, 2005.

Civil Procedure Code (V of 1908)---

----O. XXIII, R.3---Law Reforms Ordinance (XII of 1972), S.3---Compromise in suit---High Court appeal---During pendency of suit filed by appellant, an application was filed by counsel for appellant praying therein that suit be decreed in terms of agreement/compromise arrived at between the parties---Said application was signed only by Advocate of the appellant and it did not bear the signatures of appellant or any of respondent or their duly authorized agents to enter into any such compromise---Said application having been rejected by Single Judge of High Court, appellant had filed High Court appeal against said rejection order---Validity---In order to allow application for compromise of suit under O.XXIII, R.3, C.P.C., satisfaction of the Court was necessary---"Satisfaction" was a relative term and would differ from case to case---Facts and circumstances of present case did not show that any compromise within meaning of O.XXIII, R.3, C.P.C. had ever taken place or materialized between the parties at any time---Suit in circumstances could not be disposed of without there being any consent recorded by respondents under the signatures of their duly authorized agents or functionaries as per law and rules, especially when respondents had denied execution of any such compromise.

M.A. Khan for Appellant.

P L D 2006 Karachi 20

Before Muhammad Mujeebullah Siddiqui, J

THE STATE through Director, Directorate General, Intelligence and Investigation, Customs and Excise, Karachi and another---Appellants

Versus

MUHAMMAD HAROON and 2 others---Respondents

Special Criminal Acquittal Appeal No.2 of 2005, decided on 3rd October, 2005.

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

----S. 156(1)(89)---Administration of justice---Burden of proof---No doubt under the Customs Act, 1969, a person found in possession of silver or gold is required to discharge the onus of proving that the same was obtained by lawful means and not by smuggling, but the initial burden is always, on the prosecution to show that the goods recovered from him were either smuggled or reasonable suspicion existed for holding the same as smuggled goods---Onus thereafter shifts to the accused to prove that the goods in his possession were acquired by lawful means.

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

------S. 156(1)(89)---Appeal against acquittal---No evidence whatsoever

was available on record to show that the silver recovered from the accused was either smuggled or could be reasonably 'suspected to be smuggled---Mere information that said silver was going to be smuggled without establishing the nexus of such information with the recovered silver, was not sufficient to raise a reasonable suspicion about the same having been smuggled, particularly when the said information had not disclosed any description of the silver or as to when and by whom it was struggled inside the country---Possession of any quantity of gold or silver in bullion or any shape, per se, was not an offence under any law in the country---Prosecution had failed to discharge the initial burden to show that the recovered silver was either smuggled one or could be reasonably suspected to be smuggled---Very strong evidence justifying interference in the judgments of acquittal by the Appellate Court was to be shown by the prosecution, as a double presumption of innocence had arisen in favour of accused after their acquittal, which was lacking in the case---Appeal against acquittal of accused was dismissed in circumstances.

(c) Criminal trial-

----Benefit of doubt---Where more than one possibilities appear in the case, then the possibility in favour of accused is always to be preferred, for the simple reason that benefit of doubt is never to be extended to the prosecution and is always given to the accused.

S.M. Aamir Naqvi for the Appellant/State.

A.M. Naqvi for Respondents.

Date of hearing: 3rd October, 2005.

P L D 2006 Karachi 25

Before Muhammad Mujeebullah Siddiqui, J

TARIQ IRSHAD and others.---Appellants

Versus

THE STATE and others---Respondents

Special Criminal Appeals Nos. 6, 8 and 9 of 2004, decided on 29th August, 2005.

(a) Interpretation of statutes---

-----Mandatory and directory nature of statute, ascertainment of---Principles ---Affirmative or negative character of the language in which the provision is couched has to be seen in this behalf---If the language is negative i.e., if the statute enacts that certain action shall be taken in a certain manner and in no other manner, the requirements are absolute and to neglect them will invalidate the whole procedure---If on the other hand the language is affirmative, the statute may be considered as directory in nature.

Atta Muhammad Qureshi v. Settlement Commissioner Lahore Division PLD 1971 SC 61 ref.

(b) Prevention of Smuggling Act (XII of 1977)---

-----Ss. 30, 31 & 32---Constitution of Pakistan (1973), Arts. 9 & 24---Administration of justice---Principles---Things should be done as they are required to be done or not at all---While dealing with the laws empowering to deprive a person of life, liberty and property, the mandatory requirements of law must be strictly adhered to, because such action is to be taken keeping in view Arts. 9 and 24 of the Constitution which provide that no person shall be deprived of life, liberty or property save in accordance with law.

Messrs Adnan Enterprises v. Anti-Narcotics Force Special Criminal Appeal No.32 of 1996 ref.

(c) Prevention of Smuggling Act (XII of 1977)---

----S. 31---Notice to person holding property suspected to be acquired by smuggling---"Reasonably suspected"---Interpretation---Every word used. by Legislature in the statute is to be assigned a meaning---When the Legislature has deemed fit to prefix the word suspected with expression ,reasonably" then it is incumbent on the Special Judge to ensure that the suspicion is not merely subjective but it is objective and the suspicion is substantiated with the material which appears to be reasonable.

(d) Prevention of Smuggling Act (XII of 1977)---

---Ss. 31 & 32---Notice issued by the Special Judge to the appellants under S.31 of the Prevention of Smuggling Act, 1977---Validity---Special Judge on having received information from the Inspector Assets, Anti-Norcotic Force, had on the same day issued notice to the appellants under S.31 of the Prevention of Smuggling Act, 1977, observing that the application containing information related to the allegations that during investigation by Anti-Narcotics Force, appellants were found to be involved in smuggling of narcotics over a period of time and had acquired property through that income---Special Judge had neither applied his judicial mind to the information, furnished to him, nor he had made any probe whether the property held by the persons complained against, was reasonably suspected to be acquired by smuggling---No reasons were recorded in writing by the Special Judge mentioning the material produced before him, on the basis whereof he had to believe the existence of sufficient ground for proceeding against the said persons---Use of the expression "sufficient ground" had further indicated the intention of the Legislature that the reasons to believe that the property had been acquired by smuggling should be based on sufficient ground's and not on mere information devoid of such grounds---Special Judge had issued the notice in a mechanical manner as if he was feeling himself bound to issue the said notice as soon as an application was submitted before him by an Anti-Narcotics Force Official---By acting in such manner Special Judge had abdicated himself of the jurisdiction and authority vested in him---Special Judge had not acted in a manner provided in law making the entire proceedings to be violative of the mandatory provisions of law, without jurisdiction and invalid---Notice issued under S.31 of the said Act and the entire proceedings in pursuance thereof culminating in the order passed under S.32 thereof were quashed in circumstances.

Messrs Adnan Enterprises v. Anti-Narcotics Force Special Criminal Appeal No.32 of 1996 and Atta Muhammad Qureshi v. Settlement Commissioner Lahore Division PLD 1971 SC 61 ref.

Ismat Mehdi for Appellant (in Special Criminal Appeal No.6 of 2004).

Sohail Muzaffar for Appellant (in Special Criminal Appeal No.8 of 2004).

S. Mehmood Alam Rizvi, Standing Counsel for the State.

S. Mehmood Alam Rizvi, Standing Counsel for the Appellant/State (in Special Criminal Appeal No.9 of 2004).

Sohail Muzaffar for Respondents.

Date of hearing: 29th August, 2005.

P L D 2006 Karachi 36

Before Sarmad Jalal Osmany and Amir Ham Muslim, JJ

Mst. SAMINA through Attorney---Petitioner

Versus

CITY DISTRICT GOVERNMENT, KARACHI through District Coordinate Officer, Karachi and 4 others---Respondents

Constitutional Petitions Nos.D-265, 266, 365 to 367 of 2004, heard on 23rd December, 2004.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Lease/allotment, cancellation of---Petitioners, who were sucessors-in-interest of original lessees/allottees, had impugned in their constitutional petitions order passed by District Officer (Revenue) by which entries in village Form VII in their favour were cancelled on the ground that such entries were erroneous as original leases/allotments in favour of their predecessors-in-interest were already cancelled by the then Deputy Commissioner---Petitioners had claimed that on their application, different leases were transferred in their favour by the then Mukhtiarkar and subsequent thereto on their approaching said Mukhtiarkar, mutation was effected in the record of rights in their favour, but entries kept in their favour were cancelled by District Officer (Revenue) on the ground that original lessees/allottees from whom petitioners claimed their interest were no more tenants of said land---Examination of record showed that entries kept by the then Mukhtiarkar were completely in violation of Revenue Law and said entries were kept without looking into the corresponding entries available in the record by which leases in favour of predecessors-in-interest of petitioners were already cancelled with red ink pursuant to orders of the then Deputy Commissioner---Such cancellation note against original entries was made by concerned officer, but despite said note at seven different places of corresponding entries, the Mukhtiarkar had kept fresh entries in favour of petitioner---Explanation of Mukhtiarkar that said seven entries which mentioned cancellation, did not appear on the day when entries in favour of petitioners were kept, was not plausible---Anti-Corruption Department was directed to initiate criminal proceedings against the Mukhtiarkar as well as against concerned Tapedars by lodging F.I.R.---Senior Member Board of Revenue or any other Authority in that regard, was also directed to immediately initiate disciplinary action against said Mukhtiarkar and concerned Tapedars---Constitutional petitions filed by petitioners, were dismissed---Petitioners could avail their remedy, if any, under Revenue Law.

Raza Muhammad Raza for Petitioners.

Abbas Ali, Addl. A.-G. for Government of Sindh.

Munawar Malik for Malir Development Project.

Manzoor Ahmed for C.D.G.K.

Date of hearing: 23rd December, 2004.

P L D 2006 Karachi 41

Before Anwar Zaheer Jamali, J

ABDUL SHAKOOR---Applicant

Versus

ABDUL AZIZ KHAN and 3 others---Respondents

Revision Application No. 195 of 2004, decided on 13th October, 2005.

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

----S. 42---Civil Procedure Code (V of 1908), S.115---Declaration of title---Locus standi---Identification of property---Concurrent findings of fact by the Courts below---Dispute between the parties revolved around number oaf properties allocated by different departments---Both the Courts below concurrently dismissed suit and appeal of plaintiff on the ground that plaintiff had no legal character or statuts over the disputed property regarding which declaration had been sought by him, therefore, suit was barred under S.42 of Specific Relief. Act, 1877--Validity---Plaintiff was occupying a portion of disputed property which was still available for transfer under the scheme framed for disposal of available properties under Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975---Possession of plaintiff over such area was not disputed by defendant and claim of plaintiff was supported by documents exhibited on record---For filing suit in respect of property in his possession plaintiff had legal character and legal right within the meaning of S.42 of Specific Relief Act, 1877, thus the, suit was maintainable---Both the Courts below while passing their respective judgments could not comprehend correct factual position as regards the difference between the house number/property number mentioned in the Permanent Transfer Deed by Settlement Authorities and corresponding city survey numbers which might or might not tally with each other---Oral evidence adduced by parties and documents on record disproved the defence taken by defendants, which was ill-founded, misconceived, mischievous and mala fide, moth on law and facts---Concurrent judgments and decrees passed by both the Courts below suffered from misreading of evidence and were set aside and the suit was decreed in favour of plaintiff---Revision was allowed in circumstances.

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

----Art. 72---Civil Procedure Code (V of 1908), S.115---Revision---Documentary evidence---Non-raising of any objection to such evidence---Effect---When at no stage of proceedings in suit, appeal or before High Court, authenticity and genuineness of documents had been questioned by any of the parties to litigation, no objection could be raised at the time of hearing of revision application and such documents could be looked into.

Rafiq Ahmed for Applicant.

S.A. Shaukat Naqvi for Respondents.

Nemo for Respondent No.4.

Date of hearing: 7th October, 2005.

P L D 2006 Karachi 58

Before Rahmat Hussain Jafferi, J

Mrs. UZMA AZIZ---Plaintiff

Versus

Mst. MARYAM (DORISLIONS) and others---Defendants

Suit No.929, C.M.As. Nos. 62, 88, 6289, 6627 of 2002; 2296, 2297, 117, 3432, 3422 and 3434 of 2004, decided on 29th August, 2005.

Civil Procedure Code (V of 1908)---

----O. V, R.7, O.VII, R. 14, O.VIII, O.XIII, Rr.1, 2 & O.XIV, R.1(5)---Sindh Chief Court Rules (O.S.) R.3---Extension of statutory period for filing of documents in evidence, legality of---Good cause under O.XIII, R.2, C.P.C.---Concept---Statutory requirements under C.P.C. for filing of documents in evidence ---In the present suit, in order to examine a certain question, it became necessary for the parties to lead evidence in support of their claims---Court ordered the parties to file the certificate of readiness, list of witnesses and documents within a period of 7 days---Objection of the defendant was that 7 days time for filing of documents could not be fixed as no time limit was mentioned under O.XIII, R.1, C.P.C. and asked for the extension of said time---Validity---Under the law the parties were required to file documents along with pleadings because under O.VII, R.14, C.P.C. the plaintiff was required to produce the document on which he sued---No corresponding provision exists in O.VIII, C.P.C. for producing the documents along with the written statement by the defendant, however, under O.V, R.7, C.P.C. the defendant was directed to appear, answer and produce all documents in his possession or power upon which he intended to rely in support of his case---If for any reason the parties did not file the documents at the initial stage then the law provided that the documents be filed on first hearing, as required under O.XIII, R.1, C.P.C.---Summons, in the present case were issued to the defendant either to settle the issues or for final disposal as required under O.V, R.5, C.P.C. and under O.VIII, R.1 , C.P.C. the defendant was required to file written statement on first hearing---Issues were to be framed on the first hearing, as required under 0.XIV, R.1(5), C.P.C.---If no documents were filed on the date of first hearing, then the parties could not produce the document or exhibit it in the evidence unless good cause' was shown within the meaning of O.XIII, R.2, C.P.C.---Any oral motion by the defendant for extension of time for producing the document could not be accepted because under R.3 of the Sindh Chief Court Rules, motions could be made orally in matters of routine or indulgence or in matters wholly within the discretion of the Court---Defendants, in the present case, for the extension of time were required to showa good cause'---Vested right had been created in favour of plaintiff which could not be disturbed without providing opportunity to him and passing appropriate order within meaning of 0.XIII, R.2, C.P.C.---If the time for filing, the list of documents was extended beyond the period of 7 days, then it might come in conflict with O.XVI, R.1, C.P.C.---For producing documents which were filed as required under O.V, R.7, O.VII, R.14 and O.XIII, R.1, C.P.C., the parties could adopt a legal course by invoking the provisions of O.XIII, R.2, C.P.C.

Fazle Ghani Khan for Plaintiff.

Mushtaq A. Memon for Defendants Nos. 1 and 2.

Yawar Farooqui for Defendants Nos. 3, 5 and 6.

P L D 2006 Karachi 63

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

ARDESHIR COWASJEE and 7 others---Petitioners

Versus

KARACHI BUILDING CONTROL AUTHORITY (KBCA) through Chief Controller of Buildings, Karachi and 3 others---Respondents

Constitutional Petition No.D-1100 of 2002, decided on 8th October, 2005.

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

----Preamble---Karachi Building and Town Planning Regulations, Preamble---Constitution of Pakistan (1973), Art.199---Constitutional petition---Locus standi---Petitioners were aggrieved of the construction being raised by respondent---Plea raised by respondent was that the petitioners did not have locus standi to file constitutional petition---Petitioners contended that they were residents of the locality and being citizens had a right to question unauthorized and illegal construction being raised in violation of rules and regulations as envisaged in Sindh Building Control Ordinance, 1979, and Karachi Building and Town Planning Regulations---Validity---Petitioners had the locus standi to file constitutional petition, and the same was maintainable.

Messrs Excell Builders and others v. Ardeshir Cowasjee and others 1999 SCMR 2089; Ardeshir cowasjee v. Karachi Building Control Authority and others 1999 SCMR 2883 and Ardeshir Cowasjee v. Multiline Associates Karachi and others PLD 1993 Kar. 237 ref.

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

----Preamble---Karachi Building and Town Planning Regulations, Preamble---Constitution of Pakistan (1973), Art.199---Constitutional petition---Unauthorized construction---Grievance of petitioners was that respondent was constructing commercial building over residential plot, in residential area in violation of rules and regulations---Plea raised by respondent was that the area where building in question was being constructed had been declared as commercial area and building was being constructed in accordance with approved construction plan---Validity---Subject plot was commercialized after observing all usual formalities and permission was granted for construction as per approved plan ---bi view of the decision of City Council approving the commercial status of four major roads including the one on which the subject plot was located, the same was within the competence of City Council---High Court directed Karachi Building Control Authority to critically examine the construction raised or being raised to find out whether the same was in accordance with the approved plan, and deviations, if any, being not regularizable, would be removed/demolished by competent authorities---Constitutional petition was dismissed in circumstances.

State v. Mazharul Haq 1998 MLD 1264; Shehla Zia v. WAPDA PLD 1994 SC 693; State v. Abdullah Shah 1998 MLD 216; P.M.A. v. Government of Sindh 1979 CLC 382; Al-Shafique Housing Society v. PMA PLD 1992 SC 113 and Ramesh M. Udeshi v. The State PLD 2003 Kar. 423 ref.

Irfan and 7 others v. K.B.C.A. and 5 others 2005 CLC 694 fol.

Naimur Rehman and Rizwana Ismail for Petitioners.

Asim Manzoor Khan for Respondent No. 1.

Abbas Ali, A.A.-G. for RespondentNo.2.

Manzoor Ahmed for Respondent No.3.

Munir A. Malik and Faisal Kamal for Respondent No.4.

Dates of hearing: 25th, 26th November, 1st and 3rd December, 2004.

P L D 2006 Karachi 74

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

JEHANGIR---Petitioner

Versus

GOVERNMENT OF SINDH through Secretary, Local Government of Sindh and 3 others---Respondents

Constitutional Petition No.D-733 of 2004, decided on 9th February, 2005.

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

----S. 191---Constitution of Pakistan (1973), Art.199---Constitutional petition---Framing of Rules---Non-publication of proposed rules---Right of hearing of objector---Petitioner assailed vires of Rules on the ground that neither they were publicized nor opportunity of hearing was given to him, as he had filed objections with regard to proposed Rules---Validity---Publicizing proposed rules through print or electronic media or to be sent to Nazims of Union Councils concerned, was neither required under S.191 of Sindh Local Government Ordinance, 2001, nor under. any provision of any other law---Personal hearing of objector was also not required under S.191 of Sindh Local Government Ordinance, 2001, with regard to objections filed by any person---Non­ consideration of objections/suggestions per se would not render promulgation of rules illegal or without authority.

(b) Interpretation of statutes---

----Rules, framing of---Principles---Rules made under statute must be consistent with the statute under which they are made---Such rule's cannot repeal or contradict express provisions of the statute, from which they derive their authority---If rules framed under a statute are in excess of the provisions of such statute or are in contravention of or inconsistent therewith, or are repugnant to any well-established principles of statute, such rules must be regarded as ultra vires of the statute and cannot be given effect to.

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

---Ss. 24, 47 & 62---Sindh Local Government (Election Authority) Rules, 2004, R.19---Constitution of Pakistan (1973), Art. 199---Constitutional petition ---Vires of Rules---Replacement of Nazim or Naib Nazim---Procedure---Election Authority, jurisdiction of---Petitioner being Nazim of union council contended that Election Authority did not have any jurisdiction to restrain him from performing his functions---Validity---Under no circumstances, Sindh Local Government Ordinance, 2001, allowed replacement of Nazim or Naib Nazim by Government functionary and in all events, functions of Nazim or Naib Nazim were to be discharged by the elected representative as provided for by the Ordinance itself---Nazim or Naib Nazim being elected person could not cease to hold office unless a recall motion was voted upon and passed by councils/houses as provided for---Conferring discretionary powers on Election Authority of restraining Nazim from performing his functions as such was ultra vires of the purpose, spirit and specific provisions of Sindh Local Government Ordinance, 2001---Such powers were not conferred upon Election Authority, by Sindh Local Government Ordinance, 2001, itself and the same were derogatory to the exercise of power of the public representative---Provision of R.19 of Sindh Local Government Election Rules, 2004, was beyond the mandate of law, and repugnant to and violative of the various provisions thereof---Mechanism and scheme prescribed by Sindh Local Government Ordinance, 2001, for recall of a Nazim or Naib Nazim, except in case of external recall of Zila Nazim, required such recall motion to be approved by two houses/councils before the same could be put into effect---Such provision of R.19 of Sindh Local Government Election Rules, 2004, was oppressive and arbitrary and was against settled democratic norms and was ultra vires of Sindh Local Government Ordinance, 2001---Constitutional petition was allowed accordingly.

Khawaja Ahmed Hussain v. Government of Punjab and others PLD 2004 SC 694 fol.

Khalid Shah, Advocate.

Jhamat Jethanand, Advocate.

Ali Sher Habibani, Advocate.

Kamal Azfar, Advocate.

Rasheed A. Razvi, Advocate.

Anwar Mansoor Khan, Advocate-General.

Date of hearing: 24th December, 2004.

P L D 2006 Karachi 82

Before Mushir Alam and Gulzar Ahmad, JJ

MUHAMMAD RAHEEL SARWAR and 5 others---Petitioners

Versus

UNIVERSITY OF SINDH, JAMSHORO through REGISTRAR and 3 others---Respondents

Constitutional Petition No.397 of 2002 and C.Ps. Nos. D-89 and 90 of 2003, decided on 22nd December, 2003.

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

----Art. 199---Constitutional petition---Educational institutions---Good governance---De-affiliation of medical college---Private medical college affiliated with University gave admission to petitioners for M.B.,B.S. classes---Petitioners were registered with University and after they had passed their first professional examination, the University de-affiliated the college---Grievance of petitioners was that the University or Pakistan Medical and Dental Council did not notify or warn public generally or petitioners particularly, advising not to obtain admission in that private medical college---Authorities had no objection to admission of petitioners in any other private medical college, institute or University---Effect---Recurrence of similar episode, in different parts of country was a bitter taste both for the Government as well as for those affected---Slackness and indifferent attitude of State functionaries to attend and remedy the malady promptly reflected adversely to the working of the Executive and Legislative machinery of the State---High Court observed that it was sad that the State functionaries did not learn lesson from past; such functionaries woke up either, when much water had flown or situation slipped out of their hands---Neither any executive decision was taken nor, appropriate and remedial legislative measures were adopted at appropriate time---Large number of undesired litigation could be avoided, if fair executive decisions were taken promptly and law was amended at the right time when the flaw was encountered---No objection having been taken on behalf of the University and Pakistan Medical and Dental Council, High Court directed the authorities that the students of the defunct private medical college enrolled with the University, if approached the University or for that matter to the Council, it would issue necessary `No objection Certificate' within seven days from the date of such application---High Court directed Ministry of Law to examine various statutes, whereunder charters were given to any University or institution, both in public and private sector either through Provincial or Federal Legislature and that Ministry of Law to sponsor such legislative measures, that might provide remedy for the malady and that might provide remedy to the students in the event any college or institution was de-affiliated by the chartered University or the chartered institute---High Court also directed Ministry of Law to also examine and provide regulatory mechanism or check on authority of any chartered institution or University to give provisional affiliation, as such authority was often misused---Petition was allowed accordingly.

(b) Educational institution---

----Chartered University/Institute---Rights of students enrolled---De-affiliation of any college/institution---Once any??????????? chartered University/ Institute enrolls a student admitted in any of its affiliated colleges, such student, for all practical purposes is the student of such chartered university/institution---In the event, any of the colleges/ institutions is de-affiliated for any reasons, then student having been enrolled by the chartered University as well, must be accommodated in any of its affiliated institutions.

?

Syed Kabeer Mahmood and S.A. Ghaffar for Petitioners (in C.P.No.D-89 of 2003).

S.A. Ghaffar, Kh. Naveed Ahmad and Muhammad Ibrahim A. Soomro for Petitioners (in C. P. No. D-90 of 2003).

Kishan Chand Lachmandas for Respondent No. 1.

Muhammad Zafar Alam and Kamal-ud-Din for Respondents (in C.Ps. Nos.D-89 and D-90 of 2003).

Nemo for Respondent No.3.

Date of hearing: 17th November, 2003.

P L D 2006 Karachi 88

Before Muhammad Mujeebullah Siddiqui, J

MUHAMMAD RAMZAN and 2 others---Applicants

Versus

GOVERNMENT OF SINDH through District Officer (Revenue), Nawabshah and 3 others---Respondents

R. A. No. 24 of 2001, decided on 18th April, 2005.

Sindh Public Property (Removal of Encroachment) Act (V of 1975)---

---- Ss.3, 4, 11 & 12---Civil Procedure Code (V of 1908), O.VII, R.11---Constitution of Pakistan (1973), Art.199---Rejecting of plaint---Jurisdiction of Civil Court, bar of---Non-availability of Tribunal---Notice issued by authorities for removal of encroachment was assailed by plaintiff in civil suit---Trial Court rejected the plaint under O.VII, R.11 C.P.C., in view of the bar contained in S.11 of Sindh Public Property (Removal of Encroachment) Act, 1975---Order passed by Trial Court was maintained by Appellate Court---Contention of the plaintiff was that at the time of filing of suit there was no Tribunal as provided in proviso to S.11 of Sindh Public Property (Removal of Encroachment) Act, 1975, therefore, notice for removal of encroachment was assailed before Civil Court---Validity---Even if the contention of plaintiff was correct that at relevant time no Tribunal was constituted, it would not confer jurisdiction on Civil Court, which was otherwise barred under S.11 of Sindh Public Property (Removal of Encroachment) Act, 1975---If no forum was available to an aggrieved person and the jurisdiction of Civil Court was barred under the law, then the absence of forum would not have the effect of conferring jurisdiction on a Civil Court---Aggrieved person in such circumstances could approach High Court invoking constitutional jurisdiction, which clearly provided that if no remedy was available to a person, such person could approach High Court under Art.199 of the Constitution---Conclusion of the two Courts below that jurisdiction of Civil Court was barred, was not open to any exception---High Court declined to interfere with the orders passed by two Courts below---Revision was dismissed in circumstances.

Jhamat Jethanand for Applicants Nos. 1 to 3.

Masood A. Noorani, Addl. A.-G. Sindh. for Respondents Nos. 1 to 3.

Ghulam Shabbir Memon for Respondent No.4.

Date of hearing: 18th April, 2005

P L D 2006 Karachi 93

Before Muhammad Mujeebullah Siddiqui and Muhammad Moosa K. Leghari, JJ

MUHAMMAD YAMIN KHAN---Petitioner

Versus

GOVERNMENT OF PAKISTAN through CHAIRMAN MINISTRY OF RAILWAY, ISLAMABAD and 3 others---Respondents

Constitutional Petition No.D-280 of 2004, decided on 21st April, 2005.

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

----Arts. 2, 2A, 14 & 199---Constitutional jurisdiction of High Court---Scope---Dignity of man---Respectable livelihood, providing of---Petitioner being disabled person sought intervention of High Court to get him allotted a vending stall at railway station, against disabled quota---Contention of authorities was that there was no disabled quota for allotment of vending stalls---Validity---By virtue of various provisions contained in the Constitution, High Court could exercise its discretion for providing means of respectable livelihood to petitioner and save him from the ignominy and indignity of resorting to begging---If any department had failed to device a policy for disabled persons, High Court, which was saddled with responsibility of getting the principles contained in the Constitution enforced and protect the rights of citizen. in accordance with social justice as enunciated in the Holy Qur'an and Sunnah, was duty bound to exercise constitutional jurisdiction and issue a suitable writ in such behalf---Petitioner being disabled person, if, he was asked to compete with other wealthy persons it would amount to negation of his right to earn his livelihood in a respectable manner and would amount to compel him to resort to begging---As such the same would be violative of the provisions contained in Arts. 14"and 2A of the Constitution---High Court directed the authorities to issue allotment order/licence in favour of petitioner at the railway station---High Court recommended the authorities to take a policy decision and provide a quota for disabled persons so that all such persons in the country could earn their livelihood in a respectable manner---Petition was allowed accordingly.

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

---- Arts. 2, 2A & 14---Social justice---Dignity of man---Providing means of livelihood---Duty of State---Scope---Pakistan is Islamic State and the Constitution enjoins upon the State to observe the principles of social justice as enunciated by Islam and it is one of the basic duty of an Islamic State to help and provide sufficient means to every citizen to earn his livelihood in respectable manner---Begging is prohibited in Islam and, therefore, nobody should be put in a situation that he should have no option but to resort to begging to keep his two ends meet---Begging is violative of the dignity of a man and under Art. 14 of the Constitution, the dignity of man is to be protected, which is inviolable.

Jhamat Jethanand for Petitioner.

Muhammad Hussain Daudani for Respondent No.4.

Date of hearing: 21st April, 2005.

P L D 2006 Karachi 98

Before Anwar Zaheer Jamali, J

Dr. HASAN MAHFUZ JALISI---Plaintiff

Versus

KHAWAJA MOINUDDIN and 2 others---Defendants

Suit No.1148 of 2003, C.M.As. Nos.1211 of 2005 and 6571 of 2004, decided on 21st November, 2005.

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

----O. VI, R. 17---Specific Relief Act (I of 1877), S.12---Amendment of pleadings---Scope---Provisions of O.VI,R.17, C.P.C. which have been provided to enable a party to seek amendments in the pleadings, are to be applied liberally to meet the ends of justice, but at the same time such amendments cannot be allowed, which are mala fide, or will change the whole nature and character of the suit to the prejudice of the opposite party---Once the plaintiff has given up the relief of specific performance with reference to the agreement to sell, by way of allowing the proposed amendments in the pleadings, he cannot be permitted to set up an absolutely inconsistent case in his plaint, which will totally change the nature of the suit.

Ardeshir H. Mama v. Flora Sassoon AIR 1928 PC 208; K.S. Sundaramayyar v. K. Jagadeesan AIR 1965 Mad. 85; Anwar Ali Khan v. A. Sattar Abu Bakar PLD 1968 Kar. 154 and Shama Enterprises (Pvt) Ltd. v. Malik Ghulam Sarwar 1989 MLD 21 ref.

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

----O. I, R. 10(2) & S.151---Specific Relief Act (I of 1877), S.12---Suit for specific performance---Application for joining a person as defendant in the suit on the ground that during the pendency of the suit said person had purchased suit property from the defendants, and thus his presence in the proceedings of the suit was necessary---Validity---Held, joining of proposed defendant would have been relevant and material in case the plaintiff had sought the relief of specific performance of agreement of sale---Plaintiff having filed the suit only for seeking refund of his earnest money from the defendants and damages, no case for joining of subsequent purchaser of suit property/proposed defendant as party in the suit, was made out.

Khurshid A. Hashmi for Plaintiff.

Kamal Azfar for Defendants Nos. 1 and 2.

Salahuddin Ahmed for the proposed Defendant.

P L D 2006 Karachi 105

Before Muhammad Mujeebullah Siddiqui, J

ABDUL GHAFOOR---Applicant

Versus

MUHAMMAD ISMAIL and 2 others---Respondents

Criminal Revision Application No.27 of 2003, decided on 28th March, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 200, 202 & 439---Summoning of accused at preliminary inquiry stage---Grievance of complainant was that Trial Court issued notice to accused persons at the time when the complaint was at preliminary inquiry stage---Validity---Court had to consider whether a prima facie case was made out or not---Merely on the basis of statement of complainant under S.200, Cr.P.C. and statement of witnesses under S.202, Cr.P.C. if any inquiry was ordered or on the basis of investigation to be made by any Justice of Peace or by police officer or by such other person-as the Court could think it fit, same shall be done for the purpose of ascertaining truth or falsehood of complaint, without calling accused persons---Contention of accused persons could be heard after issuance of process and summoning of accused persons and not before issuance of the process---Order of summoning accused persons suffered from illegality and the same was set aside---Case was remanded to Trial Court with direction that Trial Court should afford full opportunity to the complainant to bring entire material on record, without issuing any notice to accused persons---High Court directed the Trial Court to issue process to accused only if a prima facie case was made out---Revision was allowed in circumstances.

M. Nawaz v. Ghulam Asghar and others 2001 YLR 1269 and Azmat Bibi and another v. Asifa Riaz and 3 others PLD 2002 SC 687 rel.

S. Madad Ali Shah for Appellant.

Allah Bachayo Soomro for Respondents.

Rasheed Ahmed Qureshi, Asstt. A.-G. for Respondent No.4.

Date of hearing: 28th March, 2005.

P L D 2006 Karachi 108

Before Gulzar Ahmed, J

MUHAMMAD KAMRAN KHAN through Attorney---Plaintiff

Versus

F.N.E. DINSHAW TRUST through Trustees and others---Defendants

Suit No.1121 and C.M.A. No.6166 of 2004, decided on 24th October, 2005.

(a) Trusts Act (II of 1882)---

---Ss. 48, 36, 37, 38, 39 & 17---Power of trustee to convey property-- Scope---In order to convey or dispose of the property, the trustee has to be empowered to sell the trust property, which power has to be derived from the Trusts Act, 1882 and the instrument of trust i.e. trust deed---Trusts Act, 1882 has no provision which empowers a trustee to sell trust property-Trusts Act, 1882, itself provides that it is the instrument of trust that will govern the affairs of the Trust and its properties---Where the trust deed specifically provided that it would be lawful for the trustees to sell or dispose of the trust properties or any of them and to give effectual receipt for purchase money, it empowered all the trustees jointly to sell or dispose of the trust property and give effectual receipt for purchase money---Provision of S.48, Trusts Act, 1882, in circumstances, would have application to the case which provided that where there were more trustees than one, all must join in the execution of the trust, except where the instrument of trust otherwise provided---Principles.

I.L. Janakirama Iyer and others v. P.M. Nilakanta Iyer and others AIR 1962 SC 633 fol.

Sripada Satyanarayana Sarma v. Ravikanti Venkataramamurithy and others AIR 1935 Mad. 454 and Messrs Canal Breeze Cooperative Housing Soceity Limited v. Agricultural and Transport Development Corporation (Pvt.) Limited 2000 SCMR 506 distinguished.

Muhammad Matin v. Mrs. Dino Manekji Chinoy and others PLD 1983 Kar. 387; Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin PLD 1983 SC 693; Bashir Ahmed v. Muhammad Yousuf 1983 SCMR 183, Manzoor Ahmed v. Hamid Shah Gilani 1997 SCMR 1443; Ferozuddin v. Tien Ying Lee 1987 MLD 2035; Jamil Ahmad v. Provincial Government of West Pakistan PLD 1982 Lah. 49; Obaidullah v. Habiabullah PLD 1997 SC 835; Gajendra Naith Dey v. Moulvi Ashraf Hossain AIR 1923 Cal. 130; Messrs Canal Breeze Cooperative Housing Society Limited v. Agricultural and Transport Development Corporation (Pvt.) Ltd. 2000 SCMR 506; Muhammad Aslam v. Muhammad Khan 1999 SCMR 2267; Jam Pari v. Muhammad Abdullah 1992 SCMR 786; Gohar Rehman v. Liaqat Ali 1991 SCMR 305; Mrs. M.N. Arshad v. Miss Naeema Khan PLD 1990 SC 612; Hussain A. Haroon v. Mrs. Laila Sarfaraz SBLR 2003 Sindh 57; Nalmani Poricha v. Appanna Poricha AIR 1936 Mad. 14; Mobinul Haq Siddigi v. Mrs. Hajra Farooqi PLD 1986 Kar. 358 and Bai Dosabai v. Mathurdas Govinddas AIR 1980 SC 1334 ref.

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

----O. XXXIX, Rr. 1 & 2---Trusts Act (II of 1882), S.48---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Application under O.XXXIX, Rr. 1 & 2, C.P.C.---Private trust property---Trustees of the property were required to execute the sale agreement but they had altogether denied the execution of alleged agreement to sell---Plaintiff's task in such a situation became more onerous than just relying upon the doctrine of indoor management and even if said doctrine was applied to the case, plaintiff had to show, prima facie that the agreement was executed by the trust/trustees according to S.48, Trusts Act, 1882 which he had failed to establish---Application of plaintiff for grant of injunction was dismissed in circumstances.

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

----O. VII, R.7---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell trust property---Creation of an obligation annexed to the ownership of the property in dispute---Scope---Record showed that plaintiff or his father was a tenant of one shop in the property in question---Plaintiff had not been able to establish prima facie that there was an agreement to sell the said property in his favour---In order to claim some interest in the said property, plaintiff in the first place had to show that there was some material on the record which gave him right to acquire some interest in the property---No such material having been shown or pointed out, alleged agreement was nothing but an abstract.

Rasheed A. Razvi for Plaintiff.

Khalid Anwar for Defendants Nos. 1(a), (b) & 3.

Mustufa Lakhani for Defendant No.2.

Date of hearing: 19th October, 2005.

P L D 2006 Karachi 122

Before Muhammad Mujeebullah Siddiqui, J

Mst. LEELA---Petitioner

Versus

Mst. RAZIA GILL and 2 others---Respondents

Constitutional Petition No.S-604 of 2002, decided on 28th November, 2005.

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

----S.15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant---Relationship of landlord and tenant---Determination---Tenant contented that she had purchased the premises during her tenancy, thus denied relationship of landlord and tenant---Tenant had filed suit for declaration of title, while landlord filed suit for cancellation of agreement to sell on the basis of which tenant claimed to be the owner of the premises---Rent Controller dismissed ejectment application being not maintainable in view of pendency of declaratory suit before the Civil Court---Order passed by Rent Controller was maintained by Appellate Court---Plea raised by landlord was that suit filed by tenant had been dismissed and the question pertaining to title had been decided by the original Court in favour of landlord, which issue was pending before Appellate Court---Validity---Even if the Rent Controller was of the view that it was not possible to decide the question of relationship of landlord and tenant between the parties, at the most the proceedings could be kept in abeyance and the landlord could not be non­ suited---High Court set aside the orders passed by Rent Controller and Appellate Court and remanded the case to Rent Controller---High Court directed the Rent Controller to afford opportunity to both the parties to lead evidence on the point of relationship of landlord and tenant between the parties and if, after giving opportunity to both the parties and recording of evidence, Rent Controller would feel that it was not possible to decide the question pertaining to relationship of landlord and tenant between the parties without decision of civil Court, the matter might be kept in abeyance till the appeal was finally decided by Appellate Court ---Petition was allowed accordingly.

Iqbal v. Mst. Rabia Bibi PLD 1991 SC 242; Abdul Hameed Naz v. Mst. Razia Begum Awan 1991 SCMR 1376; Province of Punjab v. Abdul Ghani PLD 1985 SC 1 and Rehmatullah v. Ali Ahmed 1983 SCMR 1064 ref.

Iqbal Quadri for Petitioner.

M.Akbar Awan for Respondents.

Date of hearing: 28th November, 2005.

P L D 2006 Karachi 126

Before Muhammad Mujeebullah Siddiqui and Khilji Arif Hussain, JJ

Messrs EMIRATES AIRLINES---Appellant

Versus

Dr. Prof. HAROON AHMED and 3 others---Respondents

High Court Appeal No.90 of 2004, decided on 19th October, 2005.

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

----Ss. 3 & 5---Limitation---Condonation of delay---Expression sufficient cause'---Applicability---Law gives exemption under S.5 of Limitation Act, 1908, to the party who, for sufficient cause, could not approach Court within the time fixed by law and being an exception clause, the same has to be construed liberally---Expressionsufficient cause' used in S.5 of Limitation Act, 1908, should be given liberal construction so as to advance substantial justice---Such discretion has to be exercised judicially and not arbitrarily---Every suit instituted, appeal preferred and application made after the period of limitation prescribed therefor by the First Sched. of the Act has to be dismissed even if limitation has not been set up as defence---Party seeking indulgence of Court for condonation of delay has to explain satisfactorily each and every day of delay and further that the delay has been caused by the reason beyond his control.

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

----S. 12---Period of limitation---Computation---Time starts to run from the date of preparation of decree and till the copy delivered has to be excluded, while computing the period for filing appeal.

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

----Ss. 5 & 12---Sindh Civil Courts Rules (O.S.), R.162---Sindh Chief Court Rules, R.185---High Court appeal---Limitation---Condonation of delay---Sufficient cause---Matter under consideration before higher authority---Suit for damages and compensation was filed before High Court, in its original civil jurisdiction, which was decreed in favour of plaintiff---Judgment and decree against defendant was passed on 3-3-2004, application for certified copy of judgment and decree was filed on 4-4-2004, copies were made and delivered to appellant on 17-4-2004 and appeal was filed on 8-5-2004---Defendant also filed,. application for condonation of delay along with the appeal, on the grounds that the matter was under consideration before higher authority---Validity---Judge when signing the decree, under R.162 of Sindh Civil Court Rules (O.S.), like R.185 of Sindh Chief Court Rules, wrote below his signature also the date, month and year on which the decree was actually signed by him; accordingly time started to run for the purposes of limitation against the defendant from the date of signing of the decree---Defendant failed to give any explanation, for not filing appeal within the prescribed period of time after receiving certified copy of judgment and decree except that the matter was under consideration before the higher authority of the defendant---Merely because the matter remained under examination before the higher authority, same was not a valid ground for extension of period of limitation---High Court declined to condone the delay in filing of appeal---Appeal was dismissed accordingly.

Muhammad Bashir and another v. Province of Punjab 2003 SCMR 83; Managing Director Sui Southern Gas Company v. Ghulam Abbas and others PLD 2003 SC 724; Haji Hussain Haji Dawood and others v. M. Y. Khrati 2002 SCMR 343; Muhammad Shafi v. Muhammad Hussain 2001 SCMR 827; CGM (Compagine General Maritime) v. Hussain Akbar 2002 CLD 1528; Town Committee Kot Abdul Malik District Sheikhupura v. Province of Punjab 2001 YLR 1032 and Jinnah Sports Club (Regd.) v. Pakistan Cricket Board 2000 CLC 1790 ref.

Commissioner of Income Tax v. Rais Pir Ahmad Khan 1981 SCMR 37 rel.

Mahmud Alam for Appellant.

Akhtar Hussain and Khalid Rehman for Respondents.

Date of hearing: 19th October, 2005.

P L D 2006 Karachi 131

Before Muhammad Mujeebullah Siddiqui, J

Khawaja JAMAL YOUSUF---Applicant

Versus

THE STATE---Respondent

Special Criminal Bail Application No.66 of 2005, decided on 5th December, 2005.

(a) Foreign Exchange (Temporary Restrictions) Act (IV of 1998)---

----S. 2---Criminal Procedure Code (V of 1898), S.497(2)---Bail, grant

of---Case of further inquiry---Principles---Vires of statutory provisions---

' Accused was arrested on the allegation of smuggling foreign currency which was recovered from him---Plea raised by accused was that provision of S.2 of Foreign Exchange (Temporary Restrictions) Act, 1998, was ultra vires the Constitution, hence the case was of further inquiry---Validity--- Accused did not raise the plea that he possessed any prior permission of State Bank of Pakistan for taking foreign currency out of Pakistan---In order to attract the provision contained in S.497 (2) Cr.P.C., the condition precedent was that there should be sufficient material for coming to the finding that there were no reasonable grounds for believing that accused had committed a non-bailable offence---Plea of further inquiry, under S.497(2) Cr.P.C. was the most misinterpreted and misapplied provision in Criminal Procedure Code, 1898, which was not meant for benefit, of accused but to give a concession to prosecution, because ordinarily when there were no reasonable grounds for believing that accused person had committed a non-bailable offence, he should be let off---Legislature had provided that if at the same time the prosecution was able to show that there were sufficient grounds for further inquiry, which might subsequently lead to discovering of material implicating accused person, then pending such inquiry, the accused might be released on bail or on execution of bond only, instead of being finally absolved of the charge---Such further inquiry was confined to the facts and could not be stretched to challenge the vires of statutory provision---Vires of statutory provision could be challenged through Constitutional petition and not while arguing a bail application---Even on fact the finer points were not to be considered which had to be left to be decided by Trial Court---Bail was disallowed in circumstances.

Agha Faqir Muhammad v. Federal Government of Pakistan 2000 MLD 1576 distinguished.

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

----S. 497---Bail, grant of---Benefit of doubt---Applicability---Bail application is to be decided on tentative assessment only and not by deeper appreciation of facts or law---No doubt accused person is entitled to benefit of doubt at bail stage also but a doubt should be shown to exist on a cursory reading of evidence or law which can be discerned by tentative assessment of the material on record.

Sohail Muzaffar for the Applicant.

Mehmood Alam Rizvi, Standing Counsel for the State.

Date of hearing: 5th December, 2005.

P L D 2006 Karachi 139

Before Mrs. Qaiser Iqbal, J

Mst. DURDANA and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.380 and Criminal Jail Appeals Nos.493 and 494 of 2004, decided on 21st November, 2005.

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

---S. 341---Procedure where accused does not understand proceedings---Pre-requisite---Trial Court before proceeding with the trial of such accused is under an obligation to record a finding that the accused being deaf and dumb could not be made to understand the proceedings and to forward the record to High Court after his conviction with a report of the circumstances of the case.

State v. Pervez Iqbal 1984 PCr.LJ 748; Allah Dia v. Emperor (AIR 1929 Lah. 840); Emperor v. Ganga (AIR 1930 Lah. 64); Isso v. Emperor (AIR 1943 Sind 237); Peetha's case (AIR 1959 Kerala 165) and State v. Mookamma Yellamma and another (AIR 1964 Mys. 182) ref.

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

---S. 341---Procedure where accused does not understand proceedings---Essentials---Sessions Court while forwarding the case to High Court under S.341, Cr.P.C. should also record a finding as to whether the accused, though deaf and mute, had sufficient intelligence of knowing that what he was doing was wrong and contrary to law.

Alam Khan v. The State (PLD 1964 SC 801) ref.

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

---S. 361---Interpretation of evidence to accused or his pleader---Object---Whenever an evidence is given in a language not understood by the accused who is present. in person, it shall be interpreted to him in open Court in a language understood by him---Section 361, Cr.P.C. is a mandatory provision object of which is that the accused should be in a position to know personally the allegations and incriminating circumstances appearing against him so that he may defend himself effectively.

The State v. Noor Muhammad 1984 PCr.LJ 1948 ref.

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

----S. 341---Procedure where accused does not understand proceedings---Reference to High Court---Scope---Reference under S.341, Cr.P.C. can only be made if the Trial Court finds that the accused cannot be made to understand the proceedings---Where no effort to make the accused understand the proceedings has been made, the question of such efforts having failed did not arise and a reference under S.341, Cr.P.C. is out of place.

The State v. Muhammad Masaddar PLD 1966 Dacca 432 ref.

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

----S. 361---Interpretation of evidence to accused---Principles---Witness who had taken an active part during the police investigation cannot act as an interpreter in a serious offence under S.302, P.P.C.

The State v. Muhammad Masaddar PLD 1966 Dacca 432 and Ah Soi v. King Emperor AIR 1926 Cal. 922 ref.

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

----S. 302(b)/34---Criminal Procedure Code (V of 1898), Ss.361 & 341---Accused not capable to understand the language of evidence--Reference to High Court---Validity---Language in which the evidence was given by the prosecution witnesses in the Trial Court was not understood by the accused---Admittedly the two accused did not understand any language other than Persian and the third accused being deaf and dumb could only understand signs and gestures---Evidence, thus, ought to have been interpreted to accused in Persian language in open Court, who being relatives of the deaf and dumb accused could have explained the proceedings to him through an interpreter---No such effort having been made by the Trial Court accused could not defend themselves consciously and properly---Section 361, Cr.P.C., a mandatory provision, had been glaringly violated by the Trial Court and the Reference made by it under S.341, Cr.P.C. was not warranted---Conviction and sentence of accused were set aside in circumstances and the case was remanded to Trial Court with necessary directions to proceed according to law and to decide the same on merits afresh---Appeals were allowed accordingly.

Ghulam Sakhi v. The State 1979 PCr.LJ 1016; State v. Pervez Iqbal 1984 PCr.LJ 748; Allah Dia v. Emperor (AIR 1929 Lah. 840); Emperor v. Ganga (AIR 1930 Lah. 64); Isso v. Emperor (AIR 1943 Sind 237); Peetha's case (AIR 1959 Kerala 165); State v. Mookamtna Yellamma and another (AIR 1964 Mys. 182); Alam Khan v. The State (PLD 1964 SC 801); The State v. Noor Muhammad 1984 PCr.LJ 1948; The State v. Muhammad Masaddar PLD 1966 Dacca 432 and Ah Soi v. King Emperor AIR 1926 Cal. 922 ref.

Kashif Hanif for Appellants.

Javed Haider Kazmi, Advocate.

Agha Zafir, A.A.-G.

Date of hearing: 21st November, 2005.

P L D 2006 Karachi 148

Before Muhammad Moosa K. Leghari, J

ALLAH DINO---Applicant

Versus

HAJI AHMED through Legal Heirs and 3 others---Respondents

Revision Application No.98 of 1995, decided on 2nd December, 2005.

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

----O. VIII, R.10---Specific Relief Act (I of 1877), Ss. 42 & 55---Suit for declaration and permanent injunction---Failure of party to file written statement within the time fixed by the Court---Effect---Court may pronounce judgment against such party, or make such order in relation to the suit as it thinks fit---Order VIII, R.10, C.P.C. clearly demonstrates that in every case in which written statement is not filed, the Court is not bound or required to pronounce the judgment as it is not stipulated by the law---By using word "may" in O.VIII, R.10, C.P.C., it has been left open to the Court, that on consideration of the material annexed with the plaint, either it should pronounce the judgment or may make such other order it deems fit---Court has to take into consideration the facts and circumstances of each case and keeping in view the circumstances the Court may make such order as it thinks fit.

Sakhawatuddin v. Muhammad Iqbal 1987 SCMR 1365 and Secretary, Board of Revenue, Punjab, Lahore and another v. Khalid Ahmad Khan 1991 SCMR 2527 ref.

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

----O. VIII, R.10---Specific Relief Act (I of 1877), Ss; 42 & 55---Suit for declaration and permanent injunction---Ex parte proceedings against defendants---Plaintiff filed application wherein he requested the Court to dispose of the suit under O.VIII, R.10, C.P.C. and reason stated in the application for passing the judgment by trial Court was that the plaint was verified on oath---Application further stated that plaintiff was ill and, as such, ex parte proof could not be filed---Plaintiff did not request for extension of time---Validity---Prudent view which could be taken was that the plaintiff himself did not want to file affidavit in ex parte proof and wanted his suit to be disposed of under O.VIII, R.10, C.P.C.---When the plaintiff himself prayed the Court to proceed to pronounce the judgment without producing any evidence or documents, the Trial Court was justified in arriving at a conclusion that the documents placed on record were inadmissible in evidence---Plaintiff, who approached the Court had to succeed on the strength of his own case and not on the weakness of the other side---Merely because the defendants were proceeded ex part, ipso facto, would not be legal and valid ground to decree the suit of the plaintiff as it was the plaintiff who had to prove his case.

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

----S. 5---Specific Relief Act (I of 1877), Ss. 42 & 55---Civil Procedure Code (V of 1908), S. 96---Suit for declaration and mandatory injunction---Condonation of delay in filing appeal was claimed on medical grounds---Validity---If condonation of delay was claimed on medical grounds, the medical certificate must disclose that the person concerned was bedridden and was unable to move--Medical certificate produced by the appellant along with the application for condonation of delay did not contain the address of the doctor or that of his clinic, reading of the certificate showed that according to the doctor the patient had recovered and was able to "join his duty" and certificate did not disclose that the appellant, who was allegedly suffering from Sciatica was bedridden for the entire period and that he was unable to move or even communicate the instructions to the advocate to prefer an appeal---Jurisdiction exercised by the appellate Court in not condoning the delay in circumstances, was neither illegal nor arbitrary thus no interference was called for.

Irtiqa Rasool Hashmi v. Water and Power Development Authority 1980 SCMR 722 ref.

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

----S. 115---Revisional jurisdiction of High Court---Scope and object.

The revisional jurisdiction of this Court is always discretionary and equitable in nature and no party is entitled to it as of right. The object of High Court while exercising its discretionary jurisdiction has always been to foster the justice, preserve the rights of the parties and to right a wrong. Precisely the discretionary revisional jurisdiction is meant to correct the errors and to check the mistakes and lapses committed by the Courts below so as to ensure that the judgment/orders passed by the lower Courts were not marred by lack of jurisdiction and to prevent illegal and irregular exercise of jurisdiction.

When no perversity or illegality, and/or, instance of lack of jurisdiction or illegal and irregular exercise of jurisdiction has been noticed the judgments impugned in the revision application are unexceptionable and thus need no interference.

Aijaz Ali Hakro for Applicant.

Naimatullah Soomro for Respondents.

Date of hearing: 2nd December, 2005.

P L D 2006 Karachi 155

Before Faisal Arab, J

ANWARUL HUDA and another---Plaintiffs

Versus

FAHIMUL HUDA and another---Defendants

Suit No.1452 of 1999 and C.M.A. No.1257 of 2004, decided on 29th November, 2005.

(a) Sindh Civil Courts (Amendment) Ordinance (XXX of 2002)---

---S. 5---West Pakistan Civil Courts Ordinance (II of 1960), S.9---Court Fees Act (VII of 1870), S. 7---Civil Procedure Code (V of 1908), O.VII, R.10---Jurisdiction of Courts cannot be ousted by undue overvaluation of claims made in a suit as it amounts to fraud upon law---Court should not allow a plaintiff to evade the law relating to the matters of jurisdiction---Where it is found that plaintiff has deliberately exaggerated his claim in order to bring his suit in a Court which otherwise would not have jurisdiction, the plaint should be returned for presentation before Court of appropriate jurisdiction.

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

----S. 7(iv)(c)---Specific Relief Act (I of 1877), S.42---Interpretation of S.7(iv)(c) of Court Fees Act, 1870---Suit for declaration---Court-fees---Computation---Provision of S.7(iv), Court Fees Act, 1870 has given discretion to the plaintiff to value his suit as he deems appropriate---Words used in concluding part of S.7(iv)(c) are "according to the amount at which the relief is valued in the plaint" and "the plaintiff shall state the amount at which he values the reliefs sought"---Object of entrusting the plaintiff with such an absolute discretion in cases covered by S.7(iv) appears to be that it was difficult for the lawmakers to provide basis for valuing the suit covered by S.7(iv)(c) with any precision--Once the plaintiff puts his own valuation to a suit covered under S.7(iv)(c), the jurisdiction of the Court where suit is to be tried is determined and in such cases defendant does not have the option to seek interference of the Court for re-determination of the value in order to seek change in the forum before which suit is to be tried as the Court cannot question plaintiff's valuation, however, arbitrary it may be--Where, however, the plaintiff puts value for the purposes of declaration and also for the purpose of other reliefs it is the cumulative value of all the reliefs which determines the jurisdiction of the Court before which the suit is to be filed.

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

---S. 17---Civil Procedure Code (V of 1908), O.XL, R.1---Multifarious suit---Court fees---Computation---Principles---Aggregate value of only such reliefs is to be taken into account which are distinct and final in nature---Where one relief is not distinct from other and appears to be only superfluous or not arising out of the suit, the same cannot be joined together to determine value for purposes of jurisdiction---Only such reliefs, decision on which results in final resolution of a controversy, are to be valued for the purposes of valuation of a suit and not the reliefs which are purely of interim nature and are sought till the disposal of the final controversy in suit---Relief of receivership, which though arising in the suit, being purely of interim nature, cannot be made basis for the purposes of valuing a suit.

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

----S. 7(iv)(c)-Specific Relief Act (I of 1877), S.42---Suit for declaration---Court fees---Aggregate computation---Principles---Section 7(iv)(c) of the Court Fees Act, 1870 only speaks about seeking relief of declaration and consequential relief, it does not speak of the nature of declaration or of the consequential relief, which a plaintiff has to seek in a suit---Nature of such relief entirely depends upon the grievance, which the plaintiff brings to the Court and is discernible from the contents of the plaint---All such reliefs, which flow from the contents of the plaint are legally permissible and can be sought by a plaintiff---No restrictions can be imposed on the nature of declarations, which a plaintiff can seek as long as they are lawful and arise from the contents of plaint.

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

---S. 42---Courts Fees Act (II of 1870), S.7(iv)(c)---Suit for declaratory relief for dissolution of partnership of the firm or for declaration with regard to the claim of forgery of documents---Aggregate value of Court­ fee---Principles---Section 42, Specific Relief Act, 1877 makes it evident that a plaintiff is entitled to ask for any relief to which he is entitled under the law which relates to his claim either to any legal character or to a right in a property---hi order to seek declaration or consequential relief it is not necessary that such reliefs must find mention in S.7(iv)(c), Court Fees Act. 1870---Plaintiffs are therefore justified in seeking declaratory reliefs with regard to dissolution of the firm or for declaration with regard to their claim of forgery of documents.

(f) Karachi Courts Order (P.O. No.2 of 1956)---

---Preamble---Sindh High Court possesses concurrent jurisdiction along with the Civil Court.

PLD 1981 Kar. 210 fol.

Monawwer Ghani for Plaintiffs.

Zahid Hamid for Defendant No.1.

Mrs. Sofia Saeed Shah for Defendant No.2.

Date of hearing: 17th November, 2005.

P L D 2006 Karachi 162

Before Muhammad Moosa K. Leghari and Shamsuddin Hisbani, JJ

ALI ASGHAR SHAH---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No.D-106 of 2005, decided on 17th November, 2005.

Rules for the Superintendence and Management of Prisons in Pakistan---

----Rr. 245 & 248---Application for grant of better class in jail---Applicant, who was facing trial, applied for grant of better class in jail on ground that he was graduate having passed B.A.---Trial Court rejected said application on ground that applicant did not have requisite social status of family and that he was unable to show substantial income---Validity---Trial Court had misdirected itself to provisions of R.245 of the Rules for the Superintendence and Management of Prisons in Pakistan in rejecting application---Classification of under-trial prisoners was regulated by R.248 of Rules for the Superintendence and Management of Prisons in Pakistan, whereunder there were only two classes of prisoners; (a) better class; (b) ordinary class and according to said provisions, undertrial prisoners who by social status, education or habit of life had been accustomed to superior mode of living could be granted better class---Applicant, admittedly was graduate and education should be given priority in comparison to financial status---No rule prescribing minimum academic qualification to qualify for better class had been specifically pointed out---Graduation was sufficient educational/academic qualification for grant of better class---More particularly minimum qualification for a person for being elected to Parliament as prescribed under relevant laws had been fixed as graduation---Applicant, in circumstances was entitled to grant of better class, if he was not otherwise disqualified.

Allah Bachayo Soomro for Applicant.

Anwar H. Ansari for the State.

Date of hearing: 17th November, 2005.

P L D 2006 Karachi 165

Before Sabihuddin Ahmed, C J

MUHAMMAD SHAKEEL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1195 of 2005, decided on 2nd January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Emigration Ordinance (XVIII of 1979), Ss.17(2)(b)/22(b)---Bail, grant of---Section 22(b) of the Emigration Ordinance, 1979, prima facie, was not attracted in the case, as the same entailed some kind of fraud played or deceipt practised upon the person by misleading him and to extort money---None of the victims admittedly had made any complaint of such fraud---Apparently accused. appeared to have assisted certain persons to emigrate or depart from Pakistan in violation of law, which might amount to an offence under S.17(2)(b) of the said Ordinance punishable by five years' R.I. or fine or with both---Circumstantial evidence available on record also appeared to be as regards commission of the same offence and for securing conviction such evidence ought to be inconsistent with the innocence of the accused---Matter against accused was one of further inquiry---Offence did not fall within the prohibitory clause of S.497(1), C.P.C.---Accused was admitted to bail in circumstances.

Mahmood A. Qureshi and Asif Ali Pirzada for the applicant.

Mehmood Alam Rizvi Standing Counsel.

P L D 2006 Karachi 167

Before Zia Perwaz and Attaur Rehman, JJ

LILA RAM through Legal Heirs through Attorney---Petitioners

Versus

EXECUTIVE DISTRICT OFFICER (REVENUE) CITY DISTRICT GOVERNMENT, KARACHI and 2 others---Respondents

C. P. No.D-1102 of 2004, decided on 24th March, 2005.

Succession Act (XXXIX of 1925)---

----S. 218---Displaced Persons (Land Settlement) Act (XLVII of 1958), S.2---Letter of administration---Deceased being Hindu died in year 1974---Entries in official record on basis of such letter in favour of legal heirs of deceased---Property forming part of estate of deceased was later on found to be evacuee by Supreme Court on basis of documents and notification issued in year 1966---Effect---Such entries subsequent to judgment of Supreme Court would be liable to be cancelled.

Muhammad Hashim for Petitioner.

M.A. Khan for Intervenor.

Manzoor Ahmed for Respondents. Ahmed Pirzada A.A.-G.

P L D 2006 Karachi 168

Before Zia Perwaz, J

Messrs M. A. MAJEED KHAN through Proprietor---Plaintiff

Versus

KARACHI WATER AND SEWERAGE BOARD through Chairman and another---Defendants

Suit No.859 of 1996, decided on 23rd January, 2006.

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

----S.73---Civil Procedure Code (V of 1908), O.I, R.3---Breach of contract for laying of sewerage pipes---Contractor's suit for damages against Water and Sewerage Board and Municipal Corporation---Maintainability---Name of Corporation finding mention in array of defendants, but no mention thereof in entire body of plaint---Contract was executed by Water and Sewerage Board in favour of contractor---Expenses of construction as alleged in plaint were chargeable to Municipal Corporation Fund, but same would not make Corporation a party to the suit---No privity of contract between contractor and Corporation shown in plaint---Nothing to show that persons executing contract on behalf of Board had any connection with Corporation---Finance for project was to be provided by Corporation to Board, which being a matter between them, thus on its basis could not be said that Corporation had anything to do with such contract---Contractor had no actionable claim/cause of action against Corporation in circumstances.

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

----S. 73---Breach of contract---Delay in completing project within stipulated time by contractor was alleged to have been caused by Sewerage Board---Proof---Contractor alleged that initially work was verbally stopped by staff of Board and then suspension order in writing was delivered---Such facts not finding mention in affidavit-in-evidence of contractor's attorney---Validity---On such point, there was clear contradiction in the averments in plaint and contents of such affidavit---Alleged delay therefore, was not proved by contractor.

(c) Tort---

----Defamation (Libel)---Damages, claim for-Prime question requiring consideration stated.

In a suit for damages on account of defamation based on publication of a news item, the question of prime importance is whether the complained imputations are libellous to plaintiff.

(d) Tort-

----Defamation---Damages---Delay in completion of sewerage project by contractor---Publication of news item in newspaper criticizing such delay---Contractor's claim for damages against Sewerage Board---Entitlement---News item being the basis of contractor's claim of damages for defamation not finding mention of its firm name, but referred to therein as "contractor/"---News item related to two letters having same reference number issued by Board, but record pertaining to one was available and record for other was not available---Incompetence in this regard could only be attributed to the Board---Second news item not speaking of any wrongdoing by contractor, but only highlighting a dispute between contractor and Board---Such news items were published by newspaper on the report of its staff reporter---Such news items did not disclose that any press conference was held by any officer of the Board in which any allegation was levelled against contractor---Such staff reporter and newspaper must have been impleaded as defendants in the suit---Any duly authorized officer of Board had issued such statement was not proved---Contractor had not impleaded as defendant any officer of Board allegedly to have issued such press statement---Contractor's suit was dismissed for having failed to prove that he was subjected to any libel or slander through media.

Pakistan Coast Guards v. Umar Saleya 1997 CLC 1; Mst. Abida Amin v. Muhammad Amin and another PLD 1999 Kar. 30; Sufi Muhammad Ishaque v. The Metropolitan Corporation, Lahore PLD 1996 SC 737; Miss Irshad Jahan v. P.N.S.C. 1999 CLC 192 and Mst. Kaniz Fatima v. Farooq Tariq and others PLD 2002 Kar. 20 ref.

(e) Tort---

----Defamation---Publication of news item in newspaper---Claim for damages against two statutory bodies---Maintainability---Statutory body could maintain an action for libel, but would not be capable of issuing any defamatory statement/material---Only staff/officers of a statutory body could do so and for such action, only they could be held responsible---Only person responsible for issuing a damaging statement to the Press could be arrayed as defendant in such claim.

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

----Ss. 186 & 188---Acts of an agent without authority, even if proved, would not affect principal.

Messrs Abdul Latif Abdul Shakoor Madraswala v. The Karachi Steam Navigation Co. Ltd. PLD 1981 Kar. 367 and Muhammad Saghir Ahmad v. Qurban Ali and others 1983 CLC 2127 rel.

Iqbal Kazi for Plaintiff.

Abdul Karim Khan for Defendants.

Date of hearing: 3rd June, 2005.

P L D 2006 Karachi 178

Before Muhammad Afzal Soomro and Gulzar Ahmed, JJ

IRSHAD ALI alias ISHOO and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.89 of 2000, decided on 24th December, 2005.

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

----Ss. 365-A & 368/34---Anti-Terrorism Act (XXVII of 1997), S.7(1)(b)---Appreciation of evidence---F.I.R. was lodged after 28 days of the occurrence which was un-witnessed---Identification of accused through voice on telephone by the complainant was an afterthought, which by itself was a weak piece of evidence---Retracted confessional statement of accused suffered from various infirmities, improbabilities and material contradictions---Evidence of demand for ransom allegedly made by accused was not corroborated by any independent evidence---Prosecution evidence was flagrantly contradictory---Involvement of accused in the crime was highly doubtful---Benefit of doubt was consequently given to the accused and they were acquitted accordingly.

Sultan Ahmad v. Additional Sessions Judge, Mianwali PLD 2004 SC 758; Hasan Zafar v. State 2001 PCr.LJ 1939; Shera v. The State 2000 PCr.LJ 139; Ordinance XXII of 2000, Juvenile Justice System Ordinance, 2000 Guidelines PLD 2000 Federal Statute 385 a page 391; State v. Muhammad Ashique 1994 PCr.LJ 696; State v. Ghulam Shabbir 1993 PCr.LJ 152; Ghulam Ali v. The State 1997 SCMR 1411; Nazar Muhammad v. State 1994 PCr.LJ 1829; Khan Said v. State 2003 P.Cr.LJ 531; Allah Ditta v. State 1988 SCMR 1489; Ghulam Rasool v. State 1999 SCMR 3085; Muhammad Nadeem v. State 1988 MLD 973; Mukhtar Ahmed v. State .1999 PCr.LJ 1107; Mureed v. Golo 1997 PCr.LJ. 184; Arif Nawaz Khan v. State PLD 1991 FSC 53; State v. Muhammad Naseer 1993 SCMR 1822; Shamoon alias Shamna v. State 1995 SCMR 1377; Rahat Ali v. The State 2001 PCr.LJ 98; Ahmed Sher v. The State PLD 1995 FSC 20; Mahmood Ahmed v. The State 1995 SCMR 127; Imran Bahir Farooqi v. The State 1990 PCr.LJ 677; The State through A.-G., N.-W.F.P. Peshawar v. Sohail Sardar 1997 SCMR 1180; Muhammad Yousuf v. The State 1995 SCMR 351; Sikandar Shah v. Din Muhammad and 2 others 2004 PCr.LJ. 1146 and Raza Khan v. The State 1998 PCr.LJ 530 ref.

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

----Ss. 365-A & 368/34---Anti-Terrorism Act (XXVII of 1997), S.7(1)(b)---Appreciation of evidence---Benefit of doubt---Principles---Anything going in favour of accused must be taken into consideration and the benefit of doubt, if any, be extended to him not as a matter of grace but as a matter of right.

Raza Khan v. The State 1998 PCr.LJ 530 ref.

Muhammad Ayaz Soomro for Appellants.

Mushtaque Ahmed Kourejo for the State.

Date of hearing: 11tth November, 2005.

P L D 2006 Karachi 193

Before Sabihuddin Ahmed, C.J. and Muhammad Athar Saeed, J

ASHFAQ YOUSUF TOLA---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior and Narcotics Control, Islamabad---Respondent

Constitutional Petition No.D-1389 of 2005, decided on 13th December, 2005.

(a) Exit from Pakistan Control Ordinance (XLVI of 1981)---

----S. 2---Constitution of Pakistan (1973), Art.4, 9, 15 & 199---Constitutional petition---Placing of petitioner's name on Exit Control List---Validity---Dispute of petitioner with National Accountability Bureau already settled four years ago---No allegation of any criminal offence against petitioner---Absence of declaration on behalf of authority for its failure to assign ground on consideration of public interest---Impugned action would amount to a serious inroad on petitioner's liberty---High Court accepted constitutional petition while directing forthwith removal of petitioner's name from the Exit Control List.

(b) Exit from Pakistan Control Ordinance (XLVI of 1981)---

----S. 2---Constitution of Pakistan (197), Arts. 4, 9 & 15---Power to prohibit exit from Pakistan---Scope---Such power available to Federal Government. was subject to well-established limits---Before passing an order, person concerned would normally be heard, unless considered in public interest not to specify the grounds.

Kazi Abdul Hameed Siddiqui for Petitioner.

S. Ziauddin Nasir for Respondent.

P L D 2006 Karachi 195

Before Faisal Arab, J

AFTAB AHMED and another---Applicant/Intervenor/Plaintiffs.

Versus

HAMID HUSSAIN KHAWAR and another---Respondents/Defendants.

Judicial Miscellaneous Application No.Nil 2005 in Suit No.98 of 1999, decided on 19th January, 2006.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Specific Relief Act (I of 1877), Ss.12 & 42---Application for setting aside consent decree---Applicant's suit for specific performance of agreement to sell against "H"---Suit for declaration by "B" claiming title qua disputed plot already pending against "H"---Withdrawal of suit for specific performance by applicant due to pendency of declaratory suit and his filing of second suit against "H" for recovery of earnest money and damages---Passing of consent decree in B's favour in declaratory suit---Application under S.12(2), C.P.C., filed in year 2005 for setting aside consent decree---Maintainability---Applicant's own pleadings showed that he was fully aware of pendency of declaratory decree as far back as in year 2001---Applicant had given up his right to claim specific performance of agreement to sell and confined his claim only for recovery of money---Applicant's suit for recovery of money against "H" still pending---Applicant could not in any manner claim any right in disputed plot---Such application was dismissed for being not maintainable in law and also barred by time.

Khalid Mehmood Dhoon for Applicant.

H.A. Rehmani for Respondent No. 1.

Akhtar Hussain for Respondents No. 2.

P L D 2006 Karachi 198

Before Muhammad Mujeehullah Siddiqui, J

MUHAMMAD YOUNIS LAKHANI---Appellant

Versus

THE STATE and another---Respondents

Criminal Acquittal Appeals Nos.78 and 183 of 1995, decided on 12th December, 2005.

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

----Ss. 406 & 420---General Clauses Act (X of 1897), S.24-A---Criminal Procedure Code (V of 1898), Ss.249-A, 367 & 417(2-A)---Appeal against acquittal---Trial Court had acquitted the accused under section 249-A, Cr.P.C. after having examined six prosecution witnesses and without discussing their statements and assigning any reason as to why the Investigating Officer was not called for recording his testimony---Judicial Magistrate had passed the impugned order in discharge of his judicial function, which was required to contain the reasons as well as the appreciation of evidence available on record---Section 249-A, Cr.P.C. under which the impugned order was passed specifically provided that the Magistrate while passing the order thereunder would record reasons for acquitting the accused---Section 24-A of the General Clauses Act, 1897, also provided that any Authority, officer or person authorized under an enactment to pass an order or issue a direction, would give reasons for doing the same---Even otherwise, according to the general principles it was imperative that every order passed under the provisions of any statute in judicial or quasi judicial capacity or even in executive capacity, should contain reasons---There should be objectivity in the reasons and not the subjectivity---Any order merely subjective in nature could not be termed as an order supported by reasons---Impugned order being devoid of reasons was not a judicial order and was specifically violative of the mandatory provisions of S.249-A, Cr.P.C. as well as S.367, Cr.P.C. read with S.24-A of the General Clauses Act, 1897---Said order being perverse and arbitrary and having been passed in a slipshod manner, was not sustained in law and the same was set aside accordingly---Case was remanded to the trial Court for decision afresh on merits after adhering strictly to the law relating to the criminal procedure.

1991 PCr.LJ 963; 1976 PCr.LJ 195; 1975 SCMR 165; PLD 1993 SC 400 and Karachi Electric Supply Corporation v. Naseer Ahmed 1986 PCr.LJ 1684 ref.

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

----S. 367--Judgment-General principles relating to a judicial order elucidated---Every order passed under the provisions of any statute in judicial or quasi judicial capacity must contain reasons, it should be objective and not merely subjective in nature---Subjective order cannot be termed as an order supported by reasons---Expression "reason" has not been defined in any law, but in common parlance it denotes ad action taken or order passed by the person, officer or Authority which is reasonable and conforming to the requirement of reasonability---Reasonability can be gauged by examining the findings in the order and if there is no discussion or any finding and the order has been passed by mere reproduction of the words used in the statute, it would not be a proper order supported by reasons---Such an order would be a non-judicial, non-speaking and an un-reasoned order---In order to be reasonable there should be a finding demonstrating links between the material on which certain conclusions are based and the actual conclusions---In every case in which an appeal or revision lies, the Authority passing the order is required to record findings and discuss the material available on record, so that the appellate Court may examine whether the order passed is in accordance with the material available on record or there is any misreading or non-reading of evidence, or any material fact available on record has been ignored causing miscarriage of justice.

Raja Haq Nawaz Khan for Appellant (in Criminal Acquittal Appeal No.78 of 1995).

Khalid Mehmood for Appellant (in Criminal Acquittal Appeal No.183 of 1995 and for the State (in Criminal Acquittal Appeal No.78 of 1995).

A.Q. Halepota for Respondent/accused (in both the appeals).

Date of hearing: 12th December, 2005.

P L D 2006 Karachi 206

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

ATTAULLAH alias QASIM---Appellant

Versus

THE STATE---Respondent

Spl. A.T.As. Nos.29, 30 and Confirmation Case No.13 of 2004, decided on 23rd January, 2006.

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

----Ss. 7(a) & 7(c)---Penal Code (XLV of 1860), S.337-F(6)/34---West Pakistan Arms Ordinance (XX of 1965), S.13(c)---Appreciation of evidence---Prosecution, without assigning any reason, had withheld the best evidence of the natural, independent and injured prosecution witness whose presence at the scene of incident could not be doubted, and therefore a presumption could fairly be raised that if he had been produced in the Court, he would not have supported the prosecution case---Evidence of the eye-witnesses was in direct conflict with the evidence of the complainant and the same had been improved at the trial even to the extent of changing the initial story of the prosecution---Police had recorded the statement of the witness after a delay of five days which was not explained and such testimony could not be relied upon---Sketch of the accused was not duly proved on record by producing its author in the Court---Eye-witnesses could not possibly have seen the faces of the accused riding a motorcycle, particularly when according to the complainant, one of them had muffled his face and the other was wearing a helmet---Although one eye-witness had claimed to have identified the accused who had fired at the injured, yet no identification test was held for his identification through the said witness---Matching report of the pistol allegedly recovered from the accused with the crime empties was of no avail to prosecution, as the pistol was not produced in evidence in Court to show that the same was sent to Ballistic Expert and the report pertained to the said pistol---Benefit of doubt was extended to the accused in circumstances and they were acquitted accordingly.

Saeed Muhammad Shah v. State 1993 SCMR 550; Sahib Gul v. Ziarat Gul 1976 SCMR 236; Muhammad Sadiq v. State PLD 1960 .SC 223; Abdul Sattar v. Shamim Akhtar 1997 SCMR 457 and Haroon v. State 1995.SCMR 1627 ref.

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

----Art. 129, Illust. (g)---Anit-Terrorism Act (XXVII of 1997), Ss.7(a) & 7(c)---Penal Code (XLV of 1860), S.337-F(vi)/34---Presumption against withholding of best evidence---Where best piece of evidence is available with a party and the same is not produced in Court, then it can be presumed that the party had some ulterior and sinister motive behind it.

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

---Ss. 7(a) & 7(c)---Penal Code (XLV of 1860), S.337-F(vi)/34---Appreciation of evidence---Improvements made at the trial need corroboration---Improvements made in evidence by a witness are unworthy of reliance and evidence of such witness requires corroboration.

Saeed Muhammad Shah v. State 1993 SCMR 550 ref.

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

----Ss. 7(a) & 7(c)---Penal Code (XLV of 1860), S.337-F(vi)/34---Appreciation of evidence---Test---Principles---Witness neither related to complainant nor inimical to accused cannot stamp his testimony unnecessarily with truth---Acid test of veracity of a witness is inherent merits of his statement---Mere disinterest of a witness does not prove that he has come forward with a true statement, but his statement itself is to be scrutinized thoroughly and it is to be seen as to whether in the circumstances of the case the statement is reasonable, probable or plausible and can be relied upon.

Abdul Sattar v. Shamim Akhtar 1997 SCMR 457 and Haroon v. State 1995 SCMR 1627 ref.

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

---Ss. 7(a) & 7(c)---Penal Code (XLV of 1860), S.337-F(vi)/34---Appreciation of evidence---Identification parade---Principles---Identification test is a corroborative piece of evidence and not a substantive piece of evidence on which a conviction can be based--When substantive evidence is disbelieved, then nothing is left behind to be corroborated through any evidence.

M. R. Syed for Appellants.

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

Date of hearing: 18th January, 2006.

P L D 2006 Karachi 216

Before Anwar Zaheer Jamali and Mohammed Ather Saeed, JJ

Messrs AER RIANTA INTERNATIONAL PAKISTAN (PVT.) LTD. ---Appellant

Versus

CIVIL AVIATION AUTHORITY---Respondent

High Court Appeal No.20 of 2003, decided on 14th February, 2006.

Arbitration Act (X of 1940)---

----Ss. 17, 30, 33 & 39---Appeal---Award making rule of the Court---Duty of Court---Setting aside of award---Principles---Matter between the parties was referred to two arbitrators but due to difference of opinion between them, umpire was appointed with the consent of parties---Objections against the award of umpire were dismissed and the award was made rule of the Court---Validity---When parties had opted for resolution of their dispute through arbitration and arbitrator/umpire had delivered his award, then Courts had to proceed with the presumption of correctness attached to such award---Award could not be disturbed merely on technical reasons not affecting merits of the award or at the whims of some party aggrieved by the terms of such award---Court's duty was to give every reasonable intendment in favour of award and lean towards upholding it rather than vitiating the same---Courts while dealing with the question of making the award rule of the Court did not act as Court of appeal against the award, therefore, they could not proceed to scrutinize award just to discover an error for the purpose of setting aside the same---For justifying interference in award it was necessary that the error must be apparent on the face of award and not latent and result of such error must be one which had materially affected the terms of the award to the prejudice of one party for no valid justification---None of the grounds urged in appeal had any factual or legal basis which could justify interference in the judgment making the award rule of the Court---Appeal was dismissed in circumstances.

Ashfaq Ali Qureshi v. Municipal Corporation, Multan and another 1985 SCMR 597 fol.

I. H. Zaidi for Appellant

Zahid F. Ebrahim for Respondent.

Date of hearing 31st January, 2006.

P L D 2006 Karachi 221

Before Sajjad Ali Shah, J

Captain S. M. ASLAM---Applicant

Versus

THE STATE and 2 others---Respondents

Criminal Revision No.129 of 2005, decided on 30th January, 2006.

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

----S. 200---Examination of complainant---Taking cognizance of offence a condition precedent to the examination of complainant---Taking cognizance of an offence is a condition precedent to the recording of the statement of complainant on oath, meaning thereby if the Court is of the opinion that the complaint itself is not maintainable and no useful purpose would be served by recording statement of the complainant, it would not waste its time on an exercise in futility---Provisions of S.200, Cr.P.C. do not suggest from any angle that upon institution of a private complaint Court is mechanically bound to record the evidence of the complainant without looking into the contents of the complaint, its maintainability, or without satisfying itself as to whether the act complained of constitutes an offence or not, or whether the offence, if any, made out falls within its competence.

(b) Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 5---Constitution of Pakistan (1973), Art.12---Criminal Procedure Code (V of 1898), Ss.200 & 439---Private complaint dismissed, without examining the complainant on oath---Validity---Provisions of S.200, Cr.P.C. in no manner had bound the Court to record the evidence of the complainant despite the fact that the accusations made in the complaint did not constitute an offence, or the act complained of was not an offence at the time of occurrence--Section 5 of the Illegal Dispossession Act, 2005, itself had given discretion to the Court to satisfy itself as to the competence and maintainability of the complaint---An act or omission which was not punishable at the time when it was committed, could not be made punishable by retrospective application of law-Contention that the Illegal Dispossession Act, 2005, was retrospective as it did not provide for its prospective application, was not only fallacious against the settled principles of law but also against the provisions of Art. 12 of the Constitution, which had specifically protected against retrospective punishments---Consequently, an illegal dispossession as envisaged in S.3(1) of the Illegal Dispossession Act, 2005, could not be punished thereunder if it had taken place prior to the promulgation of said Act---Similarly, the contention that the act of illegal dispossession being a continuing offence could be taken cognizance of under the said Act was also without substance, as under S.3(1) "act of entrance" upon the property of some one with the intention to dispossess, grab, control or occupy the same from its owner or occupier, has been made punishable under S. 3(2), and not the act of retaining illegal possession of any property---Impugned order dismissing the private complaint without examining the complainant on oath, therefore, warranted no interference---Revision petition was dismissed, accordingly.

?

Syed Ansar Hussian for Applicant.

Muhammad Sabir Hyder, A.A.-G. for the State.

P L D 2006 Karachi 226

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

ASIF KHAN and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Acquittal Appeal No.97 of 1997, decided on. 15th February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 417---Penal Code (XLV of 1860), S.302---Appeal against acquittal---Abscondence of accused---Accused, despite furnishing surety for his regular attendance before the Court, failed to appear before the Court and bailable warrants for his arrest were issued and proceedings under S.87, Cr.P.C. were initiated---Effect---Court should not act in aid of a person who was fugitive from justice and he would lose his right of hearing---Advocate for accused could not be heard on his behalf---Fugitive from law had no right of hearing even through his counsel----Court, however, for its own benefit, could ask Advocate for absconding accused to assist it---Such appeal was not required to be adjourned indefinitely even against single accused---Efforts should be made to secure attendance of such accused, but for a reasonable period depending upon the facts and circumstances of each case---If the efforts would fail for a reasonable period then the Court could determine appeal in his absence---If, after examination of case, acquittal merited to be reversed then it could be decided accordingly---If judgment of acquittal merited to be maintained, then same could not be reversed on account of the abscondence of accused---Such rule would be applicable in the case of appeal filed against single accused or more, however, if there were two or more accused and if one or two were absconding, then till the time of hearing of appeal, they appeared, then they could be heard after granting such permission---If they failed to appear, then appeal could be heard in their absence and they would be having no right of hearing through their Advocate---Case of accused, however, could be considered on merits---If any relief could be given to them, there was no impediment to grant such relief.

Hayat Bux v. State PLD 1981 SC 265 ref.

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

----S. 417---Penal Code (XLV of 1860), S.302---Appeal against acquittal---Appreciation of evidence---Case of prosecution rested upon ocular testimony of three eye-witnesses---Two of said witnesses, who closely related to deceased, had disclosed that when they reached the place of incident, they saw one of accused persons causing fire-arm injuries to deceased and other one was also present at the place of occurrence---Names of said both witnesses, were not mentioned in F.I.R.---Complainant reached the place of incident immediately after hearing the news of murder of his father, but he did not find said both witnesses present at the place of incident---Police had already reached at the place of incident, but they also did not find said both witnesses present there so as to record their statement---Both the said witnesses therefore, were not present at the place at the time of incident---Evidence of said witnesses was recorded after 10 days of incident, but prosecution did not furnish any explanation for such delay---Evidence of said witnesses could not be safely relied upon in circumstances---Third witness claimed that he saw the deceased and one person fighting with each other and that said person fired at the deceased and then said person ran away---Said third witness disclosed that culprit was un-known to him---In such a situation it was incumbent upon prosecution to have got culprit identified through said witness in an identification test, but Investigating Officer did not do, so---Said 'witness identified accused in the Court to be culprit---Identification of said accused was held after 10 months of the incident---Evidence of third witness with regard to identification of accused in the Court alone could not be safely relied upon---Trial Court had rightly appreciated evidence in accordance with settled principles of law and discarded ocular evidence---Findings of the Trial Court could not be interfered with---Recoveries, being a corroborative piece of evidence, no conviction could be based solely on such evidence---Impugned judgment not-requiring any interference, appeal against acquittal, was dismissed.

Muhammad Khan v. Moula Bakhsh 1998 SCMR 570; Muhammad Sadiq v. State PLD 1960 SC 223; Sahib Gul v. Ziarat Gul 1976 SCMR 2361; Saeed Muhammad Shah v. State 1993 SCMR 550; Asif Jameel v. State 2003 MLD 676; Shadeo Gosain v. Emperor 46 Cr.LJ 1945 and Asghar Ali v. The State 1992 SCMR 2088 ref.

Sarfraz Khan Tanoli for Appellants.

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

Ch. Iftikhar Ahmed and Abdul Waheed Kazi for the Remaining Respondents

Date of hearing: 21st January, 2006.

P L D 2006 Karachi 234

Before Gulzar Ahmed, J

KHURSHEED AHMED through Attorney---Plaintiff

Versus

FAYYAZ AHMED and 7 others---Defendants

Suits Nos.95 and 287 of 2005, .C.M.As.Nos.547 and 548 of 2006, decided on 15th February, 2006.

Succession Act (XXXIX of 1925)---

----Ss. 273 & 278---Partition Act (IV of 1893), S.4---Specific Relief Act (I of 1877), S.54---Civil Procedure Code (V of 1908), S.11---Suit for administration, partition and permanent injunction---Principles of res judicata---Applicability---Plaintiff had alleged that pursuant to grant of letter of administration, defendant and other legal heirs of deceased were. trying to dispossess him and to sell property in question---Grievance of plaintiff, in substance appeared to be relating to miscellaneous application that was filed in the Court of District and Sessions Judge in which letter of administration had been granted and order granting such letter of administration had been challenged in appeal which was pending---Plaintiff had merely stated that suit had been filed only to obtain proper valuation of property in question and that plaintiff be not dispossessed from the property---No justifiable reason or cause had been shown for maintaining the present suit---Letter of administration in respect of subject property had already been granted---Suit appeared to be barred under principles of res judicata as provided under S.11 of C.P.C. as similar dispute had been decided between the parties and an appeal was pending against same.

Saathi M. Ishaque for Plaintiff.

P L D 2006 Karachi 236

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

HYDER ALI KHOKHAR---Petitioner

Versus

THE STATE---Respondent

Constitutional Petition No.D-110 of 2006, decided on 10th March, 2006.

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

-----S. 18(g)-Powers of Chairman NAB to send reference to Accountability Court---Scope---Powers granted to Chairman NAB under S.18(g) of National Accountability Ordinance, 1999 could be exercised subject to the condition that there should be sufficient evidence against accused for filing a reference---If such condition was fulfilled, then no exceptions could be taken against exercise of powers of Chairman, NAB---Chairman NAB was to form opinion keeping in view experience of institution to see whether the amount involved in the case was large or otherwise.

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

----Ss. 9(a), 10(a) & 18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Reference to Accountability Court---Powers of Chairman NAB---Scope---Trial Judge had framed the charge, which had shown that sufficient material was available on the record against petitioner/accused---Accountability Court recorded statement of complainant who had fully supported prosecution case and implicated the petitioner with the commission of the crime---Allegation against accused was that accused had asked an amount of Rs.7 lac for dropping the inquiry against complainant and such was sufficiently a large amount keeping in view the work to be done by the petitioner---Discretion exercised by Chairman, NAB, was not arbitrary and Chairman, NAB was competent to send the Reference to the Accountability Court---Sufficient and reasonable grounds existed for believing that petitioner was involved in the case and prima facie case had been made out against him from the statement of complainant---Chairman, NAB was justified in sending reference to Accountability Court---Such exercise of powers by Chairman, NAB being in accordance with law, no exception could be taken to the same and impugned, order did not require any interference.

Rauf Bakhsh Kadri v. The State 2003 MLD 777; Government of Baluchistan v. Azizullah Memon PLD 1993 SC 341; Shoukat Baig v. Shahid Jamil PLD 2005 SC 530; Khan Asfandaryar Ali v. Federation of Pakistan PLD 2001 SC 607; Waris Masieh v. State PLD 1957 SC 157; and Director of Settlements, A.P. v. M.R. Apparano AIR 2002 SC 1598 ref.

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

----Art. 189---Decision given by Supreme Court---Binding force of---When a decision was given by the Supreme Court, it was binding upon all courts including High Courts which could not ignore said decision on the ground that certain points or provisions of law were not considered---Only the Supreme Court could modify or put any condition or exception to its own decision.

Abdul Razaq for Petitioner.

Ainuddin Khan ADPG, NAB for Respondent.

Date of hearing: 21st February, 2006.

P L D 2006 Karachi 244

Before Muhammad Mujeebullah Sidddiqui and Sajjad Ali Shah, JJ

MUHAMMAD ASGHAR MOGHAL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.754 of 2005, decided on 28th February, 2006.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail on medical grounds---Criterion---Bail may be granted to an accused on medical ground if his sickness or ailment cannot be properly treated within the jail premises and he needs some specialized treatment and his continued detention in jail is likely to affect his capacity or is hazardous to his life.

Malik Muhammad Yousafullah Khan v. The State PLD 1995 SC 58 ref.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail on medical grounds---Principles---For releasing an accused on bail on medical ground strong reasons must exist to believe that despite advanced medical technology and availability of medicines, his treatment is not at all possible in jail having regard to the nature of his illness.

Ghulam Raza v. Khuda Bux and another 2005 SCMR 1904 ref.

(c) Precedent---

----Criminal case---Judgments or orders of superior Courts in Criminal cases shall not be treated as precedents, as every criminal case revolves around its own peculiar facts and seldom the facts of two cases are similar---Only such judgments or orders are to be treated as precedent wherein a principle of law has been laid down and is applicable generally to the criminal cases.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail when trial is at advanced stage---When trial of accused is at advanced stage, then superior Courts shall abstain from exercising their discretion pertaining to grant of bail to him.

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

----S. 497---Constitution of Pakistan (1973), Art.185(3)---Bail---Exercise of discretion by Supreme Court---Scope---Grant of bail is a discretionary relief and Supreme Court normally does not interfere with such discretion exercised by the High Court, until and unless the same is found to be totally wrong or perverse.

Tasneem Kausar v. Muhammad Bashir 1981 SCMR 686 ref.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail on medical grounds, refusal of---Ailment mainly pressed for grant of bail was diabetes from which the accused was suffering for the last twelve or thirteen years---Medical reports of accused showed that his blood sugar level had come down from 350 mg. to 300 mg., meaning thereby that the medicine being given to him in jail was working properly and he was improving---Ailment of accused thus could be treated inside the jail and the same was neither hazardous to his life, nor was likely to affect his capacity---Prosecution had closed its evidence on the case which was likely to be decided soon---Bail was declined to accused in circumstances.

Tasneem Kausar v. Muhammad Bashir 1981 SCMR 686; Malik Muhammad Yousafullah Khan v. State PLD 1995 SC 58; Muhammad Saeed Mehdi v. State 2002 SCMR 282; Zakhim Khan Masood v. The State 1998 SCMR 1065; Akber Jawed v. The State 2003 YLR 2213 and Ghulam Raza v. Khuda Bux and anothers 2005 SCMR 1904 ref.

M. Ilyas Khan for Applicant.

Sibtain Mehmood, Special Prosecutor, ANF for the State.

Date of hearing; 28th February, 2006.

P L D 2006 Karachi 252

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

ZAHID AHMED---Petitioner

Versus

DEPUTY DIRECTOR ADJUDICATION and 2 others---Respondents

Constitutional Petition No.1797 of 1991 and C.M.As.Nos.3817 and 3818 2002, decided on 14th March, 2006.

Counsel and client---

----Negligence on the part of advocate, has a binding effect on his client---Any negligence on the part of the advocate, was binding upon party which had engaged the advocate---If a party would 'engage a counsel who was lacking sense of responsibility to the court, it was the party who should suffer and not the other side.

Noorul Amin and another v. Muhammad Hashim and 27 others 1992 SCMR 1744; Jane Margrete Willian v. Abdul Hamid Mian 1994 SCMR 1555; Muhammad Sharif Khan and 4 others v. Board of Revenue, West Pakistan, Lahore 1970 SCMR 76; Zulfiqar Ali v. Lal Din and another 1974 SCMR 162; Jhanda v. Maqbool Hussain and others 1981 SCMR 126; Sher Muhammad v. Said Muhammad Shah 1981 SCMR 212; Abdul Hamid and 3 others v. Sayed Abdul Qadir and others PLD 2001 SC 49; Saifullah Siddiqui v. Karachi Electric Supply Supply Corporation Limited 1997 SCMR 926; Muhammad Sadiq v. Mst. Bashiran PLD 2000 SC 820 and Naoomal Tourmal v. Tarachand Sobharaj and another AIR 1933 Sindh 2000 ref.

Anwar Hussain for Petitioner.

H.A. Rehmani for Respondent No.1.

Mehmood Alam Rizvi, Standing Counsel for Respondent No.2.

Sarwar Khan, A.A.-G. for Respondent No.3.

Date of hearing: 13th March, 2006.

P L D 2006 Karachi 258

Before Faisal Arab, J

TRADING CORPORATION OF PAKISTAN (PVT.) LTD.---Plaintiff

Versus

Messrs SYED CORPORATION---Defendant

Suit No.558 of 1997, decided on 13th March, 2006.

Civil Procedure Code (V of 1908)---

----O. XXII, R.4---Limitation Act (IX of 1908), S.5 & Art.177---Death of defendant---Application for impleading heirs of deceased defendant---Limitation---Delay, condonation of---Court was permitted under O.XXII, R.4, C.P.C. to proceed with the suit notwithstanding the death of defendant, in the same manner as if he was alive---Such power, however was circumscribed by the condition that in case application for bringing legal heirs on record was not moved within the time prescribed by law under Art.177 of Limitation Act, 1908; Court could proceed with the matter notwithstanding the death of defendant---Said provision of law was in nature of an exception to the general law under which no proceedings could be held against a dead person and such law was to be strictly construed---Effect of failure to implead legal representatives of deceased defendant within prescribed time would bar them from taking part in proceedings---Application for impleading legal heirs of deceased defendant was filed after an inordinate delay of about 29 months, whereas Art.177 of Limitation Act, 1908 had provided a period of only 90 days for moving said application---Only reason disclosed for seeking condonation of delay was unawareness of pendency of suit, which was not a plausible reason as ignorance of pendency of suit, could not be made ground for condonation of delay---Legal heirs of deceased defendant, were debarred from participating in the proceedings---Suit was to be proceeded against dead defendant and any judgment that could be pronounced in the case, would have the same force and effect as if it had . been pronounced during lifetime of the deceased.

Bhagvan Managi Marwadi and others v. Hiraji Permaji Marwadi AIR 1932 Bombay 516; Ismail Haji Sulaiman v. Messrs Hansa Line and another PLD 1961 Dacca 693; Collector of Customs (Appraisement), Collectorate of Customs, Government of Pakistan Customs House v Messrs Imran Enterprises through Proprietor and others 2001 CLC 419; Messrs M.A. Majeed Khan v. Karachi Water and Sewerage Board and others PLD 2002 Kar. 315; Bibi Khudeja v. Pir Sarwarduddin Shah 1992 MLD 490; Mst. Sardar Begum v. Mst. Chiragg Bibi 1989 CLC 825 and Messrs Ahan Saz Contractors v. Pak Chromical Limited 1999 MLD 1781 ref.

Mamoon Hassan for Plaintiff.

Khalid Dawood Pota and Agha Faquir Muhammad for Defendant.

Date of hearing: 6th February, 2006.

P L D 2006 Karachi 263

Before Amir Hani Muslim and Sarmad Jalal Osmany, JJ

SUHAIL AKHTAR ABBASI---Petitioner

Versus

Syed AMIR ALI SHAH and 4 others---Respondents

Constitutional Petition No.D-71 of 2006 in C.R. No.D-36 of 2006 (Sukkur), decided on 3rd March, 2006.

(a) Sindh Local Government Elections Rules, 2005---

----R. 67---General Clauses Act (X of 1897), S.24-A---Election petition---Order of Election Tribunal allowing application for re-counting of votes---Non-incorporation of arguments of one counsel in such order---Effect---Mere such fact could not be made a ground to declare such order as nullity, unless the order ex facie was without reasons.

(b) Sindh Local Government Elections Rules, 2005---

----R. 67---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election of Taluka Nazim---Election petition---Corrupt practice and disqualification of returned candidate, grounds of---Re-counting of votes, application for---Acceptance of such application by election Tribunal while keeping pending election petition---Validity---Mere disposal of such application would not deprive petitioner from agitating other grounds raised in election petition in case if he failed to succeed on basis of re-count---Laws did not debar Election Tribunal from passing such order---High Court dismissed constitutional petition in circumstances.

Words & Phrases by Mian Muhibullah Kakakhel Vol. II, Edn. 1996 and Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 ref.

Muhammad Naeem Kasi and another v. Abdul Latif and 7 others 2005 SCMR 1699 distinguished.

Sheikh Iftikhar-ud-Din and another v. District Judge, 2002 SCMR 1523 and Moula Bux v. Muhammad Rahim 2003 CLC 310 rel.

Abdul Fattah Malik for Petitioner.

Imdad Ali Awan along with Asif Kamal for Respondent No.1.

A.R. Faruq Pirzada, D.A.-G. and Habibur Rehman Shaikh, A.A.-G. on behalf of official Respondents.

Date of hearing 14th February, 2006.

P L D 2006 Karachi 267

Before Sarmad Jalal Osmany, J

KHALIL-UR-REHMAN and others---Applicants

Versus

Mst. VAKEELAN and another-Respondents

Civil Revision No.89 of 2004, decided on 10th March, 2006.

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

----S. 12-Qanun-e-Shahadat (10 of 1984), Arts. 17(2)(a), 47, 79, 80 & 118--Suit for specific performance of agreement to sell---Executants of agreement three in number---Denial of execution by vendee-defendant, but its acceptance and performance by other co-vendees---Tendering in evidence by plaintiff copies of depositions of co-vendees recorded in earlier suit for specific performance between parties regarding execution of agreement by all three vendees and receipt of sale consideration by them---Non-production of attesting witnesses of agreement---Statement of plaintiff during cross-examination that one attesting witness had died, but not stating anything about other witness, whether or not he was alive and capable of giving evidence---Non-production of death certificate of other witness---Non-appearance of vendee-defendant as witness---Effect---As a result of denial of execution of agreement by vendee-defendant, burden of proving same would lay upon plaintiff---Duty of plaintiff was to have examined both attesting witnesses unless shown to have been died or incapable of giving evidence---Such depositions of co-vendees could be used only when plaintiff was able to establish that attesting witnesses were either dead or could not be found---Such depositions would not be sufficient to prove agreement---Plaintiff had failed to discharge burden, which could not shift to vendee-defendant---Suit was dismissed on plaintiff's failure to prove agreement.

Imamdin v. Bashir Ahmed PLD 2005 SC 418; Talat Jahan Burki v. Member, Board of Revenue/Chief Settlement Commissioner, Punjab. Lahore 2005 CLC 269; Mst. Afzal Paracha v. Mst. Fouzia Begum PLD 2003 Pesh. 40; Munir Hussain v. Muhammad Aslam PLD 2003 AJK-16; Mst. Rashidan Begum v. Muhammad Yousif 2002 SCMR 1089; Imamdin v. Merajdin 2003 MLD 329 and Muhammad Arif v. Mahmood Ali 2003 MLD 954. ref.

Muhammad Yakoob v. Naseer Hussain PLD 1995 Lah. 395; Auqaf Department v. Javed Shuja 1995 CLC 1173 and Mansoor Hussain v. Maqbool Begum 1990 SCMR 1259 rel.

Allah Jiwai v. Maqbool Shah 2005 MLD 261; Nazir Ahmad v. Muhammad Rafiq 1993 CLC 257 and Zafarullah Khan v. Karim Bibi 2000 YLR 2789 distinguished.

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

----S. 54---Qanun-e-Shahadat (10 of 1984), Art.17(2)(a)---Agreement to sell property---Attestation by witnesses---Requirement---Such agreement being in nature both of a financial and future obligation, would require attestation by two male or one male and two female witnesses.

Abdul Haque Kamboh for Applicants.

Miss Sabra Ali Rajput for Respondents.

Date of hearing. 12th September, 2005.

P L D 2006 Karachi 272

Before Sarmad Jalal Osmany, J

ABDUL SATTAR---Applicant

Versus

Mst. KALSOOM---Respondent

Civil Transfer Application No. 10 of 2005, decided on 6th March, 2006.

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

----Ss. 5, 10(4), proviso (as added by Family Courts (Amendment Ordinance (LV of 2002) & Sched.---Dissolution of Muslim Marriages Act (VIII of 1939, S.2---Suit for dissolution of marriage on ground of Khula' or any other ground---Pre-trial conciliation efforts, failing of---Absence or presence of dispute as to payment/remission of dower---Preliminary decree for dissolution of marriage, passing of---Scope---In absence of such dispute, decree for dissolution of marriage would be passed immediately upon failure of pre-trial proceedings between the parties---In presence of such dispute, only upon deposit of dower amount in Court by wife, such preliminary decree could be passed, whereafter such dispute would be resolved upon taking of evidence---In presence of such dispute and upon failing of wife to deposit dower amount in the Court, no decree for dissolution of marriage could be passed, rather matter would be decided after recording evidence.

(b) Islamic Law---

----Dower---Husband asserting payment, but wife denying receipt of dower---Burden of proof---Husband had to prove payment, as onus of proof would always lie upon the person alleging a fact.

Bayan-ul-Qur'an by Hazart Moulana Ashraf Ali Thanvi rel.

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

---Ss. 5, 10(4), proviso (as added by Family Courts (Amendment) Ordinance (LV of 2002), 17 & Sched.---Suit for dissolution of marriage on ground of Khula' or any other ground---Preliminary decree for dissolution of marriage, passing of---Non-applicability of Qanun-e-Shahadat, 1984 and Civil Procedure Code, 1908 to proceedings before Family Court would not debar same from passing such preliminary decree---Principles.

Section 17 of West Pakistan Family Courts Act 1964, provides that the Qanun-e-Shahadat, 1984 and Civil Procedure Code, 1908 shall not apply to proceedings before the Family Court. It does not debar such Court from passing a preliminary decree dissolving the marriage on the basis of Khula' or any other ground. The object of provision of section 17 as to non-applicability of the Qanun-e-Shahadat and ,Civil Procedure Code, is to expedite the proceedings before Family Court, so that the same are not delayed for lack of procedural formalities as contained in such laws, which cannot be construed so as to defeat the purposes of the Family Courts Act, 1964, which is a beneficial piece of legislation designed to expedite family cases.

(d) Islamic Law---

----Marriage, dissolution of---Khula', ground of---Consideration for dissolution of marriage would be remission of dower amount by wife, if not received or its payment, if received---All bridal gifts given to wife before or after marriage would not be returned to husband.

Bayan-ul-Qur'an by Hazart Moulana Ashraf Ali Thanvi; Ahsan­ul-Khitaba by Mufti Rasheed Ahmed Khan; Bahishti Zewer authored by Moulana Thanvi and Muhammad Zafar v. Judge Family Court 2005 CLC 1844 ref.

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

----Ss. 5, 10(4), proviso (as added by Family Courts (Amendment Ordinance (LV of 2002)] & Sched.---Suit for dissolution of marriage also involving issues of return of dowry articles, custody of children, dower and maintenance etc.---Pre-trial conciliation efforts, failing of---Absence or presence of dispute as to payment/remission of dower---Preliminary decree for dissolution of marriage, passing of---Scope---If husband disputed all such claims of wife, then such contentious issues would be decided only after recording evidence---Where issue of dower was not contested, then such preliminary decree could be passed upon failing of conciliatory efforts, whereafter Court would decide other issues---Where issue of dower was contested, then upon deposit of dower amount in Court by wife, such preliminary decree could be passed, whereafter issue of dower along with other issues, if any, would be decided after recording evidence---In presence of such dispute and failing of wife to deposit dower in Court, no decree could be passed for dissolution of marriage, rather matter would be decided after recording evidence.

Faiz Muhammad Brohi for Applicant.

Arbab Ali Chandio and Muhamamd Yakoob Lakhair for Respondent.

Abdul Qadir Shaikh as Amicus Curiae.

Dates of hearing: 10th and 24th October, 21st November and 8th December, 2005.

P L D 2006 Karachi 278

Before Faisal Arab, J

MUHAMMAD MUBEEN----Applicant

Versus

Messrs LONG LIFE BUILDERS and others---Respondents

Judicial Miscellaneous No.29 of 2000 in Suit No.407 of 1993 (Ex.No.66 of 1999), decided on 17th March, 2006.

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

----S. 52---Transfer of property, pending suit relating thereto---Rule of lis pendens, applicability of---Under provisions of S.52 of Transfer of Property Act, 1882, no party to the suit could alienate .disputed property so as to affect his opponent---Party who had obtained decree in his favour, was entitled to execute the decree not only against the person against whom decree was passed, but also against person who derived title to disputed property during pendency of suit---Change of title or transfer of possession during pendency of suit from the judgment-debtor to a third party was to be treated only symbolical title and possession and there was no reason why decree-holder be not allowed to proceed also against third party who was in actual possession of suit property---When a party to a suit would sell disputed property to third party during pendency of suit and ultimately he failed in establishing his title to it, purchaser of such property could not even seek protection of a bona fide purchaser in order to deprive decree-holder the fruit of decree---Third party in whose favour title was transferred during pendency of suit by a judgment-debtor, was to be regarded only a representative of judgment-debtor and act of selling the property, could not be allowed to defeat the claim of decree-holder merely because property changed hands during pendency of suit---That was so because rule of lis pendens was applicable also to the third party and in such a case, he was not entitled to defend suit independently from judgment-debtor through whom he claimed ownership rights during pendency of suit---Judgment and decree passed against judgment-debtor, would also be binding on the purchaser in the same manner and to the same extent as it was binding on judgment-debtor.

Abdus Saeed Khan and 2 others v. Basharat Ali and 13 others PLD 1995 Lah. 255; Beliamy v. Shabine (1857) 1 De. G. & J. 566; Khair Din through L.Rs. v. Muhammad Iqbal and 2 others 1999 YLR 2589 and Usman v. Haji Omer and others PLD 1966 SC 328 ref.

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

----S. 52---Rule of lis pendens---Effect of---Effect of rule of lis pendens, laid down in S.52 of Transfer of Property Act, 1882 to a controversy, was very clear: It provided that where the title of a litigant was already in dispute in a suit, then any alienation of disputed property by such litigant to a third party was subject to final outcome of suit---Upon failure of a party to a suit that alienated disputed property, the transferee was stripped of his title to suit property on basis of rule of lis pendens---No legal proceedings were required to get the status of transferee determined who claimed title from an unsuccessful transferor as he was no more regarded as lawful transferee so as to seek protection of his title---Such transferee was to be regarded merely a representative of unsuccessful transferee---Decree against a transferee pendente lite was as much executable as it was against the party who alienated disputed property during pendency of suit.

Anwarul Huda v. Fahimul Huda PLD 2006 Kar. 155 and PLD 1981 Kar. 210 ref.

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

----S. 12(2)---Transfer of Property Act (IV of 1882), S.52---Challenging decree on ground of fraud and mis-representation---Applicant was established to be a transferee of disputed property pendente lite and as his transferor had failed in suit to establish her claim to disputed property, under provisions of S.52 of Transfer of Property Act, 1882, applicant could not claim his independent right to disputed property so as to seek judgment and decree of setting aside under S.12(2), C.P.C.

?

Gohar Iqbal and Munawar Malik for Applicant.

Nemo for Respondent No.1.

Date of hearing: 2nd March, 2006.

P L D 2006 Karachi 285

Before Muhammad Sadiq Leghari, J

Syed ABDULLAH SHAH---Applicant/Complainant

Versus

KHADOO alias KHADIM HUSSAIN and another---Respondents

Criminal Miscellaneous Application No.83 of 2004, decided on 1st February, 2006.

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

---S. 497(5)-Penal Code (XLV of 1860), Ss.302 & 34---Bail, cancellation of---High Court granted bail to the accused and complainant filed application for its cancellation---High Court under subsection (5) of S.497, Cr.P.C., was competent to cancel bail granted by itself---Only that bail could be cancelled by the High Court which had been granted by it applying wrong principles or in departure from settled law---As regards question of bail in the cases of persons facilitating the execution of shot or fatal injury, no hard and fast rule had been laid down---Each case of such accused had to be dealt with individually on its own merits in' the light of facts and circumstances---Bail plea in cases of facilitated killing, had to be decided on the basis of tentative assessment of the material on question of vicarious liability---High Court, in the present case, neither had assessed tentatively the material collected against accused during investigation nor had considered aspect of vicarious liability---Material on record had shown that accused, who had motive against deceased, came along with three co-accused duly armed with pistols and actively participated in joint operation by holding victim from his arm and facilitating execution of shot by his co-accused---Evidence was also available that accused went away along with his co-accused firing in the air after completing operation---Such evidence had fully attracted the application of S.34, P.P.C.---Accused, in circumstances did not deserve grant of bail---As bail was granted to accused in departure from principle adhered to by Supreme Court for grant or refusal of bail in the cases of accused facilitating fatal injury, same was cancelled---Trial Court would get accused arrested.

Umer Daraz's case 2004 SCMR 1019; Barkat Bibi 1979 SCMR 65; Hakim Ali's case 1979 SCMR 114; Habibullah Khan 1985 PCr.LJ (S.C) 744; Shahid v. State 1994 SCMR 393; Basharat Hussain's case 1978 SCMR 375 and 1981 SCMR 35 ref.

Syed Asadullah Shah in person.

Safdar Ali Bhutto for Respondent No.1.

Muhammad Ismail Bhutto for the State.

Date of hearing: 1st February, 2006.

P L D 2006 Karachi 289

Before Amir Hani Muslim and Sarmad Jalal Osmany, JJ

MEHBOOB---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.D-7 of 2005 and Conf. Case No.D-1 of 2005, decided on 20th February, 2006.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Complainant who was father of accused had stated in his deposition that he did not see the person who had fired at deceased and at him----Complainant was declared hostile---Two eye-witnesses deposed that they had seen accused committing the murder of deceased---Both said witnesses had disputed the authenticity of their statement recorded under S.164, Cr.P.C. by the Mukhtiarkar---Two other prosecution witnesses who were Mashirs of recovery of the gun and arrested the accused, had not supported prosecution story and had deposed in the Court that recovery from accused was never effected in their presence---Trial Judge had passed impugned judgment relying upon circumstancial evidence and medical evidence---Ocular evidence based on prosecution witnesses who were declared hostile, was insufficient to connect accused with alleged offence, besides the fact that reliance on such circumstantial evidence was a dangerous precedent---Medical evidence had totally belied prosecution story as no explanation was given as to how deceased received five injuries on her person when there was only one gun-shot fired by accused---Prosecution story in the face of that medical evidence which the Trial Court had believed, was not confidence-inspiring---Mere injury to the complainant in no way would lead to conviction of accused as complainant had not disputed that he was not present nor he had denied to have received gun-shot, but in his deposition, he had stated that he could not identify the person who had fired at the deceased and him---Trial Court apparently had passed impugned judgment on the assumptions of fact which were not on record---Law required prosecution to prove case against accused beyond doubt and the Court while deciding criminal case had to assess evidence available on record and if there was one dent in prosecution story, it should give its benefit to accused, but the Trial Court had overlooked that elementary principle of criminal justice while awarding sentence---Trial Court had proceeded with private complaint and the State case simultaneously and while acquitting accused in the private complaint had convicted accused for the same incident in the State case, which was unusual---Grounds mentioned by the Trial Court in awarding sentence to accused by impugned judgment, were not plausible---High Court allowing appeal against impugned judgment set aside same and ordered release of accused.

Imdad Ali Awan for Appellant.

Muhammad Mahmood Khan Yousifi, A.A.-G. for the State.

Date of hearing: 16th February, 2006.

P L D 2006 Karachi 294

Before Sajjad Ali Shah, J

Messrs HABIB INSURANCE CO. LTD.---Petitioners

Versus

Messrs STATE LIFE INSURANCE CORPORATION OF PAKISTAN LTD. and another---Respondents

Constitutional Petitions Nos. 152, 153, 256 and 257 of 2005, decided on 27th February, 2006.

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

----S. 8---Fixation of fair rent---Applicant/landlord seeking fixation of fair rent of premises in question, had filed affidavit-in-evidence and produced various documents showing increase of taxes, increase in repair and maintenance charges and also prevailing rent of similar premises situated in similar circumstances in same and adjoining locality---Submission of tenant that landlord had failed to 'prove all the four factors as reflected in S.8 of Sindh Rented Premises Ordinance, 1979, was without any substance as absence of any of the factors would not, in any case, prejudice the case of landlord seeking fixation of fair rent---Landlord had placed on record sufficient evidence to establish that rent in same building was being charged at the rate of Rs.10 per sq. ft. per month, whereas rent of a premises situated on third floor of same building was being charged at the rate of Rs.8.57 per sq. ft. per month as fixed by High Court and upheld by the Supreme Court---Rent of premises was fixed Rs.8.57 per sq. ft. per month payable to landlord from the date as fixed by Rent Controller in its order.

Habib Bank Ltd. v. Anis Ahmad and others 1996 SCMR 1329 and Messrs Olympia Spinning and Weaving Mills Limited v. State Life Insurance Corporation of Pakistan Limited 2001 SCMR 1103 ref.

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

---Art. 73---Evidence---Appreciation of evidence---Where evidence was led by filing affidavit-in-evidence, the documents filed along with such affidavit, were always exhibited in the affidavit by the person filing such affidavit-in-evidence---Primarily, it was for the Court to examine the witnesses producing such documents and to exhibit the documents so produced and/or to refuse production of those documents which otherwise could not be produced in accordance with law---If such an exercise was not carried out by the Court, then it was for the adversary to challenge veracity of any document during cross examination; or ask for production of its original; and if no such objection was raised then it would lead to conclusion that production and/or genuineness of the document or its contents were not disputed.

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

----Art. 199---Constitutional jurisdiction---Scope---Findings of facts, normally, were not to be interfered with in exercise of constitutional jurisdiction unless it was shown that the findings were recorded by mis?appreciation of evidence and against well-settled principles for appraisal of evidence.

Mazhar Imtiaz Lari for Petitioners (in C.Ps.Nos. 152 nd 153 of 2005) and for Respondents (in C.Ps. No.256 and 257 of 2005).

Mian Mushtaq Ahmed for Respondents (in C.P. Nos. 152 and 153 of 2005) and for Petitioners (in C.P. Nos. 256 and 257 of 2005).

Date of hearing: 31st January, 2006.

P L D 2006 Karachi 302

Before Sarmad Jalal Osmany, J

HAKIM ALI, SIP and 7 others---Applicants

Versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous Applications Nos. 64, 72 and 85 of 2005, decided on 9th December, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 190, 173 & 174---Applications challenging powers of Magistrate to take cognizance of offences---Contention of applicants was that Magistrate could not deal with any police report under S.173 or S.174, Cr.P.C. either accepting or refusing same in a Sessions case-Further contention of applicants was that such report was to be forwarded to concerned Sessions Judge for disposal according to law---Submission of respondents on the other hand was that wording of S.190(2), Cr.P.C. had made it very clear that Magistrate was fully empowered to deal with police reports and thereafter either accept or reject them---Validity---Magistrate, while exercising jurisdiction under S.190, Cr.P.C., would act in an administrative capacity and would not function in a judicial manner and he was only to apply his mind to the material presented before him and thereafter he would decide whether he should take cognizance of the matter or not---If he decided to take cognizance in a case triable by him, then he should pass a speaking order after a fair assessment of such material and then proceed to try the case himself, if he accepted the police report or otherwise to discharge accused where he did not agree with the same---Magistrate should send case to the Sessions Court if it was a Sessions case upon acceptance of police report and again discharge accused if he did not agree with the same---Exercise to be conducted by the Magistrate under S.190, Cr.P.C., was not a judicial one and he could not determine the guilt or innocence of accused, but only had to assess evidence on record in a summary fashion and thereafter make up his mind whether or not to discharge accused---Magistrates of First Class, were empowered to take cognizance of any offence and per S.190(2), Cr.P.C., a Magistrate in case of an offence triable exclusively by a Court of Session, would, without recording any evidence, send case to such Court for trial---Enquiry to be conducted by Magistrate would also include an exercise to determine whether or not accused were to be sent up for trial in a Sessions case, which would mean that he must pass a reasonable order after conscious application of mind to the material present before him.

Bahadur v. The State PLD 1985 SC 62; Mehar Khan v. Yakoob Khan 1981 SCMR 267; Raja Khushbakhtoor Rehman v. The State 1985 SCMR 1314; Abdul Qadir v. The State 2000 PCr.LJ 520; Arif Ali Khan v. The State 1993 SCMR 187; Hussain Ahmad v. Mst. Irshad Bibi 1997 SCMR 1503; Safdar Ali v, Zafar Iqbal 2002 SCMR 63; Muzaffar Iqbal v. The State 1993 PCr.LJ 125; Muhammad Ali v. The State 1998 P.CrLJ 1323; Muhammad Tufail v. Assistant Commissioner 1995 MLD 1744; Muhammad Shareef v. The State 1997 SCMR 304; Awal Khan v. The Superintendent of Police 1989 PCr.LJ 909; Wazeer v. The State PLD 1962 WP (Lah) 405; Muhammad Arif Raza Ansari v. Board of Intermediate & Secondary Education Bahawalpur through Chairman and 10 others 2001 MLD 1435; Hamid Muqeen Bukhary v. The State PLD 1985 Lah. 71; Bashir Ahmed v. Allaqa Magistrate PLD 1980 Lah. 28; Farooq Sumar and others v. The State and others 2004 PCr.LJ 1023; Amir Ali v. The State PLD 1968 Lah. 537 and Habib v. The State 1983 SCMR 370 ref.

Ghulam Shabir Shar for the Applicant/Complainant, Mr. Zuber Ahmed Rajput for the Accused and Muhammad Iqbal Memon for the State (in Cr.M.A. No.64 of 2005).

Aziz Ahmed Khuwaja for the Applicant/Complainant, Liaqat Ali Sher for the Accused and Muhammad Iqbal Memon for the State (in Cr.M.A. No.72 of 2005).

Zuber Ahmed Rijput for the Applicants/Accused, Javed Hussain for the Complainant and Muhamamd Mahmood S.Khan Yousfi, Asstt. A.-G. for the State (in Cr.M.A. No.85 of 2005).

Dates of hearing: 12th, 26th September and 14th November, 2005.

P L D 2006 Karachi 314

Before Ghulam Rabbani and Zia Perwaz, JJ

Mir GHALIB DOMKI---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN, ISLAMABAD and 6 others---Respondents

Constitutional Petition No.4 of 2006 (Larkana) and Constitutional Petition No. D-21 of 2006 (Karachi), decided on 24th February, 2006.

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

----S. 103-AA---Declaring poll void---Power of Election Commission---Scope---If commission, from facts apparent on record and after summary enquiry as it may deem necessary, is satisfied that by reason of grave illegalities or violation of provisions of Representation of People Act,-1976, or the Rules, the poll ought to be declared void, it may make a declaration accordingly and by notification in official Gazette, call upon such constituency to elect a member in the manner provided for in S.108 of Representation of People Act, 1976.

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

----S. 103-AA(1)---Phrase `after, such summary inquiry as it may deem necessary'---Applicability---Mode and manner of inquiry by Election Commission has not been prescribed in S.103-AA of Representation of People Act, 1976, for it is the satisfaction of the Commission on the basis of record that by reason of grave illegalities or violation of provisions of Representation of People Act, 1976, or the Rules, the poll in any constituency ought to be declared void.

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

---S. 103-AA(1)---Term 'inquiry'--Connotation---Term inquiry is synonymous to word `examination'.

(d) Words and phrases----

---Inquiry---Meaning.

Webster's New World Dictionary (3rd Edn.) and Chambers 21st Century Dictionary (Revised Edn.) ref.

(e) Words and phrases-----

--"Summary"---Meaning.

Judicial Dictionary by K.J. Aiyar 13th Edn.; Mohan Lal v. Kartar Singh 1996 PLJ 383; Ballentines Law Dictionary; and Mumtazuddin Ahmed v. Sultan Jehan Begum PLD 1981 Kar. 329 ref.

(f) Representation of the People Act (LXXXV of 1976)---

----S. 103-AA(1)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Declaring polls void---Holding summary enquiry---Comparing percentage of votes polled with those of previous elections---Election Commission received complaint, during bye-elections about casting of bogus votes and rigging--Election Commission during summary enquiry did not find queue of voters at polling stations but in the results turn out of voters was stated to be higher than that of previous elections---Election Commission declared the election void and directed for re-election---Validity---Immediate determination of issue was required in election matters---Summary enquiry was left to the discretion of Election Commission `as it may deem necessary'---Commission undertook examination of reports placed before it in the light of allegations contained in the complaint and determined percentage of votes polled in all polling stations in the constituency in question; matched with the same with previous record enabling the Commission to reach a ,definite conclusion---Election Commission rightly declared the polls in the constituency null and void after conducting summary inquiry as envisaged in S.103-AA(1) of Representation of People Act, 1976---High Court in exercise of constitutional jurisdiction declined to interfere with the notification issued by Election Commission, declaring election void---Petition was dismissed in circumstances.

Haji Behram Khan v. Abdul Hameed Khan Achakzai and others PLD 1990 SC 352; Kanwar Khalid Younus v. Federation of Pakistan and others PLD 2003 Kar, 209; Mehmood Khan Achakzai and others v. Election Commission of Pakistan 2003 YLR 1413 and Sardar Muhammad Ashiq Dogar v. Federation of Pakistan 2004 YLR 471 distinguished.

Raza Hashmi for Petitioner.

Mehmood Alam Rizvi for Respondent No.1.

Zaheer Minhas for Respondent No.2.

Respondents Nos. 3 to 7 are present in person.

Date of hearing: 21st February, 2006.

P L D 2006 Karachi 325

Before Amir Hani Muslim and Sarmad Jalal Osmany, JJ

Mst. SHABANA RIYASAT---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.D-76 of 2003, decided on 3rd March, 2006.

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

----Ss. 9(c) & 25---Appreciation of evidence---Recovery had been effected from one of the rooms of the house of co-accused in his absence---Said recovery was effected in presence of two Mashirs, but prosecution had not examined one of the said Mashirs---Police Inspector had admitted that on both sides of house of co-accused from where recovery was effected, there were number of houses, but he did not call any person from public when he conducted raid on the house of accused---Trial Court had misread evidence by overlooking the fact that recovery of heroin had not been effected on the pointation of accused from the room of the house owned by co-accused---Besides accused, other persons were also living in the house in question---Room from where recovery was effected, was not bed room of the accused---Unless recovery was effected from possession of accused and was proved beyond reasonable doubt, he could not be convicted---Material available on record had shown that matrimonial dispute existed between the friend of Investigation Officer and accused--Locality in which raided house was located was thickly-populated area, but no private independent Mashir of the area was made witness of recovery---Provisions of S.103, Cr.P.C. though were inapplicable to Control of Narcotic Substances Act, 1997, but still S.25 of said Act, did not debar Anti-Narcotic Force Police from effecting recovery in presence of independent private witnesses, when they had prior knowledge of such raid in a house in the day time which was populated---Mere presence of accused in the house at the time of raid, which otherwise was natural as she being female, was expected to be in the house of her husband, would not make her liable to conviction, moreso, when prosecution story did not suggest that accused was involved in the business of sale of heroin---Impugned judgment was passed on assumptions of facts and accused at no point of time was in exclusive possession of bedroom from where heroin was recovered nor prosecution had proved that accused was in knowledge that heroin powder was lying in the said room---Co-accused had been acquitted---Appeal against conviction and sentence of accused was accepted and he was ordered to be released.

Imdad Ali Awan for Appellant.

Muhammad Aslam Roshan, S.P.P. for the State.

Date of hearing: 22nd February, 2006.

P L D 2006 Karachi 331

Before Sabihuddin Ahmed, C. J., Ghulam Rabbani, Mushir Alam, Rahmat Hussain Jafferi and Khilji Arif Hussain, JJ

QAMAR HUSSAIN SHAH---Applicant

Versus

THE STATE---Respondent

Criminal Transfer Applications Nos.23 of 2005 and C/W Transfer Applications Nos. 32 and 33 of 2005, decided on 15th February, 2006.

Per Sabihuddin Ahmed, C.J.; Ghulam Rabbani and Mushir Alam, JJ agreeing---

(a) General Clauses Act (X of 1897)---

----S. 6---Special law would prevail over the general law and in the event. of inconsistency and wherever the special law is silent on a subject the provisions of the general law would continue to apply---Principles.

M. Javed Doulat Zai v. Returning Officer 2002 CLC 198 fol.

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

----S. 4---Control of Narcotic Substances Act (XXV of 1997), S.45---Question framed for the decision of the Full Bench was as to what was the effect of S.4 of the Juvenile Justice System Ordinance, 2000 on S.45 of the Control of Narcotic Substances Act, 1997 or any similar provisions of law conferring exclusive jurisdiction to try offences---Held, cases of persons below the age of 18 years at the time of commission of the offence under Control of Narcotic Substances Act, 1997 shall stand transferred to the respective Juvenile Courts comprising Courts of Session and Magistrates in the respective districts where they have been allegedly committed and will be proceeded in accordance with the procedure prescribed in Juvenile Justice System Ordinance, 2000---Such Juvenile Courts, however, will proceed with the cases from the stage at which they were transferred and no recalling of witnesses or de novo trials will be invoked---Principles.

Ketno v. Judge, Anti-Terrorism Court 2005 MLD 353; M. Alim Ashraf v. State 2005 MLD 1028; Azra Bibi v. State 2004 PCr.LJ 1967; Muhammad Din v. Muhammad Jahangir PLD 2004 Lah. 779; M. Javed Doulat Zai v. Returnign Officer 2002 CLC 198; Zia Ullah v. Najibullah and others PLD 2003 SC 656; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 and Habib Wahabul Khairi v. Choudhry Saeed Ahmed 1979 SCMR 545 ref.

(c) Juvenile Justice System Ordinance (XXII of 2000)---

----S. 4(2)(a)---Anti-Terrorism Act (XXVII of 1997), S.19(14)---Question framed for decision of the Full Bench was as to what was the effect of S.12 of the Anti-Terrorism Act, 1997 or any similar provision of law conferring exclusive jurisdiction to try offences---Held, cases of persons below the age of 18 years at the time of commission of the acts of terrorism in terms of Items 1 and 3 to the Third Schedule (and not under Item 2 or 4) of Anti-Terrorism Act, 1997 shall stand transferred to the respective Juvenile Courts comprising Courts of Session and Magistrates in the respective districts where they have been allegedly committed and will be proceeded in accordance with the procedure prescribed in Juvenile Justice System Ordinance, 2000---Such Juvenile Courts, however, will proceed with the cases from the stage at which they were transferred and no recalling of witnesses or de novo trials will be invoked---Cases where children are accused of having committed offences created by the Anti-Terrorism Act, 1997 (as distinguished from acts of terrorism in Item 1 or those added through Item 4 of the Third Schedule i.e. abduction or Kidnapping for ransom, use of fire-arms or explosives in places of worships and Courts), will however, continue to remain triable by the Anti-Terrorism Courts---Anti-Terrorism Courts will not be bound by the rules or procedures required for Juvenile Courts---Nevertheless the substantive protection not inconsistent with the Act under the Juvenile Justice System Ordinance, 2000 would be accorded by such Courts while trying children---Principles.

Ketno v. Judge, Anti Terrorism Court 2005 MLD 353; M. Alim Ashraf v. State 2005 MLD 1028; Azra Bibi v. State 2004 PCr.LJ 1967; Muhammad Din v. Muhammad Jahangir PLD 2004 Lah. 779; M. Javed Doulat Zai v. Returnign Officer 2002 CLC 198; Zia Ullah v. Najibullah and others PLD 2003 SC 656; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 and Habib Wahabul Khairi v. Choudhry Saeed Ahmed 1979 SCMR 545 ref.

Per Khilji Arif Hussain, J.--Contra-

Sarwan Singh and another v. Kasturi Lal AIR 1977 SC 267; Shri Ram Narain v. Simla Banking and Industrial Co. Ltd. 1956 SCR 603 (AIR 1956 SC 614); Ravi Dutt v. Ratan Lal Bhargave AIR 1984 SC 967; Forbes v. Git and others AIR 1921 PC 209; The Punjab Province v. (1) L. Sita Ram and others (2) Custodian of Evacuee Property, Punjab PLD 1956 FC 157; Industrial Development Bank of Pakistan v. Modern Poultry Farm Ltd. 1990 CLC 1030; Messrs Shafiq Hanif (Pvt.) Ltd. Karachi v. Bank of Credit and Commerce International (Overseas) Ltd., Karachi PLD 1993 Kar. 107 and Ashoka Marketing Ltd. and other v. Punjab National Bank AIR 1991 SC 855 ref.

Per Rehmat Hussain Jafferi, J.-

Interpretation of statutes---

----Special and general law---Maxim:?? Generalibus????? speacialia derogant and Generalia Specialibus non derogant---Applicability.

Maxwell on Interpretation of Statutes 12th Edn. pp.196-198 and Sweard v. Vera Cruse (1885) AC 59 ref.

Words and phrases---

----"Addition"---Meaning.

Black's Law Dictionary 6th Edn, ref.

Words and phrases---

----"Derogation"---Meaning.

Black's Law Dictionary 6th Edn. ref.

Juvenile Justice System Ordinance (XXII of 2000)----

----Ss. 4 & 15---Analysis.

Amro Jan v. Amir Muhammad 1972 SCMR 639 ref.

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

---Preamble---Anti-Terrorism Act (XXVII of 1997), Preamble---Trial of all accused persons including major, minor, young and old---Manner.

Interpretation of statutes---

----Special and general enactment---Avoidence of inconsistency and repugnancy---Principles.

Principles of Statutory Interpretation 4th Edn. p.85 by Justice G.P. Singh; Vekataramana Devarus v. State of Mysore AIR 1958 SC 255; Calcutta Gas Co. v. State of W.B. AIR 1962 SC 1044; South India Corporation v. Secretary, Board of Revenue AIR 1964 SC 207 and Ajay Kumar v. Union of India AIR 1984 SC 1145 ref.

Juvenile Justice System Ordinance (XXII of 2000)-

----Preamble---Interpretation of Juvenile Justice System Ordinance, 2000---Principles.

Interpretation of Constitution---

----Principles.

President's Reference PLD 1957 SC 219 quoted. Juvenile

Justice System Ordinance (XXII of 2000)---

----Preamble---Control of Narcotic Substances Act (XXV of 1997), Preamble---Anti-Terrorism Act (XXVII of 1997), Preamble---Provisions of Juvenile Justice System Ordinance, 2000 to be read with other laws including Control of Narcotic Substances Act, 1997 and Anti-Terrorism Act, 1997---Principles.

Venkateshwar Rao Government of Andhra Pradesh AIR 1966 SC 828; State v. Zia-ur-Rehman PLD 1973 SC 59 and President's Reference PLD 1957 SC 219 ref.

Juvenile Justice System Ordinance (XXII of 2000)---

----Preamble---Control of Narcotic Substances Act (XXV of 1997), Preamble---Anti-Terrorism Act (XXVII of 1997), Preamble---Jurisdiction of Courts created under Control of Narcotic Substances Act, 1997 and Anti-Terrorism Act, 1997 to take cognizance and try the offences of said Acts in respect of all the accused persons including major and minor---Scope and extent---Principles.

Maxwell on Interpretation of Statutes 12th Edn. pp.196-198; Sweard v. Vera Cruse (1885) AC 59; Black's Law Dictionary 6th Edn.; Amro Jan v. Amir Muhammad 1972 SCMR 639; Principles of Statutory Interpretation 4th Edn. p.85 by Justice G.P. Singh; Vekataramana Devarus v. State of Mysore AIR 1958 SC 255; Calcutta Gas Co. v. State of W.B. AIR 1962 SC 1044; South India Corporation v. Secretary, Board of Revenue AIR 1964 SC 207; Ajay Kumar v. Union of India AIR 1984 SC 1145; President's Reference PLD 1957 SC 219; Venkateshwar Rao v. Government of Andhra Pradesh AIR 1966 SC 828; State v. Zia?ur-Rehman PLD 1973 SC 59; Abdul Rauf Khan v. Collector, Central Excise and Land Customs 1980 SCMR 114; Khushbakhtur Rehman v. State 1985 SCMR 1314; Muhammad Rafiq v. State and Abdul Karim Brohi v. State PLD 2005 Kar. 498 and Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104 ref.

Juvenile Justice System Ordinance (XXII of 2000)---

----S.4(1)---Functions of Provincial Government under S.4(1), Juvenile Justice System Ordinance, 2000---Scope and extent.

Muhammad Rafiq v. State and Abdul Karim Brohi v. State PLD 2005 Kar. 498 and Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104 ref.

Abdul Rehman and Ms. Saleha Naeem for Applicant.

Sarwar Khan, Addl. A.-G., Habib Ahmed, Asstt. A.-G., Nadeem Azhar Siddiqui, D.A.-G., Mehmood Alam Rizvi, Special Prosecutor for Attorney-General for the State.

Akhtar Hussain, Advocate/President High Court Bar Association on Court Notice.

Date of hearing: 17th October, 2005.

P L D 2006 Karachi 372

Before Khilji Arif Hussain, J

Mrs. SAFIA ZAFAR and 3 others---Plaintiffs

Versus

AMANULLAH SIDDIQUI and 3 others---Defendants

Suit No.553 of 2002, decided on 27th March, 2006.

(a) Words and phrases-

----"Estate"---Definition.

Black's Law Dictionary (6th Edn.) ref.

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

----O. XII, R.13---Administration suit---Defendant's plea that suit property was purchased with his fund by deceased---Admission of defendant at the time of passing preliminary decree that suit property including other properties in possession of respective parties constituted estate of deceased---Preliminary decree ,was upheld in appeal of defendant---Validity---Preliminary decree having attained finality could not be questioned by defendant in view of such admission---Suit property would form part of estate left by deceased---Final order was ordered to be prepared in terms of Nazir's report.

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

----O. XX, R.13, First Sched. Appendix D, Forms 17 & 20---Administration suit involving question as to title of suit property would be competent---Principles.

The question, whether the property constitutes part of estate of the deceased, can be answered in administrative suit, because the question of title has necessarily to be gone into as the Court does not otherwise know on what property its orders are to operate, otherwise in every administrative suit, defendant would raise a plea covering a question of title by some other complicated question and can urge that

the suit as framed is not competent, which would defeat the very purpose of an administrative suit and would lead to avoidable multiplicity of judicial proceedings between the same party in situation cannot be allowed to raise in such suit. The question as to title of the property can be appropriately considered in an administrative suit and that would not alter the nature and character of the suit. This is also indicated by the procedure prescribed in Order XX, Rule 13, C.P.C. and by Form of Decree Nos. 17 and 20 in Appendix D of the First Schedule of the Code.

Moti Bhai Shankarabhai Patel v. Natha Bhai, 45 Bom.1053; Muhammad Ali Adamjee Masawala and others v. Abdul Haroon Masalawala ILR 1948 Born. 331 and Asghar Ali v. Zohrabi and anoher 2000 MLD 122 rel.

Badar Alam for Plaintiffs.

Moula Bux Bhatti and Shah Nawaz Awan for the Defendants.

P L D 2006 Karachi 377

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

SHAFIQUE AHMED alias SHAHJEE---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.361 and 382 of 2004, decided on 17th March, 2006.

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

----S. 340---Right of accused to be defended by a counsel---One of the duties of the Court of Session is to see that the accused is represented by a qualified legal practitioner in the cases involving capital punishment---Such cases shall not be tried in the absence of Advocate for the accused or proceeded with without first appointing an Advocate to defend him, if he is unable to do so.

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

----S. 8---Method provided to nullify the delaying tactics of the accused or his counsel---When on two consecutive dates the Advocate for the accused does not appear in Court, then a Counsel at State expense can be appointed to proceed with the case---However, if subsequently the Advocate of the choice of accused appears then preference shall be given to him to defend the accused, and the State Counsel may be retained to frustrate the future design of delaying the case by the accused.

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

----S. 340---Right of accused to be defended by a Counsel---Procedure where accused refuses to accept legal assistance provided by Court---Accused has the right to be defended by an Advocate of his choice---Court cannot impose an Advocate upon the accused---Where an accused does not accept the legal assistance provided to him by the Court, the case cannot be allowed to remain pending---Accused in such a situation shall be asked to defend the case himself and then the case can proceed in his presence.

State v. Zulfiqar Ali Bhutto PLD 1978 Lah. 523; Baz Muhammad v. State PLD 2003 Quetta 73 and Iftikharuddin v. Crown PLD 1954 Lah. 547 rel.

(d) Counsel and client---

----Duties and responsibilities of Counsel---Advocates are duty bound to appear before the Court when it takes up the case of an accused pending before it and they are not expected to remain absent without informing the Court or showing sufficient or reasonable cause---One of the professional duties of Advocates is also to assist the Court being basically the Officers of the Court and their first duty and responsibility is towards the Court and then towards their clients---Advocates remaining absent from the Court without any intimation or sufficient cause expose themselves to be tackled by Bar Council on account of such misconduct, which may entail cancellation of their practising licence.

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

----S. 365-A/34---Accused not properly defended before Trial Court, trial held vitiated---Trial of accused had commenced in the absence of their Advocates---Only two witnesses were examined in the presence of the Advocate of one accused and the remaining witnesses had been examined in the absence of the Advocates of both the accused---Accused, as such, were prejudiced in their trial and defence which had caused a miscarriage of justice---Illegality committed by the Trial Court in adopting the said procedure could not be cured under S.537, Cr.P.C. and the same had vitiated the trial---Conviction and sentence of accused were consequently set aside and the case was remanded to trial Court for fresh trial in presence of the Advocates of the accused, in accordance with law.

State v. Zulfiqar Ali Bhutto PLD 1978 Lah. 523; Baz Muhammad v. State PLD 2003 Quetta 73 and Iftikharuddin v. Crown PLD 1954 Lah. 547 rel.

Sarfraz Khan Tanoli, Khadim Hussain and Wazir Hussain Khosa for Appellants.

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

Date of hearing: 20th December, 2005.

P L D 2006 Karachi 386

Before Muhammad Mujeebullah Siddiqui, and Sajjad Ali Shah, JJ

COLLECTOR OF SALES TAX AND FEDERAL EXCISE, LARGE TAXPAYERS UNIT, KARACHI---Appellant

Versus

Messrs B.O.C. PAKISTAN LIMITED, KARACHI-Respondent

Special Tax Reference Application No.8 and C.M.A. No.311 of 2006, decided on 17th March, 2006.

Constitution of Pakistan (1973)---

----Art. 189---Question of law decided by High Court and upheld by Supreme Court---Re-agitating such question before High Court without any change in the law itself on the ground that rules of interpretation were not considered---Validity---Ratio of judgment of Supreme Court would hold the field and would be binding on High Court---For party seeking re-interpretation of law, the proper forum would be Supreme Court and not the High Court.

Raja Muhammad Iqbal for Applicant.

P L D 2006 Karachi 388

Before Muhammad Moosa K. Leghari, J

JUMMAN alias JUMA and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.155 and 170 of 2000 and Criminal Jail Appeal No.187 of 2000, heard on 22nd February, 2006.

Penal Code (XLV of 1860)---

---Ss. 302, 324 & 34---Criminal Procedure Code (V of 1898), Ss. 353 & 537---Qanun-e-Shahadat (10 of 1984), Art.133---Appreciation of evidence---Trial Court had proceeded with the case in a most cursory, irresponsible, rather negligent manner and proceedings were marred by inherent defect and illegalities---When initially the trial commenced, one of accused persons was not before the Court as he was absconding and before said accused could be arrested and sent up, prosecution evidence was recorded---Examination-in-chief of two prosecution witnesses was recorded more than four months after recording of evidence of three prosecution witnesses---After arrest of absconding accused, though an amended charge was framed, but evidence was not recorded afresh as required under S.353, Cr.P.C. which was violative of Art.133 of Qanun­e-Shahadat, 1984---Such gross irregularity was not curable under S.537, Cr.P.C.---Judgment and conviction recorded thereunder was vitiated on that score alone---Another accused was not afforded proper opportunity to cross-examine witness which was legal right of every accused---Said accused was not allowed to defend himself in a proper way---Application of advocate of said accused for adjournment, of case was dismissed, Vakalatnama of said Advocate was cancelled and in his place another advocate was appointed to conduct case of said accused without consent of accused to which he objected and stated that he had no trust in said advocate---Appointment of an advocate in an arbitrary manner, and, in whom accused had no trust and then, hastily proceeding to close his side without affording accused last opportunity to defend himself was absolutely illegal, most perverse, leaving no room for condoning same---On merits also there were material infirmities/ contradictions in depositions of prosecution witnesses and even in impugned judgment the facts had not been stated truly and properly---Allegation was that a single barrel gun was recovered from the house of co-accused which recovery was made in his absence and neither the gun nor empty cartridges were sealed---Case was registered after holding investigation, which was not permissible in law---Ocular testimony was also in conflict with medical evidence---Serious dents in prosecution case, had rendered conviction and sentence awarded to accused, illegal and unsustainable---Impugned judgment was set aside and accused were acquitted, accordingly.

Ali Gohar Soomro and Mahmood A. Qureshi for Appellants.

Muneer Ahmed Khawaja Counsel for the State.

Date of hearing: 22nd February, 2006.

P L D 2006 Karachi 393

Before Sarmad Jalal Osmuny, J

Dr. ABDULLAH HAMID MEHMOOD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.101 of 2006, decided on 24th April, 2006.

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

----S. 497---Penal Code (XLV of 1860), S.302/34--Bail on medical grounds---Scope---Medical ground for grant of bail is only considered when it can be established that the continued detention of the accused in prison would be detrimental to his health meaning thereby that the accused was suffering from a disease which could not be treated or managed by the prison doctor---Principles.

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

---S. 497-Penal Code (XLV of 1860), S. 302/34 Bail-Abscondence of accused and his co-accused son---Effect---Principles.

Abdul Aziz v. Bashir Ahmed PLD 1966 SC 658; Missal Muhammad v. The State 1986 SCMR 847; '1'asneeni Kasuser v. Muhammad Bashir 1981 SCMR 686; Abbas v. The State 2000 SCMR 212; Nawazishullah v. The State 1988 PCr.LJ 2275; Sardar Abdul Hamid v. Momin Khan PLD 1984 Pesh. 199; Tariq Nazeer v. The State 2003 YLR 2550; Muhammad Arshad v. The State 1997 SCMR 1275; Sher Ali v. The State 1998 SCMR 190; Daulat Khan v. The State 1999 PCr.LJ 105; Abdul Majid v. The State 2003 MLD 194; Ghulam Raza v. Khuda Bux 2005 SCMR 1904; Pervez v. The State 2005 YLR 37 and Rahm Sher v. Malika 2005 PCr.LJ 288 ref.

M.M. Jilani for Applicant.

Arshad Mehmood for the Complainant.

Sardaruddin Qureshi for the State.

Dates of hearing: 4th, 18th March, 1st, 8th and 17th April. 2006.

P L D 2006 Karachi 397

Before Muhammad Mujeebullah Siddiqui, J

ZAHEER HUSSAIN---Applicant

Versus

THE STATE---Respondent

Special Criminal Bail Application No.9 of 2006, decided on 3rd April, 2006.

Criminal Procedure Code (V of 1898)---

-------S. 497---Sales Tax Act (VII of 1990), Ss.2(37) & 37-B(II)---Bail, refusal of---Material on record had made out a prima facie case involving the applicant in the commission of tax fraud amounting to Rs.37.45 million---Criteria for grant of bail in white collar crime being entirely different than the grant of bail in any other criminal case, accused was not entitled to be released on bail---Principles.

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

Sohail Muzaffar for Applicant.

Mehmood Alam Rizvi, Standing Counsel for the State.

Tanvir Sibtain Mahmud for the Sales Tax Department.

Date of hearing: 3rd April, 2006.

P L D 2006 Karachi 404

Before Samad Jalal Osmany, J

ABDUL LATEEF---Applicant

Versus

ASHIQUE ALI and others---Respondents

Civil Revision Application No.S-15 of 1996, decided on 17th March, 2006.

Transfer of Property Act (IV of 1882)-

----Ss.58(c) & 60---Specific Relief Act (I of 1877), Ss. 12 & 39---Suit for specific performance of agreement and cancellation of, subsequent sale-deed---Mortgage by way of conditional sale---Claim of petitioner was that respondent obtained amount as loan from him and as security for repayment of said loan, he had mortgaged his shop in favour of petitioner with a stipulation that if said amount would not be paid by stipulated date, mortgage deed would be treated as one for absolute sale; and thereafter respondent would execute sale-deed in favour of petitioner---Petitioner had further asserted that possession of shop had been delivered to him and that respondent had also executed power-of­ attorney in favour of son of petitioner, whereby said attorney would be authorized to execute sale-deed in favour of petitioner---Petitioner had alleged that respondent had failed to repay amount by stipulated date and instead fraudulently had executed a sale deed for sale of said shop in favour of other respondent---Respondent denied claim of petitioner contending that amount had been returned to petitioner and possession of shop in question had been delivered to respondent---Suit filed by petitioner was decreed by the Trial Court, but appellate court set aside judgment and decree of the Trial Court and petitioner had filed revision against judgment of appellate court---Validity---Held, in view of stipulations and conditions contained in mortgage deed in question, it was a mortgage by conditional sale within the meaning of S.58(c) Transfer of Property Act, 1882 and suit based upon same for specific performance would be barred being a clog on equity of redemption which had been accorded to the mortgager under S.60 of Transfer of Property Act, 1882---Suit for specific performance filed by petitioner upon document in question, would be barred by law---No exception could be taken to impugned order passed by appellate Court below.

Abdul Sattar v. Sardar Begum 1992 SCMR 417; Ganu Mia v. Abdul Jabbar PLD 1959 Dhaka 293; Allahanda v. Sadarangmal PLD 1967 Kar. 859; Aziz Ullah Khan v. S.H.O. 2001 YLR 263; Muhammad Ramzan v. Yagoot Begum 1991 SCMR 819; Muhammad Iqbal Nasim v. Seema Shamim 1991 CLC 2056; Aman Enterprise v. Rahun Inds. Pak. Ltd. PLD 1993 SC 292; Abdul Saboor v. Sated Mir PLD 1982 AJK 79; Allah Rakha v. Muhammad Yousaf 1990 MLD 1592; Wazirdullah v. Land Acquisition Collector PLD 2003 Pesh. 235; Sher Baz Khan v. Adam Khan PLD 2002 Pesh. 1 and Binyameen v. I-Hakim 1996 SCNIR 336 ref.

Abdul Naeem for Applicant.

Abdul Qadir Shaikh for Respondents.

Dates of hearing: 12th 19th, 26th August, 9th, 16th and 30th September, 2005.

P L D 2006 Karachi 410

Before Gulzar Ahmed, J

MUHAMMAD SALEEM---Plaintiff

Versus

Mst. FARIDA SALEEM and 3 others---Defendants

Suit No.281 of 1998 and C.M.A. No.7041 of 2005, heard on 3rd February, 2006.

Civil Procedure Code (V of 1908)---

----Ss. 151 & 152---Specific Relief Act (I of 1877), Ss.39, 42 & 54---Suit for declaration, permanent injunction and cancellation of gift-deed---Consent judgment and decree---Application for amendment of judgment and decree---Suit was decreed with consent of plaintiff and defendant on terms among others that suit property would be sole and exclusive property of defendant and that defendant would not alienate, transfer and/or encumber said property or create any charge thereon during her life time---Decree was drawn on said terms---Parties through their application had sought deletion of the term that "defendant would not alienate, transfer etc..." of said consent decree and had sought that defendant be allowed to sell suit property---Compromise decree was passed by the Court on agreement of parties whereby parties were at liberty to have it amended or modified by their mutual consent---Sanctity was attached to a decree passed by Court and provisions of C.P.C. provided for the situation where a decree could be sought to be amended or modified or even altogether set aside, for example by review, revision, appeal, on application under S.12(2), C.P.C. or under S.152, C.V.C.---Once it was acknowledged that defendant was a sole and exclusive owner of property, she in law had a right to deal with it in any manner she considered appropriate---Defendant, in doing so, had right to alienate, transfer, encumber or create charge on the property-Clog . under the terns of consent decree, could not justifiably be put on exercising such right by defendant---Bar contained in said clause, of the agreement would either be redundant or not in accordance with law---Provisions of S.151, C.P.C. whereunder application was filed for amendment of decree by deleting the clause therein, were attracted to circumstances of the case whereby inherent power of the Court could justifiably be invoked to meet the ends of justice and to amend or modify consent decree by mutual agreement of parties---Application was allowed, in circumstances.

Yousaf Ismail Bhai Abdullahbai Lalji v. Abdullabhai Lalji and others AIR 1932 Bom. 615; Alarakha Hassan and others v. Amir Hussain Aladmiya and others AIR 1968 Gujrarat 265; Habib Mian and another v. Mukhtar Ahmad and another AIR 1969 All. 296; Banka Behari Bhattancherjee v. United Bank of India Ltd. and others AIR 1957 Tripura 50; Bindeshwari Pd. Chaudhary v. Debendra Pd. Sindh and others AIR 1958 Pat. 618; Sindh Road Transport Corporation v. Major (Rtd.) S.M. Ali Zaheer Khan 1991 SCMR 425; Mian Shamsul Haq and others v. Mian Hamid Haq and others 1997 SCMR 586; Bhima Rama Jadhav v. Abdul Rashid AIR 1961 Mysore 175; R. Subramanita Iyer and others v. Thangammal AIR 1965 Madras 305; Ramjanatn Tewary and another v. Bindeshwari Bai AIR 1951 Pat. 299; Water and Power Development Authority v. Mian Abdul Rauf PLD 2002 Lah. 268; Ram Rakha Mal Bhandari v. Dina Nath Bhatia and others AIR 1941 Lahore 419; Muhammad Anwar Khan and 5 others v. Chaudhary Riaz Ahmad and 5 others PLD 2002 SC 491,; Mst. Zakia Begun v. Niaz Ahmad 1999 MLD 3156; Sher Muhammad and others v. Khuda Bux and another PLD 1961 (W.P. Lahore 579 and Riaz Hussain v. Mazaray Khan 1988 CLC ..1 129 ref.

Plaintiff in person.

Abdul Hameed Iqbal for Defendant No.1.

Date of hearing: 3rd February, 2006.

P L D 2006 Karachi 416

Before Gulzar Ahmed, J

Mian MANZOOR HUSSAIN and 2 others---Plaintiffs

Versus

GOVERNMENT OF PAKISTAN through Secretary Ministry of Communications, Rawalpindi and 2 others---Defendants

Suit No.201 of 1967, decided on 27th March, 2006.

(a) Administration of justice---

----Decision of cases by Court as early as possible would obviate miseries of litigants---Extraordinary delay in decision would reflect gravely on the institution of Court of justice---Principles.

Administration of justice requires that matters brought in Court of law are to be decided and disposed of as early as possible. It so happens in certain cases that extraordinary delay in the decision of the case takes its tool to the extent that the matter ceases to have either live issue or parties become disinterested for lack of getting appropriate relief within a reasonable period of time. This reflects gravely on the institution of Court of Justice, thus special attention needs to be given to old pending cases to obviate the miseries of the litigants, who have come to the door of Court seeking justice in accordance with law.

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

----S. 73---Specific Relief act (I of 1877), S.19---Compensation for loss caused by breach of contract, grant of---Breach of contract not proved---Effect---Provisions of S.73 of Contract Act, 1872 and S.19 of Specific Relief Act, 1877 would not come into operation.

PLD 1970 Kar. 229 ref.

Raja Qureshi and Abdul Ghafoor Qureshi for Plaintiffs Nos. 1 and 2.

Abrar Hassan for Official Liquidator of Plaintiff No.3.

S. Tariq Ali, Standing Counsel for Defendant No. 1.

Himayat Ali Pirzada for Defendant No.2.

Dates of hearing: 15th 23rd, 29th September and 12th October, 2005.

P L D 2006 Karachi 425

Before Maqbool Baqar and Attaur Rehman, JJ

Syed HASSAN ALI SHAH---Appellant

Versus

STATION HOUSE OFFICER, POLICE STATION DADU and others---Respondents

Criminal Miscellaneous No.123 of 2002, heard on 19th September, 2002.

Criminal Procedure Code (V of 1898)---

----S. 491---Police Rules, 1934, R.22.48---Habeas corpus application---Applicant sought release of his nephew who allegedly was under wrongful confinement at Police Station---Allegation by applicant was that S.H.O. and other staff of the Police Station arrested the detenu from Civil Hospital where he was performing his duty, he was constantly tortured at Police Station and that no entry of detenu's arrest and detention was made in the record of Police Station---Magistrate duly appointed visited Police Station concerned and found detenu confined in lock-up, but no entry was in Roznamcha regarding arrest of the detenu---Magistrate in his report had stated that detenu was in a very serious condition and marks of violence were visible on his body---S.H.O. concerned gave conflicting report stating that he called the detenu for investigations in case/crime under Ss.457 & 380, P.P.C. and Hudood Laws and that entry to that effect was made in daily Station Diary---High Court, in view of said conflicting statements directed District and Sessions Judge to enquire into the matter and District Sessions Judge appointed Additional District & Sessions Judge who, after conducting inquiry, found that statement made by S.H.O. and affidavit filed by him, were false, concocted and were incorrect, whereas report submitted by the Judicial Magistrate, was correct and that no mala fide was found on part of Magistrate and that no enmity was alleged against Magistrate by Police Officer---Detenu was kept by S.H.O. in illegal confinement without any entry and without any mashirnama and that purported entry in Daily Diary Register were manipulated by S.H.O. in a clumsy attempt to avoid legal consequences of his illegal, mala fide and despotic acts---Detenu was confined to lock-up of Police Station without any entry or record in clear violation of R.22.48 of Police Rules, 1934, which rule essentially required recording of events of arrest and detention by police---S.H.O, was also liable for committing perjury before the Courts by making false and misleading statements on oath and also for his attempt to obstruct the course of justice---High Court directed that S.H.O. concerned would pay to detenu a sum of Rs.40,000 as compensation for illegally detaining detenu in Police Station for eight days and to take appropriate disciplinary action against said S.H.O.; and to hold inquiry into the matter and to submit report in that respect.

Mazharuddin v. The State 1998 PCr.LJ 1035; Agha Khuda Bux, Advocate v. The State 1999 PCr.LJ 1209; Ali Ahmed v. Muhammad Yakoob Almani PLD 1999 Kar. 134 and Irshad Ali v. Abdul Hameed Khakhrani 2000 PCr.LJ 599 ref.

Muhammad Iqbal Kalhore for Applicant

Mashooq Ali Samoo, A.A.-G. Sindh for Respondents.

Date of hearing: 19th September, 2002.

P L D 2006 Karachi 437

Before Gulzar Ahmed, J

DADABHOY INVESTMENTS (PVT.) LTD. KARACHI---Plaintiff

Versus

PRIVATIZATION COMMISSION through Director-General, Islamabad and 2 others---Defendants

Civil Suit No.743 of 2005, decided on 18th April, 2006.

(a) Administration of justice---

---Hierarchy of the judiciary functions in a disciplined and systematic manner in accordance with rules, practice, procedures and substantive law---No rule, practice, procedure or substantive law exists where a Single Judge of the High Court can sit in judgment over a judgment/order passed by a Division Bench of High Court to determine its legality or propriety.

(b) Administration of justice---

---For setting aside an order or to challenge the proceedings; remedy should be availed first of all within the hierarchy of the law under which the forum whose proceedings had been objected to was functioning instead of approaching different forum for the redressal of the grievances.

Shaukat Khan v. Assistant Political Agent Landi Kotal Khyber Agency PLD 2002 SC 526; Muhammad Ashfaq v. The State PLD 1973 SC 368 and Khudai Dad and others v. The State PLD 1997 Quetta 69 ref.

Aziz A Munshi for Plaintiff.

Munir A. Malik for Defendant No.1.

Shaikh Abdul Aziz for Defendant No.2.

Mahmood Alam Rizvi, Standing Counsel for Defendant No.3.

Dates of hearing: 8th, 23rd November, 14th December, .2005, 14th February, 16th, 17th, 20th, 27th March and 10th April, 2006.

P L D 2006 Karachi 444

Before Sabihuddin Ahmed, C.J., Muhammad Mujeebullah Siddiqui and Khilji Arif Hussain JJ

RIMPA SUNBEAM CO-OPERATIVE HOUSING SOCIETY LTD. through Managing Director---Plaintiff

Versus

KARACHI METROPOLITAN CORPORATION through Adminsitrator---Defendant

Suits Nos.639 of 1987, 181 and 789 of 1991 and 735 of 1993, heard on 12th December, 2005.

Per Sabihuddin Ahmad, C.J.; Muhammad Mujeebullah Siddiqui and Khilji Arif Hussain, JJ, agreeing.-

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

----Art. 143 & Fourth Sched., Concurrent List, Item 46---Whenever an Act of a Provincial Legislature relating to a subject falling within the Concurrent Legislative List of the Constitution was repugnant to an Act of Parliament, whether enacted before or after the provincial law, the latter would invariably prevail---Item 46 of the Concurrent List in the Fourth Sched. of the Constitution confers legislative power upon both the Parliament and a Provincial Assembly to make laws with respect to jurisdiction and powers of all Courts except the Supreme Court with respect to any of the matters contained in the aforesaid.

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

----S. 7 [as amended by Sindh Civil Courts (Amendment) Ordinance, (XXX of 2002)]---Jurisdiction of Sindh High Court to entertain suits is basically neither the ordinary nor the extraordinary original' civil jurisdiction of the High Court but simply a District Court jurisdiction, which was conferred and regulated by a Provincial Statute---Karachi Courts Order, 1956, was not a law made by the Parliament in the exercise of powers under the Concurrent Legislative List of the Constitution of Pakistan---No conflict between a Federal and Provincial Law existed in the above said context and, therefore, in accordance with S.7 of the Sindh Civil Courts Ordinance, 1962, the jurisdiction of Sindh High Court to try Civil Suits is confined to matters where the pecuniary value of the subject-matter exceeds Rs.30,00,000---All other suits are liable to be tried by the District Courts.

Firdous Trading Corporation v. Japan Cotton and General Trading Company PLD 1961 Kar. 565; Asad Ali v. Settlement Commissioner (PLD 1974 Kar. 345; Jamshed and Guzdar v. State of Maharashta 2005 2SCC 591; Haji Razak v. Usman and others PLD 1975 Kar. 944 and Ahmed Khan v. The Chief Justice and Judges of the High Court PLD 1968 SC 171 ref.

Per Muhammad Mujeebullah Siddiqui, J. agreeing with Sabihuddin Ahmad, C.J.-

His Lordship after finding out the genesis of the original civil jurisdiction of the Sindh High Court and examination of the issue whether said jurisdiction was ever conferred by an Act of the Federal Legislature concluded that: "Front a survey of the statutes dealing with the original civil jurisdiction of the Chief Court of Sindh/West Pakistan High Court Karachi Bench/Sindh High Court, there is no scintilla of doubt in my mind that at no point of time any original civil jurisdiction was conferred on the Court of record functioning sat Karachi by the Federal Legislature. In fact the Federal Legislature has not enacted any law pertaining to the jurisdiction of the High Court functioning at Karachi. The Sindh Courts Act 1926 was admittedly Provincial Legislature. Thereafter certain orders were passed by the Governor-General and President of Pakistan including Karachi Courts Order, 1956 and after integration of Federal Capital of Pakistan comprising Karachi in the West Pakistan as Karachi Division and on dismemberment of the West Pakistan as Karachi Division of the Province of Sindh. All the laws which have conferred the jurisdiction on the Chief Court/High Court, or have curtailed the jurisdiction were passed by the Provincial Legislature. At this juncture, I would like to point out that under Article 211 Of the, 1956 Constitution, the Constituent Assembly had clearly made a distinction in the powers vested in the President under Clause (2) of Article 211 and the powers vested in the Parliament (Federal Legislature) under Clause (3) of the said Article and has specifically provided that the President was empowered to make laws pertaining to the jurisdiction of High Court functioning in the Federal Capital and that the Parliament had no power to make laws in the matters relating to the High Court. Thus, no question of repugnancy arises between any provision of an Act of Provincial Assembly and the Act of Majlis-e-Shoora (Parliament) as envisaged under Article 143 of the Constitution of Islamic Republic of Pakistan, 1973. Since there is no inconsistency, conflict or repugnancy therefore, the objection to the validity of various Provincial Laws enhancing pecuniary jurisdiction of the District Judge at Karachi is without substance and consequently, I fully agree with the view expressed by the Hon'ble Chief Justice to the effect that there is no law made by the Parliament in exercise of the powers under the Concurrent Legislative List pertaining to the original civil jurisdiction of the Chief Court of Sindh, erstwhile West Pakistan High Court Karachi Bench and Sindh High Court and consequently, there is no conflict as envisaged under Article 143 of the Constitution of Islamic Republic of Pakistan and thus, in accordance with section 7 of the Sindh Civil Court Ordinance, jurisdiction of High Court to try civil suits is confined to matters where the pecuniary jurisdiction exceeds Rs.30,00,000 and all other suits are liable to be transferred and disposed of by the District Courts. I would like to add only this much that from the year 1981, there is one provincial law only in the field governing the original civil jurisdiction of Sindh High Court and District and Subordinate Court at Karachi. It is Sindh Civil Court Ordinance, 1962. There is no Federal Law at all in the field and never occupied the field, therefore the question of repugnancy, inconsistency or conflict in Federal and Provincial Law does not arise."

Iqbal Kazi for Plaintiff (in Suit No.639 of 1987).

Manzoor Ahmed for C.D.G.K.

Rashid A. Razvi, Amicus Curiae.

Anwar Mansoor Khan, A.-G. Sindh.

Date of hearing: 12th December, 2005.

P L D 2006 Karachi 470

Before Muhammad Afzal Soomro, J

MUHAMMAD HANEEF and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.55 and M.A. No.564 of' 2006, decided on 5th May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 337-A(i), D-(i), H-(ii), 506, 148 & 149---Bail, grant of---Only role attributed to one of the accused was that he was found to be armed with a fire-arm and ineffective firing was attributed to him---Aimless firing was attributed to the other accused and besides that, no role was attributed to both the accused---Case of concession of bail having been made out, accused were admitted to bail, in circumstances.

Muhammad Ayaz Soomro for Applicants.

Muhammad Ismail Bhutto for the State.

Advocate for the Complainant called absent.

P L D 2006 Karachi 472

Before Muhammad Afzal Soomro, J

MIR HASSAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.768 of 2004, decided on 7th December, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss:11 & 16---Bail, grant of---Further inquiry---Counsel for accused had contended that case against accused was false and that he had been implicated in the background of enmity and suspicion; that F.I.R. was lodged with inordinate unexplained delay of 12 days; that accused though was present at the place of wardat, but no overt act was attributed to him in commission of offence; that statements of witnesses under S.161, Cr.P.C. were recorded after about seven days of occurrence and that conflict existed between ocular version, medical evidence and statement of alleged abductee under S.164, Cr.P.C.---Counsel for accused had raised extensive grounds making case of prosecution highly doubtful and one of further inquiry and he had been able to make out a case for bail, which was granted accordingly.

Muhammad Ayaz Soomro for Applicant.

Muhammad Ismail Bhutto for the State.

Nisar Ahmed Abro for the Complainant.

P L D 2006 Karachi 474

Before Muhammad Afzal Soomro, J

SANAULLAH ABBASI---Applicant

Versus

ALI ANWAR and another---Respondents

Criminal Miscellaneous Application No.61-S of 2003, decided on 28th March, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 202 & 355---Penal Code (XLV of 1860), Ss.427, 506(2), 451, 342, 220, 119, 147 & 149---Quashing of complaint---Statements of witnesses under 5.202, Cr.P.C. were not recorded by the Magistrate .himself and no footnote was given at the end of said statements that same were written down by the Reader or Clerk of the Magistrate under his dictation---Magistrate appeared to have taken the matter very lightly and treated the job of conducting preliminary enquiry a simple routine work---Magistrate thus had violated provisions of S.355, Cr.P.C.---Reason, which the complainant, who was a Town Police Officer had tried to attach to happening of alleged incident, appeared to be dispute between other persons over the plying of wagons on the same route which did not appeal to reason that petitioner/an officer of a high rank would personally interfere in such a trifling dispute until and unless some evidence was brought on the record to show that he had some relation with either of the parties; or that he had done something wrong to settle some previous score with the party actually aggrieved at his hands---Allowing such proceedings to continue, in circumstances would amount to abuse of process of law---Complaint stood quashed, in circumstances.

Muhammad Ali Kazi v. The State 1994 PCr.LJ 430; Jan Muhammad v. Gaman Khan 1995 PCr.LJ 1371 and Muhammad Saleem v. Fazal Muhammad 2001 SCMR 1738 ref.

Muhammad Ayaz Soomro for Applicant.

Aijaz All Shah for the Complainant.

Mushtaq hmed Kourejo, State Counsel.

P L D 2006 Karachi 479

Before Muhammad Mujeebullah Siddiqui and Syed Zawwar Hussain Jafri, JJ

Messrs FACTO BELARUS TRACTORS LIMITED KARACHI and another---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Industries, Production and Special Initiatives Islamabad and others---Respondents

Constitutional Petitions Nos.D-304 of 2006, D-1347 of 2005, decided on 4th May, 2006.

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

----Art. 199---Constitutional petition---Relief, moulding of---Relief not sought, cannot be granted---Such relief can be denied in the cases in which High Court is exercising original jurisdiction in suit or appellate or revisional jurisdiction---Even in exercise of such jurisdiction the dominant prevailing view is that the Court can mould the relief and allow the same though it is not prayed for, as the Courts are not merely slaves of technicalities but are the Courts of justice and, therefore, relief can be moulded in a way which serves the purpose of justice.

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

----Art. 199---Constitutional jurisdiction of High Court---Judicial review---Import, object and scope-High Court, in exercise of such jurisdiction is required to see whether public functionaries have acted in accordance with law---Such jurisdiction of High Courts and particularly the superior Courts is in accordance with the concept of checks and balances which is integral part of concept of separation of powers enshrined in the Constitution---Court, in exercise of jurisdiction of judicial review of administrative/public action, is required to see whether functionaries of the State in connection with the affairs of federation, province or local authorities have done things in accordance with the law or actions have been taken otherwise than in due course of law---Basic principles in this behalf are that in the realm of public actions every thing should be taken objectively and on the basis of criteria already determined and fixed---No room available for subjectivity or actions which smack of arbitrariness, favouritism or discrimination---If yardsticks are not determined prior to the taking of decisions then decisions are bound to be subjective and non-transparent, which are not the hallmark of good governance---In a democratic set up the complete transparency and accessibility to the policy decisions in pursuance of right of information are strictly observed.

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

----Art. 199---Constitutional petition-Maintainability-Jurisdiction of High Court---Principles---Objection raised by the authorities was that as some of the respondents were based at Islamabad, therefore, Sindh High Court did not have jurisdiction to adjudicate the matter---Validity---All the High Courts in Pakistan were exercising jurisdiction under Art.199 of the Constitution in respect of decisions/orders made by the Federation and authorities/officers functioning with the affairs of Federation---Sindh, Balochistan and Peshawar High Courts therefore, had the jurisdiction---Objection was repelled in circumstances.

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

----Art. 199---Constitutional petition---Judicial review---Administrative decision---One time import at, zero tariff---Petitioner was refused but respondents were granted permission by authorities to one time import of tractors at zero tariff---Plea raised by petitioner was that the order of authorities was not transparent and was subjective, arbitrary and in excess of jurisdiction as well as based upon favouritism---Validity---Entire proceedings initiated with advertisements inviting proposals for import of agriculture tractors were not in accordance with the decision of Economic Coordination Committee---Entire proceedings suffered from lack of transparency and smacked of subjective decision, arbitrariness and excess of jurisdiction as well as favouritism---High Court directed the members of Committee set up by Economic Coordination Committee to devise a detailed scheme containing modalities for proper implementation of the decision taken by Economic Coordination Committee, prescribing criteria as well as measures which were to be adopted for achieving purpose of supply of tractors to farmers at reasonable rates and to evolve the safety-valves to prevent misuse of the scheme---High Court further directed the authorities that after devising detailed scheme giving parameters, conditions, requirements, timeframe and other necessary guidelines, they should re-advertise the scheme and invite proposals and thereafter recommend allocation of import of tractors to companies/investors who were found eligible and most suited---High Court in exercise of constitutional jurisdiction quashed all the proceedings.

Munir A. Malik for Petitioner (in C.P. No.D-304 of 2006).

Khalid Jawaid Khan for Petitioner (in C.P. No.D-1347 of 2005).

Aamir Raza Naqvi for Respondent No.8 (in C.P. No.D-304 of 2006).

Shaikh Jawaid Mir for Respondent No.8 (in C.P. No.D-1347 of 2005).

S. Tariq Ali, Federal Counsel for Respondents Nos. 1, 2, 3 and 9 (in C.P.No.D-30-4 of 2006).

Salman Talibuddin for Repsondnet No.4.

Raja Qasit Nawaz for Respondent No.5.

Mehmood A. Shaikh for Respondent No.6.

Nasir Ali Jafri for Respondent No.7.

Date of hearing: 2nd May, 2006. .

P L D 2006 Karachi 497

Before Zia Perwaz and Amir Hani Muslim, JJ

BAKHAT ALI and another---Petitioners

Versus

SHAHNAWAZ and 15 others---Respondents

Constitutional Petition No.162 and C.M.A. No.424 of 2006, heard on 26th April, 2006.

(a) Sindh Local Government Elections Rules, 2005---

----R. 76---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election petition---Corrupt and illegal practice, charge of---Re­counting to ballot papers, application for---Absence of prayer in application for re-counting of counter-foils of ballot papers---Irregularity in counter-foils---Non-recording of evidence of parties---Election Tribunal while deciding such application declared election as a whole void on ground of such irregularity and adoption of such practice by returned candidate in collusion with polling staff---Validity---In absence of prayer in application and without proof of such irregularity, Election Tribunal could not un-seat the returned candidate on such ground---Allegations in election petition in absence of evidence could not be treated as proof against returned candidate---Satisfaction of Election Tribunal had to be objective satisfaction which was absent in the present case---High Court set aside impugned order in circumstances.

Muhammad Naeem v. Ashraf 2005 SCMR 1130 and Rana Muhammad Mustafa v. Javed Iqbal Siddiqui 2004 YLR. 993 distinguished.

(b) Pleadings--

---Pleadings of parties could never be treated as evidence.

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

---Art. 122---Fact alleged by a party---Burden of proof---Such party had to prove such fact.

Abdul Qayoom Shaikh and Nazeer Ahmed Pathan for Petitioners.

Muhammad Nawaz Shaikh for respondents Nos. 1 and 2. Ghularn Dastagir Shahani, Addl. A.-G.

P L D.2006 Karachi 501

Before Khilji Arif Hussain, J

ABDUS SALAM---Decree-Holder

Versus

GHULAM RASUL---Judgment-Debtor

C.M.A. No.6606 of 2005 in Suit No.126 of 2004 , C.M.A. No.129 of 2004 in Execution No.39 of 2005,and C.M.A. No.1914 in Execution No. Nil of 2005, heard on 22nd February, 2006.

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

----Ss. 55(1)(g) & 55(5)(b)---Specific Relief Act (I of 1877), S.12---Civil Procedure Code (V of 1908), 5.151---Adjustment of profits---Administration of justice---Public charges and other dues---Suit for specific performance of agreement to sell was decreed in favour of purchaser, who deposited full consideration amount---During execution proceedings, seller handed over possession of suit property to representative of Court---Amount received from purchaser was deposited by representative of Court in profit bearing scheme as possession of suit property could not be transferred to him due to certain other proceedings---After transfer of possession, purchaser claimed to be entitled to the profit accrued on the amount deposited in the scheme, on the ground that despite making full payment he could not take any benefit of the property---On the other hand seller claimed his right to the profit for the reason that he was out of possession and did not reap any benefit from the property---Representative of Court, informed that certain amounts in shape of utility charges and other government dues against the property were outstanding---Effect---All public charges and rent accrued in respect of property up to the date of sale were to be paid by the seller under S.55 (1) (g) of 'Transfer of Property Act, 1882, whereas buyer was bound under S.55 (5)(b) of Transfer of Property Act, 1882, to pay or tender amount of purchased money to seller retaining amount of encumbrances on the property---Seller had to transfer the property free from all encumbrances till the date of execution of transfer deed but since he was ready and willing to perform his part of obligation but due to reason beyond his control same could not be transferred within the stipulated period of time---High Court directed representative of Court that out of profit earned from amount deposited, he should first clear encumbrances on the property in question upto the date of execution of transfer deed in favour of purchaser---High Court further directed the representative that after clearance of encumbrances, if any amount remained with him, then purchaser would be entitled for the interest accrued up to the execution of sale deed as despite his being out of pocket of money for considerable period of time, purchaser could not get benefit from the property till execution of the transfer deed---Any interest accrued after execution of transfer deed till date, be paid to seller---Application was decided accordingly.

Pirzada Nazir Hassan v. Major (Retd.) Ejaz Ahmed Khan 1981 SCMR 684 and Shaikh Muhammad Taqi v. Muhammad Anwar Khan Chauri 1983 CLC 1085 ref.

Arshad Tayebaly for Plaintiff.

Qazi Faez Isa for Defendant No. I. S.A. ?????????

Samad Khan for Defendant No.2.

Naveedul Haq for Defendant No.3.

P L D 2006 Karachi 511

Before Rahmat Hussain Jafferi, J

PAKISTAN ENGINEERING CONSULTANTS through Managing Partner---Plaintiff

Versus

PAKISTAN INTERNATINOAL AIRLINES CORPORATION through Managing Director and another --Defendants

Suit No.565 of 1986, decided on 26th August, 2005.

(a) Arbitration Act (X of 194U)---

----S. 34---Arbitration agreement---Stay of legal proceedings- --Pre-requisite-Defendant filed written statement in the suit filed by plaintiff and raised objection to maintainability of the suit---Validity---No application under S.34 of Arbitration Act, 1940, was filed by defendant before filing of written statement, which was a requirement of law---Defendant did not invoke arbitration clause of agreement but allowed the suit to continue before the Court---Such suit could not be dismissed under S.34 of Arbitration Act, 1940---Suit was maintainable in circumstances.

(b) Partnership Act (IX of 1932)---

----S. 42---Partnership agreement---Death of partner---Reconstitution of partnership---Original partners of firm were father, son and daughters and after the deathof father, son and daughters took over the control of firm and reconstituted it---Such intimation was conveyed to defendant, who accepted reconstitution of the partnership and allowed the firm to continue the contract not only after reconstitution but after the death of one of the partners---Partners also allowed to continue the contract---Effect---Suit filed by the partners was not hit by S.42 of Partnership Act, 1932---Suit was maintainable in circumstances.'

Tarachand Ghanshamdas v. Pakistan PLD 1957 Kar. 557 and Deviji GOA v. Tericumji Jiwandas AIR 1945 PC 71 rel.

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

----S. 54---Perpetual injunction, grant of---Recovery of money and damages---Plaintiffs entered into agreement with defendant for completing its project within the specified period---Grievance of plaintiffs was that due to delay on the part of defendant with regard to certain acts to be done by him, the project could not be completed in due time and their payments were withheld without any justification---Validity---Delay in execution of work started from the very beginning---Defendant could not point out anything from the evidence which could suggest that plaintiffs were responsible for violating terms of agreement and delay could be attributed to them---On the contrary various letters produced by plaintiffs indicated that delay was caused on the part of defendant on various aspects of the contract---Plaintiffs could not be held responsible for breach of contract but on the contrary it was the defendant who was the cause for such delay---Plaintiffs were entitled to claim total amount as the defendant failed to prove that breach of contract had occurred due to plaintiffs' action---Plaintiffs were thus entitled to the injunction as prayed for---Suit was decreed accordingly.

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

----Arts. 72 & 78---Documentary evidence---Proof---Document exhibited during evidence---Defendant produced an unsigned report of Chartered Accountant along with a covering letter addressed to General Manager of defendant---Such report of Chartered Accountant was duly exhibited during evidence---Neither the person who had signed the document was examined nor it had been proved through any other evidence to suggest that the document was issued by the person mentioned in it---Plea raised by plaintiff was that unless execution of the document could be proved, such document could not have been relied upon---Validity---Production of document and proof of document were two different subjects--Document could be produced in evidence which was always subject to proof as required under Art.78 of Qanun-e-Shahadat, 1984---Document relied upon by defendant had been formally exhibited but was not proved in accordance with law, therefore, it could not be relied upon in circumstances.

Muhammad Yousuf v. S.M.

Ayub PLD 1973 SC 160 rel.

Yawar Farooqui for Plaintiffs.

Amir Malik and Naveed-ul-Haq for Defendants

Date of hearing: 11th August, 2005.

P L D 2006 Karachi 523

Before Khilji Arif Hussain, J

MUHAMMAD MATLOOB and 10 others---Plaintiffs

Versus

JAMSHED K. MARKER and 2 others---Defendants

Suit No.1048 of 2005, decided on 10th May, 2006

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

----S. 10---Valid contract---Essential conditions---To constitute a valid contract between parties one of the essential conditions is that consensus ad idem must exist between the parties with regard to all the terms of contract and in case of any ambiguity, the same can adversely reflect about existence of the contract.

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

----Ss. 7 & 10---Converting proposal into contract---Principles---In order to convert a proposal with binding contract, acceptance of proposal must be absolute and unqualified---Existence of a consensus ad idem with regard to all fundamental terms of the contract must be shown---Whether an agreement is a completed bargain or merely provisional agreement depends on the intention of parties as deducible from language used while negotiations take a contract shape and whether the intention to have formed document drawn up postponed the formation of contract depends on the circumstances of each case.

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

----S. 10---Valid contract---Receipt, whether a valid contract---Receipt can be termed as a contract if on going through the receipt, four components to form an agreement can be spelt out without any ambiguity i.e. (i) identification of seller and purchaser (ii) sale consideration amount, (iii) identification of property to be sold, and (iv) parties to agreement to sell property in question are at consensus ad idem.

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

---S. 12---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Interim injunction, grant of---Existence of valid agreement---Plaintiff relied upon a receipt acknowledging payment of cheques to defendants---Contention of plaintiff was that the receipt was a valid contract as it was signed by the defendants and it was made out from the receipt that the amount was paid in consideration of sale of the suit property---Plea raised by defendants was that the cheques were not got encashed and were subject to maturity of the proposal---Validity---Receipt by itself provided that cheques would be encashed only on reaching agreement of sale---Fact that at the time of execution of receipt, parties were not inclined to sell the property but wanted to enter into an agreement at subsequent date was established---No binding contract between the parties thus existed---Plaintiff, therefore, failed to establish prima facie case in his favour for the grant of injunction---Question whether parties reached a concluding contract or not depended upon the fact whether the parties were of one mind and all material terms were finalized between them and they intended that the matter was closed and concluded between them---High Court declined to grant interim injunction and application was dismissed.

Mst. Najma Rana v. S.M. Maroof 1989 MLD 1317 and Mrs. Parveen Begum v. Raja Muhammad Sarwar Khan PLD 1956 (WP) Kar. 521 distinguished.

Mobinul Haq Siddiqi and another v. Mrs. Hajra Farooqo and 3 others PLD 1986 Kar, 358; Mrs. Parveen Begum v. Raja Muhammad Sarwar Khan PLD 1956 Kar. 521; Province of West Pakistan v. Gammon's Pakistan Ltd. Karachi PLD 1976 Kar. 458; Muhammad Kamran Khan v. F.N.E. Dinshaw Trust PLD 2006 Kar. 108; Al-Huda Hotels and Tourism Co. and others v. Paktel Limited and others 2002 CLD 218; Seth Banarsi Dass v. Cane Commissioner UP and another AIR 1956 Allahabad 725; Khayaban-e-lgbal (Pvt.) Ltd and others v. Mustafa Haji Muhammad 1996 CLC 1758; Riley and another v. Troll 1953 AELR 966 and Raingold v. Bromley (1931) 2 Chancery Division 307 ref.

Ghulam Ali Khokhar for Plaintiffs.

Bilal Shaukat for Defendants.

PLD 2006 Karachi 530

Before Sabihuddin Ahmed, C.J. and Mrs. Qaiser Iqbal, J

FARRUKH NIAZ---Petitioner

Versus

FEDERAL GOVERNMENT OF PAKISTAN---Respondent

C.P. No.D-251 of 2006, decided on 19th May, 2006.

National Accountability Ordinance (XXXV of 1999)-

----S. 18---Constitution of Pakistan (1973), Arts. 199 & 15---Constitutional petition---Exit Control List---Delay in conclusion of inquiry---Name- of petitioner was placed on Exit Control List on 2-6-2004, as an inquiry under National Accountability Ordinance, 1999, was initiated against him---Plea raised by petitioner was that his name could not remain on Exit Control List for indefinite period---Validity---There were certain allegations against petitioner in which the inquiry conducted could not be concluded despite lapse of more than two years---No reason was assigned by the Authorities, for placing name of the petitioner on Exit Control List, nor notice or intimation was served upon him---Placement of the name of petitioner on Exit Control List was not justified and tantamounts to restrict rights of his liberty---High Court in exercise of constitutional jurisdiction, directed the authorities to remove name of petitioner from Exit Control List---Petition was allowed in circumstances.

Ashfaq Yousuf Tola v. Federation of Pakistan (PLD 2006 Kar. 193; Wajid Shamsul Hassan v. Federation of Pakistan PLD 1997 Lah. 617 and Saleem Akhtar v. Federation of Pakistan PLD 1999 Kar. 177 rel.

Shoukat Hayat for Petitioner:

S. Mehmood A. Rizvi Standing Counsel for Respondent.

P L D 2006 Karachi 531

Before Mushir Alam and Azizullah M. Memon, JJ

MUHAMMAD HANIF KHAN---Petitioner

Versus

PROVINCE OF SINDH through Secretary, Land Utilization Department, Karachi and 8 others---Respondents

C.P. No.1229 of 2005, decided on 11th May, 2006.

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

----Ss. 4, 6 & 45---Constitution of Pakistan (1973), Arts. 23 & 24---Notification of land acquisition, publication of---Purpose---Service of notice on landowner/affected person---Necessity---No person could be deprived of his property save in accordance with law---Purpose of publication of notification in the Official Gazette though was to inform affected person and public-at-large of proposed acquisition for public purpose, but same would meet only extrinsic, but not intrinsic requirement of law---Natural justice would require service of notice on landowner/affected person along with publication of notification in Official Gazette---Principles.

The right to property is valuable right guaranteed under Articles 23 and 24 of the Constitution of Pakistan. No person could be deprived of his property save in accordance with law. Land Acquisition Act, 1894 is one of such law under which a person can be deprived of his personal property, provided of course, it is acquired or sought to be acquired for "public purpose" and only in manner as provided therein. Action as to acquisition and/or "public purpose" is justifiable. Publication of the Notification in the Official Gazettes, though sine qua non for assumption of jurisdiction under the Land Acquisition Act, 1894 it is first step towards acquisition. Purpose of publication of Gazette Notification is to inform person affected and the public at large of the proposed acquisition of land for public purpose.

Where the recorded owner of the land, proposed to be acquired, is ascertained and is known, then notice to such person is necessary. Publication of Notification in Official Gazette meets only the extrinsic and not the intrinsic requirement of law. It is common knowledge that publication and circulation of Official Gazette is limited and usually confined to meet the statutory requirement of law. It has come to notice that at times not many persons are aware of the important and valuable information that a Gazette Notification tends to communicate and dispense. Limited access and circulation of Official Gazette Notification at times defeat the principle of natural justice and frustrate the very object of law. In order to comply with the requirement of principle of natural justice, at the time of publication and issuance of Notification under section 4 and/or 6 of Land Acquisition Act, 1894, notice under section 45 thereof may also be served on the recorded owners or on the affected person.

The object of Land Acquisition Act, 1894 is not to deprive a person from his property-right without due process of law. One of the essential intrinsic requirements of principle of natural justice is to give proper and meaningful opportunity to the affected person to challenge and object to the proposed or likely acquisition of land under the Act of 1894.

(b) Natural justice, principles of--

----No person could be condemned unheard and divested of property without due course of law---Principles of natural justice would be deemed to be imbedded and enshrined in every statute, unless expressly excluded.

Farrukh Nasim for Petitioner.

Saalim Salam Ansari, Mukhtiar Ahmed Kober and Irfan G. Ali for Respondents Nos. 8 and 9.

Manzoor Ahmed for CDGK.

Ch. Rafiq Rajveri, A.A.-G.

P L D 2006 Karachi 536

Before Mushir Alam and Syed Zawwar Hussain Jaffery, JJ

QUAID-E-AZAM'S MAZAR, MANAGEMENT BOARD, KARACHI---Petitioner

Versus

PROVINCE OF SINDH through Secretary, Housing and Town Planning Karachi and others---Respondents

C.P. No.D-953 of 2004, decided on 21st December, 2005.

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

----Art. 4---State functionaries---Powers---Desire or recommendation of authority---Implementation---Principles---Desire or recommendation howsoever solemn, devout or laudable may be or for that matter, it having flown from the authority how highsoever it may be, cannot be equated with law or legal command enforceable under the law---Under the scheme of the Constitution, source of all power, authority and duties exercisable by the State and its executive functionaries emanates from the Constitution itself or the law that may be framed thereunder by the competent Legislature---Such power, authority or jurisdiction can only be exercised within the parameters defined under the Constitution or statutory instrument---No person can be prevented under Art.4 of the Constitution, from or be hindered in doing that which is not prohibited by law---State and its executive functionaries have no inherent powers to permit or otherwise prohibit doing of that, which law does not prohibit.

Mehran Security Services (Pvt.) Ltd. v. Pakistan and others 2000 YLR 2655 rel.

(b) Notification---

----Issuance of notification---Authority---Scope---Authority to issue notification emanates from Constitution or statutory instrument enacted by competent Legislature---Issuance of notification, a legislative function, is to be exercised by the delegatee under mandate of law---No plenary authority can be invoked nor is available to issue a notification, prohibiting doing of that which is not prohibited by law.

(c) Quaid-i-Azam's Mazar (Protection and Maintenance) Ordinance (XXVII of 1971)---

----Ss. 2, 8 & Preamble---Quaid-i-Azam's Mazar Management Board---Object and powers---For the protection, maintenance, prevention of acts derogatory to the dignity and sanctity of Quaid's Mazar and its peripheral area, Quaid-i-Azam's Mazar (Protection and Maintenance) Ordinance, 1971, was promulgated---Mazar was declared to be historical monument of national importance and its peripheral area is Federally administered area---Board constituted under Quaid-i-Azam's Mazar (Protection and Maintenance) Ordinance, 1971, is a Management and maintenance Board and not a regulatory authority---Board exercises administrative and management authority and enjoys control over the area as defined under S.2 of Quaid-i-Azam's Mazar (Protection and Maintenance) Ordinance, 1971, and not beyond---Board cannot act or interfere in the affairs of Province or on any area beyond the territorial bounds as defined under S.2 of Quaid-i-Azam's Mazar (Protection and Maintenance) Ordinance, 1971---Any authority acting under Quaid-i-Azam's Mazar (Protection and Maintenance) Ordinance, 1971, is required to act within the framework of the Ordinance.

(d) Quaid-i-Azam's Mazar (Protection and Maintenance) Ordinance (XXVII of 1971)---

----Ss. 2 & 8---Sindh Buildings Control Ordinance (V of 1979), S.21-A---Sindh Building and Town Planning Regulation, 2005, Regln. 25-1-10-2---Constitution of Pakistan (1973), Art.199 Constitutional petition---Control of buildings around Quaid-i-Azam's Mazar---Provincial Government issued a notification dated 10-9-1991, on the basis of directive of President of Pakistan, whereby no building could be constructed within the radius of 3/4 miles of the Mazar, which would be above 91 feet Mean Sea Level---Grievance of Quaid-i-Azam's Mazar Management Board was that authorities had allowed building around the Mazar, which were raised beyond permissible height---Board sought direction for demolishing all such buildings and structures---Validity---Board or any other authority deriving power under the provisions of Quaid-i-Azam's Mazar (Protection and Maintenance) Ordinance, 1971, could not issue any directive beyond the defined territorial bounds and scope of the Ordinance---Even the notification dated, 10-9-1991, issued by Provincial Government was without lawful authority---Curb on height of a building above the podium level of 91 feet (27.72 m) Mean Sea Level, within 3/4 mile (1.2 km) radius of Quaid-i-Azam's Mazar, could only be enforced from the date of enforcement of Sindh Buildings and Town Planning Regulations, 2002---Karachi Building Control Authority could not approve any plan after 4-4-2005, beyond the height limits set down in Regln.25 of Sindh Building and Town Planning Regulations, 2005---Petition was disposed of accordingly by the High Court.

PLD 1988 SC 416; Muhammad Bachal Memon v. Government of Sindh PLD 1987 Kar. 296 and Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26 ref.

Naim-ur-Rehman for Petitioner.

Abbas Ali, A.A.-G. for Respondent No.l.

Manzoor Ahmed and Faisal Siddiqui for Respondents Nos. 2, 3 and 4.

Khalid Anwer and Afser Aii Abedi for Respondents Nos.5 and 6.

Dates of hearing: 14th and 16th December, 2005.

P L D 2006 Karachi 545

Before Nadeem Azhar Siddiqui, J

Messrs BAHRIA FOUNDATION, KARACHI---Plaintiffs

Versus

ABDUL ALEEM BUTT---Defendant

Civil Suit,No.1110 of 2001, decided on 13th June, 2006.

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

----O. XXXVII, Rr. 2 & 3---Recovery of money on the basis of negotiable instrument---Leave to defend the suit, non-availing of---Effect---If defendant has failed to obtain leave to defend the suit, Court is required to apply its mind to the facts and documents, placed on record before passing any order or judgment, notwithstanding the fact that no person has appeared before it to oppose such order or the person who wanted to oppose was not allowed to oppose because he failed to fulfil the requirement of law.

(b) Stamp Act (II of 1899)---

--S. 11---Civil Procedure Code (V of 1908), O.XXXVII, R.2---Promissory note written on stamp. paper---Defendant assailed promissory note on the ground that it was not written on a paper containing adhesive stamp as required under S.11 of Stamp Act, 1899---Validity---Provisions of S.11 of Stamp Act, 1899, were directory and permissive in nature and were not mandatory---Promissory note could be written on a paper having adhesive stamps and could also be written on a stamp paper---Only because the promissory note was not written on a paper having adhesive stamp did not lose its utility as promissory note---Not necessary that promissory note must be affixed with adhesive stamp---Promissory note written on stamp.,paper was as good as written on paper containing adhesive stamps.

Muhammad Akram v. Khuda Bux 2000 CLC 759 and Farid Akhtar Hadi v. Muhammad Latif Qazi 1988 CLC 2397 distinguished.

Muhammad Sharif v. Muhammad Hashim Paracha and another PLD 1987 Kar. 76; Habib Bank Limited v. Chaudhry Cloth House 1991 CLC 164; P. Moorthy v. A.R. Kothandaraman AIR 1978 Madras 412 and Somdatta v. Abdul Rashid AIR 1968 Rajasthan 45 rel.

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

----O. XXXVII, Rr. 2 & 3---Recovery of money on the basis of promissory note---Leave to defend the suit---Non-compliance of conditional order---Presumption against negotiable instrument---Defendant was granted leave to defend the suit subject to furnishing of surety bond---Despite extension in time, defendant failed to furnish any surety as directed by the Court---Effect---Plaintiff, while producing promissory note and acknowledgment of debt and undertaking of repayment had proved that the promissory note was executed against consideration---Presumption was also in favour of negotiable instrument that the same was made and drawn against consideration:---There was no rebuttal to such fact, as the defendant, in spite of getting opportunity to defend the case, had failed to file any defence---Plaintiff proved that the defendant had executed a promissory note and had failed to repay the amount mentioned in it---Suit was decreed in circumstances.

Naeem Iqbal v. Mst. Zarina 1996 SCMR 1530 and Haji Muhammad Siddiqiue v. Rana Muhammad Sarwar PLD 2005 SC 322 ref.

Haji Ali Khan and Company v. Allied Bank of Pakistan Limited PLD 1995 SC 362 rel.

Yasin Azad for Plaintiff.

Choudhry Abdul Rasheed for Defendant.

Date of hearing: 1st June, 2006.

P L D 2006 Karachi 552

Before Muhammad Mujeebullah Siddiqui and Faisal Arab, JJ

SABIR MASEEH---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.35 of 2006, decided on 24th May, 2006.

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

----S. 9(c)---Appreciation of evidence---Accused was a physically disabled person as his right leg was cut---Looking to the condition of accused and taking into consideration the fact that he was a beggar and not a person who was involved in corrupting the society by supply of narcotic substances; and in all probability he must be user of. the drug as normally beggars become, and thus would be a victim himself---Such persons needed sympathetic treatment because there were no social services in the country either in the public sector or private sector for rehabilitation of such persons who were living a miserable life---Society at large was responsible for the fate of such persons and they should not be treated as criminals---Actual criminals were those who were benefiting from the supply and spreading of narcotic substances and were leading fabulous life and were treated as respectable persons in the society---Taking a lenient view, sentence of accused was reduced from three years to one year and fine was also reduced to Rs.1,000 by the High Court.

Appellant in person.

Muhammad Ismail Bhutto for the State.

Date of hearing: 24th May, 2006.

P L D 2006 Karachi 554

Before Rahmat Hussain Jafferi and Ali Sain Dino Metlo, JJ

Messrs SHAPPIRE TEXTILE MILLS, KARACHI and another---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, (Revenue Division), Ministry of Finance and Economic Affairs, Islamabad and 3 others---Respondents

C.P. No.D-678 of 1995, decided on 22nd May, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Maxim---Vigilantibus, non dormientibus, jura subveniunt---Meaning and applicability---Application for restoration of constitutional petition dismissed for non-prosecution was filed 5-1/2 years after its dismissal---Effect---Conduct of petitioners in not making enquiry for more than 5 years was clearly of gross negligence and in the light of maxim `the laws give help to those who are watchful and not to those who go to sleep' (vigilantibus, non dormientibus, jura subveniunt), they were not entitled to grant of relief under Art.199 of the Constitution.

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

----Art. 199---Civil Procedure code (V of 1908), S.151 & O.IX, R:9---Constitutional petition, restoration of---Latches---Provisions of Civil Procedure Code, 1908---Applicability---Application for restoration of constitutional, petition dismissed for non-prosecution was filed 5-1/2 years after its, dismissal---Plea raised by petitioners was that they did not have the knowledge of fixation of the petition, therefore, under the provisions of Civil Procedure Code, 1908, petition was liable to be restored---Validity---Petition under Art.199 of the Constitution was. not subject to any law except the Constitution and any provision of sub-constitutional statute attempting to control or limit the power or jurisdiction of High Court, would be ultra vires the Constitution---Provisions of civil Procedure Code, 1908, and Limitation Act, '1908, could not regulate or control the proceedings under Art.199 of the Constitution---Court, while exercising its constitutional jurisdiction, could press into service the provisions of Civil Procedure Code, 1908---In absence of any period of limitation prescribed for filing application under Art.199 of the Constitution or interlocutory applications, in such proceedings, the only principle for keeping off the stale litigation from the Court was that of latches---Indolent and negligent person was not entitled to invoke extraordinary discretionary jurisdiction of the Court---Petitioners had been grossly negligent in pursuing the petition and were not entitled to invoke the discretionary jurisdiction of the Court---Application was dismissed in circumstances. [p. 557] B

Allah Dino v. Fakeer Muhammad and others PLD 1969 SC 582; Tolomal and others v. Deputy Commissioner and Additional Settlement Commissioner Khairpur and others PLD 1972 Kar. 116; Mst. Begum and others v. Mst. Begum Kaniz Fatima Hayat and others 1989 SCMR 883; Muhammad and others v. Chief Administrator Auqaf and others 1996 SCMR 1508; Shamsuddin v. Muhammad Ashraf PLD 1996 Lah. 210; Abdul Waheed Khan and others v. Aleemuddin Khan 2001 CLC 333; Ghulam Muhammad and others v. Member Board of Revenue and others PLD 2004 Lah. 486; Dr. Syed Raza Gardezi and others v. Nazaz Ali and others PLD 2004 Kar. 143; Mst. Hajra Bibi and others v. Abdul Ghani 2002 SCMR 1405 and Development Authority Muzaffarabad v. Iqbal Hussain Nizami 2002 CLC 1653 ref.

Messrs Hina Housing Project (Ltd.) v. Government of Sindh and others 2001 MLD 59; Muhammad Baran and others v. Member Settlement and Rehabilitation and others PLD 1991 SC 691 and Shabbir Ahmed and others v. Akhtar Alam and others PLD 1994 SC 598 fol.

Zia-ul-Haq Makhdoon for Petitioners.

Abdul Saeed Khan for Respondents Nos. 2 to 4.

Nemo for Respondent No.l.

P L D 2006 Karachi 558

Before Muhammad Mujeebullah Siddiqui and Faisal Arab, JJ

GAHI alias GADA HUSSAIN and others---Petitioners

Versus

SHAMAN and 7 others---Respondents

Constitutional Petition No.140 of 2006, decided on 24th May, 2006.

Constitution of Pakistan (1973)---

----Art.199---Civil Procedure Code (V of 1908), S.47 & O.XXIII, R.3---West Pakistan Land Revenue Act (XVII of 1967), S.42---Constitutional petition---Compromise decree---Execution---Grievance of the petitioners/ decree holders was that they had approached Mukhtiarkar, (Land Revenue) and District Officer (Revenue) for the mutation in the record of rights according to the compromise decree in a suit, but they refused the mutation and therefore, it may be declared that the act of Mukhtiarkar refusing to mutate the entry in the record of rights in the name of petitioner/decree holders in accordance with the compromise decree was illegal, mala fide and without lawful authority and that both the officers be directed to mutate the record in the name of petitioners/decree holders in accordance with the compromise decree---Validity---Held, if the decree stopped short with declaring the rights and obligations of the parties relating to the property forming the basis of the claim sought to be enforced, it was a decree declaratory in nature---Parties, in the present case, in the compromise decree, had settled the terms and conditions of compromise and after specifying the survey number and areas, which was to be held by each party, it had been agreed that after passing of decree the record shall be prepared accordingly and Mukhtiarkar of the District was a party to the compromise decree---When there was a specific condition in the compromise and the compromise decree had been passed in pursuance of the terms and conditions agreed between the parties containing the condition that the record shall be prepared accordingly, it was not a decree declaratory in nature simpliciter and therefore, if Mukhtiarkar being a party to the compromise decree had refused to act according to the compromise, the decree holders ought to have approached Civil Court for the execution of the decree---If there was no dispute about the title of the land, in that case the Revenue Authorities had no jurisdiction to refuse the mutation in accordance with a decree of Civil Court on the ground that the suit was barred by time or decree had become barred by time or the decree passed by the Civil Court was not in accordance with the law---If, however, the decree was not capable of execution: for the reason that it was between the parties who had no right in law to enter into compromise in respect of the properties, for the reason that they were not owners of the properties, the Revenue Authorities were justified in not mutating the record depriving the persons, who were not party to the decree, of their valuable rights and were shown as owners in the record of rights---Such 'questions could be decided by the Civil Court and particularly the point that the persons, in whose names the lands were mutated in the record of rights, were bound by the compromise decree being successors-in?interest of the parties to the compromise---All such questions could not be decided in the constitutional petition by the High Court and therefore,? the petitioners may pursue a remedy through Civil Court seeking clarifications on all such points as well as execution of decree---Constitutional petition was disposed of in the said terms by- the High Court.

Muhammad Yousuf v. Abdul Rashid PLD 1973 Kar. 686; Khushi Muhammad v. Member, Board of Revenue 1992 CLC 125 and Ali Ahmad v. Muhammad Fazal 1972 SCMR 322 ref.

Moohanlal K. Makhijani for Petitioners.

Muhammad Bachal Tonyo, Addl. A.-G. Sindh along with Muhammad Hanif Pitafi, Mukhtiarkar, Land Revenue, Taluka Bakrani.

Date of hearing: 24th May, 2006.

P L D 2006 Karachi 563

Before Ali Sain Dino Metlo, J

AURANGZEB --Petitioner

Versus

Mst. GULNAZ and another---Respondents

Constitutional Petition No.121. of 2006, decided on 24th March, 2006.

(a) Islamic Law---

----Dissolution of marriage on the ground of Khula'---Restitution of dower is not an indispensable condition for grant of Khula' and non-restoration of dower and other benefits will not have any effect upon the validity of the decree--Once the Family Court comes to conclusion that a wife was entitled for Khula it must pass such decree in her favour---Decision regarding the restoration of mutual benefits will have to be taken in the light of facts of each case and it will have the effect of only creating a civil liability---If the contention that Khula' cannot he granted without restitution of dower and other benefits, is accepted, then a destitute wife, who is found otherwise entitled to Khula', will stand deprived of the right simply because of her incapacity to return the benefits, which will be highly unfair and against the spirit of law and justice---Wife, in the present case, admittedly lived with the husband for over one and half year, such living can be treated as sufficient reciprocal benefit received by the husband for a dower of Rs.42,000---Wife who belonged to a lower class, seemed to be not in a position to pay the amount particularly after undergoing the litigation for two and half years, Family Court, taking into consideration the overall facts of the case, had rightly considered proper to dissolve the marriage by way of Khula' without ordering restoration of dower, it was within the discretion of the Family Court, and therefore, the decree could not be termed as 'without lawful authority' so as to warrant interference of the . High Court under its constitutional jurisdiction---Principles.

Mst. Saiqa v. Additional District Judge, Rawalpindi 2003 YLR 70; Munawar Iqbal Satti v. Mst. Uzma Satti and others 2003 YLR 599; Mst. Balqis Fatima's case PLD 1959 (W.P.) Lah. 566; Mst. Shamshad Begum v. Abdul Haque alias Nawaz and 2 others PLD 1977 Kar. 855; Verse 20 of Sura Al-Nisa; Radd-ul-Mukhtar; Mst. Razia Begum v. Saghir Ahmed NLR 1982 SC 104; Dr. Akhlaq Ahmad v. Mst. Kishwar Sultana and others PLD 1983 SC 169 ref.

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

---Ss. 5, 14 & Shedl.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Alternate remedy, availability of---Grant of decree for dissolution of marriage on ground of Khula'---Determination and restoration of mutual benefits---Decree for marriage on the ground of Khula' though was not appealable in view of S.14, West Pakistan Family Courts Act, 1964, a decision with regard to determination and restoration of mutual benefits was always appealable---Alternative remedy of appeal being available, constitutional 'petition was not maintainable.

Muhammad Shafi v. District Judge Gujrat and another 1982 CLC 2057; Muhammad Sanaullah v. Muhammad Ilyas, Senior Civil Judge/Judge family Court Toba Tek Singh and 2 others PLD 1987 Lah. 420 and Muhammad Shaban v. Judge Family Court and others 2003 YLR 2708 ref.

Muhammad Ali Abbasi for Petitioner.

Nemo for Respondents.

Date of hearing: 24th March, 2006.

P L D 2006 Karachi 568

Before Muhammad Mujeebullah Siddiqui and Faisal Arab, JJ

WARIS MIRBAHAR---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.D-42 of 1995, decided 1st June, 2006.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 365-A, 395, 148 & 149---Appreciation of evidence---Counsel for accused having not contested conviction and sentence awarded to accused by the Trial Court for commission of offences under Ss.148, 149, 324 & 395, P.P.C., same were upheld---Counsel had contested conviction of accused under S.302, P.P.C. and awarding of death sentence---Said conviction and sentence was set aside for the reason that Assistant Advocate General had conceded that no evidence was on record to establish murder of deceased by accused and his companions---Sole contested point was the conviction and sentence of accused under S.365-A, P.P.C.---Three alleged abductees who were examined by prosecution had stated that accused persons, after intercepting wagon, resorted to firing causing injuries to wagon driver and thereafter they took them to forest where they were kept at different places and dacoits used to threat them to write letters to their relatives for ransom---Said statements of abductees had gone unchallenged---Prosecution, in circumstances, had fully proved that accused and his companions had not merely abducted ten persons, but had abducted them for the purpose of obtaining ransom---Accused kept abductees in the forest for several months---Such offence was more torturous, gruesome and heinous than causing death---In order to save the society from commission of such heinous offences, it was imperative that maximum sentence be inflicted---Prosecution having fully established commission of offence under S.365-A against accused, he was rightly convicted and awarded death sentence which required no interference---Award of death sentence to accused was upheld and confirmed.

Ahsan Ahmed Qureshi for Appellant.

Mushtaq Ahmed Abbasi, Asstt. A.-G. for the State.

Date of hearing: 17th May, 2006.

P L D 2006 Karachi 576

Before Azizullah M. Memon, J

Syed AMJAD ALI---Appellant

Versus

Mst. KANEEZ FATIMA and 3 others---Respondents

Second Appeals Nos. 3, 4 and Misc. No.235 of 2006, decided on 31st May, 2006.

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

----Art. 129---Presumption---Raising of construction---Proof---House in question was owned and possessed by father, while son also living in the same house claimed to have constructed first floor of the house after its purchase by the father---Validity---Presumption of law would be that the owner himself raised the construction of the first floor building until and unless contrary was proved through reliable evidence.

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

---Art. 102---Evidence---Registered document-Validity-Oral version cannot be entertained, much less believed over and above the contents of the registered document.

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

---S. 42---Civil Procedure Code (V of 1908), S.100 & O.XLI, R.31---Second appeal---Issue wise finding---Concurrent findings of fact by the courts below---Parties were real brother- and sisters in relation and dispute between them was with regard to possession of first floor of the house in dispute, which was owned by their father---Cross suits were filed by both parties and the suit filed by respondents was concurrently decreed by trial Court and Appellate Court, while that of the appellant was dismissed by both the Courts below---Plea raised by appellant was that the Courts below failed to record their findings on the pleadings of the parties and on the basis of separate issues framed by the Trial Court and therefore, provisions of O.XLI, R.31, C.P.C. were infringed---Validity---Where complicated questions of fact and law were not involved in a case and on the other hand, findings recorded by Courts below, on the pleadings of the parties, were clear enough to determine their rights on the basis of their pleadings the judgment so passed by courts below could not be said to have infringed the provisions of law---Dispute between the parties was as to whether the father had at any time agreed to transfer first floor of disputed property in favour of appellant, his own son---Father having purchased the property through registered document and executed gift deed in favour of his daughters (respondents), the oral version of appellant to the extent that father entered into oral agreement to execute declaration of transfer of first floor premises in his favour could not be believed---High Court declined to interfere with the concurrent judgments and decrees passed by two Courts below---Second appeal was dismissed.

Muhammad Akhtar for Appellant (in both the Appeals).

Qazi Majid Ali for Respondents (in both the Appeals).

P L D 2006 Karachi 584

Before Muhammad Mujeebullah Siddiqui and Syed Zawwar Hussain Jaffery, JJ

ABDULLAH BALOCH---Petitioner

Versus

FEDERATION OF PAKISTAN through Defence Ministry, Secretary, Islamabad and 5 others---Respondents

Constitutional Petition No. D-561 of 2006, decided on 5th June, 2006.

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

----Arts. 9, 10 & 199(1)(b)(i), (3)---Constitutional petition---Prayer for recovery of civilian citizen from custody of Military officials---Official of Interior Ministry denying detenu to be in custody of F.I.A.---D.I.G. Police and S.S.P. (Investigation) on basis of reports obtained from S.P. (Investigation) and Town Investigation Officers denying arrest or detention of such civilian by their investigation staff---Similar stereotyped statements having been made on behalf of the State in a large number of petitions made before High Court by aggrieved persons in similar circumstances---Such modus operandi adopted at federal and provincial level and by Civil and Military agencies was violation of their responsibility under the Constitution and law---High Court directed Secretary, Ministry of Defence, Director, Military Intelligence, Director, F.I.A., Home Secretary and I.G.P. of the Province to employ all resources to search and produce detenu before Court on next date of hearing.

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

---Arts. 9 & 10---Arrest and detention of a person---Scope---No agency .of Federal/Provincial Government had any right to prosecute a person or deprive- him of his liberty or life without due course of law---Whisking away of citizens in clandestine and surreptitious manner by any agency/authority would be negation of the Rule of Law---Responsibility of Government highlighted.

Whenever any person, being a citizen of this country or even if he is not a citizen of this country and is for the time being in this country, is required by any agency, it is the constitutional responsibility, of the Federal and Provincial Governments to deal with such person in accordance with law, meaning thereby that if any such person is required in connection with any matter he can be arrested, interrogated upon, inquiry/investigation can be held and thereafter if found guilty can be prosecuted before the competent Court of law or if there are sufficient circumstances a detention order can also be passed in accordance with law, which is to be placed before the Review Boards from time to time, as specified in law. However, no agency of the Federal or Provincial Government has any right to prosecute any body and to deprive any body of his life or liberty without due course of law. If custody of any person is required in connection with an inquiry/investigation he must be produced before a Court of competent jurisdiction. Request for police custody be made and person required be kept in the manner authorized under the law. Whisking away of citizens in clandestine and surreptitious manner by any agency/authority in negation of the rule of law. Whenever any person is missing it is the responsibility of the Federal and Provincial Governments to search and locate such person even if he is not in their custody and produce him before the Court to show their bona fides and to demonstrate that they are alive to their legal responsibility under the Constitution and law.

In several cases High Court has found, that after long rigmarole detenus have been released by some unknown persons and the matters have been reported to High Court that in the darkness of night the person was released or' he was left at some distant place. All these instances indicate that the Federal and Provincial agencies are involved in missing of such persons. There is no room for such acts in a society, which is at least purported to be governed by law. The failure of the Federal and Provincial Agencies in procuring the attendance of such persons amounts to their sheer failure in discharging of the responsibilities which they are required to perform under the law and reflects adversely on their working.

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

----Arts. 9, 10 & 199(1)(b)(i), (3)---Civilian citizen in custody of Military Official---Direction of High Court to Military officials to produce such citizen before Court---Validity---Military officials, if involved themselves in civil affairs of the Country, would be responsible to High Court being a custodian of liberty of citizens---Such direction would not fall within restriction envisaged under Art.199(3) of the Constitution.

Noor Naz Agha for Petitioner.

Mahmood Alam Rizvi, Standing Counsel Abbas Ali, Addl. A.-G.

P L D 2006 Karachi 588

Before Nadeem Azhar Siddiqi, J

MUHAMMAD IMRAN ABDUL AZIZ---Plaintiff

Versus

PROVINCE OF SINDH through Secretary Land Utilization Department and 4 others---Defendants

Suit No.177 of 2004, decided on 2nd June, 2006.

Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2000 (III of 2001)---

----S.4 (2)---Specific Relief Act (I of 1877), S. 42---Right of allottee---Cancellation of allotment---Loss to government---Determination---Approval of Chief Minister---Scope---Despite offer made by plaintiff for deposit of amount under S.4 (2) of Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2000, his allotment was cancelled-Validity-By mere promulgation of Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2000, plaintiff had not lost his right and interest in the property---Plaintiff had a right to acquire the ownership rights and valid title after making payment of differential amount to government as determined by the Committee under the provisions of Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2000---Chief Minister, under the provisions of Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2000, had no role to play and his approval or consent was not required---Once plaintiff had accepted the offer, the authority was bound to issue challan to him in respect of differential amount---Issuance of challan could not be delayed on the pretext of non-approval of summary from Chief Minister---Sending of summary to Chief Minister for his approval or consent was illegal and without jurisdiction and in violation of the provisions of Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2000---Authority was directed to issue challan of differential amount to plaintiff in respect of suit-land---Suit was decreed in circumstances.

The Commanding Officer, National Logistic Cell and another v. Raza Enterprises and others 2003 CLC 719 and Messrs Apparels (Pvt.) Limited v. The Member Land Utilization Department and another 2005 YLR 1921 582 fol.

Abid S. Zuberi for Plaintiff.

Nemo for Defendants.

Date of hearing: 18th May, 2006.

P L D 2006 Karachi 593

Before Nadeem Azhar Siddiqi, J

Messrs IMPERIAL BUILDERS through Managing Partner and another---Plaintiffs

Versus

LINES (PVT.) LIMITED through Chief Executive and 3 others---Defendants

Suit No.1040 of 2002, decided on 26th June, 2006.

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

----O. II, Rr. 2(1) & 3(1)---Joinder of two causes of action in one suit---Such suit not barred by O.II, R.2, C.P.C.

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

----O. II, R.3(1)---Joinder of two causes of action in one suit by two plaintiffs---Essential conditions---Plaintiffs must be jointly interested in causes of action---Right to relief claimed by plaintiffs must be in respect of or arising out of same act or transaction---Plaintiffs must not be independently liable to defendant---Some common link, must exist connecting plaintiffs in causes of action.

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

----S. 12---Civil Procedure Code (V of 1908), O.VII, R.11(c)---Court Fees Act (VII of 1870), S.17---Suit by two plaintiffs for specific performance of two independent agreements to sell relating to separate properties---Rejection of plaint for being insufficiently stamped---Scope---Both agreements did not arise out of same act and transaction---Both plaintiffs had no link with each other in transaction---In case of combining in one suit two or more distinct subjects or causes of action, then each claim on basis of cause of action would be valued separately and requisite court-fee would be paid thereon---Plaint contained two independent reliefs in respect of two independent agreements in respect of separate land, on which court-fee was payable separately---Court-fee already paid on plaint being payable on suit for specific performance of one agreement---Plaint written upon paper insufficiently stamped could not be straight away rejected-Court directed plaintiff to further deposit requisite court-fee within specified time.

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

----S. 17---Multifarious causes of action joined in one suit---Court-fee, determination of---Each claim, on basis of cause of action, would be valued separately and requisite court-fee would be paid thereon.

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

----O. II, Rr.3(1), 6 & O.VII, R.11(c)---Court Fees Act (VII of 1870), S.17---Joinder of two distinct and separate causes of action based on two distinct subjects---Court-fee already paid on plaint payable on one relief based on one cause of action---Effect---Plaint on such count could not be rejected, but separate trial could be ordered.

Alam Khan and 3 others v. Pir Ghulam Nabi Shah & Company 1992 SCMR 2375 ref.

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

----O. VII, R.11(c)---Plaint written upon paper insufficiently stamped, rejection of---Scope---Such plaint could not be straightaway rejected unless plaintiff, on being required by Court to supply requisite stamp paper within specified time, failed to supply same.

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

----S. 12---Contract Act (IX of 1872), S.55---Limitation Act (IX of 1908), Art.113---Civil Procedure Code (V of 1908), O.VII, R.11(d)---Suit for specific performance of agreement to sell---Limitation---Agreement dated 24-5-1995 showing delivery of possession of plot to vendee along with execution of General Power of attorney in his favour with all powers leaving nothing to be performed by vendor---Non­payment of balance price by vendee on 24-3-1996 fixed in agreement---Vendor's notice to vendee dated 5-12-1996 refusing to perform agreement and notice dated 30-11-1997 cancelling agreement---Vendee not mentioned in plaint that he had ever made or tried to make payment to vendor on or before date fixed in agreement---Stopping of balance price by vendee through his letter dated 5-12-1995 addressed to vendor---Agreement stipulated that further action thereunder on the part of vendor was subject to receipt of balance price---Vendee could not be allowed to take advantage of his own negligence and breach of contract---On vendee's refusal to pay amount on specified date, vendor had acquired right to avoid agreement---After expiry of full period of limitation, there would be no revival of cause of action afresh from legal notice dated 28-9-2002 served on defendant--Suit filed in year 2002 was barred by both situations mentioned in Art. 113 of Limitation Act, 1908---Plaint was rejected in circumstances.

Mst. Kulsoom and 6 others v. Mrs. Marium and 6 others 1988 CLC 870 and Haji Muhammad Yakub v. Shahnawaz 1998 CLC 21 rel.

(h) Limitation---

---Once full period of limitation was expired, then there would be no revival of cause of action afresh from date of legal notice served on defendant subsequently.

Province of Punjab v. Muhammad Hussain PLD 1993 SC 147 rel.

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

---O. II, Rr.3(1), 6 & O.VII, R.11---Joinder of causes of action in plaint---Rejection of plaint---Scope---Plaint joining two causes of action could be rejected partly for relief coming within four corners of O.VII, R.11, C.P.C.---Plaint could not be partly rejected, which was based on one cause of action and reliefs claimed were arising from one cause of action.

Alam Khan and 3 others v. Pir Ghulam Nabi Shah & Company 1992 SCMR 2375 ref.

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

----O. II, Rr.3(1), 6 & O.VII, R.11---Joinder of causes of action--Separate trials---Scope---Rule 6 of O.II, C.P.C., applicable to cases, where joinder of causes of action was in accordance with law, but not to cases of mis-joinder of cause of action or causes of action of a different character---Where one claim/relief arising out of one cause of action was barred by law, while relief based on other cause of action was maintainable, then Court in such situation could reject plaint to the extent of relief/case barred by law and proceed with case/relief based on a cause of action not barred by law.

Khawaja Shams-ul-Islam for Plaintiffs.

Asim Mansoor Khan for Defendant No. 1.

Muqeem Alam for Defendant No.2.

Arshad Iqbal for Defendant No.4.

Ashiq Ali Anwar Rana for Evacuee Trust Property Board.

P L D 2006 Karachi 607

Before Muhammad Sadiq Leghari, J

Mst. AFSAR SULTANA---Appellant

Versus

NIKHAT PERVEEN and others---Respondents

Second Appeal No.11 and C.M.A. Nos.562, 563 of 2005, decided on 3rd April, 2006.

Specific Relief Act (I of 1877)---

----S.12---Suit for specific performance of agreement---Original owner/predecessor-in-interest of vendors executed agreement of sale of suit house in favour of vendee---Terms of agreement showed that vendee paid certain amount to vendor and balance amount was to be paid by him within three months from date of agreement---Vendee paid certain amount after more than seven months instead of agreed period of three months and failed to pay remaining amount---Vendee, on death of original owner, filed suit for specific performance of contract against legal heirs of vendor/original owner---Suit was resisted by legal heirs of vendor mainly on the ground that vendee had not performed her part of contract as she failed to make payment of balance amount---Pending suit in the High Court, in its original side, an order was passed directing vendee to deposit balance amount in Court within two weeks, but vendee could not deposit the same even within extended time---Subsequently case was transferred to Civil Court and transferee civil Court dismissed suit holding that vendee had not been able. to establish that she was prepared to perform her part of contract---Appellate Court however, reversed findings of the Trial Court---Validity---Vendee had admitted non-payment of balance amount, which admission by itself was clear non-fulfilment of the condition of contract by vendee---Vendee had even not pleaded or proved that there was further agreement in respect of that payment---Legally party having defaulted in fulfilling its part of contract did not deserve the grant of its prayer for specific performance of contract---Decision impugned through appeal being illegal and wrong, principle of locus poenitentiae, would not protect it even it had been acted upon---Impugned decision being subject to appeal, fact that it had been acted upon, could not take away the legal right of appeal from the party competent to file same---Impugned decision of Appellate Court was set aside---Suit for specific performance of contract, was dismissed accordingly.

Mst. Maqbool Begum and others reported in PLD 1982 SC 47 and Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest Fisheries and Livestock Department Karachi and 3 others 2000 SCMR 907 ref.

Shabbir Hussain Shigri for Appellant.

Ghiasuddin Mirza for Respondents.

P L D 2006 Karachi 613

Before Sarmad Jalal Osmany, J

MUHAMMAD ALI and another---Applicants

Versus

QADIR KHAN MANDOKHAIL and another---Respondents

Criminal Miscellaneous Application No.119 of 2005, decided on 30th June, 2006.

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

----Ss.561-A & 196---Penal Code (XLV, of 1860), Ss.295-A, 295-B & 295-C---Quashing of proceedings---Application for---Complainant had lodged F.I.R. earlier against accused under S. 295-B & C, P.P.C. which was disposed of on police report that no offence had been committed---Constitutional petition filed by complainant was also dismissed with observations that complainant should file a direct complaint---Direct complaint filed by complainant was entertained by the Trial Court, which taking cognizance issued bailable warrants of arrest against accused--Maintainably---Under S. 196, Cr.P.C. no Court could take cognizance of any offence punishable under S. 295-A, P.P.C. unless the complaint was made by the order of or under authority from Central or Provincial Government or some officer empowered in that behalf by either of the two governments---Direct complaint had been entertained both under Ss.295-A and 295-C, P.P.C. vide impugned order---Said complaint though could not proceed under S. 295-A, P.P.C. as no sanction had been obtained under S.196, Cr.P.C., but there was no requirement under S.295-C, P.P.C. for taking necessary permission---Direct complaint, in circumstances, could not be quashed on that ground alone.

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

----Ss.561-A & 196-Penal Code (XLV of 1860), Ss.295-A, 295-B & 295-C---Quashing of F.I.R. and proceedings---Application for---Allegation in direct complaint against applicants/accused was that they were making bed sheets in their Factory with the names of Allah Almighty and Holy Prophet (peace be upon him) printed on the same---Only pieces of evidence available with prosecution was the bed sheets in question upon which allegedly Holy Names had been printed and on examination of same it could hardly be said that it contained any impression of Holy Names---"Fatwas" issued by Muftis of Madrassah Darul Uloom showed that there could be a doubt in the minds of ordinary public regarding the impression on the bed sheets as resembling the Holy Names but that could not be said with certainty---Applicant/accused had filed affidavits in the Court to the effect that figures and alphabets printed on the bed sheet, did not have any resemblance at all to Holy Names, however, if in any manner, it was found to be objectionable, they sincerely repent for the same and that they had full faith in Almighty Allah and respect for Holy Prophet (peace be upon him) and could not dare to defile their sacred Names in any manner---Sunnah of Holy Prophet (peace be upon him) provided that where a person had repented after insulting him, Holy Prophet (peace be upon him) had forgiven that person---Similarly, it was the accepted principle of Islamic Jurisprudence and in fact in all civilized countries, that whereever there was a doubt, benefit of same should be given to accused, because it was better to acquit ten persons than to convict an innocent man---No possibility of conviction of applicants/accused in facts and circumstances of the case existed---Prolonging of the trial would be an abuse of process of the Trial Court---Proceedings under directed complaint were quashed, in circumstances.

Raza Hashmi for Applicants.

Respondent No.1 present in person.

Sardaruddin Qureshi, A.A.-G. for the State.

P L D 2006 Karachi 617

Before Muhammad Sadiq Leghari, J

BILQEES BEGUM---Appellant

Versus

REGISTRAR OF PROPERTIES and another---Respondents

R.A. No. 44 of 2004, decided on 30th May, 2006.

(a) Benami transaction---

----Transaction could be recognized and declared as benami only if their was clear agreement or express understanding in that respect between the person who claimed to be purchaser as owner and the person in whose favour the property, was purchased---That agreement should be clear to the extent that property was in fact owned by the person having paid the price thereof and not by the person in whose name it had been purchased.

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

----Ss.42 & 54---Suit for declaration and permanent injunction---Benami transaction---Proof---Plaintiff had claimed that house in question having purchased by him in name of his wife/defendant as benamidar, he should be declared as owner of said house---Plaintiff had not pleaded or claimed anywhere expressly that at the time of purchase of said house in the name of defendant, there was a clear agreement or understanding between him and her that house was owned by him and defendant was simply benamidar---In absence of proof of such agreement/understanding, plaintiff could not be recognized judicially benami owner of house as even if said house was purchased from his funds in name of his wife/defendant---Plea of plaintiff was that he purchased house in question in the name of defendant wife just to keep her happy---That by itself had negated claim of plaintiff regarding status of transaction as. she could be satisfied and kept happy only on becoming owner of the house---Claim of plaintiff about benami character of transaction had not been established---Plaintiff, even if sold house after getting its possession in execution of a decree of the trial Court and possession was with the purchaser, but the right of the defendant under S.144, C.P.C. could not be defeated by that transaction---Plaintiff being not owner of house in question, was not competent and entitled to transfer same under Transfer of Property Act, 1882---Possession of house was to be restored to defendant by dispossessing purchaser thereof.

S.A. Taleef's case PLD 1970 Kar. 220 ref.

Osman Sheikh for Appellant.

Nemo for Respondents

Date of hearing: 30th May, 2006.

P L D 2006 Karachi 621

Before Nadeem Azhar Siddiqi, J

Messrs MATEEN CORPORATION---Plaintiff

Versus

Messrs PLASTICRAFTERS (PVT.) LTD.---Defendant

Suit No.1140 of 2004, decided on 26th June, 2006.

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

----S. 12---Limitation Act (IX of 1908), Art.113---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for specific performance of agreement to sell---Limitation---Property mortgaged with Bank---Condition as to forfeiture of down payment on plaintiff's failure to pay. balance amount within sixty days from signing of agreement---No date was fixed in agreement for its performance---Sale was subject to issuance of NOC by Bank---Agreement was signed on 1-8-1994---Refusal of Bank to issue NOC conveyed to plaintiff by defendant through letter dated 7-5-1995 considering agreement cancelled---Filing of suit by plaintiff in year 2004 alleging release of property by Bank in year 2003---Validity---Defendant had refused performance of agreement on 7-5-1998---Limitation had started from date of refusal i.e. 7-5-1995 and ended on 6-5-1998---Last date for filing suit was 6-5-1998 and after expiry of limitation prescribed by Art.113 of Limitation Act, 1908, there could be no revival of cause of action afresh---No cause of action therefore accrued to plaintiff in year 2003 or 2004 on gaining knowledge about release of property by Bank, when his suit had become time-barred in year 1998---Plaint was rejected under O.VII, R.11, C.P.C. for suit having become time-barred.

Haji Muhammad Ibrahim v. Ramzan Ali 1984 CLC 2364; Eidoo Khan V. Abdul Majeed and others 2001 YLR 2634 and Muhammad Bashir and others v. Hakim Ali and another 2000 YLR 368 ref.

Province of the Punjab and others v. Muhammad Hussain and others PLD 1993 SC 147 and S.M. Shafi Ahmad Zaidi v. Malik Hassan Ali Khan 2002 SCMR 338 fol.

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

----O. VII, R. 11 --Rejection of plaint, application fox---Correspondence exchanged between parties suppressed by plaintiff, but placed on record by defendant---Plaintiff's plea that for rejection of plaint only contents of plaint would be seen and no other document could be considered---Validity---Court could look beyond averments in plaint and consider other documents available on record refuting' plaintiff's claim---Plaintiff could not take benefit of his own wrong---Such plea had no force.

S.M. Shafi Ahmad Zaidi v. Malik Hassan Ali Khan 2002 SCMR 338 and Mst. Mazhar Khanum v. Sheikh Saleem Ali and others 2004 CLC 799 fol.

(c) Limitation---

----Cause of action---After expiry of limitation prescribed by law, there could be no revival of cause of action afresh.

Province of the Punjab and others v. Muhammad Hussain and others PLD 1993 SC 147 fol.

Umer Soomro for Plaintiff.

Muhammad Amin Lakhani for Defendant.

P L D 2006 Karachi 629

Before Rehmat Hussain Jafferi and Ali Sain Dino Metlo, JJ

Shaikh AIJAZUR REHMAN---Petitioner

Versus

THE STATE (NAB) through Director-General (NAB) and another---Respondents

Constitutional Petition No.D-407 of 2006, decided on 18th April, 2006.

Per Ali Sain Dino Metlo, J.--

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

----Art. 25---Equality before law---Equality before law was one of the cardinal principles of jurisprudence recognized by all civilized societies-All persons, high or low, were equal before law---Justice must be even-handed and should not be selective even in the matter of procedure---Not desirable to adopt different procedures in the trial of cases simply on the basis of the parties being high or low---Judges should not be respecters of persons---Even a law prescribing different procedures for the trial of cases according to the status of the parties, might not stand the test of reasonable classification---Any attempt to give special treatment to a case on the basis of high status of a party could have the effect of undermining common man's confidence in the independence, impartiality and fairness of judiciary.

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

----Chap. XXV [Ss.353 to 365]---Qanun-e-Shahadat (10 of 1984), Arts.131 & 133---Mode of taking and recording evidence-:-Procedure prescribed under Chapter XXV, Cr.P.C., providing for recording evidence in writing only, was quite comprehensive; it was in vogue and had successfully catered for administering justice for the last more than a century without any serious complaint, criticism or demand for change from any quarter and had stood the test of time---There might be a desire for recording Court proceedings in audio or video-tapes or such like other devices, but mere desire, howsoever strong it might be, without sufficient urgency and utility, could not be sufficient for judicial innovation and for the present there seemed to be no urgency and there was no utility of adopting such procedure---Before taking any decision in that regard, issue would have to be examined thoroughly from different angles including its utility and feasibility---One of important legal requirements for recording evidence as contained in Article 131 of Qanun-e-Shahadat 1984, was to exclude irrelevant and inadmissible evidence from being recorded---While recording evidence in audio or video cassettes, all evidence, relevant as well as irrelevant, admissible as well as inadmissible, would stand recorded as soon as it would come out from the mouth of witness---Some modalities would have to be worked out for excluding such irrelevant and inadmissible evidence for authentication of recorded cassettes; as well as for preparation and certification of their copies---Availability of human and material resources, would also be an important factor for consideration---Moreover, the procedure, if adopted, would have to be generally for all cases and not for one particular case---Task would be easier for the Legislature.

Per Rehmat Hussain Jafferi, J-

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

----Chap. XXV [Ss.353 to 365]---Qanun-e-Shahadat (10 of 1984), Arts.131 & 133-Constitution of Pakistan (1973), Art.25---Mode of taking and recording evidence---Adopting new methods, techniques and devices---Sessions Judge or Magistrate, was required to take down the evidence in his own hand in the language as mentioned in Chap. XXV, Cr.P.C. and it was not incumbent upon the Judge or Magistrate to record evidence in audio cassette---Because of modern technology, a benefit could be taken from said technology to preserve evidence and proceedings of the Court in modern devices---Evidence would contain examination-in-chief, cross-examination, re-examination, if any, ruling of the Court about admissibility or otherwise of evidence etc.---Control of the gadget would be with the Presiding Officer who could pause or get it paused at any time while recording evidence that would stop recording inadmissible evidence which would then not become the part of record and it would not violate provisions of Articles 131 & 133 of Qanun­e-Shahadat, 1984---In appropriate cases, in addition to take down evidence in the manner provided in Chap. XXV, Cr.P.C., evidence could be preserved and recorded through modern technology on different. kinds of devices, such as audio cassettes, C.Ds., etc. with the help of voice, tape recorder or computer---Even the proceedings and evidence could be recorded in video cassette through video camera, electronic short hand machine, evidence tape recording devices etc., in appropriate cases; for that the decision lay with the Trial Court to exercise same keeping in view importance of the case, person involved in it, gravity of offence, in highly sensitive and high profile cases---Such classification was not against the spirit of Article 25 of Constitution, but was permissible as In the field of criminal justice, a classification was permissible on the basis of heinousness of crime committed---Courts were required to adopt new methods, techniques and devices obtained through advancement of science without affecting the original intention of law---By adopting those new methods; Court would be in a better position to serve advancement of cause of justice, to do fair `play between the parties and to make proceedings more transparent.

National Textile Workers' Union v. P.R. Ramakrishnan (1983) 1 SCC 228; State v. S.J. Choudhary (1996) W SCC 428; SIL Import USA v. Exim Aides Silk Exporters (1999) 4 SCC 567; Basavaraj R. Pail v. State of Karnataka (2000) 8 SCC 740; State of Maharashtra v. Praful B. Desai AIR 2003 SC 2053; Dewan Singh v. Emp., 42 Cr.LJ 284 and Abdul Rehman's case 28 Cr.LJ 25 (PC) ref.

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

----Art. 25---Equal protection of law---Equal protection of law appearing in Art.25 of the Constitution did not mean that every citizen, no matter what his condition, must be treated in the same manner; it only would mean that those persons, similarly situated or in similar circumstances, would be treated in the same manner-Differentiation could be made on the basis of occupations or privileges or special needs of a particular locality or a particular community or age groups or different sexes---Article 25 of the Constitution guaranteed equality and not identity of rights---Equal protection clause of Article 25 of the Constitution did not demand uniformity of procedure---Legislature could classify and adopt one type of procedure for one class and a different type for another class---Different procedure could be adopted in different cases depending upon the facts and circumstances of each case.

F.B. Ali v. State PLD 1975 SC 506 and Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 ref.

(e) Practice and procedure---

----If there was no specific prohibition to a particular procedure in procedural law then same was deemed to be permissible---Apparent reason behind it was that law had to go along with the time, to meet with the requirements and needs of the Society and to effectively travel with the changing time.

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

----S. 17(c)---Procedure to be followed by Accountability Court---Section 17(c) of National Accountability Ordinance, 1999, had permitted Accountability Court to follow any procedure as it might deem fit in the circumstances of a case and could dispense with any provision of Cr.P.C.---Law had permitted Accountability Court to follow any procedure that would include recording of evidence in modern devices; in the trial of any case, after fulfilling conditions mentioned in S.17(c) of National. Accountability Ordinance, 1999---Accountability Court had such discretionary powers, but said discretion had to be exercised on sound judicial principles keeping in view the requirements of each individual case.

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

----Art. 199---Qanun-e-Shahadat (10 of 1984), Art.164---Constitutional jurisdiction---Scope---Entire evidence, in the present case, had been recorded---Cross-examination of investigation officer was going on---Advocate for petitioner had cross-examined witness for eight days and same was at the last stage of conclusion---Case was not such where proceedings and evidence could be recorded in the audio cassettes---Discretion exercised by the Trial Court in rejecting application for recording remaining cross-examination of prosecution's last witness in his voice in audio cassette, did not suffer from any illegality or irregularity and same did not require any interference under Art.199 of the Constitution.

Raja Qureshi for Petitioner.

Safdar Hussain Shah Bukhari, ADPGA for the State.

Date of hearing: 14th April, 2006.

P L D 2006 Karachi 648

Before Sabihuddin Ahmad, C.J. and Muhammad Ather Saeed, J

Messrs PIONEER TRADERS---Petitioner

Versus

PROVINCE OF SINDH and others---Respondents

Constitution Petitions Nos.1070 to 1072, 1284, 1739, 1740, 1763, 1771 to 1776, 1798, 2034 of 2002, 213 and 746 of 2005 heard on 9th December, 2005.

Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Arts. 17, 18 & 31---Sindh Prohibition (Enforcement of Hadd) Rules, 1979, Rr.23 & 23-A---Constitution of Pakistan (1973), Arts.77, 127 & 199---Constitutional petition---Levy of assessment fee, vend fee and surcharge on assessment fee---Petitioners had challenged levy of assessment fee, vend fee and surcharge on assessment fee levied in accordance with Rules framed in exercise of powers conferred by Art.31 of Prohibition (Enforcement of Hadd) Order,1979---Validity---Provisions of Art.18 of Prohibition (Enforcement of Hadd) Order, 1979 had only sanctioned levy of licence fee and no other import---Any charge or levy which had not been sanctioned in the main statute could not be imposed under Rules making powers delegated by the statute---Taxes under the Constitution could only be levied under an Act of Parliament or a Provincial Assembly by or in terms of Article 777, or 127 of the Constitution---Contention that by using the term 'such fee' in Art. 18 of Prohibition (Enforcement of Hadd) Order, 1979, powers of Provincial Government to levy any fee had been widened and assessment fee and vend fee and the surcharge which had been levied as terms and conditions of issuance of licence could justify, was repelled---Form of licence relied on by Additional Advocate-General had shown that assessment fee was a fee to be levied on the sales of petitioners, and was not' in nature of fee but in nature of tax and no provision existed in Prohibition (Enforcement Hadd) Order, 1979 authorizing Provincial Government to levy any sales tax---Provincial Government, in circumstances had exceeded its jurisdiction and had violated provisions of Arts.77 and 127 of the Constitution---Levy of assessment fee, vend fee and surcharge on assessment fee, was in excess of jurisdiction of Provincial Government in exercise of its rule making powers and ultra vires the Constitution and same had to be struck down---Allowing constitutional petitions levy of vend fee, assessment fee and surcharge on assessment fee, was struck down accordingly.

Province of East Pakistan and another v. Nur Ahmad and another PLD 1964 SC 451; McCarthy and Stone (Developments) Ltd. v. London Borough of Richmond Upon Thames 1994 SCMR 1393; M. Afzal and Son and others v. Federal Government of Pakistan and another PLD 1977 Lah. 1327; Kohinoor Textile v. Federation of Pakistan 2002 PTD 121; Malik Muhammad Din v. Trustees of the Port of Karachi PLD 1966 Kar. 518; Chairman, Railway Board v. Wahabuddin and Sons PLD 1990 SC 1034; Fazlul Qauder Chowdhry v. Muhammad Abdul Haque PLD 1963 SC 486 and Pakistan Tobacco Company Ltd. v. Government of N.-W.F.P. PLD 2002 SC 460 ref.

Jhamat Jethanand, Farogh Naseem, K.A. Wahab, Shaikh Jawaid Mir, Fareed Ahmed Dayo and Raza Hashmi, Advocates for Petitioners.

Abbas Ali Assistant Advocate General Sindh.

Date of hearing: 9th December, 2005.

P L D 2006 Karachi 655

Before Muhammad Moosa K. Leghari, J

ABDUL JABBAR and another---Applicants

Versus

THE STATE and another---Respondents

Criminal Revision Application No.S-36 of 2006, decided on 13th June, 2006.

Penal Code (XLV of 1860)---

----Ss.302, 504, 148, 149 & 114---Criminal Procedure Code (V of 1898), Ss. 193 & 439---Revision---Appreciation of evidence---Names of accused, after investigation, were placed in Column No.2 by the police, but on filing application by complainant under S.193, Cr.P.C., applicants/accused were directed by Sessions Judge to join trial as accused persons vide his order and applicants (accused) being aggrieved, had called in question legality and propriety of said order of Sessions Judge---P.I.R. in the case was registered on the very day of occurrence---Applicants were named as accused persons in said F.I.R. and specific roles and overt acts done by them were described therein---Investigating Officer, proceeded to collect the material not for the purpose of conducting impartial investigation, but to favour accused persons---Medical certificate purported to have been issued by a Doctor was taken into consideration, but neither it contained the qualification of the Doctor nor his registration number or proper address and date mentioned therein was apparently tampered with---Said medical certificate apparently appeared to be dubious---Affidavits sworn by two persons in favour of accused, appeared to be managed by some relative of accused---Police did not make any effort to arrest accused persons and instead provided them illegal protection---Impugned order had revealed that conclusion arrived at by the Trial Court/Sessions Judge was legal and valid---In absence of any illegality or perversity in impugned order, same was maintained and revision application against said order, was dismissed---Investigating Officer, having conducted investigation in a dishonest manner with the sole purpose of favouring applicants/accused, had rendered himself liable to disciplinary action under Service Rules and also had exposed himself to penal action under relevant provisions of Penal Code and Police Order.

Anwar A. Khan for Applicants.

S. Nasir Ali Shah for Respondent No.2.

Rasheed Ahmed Qureshi, Asstt.A.-G. Sindh for the State.

P L D 2006 Karachi 658

Before Munib Ahmed Khan, J

MUHAMMAD IQBAL---Petitioner

Versus

MUHAMMAD NAEEM and 2 others---Respondents

C.P. No.S-81 of 2006, decided on 1st June, 2006.

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

----S. 15(2)(ii) & (vii)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Default in payment of rent and bona fide personal need of landlord---Both Rent Controller and Appellate Court concurrently ordered ejectment of petitioner/tenant from premises in question---Both Courts were of the opinion that petitioner/tenant managed some false receipts for the period of default in question and those receipts had been discarded---Counsel for petitioner had failed to satisfy in respect of ground of default as burden to prove was upon the petitioner/tenant who failed to discharge; finding of Courts below in that respect against petitioner, was correct, in circumstances---Both Courts had given their findings in favour of respondent/landlord on the issue of personal need, as no adverse evidence was brought by petitioner/tenant against respondent and statement on oath given by respondent, was also not rebutted---Nothing was available to solicit interference of High Court in Constitutional petition---Petition was dismissed.

PLD 1976 Kar. 966; PLD 1986 Kar. 184; 1991 MLD 1340; PLD 1991 SC 242; 1985 CLC 2552; 1987 CLC 1146; 1988 CLC 802; 1991, CLC 566 and 2003 CLC 278 ref.

Jhamat Jethanand for Petitioner.

Shamsuddin Memon for Respondents.

Date of hearing: 22nd May, 2006.

P L D 2006 Karachi 661

Before Anwar Zaheer Jamali and Muhammad Athar Saeed, JJ

Mst. SIKANDAR BIBI---Petitioner

Versus

Rao MUHAMMAD JAMEEL and 2 others---Respondents

C.P. No.D-64 of 2006, decided on 2nd May, 2006.

Specific Relief Act (I of 1877)---

----Ss. 8, 39, 42 & 54---Constitution of Pakistan (1973), Art.199---Civil Procedure Code (V of 1908), S.115---Constitutional petition, maintainability of---Suit for declaration, permanent injunction, cancellation of document and mesne profits---Trial Court and Appellate Court below having concurrently dismissed suit filed by petitioner, she filed directly constitutional petition against concurrent judgment of courts below---Validity---Remedy of revision under S.115, C.P.C. was available to petitioner, but she did not avail the same for no valid reason---Provisions of Art. 199 of the Constitution, in the wake of availability of adequate alternate remedy, in normal course, could not be resorted to defeat such statutory provision and there seemed to be no exceptional circumstances to overlook that aspect of the petition---Besides, findings on facts recorded by Courts below in their respective judgments which seemed to be based on proper appreciation of evidence, were not open to scrutiny at a belated stage---Constitutional petition was dismissed.

Ataullah Khan for Petitioner.

Saathi M. Ishaque for Respondent No.1.

P L D 2006 Karachi 664

Before Munib Ahmed Khan, J

METROPOLITAN STEEL CORPORATION LTD.---Plaintiff

Versus

MACSTEEL INTERNATIONAL U.K. LTD.---Defendant

Suit No.1369 of 2004, decided on 7th March, 2006.

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

----O. VII, R. 2 & S.151---Electronic Transaction Ordinance (LI of 2002), Ss.3 & 4---Arbitration (Protocol & Convention) Act (VI of 1937), S.3---Arbitration Act (X of 1940), S.34---Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Ordinance (XX of 2005), S. 4--Qanun-e-Shahadat (10 of 1984), Art.2(e)---Suit for recovery of amount---Defendant, according to sales contract, was to supply 1,600 M.T. steel rods, but it supplied only 500 M.T. of steel rods---Plaintiff filed suit claiming damages against defendant in respect of balance 1,100 M.T. of steel rods--Defendant filed application for stay of plaintiff's suit seeking direction from the Court to order plaintiff to refer the dispute to arbitration as the parties by the very said contract had agreed to settle all disputes by arbitration---Claim of plaintiff was that sale transaction was based on pro forma invoice, purchase order and correspondence by faxes and E.mails and that plaintiff had never entered into any sales contract containing an agreement to arbitration---Counsel for plaintiff had argued that there was no document to show that there was arbitration agreement between the parties---Validity---Defendant's counsel had rightly contended that to wriggle out of arbitration agreement, plaintiff had attached documents prior to the sales contract and not the sales contract itself which contained arbitration agreement, terms of which were accepted by plaintiff by opening a letter of credit favouring defendant in terms thereof---Plaintiff could not accept some of the terms of said contract and denied others, such as arbitration clause; plaintiff could not be allowed to blow hot and cold in the same breath---Agreement to arbitration, could also be inferred from the conduct of the parties based on exchange of correspondence---From the exchange of correspondence between parties, an agreement to refer dispute to arbitration could easily be inferred, from which plaintiff could not extricate itself---Suit was stayed and plaintiff was directed to resort to terms of sales contract for settlement of its dispute with defendant by arbitration as agreed between the parties.

2002 SCMR 1903, 1977 SCMR 409; 1986 CLC 312; Zambia Steel's case [1986] 2 Lloyds Law Report 225 and Hitachi Limited v. Rupali Polyester 1998 SCMR 1618 ref.

(b) Administration of justice---

----Omission to mention a provision or mentioning of a wrong provision of law, would not render an application invalid or make it fatal to the grant of relief, if it was available under the law to an aggrieved party.

1982 SCMR 673 and 1994 SCMR 1555 ref.

Noorullah Manji and Nasir Mehmood for Plaintiff.

Jawad Sarwana for Defendant.

P L D 2006 Karachi 674

Before Sabihuddin Ahmed, C.J. and Mrs. Qaiser Iqbal, J

ABDUL SATTAR through L.Rs.---Petitioners

Versus

GHULAM RASOOL and 2 others---Respondents

Constitutional Petition No.858 of 1997, decided on 24th May, 2006.

(a) Abandoned Properties (Taking Over and Management) Act (XX of 1975)---

----S. 2(f)---Pakistan Citizenship Act (II of 1951), Ss.3(2) & 16-A(1)(3)--Constitution of Pakistan (1973), Art.199---Constitutional petition---Board of Trustees not empowered to declare, whether a particular person is or is not citizen of Pakistan.

(b) Abandoned Properties (Taking Over and Management) Act (XX of 1975)---

----Ss. 13 & 14---Pakistan Citizenship Act (II of 1951), Ss. 3(2) & 16-A(1)(3)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Respondent's property claimed by petitioner to be in his possession since year, 1951 under oral sale---Board of Trustees notified such property as abandoned property on the ground that respondent at one point of time intended to carry out business in erstwhile East Pakistan--Validity---Merely such ground would not be conclusive proof of the fact that respondent was a "specified person" within meaning of Pakistan Citizenship Act, 1951---Such order of Board of Trustees was illegal and without lawful authority.

Board of Trustees, through Chairman Islamabad v. Syed Munirul Huda Chowdhry and others PLD 1998 SC 127 rel.

(c) Abandoned Properties (Taking Over and Management) Rules, 1975---

----R. 11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suo motu revisional jurisdiction of Board of Trustees---Limitation---Order of Deputy Administrator passed six years back---. Board of Trustees set aside such order in exercise of its suo motu revisional powers---Validity---Such powers could be exercised within thirty days of passing of order by Deputy Administrator---Order of Board of Trustees was held, to be illegal.

Shahanshah Hussain for Petitioners.

Hissmuddin for Respondents.

Date of hearing: 24th May, 2006.

P L D 2006 Karachi 678

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

Mst. MUBARAK SALMAN and others---Appellants

Versus

THE STATE---Respondent

Criminal Accountability Appeals Nos.4, 5, 6 of 2005, 17, 19 of 2003, 60, 61, 62 of 2001, 2, 5, 6, 7, 24, 38, 67, 68 and 42 of 2002, decided on 7th February, 2006

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

----Ss. 31-A & 32---Conviction of absconder in absentia---Appeal by accused through his counsel without surrendering to due process of law---Maintainability---Convict by not surrendering to due process of law would lose right of hearing, thus, could not be heard---Such appeal was held, to be incompetently filed and not maintainable.

Muhammad Jamil Ahmed v. The State SBLR 2005 Sindh 1146 and Gul Hasan v. State PLD 1965 SC 89 fol.

Muhammad Ashfaq v. The State 1998 PCr.LJ 1486 not fol.

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

----Ss. 31-A & 32---Criminal Procedure Code (V of 1898), Ss.87, 88 & 561-A---Constitution of Pakistan 1973), Arts. 9, 199 & 203---Conviction of absconder in absentia without any trial on basis of statement of Process Server recorded for proceedings under Ss.87 & 88, Cr.P.C.---Appeal by accused without surrendering before Court---Validity---Accused by not surrendering to due process of law, had lost right of hearing, thus, could not be heard---Such appeal was not maintainable---Statement of Process Server could not be treated as legal evidence---Conviction of accused without trial as provided under law and that too in absentia was violative of principles of natural justice and Art.9 of the Constitution---Court was required to pass a legal order only--Jurisdiction vested in Trial Court was to dispense justice and not perpetuate injustice---Impugned judgment passed in excess of powers of Trial Court could not be treated as final---Trial Court had passed impugned judgment by abusing process of Court---Act of Court done in abuse of its process could be corrected by such Court itself or by superior Court, when same was brought into its notice through any source---Accountability Court was subordinate to High Court---High Court under Art.203 of the Constitution had power to supervise and control subordinate Courts---Impugned judgment was void ab initio---High Court could set aside impugned judgment in exercise of its suo motu inherent, constitutional, revisional and supervisory jurisdiction, resultantly the position as it was on date of its passing the order stood restored---Principles.

Noor Muhammad Khatti v. The State 2005 PCr.LJ 1889; Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104; Gul Zaman Kasi v. State (Criminal Appeal No.269 of 2003) Chairman, District Screening Committee v. Sharif Ahmed Hashmi PLD 1976 SC 258; Ali Muhammad v. Hussain Bakhsh PLD 1976 SC 37; Christian Edu. E. Trust v. Deputy Commissioner, 1987 SCMR 1189; Altaf Hussain v. Chief Settlement Commissioner PLD 1965 SC 68'; Muhammad Ayub Khuhro v. Pakistan PLD 1960 SC 237; Atta Muhammad Qureshi v. Settlement Commissioner PLD 1971, SC 61; Abul Ala Maudoodi v. Government of West Pakistan PLD 1964 SC 673; Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447; Rehmdil v. Province of Balochistan 1999 SCMR 1060 and Mehram Ali v. State PLD 1998 SC 1445 ref.)

Muhammad Jamil Ahmed v. The State SBLR 2005 Sindh 1146; Gul Hasan v. State PLD 1965 SC 89 and Qureshi Salt and Spices Indus v. Muslim Commercial Bank Ltd. 1999 SCMR 2353 rel.

Muhammad Ashfaq v. The State 1998 PCr.LJ 1486 not fol.

(c) Void order---

---Setting aside of---Jurisdiction of superior Court stated.

Normally, the superior Courts have been extremely slow in determining purely judicial order or judgments passed by subordinate Courts to be void ab initio. Nevertheless, it does not mean that superior Courts have no jurisdiction to remedy the situation after they had encountered with it. Superior Courts have various powers such as revisional, inherent and constitutional powers. These powers can be exercised in appropriate proceedings, either on the application of any party or under its suo motu jurisdiction.

Rehmdil v. Province of Balochistan 1999 SCMR 1060 rel.

(d) Void order---

----Void judgment of Court can be corrected by exercising its suo motu jurisdiction.

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

---S. 2(g)---Constitution of Pakistan (1973), Art. 203---Accountability Court, status of---Such Court was subordinate to High Court and subject to its supervisory jurisdiction under Art.203 of the Constitution.

Mehram Ali v. State PLD 1998 SC 1445 rel.

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

---Art. 203---Supervisory jurisdiction of High Court---Scope and object stated.

The fundamental object of the supervision is to keep the administration of justice pure, and for that purpose, the High Court exercises powers to correct the failure, faults or dereliction of duty, latches, defects of jurisdiction, denial of justice, abuse of process of Court or law, which instances are by no means exhaustive, but not by way of any relief and irrespective of whether causes any benefit or harm to a party either suo motu or when the defect is brought to the notice of the Court. In exercise of such powers, there are no limits, fetters or restrictions placed on the High Court, because the purpose of Art.203 of the Constitution is to make the High Court the custodian of justice within the territorial limits of its jurisdiction and to arm it with a weapon that could be wielded for the purpose of seeing that justice is met out fairly and properly by the Courts subordinate to it.

Zahid Ali v. Mubarak Bano PLD 1976 Kar. 68 rel.

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

----S. 561-A---Inherent powers of High Court---Scope---High Court in exercise of such powers would not function as a Court of appeal or revision---Such powers, though wide, must be exercised sparingly, carefully and with caution, but for doing real and substantial justice only when its exercise was justified by the tests specifically laid down in S.561-A, Cr.P.C.---Decision of Court in exercise of such power must be based on sound principles---Principles.

Under section 561-A, Cr.P.C. the High Court possesses inherent powers. This section does not confer any new powers on the High Court. It only saves the inherent power, which the High Court possessed before the enactment of the criminal Procedure Code, 1898. This section envisages three circumstances under which the inherent jurisdiction can be exercised, namely, (a) to give effect to any order under the Code, (b) to prevent abuse of the process of any Court, and (c) or otherwise to secure the ends of justice. It is not possible or desirable to lay down any inflexible rule to govern the exercise of inherent jurisdiction as no legislative enactment dealing with the procedure can provide for all cases that may possibly arise. In exercise of powers under this section, the High Court does not function as a Court of Appeal or revision. Inherent jurisdiction under this section though wide has to be exercised sparingly, carefully and with caution and only when such exercise if justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the Court exists. The authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the High Court has power to prevent such abuse. It would be an abuse of process of Court to allow any action, which would result' in justice and prevent promotion of justice. In 'exercise of these powers, High Court would be justified to quash any proceedings; if it finds that initiation/continuation of its amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice, judicial process no doubt, should not be an instrument of oppression of needless harassment. The Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstance into consideration before issuing process, lest it should be an instrument in the hands of a private complainant to unlash vendetta to harass any person needlessly. It should also be to ensure that section is not an instrument handed over to accused to shortcut a prosecution and bring about its sudden death. Thus, the scope of exercise of powers under section 561-A, Cr.P.C., is to prevent the abuse of process of any Court or otherwise to secure the ends of justice, hence the powers under this section are wide and the plentitude of powers requires Court to be more cautious in their exercise. Therefore, the Court must be careful to see that its decision in exercise of its power is based on sound principle.

Bashir Ahmed v. Zafar-ul-Islam PLD 1004 SC 298 and State of Madhya Pradesh v. Awadh Kishore Gupta AIR 2004 SC 517 rel.)

(h) Practice and procedure----

---No one can be made to suffer for any act of Court.

Muhammad Iqbal v. Khan Muhammad PLD 1999 SC 35; Shaheen Akhtar v. Muhammad Alam 1999 YLR 2325; Amantullah Begum v. Munawar Akhtar 1999 SCMR 1700 and Muhammad Munsha v. Sabir Ali 1999 SCMR 1782 rel.)

(i) Void order---

----Validity of---Void judgments neither could be ratified nor confirmed---Void judgments, if allowed to remain operative, would perpetuate injustice and cause miscarriage of justice instead of advancing cause of justice---Any action or order based on void judgment/order would be illegal and of no legal effect---Principles.

Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104 rel.)

M. Saleem Khan, Rasheed A. Rizvi, S. Aamir Raza Naqvi, I.A. Hashmi, Hassan Sabir, M. Ilyas Khan, Muhammad Farooq and Gul Muhammad for Appellants.

Shafaat Nabi Khan Sherwani, DPGA and Khalique Ahmed, Special Prosecutor for NAB./Respondent

Dates of hearing: 8th and 15th December, 2005.

P L D 2006 Karachi 691

Before Faisal Arab, J

ABDUL GHAFOOR---Plaintiff

Versus

Syed JAWED HUSSAIN JAFFREY and another---Defendants

Suit No.257 of 2002, decided on 21st August, 2006.

Tort---

----Libel and defamation---Suit for damages---Determination of damages---Principles---Publication of libellous and defamatory material in newspapers---Duty of journalist, and publishers---Plaintiff, a highly qualified banker, filed a suit for permanent injunction and damages against defendants, editor and publisher, and printer, for publishing series of false and defamatory reports against plaintiff in their weekly newspaper---Plaintiff, in his suit, asserted that allegations levelled against him and his family members were baseless, calculated to harm .his good professional name and ridicule him in the eyes of public and bankers at large---Plaintiff claimed damages to the tune of one hundred millions rupees and sought permanent injunction against defendants---Validity---Defendants did not put up any defence nor filed written statement and entire case of plaintiff went unchallenged---Heavy responsibility lay upon every news reporter, journalist and publisher of a newspaper or periodical, to steer clear of prejudices and perversions and publish stories after due verification so that only truth was exposed and nothing else---Any false story published in newspapers was bound to humiliate and harm the goodwill and reputation of person targeted by such publication---Publication of accusatory and defamatory news items and stories without necessary verification was not only to be regarded as irresponsible professional conduct but if challenged in a Court of law the same was to be visited with monitary damages as well as restraint orders so that such conduct was discouraged and not repeated again---Unsubstantiated libellous material written or published against a person was not to be allowed to go unpunished---Art.14 of the Constitution recognized and protected a right of a person that his dignity was not to be violated---Whenever a cause with regard to hurt or humiliation was brought before a Civil Court, it was bounden duty of Court to examine the allegations and if Court found them false and malicious or tainted with bad faith then defendant had to be visited with civil liability of compensating the plaintiff monetarily---Basis of quantifying damages to the extent claimed by plaintiff though had neither been given in plaint nor in affidavit in ex parte proof, but in case of defamation it was not necessary that exact amount of damages be determined through evidence---Plaintiff had to simply establish defamation and quantum of damages was to follow by applying rule of thumb---Quant6m of damages in defamation cases was to be determined by one of the considerations that it was commensurate with financial strength of wrongdoer and position which the person wronged held in society---Financial position of defendant though did not come on record but keeping in view the social standing of plaintiff and applying rule of thumb, rupees ten millions were determined as damages recoverable jointly and severally against defendants---Suit was decreed---Civil Procedure Code (V of 1908), O. VIII, R. 10---Constitution of Pakistan (1973), Art.14.

Sharif v. Nawab Din PLD 1957 Lah. 283 rel.

Qayum Abbasi for Plaintiff.

Nemo for Defendants.

Date of hearing: 17th March, 2006.

P L D 2006 Karachi 698

Before Rahmat Hussain Jafferi and Sajjad Ali Shah, JJ

KHAN BACHA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 392 of 2004, decided on 29th July, 2006.

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

----S. 9(b)---Qanun-e-Shahadat (10 of 1984), Art.49---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Benefit of doubt---Facts mentioned in Mashirnama' were beyond scope of S.103, Cr.P.C.---Non-sealing of sample immediately after recovery---Effect---Charas weighing 120 grams was allegedly recovered from the possession of accused/appellant---Trial Court convicted accused and sentenced him to imprisonment for two years and fine---Accused contended that complainant had deposed before the Court that two rods of Charas were taken out as sample whereasMashir' stated that only one rod was separated from case property and that none of the witnesses stated before the Court that recovered substance was sealed on the spot---Prosecution contended that in Mashirnama' it had been mentioned that sample was sealed on the spot and any such discrepancy in statements of witnesses was to be treated as a minor omission---Validity-'Mashirnama' showed that the sample was sealed on the spot but the fact of sealing of sample was out of scope of S.103, Cr.P.C. and was hit by Art.49 of Qanun-e-Shahadat, 1984, which protected list of articles secured in the course of search and the places from where articles were recovered---Facts mentioned in Mashirnama not falling within the scope of S.103, Cr.P.C. were inadmissible in evidence, hence the same could not be relied upon---If prosecution wanted to establish a fact out of scope of S.103, Cr.P.C. then the said fact was required to be stated by the witness on oath before the Court---Both witnesses (complainant and Mashir) did not state that sample was sealed at the place of incident---Such fact, even if mentioned inMashirnama', was inadmissible in evidence and therefore it was to be held that sample was not sealed on the spot---Sample was not proved to have been sealed at the place of incident, therefore, there was no guarantee that case property was not tampered with---Subsequent sealing of property elsewhere was not to rectify the defect which had crept in at initial stage and, therefore, Chemical Examiner's report lost its evidentiary value---If case property (sample) was subsequently sealed then prosecution was required to explain the circumstances for doing so and also that sample was not tampered with or replaced but no such explanation was furnished by prosecution in the case---Non-sealing of sample immediately after its recovery created serious doubt in prosecution case and no implicit reliance could be placed on Chemical Examiner's report---Case of prosecution being highly doubtful, accused was found entitled to benefit of doubt---Appeal was allowed.

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

---Ss. 20, 21, 22, 23 & 25---Qanun-e-Shahadat (10 of 1984), Art.49---Criminal Procedure Code (V of 1898), Ss. 47, 51, 52, 96, 97, 98, 99, 100, 101, 102, 103, 104 & 105-'Search' and inspection'---Distinction and connotation---Types of searches---Mashir---Mashirnama, kinds and scope of---All searches are inspections but all inspections are not searches---Search is a thorough inspection of a man's house, building, premises or of his person with the object of discovering some material which was to furnish evidence of guilt for some offence with which he was charged---Search implied a prying into hidden places for that which was concealed---If object sought for was always in plain sight, then there was no search-'Search' connoted active seeking or quest of something which was hidden or prying into hidden places for something which was concealed and in legal parlance it implied use of force, actual or implied---Articles when were lying open or in full view and no prying or seeking was involved or where articles were voluntarily produced by accused, it was not to be called search---Two types of searches could be conducted by a police officer; first under warrants issued by Magistrate under Ss.96-105, Cr.P.C., and second without warrants during course of investigation---Search under first category was to be conducted in presence of two respectable inhabitants of locality and a record in respect of place thus inspected was to be prepared under S.103(2), Cr.P.C.---Record prepared during searches made under S.103, Cr.P.C., was protected and made admissible under Art.49 of Qanun-e-Shahadat, 1984, and Court could rely upon such record without production of Mashirs unless Court specially summoned them (Mashirs)---Record prepared under S.103, Cr.P.C., by Investigating Officer during such searches was called "Mashirnama"---WordMashirnama' was not mentioned in S.103 of Cr.P.C. but for their convenience, police described record prepared under S.103, Cr.P.C. as Mashirnama'---Under S.103, Cr.P.C., the wordMashir' meant two or more respectable inhabitants of locality or neighbourhood of place searched by police officer---Requirement of law under S.103, Cr.P.C., concerning preparation of record was that the police officer would prepare list of things seized, show the places from where such things were recovered and get the same signed by two witnesses/Mashirs---If a police officer mentioned facts in Mashirnama beyond scope of S.103, Cr.P.C. then he was doing so in excess of his official duty and entries of such facts in `Mashirnama' were not to be in

the discharge of his public duty---Such facts were not to be admissible in evidence under Art.49 of Qanun-e-Shahadat, 1984---Provisions of S.103, Cr.P.C., were not applicable in respect of searches made under Ss.20, 21, 22 & 23 of Control of Narcotic Substances Act, 1997 in view of S.25 of the said Act---Provisions of S.103, Cr.P.C., were applicable to search of a house but not to search made elsewhere i.e. on highways or road sides or public places like railway stations, bus stands or airports.

State v. Woodall, 16 Ohio Misc. 226, 241 N E 2nd 755; People v. Carro 1112 III, App. 3d, 869, 299 N.E. 2d 134, 140; People v. Hallman, Colo. App 555 P-2d 187, 189; Rai Bhaya Dirgal Deo Bahadur v. Bene Mahto AIR 1917 PC 197; State v. Kamruddin AIR 1956 Nag. 74; Hexnanta Kumar v. Alliantz Und Stuttgarter Life Insurance Co. Ltd., AIR 1938 Cal. 120(D); Bisewar Misra v. The Kind, AIR 1949 Orissa 22(E); State v. Muhammad Amin 1991 SCMR 1367 and Baloch Perwah v. Emperor 1933 Sindh 220 rel.

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

---Ss. 103(2) & 174---Mashir' andMashirnama'---Meaning and connotation---Word Mashirnama' is a combination of two wordsmashir' and nama'---Mashir (Arabic word) means a counsellor, a senator, a minister; one who points out as an indicator---Wordnama' (Persian word) means a book, a letter, a writing, a record etc.---Under provisions of Cr.P.C. a record prepared by police officer in pursuance of S.103(2) was normally called Mashirnama'---Two or more respectable inhabitants of locality or neighbourhood who witnessed and signed record prepared by police officer under Ss.103(2) & 174, Cr.P.C. were calledMashirs'.

S.Y. Modagerkar and Sons v. Commercial Tax Officer and Belganum 1978, 41 S.T.C. 298 rel.

(d) Words and phrases---

---"Search" and "inspection"---Distinction and connotation.

(e) Words and phrases---

----"Mashir and "Mashirnama"---Meaning.

Aftab Bano Rajput for Appellant.

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

Date of hearing: 13th July, 2006.

P L D 2006 Lahore 1

Before Syed Zahid Hussain and Muhammad Khalid Alvi, JJ

Syed ASIF ALI---Appellant

Versus

AURANGZEB MIRZA and others---Respondents

R.F.A. No. 163 of 2000, decided on 26th September, 2005.

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

----S. 96 & O.XXIII, R.3---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement and possession was decreed on the basis of compromise against five defendants out of six and dismissed as against sixth defendant as withdrawn who filed appeal before High Court with the apprehension that though the judgment and decree purported to make mention that the suit against him stood dismissed yet the decree was likely to be executed against him as he was in possession of the property---Trial Court, while accepting the said compromise inter se the plaintiff and other defendants, appeared to be fully conscious of such aspect and had dismissed the suit as withdrawn to the extent of sixth defendant and decree drawn by the Trial Court of the same date was also to the same effect---Held, S.96, C.P.C. precluded any appeal from a decree passed by the Court by the consent of parties---Defendant in appeal though was not party to the compromise yet no decree had been passed against him---"Appeal" in its ordinary parlance and connotation was a sort of complaint to a higher forum against decision of a lower forum for the reversal of the same---Decision in the matter and the decree in the present case, were of dismissal of the suit qua the appellant (defendant No.6 in the suit), he had no right to appeal against such decree which was not passed against him---No justification was available to the appellant to maintain appeal against any such judgment which had taken care of his apprehension, and noted that "defendant No.6 is not prejudiced by this compromise in any manner"---Law also provided sufficient protection and adequate safeguards to such a person in possession against whom suit had been withdrawn and dismissed by the Court.

(b) Appeal---

----Connotation---Appeal in its ordinary parlance and connotation is a sort of complaint to a higher forum against decision of a lower forum for the reversal of the same.

Rana Nasrullah Khan for Appellant.

Amar Raza A. Khan for Respondents.

Date of hearing: 26th September, 2005.

P L D 2006 Lahore 4

Before Muhammad Sair Ali, J

KHUDA BAKHSH and another---Petitioners

Versus

GUL HUSSAIN and 7 others---Respondents

Civil Revisions Nos.2565 and 2566 of 2001, heard on 29th September, 2005.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 6---Superior right of pre-emption, claim of---Suit was filed by the pre-emptors against the sale transaction made in favour of the defendants by the vendor---Claim of the pre-emptors was that they had a superior right of pre-emption on the basis of contiguity and co-ownership in the suit property---Suit was decreed by the trial Court, however, an appeal by the defendants led to the dismissal of the suit---Validity---Claim of the pre-emptors for their superior rights was based on both contiguity and co-ownership of land---Appellate Court, however, had treated the difference between "contiguity of lands" or/and the "co-ownership of land" as non-existent---Section 6 of the Punjab Pre-emption Act, 1991, serially and separately categorized the superior claims to the right of pre-emption of a pre-emptor as Shafi Sharik, Shaft Khalit and Shafi Jar---Pre-emptor may have a claim to the right of pre-emption on the basis of any or more of the prescribed qualifications of rights as prescribed under S.6 of the Act---Pre-emptor may thus enjoy the status of any two or all the three rights which may, at times be interlinked or overlapping but are severable and independent in their essential nature---"Contiguity" and "ownership of land" differentiated---Two claims of the pre-emptor based on contiguity and ownership of land respectively, could not have been merged into each other and could not have been treated as interdependent---Court was required to adjudicate upon and determine the pre-emptor's claim to each right or each status independently, disjunctively and clearly by recording distinct reasons for acceptance of rejection of the same---Decision of the Appellate Court was set aside and the revision petition was accepted in circumstances.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 6---Superior right of pre-emption, claim of---Rights of pre-emption, scope, qualifications and conditions---Section 6 of the Punjab Pre-emption Act, 1991, recognizes that the right of pre-emption vests, firstly, in Shafi Sharik, i.e. a co-owner in the undivided immovable property sold, secondly, in Shafi Khalit, i.e. a participator in the special rights attached to the immovable property sold, and thirdly, in Shafi Jar, i.e. an owner of immovable property adjacent to the immovable property sold---Section 6 of the Act, serially and separately categorizes and defines the superior claims to the right of, pre-emption of pre-emptor as Shafi Sharik, Shafi Khalit and Shafi Jar---Each definition sets out the scope, the qualifications and the conditions of each of the rights---Pre?emptor may have a claim to the right to pre-emption on the basis of any or more of the prescribed qualifications as prescribed under S.6 of the Act---Pre-emptor may thus enjoy the status of any two or all the three rights which may, at times, be interlinked or overlapping but are severable and independent in their essential nature.

(c) Punjab Pre-emption Act (IX of 1991)---

----S. 6---Interpretation of S.6, Punjab Pre-emption Act, 1991---Rights of pre-emptor, defined---Contiguity and ownership of land, differentiated in the light of S.6 of Punjab Pre-emption Act, 1991---Co-ownership is a status arising out of the ownership in the corpus of. the undivided immovable property sold while the contiguity or adjacency does not visualize the existence of a right or interest of the pre-emptor in the sold property---Contiguity contrarily maintains duality and distinctiveness of the ownership of the two properties, which adjoin each other---Right of pre-emption as Shafi Jar emanates from the location of the immovable property for being immediately next to the property sold---Right of ownership in the property bordering the property sold leads to the pre-emptive right as Shafi Jar in a pre-emptor ---Shafi Sharik gets the right of pre-emption because of an existing and shared ownership right in the corpus of the property sold.

Sh. Naveed Sheheryar for Petitioners.

Raja Ghulam Hassan Khan for Respondents.

Date of hearing: 29th September, 2005.

P L D 2006 Lahore 8

Before Syed Zahid Hussain, J

MUHAMMAD ISMAIL and 2 others---Petitioners

Versus

PROVINCE OF PUNJAB through Secretary, Colonies, Lahore and 24 others---Respondents

Writ-Petition No. 12524 of 2004, decided on 10th October, 2005.

(a) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)----

----Ss. 11, 12 & 13---Constitution of Pakistan (1973), Art.199---Constitutional petition---Annulment of consolidation scheme---Scope of section 13 of West Pakistan Consolidation of Holdings Ordinance, 1960---Power of Board of Revenue---Extent---Consolidation scheme confirmed by the Consolidation Officer was subsequently annulled by the Additional Commissioner finding illegalities and irregularities in the same---Revision petition filed against the orders of the Additional Commissioner by the petitioners was not allowed by the Board of Revenue---Contention of the petitioners was that once the scheme was finalized the parties were left to follow the legal remedies provided by law and the scheme could not be annulled by the Authorities including the Board of Revenue---Validity---Scheme was prepared by the Consolidation Officer under S.10 of the West Pakistan Consolidation of Holdings Ordinance, 1960---Scheme when confirmed was open to challenge by an aggrieved person through appeal under S.11 of the said Ordinance---Board of Revenue, according to S.13 of the Ordinance, had the power to call for the record of any proceedings under the Ordinance, at any time, whether the matter was pending or had been disposed of by the Consolidation Officer and the former could pass an appropriate order in this regard---When irregularities and illegalities go to the very root of the matter, the Board of Revenue could direct fresh consolidation---Board of Revenue was to supervise that the process of consolidation was undertaken in accordance with law without affecting the rights of the landowners---Mere filing of appeal by some aggrieved persons in the hierarchy would not denude the Board of Revenue of its powers vested under S.13 of the Ordinance, as it happened to be at the apex of that hierarchy and charged with the supervisory duty under the law---Order passed by the Board of Revenue on the strength of provisions of S.13 of the Ordinance was lawful---Constitutional petition was dismissed in circumstances.

Abdul Majid Khan and others v. Member Board of Revenue (Consolidation) and others 1986 MLD 782; Kala v. Board of Revenue and another PLD 1985 SC 208 and Najabat Ali v. Bashir Ahmad and others PLD 1987 SC 16 ref.

(b) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----S. 13---West Pakistan Land Revenue Act (XVII of 1967), 5.164---Civil Procedure Code (V of 1908), S.115---Scope of S. 13, West Pakistan Consolidation of Holdings Ordinance, 1960---Board of Revenue, powers of---Comparison of powers under S.13 of the Ordinance with that of revisional jurisdiction under S.115 of C.P.C.---When compared with the revisional jurisdiction under 5.115 of C.P.C. it was obvious that the ambit and scope of powers under S.13 of the Ordinance was apparently larger and more extensive---Section 13 of the Ordinance was akin to the provisions of S. 164 of the West Pakistan Land Revenue Act, 1967---Only requirement of S.13 of the Ordinance was that before passing any order reversing or modifying the proceedings or order of the subordinate official, opportunity of hearing was to be afforded to the person---Such was the main object of S.13(4) of the Ordinance.

(c) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)-

----S. 13---Constitution of Pakistan (1973), Art.199---Consolidation scheme---Constitutional jurisdiction of High Court and scope---View expressed by the Authorities as to the commission of illegalities and irregularities in the preparation of consolidation scheme could hardly be substituted by the High Court under Constitutional jurisdiction.

Kala v. Board of Revenue and another PLD 1,985 SC 208 ref.

Atta Muhammad and 6 others v. Member (Consolidation) Board of Revenue, Punjab, Lahore and 9 others 2002 CLC 464 distinguished.

Syed Zafar Ali for Petitioners.

Ch. Muhammad Hussain for Respondents.

Ch. Aamir Rehman, Addl. A.G., Punjab.

Date of hearing: 10th October, 2005.

P L D 2006 Lahore 13

Before Mian Hamid Farooq, Muhammad Muzammal Khan and Syed Shabbar Raza Razvi, JJ

MUHAMMAD IQBAL and another---Petitioners

Versus

DISTRICT RETURNING OFFICER, BHAKKAR and another---Respondents

Writ Petition No. 14455 of 2005, heard on 5th October, 2005.

(a) Punjab Local Government Ordinance (XIII of 2001)--------

----S. 152(1)(g)---Constitution of Pakistan (1973), Art. 199---

Constitutional jurisdiction---Disqualification from elections, legality of---Nomination papers filed by the petitioner for the office of the Nazim were objected to by the respondent before the Returning Officer on the ground that the petitioner was not qualified to participate in the elections as he was an employee of a governmental authority---Returning Officer overruled the objection and accepted the nomination papers---Appeal before the District Returning Officer succeeded and the nomination papers of the petitioner were rejected---Constitutional petition was filed by the petitioner against the decision of the District Returning Officer---Validity---Disqualification of the petitioner in terms of S. 152(1)(g) of the Punjab Local Government Ordinance, 2001 would have ousted him had he been in service of any statutory body or a body controlled by any Government Federal/Provincial or in which any of such Government had a controlling share of interest except the holders of elected public office and part time officials remunerated either by salary or fee but disqualification would not apply to the person who had resigned or retired from such service six months earlier to the election---Petitioner, in the present case, was appointed on work charge basis on a contract without entitlement to any kind of allowance or other vested rights of service and was not a regular employee, moreover, the work charge employment of the petitioner was never confirmed----Petitioner, in circumstances, was not disqualified to contest the election.

(b) Punjab Local Government Election Rules, 2005---

----R. 76---Punjab Local Government Ordinance (XIII of 2001), S.152(1)(g)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Pre-election , disqualification petition---Procedure---Disqualification from elections, legality of---Determination of disqualification---Determination of disqualification of the petitioner required holding of a detailed trial and recording of evidence but such exercise was not permissible under Constitutional jurisdiction---Respondents however, could challenge the election of the petitioners on the basis of pre-election disqualification through a petition maintainable before the Election Tribunal under Rule 76 of the Punjab Local Government Election Rules, 2005.

The Province of East Pakistan v. Kshiti Dhar Roy and others PLD 1964 SC 636 and Muhammad Younas Khan and 12 others v. Government of N.-W.F.P. through Secretary Forest and Agriculture, Peshawar and others 1993 SCMR 618 ref.

Dr. A. Basit for Petitioners.

Ch. Muhammad Sadiq Addl. A.-G. for Respondent No. 1.

Ch. Muhammad Ashraf for Respondent No.2.

Date of hearing: 5th October, 2005.

P L D 2006 Lahore 16

Before Mian Saqib Nisar, J

MUHAMMAD IDREES --- Petitioner

Versus

RUKHSANA SIDDIQUE and another---Respondents

Writ Petition No.20168 of 2004, decided on 24th October, 2005.

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

----S. 10---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Reconciliation under S.10 of West Pakistan Family Courts Act, 1964---Concept---Misreading and non-reading of evidence---Suit for recovery of dowry filed by the plaintiff after dissolution of her marriage with the defendant was partially decreed in her favour by the Trial Court---Appeals filed by both the plaintiff and defendant against the decision of the Trial Court were unsuccessful---Constitutional petition was filed by the defendant---Contention of the defendant was that under S.10 of West Pakistan Family Courts Act, 1964, a mandatory procedure of reconciliation efforts was provided which was not followed by the Trial Court, and therefore the decree was a nullity in the eye of law and moreover, the Courts below had misread and non-read evidence on record---Validity---Concept of reconciliation was relatable to cases, where the matter in issue was about the divorce between the parties but it could have some kind of nexus where the demand was about dower recovery, however, where the marriage between the parties was finally terminated and there was then a suit regarding recovery of dower, there remained no concept for reconciliation---Interpretation and application of S.10 of the West Pakistan Family Courts Act, 1964, therefore, had no relevance in the present case as the marriage was already dissolved between the plaintiff and the defendant---Courts below being Courts of fact had the right, authority and the prerogative to resolve the factual controversy between the parties and such domain extended to the appreciation and the consideration of the evidence led by the parties---No misreading and nonreading of evidence by the Courts below was found---Constitutional petition was dismissed, in the circumstances.

Syed Iftikhar Hussain Shah for Petitioner.

Ch. Anwar-ul-Haq Pannun for Respondent No. 1.

P L D 2006 Lahore 18

Before Muhammad Sayeed Akhtar, J

SHABBIR HUSSAIN and 2 others---Petitioners

Versus

Sh. ABDUL JABBAR---Respondent

Civil Revision No.61 of 2005, heard on 17th October, 2005.

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

----O. VIII, R.10---Specific Relief Act (I of 1877), S.42---Failure to file written statement---Striking off defence of defendants---Suit was filed by the plaintiff against the defendants for declaration that he was owner in possession of the suit-land---Defendants entered appearance but failed to file written statement due to which their right of defence was stuck off by the Trial Court---Appeal filed by the defendants against the order of the Trial Court was dismissed ---Revisional petition was filed by the defendant---Contention of the defendants was that the Trial Court did not provide sufficient opportunity and time to file the written statement---Validity---Record showed that the defendants could not be served as they had shifted their residences and Trial Court, instead of calling for fresh addresses from the plaintiff, proceeded to order for substituted service in haste---Even the publication in the newspaper was not received by the Court, however, the defendants entered in appearance---Copy of the plaint was not provided to the defendants to enable them to file the written statement---Validity---Without supplying the copy of the plaint, the defence of the defendants could not be struck off---Although time was granted in routine for filing the written statement on the request of defendants but there was no order requiring them to file the written statement---Petition was allowed in circumstances.

Muhammad Akram through General Attorney v. Mst. Naeema Irshad and another 2003 CLC 385; Westinghouse Electric Corporation, The Quadrangle, 4400 Alafaya Trail Orlando, Florida U.S.A. and 3 others v. Wak Orient Power and Light Limited, Gulberg-III Lahore PLD 2001 Lah.143 and Col. (Retd.) Ayub'Ali Rana v. Dr. Caxlite S. Pune and another PLD 2002 SC 630 ref.

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

----O. VIII, R.10---Penal nature of O.VIII, R.10, C.P.C.---Interpretation---Order VIII, R.10, C.P.C. was penal in nature and was to be strictly construed and whenever a reasonable doubt arose regarding its interpretation or implementation it was to be resolved in favour of the victim of application.

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

----O. VIII, R.9---Striking off defence of defendants---Conditions---Held, there should. be a specific speaking order under O.VIII, R.9, C.P.G. before the defence of the defendants could be struck off.

Col. (Retd.) Ayub Ali Rana v. Dr. Carlite S. Pune and another PLD 2002 SC 630; Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4 others 1987 SCMR 1365; The Secretary, Board of Revenue, Punjab, Lahore and another v. Khalid Ahmad Khan 1991 SCMR 2527 and Wak Orient Power and Light Limited v. Westinghouse Electric Corporation and others (2002 SCMR 1954 ref.

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

----O. VIII, Rr.1, 9 & 10---Written statement---Order VIII, C.P.C.---Scope and applicability---Lahore High Court amendment---By virtue of an amendment by Lahore High Court in O. VIII, R.1, C.P.C. the phrase "may and if so required by the Court had been deleted, however, the same was intact in O.VIII, Rr. 9 & 10, C.P.C---Order VIII, R.10. C.P.C., thus had no applicability to the written statements to be filed under O.VIII, R.1, C.P.C.

Muhammad Ramzan Chaudhry for Petitioners.

Malik Abdul Wahid for Respondent.

Date of hearing: 17th October, 2005.

P L D 2006 Lahore 22

Before Mian Saqib Nisar and Muhammad Nawaz Bhatti, JJ

FARRUKH HUSSAIN KHAN DAHA and another---Appellants

Versus

ELECTION COMMISSION OF PAKISTAN, ISLAMABAD through Secretary and 4 others---Respondents

Intra-Court Appeal No. 183 of 2005 in Writ Petition No.5288 of 2005, decided on 12th September, 2005.

Punjab Local Government Elections Rules, 2005---

----R. 36(6)(2)---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court Appeal---Re-counting of votes---Rule of natural justice---Order of Election Commission of Pakistan directing re-counting was passed without hearing respondents who challenged the order. through constitutional petition and succeeded---Appellants had contended that Election Commission having powers under provisions of R.36(6)(2) of Punjab Local Government Elections Rules, 2005 could validly direct for re-counting---Re-counting order was passed by Election Commission without hearing the other side---Validity---No one should be condemned unheard and any order passed in violation of rule of natural justice, was void and no superstructure could be built thereon---Neither the rule of Locus Poenitentiae nor that of estoppel was applicable in the case---Appellants, however had the remedy before Election Tribunal by filing an Election Petition---No interference in Intra-Court Appeal was called for.

Mushtaq Ahmed v. Atta Muhammad 2002 CLC 409 and Pakitan International Airlines Corporation through Chairman v. Inayat Rasool 2003 SCMR 1128 ref.

Javed Iqbal Hashmi for Appellants.

P L D 2006 Lahore 24

Before Mian Hamid Farooq, J

Sheikh MUHAMMAD AKRAM and another---Petitioners

Versus

Sheikh MUHAMMAD YAQUB and others---Respondents

Writ Petition No. 14337 of 2005, decided on 6th August, 2005.

Punjab Local Government Elections Rules, 2005---

----R.16(1)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election of Nazim and Naib Nazim---Nomination papers, withdrawal of---Effect---Respondents jointly filed Nomination papers for seats of Nazim and Naib Nazim, but one of them subsequently singly filed application before Returning Officer for withdrawal of his nomination papers---Nomination papers of both the respondents were accepted by Returning Officer and appeal against decision of Returning Officer filed by petitioners was dismissed by District Returning Officer---Validity---Rule 16(1) of Punjab Local Government Election Rules, 2005 had provided that any validly nominated candidate, after notice to Returning Officer on or before withdrawal day, could withdraw his candidature, but proviso to said Rule, envisaged that if there were joint candidates for the office of Nazim and Naib Nazim, then both would sign application for withdrawal---Respondent who had applied for withdrawal of his papers had singly signed and filed application for withdrawal of papers which were jointly filed by them---Application for withdrawal of nomination papers filed by one respondent was hit by bar contained in proviso to R.16(1) of Punjab Local Government Election Rules, 2000 and same could not be accepted.

Sahibzada Muhammad Mahmood v. District Returning Officer/Appellate Authority, District Attock and 4 others 2002 SCMR 424 and Muhammad Jamil Akhtar and another v. Appellate Authority, District Judge, Rawalpindi and 4 others 2003 SCMR 400 ref.

Syed Kaleem Ahmad Khurshid for Petitioner.

P L D 2006 Lahore 26

Before Muhammad Akhtar Shabbir and Abdul Shakoor Paracha, JJ

MUJAHID SHAH and another---Appellants

Versus

SUHAIL IKRAM and 3 others---Respondents

R.F.A. No. 141 and C.M.No.417 of 2005, decided on 6th July, 2005.

Limitation Act (IX of 1908)---

----Ss. 5 & 14---Civil Procedure Code (V of 1908), S.96---First appeal---Limitation---Delay, condonation of---Appellants who had filed appeal with delay, had moved application under S.14 of Limitation Act, 1908 for condonation of delay contending that they had been pursuing appeal in wrong forum' in good faith---Validity---For bringing case within ambit of principle governing S.14 of Limitation Act, 1908, appellants had to show that they prosecuted their remedy before wrong forum in good faith---Value, in the present case, for purpose of jurisdiction had been determined/fixed at Rupees two crore in plaint and jurisdiction for purpose of appeal was determined from value determined by plaintiff in his plaint---Value for purpose of jurisdiction having been determined Rupees two crore, appeal was to be filed before High Court, but instead same was filed before District Judge---Appellants, in circumstances had neither acted withdue care and caution' nor with, due diligence, nor they had shown any sufficient cause for condonation of delay as enjoined by S.5 of Limitation Act, 1908---Pursuing remedy in wrong forum on mistaken advice of counsel was not `sufficient cause' within the meaning of provisions of S.5 of Limitation Act, 1908---Even otherwise provisions of S.14 of Limitation Act, 1908, were applicable to suits and applications and not to appeals---Application for condonation of delay and appeal which was barred by time, were dismissed.

Mst. Hawabi v. Abdul Shakoor PLD 1970 Kar. 367, Sardraz Khan v. Amir Ullah Khan PLD 1995 Pesh. 86; Muhammad Nawaz Khan v. Mst. Farrah Naz PLD 1999 Lah. 238; Abdul Ghani v. Mst. Musarrat Rehana 1985 CLC 2529; Raja Karamat Ullah's case 1999 SCMR 1892 and Ghulam Ali's case PLD 1991 SC 957 ref.

Malik Zamin Abbas for Appellants.

P L D 2006 Lahore 29

Before Mian Saqib Nisar and Muhammad Nawaz Bhatti, JJ

Choudhary PERWAIZ AKHTAR and another---Appellants

Versus

DISTRICT RETURNING OFFICER, LAYYAH and 5 others---Respondents

Intra-Court Appeal No. 182 of 2005 in Writ Petition No.5133 of 2005, decided on 13th September, 2005.

(a) Punjab Local Government Elections Rules, 2005---

----Rr. 25(2) & 36---Cancellation of election by District Returning Officer after consolidation of result by Returning Officer---Validity---No such power vested with District Returning Officer.

(b) Punjab Local Government Elections Rules, 2005---

----Rr. 25 & 38---Constitution of Pakistan (1973), Art.199---Constitutional petition---Cancellation of election by District Returning Officer after consolidation of result by Returning Officer---Reasons for such cancellation weir disturbance during the election process, firing inside two polling stations and `registration of cases by Presiding Officer---Validity---Polling had never stopped---Presiding Officer on his own got cases registered without reporting such incident to Returning Officer---Returning Officer, after consolidating result for its onward submission had become functus officio---District Returning Officer, according to R.38(4) of Punjab Local Government Election Rules, 2005 was supposed to act as Post Office for forwarding the names of returned candidates to Provincial Election Commission for publication in official Gazette by Chief Election Commission---District Returning Officer, thus, had no authority to cancel result and direct fresh poll---High Court accepted Constitutional petition and declared impugned order patently illegal and unwarranted by law.

(c) Punjab Local Government Elections Rules, 2005---

----R. 25(1)(i)(ii)---Power of Presiding Officer to stop the poll---Scope---Situation prevailing at polling station falling strictly within purview of R.25(1)(i)(ii) of Punjab Local Government Elections Rules, 2005,-would be sine qua non for invocation of such jurisdiction.

?

Hameed Azhar Malik for Appellants.

P L D 2006 Lahore 32

Before Umar Ata Bandial, J

MUHAMMAD NADEEM AMIN---Petitioner

Versus

Ch. FARASAT ULLAH---Respondent

Civil Revision No. 1248 of 2005, decided on 14th September, 2005.

Civil Procedure Code (V of 1908)---

----O. V, R. 24 & O.XXXVII, R.4---Suit for recovery of money on the basis of negotiable instrument---"Special circumstances"---Criterion---Ex parte proceedings in a suit under O.XXXVII, C.P.C. against defendant who was confined in jail and no order for his production in Court had been made---Validity---Held, no special procedure or consequential safeguards were provided in O.V, R.24, C.P.C. for enabling a jailed defendant to represent himself in the proceedings---Trial Court had to pass a production order of a detained defendant before taking ex parte action against him and no final order had to be passed until the trial Court was satisfied that a prisoner defendant had been duly served and given a sufficient opportunity to arrange his defence---Production order would advance the cause of justice for the defendant to appear and be heard before a final order was passed in the proceedings---Party had a right to defend himself before a Court of law and not to be prejudiced on account of his imprisonment---Quite apart from the rules of natural justice a reasonable opportunity to defend was inherent to the fundamental' right of access to justice---Opportunity to defend necessitated that a party should be provided access to counsel and an opportunity to answer the case against him---Ex parte order passed by the Trial Court/Appellate Court, in the present case, was harsh for adopting the basis that the defendant had been served on report of the process server and that he refused to accept service in jail---Courts had ignored the other report on the summons by the Superintendent Jail that the defendant's refusal to accept service was to obtain legal advice and to appear in Court personally to comply with the judicial order, in other words, he was seeking an opportunity to access to legal advice, which opportunity was denied to him by the ex parte order---No consideration was given to - the meaning of statutory criterion of "Special circumstances." in O.XXXVII, R.4, C.P.C. for setting aside the ex parte decree by the Appellate Court---Physical confinement of the defendant in jail was not a case of wilful abstention nor was it an occurrence of routine nature, it was indeed a "Special circumstances" that prevented the defendant from attending the Court in answer to its summon and constituted a good ground to explain the defendant's non-appearance---To promote the ends of justice, it was necessary for the defendant to have been granted a substantive opportunity to defend himself---Ex parte order suffering from material irregularity in the appreciation and application of the relevant law, was set aside by the High Court.

?

Ghulam Rasool v. Abdullah 1991 SCMR 1964 and Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 ref.

Muhammad Sharif Chowhan for Petitioner.

Khalid Wazir for Respondent.

P L D 2006 Lahore 35

Before Muhammad Sayeed Akhtar, J

SHUJA-UL-HAQ---Petitioner

Versus

MUHAMMAD SHARIF and 2 others---Respondents

Writ Petition No.2990 of 1999, heard on 26th September, 2005.

Civil Procedure Code (V of 1908)---

----Ss. 151, 152, 153 & O.XX, R.14---Punjab Pre-emption Act (IX of 1991), S. 24---Constitution of Pakistan (1973), Art. 199 --- Constitutional petition---Decree in pre-emption suit---Date before which decretal amount was to be deposited---Enlarging of time fixed by the parties to deposit---Suit for pre-emption of the plaintiff was decreed by the Trial Court with the direction to deposit the decretal amount before a certain date---Plaintiff failed to deposit the decretal amount before the said date and filed an application before the Trial Court on the ground that under O.XX, R.14, C.P.C. no order could be passed for depositing the decretal amount before a certain date, the order should have been either on or before the said date---On dismissal of the said application a revision petition filed by the plaintiff against the, same was allowed---Constitutional petition filed by the defendant against the decision of the revisional Court was successful and the case was remanded to the Trial Court for decision in the light of Supreme Court Judgment in Fateh Khan's case PLD 1991 SC 782---Defendant, however, being still aggrieved filed appeal before Supreme Court against the decision of the High Court---Matter was disposed of by the Supreme Court with the observation that the matter be decided in the light of Fateh Khan's case by the executing Court---Plaintiff filed an execution petition before the executing Court, which was allowed---Revision petition was filed by the defendant against the order of the executing Court which was allowed and the order of the executing Court was set aside---Constitutional petition was filed by the plaintiff against the decision of the revisional Court---Contentions of the plaintiff that revisional Court had misinterpreted the judgment of the Supreme Court in Fateh Khan's case, the execution petition was not barred by time and the High Court had already suspended the operation of an earlier revisional order---Validity---Earlier revisional order in favour of the plaintiff was suspended by the High Court, and so there was no occasion to file execution petition, as such the question of limitation would not arise---Contention of the defendant that the Court had no jurisdiction to enlarge the time fixed by the parties was further not allowed as it was found that no date was fixed by the defendant for deposit of the amount and it was only stated by him that he had no objection if the suit was decreed upon payment of the decretal amount---Date fixed by the Trial Court was against the mandate of O.XX, R.14(1)(a), C.P.C.---Constitutional petition was allowed in circumstances and the order passed by the executing Court was upheld.

?

Fetch Khan v. Bozmir PLD 1991 SC 782 ref.

Saat Malook v. Rozi Khan 1979 SCMR 593; Syed Ahmad Shah and others v. Muhammad Yar and others 1974 SCMR 191 and Mushtaq and others v. Rabian Bibi and others 1985 SCMR 1719 distinguished.

Shamim Iqbal Butt for Petitioner.

Taki Abroad Khan for Respondent.

Date of hearing: 26th September, 2005.

P L D 2006 Lahore 39

Before Syed Zahid Hussain, J

MUHAMMAD YOUSUF---Petitioner

Versus

MUHAMMAD RAFIQUE and others---Respondents

Civil Revision No.2252 of 2001, decided on 12th October, 2005.

(a) Punjab Pre-emption Act (IX of 1991)---

---S. 133---Suit for pre-emption ---Provision of S.13, Punjab Pre-emption Act, 1991 can only be regarded to have been complied with when all steps of performance of Talbs preceding the filing of suit are duly performed --- Talb-i-Muwathibat --- Significance --- Talb-i-Muwathibat is so important that it has to be asserted and exercised and should not be taken lightly and should not be considered as a mere technicality----Talb-i-Muwathibat, at times, acquires such dimension that it becomes more important than the superior right because it is a sine qua non of the right of pre-emption and unless Talb-i Muwathibat is performed superior right would be of no avail---Very right of pre-emption is not activated unless Talb-i-Muwathibat is performed----Disclosure has to be made by the plaintiff, either in the notice or in the plaint as to who informed the plaintiff about the transaction where and at what time plaintiff' acquired such knowledge or information---Expression and do not refer to any definite place or meeting, plaintiff has to be specific and straightforward about this initial step in the performance of Talb-i-Muwathibat---Non-production of informer, the star witness about the alleged performance of Talb-i-Muwathibat, would give rise to an adverse inference against plaintiff.

Muhammad Mal Khan v. Allah Yar Khan 2002 SCMR 235; Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315; Said Kamal Shah's case PLD 1986 SC 360 and Akbar Ali Khan and others v. Mukamil Shah and others 2005 SCMR 431 ref.

(b) Punjab Pre-emption Act (1X of 1991)---

----S. 13---Demands (Talbs) of pre-emption ---Underlining idea and rationale behind the provisions of 5.13, Punjab Pre-emption Act, 1991 elucidated.

The underlining idea and rationale behind the provisions of section 13 of the Punjab Pre-emption Act, 1991 as to the performance of Talks (demands) in sequential order and the manner prescribed for that purpose, appear to be that the prospective pre-emptor should come forward faithfully in a straightforward manner, the moment he acquires knowledge of the transaction of sale. Great emphasis has been laid in subsection (3) of section 13 of the Act to the truth and verity of the pre-emptor, his intention to exercise that right and the notice of Talb-i-Ishhad is required to be attested by "two truthful witnesses". All details, about the making of Talb-i-Muwathibat are thus to be mentioned in the said notice and no deviation therefrom will be permissible later on. If such compliance is not insisted upon, the plaintiff/pre-emptor can continue shifting and improving his stance before and during the trial of the suit. Such inconsistency of stance/plea will negate the intent and object of the statutory provisions and cannot be countenanced by the Court. If the very foundation for maintaining the suit for pre-emption was lacking in the case, the trial Court was fully justified to dismiss the suit.

Syed Muhammad Kalim Ahmad Khurshid for Petitioner.

Muhammad Farooq Qureshi Chishti for Respondents.

Date of hearing: 12th October, 2005.

P L D 2006 Lahore 43

Before Mian Saqib Nisar, J

MAJEED AHMAD---Petitioner

Versus

DISTRICT RETURNING OFFICER, RAJANPUR and 3 others---Respondents

Writ Petition No.5781 of 2005, decided on 28th September, 2005.

(a) Punjab Local Government Elections Rules, 2005---

----R. 14(3)(1) & (4)---Punjab Local Government Elections Ordinance (V of 2000), Ss.2(10) & 6(2)(b)---Transfer of Property Act (IV of 1882), 5.54---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Election to seats reserved for Peasants in Zila Council---First and second candidates challenging each other holding more than 5 acres of land---Acceptance of nomination papers of both candidates by Returning Officer---Inter se withdrawal of appeals before District Returning Office by both candidates---Constitutional petition by third candidate challenging validity of acceptance of nomination papers of such candidates---Validity---Returning Officer had neither required first candidate to show that 113 Kanals, 13 Marlas land finding mention in earlier Jamabandi was not presently owned by him nor verified from him about transfers/sales made during five years preceding election year---Returning Officer under Rule 14(3) of Punjab Local Government Elections Rules, 2005 had suo motu power, which was akin to summary inquiry to satisfy that first candidate was qualified or not to contest election---District Returning Officer in view of such Jamabandi should not have permitted withdrawal of appeals in a mechanical and routine manner---Allowing unqualified persons to contest election on special seat of peasant would tantamount to a fraud upon the statute---Agreement to sell alleged by first candidate would neither have the effect of legal transfer of ownership to vendee nor would bring his case within purview of definition of peasant as five years from year of election had not lapsed---Latest Jamabandi filed along with appeal against second candidate showed his ownership 87 Kanals, 4 Marlas land---Had the District Returning Officer discharged his obligation in terms of R. 14(3) of Local Government Elections Rules, 2005, the situation of withdrawal of appeals and allowing second candidate to contest election could have been avoided---Both first and second candidates were disqualified, but they having joined hands in a collusive and oblique manner had tried to play fraud upon the law to facilitate each other by withdrawing their appeals and attempted to prevent election of genuine and qualified persons---High Court accepted Constitutional petition and declared order of Returning Officer as illegal and without lawful authority, resultantly, nomination papers of first and second candidates stood rejected.

Qazi Nazir Ahmed v. Returning Officer U.C. Sahoo Wala and 2 others C.P. No.2137 of 2005 ref.

(b) Punjab Local Government Elections Ordinance (V of 2000)---

----Ss. 2(10)(11), 6(2)(b), 7(2)(b), 8(b) & 10---Seats reserved for Peasants and Workers in local Government---Object of giving representation to such special class of people stated.

According to the law, the object behind the creation of special seats of Peasants and Workers is to give representation to a special class of people, who otherwise, on account of certain rigours of contesting the general election, may not be able to seek representation and thus stands precluded from its participation in the affairs of the local Government at the grass root level. If a person who does not squarely fall within the class of Peasants and Workers, rather is an established landlord or the businessman, etc., is permitted to -contest the election in the guise and garb of special class, it would deprives and usurp the rights of the deserving people. Thus usurpation by disqualified persons undoubtedly is not permissible under the law, and if they are allowed to contest the election on these special seats, it shall tantamount to a fraud upon the statute, which, under no circumstances, can be allowed

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

----S. 54---Agreement to sell immovable property---Validity---Such agreement would neither create nor purport to create any right or interest in such property nor thereby ownership would stand transferred to vendee legally.

Mian Abbas Ahmed for Petitioner.

M. R. Khalid Malik, Addl.A.-G. for Respondent.

Malik Muntazir Mehdi and Gohar Mahmood Paracha for Respondent No. 3.

Nemo for Respondent No.4.

Date of hearing: 28th September, 2005.

P L D 2006 Lahore 48

Before Muhammad Sair Ali, J

MUNIR HUSSAIN and 7 others---Appellants

Versus

Raja MUSHTAQ AHMAD---Respondent

Regular Second Appeal No.37 of 1995, decided on 7th September, 2005.

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

----Art. 79---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Execution of documents---Proof---Production of attesting witnesses---Effect---Suit for specific performance of agreement to sell to claim possession of the suit property filed by the plaintiff was dismissed by the Trial Court---Appeal preferred by the plaintiff against the said dismissal was accepted and the suit was decreed---Contention of the defendants was that the first appellate Court not only misread and excluded from consideration the evidence on record but also failed to deal with and meet the cogent reasons recorded by the Trial Court---Validity---First appellate Court being impressed by the fact that the plaintiff had produced marginal witnesses and the scribe, had found that agreement to sell and the receipt for earnest money stood proved and the legal requirement of proof of the execution of document were fulfilled in terms of Art.79 of Qanun-e-Shahadat, 1984---Production of the attesting witnesses only made the disputed documents admissible and usable as evidence but would not absolve the plaintiff of the onus to prove the actual execution of the documents---Mere admissibility of the documents as evidence was not, ipso facto, the proof of their execution---Admissibility of the documents in evidence or their usability as evidence carried legal; connotation, meaning and exercise different from proof of the execution of such documents through evidence---On admission by the attesting witnesses of their signatures or marks on the documents, the disputed documents became usable as evidence---Due execution of such documents was however, to be proved by the attesting witnesses through their deposition i.e. the examination-­in-chief as well as cross-examination, etc.---Statements made by the attesting witnesses were the most relevant evidence to establish the execution of disputed documents and not the mere production of the attesting witnesses---First appellate Court, in the present case, did not discuss the reasoning of the Trial Court, the depositions of the attesting witnesses and that of the scribe and thus failed to decide the appeal completely and effectively in terms of the settled principles of law---Second appeal was accepted by the High Court in circumstances.

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

----Art. 79---Proof of execution of documents---Requirements---Production of attesting witnesses under Art.79, object of---Object of producing witnesses under Art.79 of the Qanun-e-Shahadat, 1984 was two fold, i.e. firstly, to make the document usable and admissible as evidence and secondly, to prove the execution of document---Where the Court was content not to examine and analyze the depositions of the two attesting witnesses and the scribe, it was found to ignore the second mandatory object of Art.79 of Qanun-e-Shahadat, 1984 which required that the two attesting witnesses were to be called for the purpose of proving the execution of documents---Court should not accept blindfold presence of the attesting witnesses as proof of the existence and execution of the contested documents.

Syed Afzal Haider for Appellants.

Malik Muhammad Akram Khan Awan for Respondent.

Date of hearing; 15th June, 2005.

P L D 2006 Lahore 56

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD SARFRAZ and another---Petitioners

Versus

SIKANDAR HAYAT and 5 others---Respondents

Writ Petition No. 14168 of 2005, decided on 6th September, 2005.

(a) Punjab Local Government Ordinance (XIII of 2001)---

----S. 152---Punjab Local Government Elections Rules, 2005, R.3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Educational qualification of the candidate---Decision of election during pendency of constitutional petition---Petitioners raised objection at the time of filing of nomination papers that respondent did not have the required educational qualification---Nomination papers of respondent were rejected by Returning Officer but in appeal, District Returning Officer permitted him to contest election---During the pendency of petition; elections were held and respondent was declared as returned candidate---Plea raised by respondent was that after the elections, petitioners had remedy before Election Tribunal---Validity---Held, it was incumbent upon Chief Election Commissioner 'and other election functionaries, under S. 152 of Punjab Local Government Ordinance; 2001 and R.3 of Punjab Local Government Elections Rules, 2005 to ensure that elections were held fairly and justly and in accordance with law---To ensure strict observance of provisions of S.152 (1)(e) of Punjab Local Government Ordinance, 2001, was the duty of District Returning Officer---Respondent managed to get his nomination papers accepted despite his disqualification---Mandate of law could not be countenanced as helpless onlooker on the ground that Election Tribunal would take care at the appropriate stage and in the meanwhile, respondent would be allowed to reap the benefits of his disqualification---If the present petition was treated as a writ of quo warranto, challenging the disqualification of respondent, it could be decided as respondent had breached and violated the provisions of S.152(1)(e) of Punjab . Local Government Ordinance, 2001, and was suffering with disqualification to hold public office---Success or notification of success of respondent could not bar High Court to decide the constitutional petition---In view of the statement of respondent made before High Court earlier, the order of District Returning Officer was set aside on the ground of lack of required educational qualification---High Court declared election of respondent as void and directed the authorities to hold fresh elections.

PLD 1973 SC 24; Abdul Halim v. Faizunnessa Bibi PLD 1969 Dacca 670; Election Commission of Pakistan v. Javed Hashmi PLD 1989 SC 396; 1993 CLC 63 and C.P.L.A. No. 1569-L of 2005 ref.

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

----Art. 189---Decision of Supreme Court---Effect---Any decision of Supreme Court, to the extent it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan.

Muhammad Farooq Qureshi Chisthti for Petitioners.

Muhammad Ramzan Chaudhary for Respondents Nos.1 and 2.

P L D 2006 Lahore 64

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

Rana ABDUL GHAFFAR---Petitioner

Versus

ABDUL SHAKOOR and 3 others---Respondents

Writ Petition No.9147 of 2005, heard on 14th November, 2005.

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

----Ss. 6, 12, 38, 28 & Third Schedule [as amended by Anti-Terrorism (Second Amendment) Act, 2004 (II of 2005)]---Penal Code (XLV of 1860), S.365-A read with S. 34---Constitution of Pakistan (1973), Arts. 199 & 12- Constitutional petition---Abduction or kidnapping for ransom---"Terrorism"---Transfer of case---Jurisdiction---Sentence---Procedure---Trial, in the present case was being held by Additional Sessions Judge and during the said trial the Anti-Terrorism (Second Amendment) Act, 2004 was enacted by which offence of "abduction or kidnapping for ransom" was included in the Third Schedule appended with the Anti-Terrorism Act, 1997 making such offence triable exclusively by an Anti-Terrorism Court constituted under the Anti-Terrorism Act, 1997---Complainant (petitioner) submitted application before the Anti-Terrorism Court invoking jurisdiction of that Court, under S.12 of the Anti-Terrorism Act, 1997 seeking calling for the record of the case from the Court of Additional Sessions Judge so that the case could be tried by the Anti-Terrorism Court---Application of the complainant was, however, dismissed by the Judge, Anti-Terrorism Court---Validity---Held, after introduction of the Anti-Terrorism (Second Amendment) Act, 2004, the case had to be transferred to Anti-Terrorism Court because now only such a Court as constituted under the Anti-Terrorism Act, 1997 had the exclusive jurisdiction to try the same and sentence, if any, to be passed against any accused person found guilty, in the case by the Judge, Anti-Terrorism Court; could not be greater than, or of a kind different from the sentence prescribed by the relevant law for the relevant offence at the time the said offence was committed---Change of forum of trial by operation of law was ordinarily applicable to all pending cases and retrospectivity or otherwise of application of such law was not a relevant consideration in that regard---Judge, Anti-Terrorism Court, was not justified in dismissing the complainant's application seeking transfer of the case in circumstances---High Court clarified that keeping in view the provision of Art. 12 of the Constitution as well as of S.38, Anti-Terrorism Act, 1997, Judge, Anti-Terrorism Court shall see to it that in case of conviction of any accused person in the present case the punishment to be awarded to such convict shall not be greater than, or of a kind different from, the punishment prescribed by the law for the relevant offence at the time the offence was committed and the Judge, Anti-Terrorism Court shall proceed with the trial of the present case from the stage at which it was pending immediately before transfer of the case by the High Court through the present judgment and in this regard the Judge shall be guided by the provisions of S.28(2) of the Anti-Terrorism Act, 1997.

Liaqat Parvez Khan v. Government of the Punjab through Home Secretary and 2 others PLD 1992 Lah. 517 and Muhammad Mushtaq v. Muhammad Ashiq and others PLD 2002 SC 841 ref.

Taffazul H. Rizvi for Petitioner.

Rana Habib-ur-Rehman for Respondents Nos. 1 and 3.

Nemo for Respondent No.2.

Aftab Iqbal Chaudhry, A.-G., Punjab with Faisal Ali Qazi, Asstt. A.-G., Tahir Mehmood Gondal, Asstt. A.-G. and Sarfaraz Ali Khan Asstt. A.-G. for the State.

Dr. Danishwar Malik, Dy. Attorney-General for the Federation of Pakistan.

Date of hearing: 14th November, 2005.

P L D 2006 Lahore 68

Before Umar Ata Bandial, J

C. A. WAHEED ---Petitioner

Versus

AFTAB AHMAD MIAN and another---Respondents

Civil Revision No.781 of 2005, heard on 7th October, 2005.

Civil Procedure Code (V of 1908)---

---O. VI, R. 17---Specific Relief Act (I of 1877), S.12---Amendment of plaint---Cause of action---Suit for specific performance of agreement to sell---Incorporation of additional facts in the pleadings without changing the nature of the suit or the underlying basis of the suit, could not be treated as a change of cause of action that alters the nature of the suit---Additional element proposed to be pleaded in the plaint, in the present case, merely elaborated the existing cause of action and had neither changed its nature nor had introduced a new cause of action different to the one originally pleaded in the suit and thus could be termed as inherent to and connected with the original cause of action pleaded in the suit---Such change would instead highlight the real controversy between the parties and promote the fair adjudication of dispute---Amendment sought being fully justified, should have been allowed by the Trial Court, which had fallen in error in the appreciation of the relevant law on the question under resolution---Principles.

Semno Salvage Pte. Ltd. v. m.v. Kaptan Yusuf Kalkavan and another 1993 SCMR 593 fol.

National Development Finance Corporation v. M/s. Leepa Shoes Ltd. 1992 MLD 474; Abdul Rehman v. Sher Zaman 2004 CLC 1340; Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 and Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382 ref.

Uzair Karamat Bhandari for Petitioner.

S. Abid Mumtaz Tirmazi for Respondent No. 1.

Mian M. Kashif for Respondent No.2.

Date of hearing: 7th October, 2005.

P L D 2006 Lahore 74

Before Mian Saqib Nisar; J

Raja AMEER HAIDER---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Minorities, Culture, Sports, Tourism and Youth Affairs, Islamabad and 5 others---Respondents

Writ Petition No.9668 of 2005, decided on 31st October, 2005.

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

----O. VII, R.11(d)---Rejection of plaint---Suit barred under the law---Jurisdiction of Trial Court---Scope---Regarding rejection of plaint, the provision of O.VII, R.11, C.P.C. is not exhaustive---Plaint can be rejected under O.VII, R.11(d), C.P.C., when it is barred under any law e.g. bar of res judicata or limitation---Besides the same, the Court has power to dismiss the suit in the nature of rejecting the plaint, where there is a clear ousting of jurisdiction of civil Court.

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

----S. 42---Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975), Ss.8 & 14---Civil Procedure Code (V of 1908), O.VII, R.11---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Evacuee Trust Property---Declaration---Civil Court, jurisdiction of---Rejection of plaint---Non-recording of evidence---Plaintiff sought declaration to the effect that suit property was not an ° evacuee trust property---Application of Authorities for rejecting the plaint was dismissed by Trial Court but Appellate Court, in exercise of revisional jurisdiction, rejected the plaint for the reason that the suit was barred under law---Plea raised by plaintiff was that Trial Court should have decided the application after recording of evidence---Validity---In case of dispute with regard to a property being an evacuee trust property or not, it was the Chairman of Evacuee Trust Properties Board, who had the exclusive jurisdiction under S.8 of Evacuee Trust Properties (Management and Disposal) Act, 1975, to decide the issue and his decision would be final---Civil Courts, under S.14 of Evacuee Trust Properties (Management and Disposal) Act, 1975, could not take cognizance of such matter---Plaintiff, instead of approaching civil Courts, should have approached the Chairman of Evacuee Trust Board, by raising the question about status of property---Civil Court had no jurisdiction in the matter and revisional Court had rightly rejected the plaint, which order was akin to dismissal of suit---Matter was rightly decided by Trial Court without framing. of requisite issues and enabling the parties to lead evidence---Such procedure or course could be dispensed with, where ouster of jurisdiction was eminent on the basis of clear provisions of law---High Court declined to interfere in the order passed by Appellate Court---Petition was dismissed in circumstances.

Rana Maqbool Ahmed Khan for Petitioner.

Shaukat Umar Pirzada for Respondents Nos. 3 and 4.

P L D 2006 Lahore 76

Before Asif Saeed Khan Khosa, J

QAISAR NADEEM SAQI---Appellant

Versus

DISTRICT COORDINATION OFFICER (DCO), HAFIZABAD and 8 others---Respondents

Press Appeal No.1 of 2005, heard on 18th November, 2005.

(a) Press, Newspapers, News Agencies and Books Registration Ordinance (XCVII of 2002)---

----Ss. 19, 2(m), 39 & 20---Cancellation of declaration of newspaper---Jurisdiction---Appeal to High Court---Declaration of a newspaper can be cancelled by District Coordination Officer on the application of the "Press Registrar" either suo motu or based on the information through any person"---"Press Registrar" means "the Registrar of Newspapers for Pakistan appointed by the Federal Government under S.39 of the Press, Newspapers, News Agencies and Books Registration Ordinance, 2002 and includes any other person appointed by the Federal Government to perform all or any of the functions of the Press Registrar"---No application, in the present case, had been submitted against the appellant or his newspaper by "the Press Registrar" or by any body, including the respondent, directly before the District Coordination Officer for taking action against the appellant or his newspaper---Respondent, in fact, had submitted application against the appellant before the District Nazim and according to the order passed by the District Coordination Officer himself it was the District Nazim who had forwarded respondents' application to the District Coordination Officer whereafter the District Coordination Officer had commenced the proceedings against the appellant by issuing a show-cause notice to him---Validity---District Coordination officer had assumed jurisdiction in the matter on the basis of an incompetent application and resultantly the entire superstructure built upon such illegal assumption of jurisdiction had to crumble as without lawful authority and coram non judice.

(b) Press, Newspapers, News Agencies and Books Registration Ordinance (XCVII of 2002)---

----Ss. 19 & 20---Constitution of Pakistan (1973), Art. 19---Cancellation of declaration of newspaper---Appeal to High Court---Allegation of blackmailing and malicious motivation against the newspaper to draw capital out of the same for the _benefit of political adversaries of the respondent---Validity---No independent or concrete material was available on record to establish any such allegation against the newspaper---Order passed by the District Coordination Officer cancelling the declaration could not be accepted as a speaking order as-perusal of the same showed that he had recorded no reasons or findings of his own in that order and had not alluded to any particular material or evidence on the record against the newspaper and he had simply recorded his conclusion by referring to the findings recorded and the recommendations made by the Enquiry Officer appointed by him---Freedom of Press was a fundamental right guaranteed by Art. 19 of the Constitution and such a right of the appellant (owner of newspaper) could not be snatched away by District Coordination Officer in such a slipshod manner which could hardly withstand any judicial scrutiny---District Coordination Officer, in circumstances, was not justified in imputing something to the newspaper for which there was no physical data or material available on the record---Report submitted by the Enquiry Officer appointed by the District Coordination Officer and orders passed by him were nothing but conjectural in that regard which were set aside by the High Court in appeal.

Mushtaq Ahmad Mohal for Appellant.

Akhtar Ali Kureshi, Asstt. A.-G. for Respondents Nos. 1 to 4 with Hamid Kamal, Superintendent, DCO Office, Hafizabad.

Respondent No. 8 (in person).

Nemo for Respondent No.9.

Respondents Nos.5 to 7 deleted on 27-10-2005.

Date of hearing: 18th November, 2005.

P L D 2006 Lahore 82

Before Asif Saeed Khan Khosa, J

MUHAMMAD NAWAZ alias NAJI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8133-B of 2005, decided on 25th November, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302 & 34---Bail, grant of---Complainant, in the present case, had never claimed to be an eye-witness of the alleged occurrence and instead he had nominated two eye-witnesses in the F.I.R. who had allegedly seen two persons committing the murder of complainant's brother---Both the said nominated accused persons were found by the Police to be innocent in the investigation, and resultantly, the file of the case was consigned to the record after closing the investigation---Alleged occurrence had taken place on 23-3-2001 and after more than four years of the occurrence complainant ventured to make a supplementary statement before the Investigating Officer on 23-6-2005 maintaining therein that he had by then come to know that it was some other person (petitioner) who had, in fact, committed the murder of his brother which murder had been seen by two witnesses (newly introduced)---Newly introduced eye-witnesses happened to be a brother of the complainant besides being brother of the deceased and the other witness happened to be a son of the complainant and nephew of the deceased---Such closely related eye-witnesses had kept quiet in the matter for more than four years and had come forward to implicate the accused/petitioner in the murder for the first time through their statements recorded under S.161, Cr.P.C. on 24-6-2005 which was intriguing---Accused/petitioner apparently had no motive to commit the alleged murder and there was nothing available on record to connect the brick recovered in the case with the alleged offence or with the petitioner ---Challan had by now been submitted against the petitioner before the Trial Court and he was languishing in judicial lock-up---High Court observed that, in the circumstances of the case, it was nothing but outrageous that the Prosecution Branch had thought it fit to forward a challan against the petitioner, and District Attorney had found it appropriate to submit such a challan before the Trial Court, and the Trial Court had deemed it proper to take cognizance of the case and refused bail to the petitioner after finding reasonable grounds to believe in the petitioner's involvement in the alleged murder---High Court further observed that it was expected that trial Court would be more careful in future while dealing with matters involving liberty of citizens---Held, case against the petitioner called for further inquiry into his guilt within the purview of S.497(2), Cr. P.C. ---Petition was therefore, allowed and the petitioner was admitted to bail---High Court clarified that the observations made in the present case shall always be deemed to be and treated as tentative in nature and limited to the purposes of the present petition for bail only and the same shall not prejudice the trial Court in any manner vis-a-vis the main case.

Syed Shabbir Bukhari for Petitioner.

Mian Abdul Qayyum Anjum for the State.

P L D 2006 Lahore 84

Before Syed Zahid Hussain, J

Messrs M.A. ALEEM KHAN through Chairman---Petitioner

Versus

PROVINCE OF THE PUNJAB through Secretary, Communication and Works Department, Lahore and 4 others---Respondents

Writ Petition No.9896 of 2005, decided on 25th November, 2005.

Constitution of Pakistan (1973)---

----Arts. 18 & 199---Constitutional petition---Freedom of trade, business or profession---Petitioner company in the present case, was blacklisted by Government---Import and effect of such action by the Authorities was that the petitioner-Company was forbidden to participate in future tendering in the Province; was not allowed to register a new contracting firm with any of the Government agencies and name of the Company with all its partners and Directors was also removed from the approved list of contractors/firms with immediate effect---Petitioner-company was not heard before passing the order of blacklisting it---Validity---Consequences to follow such order were obvious and drastic; blacklisting of a firm or company resulted in deprivation of its business activity and amounted to the commercial killing of company having multiple implications including the infringement of Fundamental Right No. 18 of the Constitution---Action of blacklisting having been taken without hearing the Company/petitioner, the same was not sustainable in law---High Court declared the order of blacklisting as of no legal effect and observed that Authority should pass a speaking order afresh with due application of mind for which purpose the Company/petitioner may appear before the Authority on specified date, so that meaningful hearing was granted to it---Principles.

New Jubilee Insurance Company Ltd., Karachi v. National Bank of Pakistan, Karachi PLD 1999 SC 1126 and Zulfiqar Ali v. Divisional Superintendent (Workshops), Pakistan Railways, Moghalpura, Lahore and another PLD 2001 Lah. 13 ref.

Rana Muhammad Sarwar for Petitioner.

Ch. Aamir Rehman, Addl. A.-G. Punjab along with Nawazish Ali Shah, S.D.O. Highway, Pasrur for Respondents.

Date of hearing: 25th November, 2005.

P L D 2006 Lahore 87

Before Mian Saqib Nisar, J

AISH MUHAMMAD alias ASHIQ MUHAMMAD KHAN---Petitioner

Versus

Mst. JAMILA KHATOON and others---Respondents

Civil Revision No.855 of 2004, decided on 26th October, 2005.

(a) Pleadings---

----Evidence---Adducing of evidence---Principles---No one can be allowed to prove his case beyond the scope of his pleadings---Party to litigation is precluded in law to adduce evidence which is inconsistent and contrary to its case, specifically set out in the plaint or written statement.

Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 and Mst. Jannat Bibi v. Sher Muhammad and others 1988 SCMR 1696 ref.

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

----Ss. 8 & 42---Civil Procedure Code (V of 1908), S.115---Declaration of title---Concurrent findings of fact by the Courts below---Suit-land was allotted by Settlement Authorities against a Claim Form---Plaintiffs in their plaint stated that disputed Claim Form was tiled by their predecessor-in-interest to whom suit-land was allotted and during the process of attestation of mutation of inheritance, the defendant, taking advantage of similarity of the name fraudulently obtained the disputed mutation in his name---Suit was decreed by Trial Court in favour of plaintiffs and judgment was maintained by Appellate Court---Validity---Documents produced by plaintiffs, showed that the requisite Form was not filed by them but it was filed by defendant through his maternal uncle and it was on the basis of such Form that verification and allotment was ultimately made Plaintiffs, in their evidence not only failed to prove the assertions made in their plaint but had led contradictory evidence which had materially impaired their case---Both the Courts below failed to consider the contents of the plaint the true nature of controversy between the parties embedded in the issue and only by taking into consideration the report of local commission and by ignoring the documents filed by plaintiffs, had decided the issues collectively---Courts below also remained oblivious that in the report of local commission, which was the basis of their decisions, the commission had never opined that the disputed Claim Form was filed by predecessor-in-interest of plaintiffs, for the reason that there was no other Claim Form on the record, except the one filed by defendant---Judgments and decrees passed by two Courts below, even if based upon concurrent findings, when established to be against the record, having led to serious miscarriage of justice, could not be sustained---Judgments and decrees passed by both the Courts below were set aside and the suit was dismissed---Revision was allowed in circumstances.

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

----S. 18 & Art. 120---Specific Relief Act (I of 1877), Ss. 8 & 42---Fraud---Computation of limitation---Principles---Plaintiffs in their plaint stated that disputed Claim Form was filed by their predecessor-in-interest to whom suit land was allotted and during the process of attestation of mutation of inheritance, the defendant, taking advantage of similarity of the names, fraudulently obtained the disputed mutation in his name---Plaintiffs sought benefit of S.18 of Limitation Act, 1908, to bring their suit within limitation---Validity---In order to bring a case within the purview of S.18 of Limitation Act, 1908, plaintiffs were required to establish that they consequent to the fraud practised and perpetuated upon them, were kept from the knowledge of having a right to institute the suit---No such fact had been pleaded or proved by plaintiffs in accordance with law---Plaintiffs had failed to establish that they had filed any Claim for the verification of their entitlement---Case of plaintiffs in plaint was not that the defendant had practised any fraud in the process of obtaining the allotment, rather they confined themselves to attack the allegedly fraudulent sanction of the mutation of inheritance in favour of defendant---Plaintiffs failed to prove any fraud, therefore, the suit on the face of it, even by applying the maximum period under residuary Art.120 of Limitation Act, 1908, was out of limitation---Time was not extendable under S.18 of Limitation Act, 1908---Suit of plaintiffs being barred by limitation was dismissed.

?

Dr. A. Basit for Petitioner.

Ahmad Waheed Khan for Respondents.

Date of hearing: 26th October, 2005.

P L D 2006 Lahore 95

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD ALI HUSSAIN---Appellant

Versus

DISTRICT POLICE OFFICER and others---Respondents

Review Application No.92 of 2005 in W.P. No.18667 of 2005 and Review Application No.93 of 2005 in W.P. No. 19556, of 2004, decided on 15th November, 2005.

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

----Art. 199---Police Order (22 of 2002), Art. 18(6)---Review application--Interference with the process of investigation---Validity---Assistant Sub-Inspector of Police, after conducting investigation in the registered F.I.R., had declared the accused innocent---Sub-Inspector and D.S.P. in successive investigations also found the accused innocent and prepared the cancellation report, against which the District Police Officer, on the application of the complainant, entrusted the investigation of the case to Inspector Investigation---Application filed by the accused against the said transfer of investigation had been dismissed by the Sessions Judge acting as Justice of the Peace---Constitutional petition assailing said order was also dismissed vide the impugned judgment---Contention of the Additional Advocate-General that subsequent to the first investigation of the A.S.I. other mentioned officials were asked for verification of the investigation and not to investigate the case, was not correct, because had the same been true, the said officials would not have substituted or given their finding or conclusion---Scope of verification was limited---Verification of record is permissible but in the guise of verification the verification officer could not reinvestigate and substitute opinion of the previous officer with his own opinion---All proceedings subsequent to the first investigation conducted by the A.S.I. were consequently declared to be without lawful authority and of no legal effect, with the direction to the S.H.O. and the Investigating Officer to submit the final report in the light of the conclusion of the first investigation conducted by the said A.S.I.---However, if any party desired re-investigation, it could approach the concerned Authorities as contemplated under Art. 18(6) of the Police Order, 2002---Review application was allowed accordingly.

Khizar Hayat v. I.G.P. PLD 2005 Lah. 470 rel.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi PLD 1970 SC 1; PLD 1961 (W.P.) Lah. 333; 1971 SCMR 513 and PLD 1965 (W.P.) Lah. 570 ref.

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

----S. 156---Investigation---Verification of---Scope---Verification of investigation conducted by an Investigating Officer by some other officer is confined to verification of the record of investigation and in the guise of verification the verification officer cannot re-investigate the case and cannot substitute opinion of the previous officer with his own opinion.

Khizar Hayat v. I.G.P. PLD 2005 Lah. 470 rel.

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

----Art. 199---Review application---Registration of case against a police officer---Filing of complaint an appropriate remedy---Petitioner was seeking registration of a case against a Police Inspector---If police was not willing to register the case or otherwise was partisan, there was. no logic to insist upon the same, because registration of the case would follow the investigation to be done by the police officers---Even otherwise, opinion of the police officer was not binding on the Court---Law in such a situation had provided adequate remedy of filing a complaint before the competent Court where petitioner could make out his case on the basis of evidence available to him---In the present case, such a complaint was filed, Court was directed to decide the matter in accordance with evidence and law---Review application was disposed of accordingly.

?

Khizar Hayat v. I.G.P. PLD 2005 Lah. 470 rel.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi PLD 1970 SC 1; PLD 1961 (W.P.) Lah. 333; 1971 SCMR 513 and PLD 1965 (W.P.) Lah. 570 ref.

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

----Art. 199---Criminal Procedure Code (V of 1898), S.561-A---Constitutional jurisdiction and inherent jurisdiction of High Court to be invoked for review of its orders---High Court has jurisdiction to review its orders under Art. 199 of the Constitution as well as under inherent jurisdiction conferred under S.561-A, Cr.P.C. Hussain Bakhsh v. Settlement Commissioner, Rawalpindi PLD 1970 SC 1; PLD 1961 (W.P.) Lah. 333; 1971 SCMR 513 and PLD 1965 (W.P.) Lah. 570 ref.

Sheikh Naveed Shehryar for Petitioner.

Mian Zulfiqar Ali for Respondent No.4.

Ch. Khurshid Anwar Bhinder, Addl. A.-G.

Liaquat Ali, D.S.P. Investigation, Inspector M. Ashraf and M. Yousaf, A.S.-I.

P L D 2006 Lahore 99

Before Umar Ata Bandial, J

QAMAR JEHAN and 2 others---Petitioners

Versus

BASHIR AHMAD through Legal Heirs and 5 others---Respondents

Civil Revision No.3333 of 1994, heard on 18th October, 2005.

Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----S. 10---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2---Specific Relief Act (I of 1877), Ss.42 & 55---CivilProcedure Code (V of 1908), S.115---Cancellation of allotment of land---Suit for declaration with prayers that the ex parte order of the Additional Settlement Commissioner canceling the allotment and prospectively re-allotting the same to the informer (defendant) was illegal, procured by fraud, violative of natural justice, void and ineffective and transferring the said property to the informer consequent upon the order of Additional Settlement Commissioner was also claimed to be illegal and void---Said order of Additional Settlement Commissioner acknowledged the factum and entitlement of allottee but consciously omitted to issue notice to the occupants thereof namely the plaintiffs on the unsustainable and presumptuous ground that they were unauthorized persons occupying the land of allottee after her demise while holding that the original allottee of the land in question was the undisputed allottee---Order in question believed the informer's version and cancelled the allotment which was being availed by the plaintiff---Trial Court and thereafter the Appellate Court, while dealing with the issues touching the merits of the dispute had undertaken an inquiry as to genuineness of the allotment and as to the veracity of the plaintiffs' claim as her legal heirs but record revealed that said enquiry was not in aid of anyone of the said issues---Material proposition highlighted in the issues was with regard to the impugned order of Additional Settlement Commissioner whereby the allotment of original allottee although acknowledged, was nevertheless cancelled without notice and a re-allotment made---Invalidity of allotment of original allottee with reference to the issues was a question outside the arena of dispute defined by the Trial Court itself in the case---Courts below failed to examine the inconsistency within the impugned order of the Additional Settlement Commissioner before them which having acknowledged the allotment of original allottee proceeded to cancel the same on mere presumption without notice or giving hearing which was mandatory under the applicable law namely Displaced Persons (Land Settlement) Act, 1958 which was repealed by the Evacuee Property and Displaced Persons (Repeal) Act, 1975 under which a remedy was provided only for "pending cases", whereas in 1987 when the plaintiffs filed their suit there was no pending case in respect of which the statutory remedy before the special forum could be availed---Resort to civil Court by the plaintiffs, therefore, was justified---Consequence and effect of lack of notice or hearing in the case was not touched by the Courts below while discussing the issues---Impugned judgments, therefore, were erroneous---Courts below having not considered the controversy from the specific angles in which it was raised before them by the parties by confining their attention to the genuineness or otherwise of original allottee's entitlement to temporary allotment of the suit land, had lost sight of the issues and the central point about the validity of the order impugned before them---Issues regarding maintainability and limitation having not received proper attention of the Courts below, their judgments suffered from misdirection and misreading of the record---Revision was allowed by the High Court.

Nazir Ahmad Rana v. Muhammad Asghar and others NLR 1980 UC 12; Punjab Province v. Azmatullah NLR 1980 UC 128; Mst. Sakina Bibi and another v. Mamla and 2 others PLD 1977 Lah. 222; Muhammad Din and 6 others v. Allah Lok and 3 others 1989 SCMR 323; Wajid Ali v. Walayat Shah and 4 others PLD 1994 Lah. 179; Dr. Muhammad Azam Khan v. Director General, Excisse and Taxation Lahore and 2 others 2002 CLC 1697 and Mansab Ali v. Amir and 3 others PLD 1971 SC 124 ref.

Nasrullah Khan Babar for Petitioners.

Iftikhar Ahmad Shah for Respondents.

Date of hearing: 18th October, 2005.

P L D 2006 Lahore 104

Before Sardar Muhammad Aslam and Sh. Azmat Saeed, JJ

MUHAMMAD ASAD LALI---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman, Islamabad and 2 others---Respondents

Writ Petition No.6491 of 2005, decided on 15th November, 2005.

National Accountability Ordinance (XVIII of 1999)---

----S. 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Bail, refusal of---Accused according to the report of the Medical Board was suffering from chronic backache, Hepatitis-C and gastritis and needed to continue his treatment---Certain repeated blood tests, liver function tests and regular physical therapy for long period, were necessary for proper treatment of the said ailments of the accused---Such monitoring and treatment did not appear to be available in Jail premises---Report of the Medical Board however, did not say that the continued confinement of accused in Jail, per se, was detrimental to his life---Accused was not entitled to be enlarged on bail at this stage, but it was directed that on no account he would be deprived of requisite and proper medical treatment and for that purpose he might be moved to the Services Hospital as an indoor patient, if necessary, to guarantee the proper medical care---Bail was declined to accused in circumstances.

Shahbaz-ud-Din Chaudhry v. N.A.B. and others (Writ Petition No.10234 of 2005) and The State v. Haji Kabeer Khan PLD 2005 SC 364 ref.

Shahbazuddin Chaudhry and another v. State PLD 2004 SC 785 rel.

Raja Amir Khan for Petitioner.

Asad Manzoor Butt, Special Prosecutor for NAB.

P L D 2006 Lahore 108

Before Muhammad Akhtar Shabbir, J

MULAZIM HUSSAIN SHAH---Petitioner

Versus

PROVINCE OF PUNJAB through Secretary, Home Department, Government of Punjab, Lahore and 2 others---Respondents

Writ Petition No.2285 of 2005, decided on 10th November, 2005.

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

-------S. 11-EEE---Constitution of Pakistan (1973), Art. 199--Constitutional petition---Detention challenged---Petitioner had already faced the agony of detention of ninety days and no fresh material or evidence was available with the police for his further detention for ninety days---Police Officer present in Court had admitted that no new criminal case had been registered against the petitioner, which had sufficiently proved that the petitioner had been further detained on the basis of the previously collected material which was not relevant for passing the impugned detention order---Representation filed by the petitioner had not so far been decided by the concerned Authority for the reasons best known to him---Provincial Secretary, Home Department in his parawise comments had expressed his view to justify the impugned order and the decision of the representation by him, therefore, would be a futile exercise---In absence of sufficient material or evidence, petitioner's further detention was not justified---Impugned detention order having been passed illegally and without lawful authority, petitioner could invoke the constitutional jurisdiction of High Court and the same was quashed in circumstances---Constitutional petition was accepted accordingly.

Abu Bakar Muhammad Reza v. Secretary to Government of Punjab, Home Department and 3 others PLD 2005 Lah. 370 ref.

Malik Waheed Anjum for Petitioner.

Tanvir Iqbal, Asstt. A.-G. for Respondent with Muhammad Shabbir, S.I.

P L D 2006 Lahore 111

Before Abdul Shakoor Paracha, J

ABDUL RAUF---Petitioner

Versus

CHIEF COMMISSIONER, ISLAMABAD and 5 others---Respondents

Writ Petition No.2258 of 2005, decided on 21st October, 2005.

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

---S. 11-EEE---West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S. 3---Expression "Government if satisfied" in S.11-EEE of the Anti-Terrorism Act, 1997, is synonymous to the word "satisfaction" in S.3 of the West Pakistan Maintenance of Public Order Ordinance, 1960---"Satisfaction"---"Satisfaction" is to be objective in nature and not subjective in nature so as to allow the Authorities to act on whims and caprices without there being any material before them in support of grounds of detention.

Mrs. Majeeda Fatima v. District Magistrate and Deputy Commissioner, District Central, Karachi and 3 others PLD 1990 Kar. 470 ref.

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

---S. 11-EEE---West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S. 3---Constitution of Pakistan (1973), Art. 199---Constitutional jurisdiction--Scope---High Court can insist on disclosure of the material on which the executive authority had acted, subject to the right of the State to claim privilege in respect of an appeal against decision of executive authority---Mere production of order of the detaining authority in proof of "satisfaction" is not sufficient.

Mir Abdul Baqi Baluch v. The Government of Pakistan through the Cabinet Secretary, Rawalpindi and others PLD 1968 SC 313 ref.

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

----S. 11-EEE---Constitution of Pakistan (1973), Art.199---Constitutional petition---Detention order---Validity---Chief Commissioner had passed the order of detention on the basis of the list notified in the Fourth Sched., under the Anti-Terrorism Act, 1997, vide office Notification that the accused was an activist of a. banned party---Procedure as provided in S.11-EEE of the said Act had not been adopted---Accused was not asked to execute bonds to the satisfaction of the District Police Officer for his good behaviour and not to involve himself in any act of terrorism---Even the grounds of his arrest and detention were not conveyed to the accused---Chief Commissioner had failed to justify as to how the accused was acting in the manner prejudicial to the activity or security of Pakistan or any part thereof or to extraordinary affairs of the Government or maintenance of supply of service---Liberty of a citizen could not be curtailed merely on presumptions---Impugned order of detention passed by the Authorities was consequently declared to be without lawful authority and was set aside accordingly.

Mrs. Majeeda Fatima v. District Magistrate and Deputy Commissioner, District Central, Karachi and 3 others PLD 1990 Kar. 470; Iffat Razi v. Government of Punjab and others PLD 2002 Lah. 194; Umer Din alias Umroo v. S.H.O. Bhai Pheru and 3 others 1990 PCr.LJ 948; Mir Abdul Baqi Baluch v. The Government of Pakistan through the Cabinet Secretary, Rawalpindi and others PLD 1968 SC 313 and Abu Bakar Muhammad Reza v. Secretary to Government of Punjab, Home Department and 3 others PLD 2005 Lah. 370 ref.

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

---S. 11-EEE---Detention order, passing of---Registration of a case alone is not sufficient to curtail the liberty of a citizen on spy information that he was a terrorist, as it amounts to punish him before proving the allegation against him.

Zaheer Ahmad Qadri for Petitioner.

Raja Iftikhar Javed, Standing Counsel.

P L D 2006 Lahore 116

Before Khawaja Muhammad Sharif, J

KHALID alias LIBRU---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1156 and Criminal Revision No.732 of 2003, heard on 8th November, 2005.

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

----S. 302(b)---Appreciation of evidence---Eye-witnesses, both real brothers of the deceased, had no enmity or strong motive to falsely implicate the accused in the case, they had reasonably proved their presence at the crime spot at the relevant time and had corroborated each other on the main points---Medical evidence alone could not discard the ocular evidence which had intrinsic value having come through unimpeachable sources and inspired confidence---Accused had already undergone agony of trial and appeal for about ten years and it was not proper to issue a notice to him for enhancement of sentence keeping in view the principle of expectancy of life---Conviction and sentence of accused were maintained in circumstances.

Ghulam Ullah and another v. The State and another 1996 SCMR 1887; Abdur Rehman v. The State 1998 SCMR 1778; Wahid v. State PLD 2002 SC 62; Muhammad Hanif v. The State PLD 1993 SC 895; Yaqoob Shah v. The State PLD 1976 SC 53; Muhammad Riaz v. Muhammad Zaman and another PLD 2005 SC 484; Asim v. The State 2005 SCMR 417; Dildar Hussain v. Muhammad Afzaal PLD 2004 SC 663 and Allah Baldish v. Shammi PLD 1980 SC 225 ref.

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

----S. 203(b)---Appreciation of evidence---Natural witness, credibility of---Principles---Mere relationship or enmity is not sufficient to discard the evidence of a natural witness or hold him not truthful and trustworthy---Contradictions and discrepancies in evidence cannot always be treated to be injurious to the credibility of a witness---Ultimate test of veracity of a witness is the inherent merit of his own statement.

Muhammad Riaz v. Muhammad Zaman and another PLD 2005 SC 484 ref.

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

----S. 302(b)---Appreciation of evidence---Contradiction between ocular evidence and medical evidence---Principles---Medical evidence is always considered as confirmatory evidence and in case of contradiction in ocular and medical evidence, ocular testimony will overweigh the medical evidence.

Asim v. The State 2005 SCMR 417 and Muhammad Hanif v. The State PLD 1993 SC 895 ref.

Zafar Ahmad Gondal for Appellant (on State expense).

Maqbool Ahmad Qureshi for the State.

Kh. Mehmood Ahmad for the Complainant.

Date of hearing: 8th November, 2005.

P L D 2006 Lahore 121

Before Jawwad S. Khawaja, J

ILAM DIN---Petitioner

Versus

HASSAN DIN and others---Respondents

Civil Revision No.1389 of 2004, heard on 21st October, 2005.

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

----S. 5---Civil Procedure Code (V of 1908), S.115---Revision---Provision of S.5, Limitation Act, 1908 does not apply to revision petitions filed beyond time.

Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286 ref.

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

---S. 115---Suo motu revisional jurisdiction of High Court---Scope---Courts below, in the present case, had fallen into material error while decreeing the declaratory suit and granting the permanent injunction and if such error in fact existed and was not rectified that would result -in grave miscarriage of justice---Suo motu revisional jurisdiction which was available to High Court must be exercised to ensure that the ends of justice were met---Failure to do so by the High Court would constitute abdication of the important supervisory function with which the High Court was invested---High Court, was to examine the matter in detail and, if material error in the exercise of jurisdiction by the Courts below was established to correct such error in exercise of its suo motu revisional jurisdiction.

Haji Rehmdil v. The Province of Balochistan and another 1999 .SCMR 1060 ref

(c) Administration of justice-

----Adjournments, grant of---Decision in cases should not be delayed simply because a party chooses to assail an interlocutory order before a higher forum or as in the present case, has merely formed an intention of doing so---If adjournments, as a rule, are allowed in every case where counsel intends to impugn an interlocutory order, contentious matters would never be decided which state of affairs cannot be allowed---Postponing the hearing of case by the High Court, in such circumstances, will be binding precedent for subordinate Courts which, potentially, can bring their working to stand still---Delay in adjudication of cases especially when it is without reasons, would itself amount to denial of justice--Frequent adjournments without cause, result in harmful consequences---High Court desired that advocates individually, and their professional bodies collectively, recognize the harmful consequences of unjustified delays and do something to address the problem.

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

----S. 45---Mutation entered on the basis of compromise entered in Court---Evedentiary value---Mutation does not create or extinguish any right or interest in the property specified therein---Mutation is merely a record of rights which have been acquired or extinguished by parties through other legally recognized means, prior to the sanctioning of a mutation-Right or interest of parties, in the present case, had come to vest because of the compromise and could be asserted by them regardless of the fact that the same was or was not entered in any mutation---Courts in circumstances would be misdirecting themselves by proceeding on the erroneous premise that mutation in the present case had resulted in the creation of rights in favour of the parties, in the disputed land.

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

----Arts. 79, 17 & 114---Mere attestation of a document by a marginal witness does not preclude such witness from denying his consent to the transaction incorporated in the documents---Where, however, evidence and circumstances show that the attesting witness was a close family members of a party to the document and was otherwise- aware of the nature and contents of the document, he is bound by the terms of such document to the extent of his rights and such marginal witness was estopped from taking the plea that he was not aware of the transaction incorporated in the document.

?

Torabaz Khan an another v. Nanak Chand and another AIR 1932 Lah. 566; Feroz Khan and others v. Mst. Waziran Bibi 1987 SCMR 1647 and Pandurang Krishnaji v. M. Tukaram and others AIR 1922 PC 20 ref.

(f) Registration Act (XVI of 1908)---

----S. 17---Compromise---Registration--Document of compromise did not operate to transfer or extinguish title in any part of the land included in the disputed passage---Parties in the compromise did not intend to convey title in the land mentioned in the compromise---Compromise merely stipulated that the property of the parties shall be used as a common passage, which at most, resulted in the creation of an easement over the suit property of the parties in the form of a common right of way--No evidence was available on record to show that parties had put any monetary value to the easement mutually created by, them as incorporated in the document, though right of common use incorporated in the document could have economic value, but value of land in the disputed passage had no relevance and the value as per record did not exceed one hundred rupees---Title to land and the right to pass over it being two separate and distinct legal interests, such document, in circumstances, was not compulsorily registrable under S.17, Registration Act, 1908 and it will be an error to hold to the contrary.

(g) Compromise---

---Document of compromise stipulated that the portions of lands of the parties shall be used as a common passage which created an easement over the land in the form of a common right of way---Common passage was meant to be used jointly by the owners of the land, whether present or future and it was for this reason that the term ghair maalik was expressly used in the compromise by the parties with the object of excluding a ghair maalik from use of the common passage---Compromise implicitly mentioned that a maalik would be entitled to use the passage---One of the parties, by virtue of exchange deed, transferred the title of the land, including the area covered by the passage to some other person---Said other person therefore, had become an owner and could not be considered a ghair maalik and had succeeded the previous owner as a beneficiary to the compromise---Principles.

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

---S.2(2)---Decree---Dismissal of suit itself constitutes a decree.

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

---Ss. 42 & 54---Suit for declaration and injunction---Compromise---Common passage was carved out of the respective landholdings of three landowners whose land was included therein for their use and for the use of their successor-in-interest by a compromise---Such landowners, though were entitled to a declaration that legal title in the respective Khasra numbers, owned by them and covered by the passage, continued to vest in them, however, they were not entitled to a declaration that they were full and absolute owners of the said Khasra numbers because their title was encumbered by and was subject to the contractual easement embodied in the compromise deed.

Muhammad Tahir Mehmood for Petitioner.

Muhammad Kazim Khan for Respondents Nos. 1 to 7.

Muhammad Amin Goraya for Respondent No.8.

Date of hearing: 21st October, 2005.

P L D 2006 Lahore 137

Before Ali Nawaz Chowhan and Umar Ata Bandial, JJ

MUHAMMAD RIAZ FATIANA----Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1784 of 2001, heard on 17th November, 2005.

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

----Preamble & S.17-C---Object and purpose of legislation of National Accountability Ordinance, 1999, and scope of powers of National Accountability Bureau and Courts elucidated.

The National Accountability Ordinance, 1999 came about with an ambition to eradicate corruption and corrupt practices and try those who misused or abused power and involved themselves in misappropriation of property and received kickbacks and commissions and defaulted in making payments due to the financial institutions. Its purpose was also to create awareness amongst the society against corruption and corrupt practices.

Pakistan is not the first country where an accountability body has been created. This has happened in other countries as well and some of these countries have better paradigms. One good example is that of South Africa where a Truth and Reconciliation Commission was established. The purpose of this Commission was to review cases of persons alleged to be at fault and after due screening the cases of those entitled to amnesty were separated from the cases of others who were to be prosecuted. Thus a sifting process was established and institutionalized as a prelude to prosecution. Whereas, in case of National Accountability Bureau, it appears, it enjoys all the authority and the power in this connection and one day its performance can be assessed as a repository of such a power with the aim of further improving its working through curative measures.

It was also the intention of the legislature to vest inquisitorial powers in the NAB Court, the purpose was to discover the truth and in this pursuit it was allowed to transcend the procedural limitations. This intention is manifested in section 17-C of the National Accountability Ordinance, 1999.

Since, it is a national body and accountability is its main aim and recovery of ill-gotten wealth is a consequential act, it was not required of this body to weigh evidence in a typical adversarial framework but a body aiming at discovering the truth and then proceeding with the accountability against its own citizens on the basis of this discovery and in all fairness. If one understands this rationale, many misgivings with respect to the NAB Ordinance will get removed and it will then inspire confidence and trust, so essential for a public body with the mandate of accountability. Of course, it has to deal with the worst kind of white-collar criminals. The criminal justice system of the world and particularly of the first world have also to confront with the worst species of white-collar criminals and while dealing with them the Investigating Agencies there strictly follow the due process, transparency and fairness and no one loses hope in the system, its affairs, integrity and sense of justice.

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

----Ss. 10 & 9---Corruption and corrupt practices---Record, in the present case showed that a large number of people were granted the exemption which the accused had also availed in getting allotment of plot by the Development Authority---Such a statement about exemption would not prima facie appear to be a cooked up story made by the accused and matter definitely called for a serious probe---Judgment of the National Accountability Court appeared to be infirm, inadequate not covering all aspects nor meeting the pleas or the versions advanced, therefore, same was not sustainable in law and was set aside---Case was remanded to the National Accountability Court for determination of the version based on a specified letter by the Development Authority, adducing additional evidence and rewriting of the judgment thereafter.

Ch. Khurshid Ahmad for Appellant.

Asad Manzoor Butt for the State.

Dates of hearing: 16th and 17th November, 2005.

P L D 2006 Lahore 147

Before Mian Muhammad Najam-uz-Zaman, J

Mian KHALID RAUF---Appellant

Versus

Ch. MUHAMMAD SALEEM and others---Respondents

Criminal Appeal No.688 of 2004, decided on 11th November, 2005.

(a) Appeal (criminal)---

----Right of appeal, exercise of---Principles---Where special law is silent with regard to the right of filing an appeal, such right cannot be inferred by way of implication on the basis of general law---Appeal is purely a creature of statute and unless a right of appeal is clearly and expressly given by the statute, it does not exist nor is there any scope for inferring such right by implication.

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

----S. 417(2-A)---Right of appeal against acquittal under S.417(2-A), Cr.P.C. not extended to cases decided by Special Courts---Right of appeal given to aggrieved person against the order of acquittal under S.417(2-A), Cr.P.C. cannot be extended to private persons in cases decided by the Special Courts regarding a scheduled offence.

Habib Bank Ltd. v. The State and others 1993 SCMR 1853; Faiz Muhammad and others v. Mehrab Shah and others PLD 1997 Pesh. 166; Quaid-e-Azam v.-The State 2000 PCr.LJ 216; Haji Khan Kharo v. Muhammad Sharif and 2 others 2001 PCr.LJ 568; Faizur Rehman v. The State and others PLD 2002 Pesh. 6 and Syed Masroor Shah and others v. The State PLD 2005 SC 173 ref.

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

----Ss. 417(2-A) & 561-A---Appeal barred under S.417(2-A), Cr.P.C. not to be converted into petition under S.561-A, Cr.P.C.---Remedy which is not directly available cannot be sought indirectly through indirect means---Legislature having itself not provided right of appeal to private person, the same cannot be brought under attack through any other device or disguised manner before High Court---Appeal which is otherwise barred, cannot be converted into a petition under S.561-A, Cr.P.C. and private complainant cannot be allowed to achieve the object which he could have achieved by filing appeal.

Faizur Rehman v. The State and others PLD 2002 Pesh. 6 ref.

(d) Prevention of Corruption Act (II of 1947)---

----S. 5(2)---Penal Code (XLV of 1860), Ss.409/161---Pakistan Criminal Law Amendment Act (XL of 1958), Ss. 3 & 10(2)---Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal, maintainability of---Complainant had challenged the acquittal of the accused under Ss.409/161, P.P.C. and S.5(2) of the Prevention of Corruption Act, 1947, by the Senior Special Judge, Anti-Corruption, by filing an appeal under S.417(2-A), Cr.P.C.---Pakistan Criminal Law (Amendment) Act, 1958, is a Special Law and Special Judges are appointed under S.3 of said Act who were competent to take cognizance of the offences mentioned in the schedule thereof---Appeal against the order of acquittal passed by the Special Judge could only be filed by the Public Prosecutor under S.10(2) of the said Act with the prior permission of the Central Government and not by a private person---Section 10(2) of the Pakistan Criminal Law Amendment Act, 1958,had minimized the scope of S.417, Cr.P.C. by ousting the right of appeal by a private person/aggrieved person to file appeal against the order of acquittal passed by the Special Judge---Appeal filed by the complainant under S.417(2-A), Cr.P.C. against the acquittal of accused by the Special Judge, thus, was not maintainable and the same was dismissed accordingly.

Federal Government of Pakistan through Director, Intelligence and Investigation, Customs and Excise v. Akhtar Javed 2002 YLR 2444 and State v. Bashir Ahmed and 6 others 2000 YLR 1634 distinguished.

Muhammad Anwar v. Amanullah and others 2002 YLR 484;Ms. Rachel Joseph v. Aftab Qureshi and 2 others 2000 P.Cr.LJ 1715; Abdul Jalil v. Zulfiqar Ali and another 1998 PCr.LJ 697; Aftabuddin Qureshi and another v. Ms Rachel Joseph and another PLD 2001 SC 482; Habib Bank Ltd. v. The State and others 1993 SCMR 1853; Faiz Muhammad and others v. Mehrab Shah and others PLD 1997 Pesh. 166; Quaid-e-Azam v. The State 2000 PCr.LJ 216; Haji Khan Kharo v. Muhammad Sharif and 2 others 2001 PCr.LJ 568; Faizur Rehman v. The State and others PLD 2002 Pesh. 6; Syed Masroor Shah and others v. The State PLD 2005 SC 173; Ashiq Muhammad and another v. Khuda Bakhsh and 5 others PLD 1998 Pesh. 68 and Abdul Qayum v. Aziz-ur-Rehman Shah 2004 PCr.LJ 422 ref.

Munir Ahmed Bhatti, Advocate.

P L D 2006 Lahore 155

Before Umar Ata Bandial, J

Sh. MUHAMMAD FAROOQ and others---Petitioners

Versus

DISTRICT RETURNING OFFICER and others---Respondents

Writ Petition No.14353 of 2005, decided on 12th August, 2005.

Punjab Local Government Ordinance (XIII of 2001)--------

----Ss. 152 & 150---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Disqualification of candidate for Local Government election on the ground of his being member of banned organization---Reliance upon source information or intelligence material---Scope---Quality of intelligence information sufficient for initiating executive action cannot summarily be presumed to meet the requirements of the judicial standard of scrutiny---Proceedings of scrutiny before the statutory forum are to be conducted in accordance with judicial norms and the criteria of the applicable law---To condemn a person out of the electoral race and thereby to deprive him of a valuable right available under law, requires some material that links, indicates or suggests a connection between the candidate and a banned organization or its activities---When there is no such material available on record, nor an F.I.R. filed against the candidate alleging mischief by him in a political incident or rally is shown rather material is available to show public service and responsible conduct by the candidate, he should not be condemned and ousted from the electoral contest in the Local Government election---High Court allowed the candidate to participate in the election process subject to the conditions that he shall file his affidavit and his undertaking denying his involvement in violence of any form for political, social, religious or other purposes; hatred against persons on religious, social or political grounds; membership, sympathy and support to any banned organization and most importantly pledges his subscription and belief in democratic norms of behaviour including respect for consensus, tolerance and the use of lawful and rational means alone for expression of dissent---Principles.

Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57 ref.

Ch. Fawad Hussain for Petitioners.

M. Jehangir Wahla, Standing Counsel.

Muhammad Hanif Khattana, Addl. A.G. with M. Aslam, Section Officer, Home Department with record.

Muhammad Ahsan Bhoon and Masood Mirza (in connected petitions).

P L D 2006 Lahore 158

Before Mian Saqib Nisar, J

Mst. SHAISTA---Petitioner

Versus

Sh. LIAQUAT ALI SATHI and 2 others---Respondents

Writ Petition No.18028 of 2005, decided on 2nd November, 2005.

(a) Islamic Law-----

----Divorce---Right of spouses---According to Injunctions of Islam, a muslim of sound mind, who has attained puberty, without assigning any cause, may even arbitrarily divorce his wife whenever he desires---Such absolute right in Islam, has not been so conferred upon wife---In order to secure her right as well, to wriggle out of an unhappy union, a wife under the law of land, which is based upon Islamic rule of Khula', can seek dissolution of marriage but unlike a husband only through decree of Court and on payment of such consideration fixed by Court, which she has to pay to husband in form of return of benefits attained by her under the marriage---Return of such benefits may include return of dower or any other articles already received by her.

(b) Islamic Law---

----Dower---Types---Primarily dower is in the nature of prompt' i.e. payable immediately on demand anddeferred' which becomes due to wife on dissolution of marriage by death or divorce etc.

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

----S. 10(4), proviso---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dissolution of marriage by way of Khula'---Expression restore'---Meaning---Return of dower---Principles---Marriage was dissolved by Family Court, by way of Khula' subject to extinguishments of right of wife to recover dower from husband---Wife was aggrieved of the condition imposed on her---Plea raised by wife was that the provisions of S.10(4) of West Pakistan Family Courts Act, 1964, were in the nature of confiscatory---Validity---Legislature, while promulgating S.10(4) of West Pakistan Family Courts Act, 1964, and in order to facilitate a wife to obtain divorce on the basis of Khula', had kept in view the Injunctions of Islam and had provided an expeditious and summary remedy to seek dissolution straightaway from her husband without going into the hassle of lengthy trial of the case but on the return of dower already received by her---There might be a possibility that Nikah between the wedding parties had taken place sometime earlier and Rukhsati was postponed and at the time of Nikah, neither the prompt dower was demanded, nor had been paid and before Rukhsati, the wife sought dissolution of marriage on the basis of Khula'-When the wife had not received prompt dower, whereas the deferred dower had not become due, and there was nothing which could be restored to the husband as the consideration of Khula', such was the relinquishment by her, of her right to receive dower, which would serve as the consideration for obtaining Khula'---Expression/wordrestore', in such an eventuality would be interpreted to mean the `relinquishment', which in the situation would be a synonymous term---Ludicrous to conceive and comprehend that though in a situation where the wife had already received the dower, she was bound to restore the same while seeking Khula' but where it was yet payable to her, her right to recover the same remained intact and could not be extinguished by the Court, so as to serve as the consideration of dissolution on the basis of Khula', the Islamic right, founded on which a wife was asking for the termination of marriage---Plea of wife was repelled as provisions of S.10 (4) of West Pakistan Family Courts Act, 1964, were not in the nature of confiscatory, rather were in accordance with the Islamic principles, which required wife to return consideration or benefits which she had received from husband on account of marriage, while asking dissolution on the basis of Khula'---Family Court had rightly imposed the condition of extinguishment of wife's right to recover dower---Petition was dismissed in circumstances.

Jehangir A. Jhoja for Petitioner.

P L D 2006 Lahore 162

Before Ali Nawaz Chowhan and Umar Ata Bandial, JJ

Sardar MUHAMMAD NASEEM---Petitioner

Versus

JUDGE, ACCOUNTABILITY COURT, LAHORE---Respondent

Writ Petition No.13901 of 2005, decided on 19th January; 2006.

(a) Criminal trial-

---Justice delayed is justice denied---Rights of accused and obligation of the State pointed out.

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

----S. 16(a)---Trial of offences---Tenure of trial---Rationale behind enactment of S.16(a) National Accountability Ordinance, 1999 elucidated---High Court observed that a question for consideration of the concerned authorities would be whether the prosecutors working for National Accountability Bureau and its different forums were respecting the provision of S.16(a) of the Ordinance or not and were skilled for meeting the requirements of law and that it was for the authorities to take curative measures so that the intention and the spirit of law was respected in the matter of the tenure of trial.

The offence may be of a very serious nature calling for a prolonged trial but it is not expected to be an unending exercise.

The object of criminal justice is to confront a criminal with the charge as early and precisely as possible while following the due process and not to punish him before the verdict through a prolonged incarceration. There is truth in the proposition that justice delayed is justice denied.

In cases which end in the acquittal of an accused, a question often arises as to who will be responsible for his agony, pain and hardship due to the prolonged period of his incarceration and the delayed trial. Whereas, in case he remains on bail he can still be made to suffer an imprisonment after the trial.

An accused is not only entitled to a fair trial but also to a proper and humane treatment. A proper treatment envisages an honest investigation, an honest preparation of the record and the charge-sheet and a trial without delay.

A State is under an obligation to ensure that its Courts were well-equipped with the required manpower for handling the trials with dispatch. Likewise the prosecutors are required to be equipped with the required skills essential for establishing a foolproof case before a Court without much cost of time.

Section 16(a) of the National Accountability Ordinance, 1999, has been enacted with such a rationale. It has laid a period of 30 days for disposing of a trial.

A question for consideration of the concerned authorities will be whether the prosecutors working for NAB and its different forums were respecting this important provision of the law or not and were skilled for meeting the requirements of law? Case like the present one however, does not give a commendable impression about them.

It is now for the authorities to take curative measures so that the intention and the spirit of law is respected in the matter of the tenure of a trial otherwise, as is seen in case of Anti-Corruption Laws, the NAB law will also lose its purpose while defeating the expectations and aspirations attached to the law. The entire desire for elimination of corruption and corrupt practices through expeditious trials will then be a far cry and ultimately the public confidence will get totally shattered. Who will then bridge the credibility gap?

Abdul Aziz Khan Niazi v. The State through Chairman NAB, Islamabad PLD 2003 SC 668; Khalid Saigol v. The State PLD 1962 SC 495; Ahmad Yar v. State 2000 YLR 407 and Saeed Ullah Somoroo v. State through NAB 2004 SCMR 660 ref.

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

----S. 16---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Bail, grant of---Trial in the case, in view of its history of five years was expected to take more time---Defence had as yet to produce its witnesses and thus the accused (petitioner) would suffer further incarceration---High Court, in circumstances, ordered the release of accused on ad interim post-arrest bail provided he furnishes bail bond in the sum of Rupees one million along with a respectable surety of the city in the same amount to the satisfaction of the Trial Court---If released on bail, the accused shall keep appearing on every date fixed by High Court and the Trial Court, otherwise, order of release on bail may be recalled---Trial Court was also directed to take into custody passport of the accused before he was released on bail.

?

A.K. Dogar for Petitioner.

M.Asad Manzoor Butt for NAB.

P L D 2006 Lahore 167

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

JAVED HAYAT and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.3 of 2006, heard on 17th January, 2006.

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

---Ss. 2(1), 20, 21, 22, 23, 26, 32 & 74---Superdari of seized vehicle---Analysis of Ss.2(1), 20, 21, 22, 23, 26, 32 & 74 of Control of Narcotic Substances Act, 1997---Implied situations in the context of the Control of Narcotic Substances Act, 1997 which may make permissible seizure of a vehicle or conveyance in a case of narcotics detailed---Vehicle used by an offender merely for going to or leaving the place of occurrence or a vehicle used for mere transportation of the accused person, under the general law, cannot be taken into possession by the police as case-property; there is no reason why the same principle may not be followed in cases of narcotics except those cases where the special situations apply and seizure of a vehicle is made permissible by the Control of Narcotic Substances Act, 1997---Principles.

In the context of a vehicle it is, noticed that section 2(1) of the Control of Narcotic Substances Act, 1997 manifests that a vehicle is included in the definition of a "conveyance". Section 20 of the said Act empowers a Special Court to issue a warrant of search of a conveyance "in" which narcotics may reasonably be believed to have been "kept or concealed". Section 21 deals with power of entry, search, seizure and arrest without warrant and it allows the relevant officer to enter into and search a conveyance and seize the narcotics recovered as a result of such entry and search but, significantly, it does not expressly authorize the officer to seize the conveyance. Similarly section 22 deals with powers of seizure and arrest in a public place and empowers an officer to seize the recovered narcotics but is silent about any power to seize the relevant conveyance. Section 23 specifically deals with the power to stop and search a conveyance but while authorizing an officer to stop, rummage, search and examine a conveyance it stops short of authorizing the officer to seize the same. Vexatious and unnecessary seizing of the property of any person "on the pretence of seizing or searching for" narcotics is an offence under section 26 and is punishable with imprisonment and 'fine. After conclusion of a case the recovered narcotics and the "materials, apparatus and utensils" by means of which the offence had been committed are liable to confiscation under sub-section (I) of section 32.

Subsection (2) of section 32 provides for confiscation of the "vehicles, vessels and other conveyances" but such power of confiscation is limited to only those cases where lawfully imported, transported, manufactured, possessed or sold narcotics are' mixed with unlawful narcotics and in such cases the lawful narcotics can be confiscated along with the unlawful narcotics and the receptacles, packages, vehicles, vessels and other conveyances used in carrying such narcotics can also be confiscated. There is no provision in the Control of Narcotic Substances Act, 1997 whereby a conveyance can be seized as a result of search and recovery of narcotics and, thus, Confiscation of such a conveyance is out of the question. However, subsection (2) of section 32 of the said Act is the only provision which expressly allows confiscation of a conveyance implying that a conveyance can also be seized but the said section is confined in this respect only to a particular and specified situation, i.e. where the conveyance is carrying unlawful narcotics along with lawful narcotics. Even in such cases the proviso to subsection (2) of section 32 hastens to add that "no vehicle, vessel or other conveyance shall be liable to confiscation unless it is proved that the owner thereof knew that the offence was being, or was to be, committed". Section 12 of the Control of Narcotic Substances Act, 1997 contains a prohibition against acquisition and possession of assets derived from narcotic offences and the word "assets" has been defined in section 2(b) of the said Act. By virtue of the provisions of section 19 of that Act the assets of a person convicted for an offence under the said Act shall, in a particular situation, stand forfeited to the Federal Government. It goes without saying that in a given case such assets may include a conveyance. A forfeiture of such a conveyance may be possible after a seizure and confiscation thereof. This is the second situation where by implication a seizure of a conveyance may be contemplated under the Control of Narcotic Substances Act, 1997. A possible third situation can also be visualized in this context and that is where the conveyance is seized because the conveyance itself is to provide proof regarding possession and recovery of narcotics. Such a seizure may be authorized by the provisions of clause (c) of subsection (1) of section 21 and also clause (a) of section 22 of the Control of Narcotic Substances Act, 1997 but in order to call the said provisions in aid for this purpose one has to equate a conveyance with an "article" as the said provisions expressly speak of an "article" which "may furnish evidence of the commission of an offence punishable under this Act". When a conveyance is used for keeping or concealing narcotics in its secret chambers, cavities or compartments, etc. then such secret chambers, cavities or compartments, etc. may become evidence which may be seen by a Court trying such a case and, thus, seizure of such a conveyance may be necessary to "furnish evidence of the commission of an offence punishable under this Act". Apart from the above mentioned three implied situations there is no other express or implied situation or provision in the context of the Control of Narcotic Substances Act which may make it permissible for seizure of a vehicle or conveyance in a case of narcotics.

Provisions of section 74 of the Control of Narcotic Substances Act, 1997 have to be examined in order to find out the true import and scope of the same vis-a-vis giving of interim custody of a vehicle seized in connection with recovery of narcotics. According to section 74 "the custody of narcotic drugs, psychotropic substances, controlled substances, any material or utensils used for production or manufacture of such drugs or substances or any conveyance used in import, export, transport or transshipment thereof or for commission of an offence under the Act shall not be given on custody to the accused or any of his associates or relative or any private individual till the conclusion of the case except as provided in the second proviso to subsection (2) of section 33." This section presupposes that custody of a vehicle has already been lawfully taken or in other words such a vehicle has already been lawfully seized in connection with a criminal case registered in respect of recovery of narcotics. Thus, for the purposes of application of the provisions of this section there has to be a lawful seizure of the vehicle in issue. A vehicle can be seized under the Control of Narcotic Substances Act, 1997 only in three situations, i.e. firstly, where it is carrying unlawful narcotics along with some lawful narcotics, secondly, where it is a part of the assets derived from narcotic offences and, thirdly, where narcotics have been recovered from its secret chambers, cavities or compartments, etc. The second situation may not be relevant for the present purposes as forfeiture of assets and seizure and confiscation thereof for that purpose come about after conclusion of the case and, thus, there is hardly any question of interim custody or superdari involved in such a situation. It is only in the first and third situations that a vehicle can be seized at the time of or as an immediate consequence of recovery of narcotics and, therefore, in no other situation a vehicle can be seized under the Control of Narcotic Substances Act, 1997 at such a stage. If in the other situations a vehicle cannot even be seized to start with then the provisions of section 74 of the Control of Narcotic Substances Act, 1997 forbidding granting of interim custody/superdari would hardly come into play. The rigors of section 74 have already been softened by the Supreme Court of Pakistan in the ease of Abdul Salam v. The State (2003 SCMR 246) and by Lahore High Court in the case of Niaz Ullah v. The State (2002 PCr.LJ 97) and a new dimension has been added by the High Court in this regard with reference to the provisions of the Control of Narcotic Substances Act, 1997 itself.

The Control of Narcotic Substances Act, 1997 is a special law and its provisions have to be construed strictly and if such law itself does not provide for seizure of a vehicle in all other situations except those found and specified above then seizure of a vehicle in all other situations may not only be illegal but also unnecessary or vexatious attracting prosecution and punishment of the concerned officer under section 26 of the Control of Narcotic Substances Act, 1997.

Even under the general law a vehicle used by an offender merely for going to or leaving the place of occurrence or a vehicle used for mere transportation of the accused person cannot be taken into possession by the police as case-property. There is no reason why the same principle may not be followed in cases of narcotics except those cases where the above mentioned special situations apply and seizure of a vehicle is made permissible by the Control of Narcotic Substances Act, 1997.

Abdul Salam v. The State 2003 SCMR 246; Niaz Ullah v. The State 2002 PCr.LJ 97; Syed Razi Shah v. The State 1971 PCr.LJ 19; Mst. Khadija Begum v. Sessions Judge, Sahiwal 1986 PCr.LJ 945; Muhammad Ramzan v. The State NLR 1990 Cr.LJ 72; Syed Bahawal Shah v. The Crown PLD 1951 B.J. 57; Sheraz Elahi v. The State 1984 PCr.LJ 1935; R. v. Khan and another KLR 1984 Cr.C.183 and Humayun Azam v. Ch. Sadiq and 3 others 1999 MLD 1676 ref.

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

----Ss. 74, 48, 2(1), 20, 21, 22, 23, 26 & 32---Superdari of the seized vehicle---Two persons, in the present case, claimed to be joint owners of the seized vehicle and their claim was based in that regard upon a Registration Book which was not controverted---Nobody else had asked for superdari of the seized vehicle till date---Owners of the vehicle were not accused persons in the relevant criminal case and nothing had been recovered from their possession in the said case---Nothing was available on record of investigation of the relevant case so far showing that the owners had any knowledge that the accused person would use their vehicle for committing any offence relating to narcotics---Law would not allow putting the onus on such person claiming the vehicle, to prove their lack of knowledge in that regard---Narcotic substance recovered from the accused person in the case was allegedly recovered from his physical possession (concealed in a plastic belt fastened by accused around his waist under his shirt) and the same had not been recovered from any secret Chamber, cavity or compartment, etc. of the vehicle that he was statedly driving---Vehicle being driven by the accused, in circumstances, could not lawfully have been seized by the relevant officer upon recovery of narcotics from physical possession of that accused---Vehicle in question was not being used for transporting the recovered narcotics and as a matter of fact, according to the prosecution's own case, the said vehicle was being used only for transporting the accused person---Seizure of the relevant vehicle was not only unnecessary but also unwarranted under the Control of Narcotic Substances Act, 1997---Bar contained in S.74 of the said Act was, thus, inapplicable to the present case and Trial Court was not justified in dismissing the application seeking superdari of the said vehicle by claimants (owners).

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

----Preamble---Constitution of Pakistan (1973), Arts. 23, 24 & 4---Superdari of seized vehicle---Protection of property rights---Provisions of Arts. 23 & 24 of the Constitution enshrine a fundamental right entitling an owner of a property to hold and enjoy his property as long as he does not infringe any law regarding the same and Art. 4 of the Constitution categorically mandates that "no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law"---If the vehicle seized in a case belonged to other persons and if the same had been seized in a situation and in circumstances which did not warrant such seizure under the Control of Narcotic Substances Act, 1997 then the said other persons had a right to reclaim its possession as they had been deprived of the same otherwise than in accordance with law.

?

Ch. Muhammad Aslam for Appellants.

Ch. Muhammad Sharif, Special Prosecutor for the Anti-Narcotics Force assisted by Maqbool Ahmad Qureshi for the State.

Date of hearing: 17th January, 2006.

P L D 2006 Lahore 181

Before Mian Saqib Nisar, J

Mst. RASOOL BIBI through Legal Heirs---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, SIALKOT and another---Respondents

Writ Petition No.8016 of 2000, decided on 31st January, 2006.

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

----S. 12(2)---Limitation Act (IX of 1908), S.18 & Art.181---Application for setting aside decree on ground of fraud and misrepresentation--Limitation-Gaining knowledge about decree three months before filing such application---Delay of three months not explained---Non-filing of application under S.5 of Limitation Act, 1908---Effect---Dismissal of application under S.12(2), C.P.C. for being time-barred---Validity---Applicant's plea was that decree had been procured fraudulently and by misrepresentation, and that he and his predecessor had been kept in dark about its passing in a fraudulent manner---Section 18 of Limitation Act, 1908 provided that period of limitation, for filing application under S.12(2), C.P.C. prescribed under Art.181 of Act, 1908 would commence, when applicant attained knowledge of decree---If period of limitation had expired and no case was made under S.18 of Limitation Act, 1908, then application under S.5 thereof, if applicable, should have been moved by applicant---View taken by Trial Court was misconceived and illegal---High Court set aside impugned order while observing that application under S.12(2), C.P.C., was within time.

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

----S. 12(2)---Qanun-e-Shahadat (10 of 1984), Art. 61---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Application for setting aside decree on ground of fraud and misrepresentation---Consent declaring donee (son) to have been gifted land by donor (his father)---Donee filed suit on 4-10-1978, conceding statement of donor was recorded on 5-10-1978, and suit was decreed on 7-10-1978---Application by other legal heirs of donor for setting aside decree was accepted by Trial Court, but was dismissed by revisional Court---Validity---Donee had failed to lead independent evidence as to when and in whose presence donor had gifted land to him---Donee could not established through independent evidence that the person, who appeared before Court on 5-10-1978 and made statement conceding his suit, was in fact his father---Report of Finger Print Expert regarding thumb-impression of donor on statement dated 5-10-1978 would have no legal value for non-tendering same in evidence and non-examining expert as witness to enable applicants to cross-examine him---Duty of donee was to prove that a valid gift was made by donor in his favour, which was acknowledged by him in suit---Delivery of possession under alleged gift, though a sine qua non for its validity, was doubtful---Mutation on basis of decree had been attested after three years---Donor had not been shown to be present at the time of attestation of mutation---High Court accepted constitutional petition, declared order of revisional Court to be without lawful authority and upheld judgment of Trial Court, resultantly donee's suit would be deemed pending for its adjudication on merits after impleading applicants as legal heirs of donor.

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

----Art. 61---Report of Finger Print Expert---Evidentiary value---Such report neither tendered in evidence nor expert was examined as witness---Such report would have no legal value.

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

----O. XXVI, Rr. 1, 9 & 10---Qanun-e-Shahadat (10 of 1984), Art.140---Issuance of commission for local inspection---Statement of a party before commission---Evidentiary value---Commission had only to undertake the task of local inspection and had not been appointed to record statement of parties, so as to be made part of evidence for purpose of adjudication of questions involved in the case---Party, while appearing as witness in his suit, was not confronted with his statement before commission---Such statement could not be used against such party.

Taqi Ahmed Khan for Petitioners.

Muhammad Sohail Bhatti for Respondents.

Date of hearing: 31st January, 2006.

P L D 2006 Lahore 185

Before Muhammad Akhtar Shabbir, J

MUHAMMAD ZARIN---Appellant

Versus

THE STATE and another---Respondents

Press Appeals Nos.5, 6 and 7 of 2005, heard on 16th January, 2006.

(a) Press, Newspapers, News Agencies and Book Registration Ordinance (XCVII of 2002)-----

----S. 19---Press declaration, cancellation of---Principles of natural justice---Applicability---Non-issuance of show-cause notice---Press declaration issued in favour of appellants was cancelled by authorities on the ground that the provisions of Press, Newspapers, News Agencies and Book Registration Ordinance, 2002, had been violated---Plea raised by appellants was that before cancellation of declaration, no show-cause notice was issued to them---Validity---Authorities were under legal obligation to afford an opportunity to a person for showing cause against the action proposed to be taken against him, hold an inquiry into the matter before proceedings further---No one should be dealt with to his material disadvantage or deprived of his liberty or property without having an opportunity of being heard and making his defence---No show-cause notice having been issued to appellants by the authorities, order of cancellation of declaration was not sustainable in law and was set aside--Appeal was allowed accordingly.

University of Dacca through Vice-Chancellor v. Zakir Ahmad PLD 1965 SC 90; Ghulam Mustafa Jatoi's case 1994 SCMR 1299 and Mst. Attiyya Bibi Khan's case 2001 SCMR 1161 rel.

(b) Maxim--

----"Audi alteram partem"---Applicability---Forum of proceedings---Rule of justice embodied in maxim audi alteram partem, is not confined to proceedings before Courts but extends to all proceedings by whomsoever held, which may affect the person or property or other right of the parties concerned in the dispute---Just decision in such controversies is possible only if the parties are given opportunity of being heard---As regards the right of hearing, no difference exists between proceedings which are strictly judicial and those which are in the nature of a judicial proceedings though administrative in form.

Chief Commissioner Karachi v. Mrs. Dina Sohrab Katrak PLD 1959 SC (Pak.) 45 rel.

Aftab Ahmad Bajwa and Syed Shabbir Hussain Bukhari for Appellant.

Muhammad Akbar Tarar, Addl. A.G. for the State.

Kh. Muhammad Afzal for Respondents No.2.

Date of hearing: 16th January, 2006.

P L D 2006 Lahore 189

Before Syed Hamid Ali Shah, J

MUHAMMAD ASHRAF---Appellant

Versus

SHER MUHAMMAD and others---Respondents

F.A.O. No.74 of 1997, heard on 18th November, 2005.

(a) Lunacy Act (IV of 1912)---

----S. 62---Lunatic---Determination---Procedure---Jurisdiction of Court--Dispute was with regard to lunacy/unsoundness of mind of the owner of property---Trial Court did not declare the owner as lunatic for the reasons that the owner of property was not produced before it during the proceedings---Validity---Court under Lunacy Act, 1912, was not an ordinary Court and had the power of pater patriae---Powers of such Court were akin to that of Court under Guardians and Wards Act, 1890---Courts in such proceedings had inherent power and prerogative to act as prudent and natural parent of an infant or person of an unsound mind---Proceedings under S.62 of Lunacy Act, 1912, were inquisitorial, where it was the primary duty of Court to hold inquiry and find out whether a person was lunatic and if so, his person and property be protected---Court in such cases was required to make appropriate arrangements for the custody of such person as well as his property---Court was not to see which party before the Court had proved its case on its merits but was to see whether the person who was claimed to be incapable of managing himself, was in fact incapacitated---If it was brought to the notice of Court that a person was of unsound mind and a petition as to his inquisition had been filed, the Court itself had to summon the alleged lunatic, examine him by asking easy questions of his daily routine and in case it was needed, a direction for medical examination of such person could be ordered by the Court---Order of Trial Court was erroneous as the Court had treated the petition under S.62 of Lunacy Act, 1912 as an ordinary lis between two parties---Trial Court was to inquire and find out as to whether the owner was indeed a lunatic and to ascertain it, owner of the property should have been examined by the Trial Court or the Court might have directed his medical examination---Judgment and order passed by Trial Court was set aside and the case was remanded to Trial Court for determination of the question involved in the case---Appeal was allowed accordingly.

(b) Lunacy Act (IV of 1912)---

----S. 62---Lunatic---Declaration---Petition under S.62 of Lunacy Act, 1912, was filed with regard to such declaration with regard to the owner of disputed property---Respondents contested the petition on the ground that disputed property had been transferred through decree of civil Court thus the proceedings under S.62 of Lunacy Act, 1912, were infructuous---Validity---Lunatic was not capable to contract and any transaction statedly made by him was void transaction and as such did not confer any right to a third party---Proceedings under S.62 of Lunacy Act, 1912 were not infructuous in circumstances.

Muhammad Aqil Chughtai for Appellant.

Sh. Naveed Shaharyar for Respondents.

Date of hearing; 18th November, 2005.

P L D 2006 Lahore 193

Before Jawwad S. Khawaja, J

THE STATE---Petitioner

Versus

MUHAMMAD AKBAR CHEEMA, ADVOCATE-Respondent

Criminal Original No.1/C of 2006, decided on 19th January, 2006.

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

----Ss. 3 & 5---Contempt of Court---Counsel for the petitioner, in a revision petition before the High Court (litigation of the case started in 1975) had addressed a letter to the Chief Justice of the High Court in which contemptuous language had been used against the Judge (before whom the revision petition was subjudice) in respect of the manner in which the Judge had conducted the case and dealt with the counsel since the time the matter had come on the list of the Judge---Adjudication of the case was already long delayed and respondents were still deprived of the benefits of the concurrent decrees in their favour more than two decades earlier---Justification thus existed for inferring from the circumstances that counsel for the petitioners was interested in prolonging the matter to avail the benefits of interim relief, thereby frustrating the process of law---Such conduct of the counsel showed that he had been guilty of committing contempt of Court and had also violated the Code of Conduct prescribed for Advocates---High Court issued notice to the counsel to show cause as to why proceedings under the Contempt of Court Act, 1976 should not be initiated against him--Case of the counsel was also referred by the High Court to the Provincial Bar Council for appropriate disciplinary action---Counsel submitted an apology to the Court---Held, apology of the counsel, could, at best, be taken in mitigation of the sentence---On account of the conduct of the counsel, any further continuance of the interim relief would work injustice on the respondents; interim relief allowed to the petitioners was therefore recalled---Court, in view of the contempt proceedings initiated against the counsel, found it appropriate to order that the revision petition and the connected petition were heard by another Bench and the case be placed before the Chief Justice for. such orders as' he may deem fit---Contemner being an Advocate and not an ignorant layman or rustic and contempt committed by him, both in the letter addressed to the Chief Justice and in Court was calculated, persistent and deliberate---Court observed that judicial system has to be protected against such contempt, otherwise there will be a total breakdown in the administration of justice, if in appropriate cases such as the present one, suitable punishment was not handed down to a contemner simply because he had tendered an apology---Court, in circumstances, sentenced the contemner to undergo simple imprisonment of one month and to pay a fine of Rs.5,000.

Ch. Muhammad Nawaz Bajwa, A.A.-G. for the State.

Muhammad Akbar Cheema, Contemner with Ch. Abdul Wahid and Ch. Anwaar-ul-Haq Pannun, for Respondent.

P L D 2006 Lahore 198

Before Syed Zahid Hussain, J

Messrs IRIS-RIST TECHNOLOGIES (PVT) LTD.---Petitioner

Versus

GOVERNMENT OF PUNJAB and others-Respondents

Writ Petition No.16000 of 2005, decided on 10th February, 2006.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Factual realm---High Court refrained from entering into factual realm as there was serious controversy about the same.

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

----Art. 199---Constitutional petition---Maintainability---Relief sought was issuance of writ in the nature of mandamus---Factual controversy---Award of contract by Provincial Government---Letter of award of contract revealed that award of contract to the petitioner was dependent upon the approval by the Finance Department of the Provincial Government whereafter the Contract was to be signed on approval of the Government by the Provincial Law Department---Letter of award of the contract stated to have been issued by the Government had not been admitted by Government in its reply to the assertions made by the petitioner---Authenticity of the very basic document (upon which the case of petitioner rested) thus had been disputed by the Government---In such context when no conclusive and binding contract had yet been arrived at between the parties and the transaction was still at the stage of bid and negotiations, it was to be seen as to whether the constitutional petition could be maintained for such a relief as had been prayed for---Another question of significant. importance was about the legal efficacy of the alleged letter of award of contract---Held, though the issuance of letter was vehemently disputed by the Government, yet assuming, for the present, that it was so conveyed to the petitioner, its perusal itself was indicative of the fact that the contract was yet to be negotiated and formalized and thereafter to be executed after approval by the Finance Department and the Law Department---Nothing had come on the record to establish that such stages and steps had been taken and finalized---Such an inchoate process meant to arrive at a contract did not confer any indefeasible right to compel Government by means of a writ in the nature of mandamus to execute and implement the formal contract with the petitioner---Mere fact that the petitioner was the lowest bidder would not clothe him with a right or locus standi to succeed on that basis--Petitioner, in circumstances could not legitimately seek a command in the nature of mandamus from High Court to compel the Government to enter into the contract with it---Resort to writ jurisdiction of High Court was entirely misdirected and misconceived---Examination of vires of the actions of the public functionaries on the touchstone of reasonableness and fairness was dependent upon the facts and circumstances of each case---Essential feature to be kept in view was that elementary and crucial facts were not disputed by the parties---Controversy as to disputed questions of facts entailing factual inquiry and recording of evidence, could not appropriately be the function of the Court in writ jurisdiction---Constitutional petition was dismissed in circumstances.

Meraj Din v. Noor Muhammad 1970 SCMR 542; Munshi Muhammad v. Faizanul Haq 1971 SCMR 533; Pervez Qureshi v. Settlement Commissioner 1974 SCMR 337; Fawwad and Fareen Enterprises Ltd. v. Director of Industries, Government of Sindh, Karachi PLD 1983 Kar. 340; Nizamuddin and another v. Civil Aviation Authority and 2 others 1999 SCMR 467 and Administrative Law by Sir William Wade, 7th Edn., p.650 fol.

Messrs Presson Manufacturing Limited and another v. Secretary, Ministry of Petroleum and Natural Resources and 2 others 1995 MLD 15; Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport Karachi and others 1998 SCMR 2268; Messrs Wak Orient Power and Light Limited through Chief Executive, Lahore v. Government of Pakistan, Ministry of Water and Power through Secretary Islamabad and 2 others 1998 CLC 1178; Muhammad Akram and 33 others v. Government of Pakistan and 2 others 1999 CLC 745; Network Television Marketing Ltd. v. Government of Pakistan and another 2001 CLC 681; Owaisco v. Federation of Pakistan and others PLD 1999 Kar. 472; Messrs Ittehad Cargo Service and 2 others v. Messrs Syed Tasneem Hussian Naqvi and others PLD 2001 SC 116; Fawwad and Fareen Enterprises Ltd. v. The Director of Industries, Government of Sindh, Karachi and others PLD 1983 SC 268; The State of Pakistan and another v. Mehrajuddin 1959 SC (Pak.) 147; Masudul Hassan v. Khadim Hussain and another PLD 1963 SC 203; Asdullah Mangi and others v. Pakistan International Airlines Corporation and others 2005 SCMR 445; Babu Parvez Qureshi v. Settlement Commissioner, Multan and Bahawalpur Division, Multan and 2 others (1974 SCMR 337; Subramania Mudaliar v. Ammapet Co-operative Weavers Production and Sales Society Ltd. by its President S. Gopalaswami Mudaliar AIR 1961 Madras 289; Dr. Azeem Shad v. Municipal Committee Multan PLD 1968 Lah. 1419; Principles of the English Law of Contract by Sir William R. Anson, Twentieth Edn., p.44 and Law of Contract, p. 35 by Dr. Avtar Singh, Sixth Edn. ref.

Ali Sibtain Fazli for Petitioner.

Ch. Aamer Rehman, Addl. A.-G. Punjab for Respondents Nos.1 and 2.

Dr. Danishwar Malik, Deputy Attorney-General Pakistan for Respondent No.3.

Date of hearing: 10th February, 2006.

P L D 2006 Lahore 207

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

NASIR MAHMOOD and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.244 and Murder Reference No.23 of 2001, heard on 22nd February, 2006.

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

---Ss. 302(b), 364-A & 201---Appreciation of evidence---Prosecution had neither claimed that the accused had kidnapped the minor deceased, nor it had produced any evidence in this regard---Medical evidence had not established that the death of the minor girl was homicidal or that it was not natural---No eye-witness of the alleged murder had been mentioned nor had come forward during investigation of the State case, but in the private complaint filed by the complainant after about one year and two months of the occurrence, one eye-witness had been introduced and he had also made a statement during the preliminary evidence, but during the trial he had been given up by the prosecution, as he was not ready to appear in the Court---Presumption was that if he had entered the witness box he would not have supported the prosecution case---Motive set up by the prosecution for the alleged murder had not only been unsubstantiated, but the same was quite unbelievable---Accused had absolutely no motive against the minor deceased girl---Weapon allegedly recovered from the possession of accused admittedly was not the weapon of offence and it being neither stained with blood nor soiled with mud was not connected with the offence---Two witnesses regarding the killing of the deceased girl, cited by the complainant in the calendar of witnesses had been given up by him before the Trial Court and, thus, the critical aspect of the case asserted by the complainant had remained unproved---Confessions allegedly made by the accused before two witnesses were silent as to how the deceased had come in his custody, as to where, when and how he had murdered the deceased and as to where he had concealed the dead body---Such serious deficiencies had substantially denuded the extra-judicial confessions of their evidentiary value---Even otherwise, confessions attributed to accused which were generally and universally perceived as a Very weak type of evidence, were not corroborated by any independent evidence---Eye-witnesses about the murder of the deceased being available and the place of murder being already known, the alleged pointing out of the same place by the accused to the police and recovery of the dead body from there, had lost their evidentiary strength and the same were not sufficient by themselves to establish the accused's culpability for the alleged murder---Accused was acquitted on benefit of doubt in circumstances.

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

----Ss. 302(b), 364-A & 201---Withholding of a prosecution witness---Presumption---If a witness cited in the Calendar of witnesses is not produced by the prosecution, then the Court is to presume that if he had entered the witness box, he would not have supported the prosecution case.

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

----S. 164---Penal Code (XLV of 1860), Ss. 302(b), 364-A & 201---Appreciation of evidence---Extra-judicial confession---Weak evidence---Extra-judicial confession is generally and almost universally accepted and perceived as a very weak type of evidence and the same cannot suffice by itself to maintain a conviction on a capital charge.

Chaudhry Muhammad Abdus Saleem for Appellants.

A. H. Masood for the State (in Criminal Appeal No.244 of 2001).

Ashfaq Ahmad Chaudhry for the State (in Murder Reference No.23 of 2001).

Qazi Muhammad Saleem for the Complainant.

Dates of hearing: 21st and 22nd February, 2006.

P L D 2006 Lahore 217

Before Mian Sagib Nisar, J

SAFDAR ALI---Petitioner

Versus

NAVEED SADIQ and others---Respondents

C.R. No.1771 of 2005, decided on 20th February, 2006.

Civil Procedure Code (V of 1908)---

----O. VII, R.14 & O.XIII, R.1---Qanun-e-Shahadat (10 of 1984), Arts. 74, 75 & 76---Original document sued upon, if lost or destroyed before arrival of evidence stage---Secondary evidence of such document, adducing of---Scope---Party would not be allowed to lead secondary evidence as a matter of course or right---Patty for such reasons would be precluded to adduce the document itself, thus, resort would be had t Art.76 of Qanun-e-Shahadat, 1984 and secondary evidence could he permitted upon strict proof about existence, execution and loss of document---Principles.

According to Article 75 of Qanun-e-Shahadat, 1984, a party to a matter is required to prove a document by primary evidence, which undoubtedly means the production of document itself in original. However, the possibility of document itself having been destroyed or lost cannot be ruled out. In such an eventuality, the provision of Article 76 allows a party to led secondary evidence of the document in terms of Article 74. But this should not be allowed as a matter of course or right to concerned party, and the party asking for secondary evidence should be put to the strict test of proof not only about the loss of document, but also its very existence, especially in the cases, where the execution of the document has been denied by the other side. Obviously, this can be done only if the claimant party is enabled to produce evidence to both the said effect. If the original document, before the evidence stage is arrived, has been lost or destroyed etc., and for such reason, the party is precluded to adduce the document itself, then resort could always be had to Article 76 of the Order, and upon strict proof about the existence, execution and loss of the document, secondary evidence can be permitted. But this can only be done after enabling the parties to adduce evidence in this behalf.

Kh. Saeed-uz-Zafar for Petitioner.

Malik Muhammad Aslam Awan for Respondents.

Date of hearing: 20th February, 2006.

P L D 2006 Lahore 219

Before Syed Hamid Ali Shah, J

MUHAMMAD ASHRAF---Petitioner

Versus

DISTRICT COORDINATION OFFICER, LAHORE and 2 others---Respondents

Writ Petition No.4557 of 2005, decided on 26th January, 2006.

Punjab Destitute and Neglected Children Act (XVIII of 2004)-

----Ss. 3(k)(vi)(vii) & 28---Constitution of Pakistan (1973), Art.199---Constitutional petition---Abandoned child, custody of---Entitlement---Unclaimed child found within vicinity of a shrine---District Coordination Officer (DCO) handed over custody of child to respondent---Validity---Custody of a destitute and neglected child under provisions of Punjab Destitute and Neglected Children Act, 2004 would be entrusted to a suitable person or he would be admitted to a Child Protection Institution---Such Institution having not been constituted, custody of child would be entrusted to a suitable person under S.28 of Punjab Destitute and a Neglected Children Act, 2004---Respondent's application was prior in time and there was no other claimant before DCO while handing over to respondent custody of child---Child until his entrustment to respondent had remained in custody of an employee of the shrine---Respondent had developed emotional attachment with child for looking after him for last 10 months---Respondent could keep custody of child subject to furnishing bond to the effect that child would be brought up properly, admitted in a school and would not be forced to do any job/work for respondent till attaining age of majority---Respondent as per his undertaking would deposit a sum of Rs.5,00,000 in the name of child which amount would be incurred on his education---Respondent would submit periodical reports as to welfare of child under S.28(3) of the Act to District/Sessions Judge---High Court disposed of the constitutional petition in above terms.

Falak Sher for Petitioner.

Shahid Azim for Respondent No.1.

Naeem Sadiq for Respondents Nos. 2 and 3.

Date of hearing: 19th January, 2006.

P L D 2006 Lahore 223

Before Mian Saqib Nisar, J

GHULAM MUHAMMAD and others---Petitioners

Versus

MUHAMMAD HUSSAIN and others---Respondents

Criminal Revision No.1215-D of 1998, decided on 3rd February, 2006.

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

----S. 11---Res judicata---Dismissal of earlier suit for non-production of evidence---Plaintiffs in subsequent suit not party in earlier suit---Decision of earlier suit could not be made basis of res judicata for other plaintiffs in subsequent suit.

Mrs. Irene Wahab v. Lahore Diocesan Trust Association 2002 SCMR 300; Mst. Gul Shahnaz v. Abdul Qayyum Soomro and others PLD 2002 Kar. 333 and Sapphire Textile Mills Ltd. and others v. A.P.L. Pakistan (Pvt.). Ltd. and others 2002 CLD 1767 ref.

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

----S. 11---Res judicata, issue of---Proof---Duty of party resorting to res judicata to tender in evidence pleadings of parties, issues and judgment of earlier case---Bar of res judicata could not be attracted merely on basis of decree-sheet of earlier case---Principles.

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

----S. 52---Lis pendens, doctrine of---Applicability---Sale of property after passing of decree, but before filing of appeal or expiry of period of limitation available for filing appeal against such decree---Validity---Such alienation would be hit by rule of lis pendens.

Shaukat Ali Mehr for Petitioners.

Muhammad Farooq Qureshi Chishti and Akhtar Masood for Respondents.

Date of hearing: 3rd February, 2006.

P L D 2006 Lahore 227

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD IJAZ---Petitioner

Versus

NADEEM and 3 others---Respondents

Criminal Miscellaneous No.7524-BC of 2005, decided on 30th January, 2006.

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

----Ss. 91 & 204---Power to take bond for appearance and issue of summons-Scope-Sections 91 & 204, Cr.P.C. are not restricted in their application to cases instituted on a private complaint under S.200, Cr.P.C.---Provisions of S.91, Cr.P.C. are general in nature and are applicable to any person for whose appearance or arrest a Court is empowered to issue a summons or a warrant.

2005 PCr.LJ 768; 2005 P.Cr.LJ 505; Mazhar Hussain Shah v. State 1986 PCr.LJ 2359; Ajit Singh v. State AIR 1970 Dehli 155; Madhu Umaye v. S.D.M. 1971 I.Cr.LJ 1720 and AIR 1971 SC 2486 ref.

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

----Ss. 91, 204 & 497(5)---Penal Code (XLV of 1860), Ss.302/324/148/ 149---Cancellation of bail, refusal of---Accused who were placed in Column No.2 of the Challan were summoned by the Sessions Court and on their appearance were directed to submit bail bonds in the sum of Rs.100,000 with one surety each in the like amount to the satisfaction of the Court, vide the impugned order---Sessions Court, after taking cognizance, had competently passed the said order which was consistent with the provisions of S.91, Cr.P.C. which were not only applicable to the private complaints instituted under S.200, Cr.P.C. but were also applicable to the cases based on an F.I.R.---Purpose of S.91, Cr.P.C. was to ensure presence of accused, who were directed by the Court to execute the bonds---Bail allowed to accused was not cancelled and impugned order was upheld accordingly.

2005 PCr.LJ 768 and 2005 P.Cr.LJ 505 distinguished.

Mazhar Hussain Shah v. State 1986 PCr.LJ 2359; Ajit Singh v. State AIR 1970 Dehli 155; Madhu Umaye v. S.D.M. 1971 I.Cr.LJ 1720 and AIR 1971 SC 2486 ref.

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

----S. 91---Power to take bond for appearance---Purpose and scope---Purpose of S.91, Cr.P.C. is to ensure or demand presence of the accused who is directed by the Court to execute the bond---Provisions of S.91, Cr.P.C. are applicable to a person who is present in Court and is free, and not to a person who is already under arrest and in custody.

?

Muhammad Azhar Chaudhary for Petitioner.

Munir Ahmad Bhatti for Respondents.

Mehmood Ahmad Rehan for the State with Khalid, S.I.

P L D 2006 Lahore 233

Before Syed Zahid Hussain, J

GHULAM MUHAMMAD through Legal Heirs---Appellant

Versus

ABDUL REHMAN and others-Respondents

Regular Second Appeal No.81 of 1999, decided on 1st March, 2006.

Specific Relief Act (I of 1877)---

----Ss. 8 & 39---Limitation Act (IX of 1908), Arts. 91 & 120---Suit for possession and cancellation of sale-deed got executed on basis of forged power of attorney---Dismissal of suit as time-barred by Courts below despite finding plaintiff to be the owner of suit-land as he has never executed power of attorney, thus, subsequent sale pursuant thereto was null and void---Validity---Where deed/instrument was found to be null and void, then Art.91 or 120 of Limitation Act, 1908 would not apply---Plaintiff was entitled to decree for possession and his suit could not be dismissed on ground of limitation---High Court accepted revision petition, resultantly suit stood decreed.

Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624; Muhammad Bashir v. Mst. Sattar Bibi and another PLD 1995 Lah. 321; Malik Ata Ullah and another v. Malik Muhammad Akram Khan and others PLD 1956 (W.P.) Lah. 264; Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1960 (W.P.) Lah 300; Abdul Rehman v. Abdul Haq and others PLD 1960 (W.P.) Kar. 625; Mst. Izzat v. Allah Ditta PLD 1981 SC 165; Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245 and Muhammad Akbar Shah v. Muhammad Yusuf Shah and others PLD 1964 SC 329 rel.

Bashir Ahmad v. Partab 1989 MLD 4314 distinguished.

Khan Khizar Abbas Khan for Appellant.

Ch. Inayat Ullah for Respondents.

P L D 2006 Lahore 240

Before Mian Saqib Nisar, J

Haji MUHAMMAD IDREES and 17 others---Petitioners

Versus

INAYAT and 2 others---Respondents

Civil Revision No.2072 of 2003, heard on 23rd February, 2006.

(a) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----S. 2-A [as added by Punjab Muslim Personal Law (Shariat) Application Act (Amendment) Ordinance (XIII of 1983)J---Provisions of S.2-A(a)(b) of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962---Scope---Such provisions ordained that all matters pending or decided under the custom, if contrary to Shariah, would abate forthwith, and if any decree in violation thereof existed, would be rendered void and inexecutable having no effect or consequence.

(b) Interpretation of statutes--.

----Proviso, function of---Proviso only creates an exception to the main provision, but cannot override the section to which it forms part.

(c) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----S. 2-A, proviso---Proviso to S. 2-A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962---Applicability---Essential conditions---In order to attract such proviso to a transaction, two conditions must co-exist i.e. past and closed transaction, and delivery of possession thereunder to decree-holder---Past and. closed transaction would mean a decree having attained finality---Principles.

Proviso to section 2-A is based upon the rule of finality and conclusiveness in the judicial dispensation attached to a judgment and decree and has only secured and protected those transactions, which are firstly past and closed, a principle and phraseology well-understood in the legal parlance, and in addition thereto, possession under such transaction has also been delivered to decree holder. Thus, in order to attract the proviso, the two conditions mentioned above must co-exist and fully satisfied. But if one of those is missing, the proviso shall not apply. In order to adjudge, if any transaction is past and closed, the condition precedent is that the chapter in relation to the subject, to which the transaction pertains, must be conclusively closed meaning thereby that the decree, if any passed, must have attained finality, either it is not challenged by aggrieved party or if so done by crossing the forums of appeals or revisions etc., in the hierarchy, it is passed.

If, however, any appeal is pending against a judgment and decree, particularly the first appeal, which is an important right of a litigating party and is the continuation of the suit/lis, the entire matter reopens and during the pendency of appeal, no decree can be held to be final conferring thereto the sanctity of the doctrine of past and closed transaction.

Messrs Lever Brothers Pakistan Ltd. v. Customs, Sales Tax and Central Excise Appellate Tribunal through Registrar and another 2005 PTD 2462 rel.

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

----Ss. 2(2) & 96---First appeal, pendency of---Effect---No decree would be final during pendency of appeal---Principles.

If, however, any appeal is pending against a judgment and decree, particularly the first appeal, which is an important right of a litigating party and is the continuation of the suit/lis, the entire matter reopens and during the pendency of appeal, no decree can be held to be final conferring thereto the sanctity of the doctrine of past and closed transaction.

Messrs Lever Brothers Pakistan Ltd. v. Customs, Sales tax and Central Excise Appellate Tribunal through Registrar and another 2005 PTD 2462 rel.

(e) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----S. 2-A as added by Punjab Muslim Personal Law (Shariat) Application Act (Amendment) Ordinance (XIII of 1983)]--- Decree under customary law in favour of reversioners---Enforcement of S.2-A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 during pendency of appeal against such decree---Delivery of possession of suit land to reversioners during pendency or prior to filing of appeal---Validity---Till decision of such appeal, such decree was not final, but was subject to verdict of Court of appeal---Before any decision could be made, provision of S.2-A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 was enforced, thus, not only suit of reversioners stood abated on account of sub-clause (c) thereof, rather such decree under dictate of sub-clause (b) thereof had become void and inexecutable---Such delivery of possession would not bring the case of reversioners within the mischief of proviso to S.2-A of Act, 1962.

Ghulam Muhammad v. Ghulam Qadir and others 1995 SCMR 1830 rel.

Sardar through Legal Heirs v. Ghulam Haider 1991 CLC 252 and Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407 distinguished.

Kh. Saeed-uz-Zafar for Petitioners.

S.M. Masud and Muhammad Ashfaq Mughal for Respondents.

Date of hearing: 23rd February, 2006.

P L D 2006 Lahore 247

Before Ali Nawaz Chowhan, J

AHMAD FAROOQ KHAN---Petitioner

Versus

ABDALIAN COOPERATIVE HOUSING SOCIETY---Respondent

Civil Revisions Nos. 821 and 820 of 1999, heard on 24th February, 2006.

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

----Ss. 4, 6, 41 & 42---Martial Law Instruction No.23, dated 17-8-1979--Acquisition of land by Government for Private Housing Scheme---Refusal of Society to grant landowner exempted plot equivalent to 30% of acquired land---Validity---Society through an. agreement with Government had undertaken to abide by Rules and Regulations framed by Government in respect of acquisition of land---Society through an advertised notice had asked landowners interested in exempted plots to approach its Secretary---Government in Notification under S.4 of Land Acquisition Act, 1894 had declared such Housing Scheme as Official Development Agency for public purpose---Principle of estoppel would attract to such case---Claim of landowner was justified and was allowed in circumstances.

Dr. Muhammad Nasim Javed v. Lahore Cantonment Housing Society Ltd. and others PLD 1983 Lab. 552 and Abdalians' Cooperative Housing Society Ltd. v. Muhammad Bilal Khan 2003 YLR 1032 ref.

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

----Ss. 4 & 6---Compulsory acquisition of land by Government---Essentials---Such acquisition ought to be for welfare of people and that Government should keep in mind welfare of affected landowners---Withdrawal of Government from its stand taken in notification under S.6 of Land Acquisition Act, 1894, would widen credibility gap between Government and public.

Mian Hamid Khan for Petitioner.

Abid Aziz for Respondent.

Date of hearing; 24th February, 2006.

P L D 2006 Lahore 255

Before Syed Zahid Hussain, J

Dr. ANJUM HABIB VOHRA---Petitioner

Versus

WASEEM AHMAD KHAN---Respondent

Civil Revision No.1714 of 2005, heard on 20th February, 2006.

(a) Interlocutory application--

---Order passed in an interlocutory application---Validity---Such order was merely a tentative assessment and would not take place of findings to be recorded by Court on basis of evidence, which might be produced by parties.

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

----O. XV, R.3---Decision of suit on basis of an issue out of several issues---Scope---Provision of O.XV, R.3, C.P.C., could be invoked in appropriate cases to dispose of a suit by decision on a certain issue---When determination of other issues was essential and also dependent upon recording of evidence, then fragmentation of trial would delay decision and prolong litigation, which course should not be encouraged---Principles.

Ibrahim v. Muhammad Hussain PLD 1975 SC 457; Mahomed Sulaiman v. Kumar Birendra AIR 1922 PC 405; Ray Nicholas Lines and others v. All India Spinners Association and another AIR (34) 1947 Pat 185; Joban Das v. Ganga Ram and others AIR (36) 1949 Him. Prad. 7; Bashir Ahmed and 8 others v. Aftab Ahmad and 2 others PLD 1976 Lah. 1433 and Raza Hussain v. Haji Qaisar Iqbal and 7 others 1996 MLD 55 rel.

(c) Administration of justice---

----Fragmentation of trial would delay decision and prolong litigation, thus, Court should not encourage such a course.

Dr. Danishwar Malik for Petitioner.

Ch. Bashir Ahmed and Muhammad Ahmed Qayyum for Respondent.

Date of hearing: 20th February, 2006.

P L D 2006 Lahore 260

Before Muhammad Muzammal Khan, J

IRSHAD AHMAD---Petitioner

Versus

MUHAMMAD SHARIF and another---Respondents

Civil Revision No.1260 of 2002, decided on 24th February, 2006.

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

------O. VII, R.11---Muslim Family Laws Ordinance (VII of 1961), S.4---Specific Relief Act (I of 1877), Ss.39 & 55---Rejection of plaint---Suit for declaration to the effect that Nikahnama between defendant and deceased daughter of plaintiff registered with the Metropolitan Corporation be declared fictitious, fabricated, based upon fraud and void, having no effect upon his rights and Metropolitan Corporation be restrained through permanent injunction from issuing any copy of the said Nikahnama and defendant be restrained from pretending himself as husband of his deceased daughter or using the Nikahnama anywhere for any purpose---Defendant contested the suit and took the plea that plaintiff had no cause of action to file the suit---Trial Court, which was seized of the matter, after framing the preliminary issues regarding cause of action, rejected the plaint, appeal against such order of the Trial Court was also rejected---Validity---Held, defendant had claimed himself to be husband of the deceased daughter of plaintiff, on the basis of alleged forged Nikahnama and he in that capacity would attempt to inherit property coming to share of the deceased daughter of the plaintiff, by virtue of S.4, Muslim Family Laws Ordinance, 1961 and by virtue of Nikahnama in question he would claim himself to be son-in-law of the plaintiff, creating in him a right to intervene in affairs of family of the plaintiff---Plaintiff, in circumstances certainly had a cause of action about adjudgment of the alleged Nikahnama---Plaintiff's plaint, as it stood, did disclose a cause of action and thus the same could not have been rejected by invocation of O.VII, R.11, C.P.C.

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

----S. 5 & Schedule---Jactitation of marriage---"Jactitation"---Connotation---Matter pertaining to jactitation simpliciter inter-spouses is exclusively triable by Family Court established for the purpose---Situation, however, is altogether changed in a case where the principle of jactitation is pressed or brought for adjudication by third parties, who are not one of the spouses i.e. husband or wife but father of the girl claiming jactitation of his daughter's marriage---Suit by such third person would be triable by the Civil Court---Principles elucidated.

A joint reading of section 5 and Schedule to the Family Courts Act, 1964 makes it abundantly clear that matter pertaining to jactitation simpliciter inter-spouses is exclusively triable by Family Courts established for this purpose because before these Courts exclusive disputes of matrimonial nature have been made triable by the legislature. Situation is altogether changed in cases where the principle of jactitation is pressed or brought for adjudication by third parties, who are not one of the spouses i.e. husband or wife, as in the present case where father of the girl claimed jactitation of her marriage. To resolve the controversy as to whether suits involving jactitation of marriage by third parties, one has to keep in mind ordinary dictionary meaning of "jactitation" which has been defined as "boasting of something which is challenged by another". This word has been defined with the meaning "boasting of something which is challenged by another specially with reference to suit of jactitation of marriage where one of the two parties has falsely boasted or given out that he or she was married to the other, whereby a common reputation of their matrimony might ensue and the other sues for an order enjoining perpetual silence on that head". The words "jactitation" and "Jactitation of marriage" are explained as:

"Jactitation; n. restless tossing in lines; twitching or convulsion; tossing or bandying about; bragging; public assertion, esp. ostentatious and false, Jactitation of marriage, pretence of being married to another".

"FALSE BOAST OF MARRIAGE. If anyone persistently and falsely alleges marriage with another, the latter may obtain in a suit for jactitation of marriage a decree of perpetual silence. Only the person complaining that he has so been misrepresented can present such a petition. It is now a rare procedure.

A suit for jactitation is the only case in which a matrimonial suit can, as of right, be proceeded with, without prima facie proof of a marriage de facto.

"Jactitation of marriage is an unwarrantable assertion that marriage exists, and it has been within the jurisdiction of this Court for many years to intervene to put to silence the person making a false declaration of marriage. One answer to such a suit is that the party complaining has acquiesced in the statement, as he cannot, after such acquiescence put to silence a person who persists in representations which he has previously authorized. The two questions which arise are; (1) whether in fact there was a ceremony of marriage and whether that ceremony was valid; and (2) if not, whether the petitioner has permitted and encouraged the respondent to represent herself as his wife".

Ordinary dictionary meanings of word jactitation clearly indicate that it arises in the situation when one person intends to keep the other silent in respect of boasting of existence of marital relations between the two. The law promulgated for settlement of dispute between husband/wife is that in case any party of the married couple disputes, such suits certainly would come before the Courts of exclusive jurisdiction established in this behalf and he/she cannot maintain civil suit but where such relief is claimed by a person other than husband/ wife, suit in this behalf shall be entertained, adjudicated, tried and decided by the Civil Court of ultimate jurisdiction. The proposition under discussion, if looked from another angle of applicability. of section 5 Family Courts Act, 1964 to third person, the irresistible conclusion would be the same that the suit was triable by the Civil Court and suit was correctly filed for adjudgment of document/nikahnama and plaintiff had reasonable apprehension that if it was left outstanding, same would cause him serious injury thus the same was covered by and maintainable under section 39 of the Specific Relief Act, 1877, requiring determination on merits.

Black's Law Dictionary; Mozley and Whiteley's Law Dictionary; Twentieth Century Dictionary; Halsbury's Laws of England (Third Edition) Vol. 12, p.223, para. 418; Goldstone v. Goldstone (1922) 127, LTR 32 ref.

(c) Words & phrases---

----Jactitation and Jactitation of marriage---Connotation.

Black's Law Dictionary; Mozley and Whiteley's Law Dictionary; Twentieth Century Dictionary; Halsbury's Laws of England (Third Edition) Vol. 12, p.223, para. 418; Goldstone v. Goldstone (1922) 127, LTR 32 ref.

Mrs. Rizwana Anjum Mufti for Petitioner. Khan Muhammad Bajwa for Respondent No.1.

Shahid Azeem for Respondent No.2.

Date of hearing: 24th January, 2006.

P L D 2006 Lahore 267

Before Muhammad Muzammal Khan, J

INAYAT ULLAH---Petitioner

Versus

Mst. BEGUM BAIBI and another---Respondents

Civil Revision No.1292 of 2000, heard on 20th January, 2006.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 5---Pre-emption suit---Gift by husband in wife's name alleged to be sale---Proof---Spouse had no issue---Donor was younger to donee---Donee being a housewife had no source of income to purchase suit-land and that too from her husband---Nephew of donee impleaded in suit-had not been proved to have financed her---Not proved as to why nephew would have purchased suit-land in the name of vendor's wife, when he was not sole heir---Husband foreseeing that in case of his death, wife would not get her "Sharai Share" and there being her no other source of income, he decided to gift his property to wife as owner---Gift by an owner in his wife's name could not be dubbed as a sale merely on basis of difference of age of spouses, which as a matter of fact was a genuine cause for effecting gift---Witnesses of pre-emptor deposed to have witnessed bargain of sale, but none of them neither informed Revenue Officer nor raised objection at the time of sanctioning mutation that transaction had wrongly been coloured as gift---One witness being a Lambardar deposed that he came to know about real nature of transaction after 8/10 days of sanctioning of mutation, but even at such time, he did not move complaint/application before concerned Officer that mutation had wrongly been got sanctioned---Prerequisites required to be proved by person alleging "Benami" transaction had neither been made out nor proved by pre-emptor-- -Gift was not proved to be sale, thus, suit was dismissed in circumstances.

Alif Khan v. Mst. Mumtaz Begum and another 1998 SCMR 2124 rel.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Talb-i-Muwathibat and Talb-i-Ishhad, performance of---Proof---Mutation was sanctioned on 29-3-1997 and its knowledge by pre-emptor was pleaded as on 7-5-1997---Pre-emptor during cross-examination deposed that after 4/5 months of coming to know of sale, he got copies of Revenue Record from Patwari and went to lawyer for issuance of notice of Talb-i-Ishahad---Informer of pre-emptor about sale during cross-examination deposed that when he came to know about sale, mutation had not been sanctioned and that he conveyed information to pre-emptor on the same day---According to informer, if pre-emptor had performed "Talb-i-Muwathibat", same would have been done prior to attestation/completion of mutation---Held; pre-emptor had not performed required Talbs at relevant time and evidence produced by him had been manoeuvred subsequently---Suit was dismissed in circumstances.

(c) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Qanun-e-Shahadat (10 of 1984). Arts. 75 & 76---Talb-i-Ishhad, notice of---Denial of receipt of such notice by vendee---Proof of service---Original notice remitted to vendee was not produced, but only Photostat copy thereof was produced without confronting same to witnesses thereof---Notice was not given to vendee for production of original notice of Talb-e-Ishhad---Held, without bringing on record original notice and without seeking permission to lead secondary evidence, notice of Talb-i-Ishhad would not be assumed to have been proved---Suit was dismissed in circumstances.

Mst. Ameer v. Soni 1997 MLD 236; Muhammad Rafiq v. Ghulam Murtaza 1998 MLD 292; Fateh Muhammad and 2 others v. Gulsher 2000 CLC 409; Hayat Ullah Khan and others v. Jan Alam and others 2003 MLD 625; Ghulam Abbas v. Manzoor Ahmad and another PLD 2000 Lah. 125 and Akhtar Nawaz and others v. Muhammad Nazeer and others 2005 YLR 77 rel.

Syed Iftikhar Hussain Shah for Petitioner.

Sheikh Naveed Shaharyar for Respondents.

Date of hearing: 20th January, 2006.

P L D 2006 Lahore 272

Before Syed Zahid Hussain, J

MUHAMMAD ASLAM SALEEMI---Petitioner

Versus

SECRETARY HOME PUNJAB GOVERNMENT, LAHORE---Respondent

Writ Petition No.1761 of 2006, decided on 8th March, 2006.

(a) Punjab Maintenance of Public Order Ordinance (XXXI of 1960)--

----S. 3(6) & (6-a)---Constitution of Pakistan (1973), Arts.10(5) & 199---Constitutional petition---Maintainability---Detention---Availing of statutory remedy of representation under S.3(6-a) of the Punjab Maintenance of Public Order Ordinance, 1960 before filing of petition under Art.199 of the Constitution, in such a case is a rule---Representation qua the detention order will be processed and decided in accordance with law by the Authority after affording opportunity of hearing as contemplated by S.3(6-a) of the Punjab Maintenance of Public Order Ordinance, 1960---Principles.

From a reading of sub-Article (5) of Article 10 of the Constitution it becomes obvious that the Constitution insists not only that the grounds for detention be communicated to the detenu but also that he shall be afforded the earliest opportunity of making a representation against the order. The right to make representation - is thus not only statutory in nature but also finds recognition in the Constitution itself, and therefore, stands on much higher padestal. The importance of this right cannot be whittled down and it must be given effect to. Subsection (6) of section 3 has been enacted to give effect to sub Article (5) of Article 10 of the Constitution and it must be viewed in that context. It is also to be noticed that subsection (6-a) requires the Government to hear the person concerned before deciding the representation.

Article 199 of the Constitution provides an extraordinary remedy to the aggrieved person of invoking the constitutional jurisdiction of the High Court with the underlying purpose to keep the administrative and judicial authorities within the bounds of their jurisdiction. When the law provides a remedy to another authority fully competent to give relief, any indulgence to the contrary by the High Court is likely to produce a sense of distrust in those authorities and to cast an underserved reflection on their integrity and competency and would defeat the legislative intent.

Availing of the statutory remedy before filing of petition under Article 199 of the Constitution of Pakistan (1973) in such a case is a rule.

As soon as the representation qua the detention order is filed, it will be processed and decided in accordance with law by the Authority after affording opportunity of hearing as contemplated by S.3 subsection (6-a) of the Punjab Maintenance of Public Order Ordinance, 1960. The said provision of law empowers the Authority even to rescind the order. High Court observed that let representation be filed by the petitioner which will be heard, considered and disposed of in accordance with law by the respondent within seven days of its filing.

Muhammad Siddiq Khan v. District Magistrate PLD 1992 Lah. 140 and Sheikh Rashid Ahmad v. D.M. Rawalpindi and others PLJ 2004 Lah. 1221 fol.

Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14; Mir Abdul Baqi Baluch v. The Government of Pakistan through the Cabinet Secretary, Rawalpindi and others PLD 1968 SC 313; Malik Ghulam Jilani v. The Government of West Pakistan through the Home Secretary, Lahore and others PLD 1967 SC 373; Muhammad Igbfi v. District Magistrate 1989 PCr.L.J 412; Muhammad Abobakar v. Government of Sindh and others NLR 1992 CLJ 18; Maulvi Farid Ahmed v. Government of West Pakistan PLD 1965 (W.P) Lah. 135; Abdul Hamid Khan v. The District Magistrate, Larkana and 2 others PLD 1973 Kar. 344; Mrs. Amatul Jalil Khawaja v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad and 3 others PLD 2003 Lah. 310; Sheikh Rashid Ahmad v. D.M. Rawalpindi and others PLJ 2004 Lahore 1221 (FB); Maulana Muhammad Azam Tariq v. District Magistrate, Jhang and 2 others 2001 PCr.LJ 1727; Muhammad Siddiq Khan v. District Magistrate PLD 1992 Lah. 140; Wealth Tax Officer and another v. Shaukat Afzal and 4 others 1993 SCMR 1810; Mrs. Ferzana Kamran v. District Magistrate Gujrat and 2 others 1992 PCr.LJ 2336; Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Mrs. Amatual Jalil Khawaja and others PLD 2003 SC 442 and The Province of East Pakistan and others v. Sirajul Haq Patwari and others PLD 1966 SC 854 ref.

Maulvi Farid Ahmad v. Government of West Pakistan PLD 1965 (W.P.). Lah. 135 overruled by Muhammad Siddiq Khan v. District Magistrate PLD 1992 Lah. 140.

(b) Precedent---

----View taken by Full Bench of the High Court---Binding effect---Held, so long as the view taken by the Full Bench of same High Court held field, no other view was possible except to follow the same---High Court being charged with the high function of interpreting and pronouncing upon the validity of laws, and being thus itself a source of law, it should avoid giving a decision directly inconsistent with that given by itself earlier.

The Province of East Pakistan and others v. Sirajul Haq, Patwari and others PLD 1966 SC 854 fol.

Dr. Farooq Hassan, Hafiz Abdul Rehman Ansari and Ghulam Rasool Bhatti for Petitioners.

Muhammad Hanif Khatana, Addl. A.-G. Punjab, for Respondent.

Dates of hearing: 6th, 7th, 8th March,2006.

P L D 2006 Lahore 280

Before Ali Nawaz Chowhan, J

MUHAMMAD SHAHBAZ---Petitioner

Versus

STATION HOUSE OFFICER and others---Respondents

Writ Petition No. 14914 of 2003, heard on 24th February, 2004.

Punjab Prevention of Gambling Ordinance (VII of 1978)---

----Ss.5 & 8---Penal Code (XLV of 1860), S.216---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R.----Investigating Officer, after having learnt about the presence of the proclaimed offenders in a house within his jurisdiction, formed a raiding party for their arrest and entered that house, where he found the accused busy in gambling and registered a case against them vide the impugned F.I.R.---Police while ingressing in a house for catching hold of proclaimed offenders about to escape could not act beyond that while taking cognizance of a matter which was forbidden for police until a cognizance was taken with the intervention of a Magistrate, who could not even otherwise delegate those powers to police as per S.8 of the Punjab Prevention of Gambling Ordinance, 1978---Story of the police that they went to apprehend proclaimed offenders was even otherwise belied by the fact that no proclaimed offender had been arrested which had given rise to a presumption that the intention of the police was otherwise and not for apprehending the proclaimed offenders---Provisions of law could not be allowed to get frustrated on basis of lame excuses---Action of police was bad and illegal at its very genesis---F.I..R., thus, had no status in law and the same was quashed accordingly.

Qayyutn Nawaz v. The State PLD 2002 Pesh. 34; Siddiqui Ullah v. The State PLD 2003 Pesh. 77; Tariq Mehmood But v. D.P.O. and others W.P. No.2664 of 2004 and Muhammad Iqbal v. S.S.P. Operation and others W.P. No.7100 of 2004 ref.

Saif-ul-Malook for Petitioner.

Ch. Khurshid Anwar Bhinder, Addl. A.-G. and M. Ramzan, A.S.-I, for Respondents.

Date of hearing: 24th February, 2006.

P L D 2006 Lahore 283

Before Muhammad Muzammal Khan and Syed Shabbar Roza Rizvi, JJ

Mst. REHANA BASHIR---Petitioner

Versus

Mst. BADAR JEHAN and 6 others---Respondents

Review Petition No. 1-C of 1994 in R.S.A. No.63 of 1991, decided on 24th February, 2006.

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

----Ss.12 & 42---Civil Procedure Code (V of 1908), S.114, O.VI, R.17 & O.XLVII, R.1---Review---Nature of suit, amendment of---Converting suit for declaration into one for specific performance of agreement to sell---Claim of plaintiff was that she had entered into agreement to sell and paid full consideration amount and received possession but due to the death of the owner his legal heirs interfered into her possession---Declaratory suit filed by plaintiff was dismissed being not maintainable---Appeals before Appellate Court as well as before High Court were also dismissed on the same ground---Review of the judgment passed by High Court was sought on the ground that if declaratory suit was not maintainable, the Court could have converted same into one for specific performance of agreement to sell---Validity---Suit for declaration could have been converted into one for specific performance if the same was made out from substance in the plaint, with the leave of the Court under O.VI, R.17, C.P.C., in case such conversion/amendment did not alter the cause of action or the nature of the suit---Plaintiff, who with due deliberations, insisted on decision of her suit, in the form filed before the Court cognizant of it, should not have itself directed the plaintiff to amend the plaint---Plaintiff did not opt to pray for amendment before Trial Court, Appellate Court or before High Court during hearing of appeals, thus such prayer could not be. granted in review jurisdiction---In suo motu jurisdiction, such exercise was not permissible in view of S.114 and O. XLVII, R.1, C.P.G. permitting review on discovery of new and important matter/evidence which was not within the knowledge of plaintiff or could not be procured at the time of decision or on account of some mistake or error apparent on the face of the record but none of such pre-requisites were made out by the plaintiff---High Court, in exercise of review jurisdiction, declined to interfere with the judgment and decree passed in appeal---Review application was dismissed in circumstances.

S. Sibtain Fazli v. Star Films Distributors PLD 1964 SC 337 distinguished.

Ram Asra and another v. Ullah Jawava and another AIR 1931 Lah. 595 and Mst. Khudeja v. Jehangir Khan and 37 others 1971 SCMR 395 rel.

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

----Ss.12 & 42---Suit for declaration and specific performance of agreement to sell---Distinction---Nature/character of both the plaints, one for declaration and the other for specific performance, are altogether opposed to each other---In suit for declaration, plaintiff has to make out his title as per S.8 of Specific Relief Act, 1877, by claiming that he be declared to be owner of suit property, whereas in the suit for specific performance, plaintiff has to assert his own readiness/willingness to perform his part of contract and failure of his adversary to do the needful within the time specified---Elements of suit for specific performance unless are pleaded, the plaint cannot see its success.

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

----O. VI, R. 17---Amendment of pleadings---Powers of Court---Scope---Courts, under O.VI, R. 17, C.P.C., are not equipped with any power to allow vague/unspecified amendments of pleadings, without looking at the proposed amendments and that too in suo motu powers, taking away rights of other contestants to oppose the same---In certain situations, Courts have inherent powers to allow amendments in pleadings but those should be of the nature of clerical/typographical mistakes, not resulting in change of nature/character of the suit---Misdescription of parties or properties in dispute can be allowed to be corrected through such powers.

Shuja-ul-Mulk v. Firm Abdul Ghafoor Abdul Qadim PLD 1964 Pesh. 110, Karim Dad v. Arif Ali and another PLD 1978 Lah. 679, Irfan Iqbal and 2 others v. Ch. Muhammad Hanif and 4 others PLD 1985 Lah. 523 and Muhammad Salem and another v. Mst. Zarina Begum and 4 others 1996 MLD 1959 rel.

A.K. Dogar for Petitioner.

Dr. Mohy-ud-Din Qazi for Respondents.

Date of hearing: 16th January, 2006.

P L D 2006 Lahore 290

Before Ali Nawaz Chowhan and M.A. Shahid Siddiqui, JJ

ATTA ULLAH---Petitioner

Versus

GHULAM RASOOL and others---Respondents

Writ Petition No. 7184 of 2002, decided on 21st February, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 410, 417(2-A) & 439---Anti-Terrorism Act (XXVII of 1997), Ss.25 & 32---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appellate, revisional and visitorial jurisdiction of High Court---Scope---High Court could hear appeals not only filed by the prosecutors, but also filed by victims, legal heirs and by private aggrieved persons--High Court having control and suaerintendence over the Courts below, it could also exercise visitorial jurisdiction in respect of matters which did not fall under ambit of appeals---High Court could exercise visitorial power and could exercise revisionaf jurisdiction in respect of Courts below in cases where appeal or leave to appeal, were not to be tiled---Petition for leave to appeal could be filed by an aggrieved person against an order of acquittal passed by Anti-Terrorism Court before High Court within the timeframe as prescribed and "aggrieved person" would include the victim, his. legal heirs or private complainant---High Court had the visitorial powers over Anti-Terrorist Courts and could entertain petitions in the nature of those as covered by S.439, Cr.P.C.---Law was so declared and constitutional petition was disposed of accordingly.

Maharani Ali's case (1998 SCMR 1156 and Girdhar Lal and another v. State AIR 1952 Allahabad 787 ref.

Muhammad Asghar Rokhari for Petitioner.

Khurshid Anwar Bhinder, A. A.-G. for Respondent.

P L D 2006 Lahore 296

Before Umar Ata Bandial, J

MUHAMMAD---Petitioner

Versus

AMEER and others---Respondents

Civil Revision No. 1702 of 1986, heard on 7th March, 2006.

Punjab Pre-emption Act (IX of 1991)---

----Ss. 15 & 5---Pre-emption right, waiver of---Execution of document containing an undertaking by plaintiffs not to file claims for pre-emption against sale transactions of land made by either side---Only one out of seven plaintiffs had challenged the judgment of appellate Court before the High Court, wherein it was found that suit for pre-emption in circumstances, was not maintainable---Validity---Execution of document was admitted by the plaintiffs in written statement---Such agreement could not be lightly brushed aside---Agreement, taken upon its terms, constituted a disclaimer from challenge by pre-emption to any sale transaction arrived at in respect of the property by either party to the agreement---Express disclaimer by the plaintiff constituted a relinquishment of his right to pre-empt---Undertaking by the plaintiff had not merely raised an inference by conduct but amounted to a promise to forego the right to pre-empt---Bar, therefore, was both express and enforceable and agreement signed by the plaintiff foreclosed his right of pre-emption claimed in the suit---Suit for pre-emption, held, was not maintainable in circumstances.

Baqri and 4 others v. Salehon and 3 others PLD 1172 SC 133; Abdul Rashid v. Bashiran and another 1996 SCMR 808 and House Building Finance Corporation v. Shahinshah Humayun Cooperative House Building Society and others 1992 SCMR 19 ref.

Imrana Parveen Baloch for Petitioner.

Mian Muhammad Ayub for Respondents.

Date of hearing: 7th March, 2006.

P L D 2006 Lahore 298

Before Syed Zahid Hussain, J

NADIR ALI---Petitioner

Versus

SECRETARY, REGIONAL TRANSPORT AUTHORITY, FAISALABAD and another---Respondents

Writ Petition No.2084 of 2006, decided on 30th March, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil suit qua same subject-matter and cause of action pending between parties---Non-disclosure of such suit in constitutional petition---Withdrawal of suit after filing of constitutional petition---Effect---Constitutional petition would be entertained despite pendency of suit, where suit was stated/disclosed not to be adequate remedy in the context of controversy---Constitutional petition would fall within the realm of equitable and discretionary jurisdiction, wherein conduct of petitioner would assume significant importance---Petitioner was guilty of suppression of material facts and information from High Court---No indulgence could be shown to petitioner nor his such conduct could be condoned, rather he was liable to be burdened with cost/penalty---High Court dismissed constitutional petition with costs of Rs.10,000.

M.D. Tahir, Advocate.

Aamir Rehman, Addl. A.-G., Punjab with Rai Allah Ditta, Inspector Traffic, Faisalabad.

P L D 2006 Lahore 300

Before Muhammad Muzammal Khan and Syed Shabbar Raza Rizvi, JJ

MUHAMMAD SHAFIQ QURESHI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.113-B of 2006, decided on 9th March, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, refusal of---Quantity of the contraband recovered from the accused would determine the punishment of the offence and not the percentage of the same as worked out by the Chemical Examiner and mentioned by him in his report---Calculation of percentage was to be made in liquid preparations according to S.3 of the Control of Narcotic Substances Act, 1997---Contraband recovered from the accused being not in liquid form, its percentage mentioned in the Chemical Examiner's Report was not relevant and his case would not fall under S.9(b) of the said Act---Similarly S.18 of the Act had provided that quality of the contraband recovered would only be looked into while assessing quantum of fine at the time of decision of the case---Seven kilograms "Charas" and two kilograms Heroin was recovered from the accused, which offence was covered by S.9(c) of the Control of Narcotic Substances Act, 1997, and fell within the prohibitory clause of S.497(1), Cr.P.C.---None of the members of the raiding party had any enmity or malice against the accused for his false involvement in the case---Sufficient incriminating material connecting the accused with the crime had been collected by the prosecution---Trial of the case had already commenced---Bail was declined to accused in circumstances.

Muhammad Amin K. Jan for Petitioner.

Mirza Viqas Rauf for the State.

P L D 2006 Lahore 302

Before Umar Ata Bandial, J

JEHAN KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.143/B of 2006, decided on 22nd February, 2006.

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

----S. 497---Penal Code (XLV of 1860), S.489-F---Bail, refusal of---Grant of concession of bail in non-bailable offences being discretionary, the same could not be demanded as of right---Accused was allegedly involved in the commission of a series of identical crimes under S.489-F, P.P.C. which had stigmatized him with habituality weighing against grant of bail---Admission of guilt by the accused was also an exceptional circumstance which together with element of fraud inherent to the offence, had made the case utterly unsuitable for the grant of bail to him---Bail was refused to accused in circumstances.

Muhammad Siddiqui v. Imtiaz Begum and 2 others 2002 SCMR 442; Imtiaz Ahmed v. The State PLD 1997 SC 545; Unilever Pakistan Ltd. v. Muhammad Rafique and another 2005 YLR 686 and Lal Hussain v. Muhammad Akber and 2 others 1995 PCr.LJ 946 rel.

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

----S. 497---Bail, grant or refusal of---Principles---Bail in non-bailable offences is discretionary and cannot be demanded as of right.

Muhammad Siddiqui v. Imtiaz Begum and 2 others 2002 SCMR 442 and Imtiaz Ahmed V. The State PLD 1997 SC 545 ref.

Qazi Muhammad Amin for Petitioner.

Ajmal Zaidi for the State.

Kh. Khalid Farooq for the State.

Muhammad Ashraf, S.I. with record.

P L D 2006 Lahore 304

Before Syed Shabbar Roza Rizvi, J

FOZIA SHABBIR---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, LAHORE and 8 others---Respondents

Writ Petition No.1343 of 2006, decided on 28th March, 2006.

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S. 11---Criminal Procedure Code (V of 1898), S.164---Constitution of Pakistan (1973), Art.199---Constitutional petition---Refusal by the Magistrate to record second statement of petitioner under S.164, Cr.P.C.---Validity---Neither the Magistrate nor the Sessions Court had advanced any cogent reason for refusing to record second statement of the petitioner abductee under S.164, Cr.P.C.---Section 164, Cr.P.C. did not bar the recording of the statement of a person, if the same already stood recorded---For validity or genuineness of a statement under 5.164, Cr.P.C. the first and foremost condition was that it should be freely recorded---According to the abductee she was in the custody of her abductors at the time of recording her first statement and was forced to make a statement which favoured them---Abductee, therefore, could not be treated as a free agent and the first statement made by her was not voluntary---Section 164, Cr.P.C. did not expressly or impliedly prohibit recording of statement second time---Impugned orders were consequently set aside with the direction to Magistrate to record the statement of the petitioner under S.164, Cr.P.C. as contemplated under the law, if she so desired---Constitutional petition was allowed accordingly.

PLD 1984 Lah. 424 and W.P.No.4869 of 2004 ref.

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

----S. 164---Power to record statements and confessions---Second statement, recording of---Section 164, Cr.P.C. does not expressly , or impliedly prohibit recording of statement for second time.

PLD 1984 Lah. 424 and W.P.No.4869 of 2004 ref.

Maqsood Buttar for Petitioner.

Naveed Inayat Malik for Respondents.

P L D 2006 Lahore 307

Before Muhammad Muzammal Khan, J

MUHAMMAD ARSHAD---Petitioner

Versus

TOWN MUNICIPAL ADMINISTRATION, NISHTAR TOWN, LAHORE through Nazim and another---Respondents

Writ Petition No.9945, of 2005, decided on 24th March, 2006.

Stamp Act (II of 1899)---

----Sched. I, Art. 5(ccc) [as amended]---Punjab Local Government Ordinance (XIII of 2001), S.180 & Second Schedule, Part-IV---Punjab Local Government (Auction of Collection Rights) Rules, 2003, R.18(3)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Stamp duty payable to the "local council" as per Art.5 (ccc) of Sched. I of the Stamp Act, 1899 (as amended), could be recovered by "Tehsil Municipal Administration" and the same cannot be avoided solely on the ground that no corresponding amendment in this provision of law has been made by substituting "Tehsil Municipal Administration" in place of "local council"---To all intents and purposes "Tehsil Municipal Administration" is the successor of "local council" and can lawfully recover the fees, debts and other dues payable by the contractors.

Muhammad Asadullah Siddiqui for Petitioner.

Ch. Muhammad Sadiq; Additional Advocate-General.

P L D 2006 Lahore 309

Before Ch. Ijaz Ahmad, J

Sardar RIAZ AHMAD KHAN---Petitioner\Defendant

Versus

GHULAM SHABIR MALIK---Respondent/Plaintiff

Civil Revision No.2161 of 2004, decided on 6th October, 2004.

Lahore High Court (Establishment of Benches) Rules, 1981---

----Rr. 5, 6 & 11---Constitution of Pakistan (1973), Art.202---Civil Procedure Code (V of 1908), S.115---Revision against interim order passed by Civil Judge, Islamabad---Filing of such revision at principal seat of High Court at Lahore---Validity---All matters arising out of the area assigned to a Bench would be filed before and disposed of by such Bench---Subject-matter of revision arose within the area assigned to Rawalpindi Bench, which could not directly be entertained at principal seat at Lahore---Revision petition was returned to petitioner for its filing before Rawalpindi Bench.

Mian Muhammad Nawaz Sharif v. Sardar Farooq Ahmad Khan Leghari PLD 1996 Lah. 92 fol.

Waheed Corporation Registered v. Capital Development Authority, Islamabad 1998 PTD 3863 and (unreported Judgment dated 26-2-2002) in F.A.O. No.308 of 1999 distinguished.

Mirza Hafeez-ur-Rehman for Petitioner.

P L D 2006 Lahore 311

Before Muhammad Muzammal Khan, J

YASMEEN QURESHI---Petitioner

Versus

TARIQ QURESHI and 2 others---Respondents

Writ Petition No.18983 of 2004, decided on 22nd March, 2006.

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

---Ss. 8 & 42---Civil Procedure Code (V of 1908), Ss.11, 12(2), O.II, R.2, O.VII, R. 11 & O.XX, R.13---Qanun-e-Shahadat (10 of 1984), Art.114---Suit for possession through declaration of property left by deceased---Rejection of plaint---Filing of such fresh suit after disposal of administration suit on basis of compromise between parties---Plea of plaintiff in fresh suit was as to non-disclosure of suit property in earlier administration suit---Validity---Suit property was not owned by deceased at the time of his death as same stood transferred in favour of his brother---Fresh suit on basis of same cause of action would not only be hit by provisions of O.II, R.2, read with S.11, C.P.C. but principle of estoppel would attract thereto---Plaintiff in presence of decree passed in administration suit was debarred from maintaining fresh suit, which was hit by provision of S.12(2), C.P.C.---Plaint in fresh suit did not disclose cause of action, which was rejected in circumstances.

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

----O. XX, R. 13---Partition Act (IV of 1893), S.2---Administration suit--Like suit for partition of joint properties or succession of assets of deceased, only one suit for administration of estate of propositus would be competent.

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

---O. VII, R.11---Rejection of plaint---Object of---Fruitless/incompetent litigation should be buried at its inception to avoid wastage of time of Courts and parties.

Haji Allah Bakhsh v. Abdul Rehman and others 1995 SCMR 459 and S.M. Shafi Ahmed Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs 2002 SCMR 338 rel.

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

----Art. 199---Civil Procedure Code (V of 1908), S.115---Constitutional petition---Lawful decisions within ambit of conferred jurisdiction could not be substituted in constitutional jurisdiction.

?

Nadeem Ahmed Sheikh for Petitioner.

Kh. Saeed-uz-Zafar for Respondent No. 1.

Mian Muhammad Qamar-uz-Zaman for Respondent No.2.

P L D 2006 Lahore 314

Before Syed Zahid Hussain, J

WATER AND POWER DEVELOPMENT AUTHORITY, WAPDA HOUSE, LAHORE through Chairman and another---Appellants

Versus

Messrs GHULAM RASUL AND COMPANY (PVT.) LTD., LAHORE through Attorney and 3 others---Respondents

F.A.O. 185 of 2004, decided on 5th April, 2006.

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

----S. 30---Award, setting aside of---Grounds---Delay in pronouncement of award---Principle of waiver---Applicability---Award was sought to be set aside on the ground that the same was rendered beyond four months time, therefore, it was invalid---Validity---Both sides had continued to take part in the proceedings before arbitrator and did not raise any objection to continuation of proceedings beyond the period of four months---Such conduct of parties amounted to waiver and acquiescence---Objection was repelled in circumstances.

WAPDA and others v. Messrs Khanzada Muhammad Abdul Haque Khan Khattak and Co. PLD 1990 SC 359 rel.

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

----S. 30---Objections to award---Duty of Court---Scope---While considering objections on award, Court is not supposed to sit as a Court of appeal over the award rendered by arbitrator and is expected to lean as far as possible in favour of upholding the award.

Zakaullah Khan v. Government of Pakistan through Secretary Buildings and Roads Department, Lahore PLD 1998 Lah. 132 rel.

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

----Ss.17, 30 & 39---Appeal---Misconduct, allegation of---Proof---Award rendered by arbitrators was made rule of the Court---Appellant sought the award to be set aside on the allegation of misconduct---Validity---Arbitrators had attended and adverted to all aspects of the matter, while considering respective stances of the parties before rendering the award, which contained adequate reasoning for their conclusions---Mere bald assertion that arbitrators committed misconduct, could not be entertained without there being any cogent evidence and proof, to that effect---Appellant failed to produce any evidence worthy of credence, in support of objections to the award---High Court in exercise of appellate jurisdiction, declined to interfere with the order passed by Trial Court---Appeal was dismissed accordingly.

Ghulam Abbas v. Trustees of the Port of Karachi PLD 1987 SC 393; Ghasilal Todi v. Biswanath Kerwal and others AIR 1964 Cal. 466; Messrs Bombay Ammonia Pvt. Ltd. v. Union of India AIR 1987 Delhi 148; Kuldip Kumar Suri v. Delhi Development Authority and others AIR 1995 Delhi 82 and Ashfaq Ali Qureshi v. Municipal Corporation, Multan and another 1985 SCMR 597 ref.

Lahore Development Authority v. Messrs Khalid Javed & Co. 1983 SCMR 718 rel.

Khalil Ahmad Khan for Appellants.

Riaz Karim Qureshi and Muhammad Ghiasul Haq for Respondents.

Date of hearing: 5th April, 2006.

P L D 2006 Lahore 318

Before Mian Saqib Nisar, J

FAZAL ELAHI---Petitioner

Versus

NOOR AHMED and 2 others---Respondents

Writ Petition No.6953 of 2005, decided on 27th March, 2006.

(a) Words and phrases---

----"Of", "from" or "after"---Applicability---Expressions/words of'from' or `after' are interchangeable and analogous terms, which have been used by legislature in different statutes but signifying the same meaning.

Black's Law Dictionary 6th Edn., p.1080 and Chambers Concise, 20th Century Dictionary, p.671 ref.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 24--West Pakistan General Clauses Act (VI of 1956), S.8---Expression "of" as appearing in first proviso to S.24 of Punjab Pre-emption Act, 1991---Effect---When word "of" is construed in its proper context, as used in the proviso, it means that 30 days time has to be reckoned after the day of the institution of the suit---Such interpretation of word "of" is. in consonance with the provisions of S.8 of West Pakistan General Clauses Act, 1956.

(c) West Pakistan General Clauses Act (VI of 1956)---

----S. 8---Days, computation of---Principles---First day in the series of days providing a particular period for doing the same act or performing a duty, has to be excluded.

(d) Punjab Pre-emption Act (IX of 1991)---

----S. 24---Constitution of Pakistan (1973), Art.199---Constitutional petition---Pre-emption suit---Computation of thirty days time---Suit filed by pre-emptor was concurrently dismissed by Trial Court and Appellate Court for the reason that Zar-e-Soem was deposited on the 31st day of filing of the suit---Plea raised by pre-emptor was that the first day when the suit was filed, had to be excluded in computing the 30 days time---Validity---Day on which the order was passed by Trial Court directing the pre-emptor to make deposit should be excluded thus by exclusion thereof, the deposit made by pre-emptor would be within 30 days time---No delinquency and default could be attributed to pre-emptor, therefore, dismissal of the suit by Trial Court for non-compliance of deposit of Zar­e-Soem was illegal and without jurisdiction---Judgments and decrees passed by both the Courts below were set aside---Petition was allowed in circumstances.

Muhammad Jehangir v. Muhammad Abbas and 2 others 2004 CLC 538; Malik Aman v. Mst. Bibi Amraizan PLD 1986 Pesh. 58; Ghulam Hassan and others v. Jamshaid Ali and others 2001 SCMR 1001 and Muhammad Jahangir v. Muhammad Abbas and 2 others 2004 CLC 538 ref.

Ghulam Mustafa Khan v. Ashiq Hussain and others 2003 CLC 1661 and Imran Ahmed and another v. The District Judge, Dera Ghazi Khan and 2 others 2003 CLC 1597 fol.

Ch. M. Lehrasib Khan Gondal for Petitioner.

Saleem Akram Chaudhry for Respondents.

Date of hearing: 27th March, 2006.

P L D 2006 Lahore 322

Before Syed Hamid Ali Shah, J

Khan MUHAMMAD KHAN through Legal Heirs---Petitioner

Versus

MEMBER (JUDICIAL-I), BOARD OF REVENUE PUNJAB, LAHORE and 5 others---Respondents

Writ Petition No.1426 of 2005,decided on 15th March, 2006.

(a) Review---

----Right of---Substantive right always created by Statute---Principles.

Review is a substantive right and is always a creation of the relevant statute on the subject. Power of review is available or can be exercised only when the statute expressly bestows such powers. This jurisdiction cannot be exercised when it is not specifically provided and the Court cannot grant relief by invoking the inherent powers on the assumption that the review, in fact, is the continuation of the proceedings.

Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94 rel.

(b) West Pakistan Board of Revenue Act (XI of 1957)---

----S. 8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Second review---Second review application before Board of Revenue after dismissal of first review application being time-barred---Validity---No new material was placed at the time of second review---Board of Revenue had entertained second review while ignoring the period of limitation prescribed by law---Order passed on first review application had attained finality for not being challenged before any other forum---No provision existed in law to allow second review---Order passed in second review application was without lawful authority and in excess of jurisdiction---High Court accepted constitutional petition and set aside impugned order.

Ghulam Muhammad v. Member, (Judicial-III), Board of Revenue Punjab, Lahore 2005 CLC 1512; Mst. Noor Begum and others v. Member, Board of Revenue and others 1989 SCMR 285 and Fazal Hussain v. Walidad Khan and 22 others 1996 CLC 1907 ref.

Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94 and Province of Punjab v. Muhammad Akram 2004 YLR 915 rel.

(c) West Pakistan Board of Revenue Act (XI of 1957)---

----S. 8---Second review application before Board of Revenue not competent.

Province of Punjab v. Muhammad Akram 2004 YLR 915 rel.

Zia Ullah Khan Niazi for Petitioner.

Nemo for Respondent No. 1.

Malik Noor Muhammad Awan for Respondents Nos.3 to 6.

Date of hearing: 7th October, 2005.

P L D 2006 Lahore 326

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD ASGHAR---Petitioner

Versus

THE STATE---Respondent

Writ Petition No.1556 of 2006, decided on 6th April, 2006.

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

----Art. 199---Constitutional jurisdiction of High Court---Objects and scope.

The Constitution of Pakistan is basically a document which provides a system for the country under which it is governed. It also demarcates functions of different Organs of the State. In scheme of the Constitution, people of Pakistan have also been provided legal and fundamental rights. Article 184(3) and Article 199 of the Constitution are provided in the Constitution basically to protect those rights and to take a judicial notice if those are violated by any person; person is defined in clause (5) of Article 199 itself. Article 199 is not meant to usurp the jurisdiction of other constitutional and Statutory organs of the State. It is also not meant to render all other laws redundant. It is also not enacted to affect adversely the administration and running of statutory bodies and departments i.e. Police etc. High Court has been empowered to intervene under Article 199 of the Constitution in a matter in which no legal remedy is provided to address grievance of any aggrieved party/person within its territorial jurisdiction. This jurisdiction is also available when the remedies available under the law have been exhausted but still petitioner's grievance remains unresolved and the High Court is satisfied about genuineness of the grievance.

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

----Art. 199---Constitutional petition seeking quashment of F.I.R. was not a purpose of Art.199 of the Constitution---High Court can only be approached when the concerned police authorities, under the concerned law, fail to perform their statutory functions or exceed their jurisdiction, but not after registration of F.I.R.---High Court urged the Bar to check such misconceived and unfounded litigation which. not only wastes precious public/Court time and also increases pendency of cases---Principles.

There is an increased trend that whenever an F.I.R. is, registered, the accused persons rush to the High Court for quashment of the same, and invoke Article 199 of the Constitution. Code of Criminal Procedure, Police Rules, 1934 and now Police Order, 2002 provide a scheme to get the relief in such like situation; a police hierarchy is also provided under these laws. Investigation is a statutory function and duty of the police. High Court is not assigned a role of superior investigator. High Court can only be approached when the concerned police authorities, under the concerned law, fail to perform `their statutory functions or exceed their jurisdiction, but not immediately after registration of F.I.R. There are cases where within days, even before start of investigation, writ petitions for quashment of F.I.R. are filed. This is not a purpose of Article 199 of the Constitution.

The Bar is there to represent their clients as well as to assist the Courts honestly and devotedly. But if they involve the Courts in frivolous cases or petty matters, which can be resolved otherwise, that distracts Courts from substantial work like criminal/civil appeals and constitutional issues, etc. Misconceived and unfounded litigation not only wastes precious public/Court time, it also increases pendency of cases. High Court is an apex constitutional and Appellate Court Within the Province and its basic role is to decide appeals and constitutional issues within reasonable time. Because justice delayed is justice denied. Therefore, all the stakeholders are advised to let the High Court focus on its real role and job.

High Court directed the petitioner seeking quashment of F.I.R. to contact S.P. Investigation who is under a statutory obligation to ensure that fair play is done with the parties, at his level and if the grievance of the petitioner is found correct, the same be rectified. The petitioner is directed to furnish a copy of present order to the S.P. Investigation.

Tahir Mehmood for Petitioner.

P L D 2006 Lahore 329

Before Syed Zahid Hussain, J

IRFAN AHMAD KHAN and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.3042 of 2006, decided on 14th April, 2006.

West Pakistan Government Lands and Buildings (Recovery of Possession) Ordinance (IX of 1966)------

----S. 5---Constitution of Pakistan (1973), Arts.4 & 199---Constitutional petition---Right of individuals to be dealt with in accordance with law---Petitioners, claiming to be the occupants of shops on the basis of purported tenancy agreements in their favour by the Authorities were aggrieved of the sealing of the said shops by and at the instance of Authorities and filed constitutional petition for a direction from the High Court to de-seal the said shops---Contention of the petitioners was that there was no law authorizing the sealing of the shops in the manner the same had been done by the Authorities, who could at the most invoke the provisions of S.5 of West Pakistan Government Lands and Buildings (Recovery of Possession) Ordinance, 1966, which provided that for the eviction of unauthorized occupants an order in writing was to be made directing such person to vacate the land/building within the specified period failing which the process for recovery of possession envisaged by S.5(2) of the Ordinance was invocable---Such procedure however, was not adopted by the Authorities---Authorities did not seem to be conscious of the same---Held, to enjoy the protection of law and to be treated in accordance with law was the inalienable right of every citizen as was enshrined in Art.4 of the Constitution---Occupation of the petitioners of the shops was admitted, thus any action depriving them of the use or occupation thereof must have the backing of contemporaneous law otherwise action would be wholly unwarranted by law and indeed violative of the provisions of Art.4 of the Constitution---Sealing of shops by and at the instance of the Authorities was wholly unwarranted which could not be countenanced---High Court declared the action of sealing of the shops as illegal and without lawful authority and Authorities were directed to de-seal the shops forthwith---High Court observed that order of the Court would not impede or deter the Authorities from proceedings in the matter in accordance with law.

Muhammad Shahzad Shaukat for Petitioners.

Umar Sharif, Advocate/Standing Counsel for Pakistan Railways, Faisal Khan AEN/DS Workshop and Mehtab Hashim Head Workshop Pakistan Railways for Respondents.

Date of hearing: 14th April, 2006.

P L D 2006 Lahore 332

Before Syed Zahid Hussain, J

MUHAMMAD HAYAT and another---Petitioners

Versus

MEMBER, BOARD OF REVENUE and others---Respondents

Writ Petition No.11062 of 2004, decided on 13th April, 2006.

Constitution of Pakistan (1973)---

----Arts. 189 & 190---Judgment of the Supreme Court incorporating the consensual arrangement between the parties---Binding effect of---Not only the parties, but all the functionaries in view of Arts.189 & 190 of the Constitution, are bound by the judgment of the Supreme Court which has to be kept in view and action in that respect should be in conformity with the same---No deviation whatsoever therefrom can be made by anyone---Statutory functionaries (the official respondents) while carrying out their statutory functions will act strictly in accordance with the judgment of the Supreme Court and implement the same faithfully.

Syed Muhammad Kaleem Ahmed Khurshid for Petitioners.

Syed Iftikhar Hussain Shah, Awan Muhammad Hanif Khan and Ch. Aamer Rehman, Addl. A.-G. Punjab for Respondents.

Date of hearing: 13th April, 2006.

P L D 2006 Lahore 335

Before Syed Shabbar Roza Rizvi, J

SHAH MUHAMMAD and others---Petitioners

Versus

THE STATE---Respondents

Writ Petition No.2231 of 2004, decided on 12th April, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 345 & 265---Penal Code (XLV of 1860), Ss.302, 452, 354-A, 337-A, 148 & 149---Constitution of Pakistan (1973), Art.199---Constitutional petition---Plea of compromise---Refusal of Sessions Judge to accept application of the petitioners filed under S.265-K, Cr.P.C. and deciding to proceed with the trial on the ground that no compromise was effected between the accused persons and all the legal heirs of the deceased as except one, the others were not party to the said compromise---Validity---High Court dismissed the constitutional petition and directed the Trial Court to proceed with the trial in accordance with law.

Akhtar Mehmood Khan for Petitioners.

Khan Wajid Nawaz Khan for the Complainant.

P L D 2006 Lahore 339

Before Sheikh Azmat Saeed, J

REHMAT PETROLEUM SERVICE through Proprietor---Petitioner

Versus

PUBLIC-AT-LARGE and 28 others---Respondents

Writ Petition No.1011 of 2006, heard on 1st March, 2006.

(a) Disposal of Land by Development Authorities (Regulation) Act (XII of 1998)---

----S. 3(2)---Punjab Commercialization of Properties Rules, 2001---Constitution of Pakistan (1973), Art.199---Constitutional petition---No Objection Certificate for establishing CNG Station on private residential plot, issuance of---Validity---According to Policy of Government, CNG Station could' be established at any site, which was commercial in nature---Petitioner had not alleged that such policy was ultra vires any law or NOC had been issued in violation thereof---Road on which such plots was situate had been declared to be commercial road through a notification, vires whereof were not under challenge before High Court---Petitioner had not alleged that any requirement necessary for completion of commercialization had not been fulfilled by respondent---Such plot (site) was commercial in nature---While allowing conversion of residential plot into commercial, no specific permission for establishment of CNG Station would be necessary---No legal infirmity in issuance of such no objection certificate had been established---High Court dismissed constitutional petition in circumstances.

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

----Art. 18---Right to carry on business, trade or profession---No restriction thereto could be read into the law in the absence of a specific provision in the law regulating or otherwise applicable to such trade, business or profession.

Maqbool Ellahi Malik for Petitioner.

Malik Ahmed Qayyum, Ch. Khalil Ahmed Man, Tanvir Ahmed Sheikh for Respondents Nos.3, 4, 6 and 26.

Gorsi Muhammad Din Chaudhry for Respondent No.21.

Malik Zafar Iqbal, Addl. A.-G. with Secretary Housing.

Date of hearing: 1st March, 2006.

P L D 2006 Lahore 343

Before M. Bilal Khan, J

ABID LATIF---Petitioner/Complainant

Versus

RASHAD SHAHZAD and another---Respondents

Criminal Miscellaneous Cancellation of Bail Nos.5246-CB. 6023-CB of 2005 and 20-CB of 2006, decided on 20th February, 2006.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/324/148/149---Bail, cancellation of---Accused although allegedly armed with a lethal weapon like 222 bore rifle, contented himself with only raising a "Lalkara", which called for further probe qua his culpability under sections 302/324, P.P.C. as also his vicarious liability under 5.149, P.P.C.---While leaving the place of occurrence after the transaction the said accused had also allegedly indulged in ineffective firing along with other accused---Role attributed to co-accused was that he had caused a fire-arm injury on the left arm near the shoulder of a prosecution witness, who was not named in the F.I.R. but had only cropped up in the supplementary statement of the complainant---Nature of the said injury was not determined---Discretion exercised by the Sessions Court in granting bail to the accused did not appear to be arbitrary or fanciful so as to call for any interference by High Court---Application for cancellation of bail was dismissed accordingly.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/324/148/149---Bail, cancellation of---Sessions Court had granted bail to the accused heedlessly following the ipsi dixit of the police and without even attempting to acquaint itself as to the damage allegedly caused by them---Five prosecution witnesses had stubbornly clung to the stance taken by the complainant in the F.I.R. fully implicating the accused in the crime---Trial Court instead of confining itself to the tentative assessment of the material available on record had made deeper appreciation of the same and forget to note the conduct of the accused, who had been trying to play fast and loose with the process of the Court and had been eluding the process of law with impunity for a reasonable length of time---Sessions Court, thus, had exercised discretion in allowing bail to accused arbitrarily and fancifully---Bail granted to accused was cancelled in circumstances.

Muhammad Sharif v. Shafqat Hussain alias Shaukat and another 1999 SCMR 338 ref.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/324/148/149---Bail, cancellation of---Principles---No hard and fast rule can be laid down that bail should not be cancelled merely because the trial has commenced or is likely to commence---Possibility cannot be ruled out that there can be cases in which prima facie a person would be entitled to the grant of bail, but during the trial material may come on record to show that he had committed the offence.

Muhammad Sharif v. Shafqat Hussain alias Shaukat and another 1999 SCMR 338 ref.

Hafiz Muhammad Hanif Zafar for Petitioner (in Cr.M.Nos. 5246/CB, 6023/CB-2005 and 20/CB-2006).

Tanveer Hussain for Respondent No.1 (in Cr.M.No.5246/CB of 2005).

M.Akram Qureshi for Respondent No.1 (in Cr.M.No.6023/CB of 2005).

Zia-ud-Din Kasuri for Respondents Nos. land 2 (in Cr.M.No.20-CB of 2006).

Ms. Rukhsana Tabassum for the State with Muhammad Sarwar, S.I.

P L D 2006 Lahore 351

Before Syed Zahid Hussain, J

GHULAM MUHAMMAD through Legal Heirs---Appellants

Versus

ABDUL REHMAN and 11 others---Respondents

Regular Second Appeal No.81 of 1998, heard on 1st March, 2006.

Specific Relief Act (I of 1877)---

----S. 8---Limitation Act (IX of 1908), Arts. 91 & 120---Suit for possession---Limitation---Execution of sale-deed in year 1972 in favour of defendant by "B" in capacity of plaintiff's attorney---Institution of suit in year 1984---Record failed to show that plaintiff had appointed "B" as his attorney---Effect---Where deed/instrument was found to be null and void, then Arts.91 or 120 of Limitation Act, 1908 would not apply---Such sale-deed was null and void---Plaintiff's suit could not be dismissed on ground of limitation for his being owner of suit land---Plaintiff was entitled to decree for possession.

Mst. Hamida Begum v. Mst. Murad Begum and others (PLD 1975 SC 624;Mst. Hamida Begum v. Mst. Murad Begum PLJ 1976 SC 44; Radhu Ram. v. Mohan Singh (AIR 1915 Lah. 200) Unni v. Kunchi Amma (1891) ILR 14 Mad. 26; Mt.Izhar Fatima Bibi v. Mt.Ansar Fatima Bibi AIR 1939 All. 348; Minalal Shadiram v. Kharsetji Jivajishet (1930) ILR 27 Bom. 560; Janki Kunwar v. Ajit Singh (1888) ILR 15 Cal. 58; Govindasamy Pillai v.Ramaswamy Pillai (1909) ILR 32 Mad. 72; Mohant Gyan Prakash Das v.Mt. Dukhan Kuar AIR 1938 Pat. 69; Sh. Ibrar Ahmad v. Mt. Kamni Begum AIR 1938 All. 451; Ramchandra Jivaji Kanago v. Laxam Shrini Vas Naik AIR 1945 PC 54; Malik Atta Ullah and another v. Malik Muhammad Akram Khan and others PLD 1956 (W.P.) Lah. 264; Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1960 (W.P.) Lah. _300; Abdul Rehman v.Abdul Haq and others PLD 1960 (W.P.) Kar. 625; Mst. Izzat v. Allah Ditta PLD 1981 SC 165; Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245 and Muhammad Akbar Shah v. Muhamamd Yusuf Shah and others PLD 1964 SC 329 rel.

Muhammad Bashir v. Mst. Sattar Bibi and another PLD 1995 Lah. 321 and Bashir Ahmad v. Partab 1989 MLD 4314 distinguished.

Khan Khizar Abbas Khan for Appellants.

Ch.Inayat Ullah for Respondents.

Date of hearing: 1st March, 2006.

P L D 2006 Lahore 358

Before Muhammad Muzammal Khan and Syed Shabbar Raza Rizvi, JJ

MAZHAR ALI CHAUDHRY---Petitioner

Versus

WASIM SAJJAD and 4 others---Respondents

Writ Petition No.395 of 2006, heard on 8th March, 2006.

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

----Arts. 59, 219, 225 & 199---Conduct of General Elections Order (7 of 2002), Art.2(d)---Constitutional petition---Maintainability---Selection of Senate---Election of the Senate is election under the Constitution and the natural corollary is that bar contained in Art.225 of the Constitution is fully attracted---Constitutional petition was not maintainable---Principles.

Election of Senate is held under Article 59 of the Constitution to be read with Article 2(d) of the Conduct of General Elections Order, 2002. The Chief Election Commissioner under Article 219 of the Constitution is charged with the duty of organizing and conducting election to the Senate. Therefore, in every sense and manner the election was an election under the Constitution. In other words, election of the Senate is election under the Constitution. The natural corollary of the above is that bar contained in Article 225 of the Constitution is fully attracted. The language of Article 225 is "prohibitory" in nature and expressly worded. It reads that no election to a House or a Provincial Assembly shall be called in question except by an election petition. Therefore, the present writ petition is prohibited and not maintainable.

Writ petition is not maintainable and barred by provisions of Article 225 of the Constitution.

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

----Arts. 59 & 199---Conduct of General Elections Order (7 of' 2002), Art.2(d)---Constitutional petition---Election of Senate---Candidate, an Advocate for the seat of "Technocrat"---Qualifications---To qualify as a "technocrat", an Advocate may not have mastered in a particular subject of law, however, he should be, at least an Advocate of the Supreme Court of Pakistan, and should have some cases reported in law journals to his credit; his record may show that he had been holding any representative office i.e. Member of Pakistan Bar Council, President of High Court Bar Association etc.---Petitioner, in the present case, was neither an Advocate of the Supreme Court nor he had held any representative office of the legal fraternity---Petitioner, in circumstances, was not qualified to contest election of the Senate on the seat of "technocrat" as contemplated under Art.59 of the Constitution bread with Art.2(d) of the Conduct of General Elections Order 2002---Principle.

Maulvi Haji Abdullah and another v. Lived Jabbar, Hassan A. Sheikh (Advocate) and others NLR 1989 TD 138 ref.

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

----Art. 52---Conduct of General Elections Order (7 of 2002), Art.2(d)---Election to the Senate---Seat of "technocrat"---Election Commission of Pakistan has a constitutional obligation to ensure that special category of "technocrats" is represented in the Senate, therefore, Election Commission of Pakistan and the Courts are to ensure that only qualified persons are elected to fulfil the mandate of the Constitution as enshrined in Art.59 of' the Constitution---Principles.

Mian Abdur Rauf, Saleem Zulfigar, Ahmad Hassan and Malik Sardar Khan for Petitioner.

Respondent No.1. (in person).

Mrs. Nahida Mehboob Elahi, Dy. Attorney-General for Respondents.

Date of' hearing: 8th March, 2006.

P L D 2006 Lahore 365

Before Mian Saqib Nisar, J

MUHAMMAD ILYAS---Petitioner

Versus

MUHAMMAD BASHIR---Respondent

Writ Petitions Nos.11211 and 11212 of 2005, heard on 6th February, 2006.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 30---Limitation Act (IX of 1908), Ss.4, 9 to 18, 22 & 29---Civil Procedure Code (V of 1908), O.VII, R.6---Pre-emption suit---Limitation---Irrespective of any eventuality or situation, maximum period of limitation would be four months for cases falling in S.30(a)(b) of Punjab Pre-emption Act, 1991---Such period could be extended, if pre-emptor brought his case within scope and purview of Ss.4, 9 to 18 or 22 of Limitation Act, 1908---Mandatory for pre-emptor, while claiming exemption from limitation to state in plaint, its grounds, without which no structure of proof could be raised---Principles.

According to the bare reading of the section 30 of Punjab Pre-emption Act, 1991, when considered and applied independent of section 31 thereof, it is undoubtedly clear, that the Legislature, in cases falling within the ambit of clauses (a) and (b), has fixed the maximum period of limitation for filing a pre-emption suit as four months, notwithstanding whether the knowledge of the sale has been attained by the pre-emptor or not; whereas according to clause (c), if the physical possession of the pre-empted property is taken under the sale, and the sale has been made otherwise than a registered deed, or by an attestation of the mutation, the time shall commence from the date of the change of physical possession, while clause (d); is the residuary provision which shall be attracted, if the case does not fall within the ambit of clauses (a) to (c). The provisions of section 30 thus, when considered in exclusion of any other section of Act, 1991 then it becomes quite clear and vivid, without any fear of doubt that, irrespective of any eventuality or the situation, the maximum period of limitation provided for the cases falling in clauses (a) and (b) is four months.

Section 29 of Limitation Act, 1908, though being parts of the general law of the land on the subject of limitation, in unambiguous terms enunciates that it shall apply to the special or local laws, until and unless its applicability is expressly excluded. The Act 1991, which is a special law is silent about the exclusion of section 29 of Act, 1908, meaning thereby that plaintiff in a pre-emption suit can take the benefit of it, if he has made out a case squarely falling within the provisions of sections 4, 9 to 18 or 22 mentioned therein. But before a plaintiff of a pre-emption cause can take benefit of said section, he according to O.VII, R.6, C.P.C. has to show and state in the plaint the grounds upon which the exemption from the limitation is claimed; this is mandatory and foundational in nature, without which no structure of proof can be raised. The plaint in the present case is conspicuously lacking in this behalf. Not only that no ground of exemption on the basis of section 18 of the Limitation Act, 1908, which at the most was attracted to plaintiff's case, has been set out, but even it has not been specified as to when the cause of action has risen in his favour. Pre-emptor in the present case was, held, not to have claimed or set out any case for exclusion of time from four months period on any count.

(b) Punjab Pre-emption Act (IX of 1991)---

----Ss. 30 & 31---Limitation Act (IX of 1908), Ss.3 & 18---Civil Procedure Code (V of 1908), O.VII, Rr. 6 & 11(d)---Qanun-e-Shahadat (10 of 1984), Art.129(e)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Pre-emption suit---Sale-deed registered on 10-12-2002---Pre-emptor claimed to have learnt about sale on 19-6-2003 at the time of his dispossession---Suit was filed on 26-6-2003---Application by vendee under O.VII,R.11, C.P.C. seeking rejection of plaint for being time-barred---Pre-emptor in reply to such application pleading non-issuance of notice by Registering Officer in terms of S.31 of Punjab Pre-emption Act, 1991---Trial Court kept the suit pending while dismissing such application on the ground that question of limitation being mixed question of law and facts could be resolved only after framing of issues and recording of evidence---Revisional Court on such grounds dismissed revision petition of vendee---Validity---Irrespective of any eventuality or situation, maximum period of limitation would be four (4) months for cases falling within ambit of S.30(a)(b) of Punjab Pre-emption Act; 1991---Such period could be extended, if pre-emptor brought his case within scope and purview of Ss.4, 9 to 18 or 22 of Limitation Act, 1908---Mandatory for pre-emptor while claiming exemption from limitation to state in plaint its grounds, without which no structure of proof could be raised---Stage for raising such plea in the present case had passed---Presumption of regularity was attached to official acts---Nothing in plaint to controvert such presumption---Vendee had attacked suit on ground of limitation---No probe into any factual aspect of such matter would be required as no controversy on basis of such admitted facts was involved---Trial Court should have decided such application and not have kept the suit pending on such ground---High Court accepted constitutional petition, set aside impugned orders, and remanded case to Trial Court to decide such application in accordance with law.

Mian Asif Islam v. Mian Muhammad Asif and others (PLD 2001 SC 499 and Muhammad Khan v. Muhammad Hussain and 2 others 2002 YLR 1353 ref.

Maulana Nur-ul-Haq v. Ibrahim Khalil 2000 SC1vIR 1305 and Qasim Ali v. Rehmatullah 2005 SCMR 1926 rel

Malik Noor Muhammad Awan for Petitioner.

Zaka-ur-Rehman and Muhammad Afzal Awan for Respondent.

Date of hearing: 6th February, 2006.

P L D 2006 Lahore 371

Before Mian Saqib Nisar, J

Mian MUHAMMAD AMIN and another---Petitioners

Versus

Mst. KHURSHEED BEGUM alias NASEEM BEGUM through Legal Heirs---Respondents

Civil Revision No.575 of 1999, heard on 14th March, 2006.

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

----S. 42---Suit for declaration---Plaintiff lady had claimed to be the owner in possession of the suit property and had challenged the sale-deed in favour of' defendants, primarily on the ground of fraud between defendants, her husband and manager of her husband---Plaintiff through her evidence, had failed to prove her possession over the suit property; only oral, unsubstantiated and uncorroborated statements had been made by the witnesses who were cousin, tenant in the same mauza, but not the cultivator of the suit-land and her attorney---Said witnesses had made very brief and sketchy depositions about the plaintiff's possession over the suit-land---No details or the particulars about the possession had been given, though the attorney of the plaintiff had stated as witness that plaintiff's possession was through the tenants, but without specifying their names and the terns of lease/tenancy---Said witnesses, when subjected to the cross-examination by the defendants, had not been able to sustain their assertions and plaintiff had deliberately omitted to produce any Revenue Record i.e. the Jamanbandies for the relevant period or the Khasra Girdawari to establish either her physical or the possession through the tenants---No proof of the payment of the land revenue was given by the plaintiff and it was not established as to who were the tenants cultivating the land from whom the defendants demanded the share of produce as alleged in the plaint---Neither any tenant, who was cultivating the land under the plaintiff had been examined nor any lease/tenancy agreement in that regard had been produced by the plaintiff---Plaintiff had only led oral evidence, which was inadequate and hardly proved her possession---Possession of defendants, on the other hand, stood satisfactorily proved---Record convincingly established that the possession of the property and assertion of plaintiff in that behalf, remained unsubstantiated---Findings of' the Appellate Court, which were contrary to all such aspects of the case, were the result of misreading and non-reading of the evidence and could not be sustained and thus were set aside by the High Court---Plaintiff having not sought the relief' of possession, resultantly, her suit was also bad on account of the proviso to S.42, Specific Relief Act, 1877, which was an essential consequential relief, but was not claimed by plaintiff.

(b) Specific Relief Act (1 of 1877)---

----S. 42---Suit for declaration---Pleadings---Allegation of fraud by plaintiff---Initial onus to prove allegation/proposition, was upon the plaintiff whose witnesses on scanning, showed that they had not contributed much to the case of the plaintiff in that behalf, because they had not stated anything about the fraud etc., which was the mainstay of the plaintiff's case as get out in the plaint---Legal consequence of such lapse was, that though the plaintiff had structured her case on the foundation of fraud, but had failed to prove the same---Held, pleading was not the proof of any assertion---Suit, in circumstances, could not be sustained.

?

Mst. Khair-ul-Nisa and others v. Malik Muhammad Ishaque and others 1972 SC 25; Faqir Muhammad and others v. Abdul Momin and others PLD 2003 SC 594; Mst. Zareena and 5 others v. Syeda Fatima Bi PLD 1995 Karachi 388; Bakht Baidar and others v. Naik Muhammad and another 2004 MLD 341; K.A.H.Ghori v. Khan Zafar Masood and others PLD 1988 Karachi 460 and Anjuman-e-Islamia, Sialkot v. Haji Muhammad Yonas PLD 1997 Lah 153 ref.

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

----S. 42---Suit for declaration---Plaintiff lady had claimed to be the owner in possession of the suit-land and challenged the sale-deed in favour of defendants, primarily on the ground of fraud---Quality and preponderance of evidence led by both the sides, coupled with the attending circumstances of the case such as, lack of plaintiff's possession over the suit property, since the time of its sale; the incorporation of the sale in the Revenue Record and the names of the purchasers appearing in the subsequent Jamabandis; Khasra/ Girdawaris in the name of the defendants, since the date of the transaction; delay in filing the suit, for such a considerable period of time; pre-emption and other litigation about the same property and its outcome; the presence of the plaintiff's husband on each and every occasion as deposed by all the concerned witnesses and there being no denial in this behalf; no allegation made against the husband of being a party to the fraud, as alleged in the plaint, would go to prove that the sale was made by the plaintiff' for valid consideration and sale-deed was not the result of any fraud and misrepresentation, rather same was a genuine transaction for due consideration and plaintiff had failed to prove the transaction as void/voidable.

Shah Nawaz and others v. Nawab Khan PLD 1976 SC 767; Mst. Farhat Begum and others v. Said Ahmed Shah and others 2002 CLC 1956; Feroze Khan and others v. Mst Waziran Bibi 1987 SCMR 1647; Sughran Bibi v. Mst. Aziz Begum and others 1996 SCMR 137; Abdul Ahad, and others v. Roshan Din and others 1979 SC 890; Muhammad Mal Khali v. Allah Yar Khan 2002 SCMR 235; Malik Muhammad Ishaque v. Messrs Crose Theatre and others 1977 SC 109 and Surat Cotton Spinning and Weaving Mills, Ltd. v. Secretary of State AIR 1937 PC 152 ref.

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

----Art. 129(g)---Specific Relief Act (I of 1877), S.42---Suit for declaration---Plaintiff having failed to appear personally before the Court, presumption could rightly be drawn against her for withholding the best evidence.

Shah Nawaz and others v. Nawab Khan PLD 1976 SC 767; Mst. Farhat Begum and others v. Said Ahmed Shah and others 2002 CLC 1956; Feroze Khan and others v. Mst Waziran Bibi 1987 SCMR 1647; Sughran Bibi v. Mst. Aziz Begum and others 1996 SCMR 137; Abdul Ahad and others v. Roshan Din and others 1979 SC 890; Muhammad Mal Khan v. Allah Yar Khan 2002 SCMR 235; Malik Muhammad Ishaque v. Messrs Crose Theatre and others 1977 SC 109 and Surat Cotton Spinning and Weaving Mills, Ltd. v. Secretary of State AIR 1937 PC 152 ref.

(e) Land Reforms Regulation 1972 [MLR No.115]---

----Regln. 28---West Pakistan Land Reforms Regulation, 1959 [MLR No.64], Regln.27---Bar of jurisdiction---Civil Court had no jurisdiction with regard to proceedings under Martial Law Regulations 64 abd 115.

Ismail and others v. Muhammad Khan 2002 SCMR 1317; Mst. Aisha Bibi v. Nazir Ahmad and others 1994 SCMR 1937 and Muhammad Ashraf v. Abdul Aziz and others 2002 CLC 909 ref.

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

----S. 42---Suit for declaration---Plaintiff lady, who had raised the plea of pardanishin lady had claimed to be the owner in possession of the suit property and had challenged the sale-deed on the ground of fraud played on her by defendants, her husband and manager of her husband---Plea of pardanashin lady though had been raised in the plaint, but same had not been so proved through the evidence of the plaintiff; she had been identified by her husband with whom, she had been living throughout, he was the best person to advise and identify the plaintiff at all the levels and the stages and no fraud had been proved against the husband---Record did not show that relationship between the husband and wife were sour before or after the transaction---Effect---Held, even if the plaintiff was a pardanashin lady, yet she had independent advice of her husband resultantly, the transaction in question, could not be declared void on that account in circumstances.

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

----Ss. 42 & 39---Limitation Act (IX of 1908), Arts.91 120 & S.18---Civil Procedure Code (V of 1908), O.VII, R.6---Suit for declaration by a lady plaintiff, who had claimed to be the owner in possession of the suit property and had challenged the sale-deed in favour of defendants on the ground of fraud, taking the plea of pardanashin lady in the plaint---Limitation---Suit had been filed after more than a period of 12 years and three months and it was a composite suit for declaration under Ss.42 and 39, Specific Relief Act, 1877---Article 91 of the Limitation Act, 1908 was applicable for which, limitation prescribed was three years---If the suit was to be considered mainly for the declaration and the relief of cancellation was only an ancillary or incidental thereto, at the most, Art.120, Limitation Act, 1908 shall be applicable under which limitation was six years from the date, when the right to sue accrued---Such right, in the present case, accrued to the plaintiff on 10-4-1973 when the sale-deed was executed/registered---Such suit brought after more than 12 years was barred by limitation---If however, plaintiff wanted to avail the benefits of S.18, Limitation Act, 1908, she should have taken such plea in the plaint, which should have been drafted conforming to the provisions of O.VII, R.6, C.P.C.---Not only the plaint lacked in this behalf but also the fraud had not been proved by the plaintiff---Plaintiff's suit in circumstances, was barred by limitation and had been rightly so held by the Trial Court---View of the appellate Court, that the plaintiff was a pardanashin lady, therefore, this was accepted that she came to know about the fraud when her tenants were removed on which she filed the suit, was misconceived, as she had failed to prove herself to be a pardanashin lady and the alleged fraud and it was neither her case, nor proved that the tenants were ever in possession of the property, who were allegedly evicted by the defendants, which event could give her a cause of action to sue for the declaration---Judgment and decree of the appellate Court was not only based upon misreading and non-reading of the record, but also by misapplication of the law, resultantly the same could not be sustained which was set aside by the High Court.

Aamar Raza A. Khan for Petitioner.

Muhammad Ahmed Qayyum for Respondent.

Date of hearing: 14th March, 2006.

P L D 2006 Lahore 384

Before Ali Nawaz Chowhan, J

WAPDA and others---Petitioners

Versus

FAROOQ and others---Respondents

Civil Revisions Nos.2374 to 2378 of 2000, heard on 13th April, 2006.

Limitation Act (IX of 1908)---

----S. 26---Easement---Right of easement---Period for maturing of the easement right---Property, in the present case, was owned by WAPDA and not by the Federal Government, easement rights in respect of such property of a statutory body like WAPDA would mature after 20 years and not 40 years---Principles.

Muhammad Rashid Bhatti v. K.D.A. and another PLD 1986 Kar. 130; Shahid Mehmood v. Karachi Electric Supply Corporation Ltd; 1997 CLC 1936; M/s Gadoon Textile Mills and others v. WAPDA and others 1997 SCMR 641; and Binyameen and others v. Chaudhry Hakim and another 1996 SCMR 336 ref.

Nazir Ahmad Shami, Barrister for Petitioners.

Sarfraz ul Hassan for Respondents.

Dates of hearing: 12th and 13th April, 2006.

P L D 2006 Lahore 392

Before Ali Nawaz Chowhan and Syed Sakhi Hussain Bokhari, JJ

KHALID MEHMOOD alias SADDRO---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.365 of 2000 and Murder Reference No.598 of 2000, decided on 20th March, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324 & 34---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Complainant, who was father of deceased and eye-witness, remained steadfast in his statement as given in F.I.R. while deposing before the Trial Court---Complainant also successfully participated in the identification parade in jail---Complainant also received injuries during occurrence and his Medico-legal Report was prepared by Doctor and nothing was available to suggest that injuries on his body were self-suffered---No enmity existed between complainant and accused---Testimony of complainant, could be believed, in circumstances---Accused had an active role along with his other co-accused who were absconding---Certain extenuating circumstances, however, were found in favour of accused, such as; that he did not fire any shot at deceased; that he was not nominated in F.I.R., but it was through a supplementary statement that his name came about, though he was identified later on; that there was no previous enmity inter se the parties and possibility was that he under command of co-accused had fired and; that there was no direct motive against the accused---Sentence of death awarded to accused by the Trial Court, was reduced and converted into life imprisonment with benefit of S.382-B, Cr.P.C.---Rest of judgment of the Trial Court would remain intact accordingly.

Sardar Mashkoor Ahmad for Appellant.

Tanveer Iqbal, A.A.-G.

Dates of hearing: 14th, 15th, 16th and 20th March, 2006.

P L D 2006 Lahore 401

Before Mian Saqib Nisar and Syed Zahid Hussain, JJ

SHAHIDA PARVEEN---Appellant

Versus

SAMIULLAH MALIK---Respondent

R.F.As. Nos.331 and 334 of 1999, decided on 25th January, 2006.

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

----S. 3---Plea of limitation had not been set up as a defence by the defendant, therefore, no issue had been framed and resultantly, the parties had not produced evidence on the point of limitation---Court, though was duty bound under S.3, Limitation Act, 1908 to dismiss the suit, appeal etc, if it was barred by time, even if the defendant had not taken an objection in this behalf, but at the same time, if the question of limitation was dependant upon the proof and determination of facts and the factual foundation had neither been pleaded nor proved by the defence, the Court was not bound to decide the same---Where the defendant not only had not set out any ground of limitation as an attack in the written statement, but such omission was conspicuous in the memo. of appeal as well, therefore, the plea of limitation was liable to be repelled.

Muhammad Shafi through Legal Representatives v. Abdul Rehman through Legal Representatives PLD 2005 Lah. 129; Government of Pakistan v. Muhammad Bashir PLD 2005 Lah. 74 and Dr. Q.M. Qarni v. Mir Khalilur Rehman and 4 others PLD 1975 Kar. 379 ref

(b) Plaint---

----Plaint as a whole is to be taken into consideration---Contents of one paragraph of the plaint shall be deemed embodying in the subsequent para of the plaint.

(c) Tort---

----Defamation---Allegation of appellant(wife) in the plaint of dissolution of marriage, amounted to defamation/libel and were made to deface and ridicule the respondent (husband) and those were not proved to be based upon the truth---Damages, determination of---Principles---Where the plaintiff (husband) had proved his case of defamation/libel against the appellant (wife), but at the same time, the damages awarded to him were under the impugned decree were punitive, rather compensatory, High Court in appeal reduced the amount of damages in circumstances---Damages for the heads not proved on record were not allowed.

(d) Islamic law---

----Marriage---Marriage bond between two Muslin's is in the nature of a civil contract but at the same time, it shall be a grave misconception to equate it with the ordinary civil contract---Nature of contract of marriage in Islam elucidated---Provisions of Ss.73 and 74 Contract Act, 1872 or general laws, in this behalf shall not be attracted with the consequences that any expenses incurred by either party in connection with the marriage ceremonies, or the gifts exchanged by the bride and the bride-groom or given to them by the relatives of the either side, including the salamis, could not be recovered through the process of law in case of dissolution of marriage and it shall not affect the bride's right to seek the return of her dowry articles and the bridegroom's to recover the Buri articles, a term which was well understood in Pakistan culture and the marriage rituals---Principles.

Although the marriage bond between the two Muslims is in the nature of a civil contract, but at the same time, it shall be a grave misconception to equate it with the ordinary contracts of sale purchase, the property transactions or for those to provide personal services etc., entered into between the parties under the Contract Laws. Rather such a contract has its genesis in the social norms of the Muslim society and is structured upon the commands of Allah Almighty and the Sunnah of the Holy Prophet (p.b.u.h.). This contract is blended with the human emotions and the sentiments, such as the love, affection, likes, dislikes, tolerance, aversions, and the equation/compatibility of two personalities and the minds. Therefore the failure and the success of a marriage is dependent upon the existence or the lack of the above factors, and it shall be wrong and absolutely inapt to attribute any breach of the contract in a case, where marriage does not work out and either party declines to submit to the other, which may ultimately result into the divorce by the husband, the termination, dissolution or denunciation of the marriage in any manner permissible under the law. Therefore, as there is no concept of ally breach of marriage contract, obviously the provisions of sections 73 & 74 of the Contract Act, 1872, or the General Laws in this behalf, shall not be attracted; with the further consequences that any expenses incurred by either party in connection with the marriage ceremonies, or the gifts exchanged by the bride and the bridegroom or given to them by the relatives of the either side, including the Salamis, cannot be recovered through the process of law. But this shall not affect the bride's right to seek the return of her dowry articles, and the bridegroom's right to recover the Buri articles, a term which is well understood in Pakistan culture and the marriage rituals.

Khadim Hussain Qaiser for Appellant.

Sadaqat Mahmood Butt for Respondent.

Date of hearing: 25th January, 2006.

P L D 2006 Lahore 410

Before Muhammad Sair Ali, J

Mst. PARVEEN AKHTAR and another---Petitioners

Versus

MUHAMMAD SATTAR---Respondent

Civil Revision No.544 of 2006, decided on 22nd March, 2006.

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss. 24 & 28---Zar-e-Soem, deposit of-Thirty days from the filing of the suit---Application for re-fixation of probable value and Zar-e-Soem---Maintainability---Court had no jurisdiction or discretion to extend the time on revision of the earlier order or even to direct deposit of an additional amount thereto to make up the deficiency or otherwise---Statutory period of 30 days having elapsed, Court had no jurisdiction or discretion to order further deposit of Zar-e-Soem by revising of its , earlier order---Application for refixation of the probable value and Zar­e-Soem was not maintainable.

(b) Punjab Pre-emption Act (IX of 1991)---

----Ss. 24 & 28---Determination of probable value of the property by the Court---Principles elucidated.

Under S.24 of the Punjab Pre-emption Act, 1991, the probable value of the property can be determined by the Court when:-

(i) No sale price is mentioned in the sale-deed; or

(ii) No sale price is mentioned in the mutation; or

(iii) The price mentioned in the sale-deed or the mutation appears to be inflated.

In each of the above three cases, the Court is mandatorily required by the use of word 'shall' to determine the probable value of the property, to direct deposit of 1/3rd of such probable value within 30 days of the suit as per the first proviso of section 24 Punjab Pre-emption Act, 1991.

Trial Court had the jurisdiction to determine the probable value in summary/preliminary inquiry on the basis of the material placed before it by the plaintiff and also to provisionally opine that the price as stipulated in the sale-deed was prima facie inflated.

In the present case Trial Court had considered the sale-deeds and Aust Yaksala produced by the plaintiff to approximate the probable value also disbelieving the value pleaded by the plaintiff.

Trial Court had properly exercised his jurisdiction to hold the preliminary/summary inquiry on the material before it. As a result of this inquiry held on the first hearing of the suit, the plaintiff was validly directed to deposit the amount of 1 /3rd of the said probable value within the period of 30 days prescribed in the first Proviso to section 24 of the Punjab Pre-eruption Act, 1991.

For the determination of the probable value, the Trial Court was not obligated under the second Proviso of section 24 of the Act to hold a detailed trial within a trial and to hear the defendants after a notice. A notice to the defendants for a hearing in this preliminary inquiry had an innate and serious risk and almost a certain possibility to delay the determination process and the order of deposit of Zar-e-Soem beyond the statutory period of 30 days.

The Court had no such jurisdiction to order the deposit of Zar-e-Soem beyond the prescribed thirty days period nor did it possess the power to extend such period. The whole process was thus to be completed in this short period of thirty days. In consonance with the wisdom and the intention of law, the nature of inquiry for the determination of probable value was to be "preliminary and summary". The object was to enable the Trial Court to efficiently complete the process of approximation of the "probable value" and direction to the plaintiff to deposit Zar-e-Soem. Similarly it was also to ensure an adequate period to plaintiff to make such deposit within the time capped thirty days. It therefore naturally emanated from above circumstances that the defendants had no vested right of notice or a hearing. However if the defendants by then happened to be before the Court, their assistance could also be taken if it was so considered necessary by the Court. Also because under subsection (4) of section 24 of Punjab Pre-emption Act, 1991, the probable value fixed at the initial stage of the suit was not to prejudice or affect the final determination of the price payable by the pre-emptor.

The claim of the defendants to notice and participation as a right, in the proceedings for the determination of "probable value" of the property, was contrary to the object, scheme and the purpose of law.

(c) Punjab Pre-emption Act (IX of 1991)---

----Ss. 28 & 24---Civil Procedure Code (V of 1908), S.115---Determination of the probable value of the property by the Court being not a "case decided" and jurisdiction having been validly, properly, fairly and justly exercised by the Trial Court, said order did not suffer from arbitrariness, mis-exercise, excess of jurisdiction or material irregularity in circumstances---Revision against the order was not maintainable.

(d) Punjab Pre-emption Act (IX of 1991)---

----Ss. 28 & 24---Civil Procedure Code (V of 1908), Ss.114, 47(a) & 115---Application for review of the "probable value" and "Zar-e-Soem", in the absence of any of the conditions prescribed in 5.114 read with S.47(a), C.P.C. was not a "case decided"---Trial Court had no jurisdiction to order any additional deposit of Zar-e-Soem beyond- the period of 30 days from the date of the suit---Revision was not maintainable against the order of the Trial Court not allowing the application for review of the "probable value" and " Zar-e-Spem".

Muhammad Akbar v. Muhammad Malik and another PLD 2005 Lah. 1 and Abdul Wahid and others v. Sardar Ali and others 2000 Law Notes (Lahore) 99 distinguished

Awal Noor v. District Judge, Karachi and 8 others 1992 SCMR 746; Habibullah Khan v. Amir Zaman and 9 others 1995 SCMR 135 ref.

Ch. Khurshid Ahmad for Petitioner.

P L D 2006 Lahore 418

Before Syed Hamid Ali Shah, J

MUHAMMAD SARWAR and others---Petitioners

Versus

PROVINCE OF THE PUNJAB through Secretary Colonies/Member Board of Revenue (Colonies), Board of Revenue, Punjab, Lahore and 4 others---Respondents

Writ Petitions Nos.12092, 12093, 12110 and 12111 of 2005, decided on 31st March, 2006.

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

----Ss. 7 & 10---West Pakistan Land Revenue Act (XVII of 1967), 5.164---West Pakistan Board of Revenue Act (Xl of 1957), S.8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Grow More Scheme---Cancellation of allotment of land---Suo motu review power of Member Board of Revenue---Land in dispute was duly allotted to petitioners under "Grow More Food Scheme" and petitioners were delivered possession of said land, but allotment order in favour of petitioners, subsequently was withdrawn by Member Board of Revenue exercising suo motu powers of review---Order of allotment, was reviewed through impugned order on three scores; firstly, that disputed property had already been referred to Punjab Privatization Board; secondly, that Governor had already rejected allotment; and thirdly, that petitioners had committed fraud and concealed material fact of reference of said property to Punjab Privatization Board for its sale through auction---Punjab Privatization Board, in its report submitted in the high Court, had clearly mentioned that land in question had never been referred to it for sale through open auction---No other proof was available to the effect that any reference was made to Punjab Privatization Board---Member Board of Revenue, in circumstances had proceeded to review order on said ground without any substance or proof---Governor had rejected claim of petitioner, it was a fact that summary sent to the Governor was not formally approved---Summary was also silent as to the fact that no other land of same quality was available in the District concerned for allotment to petitioners, according to the orders of High Court---No specific instance in respect of fraud and misrepresentation had been mentioned---Petitioners were found entitled to allotment and their entitlement was not in dispute---All material was available upon which order of allotment was passed in favour of petitioners---Orders passed in review were declared to have been passed without any lawful authority and were of no legal effect---Said orders were set aside and orders allotting land to petitioners stood restored accordingly.

Mst. Sardar Begum and others v. Bashir Ahmad and others 1993 MLD 2454; The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v..Saeed Ahmad Khan and others PLD 1974 SC 151; Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others PLD 1991 SC 691; Mst. Azam Ethan Ara Begum and 4 others v. Commissioner, Sargodha Division, Sargodha and 2 others 2004 MLD 1053; Province of the Punjab through Secretary Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351 and Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak.) 104 ref.

(b) West Pakistan Board of Revenue Act (XI of 1957)---

----S. 8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suo motu power of review---Power to review under S.8 of West Pakistan Board of Revenue Act, 1957 was available to Board of Revenue only on discovery of new and important matter which was not within the knowledge at the time when order was passed; aggrieved party had applied for review; notice to the party, affected, thereby, was given and the parties were heard---None of said conditions in the case had been complied with as order was reviewed without notice to petitioners and without any application on behalf of aggrieved person---No new or important matter was discovered to justify review and opportunity of being heard was also denied to petitioners---Order was reviewed after lapse of period of 90 days, whereas no review after stipulated period of limitation was competent---Review proceedings in the case were initiated on administrative side in respect of an order which was passed on judicial side---Judicial order was not liable to be set aside through an administrative order---Impugned order passed in violation of provisions of S.8 of West Pakistan Board of Revenue Act, 1957, could not be maintained.

Muhammad Ibrahim and 3 others v. Municipal Committee, Chiniot through Chairman 1990 ALD 655 Chuttan and another v. Sufaid Khan and another 1987 SCMR 503; Commissioner of Income Tax, East Pakistan v. Fazlur Rahman PLD 1964 SC 410; Muzaffar Ali v. Muhammad Shall PLD 1981 SC 94; Riaz Hussain and others v. Board of Revenue and others 1991 SCMR 2307; Jiwan Das v. Rakhmat Din and another AIR 1941 Lah. 212; Muhammad Yaqub v. Saeed Shah PLD 1961 (W.P) Kar. 1956; Umar Din and others v. Member (Colonies). Board of Revenue and others 1984 CLC 17; Ilamid Akhtar v. Member (Colonies), Board of Revenue, Punjab, Lahore and another 2005 YLR 298; Muhammad Zaman and 8 others v. The Minister for Consolidation and 3 others PLD 1988 Lah. 416 and District Officer Revenue, Kasur v. Abdul Rehmat Shaukat PLD 2006 SC 188 ref.

Ch. Imdad Ali Khan and Ch. Sameer Ijaz Assisted by Waseem Mahmood and Rana Maqbool Ahmad for Petitioners.

Khadim Hussian Qaiser Addl.A.-G. for Respondent No.1.

Ahmad Awais for Respondents Nos. 2 and 3.

Messrs Muhamamd Ashraf Wahla and Jahanzeb Wahla for Respondent No.4.

Ch. Saleem Jahangir Chatha, President District Bar Association Faisalabad with Talib Hussain Chatha (in person).

Khalid Bashir for Respondent No.5.

Bashir Ahmad Colony Clerk D.O.R. Office Faisalabad Mahmood Ahmad Assistant.Board of Revenue Punjab (In person).

Date of hearing: 2nd March, 2006.

P L D 2006 Lahore 431

Before Syed Shabbar Roza Rizvi, J

MAZHER HUSSAIN---Petitioner

Versus

THE STATE and 2 others---Respondents

Writ Petition No.1564-Q of 2006, decided on 6th April, 2006.

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

----Arts. 199 & 184(3)---Constitutional jurisdiction of High Court---Scope---Constitution of Pakistan is basically a document which provides a system for the country under which it is governed---Constitution also demarcates functions of different organs of the State---in the Scheme of the Constitution, people of Pakistan have also been provided legal and fundamental rights---Arts. 184(3) and 199 of the Constitution have been provided in the Constitution basically to protect these rights and to take a judicial notice if these are violated by any person---Article 199 of Constitution is not meant to usurp the jurisdiction of other constitutional and statutory organs of the State; it is also not meant to render all other laws redundant and it has also not been enacted to affect adversely the administration and running of statutory bodies and departments i.e. Police etc.---High Court has been empowered to intervene under Art. 199 of the Constitution in a matter in which no legal remedy has been provided to address grievance of any aggrieved party/person within its territorial jurisdiction---Such jurisdiction is also available when remedies available under law have been exhausted, but still petitioner's grievance remained unresolved and High Court is satisfied about genuineness of grievance.

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

----Art. 199---Criminal Procedure Code (V of 1898), S.561-A---Constitutional petition---Quashing of F.I.R.---Accused mostly rush to High Court for quashing of F.I.R. by invoking Art.199 of the Constitution while Code of Criminal Procedure, 1898, Police Rules, 1934 and Police Order, 2002, have provided a Scheme to get relief in such-like situation---Police hierarchy has also been provided under those laws.

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

----S. 156---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Investigation---Investigation is a statutory function and duty of the police---High Court is not assigned a role of Superior Investigator---High Court can only be approached when concerned Police Authorities, under relevant law, would fail to perform their statutory functions or exceed their jurisdiction, but not immediately after registration of F.I.R.---Such is not a purpose of Art.199 of the Constitution.

(d) Administration of justice---

----Duty and function of counsel---Bar was there to represent their clients as well as to assist the Courts honestly and devotedly, but if 6imsel would involve the Courts in frivolous cases or petty matters, which could be resolved otherwise, that would distract Courts from substantial work like criminal/civil appeals and constitutional issues, etc.---Misconceived and unfounded litigation not only would waste precious public/Court's time, it also would increase pendency of cases---High Court which was apex constitutional and appellate Court within the Province, its basic role was to decide appeals and constitutional issues within reasonable time because justice delayed was justice denied---All stakeholders were advised to let the High Court focus on its real role and job.

Mehr Zauq Muhammad Sipra for Petitioner.

P L D 2006 Lahore 434

Before Syed Shabbar Raza Rizvi, J

JAFFAR ALI ALVI---Petitioner

Versus

SESSIONS JUDGE, ISLAMABAD---Respondent

Writ Petition No.2403 of 2005, decided on 28th April, 2006.

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

----S. 489-F---Provision of S.489-F, C.P.C. is a valid and living law.

2005 PCr.LJ 1462 fol.

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

---S. 188---Interpretation, scope and applicability of S.188, Cr.P.C.

Section 188, Cr.P.C. is only attracted if there is any Political Agent in the area where occurrence took place. As far as first part of section 188, Cr.P.C. is concerned, it applies only to a citizen of Pakistan when he commits an offence at any place without or beyond the limits of Pakistan and if there is no Political Agent, the sanction of Federal Government shall be required. Sanction under section 188, Cr.P.C. is a procedural requirement and can be produced even after submission of challan in a Court of competent jurisdiction. Permission can be secured even after submission of challan.

NLR 1999 SD 217 and PLJ 2005 Lah. (sic) ref.

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

----S. 154---Penal Code (XLV of 1860), S.489-F---Police Rules, 1934, R.25.2---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of case---Existence of correct or incorrect fact was not a requirement; requirement was that the information must disclose commission of a cognizable offence---Question as to impact of cheques issued by a company or signed on behalf of a company required investigation, which could not be undertaken under constitutional jurisdiction---High Court dismissed the constitutional petition with specific directions to the Investigating Officer observing that fair and independent investigation was statutory right and at the same time obligation of police---Courts could neither directly interfere nor influence investigating Officer in investigation---Investigating Officer was further directed to bear in mind his responsibility and seek guidance from R.25.2 Police Rules, 1934.

Sardar Muhammad Latif Khan Khosa for Petitioner.

Dr. Z. Babar Awan for the Complainant.

Tanvir Iqbal, A.A.-G. for the State.

P L D 2006 Lahore 437

Before Umar Ata Bandial, J

CO-OPERATIVE EMPLOYEES UNION---Petitioner

Versus

SECRETARY COOPERATIVES, PUNJAB, LAHORE---Respondent

Writ Petition No.2186 of 2006, decided on 31st March, 2006.

Constitution of Pakistan (1973)---

----Arts. 199, 23 & 24---Constitutional jurisdiction of High Court---Scope---Lease of an immovable property of a Co-operative Society managed and operated as a public sector enterprise by public functionaries exercising control over its affairs---Acts of public functionaries taken particularly in pecuniary and proprietary matters of the said enterprise were subject to the rules of transparency, good governance and fairness---Public functionaries deriving authority from or under law, were obliged to act justly, fairly, equitably, reasonably, without any element of discrimination and squarely within the parameters of law, as applicable in a given situation---Deviations, if of substance, could be corrected through appropriate orders under Art.199 of the Constitution---Principles.

The Coop (a Society), in the present case, is managed and operated as a public sector enterprise by public functionaries exercising control over its affairs. It is axiomatic that in the discharge of their duties in relation to the Coop, be it the Registrar, the Coop board of directors or the Secretary Cooperatives, their acts are subject to the rules of transparency, good governance and fairness. The application of these rules establishes the legal validity of acts of public functionaries taken particularly in pecuniary and proprietary matters.

So long as the impugned action meets the standard set by the said rules, it is neither necessary nor proper for the Court to consider the sufficiency or detail of the terms of the proposed lease of the Coop's land. Indeed the Court confines itself to the application of objective criteria to assess the validity of public action. In this context some salient facts of the present case are noted as follows. Valuable commercial land owned by the Coop was being leased without inviting tenders or offers from the public to establish its market value. This action was based on the premise that the grant of 99 years lease of land is not a transfer or disposition that attracts the said measures establishing transparency. Transfer of property owned by a cooperative society a government agency is deemed to be valid and permissible at a notionally determined price solely because its prospective use may be in the public interest, The bye-laws of a cooperative society specifying its business and the objects for which its property and funds may be employed, can be ignored by public functionaries acting in exercise of statutory power. A cursory mention that benefit is provided to members and employees of a cooperative society by the long lease of its principal asset is considered to be legally sufficient to justify the transaction without quantification, deliberation and decision on the basis of a feasibility or benefit analysis being undertaken.

Each of the foregoing features of the impugned order, and the actions that it sanctifies, fall out of the criteria of transparency, good governance and fairness laid down by the superior Courts rendering such action illegal and void.

The lease of an immovable property involves a transfer of an interest in that property in relation to the rights of its possession and enjoyment. Such a lease interest takes away incidents of ownership, namely possession and enjoyment of property for an agreed period of time from the owner and vests there in the lessee. The longer the lease the greater the attributes of the ownership interest in the property that is transferred to the lessee. The contemplated lease of the disputed property for a long duration of 99 years therefore, transfers the substantive rights of ownership leaving the bare title of the disputed property with the Coop. The disposition, transfer or vesting of property that belongs to the public or is done at the hands of public functionaries is governed by the rules of transparency, good governance and fairness. In essence these rules require a fair procedure to be adopted to fetch the best market value for the interest and property transferred and to ensure that the full price is received in the purse of the transferor. Depending on the facts of the case, an invitation for offers or a public tender for the property under transfer, as the case may be, are steps commonly taken by public functionaries to arrive at the best bid for the proprietary interest offered.

Further a contract, carrying elements of public interest, concluded by functionaries of the State, has to be just and fair, transparent, reasonable and free of any taint of mala fides, all such aspects remaining open for judicial review. The rule is founded on the premise that public functionaries, deriving authority from or under law, are obligated to act justly, fairly, equitably, reasonably, without any element of discrimination and squarely within the parameters of law, as applicable in a given situation. Deviations, if of substance, can be corrected through appropriate orders under Article 199 of the Constitution.

The facts of the present case necessitated that the feasibility of the lease and, if so, the fair market value of the property under transfer by way of lease, ought to have been assessed by the public functionaries which was not done. It should not have mattered that the public functionaries were acquiring the disputed property for a public purpose. The Coop is a distinct legal entity and the public functionaries exercise control of its affairs as trustees. Under the constitutional mandate of Articles 23 and 24 of the Constitution as well as statutory law, the acquisition of the Coop's property must be at fair market value. If, however, the Coop is considered a public enterprise, the public functionaries were again under a duty to apply and deal with its property as trustees in furtherance of the Coop's objects. It is not sufficient that the property of a cooperative society may be taken over without fair consideration or due deliberation merely because of executive expediency.

The impugned order and the proceedings that it affirms, namely, the Coop board resolution and actions taken pursuant thereto in respect of the disputed property of the Coop were declared to be illegal, without lawful authority and of no legal effect. Registrar, of Cooperative Societies, who was the governing authority in all matters pertaining to the affairs of the Coop, shall cause the feasibility and, if so, the terms of the proposed transaction to be objectively and fairly assessed in order for a considered and fair decision to be taken in the matter.

Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268; Javedan Cement Mehnat Kash Union and another v. The Federation of Pakistan and others 1998 SCMR 2182 and Javed Iqbal Abbasi and Co. v. Province of Punjab 1996 SCMR 1433 ref.

Iqbal Hameedur Rahman for Petitioner.

Muhammad Saeed for Respondents Nos. 1 and 4.

M. Javed Iqbal for Respondent No.3.

Barkat Ali, Secretary Coop.

P L D 2006 Lahore 443

Before Muhammad Sayeed Akhtar, J

DEFENCE HOUSING AUTHORITY, LAHORE---Petitioner

Versus

SECRETARY TO THE GOVERNMENT OF PUNJAB and others---Respondents

Writ Petitions Nos.22803, 22801 and 22802 of 1999, heard on 17th April, 2006.

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

----Ss. 54, 64 & 57---Award---Appeal---Maintainability---No appeal is maintainable against the Award of the Committee of the Arbitrators---Principles.

Sh. Rehmatullah v. Secretary to Government of West Pakistan Cooperation Department, Lahore and 3 others PLD 1975 Kar. 12; Muhammad Mehdi v. Government of Sindh and others 1982 CLC 2374; Firdaus Cooperative Housing Society Ltd. v. Secretary, Labour and Cooperative Department, Government of Sindh and 11 others 1987 CLC 1457 and Muhammad Haneef v. Abdul Hakeem and 2 others 1991 CLD 758 fol.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345; Messrs Firdous Trading Corporation v. Registrar, Cooperative Societies, Hyderabad Division, Hyderabad and another 1972 SCMR 91; Dr. Fozia Amber v. Government of Punjab and others PLD 2003 Lah. 741; Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary, Sindh and others 2005 SCMR 1814 and Muhammad Mehdi v. Government of Sindh and others 1982 CLC 2374 ref.

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

----Ss. 64-A, 64, 57 & 54---Constitution of Pakistan (1973), Art.199---Constitutional petition---Contention was that Secretary Co-operatives should have treated the appeal as revision under S.64-A, Co-operative Societies Act, 1925 if the appeal was not maintainable---Such plea having not been raised before the Secretary Co-operatives, could not be raised before the High Court in constitutional petition---Statutory Authority was not bound to convert a proceeding incompetently filed before him so as to bring the same within his competence by having recourse to all the powers that may be available to the said Authority.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 rel.

(c) Co-operative Societies Act (VII of 1925)---

----Ss. 54 & 64-A---Provincial Government under S.64-A, Co-operative Societies Act, 1925, can call for and examine the record of any inquiry or the proceedings of an officer subordinate to it for the purpose of satisfying itself as to the legality or propriety of any decision or order passed---Arbitrators giving award under S.54, Co-operative Societies Act, 1925, were not officers subordinate to the Provincial Government or the Registrar of Co-operatives.

(d) Co-operative Societies Act (VII of 1925)---

----Ss. 54, 64, 64-A & 57---Co-operative Societies Rules, 1927, R.32---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petition under S.54, Co-operative Societies Act, 1925---Award---Limitation---Petition under S.54 of the Act was received by Circle Registrar on 13-4-1995 who admitted the petition and issued notices to the parties under R.32, Co-operative Societies Rules, 1927 stating that unless the parties desired to nominate their Arbitrator within fifteen days, he will proceed further---Petitioner nominated his arbitrator on 3-5-1995 and substituted the arbitrator on 16-10-1995---Nothing had been brought on the record to show that on what date the Committee of Arbitrators entered on the reference---In the absence of such date it could not be said that the Award was barred by time---Contention that Award was announced after the period of two months specified in R.32 of the Rules and was without jurisdiction did not hold water in circumstances.

(e) Co-operative Societies Act (VII of 1925)---

----Ss. 54, 54-A, 2(f) & 4---Co-operative Societies Rules, 1927, R.33---Constitution of Pakistan (1973), Art.199---Constitutional petition---Award by Committee of Arbitrators---If the Registrar of Co-operative Societies or the Circle Registrar was not one of the Arbitrators, he could modify or correct the Award, if however the Committee was presided over by the Circle Registrar as Registrar such remedy was not available to the petitioner---Principles.

(f) Defence Housing Authority Lahore Order (26 of 2002)----

---Art. 25(e) & (f)--- Co-operative Societies Act (VII of 1925), S.54---Pending disputes in respect of Authority under S.54, Co-operative Societies Act, 1925 to be decided by the Administrator and any party aggrieved by his decision shall have the right of appeal to the Executive Board---All appeals and revisions either pending before the Registrar or the Provincial Government under the provisions of the Act, shall stand transferred to the Executive Board---Validity of the decisions made by the Registrar or the Provincial Government uptill the promulgation of Defence Housing Authority Lahore Order, 2002 were admitted and only the `pending disputes' appeals and revisions were to be transferred.

Tariq Masood for Petitioner.

Tariq Rahim and Ch. Muhammad Sadiq, Addl. A.-G.' for Respondents.

Date of hearing: 17th April, 2006.

P L D 2006 Lahore 451

Before Muhammad Muzammal Khan, J

MUHAMMAD IQBAL---Petitioner

Versus

MUHAMMAD SHOAIB and others---Respondents

Writ Petition No.14822 of 2004 and Writ Petition No.11374 of 2005, decided on 22nd March, 2006.

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

---S. 12(2) & O.VII, R.11---Application under S.12(2), C.P.C.---Applicant had made out elements of fraud/representation under S.12(2), C.P.C.---Application under S.12(2), C.P.C. disclosing a cause of action could not be rejected under O.VII, R.11, C.P.C.

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

---S. 12(2)---Dispute as to ownership of land---Application under S.12(2), C.P.C. with an application for review/recall of order passed by the Court---Order sought to be reviewed was only interlocutory in nature---Such order would automatically stand vacated on decision of the main application under S.12(2), C.P.C.---Judgment/decree which was declaratory in nature could not be put to execution, thus 'its suspension would not affect the decree-holder especially when he had claimed to be in possession of the suit-land.

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

----O. XL, R.I & S.12(2)---Qanun-e-Shahadat (10 of 1984), Art.117---Constitution of Pakistan (1973), Art.199---Constitutional petition---Allegation of forgery/fraud---Application for appointment of Receiver---Requirements---Applications, one under Art.117, Qanun-e-Shahadat, 1984 and the other under O.XL, R.1, C.P.C. by the petitioners---Petitioners had to establish their case by producing evidence for appointment of Receiver and by fulfilling the pre-requisites of O.XL, R.1, C.P.C. likewise application praying to require the petitioner to prove his asserted forgery/fraud in associating/making his sister as one of the applicants by inscribing her fake signatures, vanished in view of direction already given by the Trial Court for her appearance in person and to clarify her impleadment or to refute the same---Course adopted by the Trial Court was just/fair and required no interference by the High Court under its constitutional jurisdiction.

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

----Art. 199---Constitutional jurisdiction---Scope---Lower Courts had not committed any illegality amenable to constitutional jurisdiction of the High Court and had decided all the applications by the parties strictly in accordance with the law applicable and the record---Lawful decision could not be substituted under the constitutional jurisdiction---Petition being devoid of any merit was dismissed---Contest in the case being between the real brothers/sister and being pending since the year 2000, High Court directed that in the interest of justice, case be concluded expeditiously within a period of 4 months even by undertaking day to day proceedings.

Nemo for Petitioner in W.P.No.11374 of 2005.

Ch. Bashri Ahmad for Petitioner in W.P.No.14822 of 2005 and for the Respondent in W.P.No.11374 of 2005.

P L D 2006 Lahore 456

Before Muhammad Sair Ali, J

Mian MUHAMMAD SAEED---Petitioner

Versus

Mian ABDUL GHAFOOR and others---Respondents

Civil Revision No.2281 of 2002, heard on 12th April, 2006.

Civil Procedure Code (V of 1908)---

----O. VI, R.17---Specific Relief Act (I of 1877), Ss.42 & 54---Amendment of pleadings---Suit for declaration and perpetual injunction---Property in question was originally owned by the deceased on whose death the same devolved under Islamic law upon the plaintiffs and the defendants (parties to the suit)---As such the rights to the inheritance of the estate and to share ownership of the assets descended upon the parties because of the paramount title of their deceased propositus---Death extinguished the title of the deceased in their assets and simultaneously created the title of the parties to the suit therein---Flow of rights was from the same source though it streamed into multiple units on devolution as per the legal shares---Unity of title and possession in such a case, therefore, could not be questioned---Trial Court, in circumstances, exercised its jurisdiction properly to permit amendment in the plaint to incorporate the claim of the plaintiffs to separate possession to the extent of their 1/13th share in the property---Amendment so allowed neither changed the nature of the suit nor the complexion of the litigation between the parties which essentially arose from the same unity of title and the actionable cause.

Syed Mohsin Rasa Bukhari and 4 others v. Syeda Azra Zenab Bukhari 1993 CLC 31 ref.

Muhammad Ahmed Qayyum for Petitioner.

Ch. Shaukat Ali Saqib for Respondents Nos. 1 to 5.

Syed Ikhtisar Ahmad for Respondent Nos. 6 to 9 and 11.

Muhammad Ashraf for the Respondent No.10.

Date of hearing: 12th April, 2006.

P L D 2006 Lahore 460

Before Fazal-e-Miran Chohan and Tariq Shamim, J

Sheikh MUHAMMAD SHAHZAD---Appellant

Versus

NAVEED ANWAR SETHI and 4 others---Respondents

I.C.A. No.117 of 2005 in W.P. No.60960 of 2004, heard on 19th April, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Dispute as to possession of property---Justice of the Peace could issue orders for registration of a case on an application under Ss.22-A & 22-B, ,Cr.P.C. against the respondent but could not direct the police to interfere in the possession of the property---Contention that order of the Justice of the Peace being an administrative order was not amenable to constitutional jurisdiction of High Court was misconceived as an order without jurisdiction and void ab initio, could be challenged in the constitutional jurisdiction of High Court---Order to the extent of direction to police to restore possession of the property to the applicant however, was beyond the ambit of powers conferred on the Justice of the Peace by virtue of Ss.22-A & 22-B, Cr.P.C.

Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others PLD 1996 SC 632 and Haji Mushtaq Ahmad Khan and others v. Government of N.-W.F.P. through the Secretary in the Department of Excise and Taxation, Peshawar and others NLR 2000 Civil 578 ref.

Mian Muhammad Akram for Appellant.

Maulvi Muhammad Sultan Alam , and Muhammad Qasim, A.A.-G. for Respondents.

Date of hearing: 19th April, 2006.

P L D 2006 Lahore 465

Before Faqir Muhammad Khokhar, J

Mst. NASEEM AKHTAR---Petitioner

Versus

DIRECTOR-GENERAL IMMIGRATION AND PASSPORT and others---Respondents.

Writ Petition No.1749 of 1999, decided on 21st December, 1999.

(a) Passport and Visa Manual, 1974---

----Paras. 62(vi) & 70(a)---Pakistan Citizenship Act (II of 1951), S.14-B---Constitution of Pakistan (1973), Art.199---Constitutional petition---Para. 62(vi), Passport and Visa Manual, 1974, makes a provision enabling the employees of Government of Azad Jammu and Kashmir who are either Pakistani nationals or State subjects to make applications for the issuance of a passport---Para. 70 of the said Manual lays down that it is not the policy of the Government to treat applications for passports from residents of the former State of Jammu and Kashmir on the basis different from that obtaining in the case of the citizens of Pakistan; they should also be granted passports subject to the same conditions and restrictions as apply in the case of the citizens of Pakistan.

(b) Pakistan Citizenship Act (II of 1951)---

----Ss. 8(2) & 14-B---Government of Pakistan Cabinet Division Memorandum No.8/9/70 (Coord-1) dated 24-6-1970---Constitution of Pakistan (1973), Arts. 199(1)(2)(b)---Constitutional petition---Rights of Citizenship of certain persons residing abroad---Subject of the State of Jammu and Kashmir, who being under the protection of a Pakistan passport, is resident in the United Kingdom, is deemed to be a citizen of Pakistan---Principles.

(c) Passport and Visa Manual, 1974---

----Para. 10 [as revised on 19-6-1999j---Pakistan Citizenship Act (II of 1951), Ss.8(2) & 14-B---Government of Pakistan, Cabinet Division Memo. No.8/9/70(Coord-1) dated 24-6-1970---Constitution of Pakistan (1973), Art.199---Constitutional petition---Provision of para.10 (revised) of Passport and Visa Manual, 1974 lays down that official gratis passport shall be issued to the Judges of the Supreme Court, High Courts and Shariat Court, their spouses and dependent unmarried children up to 25 years of age---Subjects of Azad Jammu and Kashmir, admittedly are issued passports on behalf of the Federal Government under its policy like other citizens of Pakistan and there is no reason as to why the high functionaries of Azad Jammu and Kashmir including the Judges of the Azad Jammu and Kashmir Supreme Court, High Court and Shariat Court and their spouses and their dependant children should be excluded from the purview of para. 10, of the Passport and Visa Manual, 1974 (as revised) for the purpose of the issuance of official/gratis passports by Government of Pakistan, as there is no specific exclusion in their respect---In view of their special Status, respect and dignity, they cannot be treated differently than the Judges of the superior Courts of Pakistan in this matter---Instructions dated 24-6-1970 issued by the Central Government for treating the Azad Jammu and Kashmir like any other Province for all practical purposes are required to be adhered to---Paragraph 10 of the Manual does not admit the exclusion of high functionaries and the Judges of the superior Courts of Azad Jammu and Kashmir---Pakistan cannot alienate itself from the affairs of Azad Jammu and Kashmir, it is high time that the people of Azad Jammu and Kashmir should be brought into the main stream of Pakistan as quickly as possible---High Court, under its jurisdiction under Art.199 of the Constitution of Pakistan, directed the concerned authorities to issue the official/gratis passports to the petitioner, family of the Judge of the High Court of Azad Jammu and Kashmir, within three days under intimation to the Deputy Registrar of the High Court.

?

Malik Qamer Afzal Khan for Petitioner.

Ch.Afrasiab Khan, Standing Counsel for Pakistan with Syed Yousaf Ali Shah, Asstt. Director, Passport Cell, F.I.A., Islamabad.

Date of hearing: 21st December, 1999.

P L D 2006 Lahore 469

Before Syed Zahid Hussain, J

Mrs. SURRAYA KHANUM---Petitioner

Versus

MEDICAL SUPERINTENDENT, PUNJAB INSTITUTE OF CARDIOLOGY, LAHORE and 3 others---Respondents

Writ Petition No.2395 of 2006, decided on 18th April, 2006.

Constitution of Pakistan (1973)---

----Arts. 199, 4, 25, 26, 27 & 37---Punjab Health Department Nursing Services Rules, 1986---Constitutional petition---Petitioner, a Staff Nurse, had, with a view to acquire higher and better qualifications applied for admission in the course of Nursing Management and Teaching Administration, but her application was not forwarded and considered which was a refusal on the part of Head of the Hospital to allow her to join the course---Ground for such refusal was stated to be that, in view of policy decision of the Hospital, she had not the required length of service at her credit in the Hospital which could entitle her to join the course---Contention of the petitioner was that since the conditions of her service were governed by the Punjab, Health Department Nursing Services Rules, 1986, any such policy decision taken by the Hospital in conflict with the said Rules could neither override the Rules nor could be invoked to her prejudice; and that she even met the criteria for selection laid down by the Government of Punjab Health Department through the Prospectus for the Session 2006-07 of the said Course---Record showed that she had applied transfer to another Hospital and order for such transfer could not be given effect to due to subsequent ban on postings and transfers---Hospital authorities stated that the fact that no such policy was prevailing in the hospital where she was working would stand in her way if order of her transfer to the other Hospital was implemented---Held, petitioner, in circumstances, seemed to be victim of unreasonable and irrational approach of the authorities disabling her to get higher qualification, which ultimately was going to be beneficial not only to her but also to the Hospital to which she might be assigned---High Court observed that in the democratic set-up and written Constitution by which the people of Pakistan were governed, ideal situation would be if uniform policy was made, equally applicable to all similarly situated---Different policies/criteria in hospitals/institutions, in one and the same Province, under the administrative control of the Health Department negate the rationale and objective behind the provisions of Art.4 and 25 of the Constitution---Concept of equality before law and that all were equal before law had its genesis in Islamic fundamental principles elaborately propounded by the Holy Prophet Muhammad (p.b.u.h.) in the Last Sermon; provisions of Arts.4, 25, 26 and 27 of the Constitution were also in line and consistent with the "equality of all" as enshrined by Islam---Not only that the Principles of Policy laid down in Art.37(c) of the Constitution also enjoined on the State to observe the same---Without dilating upon the issue as to the validity or otherwise of policy of the Hospital (length of service), High Court considered just and proper to direct that the order of Government of Punjab, Health Department, transferring the petitioner from the present Hospital to the other Hospital should be given effect to forthwith so that the petitioner may pursue her study and training through the course---Short time being left for the commencement of the training course, Addl. Advocate General was directed to take up the matter with the concerned quarters in the Health Department for necessary steps in the matter.

Pervaiz Inayat Malik for Petitioner.

Aamir Rehman, Add. A.-G., Punjab and Mumtaz Ahmed for Respondents.

Date of hearing: 18th April, 2006.

P L D 2006 Lahore 474

Before Muhammad Sair Ali, J

AMEER ALI---Petitioner

Versus

Dr. MUHAMMAD ASHIQ---Respondent

Civil Revision No.304 of 2006, decided on 23rd February, 2006.

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

----O. XXXVII, R.3, Ss.148 & 115---Suit for recovery of money on the basis of pro note---Conditional leave to appear and defend the suit was granted to the defendant on furnishing a surety bond for the suit amount by a specified date---Defendant, applied for extension of time for the deposit of surety bond during the extended period which was granted under S.148, C.P.C.---Defendant, after obtaining the extension in time on the ground of and with the object of producing the surety and the surety bond in the Court, filed revision petition in the High Court assailing the order of Trial Court to the extent of imposing the term of furnishing the surety bond for the suit amount---Validity---Court had extended time acting upon the faith of defendant's representation, undertaking and reasons and had exercised its jurisdiction and granted the relief prayed for---Defendant, in circumstances, essentially lost the right to question the order granting conditional leave to appear and defend the suit and also forfeited his right to seek revisional indulgence of High Court under S.115, C.P.C.---Conduct of defendant thus disentitled him to the equitable and discretionary assistance of High Court.

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

----O. XXXVII, R.3---Negotiable Instruments Act (XXVI of 1881), S.118---Suit for recovery of amount on the basis of pro note---Grant or refusal or making the grant conditional for leave to appear and defend the suit by Trial Court---Scope---Principles.

The facts and the questions as disclosed in the affidavit and application for leave, 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 in the Court's discretion to be exercised judiciously upon the facts of the case before it. Such exercise should of course not be arbitrary, perverse or unduly harsh so as to deny legitimate defence to a deserving defendant.

In the present case, the defendant in his affidavit and the leave application filed under Rule 3 of Order XXXVII, C.P.C. admitted that the parties had a business relationship whereunder the plaintiff gave lease of the land or garden purportedly on agreed financial terms placing liability of certain payments upon the defendant.

The Trial Court on consideration of the defence of the defendant concluded that the defendant's defence deserved a trial and granted leave conditionally upon the furnishing of a surety bond for the suit amount. The Trial Court thus exercised discretion to impose a term on evaluation of the case circumstances.

Defendant's plea in fact proved existence of a financial transaction between the parties whereunder payment of money was to be made by the defendant. The liability or non-existence of liability was to be determined on evidence in the trial.

Blank and unsubstantiated oral pleas of the defendant were not adequate to displace the initial presumption attached under section 118 of the Negotiable Instruments Act that the negotiable instrument was made, drawn, accepted or endorsed for a consideration. The defendant had yet to discharge his onus of proof that the Promissory Note made and drawn by him was not for a consideration or was forged.

Under these circumstances, Trial Court validly and reasonably exercised the discretionary powers vesting in him to grant leave to defend the suit conditionally upon the submission of surety bond equal to the disputed amount by the defendant. As such the impugned orders do not deserve interference by High Court.

Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1996 SC 749; Habib Bank Ltd. v. Asghar Ali and others 1998 CLC 353; United Bank Limited v. U.T.C. Limited and others 1994 CLC 1404; Fine Textile Mills Ltd. Karachi v. Haji Umer PLD 1963 SC 163; Haji Abdul Wahid v. Hoechst Pakistan Limited and another 1993 CLC 1291; National Security Insurance Company Ltd. and another v. Emirates Bank International and others Civil Appeals Nos. 608-K, 609-K and 610-K of 1990; Messrs Ark Industrial Management Ltd. v. Messrs Habib Bank Ltd. PLD 1991 SC 976 and Haji Sh. Muhammad Hussain & Co. Ltd. and 9 others v. Citibank N.A. Alfalah Building Lahore 1985 CLC. 2467 ref.

Ch. Ali Muhammad for Petitioner.

P L D 2006 Lahore 482

Before Sh. Hakim Ali, J

AQSA MANZOOR---Petitioner

Versus

UNIVERSITY OF HEALTH SCIENCES, LAHORE through Vice-Chancellor and 3 others---Respondents

Writ Petitions Nos.2029, 2285, 2192, ,2386, 2127, 2095, 2030, 1934, 2674, 2160, 2393, 2161, 2284 and 2793 of 2005, decided on 10th November, 2005.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Educational Institution---Examination---Notification issued by the University to improve the quality and standard of medical education, was assailed---Policy matters of the Government could not be assailed or challenged in the constitutional jurisdiction unless those were proved to have been framed or formulated against the fundamental and basic provisions of the Constitution---Candidates/petitioners in the present case, had participated in the examination after the enforcement/publication of said notification and the contention of the examinees was that they were not imparted the knowledge of enforcement of the notification and they were not in the knowledge of the provisions of the regulation given in the same---Validity---Held, law was promulgated, published in the Gazette of the Government or through notifications of a notifying body, empowered by law to do so---As and when a notification was published and enforced, it became the law and it was not necessary or mandatory for the enforcing authority to inform or impart knowledge of the notification to each and every one; it was the duty of all concerned to be aware of the new law being enforced by its competent authorities---In law a person who had acted or taken steps after the enforcement of law, rules, regulations could not be permitted to resile or retreat by stating that he would not be governed by newly-enforced laws, rules and regulations---Rule of approbation and reprobation would be applicable in such a case---Ignorance of law was no excuse---Students having participated and taken the next coming examination after the publication of the impugned notification were to be considered and held to have known the existence and impact of that notification---Objection raised by the examinees could not be acceded to or approved in law that the students/examinees were not aware of the notification---Students having appeared and attempted the examination, were to be governed by the regulation mentioned in the notification in question and therefore were estopped to raise any objection against the notification after having availed its benefit but having remained unsuccessful---Constitutional petition assailing the notification, in circumstances, was dismissed by the High Court.

Alaptagin v. Principal, Saidu Sharif Medcial College, Swat and 3 others PLD 2004 Pesh. 307 distinguished

Mst. Kaniz Fatiam through Legal Heirs v. Muhammad Salim and 27 others 2001 SCMR 1493; Punjab Small Industries Corporation v. Ahmad Akhtar Cheema 2002 SCMR 549; Syed Match Factory Ltd. through Managing Director v. Authority under Payment of Wages Act and others 2003 SCMR 1493; W.P. No.2687 of 2005; Miss Lubna Sabir and others University of Health Sciences W.P. No.10998 of 2005; Muhammad Tariq Igbal v. University of Health Sciences W.P.No.1764 of 2005/BWP; Ali Yousuf and another v. Chairman of Academic Council and Principal, Dow Medical College, Karachi and others 2000 SCMR 1222; Muhammad I-Iamid Shah v. Pakistan Medical and Dental Council through Secretary and 4 others 1996 SCMR 1101 and Akhtar Ali,'Javed v. Principal, Quaid-i-Azam Medical College, Bahawalpur 1994 SCMR 532 ref.

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

---Art.199---Constitutional jurisdiction of High Court---Scope---Educational institution---Examination---High Court, under its constitutional petition could not create an extra chance for the petitioners if it was not available and granted by any law, regulation, rule or statute.

(c) Notification---

---Implications---Law was promulgated, published in the Gazette of the Government or through notifications of a notifying body, empowered by law to do so---As and when a notification was published and enforced, it became the law and it was not necessary or mandatory for the enforcing authority to inform or impart knowledge of the notification to each and everyone; it was the duty of all concerned to be aware of the new law being enforced by competent authority---In law a person who had acted or taken steps after the enforcement of law, rules, regulations could not be permitted to resile or retreat by stating that he would not be governed by newly enforced laws, rules and regulations---Rule of approbation and reprobation would be applicable in such a case---Ignorance of law was no excuse.

(d) University of Health Sciences Lahore Ordinance (LVIII of 2002)--

---S. 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Retnedy for filing of revision before the Chancellor being available to the petitioners, constitutional petition was not maintainable.

Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim and 27 others 2001 SCMR 1493; Punjab Small Industries Corporation v. Ahmad Akhtar Cheema 2002 SCMR 549 and Syed Match Company Ltd., through Managing Director v. Authority under Payment of Wages Act and others 2003 SCMR 1493 ref.

Ch. Manzoor ul Haq for Petitioner.

Asif Ismail for University of Health Sciences.

Sardar Muhammad Hussain Khan for Quaid Azam Health Medical College Bahawalpur.

Bashir Ahmad Ch. and Muhammad Farooq Warind for Sh. Zayed Hospital Rahimyar Khan.

Dates of hearing: 17th and 18th October, 2005.

P L D 2006 Lahore 491

Before Syed Shabbar Raza Rizvi, J

JAFFAR ALl ALVI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.983-B of 2005, decided on 28th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Pre-arrest bail, confirmation of---Accused and complainant were business partners but parted later on---Subject-matter of F.I.R. related to accounts---Investigating Officer himself had reported before the Sessions Judge that no cognizable offence was committed within his jurisdiction---Order of Civil Court U.A.E.(foreign) was also on the record which indicated existence of dispute between both the parties---Record also showed that the. accused was a businessman and had no criminal record---Held, purpose of law of pre-arrest bail was to protect liberty and reputation of citizens, particularly in a case where circumstances and facts were full of suspicion---Benefit of doubt was always given to the accused person, especially when it involved curtailment of liberty---Controversy over settlement of accounts germinated hatred and mala tide---Element of mala fide thus could not be ruled out in circumstances---High Court, allowed the application and interim bail granted to accused was confirmed subject to his furnishing of fresh surety bonds in the sum of Rs. twenty lacs with two sureties each in the like amount to the satisfaction of the Deputy Registrar of the High Court.

Sardar Muhammad Latif Khan Khosa for Petitioner.

Dr. Z. Babar Awan for the Complainant.

Tanvir Iqbal, A.A.-G.

Aslam , S.-I.

P L D 2006 Lahore 494

Before Muhammad Sair Ali, J

GHULAM HUSSAIN and another---Petitioners

Versus

MUHAMMAD HANIF through Legal Heirs and others---Respondents

Civil Revision No.347 of 1999, heard on 24th March, 2006.

Civil Procedure Code (V of 1908)---

----S. 115---Limitation Act (IX of 1908), S.12(2)(3)---Revision---Limitation---Principles---Judgment and decree, in the present case, was passed by the Addl. District Judge on 12-10-1998; application to obtain certified copies of the judgment as well as the decree was made on 22-10-1998; the same were delivered on the same date i.e. 22-10-1998; civil revision was filed against the said judgment and decree dated 12-10-1998 on 18-1-1999 which was beyond the period of limitation---Provision of 5.115, second proviso, C.P.C. was though parallel to the provisions of S.12(2)(3) Limitation Act, 1908 but was not in conflict therewith---Even if the provisions of 5.115, C.P.C. and those of S.12 Limitation, Act, 1908 were read as interwoven, no contradiction arose---Said provisions would only mean that excluding the period consumed in obtaining the certified copies of the decree and the judgment upon which such decree was founded, the civil revision shall be filed within 90 days.

Second Proviso to subsection 1 of section 115, C.P.C. prescribes that "such application shall be made within 90 days of the decision of the subordinate Courts." In the present case, the decision by the first appellate Court was made on 12-10-1998 which in fact was challenged through the civil revision on the purported ground of material irregularity committed by the first appellate Court by not accepting petitioner's appeal. The petitioners had filed their appeal against the judgment and decree dated 16-5-1988 passed by the Trial Court. Appeal before the first appellate Court was within time which on consideration and hearing was dismissed by the first appellate Court through judgment and decree dated 12-10-1998. The civil revision against the trial Court's judgment and decree dated 16-5-1988 before High Court was not maintainable because the remedy of appeal was availed of by the petitioners. The civil revision was thus filed by the petitioners against the judgment and decree dated 12-10-1998 of the first appellate Court.

The provisions of subsection 3 of section 12 of the Limitation Act also do not help the case of the petitioners. Without going into the question of applicability of the provisions of section 12 of the Limitation Act to the civil revisions, cumulative reading of subsections 2 & 3 of section 12 of the Limitation Act shows that the time requisite for obtaining the copy of a decree is excludable as well as the time requisite for obtaining the certified copy of the judgment on which such decree is founded. Subsection 3 of course specifically prescribes that "the time requisite for obtaining a copy of a judgment from which it is founded shall be excluded."

Petitioners interpret that the judgment referred to in subsection 3 of section 12 of the Limitation Act does not relate to the judgment upon which the decree appealed against or reviewed against or sought to be revised is founded upon but the same relates to the judgment of the Court of first instance against which the appeal was filed and decided. Such interpretation will be defeating of the law of limitation; the object of which is to put a period cap for each available remedy. Subsection (2) talks of the decree appealed against etc. and subsection (3) obviously relates to the judgment upon which such decree is founded. The provisions of subsection (3) cannot be stretched to include the judgment or the decree against which the remedy of appeal was availed.

Furthermore, in the present case, the date of the application for the certified copies and that of the supply of the certified copies respectively of the decree and the judgment were not different therefore excludable period under the provisions of said subsections (2) & (3) will be the same. Subject to the availability of the period of limitation, if separate applications on different dates had been made to obtain the certified copies of the decree and the judgment and the copies thereto had been separately supplied on different dates, the petitioners could have claimed that minus the overlapping period, they were entitled to compute the limitation for civil revision from the later date.

The application for obtaining a copy of the judgment upon which it is founded, even if made separately, has to be filed within the period of limitation to avail the provisions of section 12(2) & (3) of the Limitation Act.

This provision does not leave it to the option of a litigant or a petitioner to apply for and obtain a copy as and when he chooses and thus develop a case for the exclusion of time. He cannot be allowed the freedom to apply for and obtain the certified copies of the impugned decree or its judgment on different dates outside the prescribed period of limitation only with the object to save the period of limitation. The petitioner has to restrict himself to the normal statutory requirements in keeping with the provisions of limitation prescribed to seek copies and the consequent exclusion.

In the present case, the judgment and decree was passed by the Addl. District Judge, on 12-10-1998. The application to obtain certified copies of the judgment as well as the decree was made on 22-10-1998. The same were delivered on the same date i.e. 22-10-1998. The civil revision was filed against the said judgment and decree dated 12-1-1998 on 18-1-1999 which was beyond the period of limitation.

Furthermore, the above referred second proviso to section 115, C.P.C. provides that the decision of the learned subordinate Court is to be availed within "90 days of the decision of the subordinate Court". This provision is though parallel to the provisions of subsections (2) & (3) of S.12 of Limitation Act, 1908 but is not in conflict therewith. Even if the provisions of section 115, C.P.C. and those of section 12 of the Limitation Act are read as interwoven, no contradiction arises. These provisions would only mean that excluding the period consumed in obtaining the certified copies of the decree and the judgment upon which such decree is founded, the civil revision shall be filed within 90 days thereof.

Also that the first proviso to section 115, C.P.C. only requires furnishing of copies of the pleadings and the documents in the civil revision over and above the impugned order/decree/judgment of the subordinate Court to support the civil revision. This requirement of filing the support pleadings and the documents along with the civil revision cannot by any stretch reinforce the case of the petitioners and justify delayed filing of the civil revision on the pretext of supply of the certified copies of such documents after the prescribed period of limitation for the civil revision.

Faizullah and others v. Rustam and others PLD 2003 Pesh. 217 ref.

Malik Noor Muhammad Awan for Petitioners.

Naveed Shahryar Sheikh for Respondent No.l.

Muhammad Sharif Butt for Respondents Nos.12, 17, 46, 48 and 49.

Date of hearing: 24th March, 2006.

P L D 2006 Lahore 500

Before Muhammad Sayeed Akhtar and Syed Sakhi Hussain Bokhari, JJ

AL-AMARIA MASOOMA ZAINAB---Petitioner

Versus

PRINCIPAL, ALAMA IQBAL MEDICAL COLLEGE and others---Respondents

Writ Petition No.1105 of 2006, heard on 12th April, 2006.

Educational institution---

----Examination---Candidate appeared in First Professional M.B.B.S. Part-I Examination 2003 but failed; she reappeared in the supplementary. Examination held in 2004 and qualified the examination; she took the First Professional M.B.,B.S. Part-II Annual Examination 2004 but remained unsuccessful; she again appeared in Supplementary Examination held in April, 2005 and Annual Examination in December, 2005 but could not qualify and thus exhausted all the three chances permissible under the rules---Contentions of the candidate were that the First Professional Examination M.B.,B.S. was split into two parts, Part-I and Part-II put together were to be considered as one class and candidate could avail the one chance not used by her in the First Professional M.B.,B.S. Part-I as she had qualified the same in two chances---Candidate further urged the prescribed forty day's time between the two examinations was not provided to her as such she could not properly prepare for the Supplementary Examination held in April, 2005---Validity---Held, relevant Regulations of the University revealed that the First Professional M.B.,B.S. comprised of two independent parts i.e. Part-I and Part-II and for each part three consecutive chances, availed or unavailed, had been provided for qualifying the same---Three chances were part specific and by no stretch of imagination could be carried forward---Language of the said Regulations was unambiguous and left no doubt that the left over chances of the First Part could not be carried over to the Part-II---Candidate had opted to avail the earliest opportunity for clearing the examination, therefore, she could not be allowed to have a volte face to say that she was not provided sufficient time---Right of the candidate to seek education was subject to Statutes/Regulations framed by the University to regulate the studies---If a student failed to clear the examination in the prescribed chances, he ceased to become eligible for further medical education.

Sadua Firdous v. Government of Punjab and others C.Ps. Nos.1448, 1459 and 1460-L of 2005 fol.

Alaptagin v. Principal, Saidu Sharif Medical College, Swat and 3 others PLD 2004 Pesh. 307 distinguished

W.P.No.688 of 2006; C.P.L.A. No.1992 of 2004; C. Ps. Nos.1448, 1459 and 1460-L of 2005; C.P. No.45 of 2006 and Muhammad Umar Wahid and others v. University of Health Sciences and others C.P.No.45 of 2006 ref.

Abdul Sadiq Chaudhry for Petitioners.

Rasal Hassan Syed for Respondent.

Date of hearing: 12th April, 2006.

P L D 2006 Lahore 503

Before Syed Zahid Hussain and Syed Asghar Haider, JJ

Major (Retd.) ISMAT ULLAH CHEEMA through Special Attorney---Appellant

Versus

SARFRAZ AHMAD and 2 others---Respondents

R.F.A. No.364 of 2000, heard on 10th April, 2006.

Tort---

----Malicious prosecution---Proof---Damages, quantum of---Determination---Factors to be considered---Plaintiff has to allege and prove that the defendant acted maliciously and without any reasonable or probable cause---Burden is on the plaintiff to prove malice and absence of reasonable and probable cause---Damages are compensation to vindicate the stand of the aggrieved person showing that there was no substance in the allegations levelled against hint---Quantum of damages has to be proved clearly---Cogent and convincing material has to be placed on record to establish the actual losses---Remote and hypothetical damages cannot be measured in monetary terms and granted---Where there was no direct evidence to establish the actual quantum of money spent on medical bills in connection with the illness due to malicious prosecution or even litigation, the amount claimed by the plaintiff could not be proved---High Court, in circumstances, declined to interfere with the damages granted by the Court below and dismissed the appeal for enhancement of damages.

Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28; Ehsan­ul-Haq Piracha and others .v. Tajammal Hussain 1991 CLC 216 and Munir Ahmad v. Muhammad Sadiq 1986 CLC 1181 distinguished

Stapeley v. Annetts and another (1969) 3 All ER 1541 quoted.

Shahid Zaheer Syed for Appellant. Nemo for Respondents.

Date of hearing: 10th April, 2006.

P L D 2006 Lahore 506

Before Syed Zahid Hussain and Syed Asghar Haider, II

MAPLE LEAF CEMENT FACTORY LTD. through General Manager---Appellant

Versus

WARYAM and others---Respondents

R.F.A. No.202 of 1994, decided on 19th April, 2006.

Civil Procedure Code (V of 1908)---

----0. XX---Land Acquisition Act (I of 1894),Ss.18 & 54---Judgment---Acquisition of land---Reference---Non-advertance by Referee Court to the issues concerning with the very maintainability of reference---Effect---Held, Court was required to record judgment for which the guidelines were mentioned in O.XX, C.P.C.---Judgment, in the present case, did not conform to the provisions of law as it was to be based on evidence in the case and no other material or factor was to be taken into consideration---Referee Court, while recording finding on one issue had clearly found that the landowners had failed to produce any evidence, but still granted relief by making "enhancement in the compensation" which issue was described as "relief"---Relief had to follow the findings on the issues and should have been consistent with those findings but it was not so in the present case---Such a disposition of the matter could not indeed qualify to be a judgment in law and was liable to be set aside---High Court remanded the case for decision afresh by the Refree Court.

Muhammad Siddiq v. Syed Ali Shah and another PLD 1976 Lah. 293; Syed Aulad All Shah Gilani v. Azad Jammu and Kashmir Government through Chief Secretary and another PLD 1987 SC (AJ&K) 1 and Muhammad Nazir v. Muhammad.Ashraf and 3 others PLD 1987 SC (AJ&K) 16 ref.

Ejaz Ahmed Chaudhry for Appellant.

Muhammad Hanif Khatana, Addl. A.-G. Punjab for Official Respondents.

Nemo for Unofficial Respondents.

Date of hearing: 19th April, 2006.

P L D 2006 Lahore 509

Before Syed Shabbar Raza Rizvi, J

Mst. NASEEM BEGUM and others---Petitioners

Versus

S.H.O. and others---Respondents

Writ Petition No.19362 of 2005, decided on 20th April, 2006.

Police Order (22 of 2002)---

----Art. 18(6)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Verification of investigation under Art.18(6), Police Order, 2002---Scope and extent---Expression "verification"---Connotation---Duty of verifying officer detailed.

Police Officers other than those mentioned in Article 18(6) of the Police Order, 2002 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 to 'vertical' change of investigation and not to 'horizontal' transfer of authorities outside and above the relevant District and the latter denoting transfer of investigation by officers performing duties with the relevant District. Such a distinction is not only 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. All notions regarding such a distinction are liable to be rejected.

Investigating Officer could only identify the defect in investigation. If he had found any document fake S.P. Investigation could have activated process given under Article 18(6) of Police Order, 2002, for first change of investigation.

Verifying officer could not have investigated the case himself during process of verification and pass direction to the local police to submit challan against the accused, etc.

Investigation conducted by the verifying officer was declared violative of law and was set aside.

Khizar Hayat v. I.-G. Punjab PLD 2005 Lah. 470 fol. Petitioner in person.

Safdar Tarar for Respondent.

Rana Shahid, S.P. and Kafayat Ullah Bajwa, D.S.P.

P L D 2006 Lahore 512

Before Muhammad Muzammal Khan and Syed Shabbar Raza Rizvi, JJ

Lt.-Gen.(Retd.) JAMSHAID GULZAR, CHAIRMAN FPSC, ISLAMABAD and 4 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division, Government of Pakistan, Islamabad and 2 others---Respondents

Writ Petitions Nos.2379 of 2005 and 68 of 2006 decided on 8th March, 2006.

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

---Art. 199---Constitutional petition involving interpretation of provisions of the Constitution---Maintainable.

(b) Interpretation of statutes---

----"Amendment" and "repeal"---Meaning and distinction.

Law Lexicon Encyclopedic Legal and Commercial Dictionary by Justice Y.V. Chandrachud, p.101; Black's Law Dictionary, 8th Edn. By Bryan A.Gamer, p.89; Zia Ullah Khan v. Government of Pakistan PLD 1989 Lah. 554 and Maxwell on the Interpretation of Statutes, 12th Edn. By P.ST.J Langan p.16 ref.

(c) Federal Public Service Commission (Amendment) Ordinance (XV of 2005)---

----S. 2---Federal Public Service Commission Ordinance (XLV of 1977), S.4---Provision of S.2 of Federal Public Service Commission (Amendment) Ordinance, 2005---Effect---Such provision introduced amendment in S.4 of Federal Public Service Commission Ordinance, 1977, but did not repeal the same.

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

----Art. 264---Provision of Art.264 of the Constitution---Applicability---Such provision would become applicable, when law was repealed, but not, when law was only amended.

(e) Federal Public Service Commission (Amendment) Ordinance (XV of 2005)---

----S. 2---Federal Public Service Commission Ordinance (XLV of 1977), S.4---Constitution of Pakistan (1973), Arts. 89 & 264---Re-promulgation of Federal Public Service Commission (Amendment) Ordinance, 2005 by President of Pakistan after its approval by National Assembly and not the Senate---Effect---No failure on the part of Government in laying Federal Public Service Commission (Amendment) Ordinance, 2005 before National Assembly and Senate nor there was any disapproval from the National Assembly and Senate---Said Ordinance, thus, neither itself stood repealed in terms of Art.89 of the Constitution nor did repeal S.4 of Federal Public Service Commission Ordinance, 1977---Question of attraction of Art.264 of the Constitution would not arise in circumstances.

Saeed Mehtab Butt v. Government of Punjab 1998 PLC (C.S.) 535; Government of the Punjab v. Zia Ullah Khan and 2 others 1992 SCMR 602 and Federation of Pakistan v. United Sugar Mills Ltd. PLD 1997 SC 397 rel.

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

----Art. 266---Expressions "repeal" and "amendment"---Two distinct expressions not being interchangeable.

(g) Federal Public Service Commission Ordinance (XLV of 1977)---

----S. 4(1) [as amended by Federal Public Service Commission (Amendment) Ordinance (XV .of 2005)] & S.4(1-A) [as inserted by Federal Public Service Commission (Amendment) Ordinance (XV of 2005)]---Constitution of Pakistan (1973), Arts. 89, 199 & 264---Constitutional petition---Public Service Commission, members of---Promulgation of Federal Public Service Commission (Amendment) Ordinance, 2005 by the President curtailing thereby the term of office of existing members of Commission---Validity---President was competent to promulgate/re-promulgate the Ordinance with retrospective effect, which would apply to such Members still holding offices---Vires of the Ordinance could not be subjected to judicial review for being a valid piece of legislation---Vested rights of such Members, if any, had been taken away expressly and by necessary intendment in clearly worded Ordinance---Such Members were holding offices at the time of promulgation of the Ordinance thus, their appointment was not a past and closed transaction---Benefit of Art.264 of the Constitution would not be available to the Members for same being not applicable to their case---High Court dismissed constitutional petition in circumstances.

Saeed Mehtab Butt v. Government of Punjab 1998 PLC (C.S.) 535; 2000 SCMR 367; 2001 SCMR 1012; 2001 CLC 385; PLD 2005 Lah. 150 and PLD 2005 SC 605 ref.

Molasses Trading v. Federation of Pakistan 1993 SCMR 1905; PLD 2005 SC 193; 2003 SCMR 291; Facto Belarus Tractors Limited v. Government of Pakistan PLD 2005 SC 605; 2002 SCMR 312 and Zulfiqar Ali Babu v. Government of the Punjab PLD 1997 SC 11 rel.

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

----Art. 260(2)---No difference between an Ordinance promulgated by the President and the law made by Parliament---Principles.

Pir Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66 and Fauji Foundation v. Shamim ur Rehman PLD 1983 SC 457 rel.

(i) Interpretation of Constitution---

---Every provision and word of the Constitution has equal importance.

(j) Constitution of Pakistan (1973)---

---Art.89---Re-promulgation of an expired Ordinance by the President---Scope---Re-promulgation would be included in promulgation---Promulgation of an Ordinance being a legislative power conferred upon the President, if once exercised, could be exercised again---Principles.

PLD 1999 Lah. 320 and PLD 1993 Lah. 70 ref

2005 CLC 452 and Mehmood Hussain Harvi v. Federation of Pakistan PLD 1990 Lah. 320 rel.

M. Akram Sheikh, Naseer-ud-Din Nayyar, Hafiz Arafat for Appellant.

Makhdoom Ali Khan, Attorney-General of Pakistan for Respondents.

Date of hearing: 6th March, 2006.

P L D 2006 Lahore 534

Before Mian Saqib Nisar, J

PREMIER INSURANCE COMPANY and others---Petitioners

Versus

ATTOCK TEXTILE MILLS LTD.---Respondent

C.O.No.17-C of 1991, decided on 31st March, 2006.

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

----S. 30---Setting aside of award---Basic principles which should prevail with the Court while considering the objections to an award and the criteria on the basis of which, an award should be set aside elucidated.

The statutory grounds in this behalf are clearly provided in sections 30 and 33 of the Arbitration Act. An arbitration is a forum, which is chosen by the parties out of their own free-will and consent, for the resolution of the dispute, inter se them; such forum has the sanctity of the confidence of the parties reposed upon it and to all intents and purposes, the arbitrators are' the Judges of law and fact and can accordingly decide the dispute. It also cannot be disputed that the arbitrators have the full authority to, appreciate the facts of the case, according to their own perception, expertise, knowledge and wisdom, and such appreciation -of facts, if not suffering from the vice of any misreading and non-reading of the record, shall not be interfered with by the Court only on account that another conclusion is possible. The Court while considering the validity of the award should not sit as a Court of appeal, trying to fish or dig out the latent errors in the proceedings or the award, but should only confine itself to examining the award by ascertaining, if there is any error, factual or legal, which floats on the surface of the award or the record and if such an amiss is allowed to remain, grave injustice shall be done to the aggrieved party. The perversity about the reasoning, though is a ground for the interference in the award, but the Court should not infer the perversity because of the factual conclusion being wrong, rather it should be taken to be analogous and akin to "perverse verdict" which means that the factual conclusion drawn is against the law; obviously this shall include the decision of the arbitrator on the facts of the case being based upon the misreading and the non-reading of the evidence/record. The award of an arbitrator, who is the Judge selected by the parties themselves, should not be lightly interfered with until and unless it is established that the error committed by him is so glaring that if it is overlooked, it shall lead to miscarriage of justice. But certainly the award cannot be interctepted on the ground that on the reading of the evidence, a conclusion other than arrived at by the arbitrator, is possible.

Mts. Joint Venture KG/Rist v. Federation of Pakistan, through Secretary Food, Agriculture and Corporation and 2 others PLD 1996 SC 108; Qazi Ghulam Ahmad v. J.F.Elah, Election Tribunal, Chakwal and others PLD 1962 Lah. 786; Messrs Afiluddin Brothers Ltd. v. Messrs Pak. Jute Balers Narayanganj 1970 SCMR 1; Federation of Pakistan v. Yusuf Ali Khan PLD 1977 SC 237; J.F. C. Gollaher v. Samad Khan 1993 MLD 726; Gulzar Hussian Awan v. Akbar 1984 CLC 3164; Messrs 'bad & Co. v. Government of Sindh and others PLD 1981 Kar. 236; Government of N.-W.F.P. through Secretary Forest, Peshawar and 4 others v. Aziz ur Rehman 1991 MLD 422; Per Lord Kenyon in Master v. Miller 4 'hR 320; Ghulam Abbas v. Karachi Port Trust PLD 1987 SC 393; Sh. Mahboob Alam v. Sh. Mumtaz Ahrnad PLD 1960 Lah. 601; Messrs A.Z. Company v. Messrs S. Maula Bukhsh Muhammad Bashir PLD 1965 SC 505; MacGillivry and Parking ton on Insurance Law Paras 1925 to 1928; E.R.Hardy Ivamy 5th Edn. pp. 407 to 411; Chitty on Contract para.39-024 and 39-60; Good Faith and Insurance Contract by Contracts by Peter Macdonald Eggers Patrick Foss, pages 11.12, 11.13, 11.5, 11.26, 11.33, 11.34, 11.35, 11.54, 14.108 and 14.109; American Jurisprudence Second Edition Vol. 44 page 299 Article 1371; Digest of United State Supreme Court pages 204; Brooms Legal Maxims 10th Edition page 94-97 and State Life Insurance Corporation v. Mst. Sarwat Kazmi 1979 SCMR 295; Mohsin A. Rehman v.Messrs Premier Insurance Co. of Pakistan PLD 1967 Kar. 204; Messrs Burjor Ardeshir Industries Ltd. Karachi v. The Employer's Liability Assurance Corporation Ltd. Karachi PLD 1970 Kar. 462; Norwich Union Life Insurance Society v. Mst. Zainab Bibi 1981 CLC 1722; State Life Insurance Corporation v. Mst. Begum Jan PLD 1983 SC 421; State Life Insurance Corporation v. Mamoor Khan 1993 CL 790; Galle Gowns Ltd. v. Licences and General Insurance Company Ltd. (1933) 47 LI.L.Rep. 186 K.B.; Derry v. Peek (1886-90) All English Reports, page 1, pp. 22 and 23; Khan Brothers and Association v. Director General Foods, Government of Pakistan 1998 CLC 1671; Zulfiqar Ali Khan v. Federation of Pakistan PLD 1998 Lah. 132; World Circle Limited v. State Cement Corporation of Pakistan 1997 CLC 212; Quality Builders Ltd. v. Karachi Metropoliton Corporation 1999 CLC 1777; Ghee Corporation of Pakistan Ltd. v. Broken Hill Proprietary Co. Ltd. PLD 1999 Kar. 113; Abdullah Traders v. Trading Corporation of Pakistan 1999 CLC 2047; Income Services v. Sui Gas Transmission PLD 1993 Kar. 429; Aslam Saeed and Co. v. Trading Government of Pakistan PLD 1985 SC 252; Trustees of the Port of Karachi v. Iftikhar Brothers 1993 CLC 1491; A.Z. Company v. S. Maula Bukhsh Muhammad Bashir PLD 1965 SC 507; Shafi Corporation Ltd. v. Government of Pakistan PLD 1994 Kar. 127 ref.

(b) Insurance---

---Uberrima fides, rule of---Applicability---Scope.

Though "uberrima fides" i.e. utmost good faith is a universal rule, applicable to the insurance contracts, but at the same time, there is a clear distinction between a fraud, practiced by a party in submitting a claim and/or mistake or inadvertence in this regard.

(c) Insurance Act (IV of 1938)---

---S. 47-B---Interest on late settlement of claim---Such interest could begranted in the situation where the claim was not met by the Insurance Company within time.

Muhammad Naeem Sehgal for Petitioners. Raja Muhammad Akram for ATM

Khawaja Muhammad Farooq for National Bank. Date of hearing: 31st March, 2006.

P L D 2006 Lahore 551

Before Umar Ata Bandial, J

RAVIANS COOPERATIVE HOUSING SOCIETY LIMITED ("RCHS") through Secretary and 7 others----Petitioners

Versus

REGISTRAR COOPERATIVE SOCIETIES, PUNJAB and 2 others---Respondents

Writ Petition No.2196 of 2006, decided on 3rd April, 2006.

Cooperative Societies Rules, 1927---

----R. 48---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election of Managing Committee of Cooperative Housing Society---Notice of Annual General Meeting (AGM) to members regarding approval of election schedule---Order of Deputy Registrar Cooperative Societies suspending AGM agenda for non-completing election process within 45 to 60 days under Model Byelaws and NAB's action plan---Appointment of Administrator by Registrar, Cooperative Societies after expiry of tenure of Managing Committee without issuing notice to Society---Validity---Such Byelaws never prescribed such a period for completing election process of a Cooperative Society---Sanction against AGM from considering agenda item was unjustified---Failure of Registrar, Cooperative Societies to give prescribed prior notice to the Society would make its order illegal and void---Order of Registrar did not cast any allegation of misconduct or wrong doing upon outgoing Managing Committee---Supersession of Managing Committee was a drastic measure meant for serious defaults---Unmotivated delay of a few days in scheduling election would not involve injury and prejudice or threat to the interests of Society necessitating removal of its management---Order of Registrar of Cooperative Societies was illegal for administering a remedy not proportionate to the mischief being redressed---Tenure of Managing Committee had already expired, thus, extending its life through judicial verdict would not be appropriate---Nomination of three non-contesting members of interim committee by outgoing Managing Committee would be appropriate to hold fresh election of Managing Committee and carry on and manage day to day affairs of Society---High Court disposed of the constitutional petition with such directions.

Zaibtun Textile Mills Ltd. v. Central Board of Revenue and others PLD 1983 SC 358; Independent Newspapers Corporation (Pvt.) Ltd. v. Chairman, Fourth Wage Board 1993 SCMR 1533 and Messrs

Neelam Textile Mills Ltd. v. State Bank of Pakistan and 2 others PLD 1999 Kar. 433 rel.

Asad Javed for Petitioners.

Muhammad Ilyas Khan for Respondents.

P L D 2006 Lahore 555

Before Ali Nawaz Chowhan, J

WAPDA and others---Petitioners

Versus

MUHAMMAD JAVID and others---Respondents

Writ Petitions Nos.3693 of 2005 and 1434 of 2004, heard on 15th May, 2006.

Electricity Act (IX of 1910)---

----Ss. 26(6) & 26-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Detection Bill---Electric Inspector---Jurisdiction---Scope---Electric Inspector has no jurisdiction to adjudicate on a matter pertaining to detection bill and, therefore, the exercise of jurisdiction or any opinion expressed thereon by the Electric Inspector was an illegal act.

Civil Petition No.2971-L of 2004; WAPDA and others v. Mian Muhammad Riaz and another PLD 1995 Lah. 56 and Colony Textile Mills Multan v. Chief Executive, Multan Electricity Power Company Ltd. and 2 others 2004 SCMR 1679 ref.

Aurang Zeb Mirza for Petitioners.

Muhammad Ali Kausar, Asstt. Electric Inspector for Respondents.

Date of hearing: 15th May, 2006.

P L D 2006 Lahore 557

Before Jawwad S. Khawaja and Syed Zahid Hussain, JJ

MUDASSER IQBAL BUTT---Appellant

Versus

SHAUKAT WAHAB and others---Respondents

R.F.A. No.478 of 2005, decided on 9th May, 2006.

Defamation Ordinance (LVI of 2002)---

----Ss. 3, 4, 8, 13 & 15---Defamation---Suit for damages---News items published in the daily newspaper were highly defamatory, scandalous and were prime examples of irresponsible journalism---Plaintiff having deposed that news items were false, onus of proving that news items were true, thus shifted on to the defendants, but they failed to prove the correctness of the scandalous allegations made in the news items---Solitary statement of one of the defendants was certainly not enough on this score---Defence set up in the written statement that the news report was true had not been established on record---Ground raised by the defendants by way of defence that news items were published impartially, without malice and in the public interest, was not substantiated by any investigation or probe undertaken by the defendants to establish the veracity of the news items in question; only if such probe had been made diligently and in good faith, defendants could have shown that they had acted without malice and in the public interest---Defendants having failed to do so, they must be held liable for defaming the plaintiff---Legal presumption that a registered letter was duly delivered to and received by the addressee (the defendants) containing notice under S.8, Defamation Ordinance, 2002 remained unrebutted---Prerequisite for filing suit for defamation under the Defamation Ordinance, 2002 thus stood proved---Trial Court, had awarded a sum of Rs.10,00,000 to the plaintiff by way of damages---Defendants were unable to advance any argument to show that the award was excessive---News items being highly defamatory, scandalous and examples of irresponsible Journalism, quantum of damages awarded to the plaintiff could have been much higher, had the plaintiff filed cross-objections---No objections having been filed, High Court affirmed the finding of the Trial Court in appeal.

Muhammad Yasin Bhatti for Appellant.

Sh. Muhammad Asif for Respondents.

Date of hearing: 9th May, 2006.

PL D 2006 Lahore 561

Before Ali Nawaz Chowhan, M. Bilal Khan and Syed Shabbar Raza Rizvi, JJ

MUHAMMAD ARIF---Petitioner

Versus

SUPERINTENDENT CENTRAL JAIL, LAHORE and 2 others---Respondents

Writ Petition No.18205 of 2005, heard on 12th May, 2006.

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

----Arts. 45 & 199---Criminal Procedure Code (V of 1898), Ss.401 & 382-B---Penal Code (XLV of 1860), Ch.XVI (Ss.289 to 338-H)--- Remissions in sentence by the President of Pakistan---Constitutional powers exercised by the President of Pakistan under Art.45 of the Constitution could not be eclipsed by the law of Diyat.

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

----Arts. 45 & 199---Criminal Procedure Code (V of 1898), Ss.401 & 382-B---Remission was allowed, in the present case to an under trial according to the interpretation of law at the relevant time was without an exception---Such remission in sentence which had been acted upon, could not be withdrawn---Principles.

Lt.-Col. G.L. Bhattacharya v. The State PLD 1963 Dacca 422 and Bhattacharya's case PLD 1964 SC 503 fol.

Chaudhry Aamir Ali v. The State 2002 YLR 1902 and Haji Abdul Ali v. Haji Bismillah and 3 others PLD 2005 SC 163 ref.

Maqbool Elahi Malik, Umar Riaz Sheikh and Ijaz Maqbool for Petitioners.

Ch. Sadiq Hussain and Khurshid Anwar Bhinder, Addl. A.-G. for Respondents.

Raja Qayyum, Law Officer and Mahmood Fakhri, Asstt. Superintendent Jail

Date of hearing: 12th May, 2006.

P L D 2006 Lahore 565

Before Syed Zahid Hussain, J

MUNIR AHMED and 7 others---Appellants

Versus

BASHIR AHMED and 2 others---Respondents

R.S.A. No.112 of 1999, decided on 5th May, 2006.

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

----S. 12---Suit for specific performance of agreement to sell property---Case of the plaintiff was that defendants had initially executed agreements for the sale of suit property for a consideration of Rs.1,04,000 out of which a sum of Rs.75,000 had been received by defendants and possession was delivered and that pending suit it transpired that the suit property had been sold by defendants through a sale-deed---Controversy thus centred around as to whether the plaintiff was entitled to the decree of specific relief and legality of subsequent sale---Before entering into the transaction of subsequent sale, defendants had called upon the plaintiff through notices for payment of balance price and execution of the sale-deed but the plaintiff failed to respond---Held, though time may not be ordinarily of the essence of agreement, yet the owners could not be expected to hold the property and wait for the execution of sale-deed in favour of respective vendee indefinitely; he might be in genuine need of money and each day night have great value for him apart from the fact that there was continuous trend of appreciation in the value of immovable properties---Defendants were right in contending that it was the plaintiff himself who had failed to perform his part of the agreement and was not entitled to the grant of decree for specific performance---Burden of proof of subsequent sale of the property being bona fide was on the defendants who had in circumstances, sufficiently discharged the same and nothing in rebuttal was brought on the record---Subsequent buyer, in circumstances, was proved to have acted in good faith in purchasing the property.

Fit. Lt. (Retd.) Mumtaz Khan v. Mst. Amtul Batool 1984 CLC 3462; Iqbal Sultan v. Miss Chand Sultan and 2 others 1990 CLC 366; Muhammad Yasin v. Allah Din 1991 CLC 1457; Mst. Surraya Begum and others v. Mst.Suban Begum and others 1992 SCMR 652; Sher Muhammad v. Qutabu and others 2002 SCMR 1447; Province of Punjab through Collector, Faisalabad and another v. Rana Hakim Ali and another 2003 MLD 67; Sm. Parul Bala Ghosh v. Saroj Kumar Goswami and others AIR (35) 1948 Calcutta 147; Sint. Chand Rani by L.Rs. v.

Smt. Kamal Rani by L.Rs. AIR 1993 SC 1742; Muhammad Ashraf v. All Zaman and others 1992 SCMR 1442; Messrs Pak United Housing Enterprise v. Ramzan and 7 others 1992 CLC 1678; Qazi Muhammad Bukhsh and 20 others v. Ghulam Sarwar and 13 others 2001 CLC 1526; Nadir Shah v. Lal Shah and another PLD 1954 Lah.447; Pathana v. Mst. Wasat and another PLD 1965 SC 134; Muhammad Amin and 5 others v. Muhammad Latif 1987 CLC 2358; Atta Rasool v. Fateh Khan and others 1995 CLC 1321. The Lahore Development Authority v. The Commissioner, Lahore Division and others 1984 SCMR 746 ref.

(b) Registration Act (XVI of 1908)---

----S. 47---Subsequent sale by vendor in a case where vendee of first agreement to sell had failed to discharge his part of agreement to sell---Held, by virtue of S.47, Registration Act, 1908, the date of execution of such a document would be the one on which it was signed by the parties and not the date of execution of subsequent agreement to sell.

The Lahore Development Authority v. The Commissioner, Lahore Division and others 1984 SCMR 746 ref.

Ch. Muhammad Amin Javed for Petitioners.

S.M. Masood for Respondents Nos. 1 and 2.

Zeshan Ashraf Mir for Respondent No.3.

Dates of hearing: 24th April and 5th May, 2006.

P L D 2006 Lahore 571

Before Mian Saqib Nisar and Muhammad Sair Ali, JJ

MUHAMMAD RAMZAN---Appellant

Versus

SAIF NADEEM ELECTRO (PVT.) LTD. through Chairman and 5 others---Respondents.

R.F.As. Nos.462 of 2004 and 31, 36, 61 and 62 of 2005, decided on 19th April, 2006.

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

----Arts. 79 & 17(2)---Specific Relief Act (1 of 1877), S.12---Suit for specific performance of agreement to sell by second vendee of the same property against vendors and first vendee---Execution of document---Proof---Requirements---Plaintiff (Second vendee) was obliged to prove through examining the two attesting witnesses of the instrument and to provide independent proof as to whether amount of advance consideration was paid to the vendor through summoning the record of the bank, in which allegedly the transaction of such payment took place---Plaintiff had neither given any valid reason for non-examination of two witnesses nor provided the independent proof of making payment of advance amount as alleged---Contention of the plaintiff was that vendors, who were the executants of the agreement, had admitted the same and the payment thereof as well, thus it was not required to examine the other marginal witnesses; the summoning/production of the record/registers of the stamp vendor and the scribe, or the bank record for the purposes of proving the advance payment---Validity---Held, admission of co-defendant was not binding upon the others, one defendant in his written statement had disputed the genuineness of the said agreement and had imputed fraud and collusion between the second vendee and vendor, thus in such peculiar situation, it was incumbent upon the second vendee to have proved the agreement in accordance with the mandatory provision of Art.79, Qanun-e-Shahadat, 1984, besides having corroborated his assertions through the summoning and production of the record of the stamp vendor, the deed writer and the bank documents of the payment of advance transaction but all such requirements were conspicuously missing in the case---Key witness of the plaintiff (one of the vendors) had departed and deviated from the contents of the plaint and had stated that he had entered into the agreement to sell with the defendants, whereas this was not the case set out in the plaint by the plaintiff---Plaintiff; in circumstances, had not proved his case about the execution of the agreement as against the first vendee---However, vendors/defendants having admitted the said document and also the receipt of payment of the advance money, such admission was binding upon them, therefore, decree for the return of the amount of earnest money received by them from the plaintiff was rightly passed.

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

---Ss. 73 & 74---Transfer of Property Act (IV of 1882), S.54.---Specific Relief Act (I of 1877), Ss.12 & 27(b)---Suit for specific performance of agreement to sell property---Compensation for loss or damages caused by breach of agreement---Scope---No stipulation with regard to compensation was found in the alleged agreement to sell and plaintiff had failed to lead any evidence about the plea for claiming the compensation which he was bound to prove in terms of Ss.73 & 74, Contract Act, 1872---Effect---Contention of the plaintiff was that he was bona fide purchaser of the property---Held, according to the provisions of S.54, Transfer of Property Act, 1882 an agreement to sell would not create or purport to create any right or interest in an immovable property, except that it conferred upon a party the right to seek the specific enforcement thereof, but when the. plaintiff was not yet the owner of the property, no defence in terms of S.27(b), Specific Relief Act, 1877 could be set out---Plaintiff's claim that he was unaware of the agreement to sell between the first vendee was negated by one of the vendors, by appearing before the Court and deposing that only he had agreed to sell the land to the plaintiff which deal was finished verbally but he had not returned the advance money received from him---Said statement of the vendor had not been subjected to cross-examination by the plaintiff and was enough to show that the plaintiff had the knowledge of the earlier agreement to sell and therefore, it was his responsibility to have made inquiries to find out, about the fate of the earlier agreement to sell---Appeal of the plaintiff claiming compensation from breach of agreement, in circumstances, was dismissed by the High Court.

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

----S. 12---Guardians and Wards Act (VIII of 1890), S.29---Suit for, specific performance of agreement to sell joint property---Plea raised by one of the executants of the agreements was that when agreements to sell were executed he was minor, therefore such agreements were void---Admittedly said defendant was minor at the relevant time and agreement was entered on his behalf by his real mother; in the agreement, it was specifically stipulated that the mother shall obtain the guardianship certificate and the permission from the Guardian Court for the sale of the minor's share in the joint suit property before the target date; these documents had been produced by the defendants establishing that the mother applied for the permission from the Guardian Court and procured the permission in question---Contention of the plaintiff was that application to the Guardians Court for the permission under S.29, Guardians and Wards Act, 1890 was made pursuant to the agreement to sell and the agreement was mentioned in the application and the permission was accordingly sought and obtained on that account and that any sale agreement between the minor without first obtaining the permission from the Guardian Judge was void---Validity---Held, in the present case, it was not the minor, who had entered into the agreement himself, rather that was through his defecto guardian, the mother---Agreement to sell was not the sale agreement of an immovable property, but it was only a promise to do so in future---If the agreement had been made on behalf of the minor by a close relative, like the mother and prima facie was in the interest of the minor, as in the present case, because the other co-sharers were selling their shares, and it was not in the benefit of the minor to retain his share out of the joint Khata and there was a clear stipulation in the agreement that the permission shall be obtained from the Guardian Court before the sale was made, such agreement shall not be void or invalid, rather the same shall be an agreement, where the competency of the mother to enter into the transaction and enforceability thereof, shall be dependent upon the guardianship certificate and the permission of the Court, if it was granted, the agreement would become enforceable, but otherwise it shall have no legal value---Agreement, in the present case, clearly contained a stipulation about the permission of the Guardian Court, it was on account of said agreement by a specific reference, that the permission was obtained and granted by the Court, when the application was made by the mother wherein it was clearly mentioned that the sale was to the benefit of the minor and was meant to safeguard his interest---Plea propounded by the person who was minor at the time of execution of agreement to sell in circumstances, was void, had no force and was repelled by the High Court in appeal.

Ghulam Nabi v. Faisal Naveed and 2 others 2003 SCMR 1794 and Hazraf Khan v. N. Khalid Khan and others 1997 CLC 1765 distinguished.

M. Mahmood for Appellant.

Sajjad Mehmood Sheikh for Respondent No.l.

Sardar Nazer Hussain Dogar for Respondents Nos. 2, 4 to 6.

Syed Zafar Abbass Gillani for Respondnnt No.3.

Ijaz Feroz for Respondent No. f (in R.F.As. Nos.36 and 6l of 2005).??? .

Date of hearing: 19th April, 2006.

P L D 2006 Lahore 582

Before Syed Zahid Hussain, J

MUHAMMAD IBRAHIM and 2 others---Applicants

Versus

ASRAR AHMAD KHAN and others---Respondents

C.M. No.109 of 2000 in Writ Petition No.1018-R of 1969, decided on 3rd May, 2006.

(a) Fraud---

----Limitation---Transaction emanating from commission of fraud or order can be assailed whenever the same comes to the knowledge of the person adversely affected by the same---Limitation for setting aside an order obtained through fraud and misrepresentation would start from the date of knowledge.

Sheikh Muhammad Sadiq v. Elahi Bakhsh and 2 others 2006 SCMR 12; Abdul Aziz and 6 others v. The Member, Board of Revenue and 15 others 1998 SCMR 1078 and Sarfraz v. Muhammad Aslam Khari and others 2001 SCMR 1062 ref.

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

----S. 12(2)-Constitution. of Pakistan (1973), Art.199---Constitutional petition---Fraud/misrepresentation---Limitation---Application under S.12(2), C.P.C. qua a judgment dated 25-6-1973 was moved on 15-2-2000 after more than 26 years---Applicants were fully aware of the judgment in question as they had been participating in the post-remand proceedings before the Notified Officer and had filed an incompetent appeal against order of Notified Officer dated 18-5-1995 which was subject matter of a constitutional petition filed in 1996---Ali such facts had not been disclosed in the application under S.12(2), C.P.C.---Effect---Held, in the application there was not a remote reference to such essential aspects of the matter, even no attempt had been made to explain the long delay---Applicants having participated in post-remand proceedings and had filed appeal thereagainst, it could not be said that they had no knowledge of the judgment dated 25-6-1973---Fact that application made was clearly beyond limitation could not be denied and could not be allowed simply for the reason that there were allegations of fraud etc.---Door of the Court could not be knocked at any time ignoring the period of limitation and law of limitation could not be rendered nugatory and redundant.

Mian Nisar Ahmed and Saadat Nisar for Applicants.

Khawaja Ahmed Tariq Raheem for Respondents.

P L D 2006 Lahore 584

Before Syed Zahid Hussain, J

FALAK SHER and others---Petitioners

Versus

Mst. KANEEZ BIBI---Respondent

Civil Revision No.2520 of 2000, decided on 17th May, 2006

Specific Relief Act (I of 1877)---

----S. 8---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13---Suit for possession/ejectment by co-owner---Maintainability---Requirements---Suit for possession can be brought by all the co-owners jointly; it is open, however, to one of them also to sue for possession, but he must join the co-owners as defendants and the decree will be for joint possession and not in favour of the plaintiff only; unlike that, a suit for ejectment can be filed by one of the co-owners without joining the others as defendants---Other co-owners having not joined the plaintiff in bringing suit for possession and not even impleaded her as party to the suit by the plaintiff, suit was defective which was fatal to its maintainability.

Khalique Ahmed v. Abdul Ghani and another PLD 1973 SC 214 fol.

Hassan Ahmad Khan Kanwar for Petitioners.

Shahid Qayyum Ch. for Respondent.

Date of hearing: 17th May, 2006.

P L D 2006 Lahore 585

Before Syed Zahid Hussain, J

SUBEH SADIQ---Petitioner

Versus

Mst. RAJAN through Legal Heirs---Respondents

Civil Revisions Nos.1841 and 2367 of 2005, decided on 18th May, 2006

Civil Procedure Code (V of 1908)---

----0. I, Rr.9 & 10, Ss.96 & 115---Appeal/revision---Non-impleading of necessary parties---Effect---Where the petitioners failed to advance any convincing explanation for not impleading necessary parties either in appeal or in revision, such a defect was fatal to the maintenance of appeal/revision.

Muhammad Suleman v. Abdul Rashid and 13 others PLD 1987 Lah. 387 fol.

Mian Muhammad Waheed Akhtar for Petitioner.

Shaukat Hussain Baloch for Respondents.

Date of hearing: 18th May, 2006.

P L D 2006 Lahore 587

Before Ali Nawaz Chowhan, M. Bilal Khan and Syed Shabbar Raza Rizvi, JJ

INAYAT BIBI---Appellant

Versus

AMJAD HUSSAIN and others---Respondents

Intra-Court Appeals Nos.349/2001, 384/2001, 158/2001, 13380/2001, 10507/2001, 14203/2001, 16137/2001, W.Ps. Nos.3658/2002 and 12286/2003, decided on 16th May, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 401 & 382-B---Constitution of Pakistan (1973), Art.45---Remission of sentence by the President of Pakistan---Undertrials and Convicts---Entitlement for remission---Scope---Remissions granted by the President of Pakistan under Art.45 of the Constitution were not available to the prisoner for the period during which he had not been convicted of any offence nor was undergoing any sentence.

Haji Abdul Ali v. Haji Bismillah and 3 others PLD 2005 SC 163 and Inayat Bibi v. Amjad Ali and others 2001 PCr.LJ 1453 fol.

Farooq Haider for Appellant.

Ch. Sadiq Hussian and Khurshid Anwar, Addl. A.-G. for Respsondents.

Raja Qayyum, Law Officer and Mahmood Fakhri, Asstt. Superintendent Jail.

Dates of hearing: 12th and 16th May, 2006.

P L D 2006 Lahore 589

Before Syed Zahid Hussian and Jawwad S. Khawaja, JJ

Mst. KHURSHID BEGUM through Legal Heirs and others---Appellants

Versus

MUHAMMAD SADIQ and another---Respondents.

R. A. No.44 of 2000, decided on 11th May, 2006.

Civil Procedure Code (V of 1908)---

----O. XLVII, R.1-Review-Grievance of the applicants was that they received a notice from the High Court that appeal was listed for hearing on 11-6-1998 but when they approached the High Court on the said date, they discovered that the case had actually been heard on 10-6-1998 and thus they were condemned unheard---Validity---Record showed that the case in question appeared in the regular cause list for 11-6-1998 and was heard on the said date and on both the dates i.e. date of hearing (11-6-1998) and date of announcement of the judgment (18-6-1998) the names of the counsel for the parties duly appeared therein---Date mentioned at the top of the judgment i.e. 10-6-1998 as date of hearing of the appeal was merely a typographical error having crept in due to the oversight of the Court official which had no material bearing---Such an assumption that the appeal was heard on 10-6-1998 (which was not the date of hearing) stood belied by the record/entries duly maintained by the Court having sound credibility---Standing and legal efficacy of judgment of High Court, a Court of record, could not be impaired on such assumptions---No advantage could, thus, be taken of such an error which stood corrected accordingly---Predecessor-in-interest of the petitioners, in the present case, had been served and had the service of a counsel where his name had also appeared in the cause list---No ground for review of judgment having been made out, application for review was dismissed.

Mst. Nigar Bibi and others v. Salahuddin Khan and others PLD 1990 SC 76 and Mst. Fehmida Khatoon v. Additional Deputy Commissioner (Consolidation), Lahore and another PLD 1975 Lah, 942 distinguished.

Ch. Muhammad Rafique Waraich for Appellants.

Iqbal Hameed-ur-Rehman for Respondents.

Date of hearing: 11th May, 2006.

P L D 2006 Lahore 592

Before Syed Zahid Hussain, J

IDREES TEXTILE MILLS LIMITED through Manager Sales Tax---Petitioner

Versus

WAPDA through Chairman and 4 others---Respondents

Writ Petitions Nos.2093/2004, 4305/2004, 4306/2004, 4307/.2004, 8018/2004, 681/2005, 1998/2005 and 6110/2005, decided on 24th April, 2006.

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

----S. 22---Constitution of Pakistan (1973), Arts.189, 190 & 199---Decision of Supreme Court binding on other Courts---Scope and extent---Constitutional petition---Grievance of the petitioners against WAPDA was that their request for reduction of load had either not been attended to properly or rejection of such request by WAPDA was illegal and un­warranted and direction was, thus, sought to WAPDA to reduce their sanctioned load---Matter in another case, was agitated by WAPDA before the Supreme Court which petition was dismissed by refusing leave to appeal and judgment by the Supreme Court in the matter was quite instructive---Policy decision of WAPDA which found mention in the judgment of Supreme Court was still in the field---Reasons prevailed with the High Court in the judgment under appeal before the Supreme Court which was affirmed were quite weighty, leaving no scope for departure therefrom---WAPDA had accepted the decision of the High Court through that said judgment and had made a policy to grant the reduction of load to the consumers---High Court, in the present petitions, followed the same and observed that judgment of the Supreme Court was binding on the parties and was entitled to greatest respect and all were expected to honour and obey the same---WAPDA being party in the judgment of the Supreme Court, the judgment was binding on WAPDA; such was the rationale and object of Arts.189 & 190 of the Constitution---Petitioners who had similar grievance were entitled to be governed by the said judgment, in like manner---Mere filing or pendency of the review did not in any way impair the legal efficacy of the judgment unless reversed or reviewed---Parties should honour and obey the judgment of the Supreme Court so long as it held the field.

Messrs Century Paper and Board Mills Ltd. v. WAPDA and another 2002 YLR 2224 in C.P. No.2626-L of 2002 and Standard Chartered Bank v. Karachi Electric Supply Corporation Ltd. through Managing Director PLD 2001 Karachi 344 ref.

Navid Ashiq Alvi for Petitioner.

Muhammad Ilyas Khan for Respondents.

Anwar Kamal for Respondent (in W.P. No.6110 of 2005).

Date of hearing: 24th April, 2006.

P L D 2006 Lahore 597

Before Syed Zahid Hussain, J

JAMIL AHMAD SHEIKH and another---Petitioners

Versus

DISTRICT OFFICER (REVENUE), KASUR and 3 others---Respondents

Writ Petitions Nos.2676, 2677, C.Ms. Nos. 3, 4 and 1126 of 2006, heard on 11th May, 2006.

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

----Ss. 42 & 163---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2---Constitution of Pakistan (1973), Arts.175(2) & 199---Constitutional petition---Evacuee land, allotment of---Sanction of mutation on basis of such allotment---Review of mutation by District Officer (Revenue) on the ground that such allotment did not have any basis from RL-II, which was prima facie obtained illegally and fraudulently---Validity---District Officer (Revenue) was not a Notified Officer under Evacuee Laws, thus, he could not assume jurisdiction to determine legality or otherwise of an allotment---Mutation was merely consequential entries in Revenue Record---Impugned order was wholly without any lawful authority and of no legal effect---High Court accepted the constitutional petition.

Shabbir Ahmad v. Mst. Kabir-un-Nisa and others PLD 1975 SC 58 and Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another PLD 1975 SC 450 rel.

(b) Jurisdiction---

----An act would be without lawful authority and of no legal effect, when the person doing same had no authority or jurisdiction to do same---Such act would be ultra vires and without jurisdiction---Cases of inherent in competency, total want of jurisdiction could not be overlooked, which would be liable to be declared as without lawful authority.

Shabbir Ahmad v. Mst. Kabir-un-Nisa and others PLD 1975 SC 58 and Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another PLD 1975 SC 450 rel.

Tallat Farooq Sheikh for Petitioners.

Ch.Aamir Rehman, Addl. A.-G. Punjab for Respondents Nos.l, 2 and 4.

Imran Raza Chaddhar for Respondent No.3.

Muhammad Zafar Chaudhry for Applicants (in C.M. No.1126 of 2006).

Date of hearing: 11th May, 2006.

P L D 2006 Lahore 600

Before Syed Zahid Hussain, J

AKBAR ALI and 4 others---Petitioners

Versus

DISTRICT JUDGE, FAISALABAD and 4 others---Respondents

Writ Petition No.24185 of 1999, decided on 15th May, 2006.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioners, in the present case, had acquired right and interest in the land vide gift mutation and in a suit in respect of said land, petitioners were not impleaded as party---Petitioners, after dismissal of their. application for impleading as party, approached the Civil Court through application under S. 12(2), C.P.C. in which they had succeeded---Revisional Court, however reversed the judgment of the Trial Court on untenable premises and grounds overlooking the findings of Trial Court, that decree passed in the suit was not' a valid decree---Validity---Suit, in circumstances, warranted to be tried after affording opportunity of hearing to petitioners in view of their asserted right---View of the revisional Court that it was not necessary to implead the petitioners as party to the suit as same was neither consistent with law nor was supportable on facts particularly when the petitioners were not impleaded in the suit as party---Validity---If a person was adversely affected by an order or judgment of a Court or Tribunal rendered in a proceeding to which he was not a party he could file an application under S.12(2), C.P.C.---Application of petitioners under S.12(2), C.P.C. being competent in law, High Court declaring the judgment of revisional Court as unsustainable in law and of no legal effect, restored the judgment of the Trial Court, result whereof would be that the suit in respect of the land would be tried by the Trial Court after impleading the petitioners as party therein in accordance with law.

Ch.. Jalal Din v. Mst. Asghari Begum and others 1984 SCMR 586; Ghulam Muhammad v. M. Ahmad Khan and 6 others 1993 SCMR 662 and Khawaja Muhammad Yousaf v. Federal Government through Ministry of Kashmir Affairs and others 1999 SCMR 1516 ref.

Mian Abdul Qayyum Latif for Petitioners.

Rana Sardar Ali for Respondents Nos. 3-A to C. Rest of the respondents ex parte.

Date of hearing: 15th May, 2006.

P L D 2006 Lahore 603

Before Syed Zahid Hussain, J

Messrs SHEIKH SPINNING MILLS LTD. through Office Manager---Petitioner

Versus

GOVERNMENT OF PUNJAB, IRRIGATION AND POWER DEPARTMENT through Secretary and 5 others---Respondents

Writ Petition No.8689 of 2005, decided on 17th May, 2006.

(a) Electricity Act (IX of 1910)---

----S. 26(6)---Government of Punjab Notification No.S.O.(Power) I&P 1-1/2002 dated 23-9-2002---Constitution of Pakistan (1973), Art.199---Constitutional petition---Detection Bill---Appeal by consumer to the Special Committee---Recommendations of Special Committee before the Government---Procedure---Petitioner/ consumer sought to assail the disposition of the matter in the manner the same had been done and demand notice issued as a consequence thereof---Recommendations of the Special Committee had been submitted to the Provincial Secretary, Irrigation and Power Department who simply recorded his "approval" on the order sheet---No order evincing his final decision was available on record, which was not consistent with the law and was not even in accord with the notification itself---Power of "decision" finally rested with the Secretary, Irrigation & Power and the expression "decision" in its ordinary understanding and parlance meant an act of deciding or settling a dispute or question by giving a judgment, the act of making up ones mind a judgment or conclusion reached or given and implied the due application of mind by the authority concerned to the facts and controversy involved---Mere "approval" by the Secretary, Irrigation and Power, therefore, was not enough to meet the requirement of law in particular when the notification itself empowered him to render a "final decision"---Secretary Irrigation and Power, before taking "final decision" as contemplated by the Notification had neither heard the consumer/petitioner nor recorded its own decision---Mere countersigning by the Secretary, the recommendations by the Special Committee was not lawful---Recommendations of the Special Committee could not be equated with nor given the status of the "final decision" by the Secretary, Irrigation and Power, the approval thus accorded by him on the proceedings file was of no legal significance and effect---High Court concluded that for final decision, the Secretary will have to consider the matter afresh by affording opportunity of hearing to the parties and the parties would be at liberty to raise such pleas/points .before the Secretary as may be available to them under law.

Muhammad Ramzan v. Trustees of Port of Karachi 1990 CLC 1086; Ghulam Mohi-ud-Din v. Chief Settlement Commissioner (Pakistan), Lahore and others PLD 1964 SC 829 and Fazal Dad and 2 others v. Member, Board of Revenue (Colonies) West Pakistan and another PLD 1977 Lah. 264 ref.

(b) Words & phrases---

----"Decision"---Connotation---Expression "decision" in its ordinary understanding and parlance meant an act of deciding or settling a dispute or question by giving a judgment, the act of making up ones mind a judgment or conclusion reached or given and implied the due application of mind by the authority concerned to the facts and controversy involved.

Ms. Nadia Nabbi for Petitioner.

Ch. Aamer Rehman, Addl. A.-G. Punjab for Respondent.

Muhammad Ilyas Khan for WAPDA.

Date of hearing: 17th May, 2006.

P L D 2006 Lahore 607

Before Muhammad Jehangir Arshad, J

SABAR ALI SAJID---Petitioner

Versus

MUHAMMAD MAQSOOD---Respondent

Civil Revision No.2733 of 2005, decided on 23rd May, 2006.

Civil Procedure Code (V of 1908)---

----S. 51(1) & O.XXI, R.37---Execution of money decree---Issuance of warrant of arrest against judgment debtor---Requirements of law---Under S.51(1) read with O.XXI, R.37, C.P.C. the Executing Court was fully empowered to enforce execution of decree by arrest and detention of judgment debtor even without notice, however, provisions required that before issuing the order of detention/arrest Executing Court had to satisfy that judgment-debtor was likely to abscond and leave the local limits of trial Court and such satisfaction must be expressed with reasons and after proper application of mind to the facts and circumstances of the case.

Muhammad Mushtaq Qureshi for Petitioner.

Shabbir Hussain Qureshi for Respondent.

P L D 2006 Lahore 609

Before Syed Zahid Hussain and Jawwad S. Khawaja, JJ

WATAN PARTY through President, Lahore---Petitioner

Versus

FEDERATION OF PAKISTAN through Law Secretary, Ministry of Justice and Parliamentary Affairs, Islamabad and 7 others---Respondents

Writ Petition No.3930 of 2002,. decided on 22nd May, 2006.

Constitution of Pakistan (1973)---

----Arts. 193, 197 & 199---Appointment of Additional Judges of the High Court--"Appointment", "promotion" and "elevation"---Connotation---Marked distinction existed between appointment' and 'promotion'-Articles 193 & 197 of the Constitution related to "appointment of the High Court Judges" and "appointment of Additional Judges" of the High Court respectively---Appointment of District and Sessions Judge as Judge of the High Court could not be called promotion---Seniority might be one of the factors while considering suitability and fitness for appointment---Termelevation' was a misnomer sometimes used for the appointment of the Judge of High Court---Such expression was used to bestow respect and dignity because of the prestigious and exalted position of a Judge of superior Courts but it remained an appointment in the constitutional sense with all its manifestations.

Supreme Court Bar Association through President and others v. Federation of Pakistan and others PLD 2002 SC 939 ref.

Barrister Zafar Ullah Khan for Petitioner.

Dr. Danishwar Malik, Dy. Attorney-General for Pakistan

P L D 2006 Lahore 611

Before Maulvi Anwarul Haq and Muhammad Jehangir Arshad, JJ

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman WAPDA, Lahore and 6 others---Applicants

Versus

KHALID PERVAIZ---Respondent

R.A. No.4 of 2002 in Intra-Court Appeal No.215 of 1998, decided on 3rd May, 2006.

Civil Procedure Code (V of 1908)---

----S. 114 & O.XLVII, R.1---Review jurisdiction, exercise of---Scope---Conscious and deliberate decision of Court, even though erroneous, would not be open to review---Review not competent on a ground already advanced and attended to by Court---Review could lie on the ground of an error of fact or law to be self-evident and floating on surface of record, which no Court could permit to remain on record---Principles.

Where a conscious and deliberate decision has been made with regard to the nature of the orders, which it is empowered to pass under a provision of law only, the exercise of review jurisdiction cannot be invoked by means of rehearing of the matter: and that a decision even though it is erroneous per se would not be a ground to justify its review as review can only lie on the ground of an error which is apparent on the face of record and must be manifestly so clear that no court could permit such an error to remain on the record. It may be an error of fact or of law, but it must be an error which is self-evidence and floating on the surface and does not require any elaborate discussion or process of ratiocination and no review lies on the grounds which were already advanced at the hearing of the appeal or petition and were attended to by the Court.

Water and Power Development Authority and others v. Mian Muhammad Riaz and another PLD 1995 Lah. 56 ref.

Mian Rafiq Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1997 SC 865 rel.

Muhammad Ameer Bhatti for Applicant.

Muhammad Mehmood Ashraf Khan for Respondent.

P L D 2006 Lahore 615

Before Syed Hamid Ali Shah, J

KHAN MUHAMMAD and others---Petitioners versus

MEMBER, BOARD OF REVENUE and others---Respondents

Writ Petition No.1426 of 2005, decided on 15th March, 2005.

(a) Review---

----Power of review---Continuation of proceedings---Scope---Review is a substantive right and is always a creation of relevant statute on the subject---Power of review is available or can be exercised, only when statute expressly bestows any power of review---Such jurisdiction cannot be exercised when it is not specifically provided and court cannot grant relief by invoking inherent powers on the assumption that review is the continuation of proceedings.

Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94 rel.

(b) West Pakistan Board of Revenue Act (XI of 1957)---

----S. 8---Review---Powers of Board of Revenue---Scope---Review is always competent when new and important matter or evidence is discovered, which was not within the knowledge of party, despite exercise of the due diligence and was not produced by the party at the time when the order or decree was passed---Power of review can be exercised on account of some mistake or error apparent on the face of record.

(c) West Pakistan Board of Revenue Act (XI of 1957)---

----S. 8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Review---Limitation---Power of second review---Scope---Petitioner was aggrieved of the order passed by Board of Revenue in second review application---Contention of petitioner was that first review application filed by respondents was dismissed by Board of Revenue being barred by limitation and there was no power with the Board to entertain second review application---Validity---Period of filing a review application was 90 days from the order---Board of Revenue entertained second review application ignoring the period of limitation prescribed by law, while his predecessor had already declined to review the order considering first review application being barred by limitation---Order passed by Board of Revenue in second review application suffered from legal infirmity as it was passed ignoring express provisions of law and was not sustainable---No provision existed under the law to allow second review application before Board of Revenue---Order passed on first review application, rejecting the same had attained finality, as it was not challenged before any other forum---Order passed in second review application was without any legal authority, in excess of jurisdiction having no legal effect and thus was set aside---Constitutional petition was allowed in circumstances.

Ghulam Muhammad v. Member, (Judicial III), Board of Revenue, Punjab Lahore 2005 CLC 1512; Mst. Noor Begum and others v. Member, Board of revenue and others 1989 SCMR 285 and Fazal Hussain v. Walidad Khan and 22 others 1996 CLC 1907 ref.

Province of Punjab v. Muhammad Akram 2004 YLR 915 rel.

Zia Ullah Khan Niazi for Petitioners.

Nemo for Respondent No. 1.

Malik Noor Muhammad Awan for Respondents Nos. 3 to 6.

Date of hearing: 7th October, 2005.

P L D 2006 Lahore 619

Before Mian Saqib Nisar and Syed Sakhi Hussain Bokhari, JJ

MUHAMMAD JALIL and 4 others---Appellants

Versus

MUHAMMAD SAMI and 8 others---Respondents

R.F.A. Nos.300 and 301 of 1998, decided on 1st March, 2006.

(a) Islamic law---

----Gift---Gift of a property by a donor is a personal act, which authority cannot be delegated and thus, no valid power of attorney can be given to an agent to gift the property to whosever the agent/attorney likes--Donor has to make the gift himself, whereafter he can confer the authority upon his agent to take necessary steps for the proper implementation/execution of the transaction--Principles.

A Muhammadan, in the matters of gifts, divorce etc. can confer the authority to an agent, but where it is the personal act of the principal, which is dependent upon his own mental decision, such an authority cannot be delegated. In the category of such personal acts, obviously the decision to whom the gift should be made, cannot be left for the choice and whim of the agent, rather this is the sole prerogative of the donor, which cannot be delegated or deputized, however, when the decision is taken, a declaration is made by the donor, only thereafter an agent for the accomplishment of the object can be appointed. A Muhammadan cannot confer upon his agent a random or roving authority to make the gift of his property to any person of the attorney's choice and according to the agent's wish and the considerations. This is because a gift is a voluntarily transfer of the property to another made gratuitously and without consideration; it is a transaction not in the nature of quid pro quo, but is free of the above, therefore, why and to whom the gift should be made is based upon the very personal and self-considerations of the donor, structured upon his personal state of mind and the decision and therefore, under no rules of general law of agency, such personal decision can be delegated to an agent. The donor has to make the gift himself, whereafter he can confer the authority upon his agent to take necessary steps for the proper implementation/execution of the transaction.

Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818; Mst.. Bandi v. Province of Punjab and others 2005 SCMR 1368; Ameer Ali (Vol.I-1976) p.110; Mulla (1990) pp. 150 & 157 para.Nos. 138 & 149; Outlines of Islamic Jurisprudence by Nayazee, p.206; Muhammadan Jurisprudence by Abdul Rahim (1958), p.321; Ameer Ali (Vol-2) p.455 and Mulla Para.314, p.332 ref.

(b) Islamic Law---

----Marriage---Divorce---Presumption---Lady, in the present case was admittedly married to a man, thus, as to when she was divorced, was to be primarily proved by the party alleging that she was divorced by her husband before his death---Where the party alleging that the lady had been divorced by her husband failed to prove the same, the presumption, that the marriage remained intact till the death of the man, could validly be raised.

(c) Islamic Law---

---Gift---Gift, in the present case, was made in the year 1974 and donor remained alive till 1992 and he had never challenged the gift in his lifetime--No evidence had been produced on the record to show that the gift of the suit property in favour of donee was invalid for any reason whatsoever---Gift, held, was not invalid, in circumstances.

Ch. Manzoor Hussain Basra for Appellants.

Abid Hassan Minto for Respondents

Date of hearing: 1st March, 2006.

P L D 2006 Lahore 627

Before Syed Zahid Hussain and Syed Hamid Ali Shah, JJ

Mian MUSHTAQ HUSSAIN DOGAR---Petitioner

Versus

PROVINCE OF PUINJAB through Chief Secretary, Lahore and 7 others---Respondents

Writ Petition No.13542 of 2005, decided on 17th May, 2006.

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

----S. 6(1)(2)---Punjab Local Government Ordinance (VI of 1979), Ss.6(5) & 7---Constitution of Pakistan (1973), Art.199---Constitutional petition---Notification for creation of new District---Creation of Divisions and Districts in a Province was essentially an administrative measure under S.6 of West Pakistan Land Revenue Act, 1967---Under sub-section (1) of section 6 of West Pakistan Land Revenue Act, 1967, Government had the powers to divide each Division into Districts and District into Sub-Divisions or Tehsils---Section 6(2) of the said Act empowered Government to vary the number and limits of Divisions, Districts and Sub-Divisions or Tehsils in the Province---Policy decisions of such nature fell within the ambit of power of executive Government to be taken in view of public interest, administrative, practical convenience and difficulties of local population etc.

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

----S. 6---Punjab Local Government Ordinance (VI of 1979), Ss.6(5) & 7---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction of High Court---Scope and limitations---Power of judicial review was available to the High Court in appropriate cases of infraction of law or unfairness, unreasonableness, arbitrariness or mala fides on the part of Government---Notification issued by Provincial Government under S.6 of West Pakistan Land Revenue Act, 1967, and under Ss.6(5) & 7 of Punjab Local Government Ordinance, 1979 were not immune from being called in question by the High Court---Constitutional jurisdiction of the High Court had its own limitations---Embarking upon inquiries into disputed questions of facts was not ordinarily to be undertaken by the High Court in its constitutional jurisdiction---Policy decisions by the Government, were supposed to be taken in view of public good, interest and welfare of the people.

Nawabzada Ghazanfar Ali Gul v. Government of Punjab through Secretary, Revenue Department, Board of Revenue, Lahore and 3 others 1999 CLC 430 ref.

Syed Zahid Hussain Bokhari for Petitioner.

Ch. Muhammad Hanif Khatana, Addl. A.-G., Punjab for Respondents.

Date of hearing: 17th May, 2006.

P L D 2006 Lahore 630

Before Muhammad Akhtar Shabbir, J

Mrs. MUZNA SAQLAIN ALVI---Petitioner

Versus

SUB-REGISTRAR, MODEL TOWN COURT, LAHORE and another---Respondents

Writ Petition No.4818 of 2006, decided on 24th May, 2006.

(a) Registration Act (XVI of 1908)---

----S. 33---Expression "reside"---Connotation---Place of registration---Scope---Power of attorney can be registered by Registrar or Sub-Registrar in whose districts or sub-district the principal resides---Expression "resides" is not defined in Registration Act, 1908 but there is no reasons to assume that it contemplates only permanent residence and excludes temporary residence---Power of attorney executed before and authenticated by an office within whose jurisdiction the principal temporarily resides is not invalid---Object of use of word "resides" is that Legislature wanted to put restraint and exclude element of fraud, forgery, undue influence and duress in alienation of immovable property---Where one claims to reside at place "L", he must either own immovable property or should have business, or industry or service or job or admission in educational institution at place "L" to be covered by term "resides".

Sarat Chandra Basu v. Bijoy Chand Mahatab Maharaja-Dhiraj Bahadur of Burdwan AIR 1937 PC 46 and Ghulam Nabi v. Secretary to the Government of Punjab Forest Department Punjab, Lahore through Divisional Forest Officer and 3 others PLD 1997 Lah. 193 rel.

(b) Registration Act (XVI of 1908)---

----Ss. 32, 33, 34 .8c 35---Constitution of Pakistan (1973), Art.199---Circular No.HRC/4521 dated 24-12-2004 issued by Executive District Officer (Revenue)---Constitutional petition---Power of attorney---Non-­registration at the place of residence of principal---Petitioner being resident of place "L" sought registration of her power of attorney regarding her property situated at place "K"---Registration Officer at place "L" denied registration on the basis of a circular issued by the authorities, whereby no power-of-attorney could be registered regarding properties not situated at palace "L"---Plea raised by petitioner was that the circular was unlawful---Validity---As the petitioner was resident of place "L" the Registration Officer was bound to register the document, if requirements of Ss.34 and 35 of Registration Act, 1908, prescribing procedure for satisfaction of registration authority were fulfilled---Registration Officer did not assign any reasons for non-registering of the document---Imposition of ban by Authorities for registration of general power of attorney relating to property situated outside the District was in conflict with the provisions of Registration Act, 1908---Circular issued by Authorities was without lawful authority and was of no legal effect---High Court allowed the authorities to introduce any other measures for prevention of fraud within the scope of authority affirmed by law or to seek amendment of the relevant law---Petition was allowed in circumstances.

M. Zunnoon Khan v. Nisar Ahmad Siddiqui, Member Board of Revenue, Sindh and 2 others 2001 CLC 326; Muhammad Ewaz v. Birj Lal 77 I All. 465; Chottey Lal v. The Collector of Moradaabad AIR 1922 PC 279 and Asad Zaheeruddin and 3 others v. The Sub-Registrar "T" Division-I and 7 others 1987 CLC 786 ref.

Muhammad Afzal Khan for Petitioner.

Muhammad Arif Bhinder, Addl. A.-G. along with Muhammad Dawood, Record Keeper.

P L D 2006 Lahore 638

Before Mian Saqib Nisar, J

SARDAR KHAN NIAZI---Appellant

Versus

DISTRICT COORDINATION OFFICER, MULTAN and 4 others---Respondents

F.A.O. No.289 of 2005, decided on 4th May, 2006.

(a) Press, Newspapers, News \Agencies and Book Registration Ordinance (XCVIII of 2002)---

----Preamble, Ss.6, 8 & 10---Constitution of Pakistan (1973), Art.19---Object, purpose and interpretation of the Press Newspapers, News Agencies and Book Registration Ordinance, 2002---Procedure to enable the publication of the newspaper has been simplified and facilitated under the law with the purpose to put a check upon and to curtail the discretion of the DCO in refusing the authentication of the declaration and certain unambiguous limits have been imposed upon his power and his refusal is only restricted to the parameters of S.10 of the Ordinance---Interpretation of the Ordinance---Principles.

Undoubtedly, the freedom of the Press is a sacred fundamental right conferred upon the citizens of Pakistan, as enshrined in Article 19 of the Constitution. It is pursuant to such a right and to ensure its true application that the "Ordinance" has been promulgated, the preamble whereof has made the purpose and the object of the law in the above direction very conspicuous and clear. Thus, from the collective reading of sections 6, 8 and 10 of the Ordinance in the light of the Article 19 and the preamble, it is manifest that the procedure for the publication of the newspaper has been simplified and facilitated under the law. It is with the purpose to put a check upon and to curtail the discretion of the DCO in refusing the authentication of the declaration that certain unambiguous limits have been imposed upon his power and the refusal is only restricted to the parameters of section 10. Interpretation of the various provisions of the Ordinance, including section 8(2) & (3), should be made keeping in view the principles that where the language of a statue admits of two or more constructions, the interpretation, which promotes and advances the object of the law, should be followed, rather the one, which leads to absurdity and unreasonableness, which should, in all the situations, must be avoided. The purpose of the Ordinance, is undoubtedly clear, which is to ensure the freedom of the expression and the press, and the procedure for the publication has been facilitated and simplified, therefore, section 8 should be read in the light of the object and the spirit of the law highlighted above, rather going by the rules of grammar.

Commissioner of Income Tax, Lahore v. S. Mubarak Ahmed PLD 1972 Lah. 787; Sardar Muhammad v. Mst. Nasima Bibi and others PLD 1966 Lah. 703, Pakistan Tobacoo Company Ltd. v. Pakistan Tabacoo Company Employees Union Dacca and others PLD 1961 SC 403 and Nawabzada Muhammad Amir Khan v. the Controller of Estate Duty and others PLD .1961 Sc 119 ref.

(b) Interpretation of statutes---

----Where the language of a statue admits of two or more constructions, the interpretation, which promotes and advances the object of the law, should be followed, rather the one, which leads to absurdity and unreasonableness which should, in all the situations, must be avoided.

(c) Press, Newspapers, News Agencies and Book Registration Ordinance (XCVIII of 2002)---

---S. 8(2)(3)---Interpretation of S.8(2)(3), Press Newspapers, News Agencies and Book Registration Ordinance, 2002---Words "is" and "was being" as used in S.8(2)(3) of the Ordinance---Connotation.

The word "is" as defined in various dictionaries also means "has been"; obviously "has been" is a past tense and is an interchangeable term with the word "was being" therefore, only for the reason that "is" and "was being" are used by the Draftsman in two different clauses of the section, it would not mean that different interpretation should also be made.

Black Law Dictionary 6th Edn. P.830 ref.

(d) Press, Newspapers, News Agencies and Book Registration Ordinance (XCVIII of 2002)---

----S. 8(2)---Effect of place of publication---When publisher of a newspaper was publishing the newspaper in Lahore, his declaration had been duly authenticated by the DCO, thus he simply was required to provide an intimation within the terms of S.8(2), Press, Newspapers, News Agencies and Book Registration Ordinance, 2002 and therefore, no new declaration was needed to be filed by him.

Mehmood Ashraf Khan for Appellant.

Hamid Khan for Respondent No.4.

Ms. Seema Munawar, A.A.-G.

P L D 2006 Lahore 643

Before Syed Zahid Hussain and Jawwad S. Khawaja, JJ

ASHFAQUE AHMAD and 8 others---Petitioners

Versus

NADEEM AHMAD and 3 others---Respondents

Writ Petitions Nos.6879, 6880 and 10039 of 2004, heard on 30th May, 2006.

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

----S. 54---Punjab Pre-emption Act (IX of 1991), S.5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Agreement to sell--Non-registration of sale---Effect---Inchoate sale---Definition---Predecessors-in-interest of petitioners had entered into agreement of sale of their property with respondent---Payment of total price was manifest from the record---Execution of General Power-of-Attorney in favour of respondent was not disputed---Possession was transferred to respondent---Repudiation of sale transaction by petitioners---When sale . was not registered but factum of sale was recognized, it would remain inchoate---Definition of "inchoate sale" was wider than the one given under S,54 of Transfer of Property Act, 1882---Inchoate sale was not governed by restrictions regarding mode of transfer contained in S.54 of Transfer of Property Act, 1882---Sale of property through mutation was not void---Mere non-compliance of provisions of S.54 of Transfer of Property Act, 1882 as to mode of transfer could neither change the nature of transaction between the parties nor affect a pre-emptor's right in this respect---Defect of non-registration was curable---Inchoate sale could be perfected through registration---Imperfect transaction would give rise to equities in favour of buyer and price paid would have a charge on property for the amount paid. [pp. 647, 648] B, C & D

Thal Development Authority through Administrator, Thal Bhakkar v. Khushi Muhammad and another PLD 1994 Lah. 108; Mst. Ghulam Sakina v. Umar Bakhsh and another PLD 1964 Sc 456 and Abdul Karim v. Fazal Muhammad Shah PLD 1967 SC 411 ref.

(b) Punjab Undesirable Co-operative Societies (Dissolution) Act (I of 1993)---

----Preamble---Vires of law---Punjab Undesirable Co-operative Societies (Dissolution) Act, 1993 was a special law enacted to meet the peculiar position and circumstances and except S.22 thereof was valid.

National Industrial Cooperative Credit Corporation and another v. The Province of Punjab/Government of Punjab through Secretary, Cooperative Department and another PLD 1992 Lah. 462; The Province of Punjab and another v. National Industrial Cooperative Credit Corporation and another 2000 SCMR 567 and Tanweer Ahmad v. Muhammad Sharif and 2 others 1997 MLD 1913 rel.

(e) Contract Act (IX of 1872)

---S. 202-General Power-of-Attorney---Revocation through Abtaalnama---Effect---General Power-of-Attorney could not be revoked unilaterally under S.202 of Contract Act, 1872, when price had been received by the donor---Registration of Abtaalnama was of no effect for the donee was not intimated about cancellation of Power-of-Attorney.

Muhammad Tufail v. Muhammad Younas and others 2006 CLC 779 rel.

Kh. Saeed-uz-Zafar for Petitioners.

Qazi Abdul Hamid for Respondent Nos. 1 and 2.

Safdar Mahmood on behalf of Muhammad Ilyas Khan for Respondent No.3.

Malik Taj Mubarik, Officer PCBL.

Date of hearing: 30th May, 2006.

P L D 2006 Lahore 649

Before M. Bilal Khan, J

ABDUL MAJEED---Petitioner

Versus

NOOR MUHAMMAD and 2 others---Respondents

Writ Petition No.4769 of 2006, decided on 16th May, 2006.

(a) Illegal Dispossession Act (XI of 2005)---

----Ss. 7(1) & 8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Interim order---Petitioner against his dispossession filed complaint before Court of Session---Petitioner wanted possession of disputed land restored to him under S.7(1) of Illegal Dispossession Act, 2005---Validity---Order under S.7(1) of the Act could only be passed if during the trial, Court was satisfied that respondents were in unlawful possession---Conjunctive reading of Ss.7(l) & 8 of the Illegal Dispossession Act, 2005 would show that order under S.7(1) of the Act was only discretionary with the Court---Word "shall" used in S.7(1) will be read as "may" in that it was only a directory provision---Constitutional petition being without force was dismissed.

(b) Criminal trial---

----Trial in criminal cases commences on framing of charge.

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

---Art. 199---Constitutional jurisdiction---Scope---Only a final order could be brought under challenge in the constitutional jurisdiction of the High Court.

(d) Illegal Dispossession Act (XI of 2005)---

---S. 7(1)---Word "shall" as used in S.7(1) of the Act will be read as "may" for its being only a directory provision:

Zafar Iqbal Chohan for Petitioner.

P L D 2006 Lahore 651

Before Mian Muhammad Najam-uz-Zaman and Sh. Javaid Sarfraz, JJ

ASADULLAH---Petitioner

Versus

MUHAMMAD TARIQ and 2 others---Respondents

Writ Petition No.3854 of 2006, heard on 30th May, 2006.

Constitution of Pakistan (1973)---

----Art 199---Penal Code (XLV of 1860), Ss.364, 395, 324, 147 & 148---Anti-Terrorism Act (XXVII of 1997), S.7---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17---Constitutional petition---Terrorism'---Transfer of case from Anti-Terrorism Court to Court of ordinary jurisdiction---Petitioners/accused, allegedly along with his co-accused, while taking revenge of their defeat in election, attacked complainant party in the office of Union Council, which was not a private place and they also chopped off nose of the victim and placed it in his hand---Such act was done atPulli Tong' of Mauza concerned---Such action allegedly was the message given by petitioners/accused to the public in general that anyone who would contest elections against them, could face a similar treatment, which action definitely would have created terror in the locality---Election dispute could not be termed as a personal dispute as claimed by petitioners as dispute was not confined to two persons or two families as in election matters, many persons were involved---Candidate contesting election had scores of workers who were working actively for him and also had lots of supporters and some had political backing and support of certain vicinities---Terror so created in election disputes, would create feeling of insecurity among public at large and a wave of panic and fear would persist in the area---Alleged action of accused was an act of `terrorism' within purview of Anti-Terrorism Act, 1997---Anti-Terrorism Court, in circumstances, would have jurisdiction to adjudicate the case.

Muhammad Mushtaq v. Muhammad Ashiq and others PLD 2002 SC 841 ref.

Masood Mirza for Petitioner.

Muhammad Asghar Rokhri for Respondents

Date of hearing: 30th May, 2006.

P L D 2006 Lahore 654

Before Muhammad Jehangir Arshad, J

ARSHAD EHSAN through Legal Guardian---Petitioner

Versus

Sheikh EHSAN GHANI and 2 others---Respondents

Civil Revision No.23 of 2006, decided on 31st May, 2006.

Mental Health Ordinance (VIII of'2001)---

----S. 60---Civil Procedure Code (V of 1908), S.9 & O.VII,R.11---Specific Relief Act (I of 1877), S.42---Gift---To declare. a person as mentally disordered person, Civil Court was not a competent forum---Plaintiff' sought declaration that gift made by his father in favour of his/plaintiff's brother was void as father was a man of unsound mind---Defendant/father filed application under Order VII, R.11, C.P.C.---Trial Court without framing of issues or allowing parties to produce their respective evidence summoned and examined father, recorded his better statement and after declaring him mentally as well as physically healthy rejected the plaint---Validity---Only forum competent to declare a person as mentally disordered person was one available under Mental Health Ordinance, 2001 and since the same had overriding effect, no other court could determine or for that matter grant any declaration---Suit filed by plaintiff to such extent was, therefore, barred by law---Order of rejection of plaint for want of jurisdiction was maintained while findings recorded by trial Court with regard to legality/vires of gift or competency of donor/father were, held, to be unjustified hence set aside.

Tahir Naeem for Petitioner.

Mirza Abdullah Baig for Respondent No. l.

Zahid Sultan Khan for Respondent No.2.

Mian Muhammad Qamar-uz-Zaman Legal Adviser for L.D.A.

P L D 2006 Lahore 657

Before Syed Zahid Hussain, J

FALAK SHER through Legal Heirs---Petitioners

Versus

Mst. KANEEZ BIBI---Respondent

C.R. No.2520 of 2000, heard on 17th May, 2006.

Specific Relief Act (I of 1877)---

----S. 8---Suit for possession---Other co-owners of the property having not joined the respondent/plaintiff in bringing suit for possession and not even impleading him as party to the suit by the plaintiff; the suit was defective which was fatal as to its maintainability.

Khaliq Ahmed v. Abdul Ghani and another PLD 1973 SC 214 fol.

Hassan Ahmad Khan Kanwar for Petitioners.

Shahid Qayyum Ch. for Respondent.

Date of hearing: 17th May, 2006.

P L D 2006 Lahore 658

Before Jawwad S. Khawaja, J

MUHAMMAD JAMIL through General Attorney---Appellant

Versus

KHUSHI MUHAMMAD through Legal Representatives---Respondents

Regular Second Appeal No.71 of 1997, heard on 17th May, 2006.

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

----0. XX, R.14(1)---Punjab Pre-emption Act (I of 1913), S.22---Punjab Pre-emption Act (IX of 1991), S.24---Decree in pre-emption suit---Deposit of pre-emption money adjudicated under O.XX, R.14(1), C.P.C.---Applicability of S.22, Punjab Pre-emption Act, 1913 and S.24, Punjab Pre-emption Act, 1991---Scope---Provisions of S.22 Punjab Pre-emption Act, 1913 and S.24, Punjab Pre-emption Act, 1991 had no application in cases where the pre-emption money adjudicated by Trial Court or Appellate Court had been deposited by pre-emptor in accordance with the provision of O.XX, R.14(1), C.P.C.

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

----0. XX, R.14(I)---Decree in pre-emption suit---Trial Court, in the present case directed the pre-emptor "to deposit decretal amount less Zar-e-soyem failing which his suit shall stand dismissed"---Order XX, R.14, C.P.C. relates to an obligation imposed on a successful pre-emptor after a decree has been passed in his favour as opposed to the Zar-e-Punjam under Punjab Pre-emption Act, 1913 and Zar-e-Soyem under Punjab Pre-emption Act, 1991---Essence of such deposit is to ensure that the purchase money is and remains available for payment to the vendee-defendant, the dismissal of the suit must follow if the Zar-e-Soyem is not deposited within the time allowed by the Court or, if deposited, is withdrawn---Withdrawal of the purchase money by the pre-emptor must result in the dismissal of his suit.

Abdul Aziz and 2 others v. Abdul Majid and another 1990 MLD 102 distinguished.

Abdul Wahid Chaudhry for Appellant.

Rehmat Ali Malik for Respondents.

Date of hearing: 17th May, 2006.

P L D 2006 Lahore 661

[Election Tribunal, Punjab]

Before Syed Zahid Hussain, J

GHULAM MUHAMMAD LALI---Petitioner

Versus

IMTIAZ AHMED LALI---Respondent

Election Petition No.107 of 2002, decided on 23rd June, 2006.

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

---Arts. 85, 87 & 88---Certified copies of documents issued by the concerned officials and agencies were to be treated as public documents, production whereof in evidence could not be objected to in view of Arts.87 and 88 of the Qanun-e-Shahadat, 1984---Fact admitted by a party needed no further proof and objection to document revealing the said fact could not be objected to for admissibility in evidence.

Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160; Muhammad Usman v. Lal Muhammad and 12 others PLD 1975 Kar. 352; Muhammad Khaliq v. Abdullah Khan and 4 others 1987 CLC 1366; Muhammad Khan v. Faqir Hussain Khan and 3 others 1989 SCMR 1164; Mehboob Ali and another v. Mst. Sharifan Bibi and 21 others 1991 CLC 1201; Muhammad Aslam and another v. Senior Civil Judge, Gujrat (Mian Nisar Hussain) and 2 others 2000 MLD 1581; and Gujranwala Development Authority through Director-General, G.D.A. Plaza Model Town, Gujranwala v. Muhammad Hussain 2001 YLR 1884 distinguished.

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

---Ss. 52 & 53---Election petition---Proper filing of election petition---Requirements---Objection to the effect that election petition was not filed properly and legally as required by law was unspecific, shorn of necessary particulars and was rather loosely drafted---Objection was required to be proved and established by the objector as to how the election petition was not competent---Objector neither in his statement as witness had said anything nor it was shown from the record that the petition was not legally competent---Election petition had been verified on oath, it was attested by the Oath Commissioner and affidavit accompanying the same was duly attested by the Oath Commissioner and the relevant documents found due verification and certification as being true and correct---Objection having not been proved, election petition was legally competent having fulfilled necessary requirements of law and did not merit rejection.

(c) Representation of People Act (LXXXV of 1976)---

---Chap. VII (Ss.52 to 77)---Conduct of General Election Order (7 of 2002), Art.8-D(2)(i)---Constitution of Pakistan (1973), Arts.225 & 199---Civil Procedure Code (V of 1908), S. 11---Election petition---Candidature of the candidate was objected to by the petitioner at the time of scrutiny of the nomination papers---Petitioner's contention was that since the respondent had been dismissed from service on the ground of habitual absence from duty, he was disqualified from contesting the election as such a dismissal amounted to misconduct, copy of the order of dismissal of respondent was produced before the Returning Officer in support of such an objection---Objection prevailed and the Returning Officer ordered the rejection of his nomination papers; Election Tribunal, however, on appeal allowed the respondent to contest the election by accepting his nomination papers; petitioner's constitutional petition was dismissed on the ground that such grounds could be taken before. Election Tribunal through an election petition; petitioner agitated the matter before the Supreme Court, since the election process in the meanwhile had been completed the present election petition was filed and petition from the Supreme Court was withdrawn---Contention was that earlier judgment of the High Court would operate as res judicata and present election petition was barred---Validity---Held, judgment in the constitutional petition did not in any way bar the petitioner from filing election petition under the law---Principles.

Muhammad Afzal v.Ch. Muhammad Altaf Hussain 1986 SCMR 1736 and Saeed Ahmad Shah's case PLD 2003 SC 340 fol.

Ch. Altaf Hussaiin v. Raja Muhammad Afzal PLD 1986 Journal 93; Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others 1986 SCMR , 1736 and Muhammad Asim Kurd v. Assistant commissioner-Cum-Returning Officer, Karachi-I and another 1996 CLC 1772 ref.

(d) Conduct of General Elections Order [7 of 2002]---

----Art. 8-D(2)(i) [as amended]---Constitution of Pakistan (1973), Art.63(1)(i) [as amended]---Representation of People Act (LXXXV of. 1976), S.99(1-A)(i) [as amended]---Election petition---Contention of the petitioner was that respondent having been dismissed from service for misconduct (absence from duty) he was disqualified from being elected or chosen as Member of the Provincial Assembly, while the respondent had pleaded that he had tendered resignation and if any dismissal order was passed he was not aware of the same and that in any case since no "moral turpitude" was involved he was not disqualified from being elected a member of the Assembly---Validity---Held, object of amendments made in Art.8-D(2) of the Conduct of General Elections Order, 2002, was to bring such a disqualification in conformity with the other provisions of the laws on the subject i.e. Art.63 of the Constitution and S.99 of the Representation of the People Act, 1976 to harmonize them, to ward off any possible conflict or inconsistency---Phrase "misconduct involving moral turpitude" was intentionally and purposely substituted by "misconduct or moral turpitude" retrospectively and underlying idea and object appeared to be to extend the scope of disqualification to keep the person, dismissed, removed or compulsorily retired from service on the ground of misconduct, away from the elected, representation forum though there may not be the element of moral turpitude in his dismissed/removal or compulsory retirement from service---Dismissal from service on the ground of habitual absence from duty fell within the purview and scope of "misconduct" and absence amounted to "misconduct" on the basis whereof, major penalty of dismissal from service could be imposed---Respondent having been dismissed from service, he was disqualified from being Member of the Assembly and his election was liable to be declared void---Principles.

Muhammad Afzal v. Ch. Muhammad Altaf Hussain 1986 SCMR 1736; Saeed Ahmad Shah's case PLD 2003 SC 340; Secretary - Education, N.-W.F.P. Peshawar and 2 others v. Mustamir Khan and another 2005 SCMR 17; Salehon and others v. The State PLD 1969 SC 267; Principles of Statutory Interpretation by G.P. Singh, p.404; Understanding Statutes-Canons of Construction by S.M. Zafar 1st Edn., p.829; Understanding Statutes-Canons of Construction by S. M. Zafar 2nd Edn., p.825; Mehreen Zaibun Nisa v. Land Commissioner, Multan and others PLD 1975 SC 397 and Understanding Statutes-Canons of Construction by S.M. Zafar at pp.590, 695, 696 and 697 of 2nd Edn. and C.P. No.1662-L/2005 ref.

(e) Interpretation of statutes---

----Deeming clause---Effect---Principles---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 that it did exist---Where the statute says that you must imagine the state of affairs 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 that state of affairs---Court has to determine the limits within which and the purposes for which the Legislature has created the fiction---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.

Mehreen Zaibun Nisa v. Land Commissioner, Multan and others PLD 1975 SC 397 ref.

(f) Interpretation of statutes---

----Intention of legislature---No word in the statute is to be rendered nugatory, meaningless or otiose and full effect is to be given to the intention of the legislature expressed through the words employed by it.

Secretary Education, N.-W.F.P. Peshawar and 2 others v. Mustamir Khan and another 2005 SCMR 17 ref.

(g) Interpretation of statutes---

----Pari materia laws---Principles---Pari materia laws are kept in view as it is assumed that uniformity of language was intended---In determining the meaning to be attached to the particular expression of statute reference may be made to earlier and later acts on the same subject and also to enactments pari materia---Statute which relates to the same subject, the same person or thing, are deemed to constitute one system of law: they are considered as one statute, subsequent laws are regarded as supplementary or complementary to the earlier enactments---When enacting a new law the legislature is presumed to have had in contemplation the existing statute on the same subject.

Secretary Education, N.-W.F.P. Peshawar and 2 others v. Mustamir Khan and another 2005 SCMR 17 ref.

(h) Interpretation of statutes---

----Amendment of a statute---Object and purpose to be achieved by the legislature in introducing amendment is to be discovered by the Court.

Understanding Statutes-Canons of Construction by S.M. Zafar at pp.590, 695, 696 and 697 of 2nd Edn. ref.

(i) Representation of People Act (LXXXV of 1976)---

---Ss. 99 & 52---Conduct of General Elections Order [7 of 2002], Art. 8-D(2)(i)---Disqualifications---Election petition---Elected candidate, in the present case, who was dismissed from Government service for misconduct, in his deposition had stated that he had been elected in the election held, in 1997 as Member, Provincial Assembly as well which assertion had remained uncontroverted; even in the present election though his nomination papers were initially rejected by the Returning Officer yet the Election Tribunal had accepted his appeal and allowed him to contest election and constitutional petition by the petitioner filed thereagainst was dismissed by the High Court---Validity---Respondent/elected candidate was disqualified from being a Member of the Provincial Assembly and his election was void yet it was to be seen whether as prayed the petitioner could be given seat in the Assembly in place of the returned candidate/respondent---Held, petitioner, in circumstances, could not be declared as unopposed elected member by disenfranchising the voters who cast votes in favour of respondent/returned candidate---Election petition was accepted to the extent that election of respondent as Member Provincial Assembly was declared as void and notification to that effect issued by the Election Commission of Pakistan was set aside and fresh elections to fill the vacancy occurring in constituency were to be held in accordance with law---Principles.

Sh. Amjad Aziz v. Haroon Akhtar and 10 others 2004 SCMR 1484; Muhammad Nasim Turyali and others v. Ghulam Sarwar Khan and others PLD 2005 SC 70; 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 applied.

Muhammad Ahmed Qayyum and Zafar Iqbal Chohan for Petitioner. .

Talib H. Rizvi and Tafazal H. Rizvi for Respondent.

Dates of hearing: 19th, 23rd, 24th, 29th, 30th and 31st May, 2006.

P L D 2006 Lahore 680

Before M. Bilal Khan, J

MUHAMMAD ASLAM SHAMI---Petitioner

Versus

ZULFIQAR BUTT and 4 others---Respondents

Criminal Revision No.66 of 2006, decided on 12th June, 2006.

Illegal Dispossession Act (XI of 2005)---

----S. 3---Complaint against illegal dispossession---Dismissal of complaint---Petitioner, who claimed to be owner of property in dispute on basis of registered sale-deed had alleged that respondents were illegally and forcibly occupying said property, and had filed petition under S.3(2) of Illegal Dispossession Act, 2005 before Additional Sessions Judge---Petitioner in his said petition had prayed that respondents be dealt with in accordance with law and possession of property, be delivered to petitioner---Said petition was dismissed by virtue of impugned order---S.H.O. concerned had reported that respondents were in possession of property in dispute for the last more than fifteen years and that fact was also admitted by petitioner---Additional Sessions Judge had rightly come to the conclusion that complaint of petitioner was not maintainable because Illegal Dispossession Act, 2005 whereunder it was filed was promulgated in the year 2005 and S.3(1) of said Act created a new offence, punishment whereof was prescribed in its subsection (2)---Penal part of the statute was to be interpreted strictly and an illegal dispossession as contemplated in S.3(1) of the Act could be punished only if it had taken place after promulgation of Illegal Dispossession Act, 2005---Counsel for petitioner had not been able to point out that impugned order was perverse, arbitrary or fanciful so as to merit interference by High Court in revision---Legal and well-reasoned order could not be interfered with in revision by High Court.

Azam Nazeer Tarar for Petitioner.

Aftab Gul for Respondents Nos. 1 and 2.

Aazar Latif Khan for Respondents Nos. 3 and 4.

Ch. Aamir Rehman, Addl. A.-G. for the State.

P L D 2006 Lahore 682

Before Muhammad Sayeed Akhtar and Tariq Shamim, JJ

Syeda SHAZIA IRSHAD BUKHARI---Petitioner

Versus

VICE-CHANCELLOR, UNIVERSITY OF HEALTH SCIENCES, LAHORE and 2 others---Respondents

I.C.A. No.68 of 2006 in Writ Petition No.1331 of 2006, decided on 29th May, 2006.

Educational institution---

----First Professional Part-I, M.B.,B.S. Examination---Appellant, a student of First Professional Part-I M.B.,B.S. in Medical College, who had exhausted all three chances prescribed by Rules/Regulations of University of Health Sciences for clearing M.B.,B.S., First Professional Part-I Examination, and failed, had sought fourth chance---Relevant Regulations of University of Health Sciences and P.M.D.C. Regulations, had provided that First Professional M.B.,B.S. comprised of two independent parts i.e. Part-I and Part-II and for each part three consecutive chances, whether availed or unavailed, had been provided for qualifying same---Language of said Regulations was unambiguous and left no doubt that left over chances of First Part, could not be carried over to Part-II---Held, Fourth chance could not be granted to candidate who had already availed three chances of M.B.,B.S. First Professional Part-I.

PLD 2004 Pesh. 307 ref.

Mian Arshad Ali, Advocate.

P L D 2006 Lahore 684

Before Muhammad Jehangir Arshad, J

Malik NAZAR HUSSAIN---Petitioner

Versus

Commander (R.) ZAFAR IQBAL and 6 others---Respondents

F.A.Os. Nos.17 and 18 to 27 of 2006, heard on 6th April, 2006.

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

----S. 17(9)-West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13(6)---Contract Act (IX of 1972), S.42---Bona fide personal need of landlord---Cause of action not abating on death of landlord---Right of personal requirement of landlord after his death becomes available to his legal heirs because a contract is always enforceable against the legal heirs or successors of original party and unless a contrary intention appeared in the contract the same does not abate with the death of the parties---Contract of tenancy does not abate/expire with death of party and where original landlord files ejectment petition on ground of his personal need then with his death the cause of action survives and same is transferred to his legal heirs and only effect of the death of landlord is that his legal heirs have to give notice to the tenant intimating the death of landlord otherwise they cannot seek eviction of tenant on ground of default---Right of parties are to be determined on the date of institution of the lis and not on the basis of right accrued to them thereafter---Since original landlord could file ejectment petition for his personal use and such right was available to him at the time of institution of the petition hence his death would not mean that his personal requirement had abated and his legal heirs were not entitled to continue with the proceedings as his successors.

Taiyab A. Kapadia v. Agha Zia-ud-Din Barni 1981 CLC 1267 distinguished.

Muhammad Latif v. District Judge, Lahore and 3 others 1982 CLC 255 ref.

(b) Cantonments Rent Restriction Act (IX of 1963)---

----S. 17(9)-West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13(6)---Default in payment of rent---Striking off defence---Any default committed by the tenant in payment of monthly rent within stipulated period can neither be condoned nor ejectment for such default can be objected to.

M.H. Mussadaq v. Muhammad Zafar Iqbal and another 2004 SCMR 1453, Zafar Qureshi and others v. Khawaja Maqsoodul Hassan and others 1982 SCMR 392, Begum Capt. Mirza Ghulam Sarwar and another. v. District Judge, Jhelum, and others 1987 SCMR 25, Haji Muhammad Siddique. v. District Judge, Peshawar and others 1990 SCMR 997 and Zikar Muhammad v. Mrs. Arifa Sabir and another 2000 SCMR 1328 rel.

Waqar-ul-Haq Sh. for Petitioner.

Agha Tariq Mehmood Khan for Respondents.

Date of hearing: 6th April, 2006.

P L D 2006 Lahore 689

Before M. Bilal Khan, J

ARSHAD MEHMOOD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2194/B of 2006, decided on 20th June, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 148, 149, 109---Bail, grant of---Alibi, plea of---Scope---Petitioner, who was named in the F.I.R. along with four co-accused, was attributed fatal shot---Petitioner was behind the bars since his arrest on 28-10-2004---Right from the first day, petitioner had raised plea of alibi to the effect that on the day of occurrence he was out of Pakistan---Petitioner was declared innocent in successive police investigations---Petitioner's bail application was dismissed by Court of Session on 16-2-2006---Validity---Petitioner's plea of alibi was verified by the passport and exist entry thereon--Normally Courts were reluctant to consider plea of alibi at bail stage but this consideration was not a principle of universal applicability---In appropriate cases where a strong and authentic plea of alibi was raised without loss of time, superior Courts could extend concession of bail to the accused---Even in case of capital charge bail could be granted on plea of alibi---Ipsi dixit of police was though not binding on Courts but still police investigation based on cogent and tangible material was a relevant consideration for grant of bail---Complainant's contention that since trial had commenced, bail could not be granted was devoid of force---Commencement of trial or likelihood that it would commence shortly would not deter Court from granting bail to accused who otherwise deserved same on merit---Petitioner's case being of further inquiry under S.497(2), Cr.P.C. bail was granted to him.

Khalid Javaid v. The State PLD 1978 SC 256; Malik Noor Ahmad and others v. The State PLD 1993 Lah. 500; Iqbal Ahmad and 2 others v. The State 1989, PCr.LJ 2122 and Ajmal Khan v. Liaqat Hayat PLD 1998 SC 97 rel.

Syed Zahid Hussain Bokhari for Petitioner.

Ch. Majid Hussain for the Complainant.

Tanvir Ahmad Shami for the State.

Aziz Ahmad S.I., P.S. Saddar Mandi Bahauddin with Police file.

P L D 2006 Lahore 693

Before Muhammad Jehangir Arshad, J

ALLAH DITTA and 5 others---Petitioners

Versus

Mst. RASOOLAN BIBI through Legal Heirs and 6 others---Respondents

Civil Revision No.1833 of 2001, decided on 23rd May, 2006.

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

----S. 115---Revisional jurisdiction of High Court---Object and scope---Concurrent findings of fact---High Court while sitting in revisional jurisdiction is not supposed to interfere in the concurrent findings of fact unless it is established that the same suffered from jurisdictional defect or were based on misreading or non-reading of evidence---Revisional jurisdiction under section 151, C.P.C. should not be considered analogous to that of appeal or equal to appeal---While exercising revisional jurisdiction High Court should satisfy itself upon three matters firstly, whether the subordinate Court had the jurisdiction vested in it, secondly, whether the case was one in which Court ought to exercise the jurisdiction and thirdly; as to whether the lower Court acted illegally or with material irregularity resulting into miscarriage of justice---Concurrent findings of fact being in consonance with the record was immune from interference in revisional jurisdiction of High Court.

Allah Dad and 3 others v. Dhuman Khan and 10 others 2005 SCMR 564; Shah Wali v. Muhammad Iqbal PLD 2005 Lah. 214 and Mst. Kulsoom Bibi and another v. Muhammad Aril and others 2005 SCMR 135 ref.

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

----Art. 118---Specific Relief Act (1 of 1877), S. 42---Gift---Gift mutation sanctioned on behalf of old lady---Onus to prove---Plaintiff lady filed a suit for declaration that gift mutation sanctioned in favour of her nephews/defendants on her behalf was based on fraud---Suit was decreed which was upheld in appeal---Validity-Gift by lady having been denied onus to prove the same had shifted upon defendants who produced all possible witnesses to prove the gift but quality of evidence was so poor that it could not discharge the onus placed on defendants---Plaintiff was old, aged lady but nowhere it was shown that nature of transaction was ever explained to her---Patwari concerned stated that neither lady was previously known to him nor she was accompanied with her son or husband at the time of entry or of sanctioned of impugned gift mutation---Parentage of donor lady was not recorded by Tehsildar and note on the impugned gift that donor was gifting the suit land in favour of her sons clearly established that gift was not made by plaintiff but by mother of defendant who was plaintiff's namesake and her presence at the time of gift mutation sanctioned in favour of defendants was proved by Tehsildar's statement who had attested the mutation in question---Relation between parties was also revealed to be hot cordial to result into the gifting of disputed property by old lady in favour of her nephew after depriving her only son and two daughters---Courts below, after considering the peculiar circumstances of the case had rightly found the gift to'-be doubtful---No misreading or non-reading of evidence and no case of jurisdictional error was involved for interference under S.115, C.P.C.

M.D. Tahir for Petitioners.

Ch. Muhammad Hussain Naqashbandi for respondents.

P L D 2006 Lahore 700

Before Jawwad S. Khawaja, J

AHMAD KHAN---Petitioner

Versus

NADIR---Respondent

Civil Revision No.2209 of 2005, heard on 9th June, 2006.

Punjab Pre-emption Act (IX of 1991)---

----S. 28---Market value of property, determination of---Burden of proof---Scope---Failure to discharge burden of proof---Effect---Plaintiff in his suit for pre-emption alleged that defendant had actually paid less sale consideration than the one incorporated in the sale mutation---Defendant's assertion that sale price as mentioned in sale mutation was the actual price of suit land paid by him to vendor, was disbelieved by Trial Court as well as the Appellate Court---Suit was concurrently decreed by both the Courts---Validity---Finding of both Courts that defendant was to prove value of suit property was misconceived---Burden of proof that land was sold at lesser price than the one incorporated in mutation of sale was on the plaintiff---Plaintiff, instead of producing various sale mutations, could produce only one mutation of sale in the village---plaintiff also failed to prove average sale price of land in the village---Under provisions of S.28 of Punjab Pre-emption Act, 1991 plaintiff was to produce evidence on four matters mentioned in S.28, for the determination of market value of suit land---Defendant's testimony regarding payment of sale price had not been rebutted by any admissible evidence---Plaintiff's testimony as to alleged actual sale price was based on conjectures---Plaintiff thus had failed to discharge burden of proof placed on him.

Ata-ul-Mohsin Lak for Petitioner.

Muhammad Arif Gondal for Respondent.

Date of hearing: 9th June, 2006.

P L D 2006 Lahore 705

Before Muhammad Sair Ali, J

Dr. Sheikh ABDUR REHMAN---Petitioner

Versus

Syed SAEED ALI through Legal Heirs and others---Respondents

Writ Petition No.13955 of 2003, heard on 26th May, 2006.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Constitution of Pakistan (1973), Art.199---Constitutional petition---"Tenant and his family"---Connotation---Use of rented premises by tenant's family---Rights of tenants family members---Scope---Petitioner filed petition against respondents/original tenant and his real brother respectively, seeking their ejectment from rented premises on ground of default in payment of rent and subletting without petitioner's permission---Respondent/original tenant asserted that he did not sublet premises rather he along with his brother/respondent (No.2) formed a partnership firm in rented premises and respondent (No.2) being his real brother, held joint tenancy right in rented premises, hence question of subletting did not arise---Trial Court as well as Appellate Court dismissed petitioner's application for ejectment---Validity---Rent deed showed that term "tenant/tenants" was interchangeably used for "the tenant and his family" who held dominant and beneficial lease hold interest as tenants of demised premises from the very beginning---Petitioner's argument that use of premises was allowed to "the tenant and his family" as a licence for family and not lease, was not maintainable---Had it been a licence for family then a suitable expression restricting "the use" of property to the family would have been employed in rent agreement i.e., words could have been that "the landlord permits the demised premises to be used by the tenant's family as well"---No diverture of interest or right of respondent (No.1) took place on creating purported sub-tenancy upon exclusion of partnership---Partnership between his brothers was in consonance with rent agreement---Petitioner landlord had been accepting rent through cheques or otherwise from the firm account with signatures either of the two brothers and for the last thirty years petitioner neither raised objection to nor sought ejectment on ground of subletting---Even in a previous petition he omitted to plead subletting as a ground of ejectment----"Family members" included mother, brothers, and sisters of main tenant who were entitled to continue occupation of rented premises on exist of main tenant and were to be treated as tenants under law---Judgments passed by both Courts below did not suffer from any infirmity or lack of jurisdiction---Constitutional petition was dismissed.?

Bladev Sahi Bangia v. R.C. Bhasin 1983 PSC 252; Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322; General Manager, Pearl Continental Hotel v. Farhat Iqbal PLD 2003 SC 952; Govind Dass v. Kuldip Singh AIR 71 Del. 151; Price v. Gould 1930 143 LT 333; Ghulam Muhammad and 2 others v. Zia Anwar and 3 others PLD 1978 Lah. 1054; Najamuddin v. Zamir Ahmad PLD 1982 Kar. 188; Mst. Hawa Bai and another v. Mst. Rashida Khatoon and another 1989 MLD 601 and Rehmat Khan and 3 others v. Rehmat Khan and another PLD 1991 SC 275 rel.

Mian Nisar Ahmad for Petitioner.

Ch. Imdad Ali Khan for Respondents.

Date of hearing: 26th May, 2006.

P L D 2006 Lahore 714

Before Syed Zahid Hussain, J

SHAMEER---Petitioner

Versus

NOORA and others---Respondents

Writ Petition No.6525 of 2000, decided on 27th June, 2006.

Civil Procedure Code (V of 1908)---

---S. 12(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit decreed on basis of oath of one of the plaintiffs---Challenge to decree under S.12(2), C.P.C.-Validity---Plaintiffs (petitioner) and his real brother had filed a declaratory suit challenging transfer of land through mutation in favour of defendant---During trial of suit one of the plaintiffs (brother of petitioner) offered decision of suit on basis of oath and consequently suit was dismissed by Trial Court on 26-6-1985---Petitioner/co-plaintiff challenged decree of Trial Court through application under S.12(2) of C.P.C. asserting therein that as he was owner of half of suit-land, suit could not be decided on statement of one of the plaintiffs---Application was allowed by Trial Court but revisional Court reversed finding of Trial Court---Validity---Defendant claimed to have purchased suit-land only from one of the plaintiffs, who, along with defendant, gave statement on Oath---Petitioner was neither present in Court nor his agent made any statement on Oath---Statement of a plaintiff could not be used against co-plaintiff/petitioner--Only remedy available to petitioner was to challenge decree through application under S.12(2), C.P.C.---Contention of respondent/defendant that since defendant had sold land to subsequent purchaser and same was subject-matter of pre-emption suit entailing to a decree in favour of preemptor, said pre-emptor was to be impleaded as a party in application under S.12(2), C.P.C., had no substance---Such plea of respondent/defendant in this regard would be raised in suit before Courts seized of the matter---Only original parties to previous suit were to be impleaded in application under S.12(2), C.P.C. --Petition was allowed.

G.H. Khan for Petitioner.

Sh. Naveed Shahryar for Respondent No.1.

Respondents Nos. 2 and 3: Ex parte.

Date of hearing: 27th June, 2006.

P L D 2006 Lahore 717

Before Muhammad Jehangir Arshad, J

ZAFAR IQBAL---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

Writ Petition No.2918 of 2006, decided on 12th June, 2006.

Civil Procedure Code (V of 1908)---

----S. 105---Illegal Dispossession Act (XI of 2005), Ss.3 & 5---Criminal Procedure Code (V of 1898), Ss.24-A, 265-K & 561-A---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Non-appealable interlocutory order cannot be allowed to be assailed in constitutional jurisdiction under Art.199 of the Constitution---Respondent filed a petition .under S.3 of Illegal Dispossession Act, 2005 qua the property regarding which a civil suit was admittedly pending before civil Court---Additional Sessions Judge, in violation of procedure prescribed by section 5 of the Illegal Dispossession Act, 2005, neither inquired into the matter by an Officer Incharge of Police Station nor issued summons instead he directly issued warrants of arrest against petitioner---Validity---Statutes excluding a right of appeal from an interim order could not be by-passed by bringing under attack such interim orders in constitutional jurisdiction---Only remedy available to petitioner in criminal proceedings was to move an application under S.24-A or 265-K, Cr.P.C. as the case may be and no criminal proceedings could be allowed to be challenged through Constitutional petition or by moving application under S.561-A, Cr.P.C.---Perusal of record revealed that petitioner never appeared before Trial Court or made any application under S.24-A or 265-A, Cr.P.C.---Constitutional petition was therefore, not maintainable.

Mehr Muhammad Sarwar and others v. The State and others PLD 1985 SC 240 and Bashir Ahmad v. Zafar ul Islam and others PLD 2004 SC 298 ref.

Muhammad Arif Alvi for Petitioner.

P L D 2006 Lahore 719

Before Muhammad Jehangir Arshad, J

EHSAN ADEEL and others---Petitioners

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Revision No.657 of 1996, decided on 5th June, 2006.

Islamic Law----

----Succession---Nomination---Nominee of a deceased in presence of his legal heir was not entitled to inherit and receive the property whether movable or immovable as the case may be---Petitioner, father of deceased, filed application for obtaining Succession Certificate in respect of assets left by deceased---Said application was contested by respondent claiming himself to be the nominee of the deceased and thus entitled to said assets---Application of petitioner was accepted but order granting Succession Certificate was reversed in appeal---Validity---Nomination could not operate as a valid gift under Islamic Law as gift, in order to confer title on donee, must be accompanied by delivery of possession of property gifted while in the present case there could be no delivery of possession at the time the nomination was made---Nomination merely conferred a right to collect money and disburse the same to the legal heirs and since petitioner being father of deceased was admittedly alive at the time of death of deceased he was the only person entitled to claim disputed assets and nominee was not entitled to claim ownership with regard to the amount in dispute.

Mst. Amtul Habib and others v. Mst. Musarrat Parveen and others PLD 1974 SC 185 and Malik Safdar Ali Khan and another v. Public-at-Large and others 2004 SCMR 1219 ref.

Ehsan Raza Hashmi for Petitioners.

Tahir Mehmood for Respondents.

Date of hearing 5th June, 2006.

P L D 2006 Lahore 723

Before Muhammad Jehangir Arshad, J

MUHAMMAD ASLAM---Petitioner

Versus

TEHSIL MUNICIPAL ADMINISTRATION, CHISHTIAN and others---Respondents

Writ Petition No.1395 of 2006, decided on 21st June, 2006.

Punjab Local Government (Auction of Collection Rights) Rules, 2003---

----Rr. 5(v) & 16---Civil Procedure Code (V of 1908), S.35-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Tehsil Municipal Administration---Auction of collection rights--Contention of petitioner, a prospective bidder, was that neither minimum reserve price for auction in terms of Rule 5(v) of the Punjab Local Government (Auction of Collection Rights) Rules, 2003 had been mentioned in public notice published in -daily Circular nor the earnest money had been asked for in said notice as required by Rule 16 of the said Rules---Perusal of record revealed that none of the two requirements mentioned in the rules had been incorporated in public notice and said process of illegality was also conceded by Tehsil Municipal Officer---High Court besides declaring the auction proceedings proposed to be held, to be illegal and of no consequence and giving directions for fresh auction proceeding in accordance with Rules ordered the Tehsil Municipal Officer to pay costs to both Tehsil Municipal Administration and to petitioner for committing illegality in auction proceedings.

Postmaster General, Northern Punjab and (AJ&K) Rawalpindi v. Muhammad Bashir and 2 others (sic) ref.

Nadim Iqbal Chaudhry for Petitioner.

Ch. Bashir Ahmad Javed with Muhammad Nadim Mumtaz, Tehsil Municipal Officer, Chishtian for Respondent.

Shaheen Masud Rizvi, A.A.-G.

P L D 2006 Lahore 727

Before Syed Zahid Hussain, J

DOST MUHAMMAD ---Petitioner

Versus

KHAIR MUHAMMAD and 2 others---Respondents

Civil Revision No.86 of 2006, decided on 8th June, 2006.

Civil Procedure Code (V of 1908)---

----O. VII, R.11---Muslim owner of property, right of---Mutation of gift, challenge to---Scope---Provisions of O.VII, R.11, C.P.C.---Object---Plaintiff (son) filed declaratory suit challenging gift of property made by defendant (father) in favour of defendant (son)--Plaintiff contended that defendant father alienated property in favour of defendant son under influence and duress and that previously defendant father had given the same property to plaintiff---Defendants filed application under O.VII, R.11, C.P.C. which was accepted by both the Courts below---Validity---Defendant father had stated on Oath that he transferred property in favour of defendant son of his own free-will and consent and did not act under influence of defendant son---Plaintiff did not avail opportunity to cross-examine defendant father in that regard---Transfer of property by Muslim owner who was vested with all rights to dispose of property during his life time, could not be termed as illegal or contrary to law---Provisions of O.VII, R.11, C.P.C. could be invoked for rejection of plaint so that parties be relieved of vexatious litigation---If on considering plaint and material available on record, Court found that suit was vexatious and without merit, it was to be nipped in the bud at initial stage---Plaint was rightly rejected by Courts below---Petition was dismissed.

Muhammad Younis Bhatti for Petitioner.

P L D 2006 Lahore 729

Before Umar Ata Bandial, J

MAHMOOD ALAM and another---Petitioners

Versus

Mian FAROOQ AHMAD and 5 others---Respondents

Writ Petition No.5759 of 2006, decided on 6th July, 2006.

Punjab Local Government Elections Rules, 2005---

----R. 65---Constitution of Pakistan (1973), Art.199---Constitutional petition---Recounting of votes---Election Tribunal ordered recounting of votes mainly for the reason that total votes cast for the other seats at the common polling stations was different from the total votes cast in election for the seat of Nazim/Naib Nazim of the Union Council---Consideration was that variation in the total of votes reflected a material irregularity which Election Tribunal ought to examine through a recount of votes cast---Allegations made in election petition on basis of which recounting was ordered by Election Tribunal, were vague and sweeping in nature without specific mention of any illegal acts that could invite an order of recount---In absence of any material before Election Tribunal to justify recount of votes, impugned order passed by Election Tribunal in election petition, was declared to be illegal and void---Election petition should be decided on merits in accordance with law after recording evidence of parties.

Kanwar Ijaz Ali v. Irshad Ali and 2 others PLD 1986 SC 483 and Muhammad Naeem Kasi and another v. Abdul Latif and 7 others 2005 SCMR 1699 ref.

Ch. Azeem Sarwar for Petitioners.

Khalid Pervaiz Warriach for Respondent No.1.

P L D 2006 Lahore 731

Before Muhammad Muzammal Khan and Syed Shabbar Raza Rizvi, JJ

MIQDAD HUSSAIN---Appellant

Versus

JUDGE GUARDIAN COURT NO.1 and another---Respondents

Intra-Court Appeal No.493 of 2005 in Writ Petition No.15933 of 2005, heard on 19th June, 2006.

Punjab Copying Agencies Manual---

----Para. 1.27---Qanun-e-Shahadat (10 of 1984), Arts.85 & 87---Law Reforms Ordinance (XII of 1972), S. 3--- Intra-Court Appeal---Issuance of "Copy of a Copy"---Prerequisite--Appellant applied for issuance of certified copies of judgment/decree passed by the Trial Court against him along with copies of two memos. issued by Establishment Division of Government---Certified copies of said two memos. were refused to be issued by Copying Agency on the ground that copy of a copy could not be issued---Constitutional petition filed by appellant against refusal order of Copying Agency, having been dismissed by Single Judge of High Court, appellant had filed Intra-Court Appeal---Validity---Appellant had not brought anything on record to show that Punjab Copying Agencies Manual which contained Rules relating to supply of copies of records under the Control of Deputy Commissioners, Commissioners and Financial Commissioners, were adopted by High Court and were applicable to Copying Agencies under the Control of District Courts---Said Manual would not apply ipso facto to Copying Agencies unless those Rules/Instructions were adopted by High Court---Para. 1.27 of Punjab Copying Agencies Manual had depicted that person applying for copy of copy should be in possession of copy of the document applied and must detail its object of calling in question the correctness of copy already in his possession, but appellant's case was not covered by it---Copying Agency under Control of District Courts was not in custody of original Memos., copies of which were applied by appellant whereas originals of those were with the Establishment Division of Government of Pakistan---Appellant, in circumstances could not call upon Copying Agency under Control of District Courts, to issue certified copies of those documents, which were not in their custody/control---`Copy of Copy' could not be issued and appellant must get those copies from the offices with whom original documents were or should be available---Intra-Court Appeal being devoid of any merits, was dismissed.

Mst. Kalsoom Begum v. Ahmad Raza Bukhari PLD 1999 Lah. 231 ref.

Dr. Hameed Ahmed Ayaz for Appellant.

Hashim Sabir Raja, Asstt. A.-G. and Syed Kaleem Ahmed Khurshid Amiens Curiae for Respondents.

Date of hearing: 19th June, 2006.

P L D 2006 Lahore 735

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD SAEED QAMAR---Petitioner

Versus

SAIFULLAH VIRK and others---Respondents

Criminal Original No.516-W of 2006, decided on 27th July, 2006.

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

----Ss. 3 & 4---Criminal Procedure Code (V of 1898), S.561-A---Disobedience of order passed by High Court---Counsel and client; relationship of---Counsel's duty to Court---Scope---Petitioner had filed constitutional petition to the effect that he raised temporary construction to hold `Mela' on private land and not on government land "and respondent/Station House Officer was interfering with petitioner's lawful business of running Mela/Circus---Respondent recorded statement that he would not interfere with petitioner's lawful business---Criminal original was subsequently filed by petitioner on ground that in spite of respondent's undertaking in constitutional petition, the latter had registered F.I.R. against petitioner---Respondent contended that as Mela/Circus was being held on government land, he registered F.I.R. on application of Municipal Officer on the ground that petitioner attempted to raise construction for Circus on government land illegally---Local Commission was appointed on petitioner's request by Court--Neither petitioner nor his counsel obeyed orders of Court to deposit fee of Local Commission and they were not available at site when Commission arrived there to inspect site for preparation of report on Court's order---Local Commission, after site inspection, and recording statements of persons doing business near and around the site in question and consulting revenue documents, confirmed that site under dispute was not owned by any private person rather it belonged to Municipal Corporation---Petitioner and his counsel did not enter their appearance before the Court on date fixed for hearing---Counsel was required to represent his client to the best of his ability without showing disloyalty or disrespect to Court by making unreasonable assertions and suppression of facts---Counsel appearing in Court was required under law to assist Court and was not expected to mislead Court while defending his client's cause---Criminal original was dismissed with costs of Rs.10,000 to petitioner and Rs.5,000 to counsel for the petitioner.

Nemo for Petitioner.

Khurshid Anwar Bhinder, Addl. A.-G., Punjab.

Saif Ullah, S.I./S.H.O.

P L D 2006 Lahore 738

Before Mian Hamid Farooq, J

MUHAMMAD YOUSAF---Petitioner

Versus

MANZOOR AHMAD and another---Respondents

Writ Petition No.7782 of 2006, decided on 18th July, 2006.

Punjab Pre-emption Act (IX of 1991)---

----Ss. 6 & 13---Civil Procedure Code (V of 1908), S.115 & O.VIII, R.1---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for pre-emption---Failure to file written statement---Maintainability of constitutional petition against revisional order--Respondent filed suit for pre-emption against petitioner---Petitioner, despite providing him eight opportunities including final opportunity to file written statement, failed to file written statement and the Trial Court proceeded to close petitioner's right to submit written statement---Petitioner's revision petition against order of the Trial Court having been dismissed, petitioner filed constitutional petition challenging order passed by revisional Court in exercise of its powers under S.115, C.P.C.---Whether constitutional petition was competent and maintainable against revisional order passed in civil litigation---Held, revisional order arising out of civil litigation could not be challenged in constitutional petition---Even if order passed in exercise of revisional jurisdiction was illegal, but was passed with jurisdiction, same could not be assailed in constitutional petition---If an order passed by revisional Court was wholly void or corum non judice, constitutional petition, against such a revisional order would be competent; except for such orders, no orders in another case passed by revisional Court could be challenged through filing of constitutional petition---Impugned revisional order was neither void nor without jurisdiction, but was passed by the Court having jurisdiction in the matter---Constitutional petition deserved to be dismissed on that ground alone---Even otherwise petitioner had got no case on merits as he failed to file written statement within prescribed period of thirty days as under proviso to O. VIII, R. 1, C.P.C. period allowed for filing written statement should not ordinarily exceed thirty days---Both Courts below had not committed any illegality in closing petitioner's right to submit written statement.

Lahore Development Authority through Director-General v. Muhammad Shafi and 3 others 2004 YLR 959; Muhammad Sami Ullah Khan v. Additional District Judge and others PLD 2002 Lah. 56; Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131; Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322 and Muhammad Khan v. Ghulam Fatima 1991 SCMR 970 ref.

Agha Abul Hassan Arif for Petitioner.

P L D 2006 Lahore 741

Before Muhammad Jehangir Arshad, J

ABDUL MAJEED---Petitioner

Versus

PROVINCE OF THE PUNJAB and others---Respondents

Civil Revision No.1309-D of 1996, decided on 27th June, 2006.

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

----S. 91(2)---Public nuisance---Site plan sanctioned by Municipal Committee, evidenciary value of---Unauthorized occupation of public pathway---Demarcation proceedings---Failure to challenge veracity of demarcation report at the relevant time---Effect---Plea raised before High Court for the first time---Validity---Plaintiff/petitioner filed civil suit seeking possession of suit-land allegedly purchased vide registered sale­deed---Plaintiff/petitioner got site plan sanctioned from Municipal Committee including area of disputed land---Defendants/respondents filed a suit prior to that of plaintiff's and challenged sanctioning of site plan in favour of plaintiff by Municipal Committee---Defendants/ respondents alleged that suit-land was in fact public pathway encroached upon by plaintiff/petitioner---Trial Court vide a consolidated judgment dismissed both suits---Appellate Court accepted defendant's appeal and dismissed that of plaintiff's---Validity---Disputed Khasra number was not included in sale-deed executed in favour of plaintiff by Municipal Committee rather it was part of public pathway---Sanctioning of site plan by Municipal Committee which included disputed Khasra number could not give rise to any presumption of correctness or sanctity nor it could legalise unauthorized occupation or claim of plaintiff---Site plan sanctioned by Municipal Committee could not be considered as a piece of evidence---Site plan if got sanctioned by competent authority either through misrepresentation or in violation of master plan or for some like reasons, the same could neither have any legal sanctity nor affect private rights of a person---Order of Municipal Committee sanctioning site plan after first rejecting the same, was without lawful authority and there was no need to seek cancellation of such order---Without filing appeal against order sanctioning site plan, defendants/respondents could file suit restraining plaintiff/petitioner from raising construction on public pathway---If a person was not a party to a deed he need not seek its cancellation---Demarcation proceedings were conducted in presence of plaintiff and non-filing of objections against demarcation report amounted to acceptance by plaintiff of demarcation report---Objections which were not taken in plaint or written statement and where no issue was framed to that effect, nor evidence was led nor any finding was recorded in that regard, the same could not be allowed to be raised before High Court for the first time---Revision petition was accordingly dismissed.

PLD 2006 SC 318; Mst. Murad Begum and others v. Muhammad Rafiq and others PLD 1974 SC 322; Islamuddin and others v: Ghulam Muhammad and others PLD 2004 SC 633 and Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624 rel.

Muhammad Faraz and another v. Abdul Rashid Khan and others (1984 SCMR 724) distinguished.

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

----S. 3---Land Revenue Rules, 1968, R.67-A---Civil suit---"Ghair Mumkin" land---Demarcation proceedings conducted by Patwari---Rule 67-A of Land Revenue Rules, 1968 referred to demarcation of agricultural land only and not to property other than agricultural land-Section 3 of West Pakistan Land Revenue Act, 1967 expressly excluded land not assessed to land revenue from operation of West Pakistan Land 'Revenue Act., 1967---As Commission for holding demarcation was appointed by Court independent of Land Revenue Rules, 1968, Court was fully competent to appoint any person for the purpose of demarcation---Demarcation proceedings conducted by Patwari were neither illegal nor without jurisdiction.

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

----S. 91(2)---Public nuisance---Right independent of subsection (1), S.91, C.P.C.---Institution of suit without seeking permission from Advocate-General---Effect---Plea of bar---Scope---Plea of bar under S.91, C.P.C. could not be raised for the first time before High Court without there being any issue, evidence or findings of Courts below on record---Defendant/respondents based their claim on provisions of subsection (2) of section 91, C.P.C. which allowed institution of suit independent of public nuisance---Individual could institute a suit fin- a right in his favour in respect of public nuisance without obtaining sanction from Advocate-General of the Province.

Islamuddin and others v. Ghuiam Muhammad and others PLD 2004 SC 633 rel.

Mian Shamsul Haq Ansari for Petitioner.

Ch. Abbas Ahmad for Respondent No.2

Mirza Manzoor Ahmad for Respondents Nos. 3 to 7.

Dates of hearing: 13th and 14th June, 2006.

P L D 2006 Lahore 752

Before Syed Shabbar Raza Rizvi, J

Maj. (Rtd.) JAVED INAYAT KHAN KIYANI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 3399-B of 2006, decided on 29th June, 2006.

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

----S. 489-F [as added vide S.2 of Criminal Law (Amendment) Ordinance (LXXXV of 2002)]---Object of S.489-F, P.P.C. was to curb the fraudulent or dishonest issuance of cheques to cause dishonest gain or to cause dishonest loss---Before approaching investigation agency or launching a criminal prosecution, it was necessary to establish, prima facie, that cheque was issued dishonestly and with the intention to defraud---To know the intention of a drawer, a payee could give a notice to the drawer after dishonour of cheque by the drawee and before approaching the police or the Court---Word "dishonestly" employed in S.489-F, P.P.C. required conscious and serious examination.

2005 PCr.LJ 1462 and Mian Hussain Ahmad Hyder v. S.H.O. and others 2005 YLR 1565 ref.

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

----S. 24---Word "dishonestly", defined and explained---Language of S.24, P.P.C. was explicit and conveyed that to constitute an act "dishonestly", it was important that something should be done with the intention of causing wrongful gain or wrongful loss---Wrongful gain could not be attained by wrong doer for himself only, but wrong doer could cause gain or loss to any other person also---Person could be said to have dishonest intention if in taking property it was his intention to cause gain by unlawful means of the property to which the person was so gaining, was not legally entitled or to cause loss by wrongful means of property to which the person so losing was legally entitled and it was further clear from definition of "dishonestly" that the gain or loss contemplated need not be a total acquisition or a total deprivation, but was enough, if it was temporary retention of property by the person wrongfully gaining or temporary "keeping out" the property from the person, legally entitled.

PLD 1957 SC (India) 317 ref.

(c) Words and phrases---

----"Dishonestly" defined and explained.

(d) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 2(d)(iv), 7, 20 & 22---Penal Code (XLV of 1860), S.489-F [as added vide S.2 of Criminal Law (Amendment) Ordinance (LXXXV of 2002)]---Recovery of loan---Procedure ---Object and reason for enacting Financial Institutions (Recovery of Finances) Ordinance, 2001 and S.489-F, P.P.C., was to provide single forum to the Banks for the recovery of their loans from their customers and likewise to the customers to approach the same Court if they had any grievance against the Banks---Word "loan" was substituted in P.P.C. with word "finance", similarly, punishment of one year was substituted with three years in P.P.C.---Objective to legislate S.20(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001, was different than objective to legislate S.489-F, P.P.C., but S.489-F, P.P.C. had not been legislated/drafted differently---Purpose of enacting said laws was to provide speedy measures for the recovery of outstanding loans and finances---Under S.7 of Financial Institutions (Recovery of Finances) Ordinance, 2001, a Banking Court was conferred criminal jurisdiction to try offences punishable under said Ordinance and for the purpose, same powers were vested as were vested in the Court of Session in Code of Criminal Procedure, 1898---Banking Court could take cognizance of any offence under Financial Institutions (Recovery of Finances) Ordinance, 2001 upon a complaint in writing made by a person authorized in that behalf by concerned Financial Institutions in respect of which offence was committed---Whenever an offence was committed under S.20(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001, Banking Court. would take cognizance on a complaint filed by authorized person and the complaint would be tried by concerned Banking Court---Appeal was- provided before two Judges of the High Court under S.22 of Financial Institutions (Recovery of Finances) Ordinance, 2001---Under S.489-F, P.P.C., an F.I.R. was lodged with a concerned police station and after submission of final report, jurisdiction of trial was conferred upon Magistrate of the First Class and appeal could be filed before concerned Sessions Judge---Section 489-F, P.P.C. would be attracted where an individual would issue a cheque dishonestly in favour of another individual and the same was dishonoured on presentation---Purpose of both enactments was different and the procedure for prosecution was also different---Banking Laws relating to recovery, expressly or impliedly, envisaged effect of issuance of cheque "dishonestly" or "inadvertently".

M. Z. Corporation v. MS Sky Lines Printing Press 1993 MLD 1764; 1993 MLD 1766; 1995 MLD 12; PLD 1993 SC 341; PLD 1986 SC 240; PLD 2002 SC 460; Ocean Industries Limited and another v. Industrial Development Bank PLD 1966 SC 738 and M. A. Hameed Puri v. Federation of Pakistan PLD 1979 Lah. 252 ref.

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

----S. 498---Penal Code (XLV of 1860), S. 489-F---Pre-arrest bail, grant of---F.I.R. had shown that cheque in question was issued from joint account of accused and co-accused to be encashed on specified date---Said cheque was signed by both of them, which had indicated that they were partners and possibility of possession of cheques jointly signed by them with co-accused could not be ruled out---Payment was made to complainant despite letter of accused to the Bank that joint account be closed---Co-accused gave cheque to complainant who got it encashed before accused could inform Bank not to encash any cheque from the joint account---On the basis of said payment in favour of complainant, Investigating Officer, found that actual payment was made to complainant from the joint account and no wrongful loss was caused to him---Police record also indicated that accused had informed the Bank that partnership between accused and his co-accused ended and jointly signed cheques be not honoured---Opinion of the police though was not binding, but it had a persuasive value in all criminal matters including bail before arrest---Cheque in question either was not issued by accused at all or it was issued jointly by accused and co-accused---No harm came to co-accused from complainant side---If said cheque was issued dishonestly, then it was issued by both of them---Agreement to buy machinery mentioned in F.I.R., might have existed between co-accused and complainant, accused had no obligation or liability towards complainant which he failed to fulfil---Accused also did not owe any loan to complainant---Element of mala fides on part of complainant, could not be ruled out in circumstances---Accused, who was a retired army officer and a businessman, had been declared innocent by Investigating Officer---Interim bail granted to accused was confirmed, in circumstances.

Sardar Khurram Latif Khan Khosa for Petitioner.

Imtiaz Ahmad Kalil for the Complainant.

Ijaz Ahmad Bajwa for the State.

S. Raza Hussain, S.-I.

P L D 2006 Lahore 771

Before Mian Hamid Farooq and Umar Ata Bandial, JJ

NOOR BADSHAH---Appellant

Versus

HOUSE BUILDING FINANCE CORPORATION through District Manager, House Building Finance Corporation, Faisalabad and another---Respondents

E.F.A. No.97 of 2003, heard on 4th July, 2006.

Civil Procedure Code (V of 1908)---

----O. XXI, Rr. 66 & 90--Auction of immovable property---Reserve price---Court auctioneer---Powers---Sale of property by auction was confirmed on the price less than the reserve price---Judgment debtor filed objection and sought setting aside of sale on the ground that the price of property was more than what was reserved by the Executing Court but Court auctioneer sold the same against the price less than the reserve price---Objection petition was dismissed by Executing Court and sale was confirmed in favour of auction purchaser---Validity---Bid had to start from the reserve price and Court auctioneer had no authority either to reduce the reserve price or to accept any bid below the reserve price, which had the sanctity of the Court, who fixed the reserve price--Purpose of fixing reserve price in proclamation was that the Court had to safeguard the rights of judgment debtor and the bid was to start from that figure---Court auctioneer committed material irregularity while conducting the sale and accepting bid below the reserve price, inasmuch as the order of the Court fixing the reserve price was completely ignored---Sale was declared illegal by the High Court on account of such material irregularity, and was set aside---Such a sale, in normal circumstances, after its confirmation was not set aside but if sale itself became invalid, its confirmation would also be invalid---Objection petition of judgment debtor was remanded to Executing Court for decision afresh---Appeal was allowed accordingly.

Brig. (Retd.) Mazhar ul Haq and another v. M/s. Muslim Commercial Bank Limited, Islamabad and another PLD 1993 Lah. 706; Mrs. Aziz Fatima and 3 others v. Mrs. Rehana Chughtai and 3 others 2000 CLC 863; Mrs. Shahida Saleem and another v. Habib Credit and Exchange Bank Limited and 4 others 2001 CLC 126 and Afzal Maqsood Butt v. Banking Court No. 2, Lahore and 8 others 2005 CLD 967 ref.

Javaid Jalal for Appellant.

Ch. Shafique ur Rehman for Respondent No.1.

Tariq Mehmood Mann for Respondent No.2.

Date of hearing: 4th July, 2006.

P L D 2006 Lahore 774

Before Syed Hamid Ali Shah, J

NASIM AHMAD KHAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and 4 others---Respondents

Writ Petition No.16956 of 1995, decided on 24th July, 2006.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Bona fide personal need of landlord---Scope---No other residential property was owned by landlord in the concerned municipal area---Effect---Predecessor of landlords filed ejectment petition against tenant/petitioner, asserting therein that premises were required for his personal need and he did not have any other residential property in the concerned municipal area---Tenant, while contesting the ejectment petition, denied relationship of landlord and tenant and also averred that being a lawyer he used premises as office-cum-residence, which involved goodwill earned by tenant due to consistent use of his office---Rent Controller passed eviction order and appeal thereagainst was also dismissed---Validity---Proceedings under West Pakistan Urban Rent Restriction Ordinance, 1959 did not require adherence to strict legal procedure---Seeking ejectment on personal requirement was even simpler, for when landlord proved that lie had no other premises in his use and occupation in the concerned municipal area where his rented premises were situated, then statement of landlord was sufficient for ejectment order---Rent Controller was not bound to follow procedure provided in C.P.C. rather he could adopt any procedure for fair dispensation of justice---Rent Controller was to see bona fides of landlord and inquiry through evidence in that respect---Rent Controller being not a Court, therefore, provisions of C.P.C. as well as Qanun-e-Shahadat, 1984 did not strictly apply to rent proceedings---Tenant's contention that as predecessor of landlord sought eviction of petitioner on ground of his personal need and did not mention in ejectment petition need of his family or children and on death of landlord ejectment proceedings abated, was not maintainable, in that the amended ejectment petition was filed by legal heirs of deceased (respondent's predecessor) wherein they categorically stated their personal need---Even otherwise need of landlord was the need of his family and personal need of landlord did not extinguish on the death of landlord---Court, in order to avoid multiplicity of proceedings and to shorten the litigation, could mould relief according to circumstances of the case---Mere shifting to another town due to non-availability of adequate accommodation did not disentitle landlord to seek eviction of tenant from their premises---Tenant's evidence was rightly closed as in remand order passed by Appellate Court, an opportunity was given to tenant for production of evidence but tenant did not avail the opportunity---Till the time the Court of competent jurisdiction decided about existence of agreement of sale, the same was not to be made basis for denying the right of landlord to receive rent or seek eviction of tenant---Tenant, had invoked jurisdiction of High Court under Art. 199 of the Constitution for reappraisal and assessment of evidence, which was not permissible in constitutional jurisdiction---Resolution of complicated questions of facts were beyond scope of constitutional jurisdiction---Concurrent findings of Courts below could not be interfered with under Art.199 of the Constitution---Petition was dismissed.

Aadil Nadeem Rizvi v. Gohar Siddique and others 2004 SCMR 738; Muhammad Latif and another v. Muhammad Afzal and others 2004 SCMR 1614; Waheed Ullah v. Mst. Rehana Nasim and others 2004 SCMR 1568; Wajid Ali Khan v. Sheikh Murtaza Ali and 2 others 2003 SCMR 1416; Haji Ibrahim v. S. Rehmatullah (Represented by L.Rs) 1985 SCMR 241; Phool Din and anothers v. Abdul Majid 1981 SCMR 711; Hameed Jilani Tiwana v. Abdul Aziz Ghafoor Khan and 2 others 2005 MLD 1232; Haji Khudai Nazar and another v. Haji Abdul Bari 1997 SCMR 1986; Ch. Muhammad Akmal v. Faisal Saeed Mirza and others 2004 CLC 862; Iqbal and 6 others v, Mst. Rabia Bibi and another PLD 1991 SC 242; Allah Yar and another v. Addl. District Judge and others 1984 SCMR 741 and Allah Ditta v. Muhammad Sarwar 1991 MLD 1335 rel.

Mst. Jamila Latif v. Ghulam Yazdani Khan 1981 SCMR 637; P.B. Daviz v. Mrs. Shakar Khano Bai represented by L.Rs. 1986 MLD 1342; Muhammad Shafi and others v. Muhammad Ilyas 1986 SCMR 451; Muhammad Aslam through L.R. v. Wazir Muhammad PLD 1985 SC 46; Haji Said Wahab Khan v. Amjad Ali and others 2005 SCMR 840; M/s. Muhammdia Medical Hall, Khan Arm Dealers through Khurshid Alam v. Mahmood-ul-Hassan and 3 others NLR 1982 SCJ 23; Muhammad Sharif and another v. Muhammad Afzal Sohail and others PLD 1981 SC 246; Haji Ibrahim v. S. Rehmatullah (Represented by L.Rs) 1985 SCMR 241; Mst. Bashiran Bibi v. Addl. District Judge and others 1990 CLC 901; Aadil Nadeem Rizvi v. Gohar Siddique and others 2004 SCMR 738; Muhammad Latif and another v. Muhammad Afzal and others 2004 SCMR 1614; Waheed Ullah v. Mst. Rehana Nasim and others 2004 SCMR 1568; Wajid Ali Khan v. Sheikh Murtaza Ali and 2 others 2003 SCMR 1416; Phool Din and another v. Abdul Majid 1981 SCMR 711 and Hameed Jilani Tiwana v. Abdul Aziz Ghafoor Khan and 2 others 2005 MLD 1232; ref.

Qazi Abdul Hamid for Petitioner.

Nemo for Respondent Nos. 1 and 2.

Shaharyar Kasuri for Respondents Nos. 3 to 5.

Date of hearing: 6th March, 2006.

P L D 2006 Lahore 780

Before Sh. Javaid Sarfraz and Sardar Muhammad Aslam, JJ

MUHAMMAD IDREES---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.245 of 2002, heard on 28th June, 2006.

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

----Ss. 6, 9 & 25---Criminal Procedure Code (V of 1898), Ss.103 & 156(1)(2)---Appreciation of evidence---Investigation was conducted by C.I.A. officials---Non-compliance of S.156(1)(2), Cr.P.C.---Effect---On secret information, C.I.A. official/complainant with the help of decoy purchaser arrested accused/appellant who led to recovery of 120 Kg. of Charas and 50 Kg. of opium lying in his residential room---F.I.R. was registered at concerned police station but investigation of case was entrusted to Inspector, C.I.A. who investigated the matter, recorded statements of witnesses under S.161, Cr.P.C. and submitted challan in court---Accused alleged that he was involved in case on the basis of his enmity with police officials---Trial Court convicted and sentenced accused to imprisonment for life---Accused contended that investigation conducted by C.I.A. police was illegal---Validity---Investigation of a case could be conducted by C.I.A. officials, under due authorization by competent authority---Investigation conducted by C.I.A. official, who was not competent to investigate the matter would amount to an irregularity, not affecting the judgment---Investigation conducted by C.I.A. official did not cause any injustice to accused---Accused, who failed to raise objection at proper time was estopped to raise the same before High Court---If no serious prejudice was caused to accused, resulting in miscarriage of justice; then violation of S.156(1) of Cr.P.C. would not vitiate the trial---Accused was caught red-handed while selling charas and led to recovery of huge quantity of narcotics from his room, therefore, associating the owner of house was neither necessary nor required under law---In narcotic cases, where private persons, were reluctant to appear as prosecution witnesses, police officials were as good witnesses as any private witness---Under S.25 of Control of Narcotic Substances Act, 1997, the applicability of S.103, Cr.P.C., had been excluded---Sending of entire narcotics recovered from accused to Chemical Examiner was neither necessary nor mandatory---F.I.R. in a murder case in which accused/appellant was complainant and which according to prosecution allegedly was the basis of false involvement of accused in narcotic case, was neither brought on record nor accused in his statement under S.342, Cr.P.C., referred to the said F.I.R.---Prosecution witnesses did not depose as to the outcome of murder case---People who allegedly appeared before Investigating Officer in support of accused/appellant's defence did not appear as defence witnesses to support accused---Prosecution had successfully proved its case against accused; keeping in view the huge quantity of narcotics recovered, accused did not deserve any leniency---Appeal was dismissed.

Jan Gul v. The State 2003 PCr.LJ 1515; Rahim Dad v. State 2002 PCr.LJ 1506 and Nadir Khan v. State 1988 SCMR 1899 rel.

The State through A.-G. v. Bashir and others PLD 1997 SC 408 and Iftikhar v. The State PLD 1995 Lah. 606 ref.

The State through A.-G. v. Bashir and others PLD 1997 SC 408 and Iftikhar v. The State PLD 1995 Lah. 606 distinguished.

Ch. Abdul Rashid for Appellant.

Pervaiz Akber Khan for the State.

Date of hearing: 28th June, 2006.

P L D 2006 Lahore 789

Before Syed Shabbar Roza Rizvi and Sardar Muhammad Aslam, JJ

Dr. QAISER RASHID---Appellant

Versus

FEDERAL SECRETARY, MINISTRY OF FOREIGN AFFAIRS, GOVERNMENT

OF PAKISTAN, ISLAMABAD---Respondent

Criminal Appeal No.815 of 2006 in Criminal Original No.935/W/2005 in W.P. No. 18609 of 2004, decided on 29th May, 2006.

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

----Art. 199(5)---Constitutional petition---Maintainability---Pre­conditions---Writ of mandamus against a private institution---Scope---High Court can issue mandamus only to a "person" who performs functions with the affairs of Federation, Province or a Local Authority---Definition of "person" is given in Art.199(5) of the Constitution, itself which does not include a private institution---Other requirement or condition precedent is that such person must be based on within territorial jurisdiction of High Court.

(b) Contempt of Court Act (XXIV of 1976)---

----Ss. 3 & 10---Constitution of Pakistan (1973), Arts. 175 & 199---Contempt of Court---Judicial review---Territorial jurisdiction---Private institution, based in foreign country---Appellant entered into a contract with a private foreign institution, which institution declined to. issue a Research Experience Certificate to appellant---High Court in exercise of Constitutional jurisdiction, directed Ministry of Foreign Affairs to make efforts to get the grievance of appellant redressed---After the disposal of Constitutional petition, the appellant filed contempt of Court application on the ground that the authorities did not honour the direction of High Court---Contempt of Court application was dismissed by High Court, on the ground that the Embassy of Pakistan was not under obligation to approach a private foreign institute for issuance of a Certificate---Validity---Every Province had a separate High Court under Art.175 of the Constitution---Lahore High Court had its jurisdiction within the Province of Punjab and also within the territory of Federal Capital of Islamabad, under special arrangement---Foreign country, where the institute was located, was out of territorial jurisdiction of High Court, therefore, no writ could be issued in such matter---Constitutional jurisdiction or jurisdiction of judicial review by High Court was exercised under Art.199 of the Constitution and not under any other instrument---High Court being a creature of Constitution, could only exercise such powers which were conferred upon it by or under the Constitution---High Court declined to interfere in the judgment passed by Single Judge of High Court---Appeal was dismissed in circumstances.

Asad Ullah Javaid for Appellant.

P L D 2006 Lahore 793

Before Muhammad Jehangir Arshad, J

Malik AMEER BAKHSH---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MULTAN and 3 others---Respondents

Writ Petition No.3335 of 2006, decided on 3rd July, 2006.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Specific Relief Act (I of 1877), S.12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Agreement to sell between landlord and tenant regarding tenanted property---Default in payment of rent by tenant---Ejectment petition filed by landlord---Suit for specific performance of agreement to sell filed by tenant--Petitioner/tenant entered into agreement with respondents/landlords for sale of rented property and it was agreed between the parties that till completion of sale-deed petitioner would keep paying monthly rent for premises---Petitioner defaulted in payment of rent whereupon respondents filed ejectment petition against petitioner---Petitioner in his reply to ejectment petition ,contended that as he had instituted suit for specific performance of agreement to sell against respondents, therefore, ejectment petition was not maintainable---Rent Controller passed ejectment order against petitioner---Appeal filed thereagainst was dismissed by lower Appellate Court---Validity---Agreement to sell not only established relationship of landlord and tenant between the parties till execution of sale-deed but the same also bound petitioner/tenant to pay the rent as agreed between both the parties---In view of petitioner's admission in his reply to ejectment petition that he was not liable to pay rent to respondents, petitioner was rightly declared by Rent Controller and lower Appellate Court as defaulter---Neither pendency of suit for specific. performance was an impediment in filing of ejectment petition nor agreement to sell between the parties could debar Rent Controller from holding petitioner as defaulter on the basis of his own admission-Constitutional petition was dismissed accordingly.

Iqbal and 6 others v. Mst. Rabia Bibi and another PLD 1991 SC 242 and Wajid Ali Khan v. Sheikh Murtaza Ali and 2 others 2003 SCMR 1416 rel.

Malik Javed Akhtar Vains for Petitioner.

Syed Muhammad Ali Gillani for Respondents Nos. 3 and 4.

P L D 2006 Peshawar 1

Before Tariq Parvez Khan, J

FAZAL SUBHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.660 of 1997, decided on 1st August, 1997.

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

----Ss. 86-A & 86---Frontier Crimes Regulation (III of 1901), Preamble---Removal of arrested person in custody in Tribal Area---Procedure---Purpose and object of S.86-A, Cr.P.C.---Purpose and object of S.86-A, Cr.P.C., primarily was to see that a citizen of Pakistan living in settled areas was not unnecessarily harassed and removed to the Tribal Area to face the agony of trial under Frontier Crimes Regulation---Magistrate conducting proceedings under S.86-A, Cr,.-P.C., would not act as a Post Office, but was empowered to inquire and record evidence and to determine whether a person so arrested, should be removed from settled District to Tribal Area and he was to satisfy himself that evidence' produced before him, raised a strong probable presumption that person arrested had committed offence mentioned in the warrant---Section 86-A, Cr.P.C. was to be read with S.86, Cr.P.C.---Magistrate, who received a warrant from outside his territorial jurisdiction for execution, was vested with the powers to allow bail to such person against whom warrant was sent, provided offences for which he was required were bailable---Magistrate who was exercising jurisdiction under S.86-A, Cr.P.C., would perform judicial functions and would have powers to come to the conclusion that on basis of facts and circumstances and evidence recorded, person arrested would not be removed to Tribal Area---Magistrate had all other ancillary powers including grant of bail.

Zareef Khan v. Sessions Judge, Peshawar and others PLD 1995 Pesh. 118 ref.

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

----Ss. 85 & 86-A---Frontier Crimes Regulation (III of 1901 ), Preamble--- Arrest of person and removal in custody to Tribal Area---Procedure for and jurisdiction of Magistrate---Magistrate who was dealing with case of a person arrested under 5.85, Cr.P.C. and was to be removed in custody to any place in Tribal Area, had been vested with the powers to inquire into the matter and hear the case in the same manner and have same jurisdiction and powers including the recording of evidence, for the purpose of his satisfaction to see if material/evidence recorded before him was sufficient for removal of person so arrested to the custody of hierarchy functioning under Frontier Crimes Regulation.

Muhammad Ajmal for Petitioner.

Abdur Rauf Gandapur for Respondent.

Date of hearing: 1st August, 1997.

P L D 2006 Peshawar 5

Before Jehan Zaib Rahim, J

ARIF---Appellant

Versus

THE STATE and 2 others---Respondents

Criminal Appeal No.22 of 2004, decided on 7th September, 2005.

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

----Ss. 302(b), 324 & 337-F(iv)---Appreciation of evidence---Complainant being the real uncle of the accused had no reason to falsely implicate him and substitute him with the real culprit---Presence of complainant at the scene of occurrence could not be doubted as out of the eye-witnesses he was the only witness who had sustained fire-arm injury during the incident---Complainant had charged the accused for the death of the deceased and for causing him fire-arm injury on his left knee---Statement of the complainant was corroborated by other eye-witnesses---Ocular testimony was consistent and confidence-inspiring and the same had to be preferred over medical evidence, which had over writings and had been tampered with at various places---Crime empties collected from the spot, according to Forensic Science Laboratory had been fired from the pistol recovered from the accused---Verbal defence assertion without its substantiation through documentary evidence, could not affect the merits of the prosecution case because the prosecution witnesses had no motive or malice against the accused for his false implication---Accused in the first instance, had himself provoked the deceased by abusing and insulting him for no reason and later killed him and injured his old uncle for no justifiable reason---Previous criminal record of the accused and his desperate nature had disentitled him to any further leniency in the matter of sentence---Convictions and sentences of accused were upheld in circumstances.

Muhammad Iqbal v. State PLD 2001 SC 222; Muhammad Hayat v. State 1996 SCMR 1411; Shehr-ud-Din v. Allah Rakhio 1989 SCMR 1461; Muhammad Ilyas v. State, 1997 SCMR 25; Ibrahim alias Ibro v. State 1968 SCMR 1240; Muhammad Aslam v. State NLR 1978 Cri 293; Allah Bakhsh v. State PLD 1978 SC 171; Muhammad Tariq v. State NLR 1982 Cr.LJ 452; Farid v. Aslam PLD 1977 SC 4; Munir Ahmad v. State 2001 SCMR 241; Haji Muhammad v. State PLD 1966 (W.P.) Lah. 344; Said Shah v. State NLR 1988 Cri. 381; Liaqat Ali v. State 1982 PCr.LJ 390; Allah Bakhsh v. Ahmed Din 1971 SCMR 462 and Muhammad Mushtaq v. State PLD 2001 SC 107 ref.

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

----Ss. 302(b), 324 & 337-F(iv)---Substitution ---Substitution of an accused in cases of murder who is actually involved in the commission of the crime, is a rare phenomenon, particularly in an incident in which a single accused is involved and due to close kinship it is very hard to accept the theory of substitution.

Muhammad Iqbal v. State PLD 2001 SC 222 ref.

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

---- Ss. 302(b), 324 & 337-F(iv)---Inquest report---Purpose---Purpose of an inquest report is only to find out the cause of death of a person and not the person who had caused the death.

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

----Ss. 302(b), 324 & 337-F(iv)---Inquest report---Law does not require that the inquest report shall provide the names of the accused and the eye-witnesses of the occurrence.

Ibrahim alias Ibro v. State 1968 SCMR 1240 and Muhammad Aslam v. State NLR 1978 Cri. 293 ref.

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

---Ss. 302(b), 324 & 337-F(iv)---Inquest report---Crime weapon--Column No. 12 of the inquest report regarding crime weapon, requires an opinion as to the kind of crime weapon used in the occurrence and not that the crime weapon should also be mentioned as per requirement of S. 174, Cr.P.C.

Allah Bakhsh v. State PLD 1978 SC 171 ref.

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

----S. 156---Penal Code (XLV of 1860), Ss.302(b), 324 & 337-F(iv)---Any lapse or slip on the part of the Investigating Officer to mention weapon of offence would not affect the investigation adversely.

Muhammad Tariq v. State NLR 1982 Cr.LJ 452 ref.

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

---- Ss. 302(b), 324 & 337-F(iv)---Criminal Procedure Code (V of 1898), S.156---Inquest report---Failure to mention recovery of crime empties in statement of facts recorded in inquest report or omission in not pointing out place to draftsman from where crime empties were picked up, is a mere irregularity without any legal consequence, as the law does not require them to be mentioned in the inquest report.

?

Allah Bakhsh v. State PLD 1978 SC 171; Farid v. Aslam PLD 1977 SC 4 and Munir Ahmad v. State 2001 SCMR 241 ref.

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

---- Ss. 302(b), 324 & 337-F(iv)---Inquest report---Preparation of inquest report is a part of investigation---Statements made by witnesses to police during examination in preparation of inquest report' is not substantive evidence and cannot form basis for conviction.

Haji Muhammad v. State PLD 1966 (W.P.) Lah. 344 ref.

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

---S. 156---Penal Code (XLV of 1860), Ss. 302(b), 324 & 337-F(iv)---Inquest report---Omission due to inadvertence or inefficiency on the part of the Investigating Officer to fill column in the inquest report or failure to mention the number of the case or absence of details of place of occurrence hardly discredit its authenticity or adversely affect investigation, particularly in the presence of ocular account of the occurrence.

?

Said Shah v. State NLR 1988 Cri. 381 and Liaqat Ali v. State 1982 PCr.LJ 390 ref.

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

----Ss. 302(b), 324 & 337-F(iv)---Site plan---Site plan is not a substantive piece of evidence and cannot be used to contradict or discredit unchallenged ocular testimony---Site plan is always prepared to appreciate or explain evidence on the record and, cannot be given preference over direct evidence of credible eye-witnesses.

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

---Ss. 302(b), 324 & 337-F(iv)---Appreciation of evidence---Minor discrepancies, effect of---Principles---Minor inconsistencies in depositions of prosecution witnesses of inconsequential nature cannot be reasonably considered as good ground to disbelieve independent and disinterested witnesses.

Allah Bakhsh v. Ahmed Din 1971 SCMR 462 ref.

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

----Ss. 302(b), 324 & 337-F(iv)---Appreciation of evidence---Principles---Delay in sending the incriminating articles to the concerned quarter for expert opinion cannot be treated as fatal to the prosecution case in the absence of allegation regarding the same having been tampered with or manipulated.

Muhammad Mushtaq v. State PLD 2001 SC 107 ref.

Saeed Akhtar for Appellant.

Abdus Salam Dilazak for Respondents.

Date of hearing: 4th May, 2005.

P L D 2006 Peshawar 19

Before Ijaz-ul-Hassan Khan, J

E.F.U. GENERAL INSURANCE COMPANY through Representative---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.104 of 2005, decided on 30-9-2005.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A, 517 & 561-A---Penal Code (XLV of 1860), Ss.324, 381-A, 411 & 420---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Superdari of vehicle---Application for---Petition for quashing of order---Motor car in question having been stolen, F.I.R. was lodged by its purchaser and car was taken into possession by the Police---Petitioner-company moved an application before Judicial Magistrate for `Superdari' of car on the basis that petitioner being an Insurance Company, having paid insurance amount to its owner, had locus standi for possession of car---Said application was rejected and criminal revision against order of Judicial Magistrate was also dismissed by the impugned order---Car in question was insured with petitioner-company for a period of one year---Courts below had failed to take into consideration the fact that after payment of insurance amount and obtaining "subrogation", petitioner-company was lawful owner of the same---Nothing was on record to show that car was used in commission of crime with the knowledge of petitioner-company---Insurance Policy and "subrogation" placed on file would prima facie show petitioner-company to be the owner of car in question at least in the absence of any rival claimant---Apart from that, retention of car in police custody for an indefinite period would also serve no useful purpose---Impugned orders were set aside with the direction that custody of car in question should be delivered to duly authorized representative of the petitioner-company on Superdari.

Muhammad Saleem Khan Toru for Petitioner.

Muhammad Saeed Khan, Addl.A.-G. for the State.

Date of hearing: 23rd September, 2005.

P L D 2006 Peshawar 21

Before Tariq Parvez Khan C. J. and Muhammad Qaim Jan Khan , J

NAQEEB ULLAH KHAN---Petitioner

Versus

Malik IMRAN KHAN and 6 others---Petitioners

Writ Petition No.105 of 2003 with Criminal Miscesslaneous Nos. 335, 336 and 412 of 2005, decided on 18th October, 2005.

(a) Conduct of General Elections Order (C.E's Order 7 of 2002)---

----Art. 8-A---University of Karachi Act (XXV of 1972), Ss. 11, 51 & 52---Constitution of Pakistan (1973), Arts. 63(2), 199(1)(b)(ii) & 225---Constitutional petition---Election to Provincial Assembly---Educational qualification of elected candidate---High Powered Enquiry Committee of concerned University found bachelor degree and mark-sheet of respondent to be fake---High Court, in exercise of constitutional jurisdiction, could not go into vires of order of such Committee---Held, respondent was not holding requisite qualification on date of his nomination for seat of Provincial Assembly---High Court accepted constitutional petition declaring that Office of Member Provincial Assembly held by the respondent was without any authority of law.

PLD 1989 SC 26; PLD 1994 Kar. 1; PLD 1968 Lah. 361;PLD 2001 SC 415; 1989 SCMR 918; 1983 SCMR 732; 1982 SCMR 497; AIR 1965 SC 491; G.D. Karkare v. T.L. Shevde AIR 1952 Nag. 330; AIR 1970 Raj. 184; PLD 1970 SC 98; PLD 1975 Pesh. 146; PLD 1982 Kar. 604; PLD 1962 Lah. 230; 1994 SCMR 1299; University of Mysore v. Govinda Rao AIR 1965 SC 491 and Muhammad Hussain v. Khadim Hussain PLD 1963 SC 203 ref.

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

----Art. 199(1)(b)(ii)---Writ of quo warranto, issuance of---Locus standi---Such writ could be issued on application of a person having some interest in the matter.

AIR 1952 Nag. 330; AIR 1952 Tr.C. 66; AIR 1957 Raj. 75; AIR 1961 AP 250; AIR 1970 Raj. 184; Lt. Col. Farzand Ali and others v. Province of West Pakistan PLD 1970 SC 98; Khaista Gul v. Akbar Khan and 7 others PLD 1975 Pesh. 146; Syed Arshad Hussain v. The Government of Sindh and 38 others PLD 1982 Kar. 604; Abdul Aziz and others v. The State and others PLD 1962 Lah. 231 and Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer and others 1994 SCMR 1299 rel.

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

----S. 52---Conduct of General Elections Order (C.E's Order 7 of 2002), Art.8-A---Constitution of Pakistan (1973), Arts. 199(1)(b)(ii) & 225---Qualification of Member Provincial Assembly---Jurisdiction of Election Tribunal---Scope---Challenge to election of a candidate on the ground of his disqualification on the date of nomination or while holding office could only be made before Election Tribunal by filing election petition---Bar of jurisdiction contained in Art.225 of the Constitution would not attract when challenge was made to qualification of the person holding public office.

(d) Representation of the People Act (LXXXV of 1976)---

----S. 52---Election petition---Locus standi---Only a candidate could file such petition, but none else.

(e) Representation of the People Act (LXXXV of 1976)---

----S. 52---Constitution of Pakistan (1973), Arts. 199(1)(b)(ii) & 225---Constitutional petition---Locus standi---Qualification of Member National or Provincial Assembly---Bar of Art. 225 of the Constitution would not be attracted where a person having some interest furnishes information to High Court and challenges the very holding of public office on the ground that member was disqualified to hold such public office.

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

----Arts. 63(2) & 199(1)(b)(ii)---Constitutional jurisdiction of High Court---Scope---Qualification of Member National or Provincial Assembly---Article 63(2) of the Constitution would deal with disqualification occurring during membership of Assembly---Jurisdiction of High Court would not be barred where respondent was disqualified from being elected for not holding requisite educational qualification while filing nomination papers.

(g) Conduct of General Elections Order (C.E's Order 7 of 2002)---

----Art. 8-A---Election to Parliament or Provincial Assembly---Educational qualification of a candidate---Candidate must possess a bachelor degree recognized by University Grants Commission-Validity of such degree could only be adjudged in the first instance by the authority issuing same.

Muhammad Sardar Khan for Petitioner.

Qazi Muhammad Anwar for Respondent No.1.

Muhammad Habib Qureshi for Respondent No.2.

Nadeem Azhar (Legal Advisor)for Respondents Nos. 5 and 6.

Abbas Ali, Addl. A.-G. Sindh for Respondent No.7.

Date of hearing: 22nd September, 2005.

P L D 2006 Peshawar 37

Before Dost Muhammad Khan, J

ABDUL RASHID----Petitioner

Versus

MUHAMMAD NAZIR ABBASI and 24 others----Respondents

Civil Revision No.201 of 2003, decided on 25th March, 2005.

Civil Procedure Code (V of 1908)---

----O. XXI, Rr.10 & 23-A---Execution of decree, objection to---Possession of decreed Khasra numbers, was handed over to the decree­ holder---Objector filed petition that instead of decreed Khasra numbers, other property belonging to him and other co-owners of adjoining Mauza was handed over to the decree-holder---Objection petition, did not clarify as to which Khasra numbers belonging to objector, were given to the decree-holder---Parties agreed that instead of holding a full-dress trial, with the view to shorten the controversy, a Local Commission be appointed to carry out extensive demarcation on the spot according to law and to physically verify as to whether decree-holder had been given possession of the decreed suit Khasra numbers or one which were alleged by the objector---High Court disposed of the revision petition in view of the agreement between the parties,' directing Executing Court to appoint a competent Local Commission, preferably expert on revenue law, with direction to carry out complete and extensive demarcation for locating the decreed suit Khasra numbers and to report as to whether possession of land of decreed Khasra numbers had been given to the decree-holder or some other Khasra numbers, as alleged by the objector, and to prepare a proper site-plan showing location of decreed suit Khasra numbers with the assistance of Revenue official and Revenue Record--Parties would be entitled to raise objection to report of the Local Commissioner.

S. Hafeez-ur-Rehman Abbasi for Petitioner.

Amir Hussain Abbasi for Respondents.

Date of hearing: 25th March, 2005.

P L D 2006 Peshawar 39

Before Shah Jehan Khan and Ijaz-ul-Hassan Khan, JJ

MUHAMMAD MUSHTAQ----Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos.672 and 676 of 2004, decided on 6th December, 2005.

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

---Ss. 9(c), 25, 29, 35 & 36---Criminal Procedure Code (V of 1898), Ss.103 & 516-A---Appreciation of evidence---Prosecution, in order to prove apprehension of accused and recovery of Charas and opium from the secret cavities of the car, had produced two witnesses, who had supported recovery thereof---Incriminating statement of said witnesses on oath, were enough to connect accused with transportation of a huge quantity of contraband material---Defence could not prove as to why police would involve accused falsely, especially when none of the raiding party had any enmity against accused---Was beyond comprehension that a huge quantity of Charas and opium was concealed in the car without knowledge/concurrence of accused---Prosecution witnesses were consistent regarding the time, place of occurrence and recovery of articles and the manner in which it had been effected---Discrepancies pointed by defence, were inconsequential and of no importance---Confessional statements made by accused, which were recorded after observing all formalities, were voluntary and true and did not suffer from any defect of form or substance---Mere fact that vehicle from . which contraband was recovered had not been produced before Court, was not fatal to prosecution story---Recovered narcotics could not have been produced before the Trial Court as same were destroyed during trial under valid orders of Sessions Judge and accused had not raised any objection against said destruction---Objection that only a small quantity of substance allegedly recovered from accused had been sent for chemical analysis, was repelled in view of the fact that provisions of Ss.35 & 36 of Control of Narcotic Substances Act, 1997 did not specify any particular quantity of recovered substance to be sent as a sample for general analysis---Receiving samples by Forensic Science Laboratory after 4/5 days of seizure of narcotics, was not fatal to prosecution case---Compliance of S.103, Cr.P.C. relating to recovery proceedings was not mandatory as S.25 of Control of Narcotic Substances Act, 1997 had excluded application of S.103, Cr.P.C.---Prosecution having successfully proved case against accused, Trial Court had rightly convicted and sentenced accused.

Nasir Ahmad v. The State 2004 SCMR 1361; Muzaffar Mehmood v. The State 2004 PCr.LJ 1076; Muhammad Arshad Naseem v. The State 2004 PCr.LJ 371; Khawaja Muhammad v. The State and another 2001 PCr.LJ 1401; Latifullah v. The State 2003 PCr.LJ 724; Mst. Iqbal Bibi v. The State 2000 PCr.LJ 1812; Mushtaq v. The State 2002 PCr.LJ 1312; Gul Khan v. The State 2005 PCr.LJ 1198; Murtaza and 2 others v. The State and others 1996 PCr.LJ 358; Abdullah v. The State 2002 PCr.LJ 1424; Muhammad Shafiq v. The State and another 2003 YLR 1481; The State through Captain Nooruddin Assistant Director, Anti-Narcotics Force, Multan v. Muhammad Khalid 2002 PCr.LJ 646; Zahoor Ahmad Awan and others v. The State 1997 SCMR 543; Fida Jan v. The State 2001 SCMR 36 and State v. Muhammad Amin 1999 SCMR 1367 ref.

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

----S. 9(c)---Control of Narcotics (Government Analysts) Rules, 2001, Rr.4 & 5---Appreciation of evidence---Delay in sending samples of narcotics to Forensic Science Laboratory---Rules 4 & 5 of Control of Narcotics (Government Analysts) Rules, 2001, had placed no bar on Investigating Officer to send samples beyond seventy two hours of seizure, and receiving the report after fifteen days and the report so received to place before the Trial Court---Very language employed in said Rules and the effects of its breach provided therein, had made said Rules directory and not mandatory---Control of Narcotics (Government Analysts) Rules, 2001, could not control substantive provisions of Control of Narcotic Substances Act, 1997 and to be applied in such a manner that its operation would not frustrate the purpose of the Act under which the Rules were framed---Failure to follow Control of Narcotics (Government Analysts) Rules, 2001, would not render the search, seizure and arrest under Control of Narcotic Substances Act, 1997 an absolute nullity and non-est and make entire prosecution case doubtful, except for the consequence provided in said Rules---In directory provisions, substantial compliance was sufficient and even - where there was no compliance at all, act not invalidated by such non-compliance, if the act otherwise was done in accordance with law---Delay otherwise in sending incriminating articles to concerned quarter for expert opinion, could not be treated fatal in absence of objection regarding same having been tampered with or manipulated.

Jamil Khan for Appellant (in Cr. A. No.672 of 2004).

Ms. Farhana Marwat for Appellant (in Cr.A.Nho.676 of 2004).

M. Khalid Khan for the A.N.F./State.

Date of hearing: 16th November, 2005.

P L D 2006 Peshawar 47

Before Shah Jehan Khan and Fazalur Rehman Khan, JJ

SALEEM KHAN---Appellant

Versus

TIIE STATE-Respondent

Jail Criminal Appeal No.77 of 2005 and Murder Reference No.7 of 2005, decided on 24th September, 2005.

Penal Code (XLV of 1860)---

---S. 302(b)---Appreciation of evidence---Reduction in sentence---Accused did not challenge his conviction, but had pressed his appeal for reduction in sentence-Voluntary judicial confession though retracted by accused in his statement under S.342, Cr.P.C., but same was deliberately suppressed by the prosecution---Confessional statement of accused, though was part of the record submitted to the Trial Court along with complete challan, but same was not exhibited at the trial---Deceased had sustained only one inlet wound on its back upper portion of the right hip causing exit on the frontal part of upper thigh---Crime weapon recovered from the person of accused was containing 5 live rounds and keeping in view the ocular account furnished by prosecution witness, there was no hurdle for accused to make successive fire at the deceased then an injured, but no such attempt was made, which fact had made case of accused within the ambit of lesser punishment provided for Qatl-e-Amd---Awarding life imprisonment to accused, in circumstances, would meet ends of justice---Accused was wrongly awarded death sentence by ignoring mitigating circumstances and lacuna in the case of prosecution---Maintaining conviction of accused, his death sentence was converted into life imprisonment, but in circumstances of case coupled with financial position of accused, it was held that Trial Court had rightly awarded amount of compensation payable to legal heirs of deceased under S.544-A, Cr.P.C.

Feroze Khan v. The State 2002 SCMR 99; Muhammad Bashir v. The State 2005 PCr.LJ 1135; Manzoor Ahmad v. The State 2003 PCr.LJ 254; Maqsood Khan v. The State 2003 PCr.LJ 1165; Saadullah Jan v. The State 2002 PCr.LJ 1463 and Muhammad Ashraf v. Tahir and others 2005 SCMR 383 ref.

M. Zahoor-ul-Haq for Appellant.

Pir Liaquat Ali Shah A.A.-G. for the State.

Imtiaz-ur-Rehman for the Complainant.

Date of hearing: 6th September, 2005.

P L D 2006 Peshawar 53

Before Talaat Qayum Qureshi, J

Haji NAZIR MUHAMMAD KHAN and others---Petitioners/Plaintiffs

Versus

Maulvi MUIHAMMAD HASSAN and others---Respondents/Defendants

Civil Revision No.966 and C.M. No.860 of 2005, heard on 17th January, 2006.

(a) Punjab Land Administration and Management Mannual---

----S. 376---Form of mutation---'Part Patwar' and 'Part Sarkar'---Form of mutation was kept in duplicate, one copy which was retained by Patwari, was commonly known as Part Patwar and other which was sent to Tehsil to be attached to the Jamabandi as an authority for the new entries which it contained, commonly known as 'Part Sarkar'---Patwari's report attested by Field Qanungo or ordered by Revenue Officer, was written only in the copy of Register to be filed with Jamabandi i.e. Part Sarkar was enough in Patwar's copy (Part Patwar) to show how the case was disposed of by entering the briefest possible extract of the order and that abstract was written by Revenue Officer with his own hand---Since Patwari's report, the attestation of it by the Field Qanungo and order of Revenue Officer, were available only in the copy of Register to be filed with Jamabandi i.e. 'Part Sarkar', said 'Part Sarkar' was to be given preference over 'Part Patwar'.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6, 13 & 31(b)-Civil Procedure Code (V of 1908), O.VII, R.11 & S. 115---Suit for pre-emption---Rejection of plaint---Vendees/defendants filed application under O.VII, R.11, C.P.C. for rejection of plaint filed by pre-emptor on ground that suit filed by him was barred by time---Courts below concurrently accepted application of defendants and rejected plaint---Evidence on record had proved that suit was filed by plaintiff four months and twelve days after attestation of mutation of sale---In absence of any illegality, material irregularity, misreading/non-reading of evidence or any jurisdictional error or defect, impugned concurrent findings of Courts below, could not be interfered with by High Court in its revisional jurisdiction.

Mst. Kishwar Naseem v. Hazara Hill Tract and others PLD 2005 Pesh. 136; State Life Insurance Corporation of Pakistan through Chairman and another v. D.G. Military Lands and Cantonments, Rawalpindi and 4 others 2005 SCMR 177; Abdul Latif Qureshi v. Controller of Examinations PLD 2004 Lah. 3; Muhammad Ilyas v. Munshi Khan 2003 CLC 1815 and Abdur Rehman Shaukat v. Sardar Muhammad Akram Javed District Officer (Revenue), Kasur PLD 2004 Lah. 815 ref.

Syed Muhammad Attique Shah for Petitioners.

Maqsoodullah, Mir Adam Khan and Sohail Akhtar for Respondents.

Date of hearing: 17th January, 2006.

P L D 2006 Peshawar 58

Before Salim Khan, J

GHULAM SARWAR---Petitioner

Versus

SALEH MUHAMMAD---Respondent

Civil Revision No.430 of 2003, heard on 23rd January, 2006.

(a) North-West Frontier Province Pre-emption Act (X of 1987)----

--Ss. 6, 13, 31 & 32---Suit for pre-emption---Superior right of pre-emption---Making of Talbs--- Plaintiff, who claimed to be Shafi Sharik, Shafi Khalit and Shafi Jar, filed suit for pre-emption in respect of suit­land---Suit was decreed by trial court on payment of Rs.5 lacs as mentioned in registered sale-deed, but appellate Court set aside judgment and decree passed by the trial court and dismissed suit---Validity---Superior right of pre-emption of plaintiff in respect of suit-land was admitted---Evidence of plaintiff and his witnesses regarding making of Talb-e-Muwathibat, was consistent---Not only the place of Majlis where said demand was made, but also the date and time of Majlis had been shown by all witnesses---Suit was filed within time---Defendant vendee could not prove that plaintiff was estopped by his own conduct or he had waived his right---Plaintiff had also sent notice of Talb-e-Ishhad and filed suit within fourteen days from obtaining knowledge about sale of suit-land and making of Talb-e-Muwathibat---Trial Court, in circumstances had rightly and properly found that Talb-e-Muwathibat and Talb-e-Ishhad were duly made by plaintiff---Evidence to that extent, had been misread by appellate court below---Plaintiff, who had superior right of pre-emption and made Talbs properly, had a cause of action and his suit was rightly decreed by the trial court---Appellate court was not justified to dismiss suit---High Court set aside judgment and decree of appellate court in revision and restored those of the trial court.

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

----Art. 85(5)---Public document---Presumption of truth---Registered deed was a public document and presumption of truth was attached to it, but once controverted, person taking benefit out of the same had to prove its contents, specially the value of property mentioned, by independent evidence as presumption of truth to a public document, would not mean that contents of document in question were unquestionably true---Controversy regarding contents of such document, had to be resolved in the light of pro and contra evidence of the parties.

(c) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6, 13 & 32---Suit for pre-emption---Registration of sale-deed---Public notice---Making of Talbs---North-West Frontier Province Pre-emption Act, 1987 did not require, that informer should declare the source of his information as well as the date, time and place where he got information about sale of suit-land---Such information to the informer was not required by law nor necessary for any of the purpose of suit for pre-emption---Majlis was always necessary for declaration of Talb-e-Muwathibat and without a Majlis, which was a requirement for declaration of Talb-e-Muwathibat, there could be no Talb-e-Muwathibat---Majlis mentioned by pre-emptor or any other Majlis, if mentioned and proved by vendee defendant, had to be taken into consideration for the purpose of ascertaining declaration of Talb-e-Muwathibat.

Abdul Kabir for Petitioner.

Javed A. Khan for Respondent.

Date of hearing: 23rd January, 2006.

P L D 2006 Peshawar 65

Before Ijaz-ul-Hassan Khan and Fazlur Rehman Khan, JJ

THE STATE---Appellant

Versus

DOST MUHAMMAD---Respondent

Criminal Appeal No.88 of 1999, decided on 24th January, 2006.

Criminal Procedure Code (V of 1898)---

----S. 417---Penal Code (XLV of 1860), Ss.302 & 324---Appeal against acquittal---Mere fact that eye-witnesses in the case were closely related and had slight bitterness with accused on account of dispute over women-folk, was not sufficient to refuse to analyze and evaluate their evidence---Testimony of such witnesses, if. corroborated by any vital material on record, could be relied upon---F.I.R. had been lodged with reasonable promptitude containing all relevant details of the occurrence including name of accused---Such promptness had eliminated all possibility of fabrication and false implication of accused---All prosecution witnesses had successfully passed the test of cross­ examination---No material contradictions or discrepancies were found in their evidence which was unanimous on all material facts of the case which had shown that witnesses were truthful and reliable---Alleged inconsistencies referred in the case were neither material nor of any consequence and could not be made grounds for securing acquittal---No serious enmity existed between accused and witnesses nor any enmity was suggested between them---No motive or cause was pointed out by prosecution witnesses to falsely implicate accused---Evidence of witnesses was confidence-inspiring and there was no reason to disbelieve their evidence---Accused could not be said to have been substituted by complainant party---Findings of Trial Court on issue of recoveries of empties were purely presumptuous and same had no backing of law---Medical evidence was in complete harmony with the ocular account and no contradiction could be pointed out---Motive had been established through evidence of complainant and prosecution witness---Abscondance of accused had weighed heavily against accused---Accused having taken lives of two innocent young persons over trivial matter, deserved death sentence---Appeal against acquittal was accepted and impugned order of acquittal was set aside---Accused was convicted on two counts and sentenced to suffer death penalty accordingly.

Muhammad Ashraf and another v. The State PLD 2004 SC 539; Khizar Hayat v. Imtiaz Ali Khan and 2 others 2004 SCMR 845; Muhammad Iqbal v The State PLD 2001 SC 222; Noor Muhammad. v. The State and another 2005 SCMR 1958; Fateh Muhammad V. Bagoo and others PLD 1960 SC (Pak) 286; Gul Raza v. The State and 4 others PLD 2004 Pesh. 219; Ghulam Qadir. v. The State PLD 1967 Pesh. 269; Hameed-ur-Rehman. v. Said Rehman and 5 others 2005 PCr.LJ 53; Humayun. v. The State and another 2005 PCr.LJ 337; Rabnawaz Khan. v. Jalil Khan and 2 others 2005 NILD 1927; Allah Bux v. Ahmad Din 1971 SCMR 462; Mahbood Sultan and 2 others v. The State 2001 SCMR 163; Allah Bux v. Shami PLD 1980 SC 225; Sirajuddin v. Kala and another PLD 1964 SC 26; Shaukat Javed v. The State PLD 1993 Pesh. 109; Mst. Roheed v. Khan Bahadur and another 1992 SCMR 1036 and Amanullah Khan and 3 others v. The State 2002 PCr.LJ 1934 ref.

Muhammad Saeed Khan, Addl. A.-G. for the State.

M. Zahoorul Haq for Respondents.

Asadullah Khan Chamkami and Kh. Muhammad Gara for the Complainant.

Date of hearing: 24th January, 2006.

P L D 2006 Peshawar 74

Before Ijaz-ul-Hassan Khan and Muhammad Raza Khan, JJ

MUHAMMAD DAUD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.124 of 2005, decided on 21st February, 2006.

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

----Ss. 9(c), 21, 22, 25 & 29---Criminal Procedure Code (V of 1898), Ss.103 & 537---Appreciation of evidence---Search and seizure proceedings---Prosecution had established factum of recovery beyond shadow of doubt---Arrest, seizure and investigation by an incompetent police officer would not vitiate whole trial and at the best such an irregularity could be cured under S.537, Cr.P.C. and that would cause no prejudice to accused---Accused had failed to substantiate pleas to the effect that no narcotic substance was recovered from his person and that he was booked mala fide in case---Prosecution witnesses had fully corroborated each other---Official witnesses were as good as any, unless mala fide intention was established by accused, but accused had failed to establish the same---Section 25 of Control of Narcotic Substances Act, 1997, had excluded the provisions of S.103, Cr.P.C pertaining-to search and seizure---Mere delay in sending sample to Laboratory was insignificant in view of fact that it had not been proved that sample was tampered with---Prosecution had proved guilt of accused beyond all reasonable doubts and had successfully discharged its burden through consistent and confidence-inspiring evidence---Prosecution witnesses had no malice or ill-will against accused to falsely implicate him in the case---Accused had made no endeavour to rebut prosecution case by discharging his burden under S.29 of Control of Narcotic Substances Act, 1997---Mere denial of charge and pleading innocence without substantiating his plea through cogent evidence, was not sufficient to secure acquittal---Findings of the Trial Court could not be shown to have been passed on misreading or non-reading of evidence---Judgment of Trial Court being based on correct application of law and proper evidence, conviction of accused was maintained, but sentence was reduced from four years to two years' R.I. and amount of fine was also reduced from Rs.1,00,000 to Rs.25,000, in view of fact that accused was a first time offender and entire future lay before him.

Muhammad Hanif v. The State 2003 SCMR 1237; State through A.-G. Sindh Karachi v. Hemjoo 2003 SCMR 881; Tariq Pervez v. The State 1995 SCMR 1345, Ghulam Qadir v. The State PLD 2006 SC 61; Mushtaq v. The State 2002 PCr.LJ 1312; Adil Hussain v. the State 2003 YLR 1901; The State v. Bashir PLD 1997 SC 408 and Muhammad Ali v. State 2002 PCr.LJ 976 ref.

Gohar Zaman Kundi for Appellant.

Muhammad Sharif Chaudhry, D.A.-G. for the State.

Date of hearing: 20th February, 2006.

P L D 2006 Peshawar 79

Before Tariq Parvez Khan, C.J., and Muhammad Qaim Jan Khan, J

MUHAMMAD FAQIR---Petitioner

Versus

DIRECTOR-GENERAL, NATIONAL ACCOUNTABILITY BUREAU (N.-W.F.P.), PESHAWAR and 8 others---Respondents

Writ Petition No.1866 of 2005, decided on 8th March, 2006.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 4 & 18(g) [As amended by National Accountability (Second Amendment) Ordinance (XXIV of 2000)J---Constitution of Pakistan (1973), Arts.199 & 247---Constitutional petition---Reference to Accountability Court---Petitioner had challenged filing of Reference against him on two grounds; firstly that National Accountability Ordinance, 1999 was inapplicable to Areas/Territories forming part of P.A.T.A.; and secondly that Ordinance, XXIV which had brought about amendment in S.18(g) of National Accountability Ordinance, 1999, both having not been extended to P.A.T.A. as required under Art.247 of the Constitution could not be enforced against him because of his residence in P.A.T.A.---Validity---Under unamended S.18 of National Accountability Ordinance, 1999, a Reference could be filed by Chairman N.A.B., but after its amendment it could also be filed by any other officer other than Chairman NAB, if duly authorized by the Chairman to assess the material before him; and if sufficient material was found, he could file Reference---National Accountability Ordinance, 1999 was promulgated by President and while promulgating, it was said that same was in pursuance of Proclamation and Provisional Constitution Order and in exercise of all powers enabling him in that behalf---Undisputedly until Constitution was revived, President had ' unfettered powers on strength of Provisional Constitution Order and Proclamation of Emergency Order to legislate through Ordinances---Mere fact that some laws in North-West Frontier Province Local Government Ordinance, was extended through Regulation, would not mean that all Ordinances during the period of Provisional Constitution Order was enforced and Constitution was not revived, should have been extended through Regulation---Short reason was that National Accountability Ordinance, 1999, unlike North-West Frontier Province Local Government Ordinance, 2001, had inbuilt provision of its extent of application to the entire country including F.A.T.A. and P.A.T.A.---Contention raised by petitioner being devoid of any legal force, his petition was dismissed.

Asfandyar Wali's case PLD 2001 SC 607 ref.

Mian Iqbal Hussain for Petitioner.

Hamid Farooq Durrani, D.A.G. with Muhammad Saeed Khan A.A.-G. for Respondents.

P L D 2006 Peshawar 82

Before Tariq Parvez Khan, C.J. and Muhammad Qaim Jan Khan, J

MUHAMMAD ZAMAN---Appellant

Versus

THE STATE---Respondent

Jail Criminal Appeal No.78 of 2005, decided on 8th March, 2006.

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

----Ss. 302(b), 309, 310, 311 & 338-E---Criminal Procedure Code (V of 1898), S.382-B---Appreciation of evidence---Compounding of offence---Pending appeal against conviction and sentence, all legal heirs of four deceased entered into compromise with accused and waived their right of Qisas and Diyat---All surviving legal heirs of four deceased though had waived their right of Qisas and Diyat and their compromise appeared to be genuine, because of inter se close relationship, but full effect could not be given to compromise as under S.338-E, P.P.C. notwithstanding waiver or compounding of the offence, the Court in its discretion, having regard to the facts and circumstances of the case, could award Tazir to offender according to the nature of offence---Legal heirs of deceased, who bad waived and compounded, were his three sons and a surviving daughter---Accused, who for no sufficient reason, had resorted to indiscriminate firing, taking lives of four innocent ladies which included his wife and three young daughters should not go scot-free just because the legal heirs of four deceased had waived and compounded offence against accused---Accused though stood acquitted of the murder charge of four ladies because all legal heirs had compounded offence and had waived their right of Qisas and Diyat, but the Court would feel no hesitance by exercising powers under S.338-E, P.P.C., to award offender punishment of imprisonment---In view of nature of offence committed, in the manner it was committed and the person by whom and against whom it was committed, it was a fit case where expression of "Fasad-fil-Arz" was applicable---Accused was convicted under S.311, P.P.C. to ten years' R.I. on four counts as Tazir which would run concurrently---Benefit of S.382-B, Cr.P.C. could not be extended to accused, because where case of an offender fell under expression `Fasad­fil-Arz', he would not be entitled to any grace and leniency in awarding sentence, muchless the award to benefit of S.382-B, Cr.P.C.

Nazar Ali and another v. State PLD 1992 Pesh. 176 ref.

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

----Ss. 309, 310 & 311---Tazir after waiver or compounding of right of Qisas in Qatl-i-Amd---Under provisions of 5.309, P.P.C. an adult sane Wali, at any time, and without any compensation, could waive his right of Qisas, whereas under provisions of S.310, P.P.C. an adult sane Wali, at any time, but on acceptance of Badl-i-Sulh, could compound his right of Qisas which would mean that where anyone of the Walis who was entitled to waive or compound the right of Qisas, would not so waive or compound, the Court could, in its discretion, punish an offender against whom right of Qisas had been waived or compounded with imprisonment of either description for a term which could extend to fourteen years as Tazir---Court, In view of principle of 'Fasad-fil-Arz', could also, in its discretion, having regard to the facts and circumstances of the case, punish an offender against whom the right of Qisas had been waived or compounded with imprisonment of either description for a term which could extend to fourteen years as Tazir---Section 311, .P.P.C., was followed by an explanation i.e., the expression 'Fasad-fil-Arz', would include the past conduct of the offender as being a previous convict, habitual or professional criminal and the brutal manner in which offence was committed---Insertion of expression `Fasad-fil-Arz' was the requirement of Socio-cultural set up and to maintain law and order and to save the civic society° from deterioration---Such interpretation of law would be more in consonance with Islamic principles of criminal jurisprudence and justice because waiver and compounding, if not made by all the Walis, could not be given effect of outright acquittal of accused.

Astaghfar Ullah for Appellant.

Sher Bahadur Khan for the State.

Date of hearing: 8th March, 2006.

P L D 2006 Peshawar 88

Before Tariq Pervez Khan, C.J. and Salim Khan, J

MUHAMMAD ZAFRAN---Petitioner

Versus

GOVERNMENT OF N.-W.F.P. through Secretary, Health Department, Peshawar

and 5 others----Respondents

Writ Petitions Nos. 2012, 2013, 2019 and 2049 of 2005, decided on 23rd February, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Educational Institution---Admission in Medical College---Principle of Locus Poenitentiae--- Applicability of---Petitioners who applied for admission in Medical Colleges on basis of seats reserved for children of Overseas Pakistanis, were required to submit their applications along with relevant documents mentioned in the Prospectus of relevant year---Petitioners having failed to file or produce required documents within stipulated time, were refused admission---Validity---Prospectus and the Schedule given thereunder were approved by Provincial Government---Any Authority other than Provincial Government could not go beyond the Schedule and even if at any stage any person/Authority had asked any of the candidates to fulfil the deficiency as were pointed out in case of petitioners, such extension of time would' be against the Schedule as given in the Prospectus and Prospectus would prevail against any concession---Where Prospectus itself provided that incomplete application Forms were liable to rejection, it would be taken as such and it would be deemed that if any of candidates on or before the date fixed for filing of application Forms, had not filed complete Forms, his application Form was and should be taken as rejected as incomplete---Principle of Locus Poenitentiae that some authorities had field out to the petitioners that they could cover up the deficiencies, would not apply to the case of petitioners but instead it was against the benefit of already admitted candidates---Principle of Locus Poenitentiae would have been applicable if to cover up the delay and deficiency, it was held out to the petitioners by the Government and not by any other Authority---Application Forms of petitioners being incompletes by the due date, candidate could neither have been called for interview nor admitted---Constitutional petition was dismissed.

Muhammad Ali for Petitioner.

Waseemuddin for Respondent.

Date of hearing: 14th February, 2006.

P L D 2006 Peshawar 96

Before Shahzad Akbar Khan and Ijaz-ul-Hassan Khan, JJ

FARKHANDA MUMTAZ---Petitioner

Versus

MUHAMMAD SHARIF and 2 others---Respondents

Writ Petition No.1508 of 2004 and 354 of 2005, decided on 28th November, 2005.

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

----S. 5, Sched & S.14---Limitation Act (IX of 1908), Art.120---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for maintenance---Limitation---Trial Court dismissed suit filed by wife, but appellate Court decreed the same granting recovery of Rs.3000 per month from January, 2002 till passing of decree and for future---Petitioner wife not satisfied with judgment and decree passed by appellate Court, had filed constitutional petition against said judgment and decree---Validity---Husband was residing abroad in connection with his business and had also contracted a second marriage and second wife was residing with him---Petitioner wife through her own statement and of her witnesses had abundantly proved that her husband/respondent had failed to pay her any maintenance---When husband was residing abroad, it had become immaterial whether petitioner (wife) was expelled by respondent (husband) or she had left his house at her own volition---Petitioner wife had neither violated any marital norm nor she had refused to perform her conjugal obligations---Respondent/husband was legally bound to maintain petitioner/wife, even if he was abroad---Respondent had himself admitted that he had capacity to make payment of Rs.5000 per month to the petitioner---No reason existed as to why period of maintenance allowance was reduced---Suit for past maintenance was governed by Art.120 of Limitation Act, 1908 which had prescribed a period of 6 years from date of accrual of cause of action---Suit for maintenance filed by petitioner (wife) was decreed granting maintenance at the rate of Rs.5000 per month for a period of 6 years preceding institution of suit and onward.

Muhammad Nawaz v. Mst. Khurshid Begum PLD 1972 SC 302 and Mst. Anar Mamana v. Misal Gul and 2 others PLD 2005 Pesh. 194 ref.

Taj Muhammad Khan for Petitioner.

Farmanullah Khattak for Respondents.

Date of hearing: 28th November, 2005.

P L D 2006 Peshawar 99

Before Shahzad Akbar Khan and Ijaz-ul-Hassan Khan, JJ

MAQSOOD AHMAD---Petitioner

Versus

SAMINA SHAHEEN and 2 others---Respondents

Writ Petition No.57 of 2005, decided on 28th November, 2005.

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

----S. 5, Sched. & S.14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Scope---Suits for restitution of conjugal rights, dissolution of marriage, recovery of dower amount, dowry and maintenance---Family Court dismissed suit of petitioner/husband for restitution of conjugal rights and partially decreed suit of respondent/wife qua dissolution of marriage, recovery of dower amount and dowry articles, etc.---Appeal filed by petitioner-husband against judgment and decree of Family Court, having been dismissed; petitioner husband had filed constitutional petition---Validity---Respondent-wife had produced sufficient evidence in support of her claim and nothing was brought on file in rebuttal---Specific assertion made by witness, material to the controversy of the case, having not been challenged in cross-examination by putting contrary suggestions, was to be given full credit and accepted as true unless displaced by reliable, cogent and clear evidence---High Court, in exercise of its constitutional jurisdiction, could not interfere with the findings of fact, unless it was shown that such findings by the lower Court suffered from misreading/non-reading, affecting findings on merit---Decisions of forum constituted under Special Law, were normally not interfered with in exercise of constitutional jurisdiction unless same was illegal, void and without jurisdiction---Courts below; in the present case having properly appreciated evidence available on record, concurrent findings of Courts below not suffering from any illegality, could not be interfered with in constitutional jurisdiction of High Court.

Mst. Allah Raki v. Tanweer Iqbal and others 2004 SCMR 1739 and Export Promotion Bureau and others v. Qaiser Shafiullah 1994 SCMR 859 ref.

Qazi Abdul Basit for Petitioner.

Zafar Javed Durrani for Respondents.

Date of hearing: 28th November, 2005.

P L D 2006 Peshawar 102

Before Ijaz-ul-Hassan Khan and Salim Khan, JJ

GHAFOOR KHAN---Appellant

Versus

Mst. GULAB ZARI and another---Respondents

Criminal Appeal No.700 of 2004, decided on 20th December, 2005.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 148 & 149---Appreciation of evidence---Version of complainant, who had been produced as sole eye-witness, did not appeal to reason which had made her presence at the scene of occurrence, highly improbable--Complainant was a chance witness and no independent corroboration of her testimony was on record---Complainant lady had not been able to sufficiently justify her presence at the place of occurrence---Whole case being full of doubt, was shrouded in mystery and there being no evidence to connect accused with commission of crime, Trial Court had acted in disregard of settled principle of law and justice by convicting accused on capital charge merely on sole testimony of complainant, which was not worthy of reliance---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---To convict a person on a capital charge, evidence should be of high quality---Prosecution primarily was required to establish guilt against accused beyond reasonable doubt by bringing trustworthy, convincing and coherent evidence for the purpose of awarding conviction---Medical evidence being in conflict with ocular account, could not be used as supportive of ocular evidence and ocular evidence which was not confirmed by medical evidence, could not be relied upon---Trial Court had erred in receiving motive part of prosecution story as corroborative to ocular testimony as motive was always a double edged weapon---Mere abscondence of accused, in absence of any other evidence against him, could not be considered enough to sustain conviction of accused---Abscondence could be taken as corroborative of charge and not evidence of charge---Incident was an unseen occurrence---Principal evidence having failed, motive, recovery, medical evidence and absconsion, could not prove case of the prosecution---Conviction and sentences awarded to accused by Trial Court, were set aside and accused was acquitted.

Asadullah Khan Chamkani for Appellant.

Mushtaq Ahmad for the Complainant.

Sher Bahadur for the State.

Date of hearing: 20th December, 2005.

P L D 2006 Peshawar 108

Before Ejaz Afzal Khan and Jehanzaib Rahim, JJ

FAZAL MAULA and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.480 and Cr.R. No.127 of 2005, decided on 2nd November, 2005.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 109---Appreciation of evidence---Prosecution witnesses had neither mentioned the names of conspirators nor their conspiracy to kill nor the names of witnesses of such conspiracy---No evidence, whatsoever, of the conspiracy or sequence of circumstances from which existence of conspiracy could be inferred, was led at the trial---No inference of conspiracy to kill, could be drawn from the facts narrated by prosecution witnesses---Nothing was on record to prove conspiracy to kill deceased and circumstances were not such which could exclude the probability of innocence of accused---No evidence, either direct or circumstantial of any overt act or omission was available on record to suggest a pre-concert or a common design between or among accused to commit Qatl-i-Amd of deceased---In order to record conviction for a murder charge, circumstantial evidence must be of a high value and degree and all circumstances must lead to the guilt and be wholly incompatible with any reasonable hypothesis of innocence of accused---Medical evidence would only disclose the cause of death etc. and could never indicate the person who caused fatal injury to deceased---Blood­stained garments could only be proved through Serologist report that same were stained with same group of human blood which deceased had as the garments were proved to have taken out from the deceased's body at the time of autopsy or the blood recovered from the spot where deceased was last found lying---Recovery of motorcar having bullet mark, would prove that the hole in the car was made by a fire-arm shot---Said evidence was not substantive/real, but circumstantial, which could not independently prove identification of the person who had fired at deceased or at the car---Trial Court had merely acted on presumption and probabilities and convicted accused---No one could be convicted on presumptions and probabilities, how strong they might as same could not be the substitute of real evidence/proof---Complainant, had not charged accused in F.I.R. and had not even named them in his statement subsequent to F.I.R.---Complainant had charged five accused for a single fire shot for the motives disbelieved by Trial Court---Statement of Court witness was based on hearsay---Prosecution had failed to discharge its burden---Impugned judgment was set aside and accused were acquitted of charge and were released.

Mst. Sairan alias Saleema v. State PLD 1970 SC 56; Muhammad Aslam v. Muhammad Zafar PLD 1992 SC 1; Muhammad Iqbal v. Abid Hussain alias Mithu 1994 SCMR 1928 and Muhammad Luqman v. State PLD 1970 SC 10 ref.

M. Zahurul Haq and S.M. Attiq Shah for Appellants.

Wasim Tariq for the State.

Ishtiaq Ibrahim for the Complainant.

Date of hearing: 1st November, 2005.

P L D 2006 Peshawar 116

Before Hamid Farooq Durrani, J

AURANGZEB---Appellant

Versus

PUBLIC AT LARGE---Respondent

R.F.A. No.2 of 2005, decided on 17th April, 2006.

Mental Health Ordinance (VIII of 2001)---

----Ss. 2(1)(m), 32, 33 & 46---Application for appointment of guardian, rejection of---Appeal against order of District Judge whereby application for appointment of guardian of appellant's brother was rejected---Appellant had contended that his brother was not in a position to look after his property, litigation and other related affairs as he was mentally ill and also physically paralyzed---During proceedings before District Judge matter of mental ailment of brother of appellant was referred to Medical Superintendent D.H.Q. Hospital for constitution of Medcial Board for submission of report---Doctor concerned admitted that brother of appellant was mentally a disabled person and had paralysis of right half of his body along with loss of speech and mental deterioration and that he was unable to give any opinion---Report of the Doctor, however concluded that patient was not a mentally disordered person in the terms of S.2(1)(m) of Mental Health Ordinance, 2001---Opinion of Medical Board when seen in juxtaposition to the conclusion contained therein and contents of cross-examination of Doctor concerned, were self-contradictory which could not strictly be made basis for the conclusion arrived at by District Judge enquiring into the matter---Allowing appeal, case was remanded to District Judge with direction to decide the matter with application of independent judicial mind keeping in view provisions of relevant law.

Sher Bahadur Khan for Appellant.

Nemo for Respondent.

Date of hearing: 17th April, 2006.

P L D 2006 Peshawar 119

Before Shah Jehan Khan and Raj Muhammad Khan, J

HIMAYATULLAH MAYAT---Petitioner

Versus

GOVERNMENT OF N.-W.F.P. through Secretary, Schools and Literacy Department, Peshawar and 5 others---Respondents

Writ Petition No.157 of 2006, decided on 6th April, 2006.

North-West Frontier Province Local Government Ordinance (XIV of 2001)---

----Ss. 31 & 91---North-West Frontier Province District Government Rules of Business, 2001, R.25 & Sched. IV---Constitution of Pakistan (1973), Art.199---Constitutional petition---Transfer of officials---Petitioner being District Nazim had challenged legality of Notification issued by Authorities whereby officials were transferred from one place of working to another without consulting petitioner as was required under the relevant rules---Petitioner contended that such arbitrary action of Authorities which amounted to direct interference in the affairs of District Government, was without lawful authority being against basic policy of devolution of powers and also against mechanism of North-West Frontier Province Local Government Ordinance, 2001---Authorities had not rebutted the legal provision of consultation of District Nazim by Provincial Government in the matter of transfer of officers/officials in BPS-17 and above, which was mandatory under R.25 of North-West Frontier Province District Government Rules of Business, 2001 with Sched-IV, thereunder---Impugned transfers, were held to be without lawful authority and against rules on the subject---High Court, accepted constitutional petition and authorities were directed to withdraw their notifications regarding impugned postings and transfers.

Muzammil Khan for Petitioner.

Muhammad Ayaz Khan, D.A.G. with Muhammad Yousaf Qadri, S.O. L.G. for Respondent.

Khushdil Khan for Respondent No.5.

Date of hearing: 6th April, 2006.

P L D 2006 Peshawar 123

Before Ijaz-ul-Hassan Khan, J

Mst. ZARMEENA and others---Petitioners

Versus

Haji PESHMEEN KHAN and others---Respondents

C.M. No.962 of 2004 in C.R. No.809 of 2004, decided on 10th April, 2006.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S.115 & O.XLI, R.31---Suit for declaration and perpetual injunction---Plaintiffs had claimed that they were owners in possession of suit-land by virtue of inheritance from their predecessor-in-interest; and that defendants had no justification to deny their title asserting their own or sell, mortgage or alienate suit property in any manner---Plaintiffs also alleged that inheritance mutation in favour of defendants and sale mutation in favour of another defendant, were void, illegal, collusive and ineffective on their rights---Plaintiffs, in the alternative, had prayed for grant of perpetual injunction---Trial Court decreed suit, but Appellate Court set aside same and dismissed the suit---Evidence produced by plaintiffs was discrepant and suffered from serious infirmities and did not lead .to the conclusion that predecessor-in-interest of plaintiffs was owner in possession of suit-land by virtue of purchase and that after his death same had devolved upon plaintiffs as his legal heirs---Initial burden of proof was on the party/plaintiffs who had alleged their claim---Plaintiffs could not be benefited from shortcomings of defendants' case---Appellate Court below had rightly proceeded to hold that plaintiffs had failed to produce sufficient evidence to substantiate their claim---Appellate Court had properly appreciated evidence available on record and plaintiffs had not been able to point out any misreading and non-reading of evidence or any material irregularity or any jurisdictional error warranting interference in findings of Appellate Court---Impugned judgment was in conformity with material on record and provisions of O.XLI, R.31, C.P.C. were not found to have been violated in the case---Revision against impugned judgment of Appellate Court below, was dismissed, in circumstances.

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

----S. 52---Presumption in respect of entries in records of rights---If entries in mutation register were given effect to in the record of rights/Jamabandis, then presumption of truth and correctness would arise in respect of such entries.

Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCMR 1832; Chief Administrator of Auqaf Punjab, Lahore v. Mian Ghulam Farid and others 1993 SCMR 643 and Haji Ghulam Rasool and others v. The Chief Administrator of Auqaf, West Pakistan PLD 1971 SC 376. ref

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

----O. XLI, R.31---Judgment of Appellate Court---Appellate judgment should set the points arising for determination, its decision thereon and the reasons for its decision---Appellate Court was to record the points for determination, so that it could be determined whether the Court had dealt with all the points---Appellate Court must state its reasons for the decision---Provisions of O.XLI, R.31, C.P.C. held were mandatory.

Nasimullah Khan for Petitioners.

Khalil Khan Khalil for Respondents.

Date of hearing: 14th March, 2006.

P L D 2006 Peshawar 128

Before Tariq Pervez Khan, C.J. and Raj Muhammad Khan, J

Mst. ZUBAIDA SADRUDDIN---Appellant

Versus

THE STATE---Respondent .

Criminal Appeal No.882 of 2005, decided on 25th April, 2006.

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

----S. 9(c)---Appreciation of evidence---Not a single witness had stated that at any stage of investigation, accused was asked, if she was the owner of suit-case in question from which heroin was recovered---No evidence was led by the prosecution to prove that any thing in the shape of document or any other article was recovered form the suit-case containing heroin to connect same with its ownership or possession qua accused---Some inter-connecting article had to be there to prove that the suit-case in question was either owned or possessed by the accused---None of the prosecution witnesses had uttered single word that suit-case in question was carried by accused or was taken out of the car on her direction by the Porter/prosecution witness and said witness had not charged accused in his examination-in-chief nor he had identified accused in regular test identification parade which was not held---No nexus of accused was found with the suit-case containing heroin---Mere non-explanation about her presence, would not absolve prosecution from its duty of proving that narcotics recovered were owned, controlled or possessed by the accused---Present was an example case of total incompetence on part of investigating agencies and because of their incompetence, it could not be held that they had proved charge against accused---Conviction and sentence recorded against accused by the Trial Court were set aside, accused was acquitted of the charge against her and was released accordingly.

Mian Mohibullah Kakakhel for Appellant.

Tariq Khan Kakar for the State.

Date of hearing: 25th April, 2006.

P L D 2006 Peshawar 132

Before Ijaz-ul-Hassan Khan and Ijaz Afzal Khan, JJ

SALEH MUHAMAMD---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.788 of 2004, decided on 21st November, 2005.

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

----S. 302(b)---Appreciation of evidence---Burden of proof---Onus---Duty of prosecution---Benefit of doubt---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 came 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 ease---Initial burden of proof would continue to be on prosecution and it was only when it had rendered a reasonable proof before the Trial Court qua the guilt of an accused that onus would shift on accused to prove his innocence---Evidence furnished by interested witness ordinarily could not be discarded merely for the reason that they had relationship with the victim---Duty of the Court was to look forward for corroboration of such evidence from independent source with the view to explore truth for the purpose of reaching at a just conclusion---If a best piece of evidence available with a party was withheld, then it would be presumed that said party had some sinister motive, for withholding same---For safe administration of justice, an accused had only to show a dent having created in the case of prosecution and that he was entitled to benefit of even a single doubt found in the evidence of prosecution; and that he had to show that its case suffered from more than one doubt---Accused could not be held guilty for a crime on the basis of probabilities and high presumptions; and no one would be construed into a crime without legal proof---Court had to see whether prosecution had been able to prove case against a person who had been charged to face the trial on a capital charge---If eye-witnesses were disbelieved against some accused persons, who had been attributed similar role qua acquitted co-accused, then such eye-witness, could not be believed against other co-accused persons unless they received independant corroboration in that regard.

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

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Version of two prosecution witnesses, who were brothers of deceased, was not supported by independent evidence---Main attack on ocular testimony of said two witnesses was that they were not present at the time and place of incident---Evidence of said witnesses could not be relied upon as they were set up witnesses---Mere relationship or close association of prosecution witnesses with deceased, in absence of established hostility, animosity or any other motive to depose falsely against accused would not be sufficient for him to be interested witness and his testimony would not be discarded on such ground, but in the present case, eye-witnesses had not been able to prove their presence at the spot at the relevant time---Scrutiny of said witnesses had revealed that ocular testimony was highly doubtful and it was very unsafe to rely upon such type of evidence and it was not safe to rely upon oral statements of said eye-witnesses alone to maintain conviction of accused in a case of capital charge---Statements of said witnesses suffered from serious infirmities and were not reliable---No independent and disinterested witness from the locality had been produced to lend corroboration to prosecution version---Medical evidence, supported prosecution to the extent that deceased lost his life due to fire-arm injury and not beyond---Medical evidence being in nature of confirmatory evidence, could not be considered corroborative evidence---No other sufficient incriminating evidence was on record to support prosecution story---Report of Fire-arms Expert had not been placed on record and no explanation was forthcoming for that omission on the part of Investigating Officer---Where evidence on record was not credible and worth reliance, mere fact that accused remained absconder, could not remedy the defects and infirmities in the prosecution case---Abscondence at the most, could be taken as corroborative of the charge and not the evidence of the charge and in absence of any other corroborative evidence that evidence, even if found convincing, would not be sufficient, by itself, to warrant conviction of accused---Alleged abscondence of accused could not be used as piece of confirmation to ocular testimony regarding his involvement in the matter---Prosecution had not been able to prove its case against accused through any cogent piece of evidence---Trial Court had no justification' to rely on dying declaration of deceased and make same basis of impugned judgment without looking for independent corroboration, which was missing in the case---Conviction and sentence awarded to accused by the Trial Court, were set aside and he was acquitted of the charge by extending him benefit of doubt.

Akhtar Jan and another v. The State and another 2005 PCr.LJ 1459 ref.

Abdur Samad Khan for Appellant.

Waseem Tariq for the State.

Khawaja Muhammad Khan Gara for the Complainant. Date of hearing: 21st November, 2005.

P L D 2006 Peshawar 140

Before Dost Muhammad Khan, J

SAIFULLAH KHAN alias TURAB---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.472 of 2006, decided on 26th April, 2006.

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

----Ss. 466 & 497---Penal Code (XLV of 1860), Ss.295-B & 298---Bail, grant of---Medical prescriptions and diagnostic probes made by psychiatrists, would show that accused was suffering from mental disorder of formidable nature---Accused was referred to Standing Medical Board, where he was kept under observation and Board consisting of four members, majority of whom were psychiatrists, and a Chairman, after examining the accused gave opinion that accused was suffering from bipolar disorder with psychotic features--Such unanimous opinion of Standing Medical Board, consisting of medical experts of high repute, was not disputed by State Counsel and he conceded on the nature of ailment/mental disorder of the accused---Trial Court had been carried away by embtional/religious sentiments and had gone with the winds which she apprehended to be blown by religious circles in case justice was done in the matter, which amounted to denial of justice---Such an approach was against universal principle' of justice---Principle of justice that "let the heaven fall, but justice shall prevail" was rock bed---Denial of relief to accused by Court, on said consideration was in disregard of well settled principles of law and justice---Detaining a person who was entitled to liberty on the proposition that some hostile elements would cause harm to him or the decision of the Court would be taken ill or would invite criticism from a segment of the society, was against law and command of the Constitution---Report of Standing Medical Board revealed that nothing was left to be debated upon that accused was an insane person unable to defend himself before the Court of law---Case of accused was squarely covered by provisions of Ss.466 & 497, Cr.P.C.---Accused was granted bail, in circumstances.

(b) Administration of justice---

----Principles---If a Court of law would succumb to pressure tactics or fear of threat at the hands of certain elements or segment of the society and on that account denied justice to any person who was entitled to it as of right, would not be conducive to the system of justice, Judges would fall prey and become hostages in the hands of those who had no knowledge about the principles of justice---Such an approach and attitude definitely would prove destructive to the fair administration of justice in which people of the country still have unshaken faith and confidence---Judges must know about prevailing circumstances in the society, but for the purpose of evolution and development of justice system.

Jalaluddin Akbar Azam for Petitioner.

Malik Manzoor Hussain for the State.

Date of hearing: 26th April, 2006.

P L D 2006 Peshawar 144

Before Shah Jehan Khan and Fazlur Rehman Khan, JJ

MAQBOOL SHAH and 2 others---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.7 of 2004, heard on 28th March, 2006.

Penal Code (XLV of 1860)---

---Ss. 302, 324, 427, 148 & 149---Appreciation of evidence---Report which vide murasila having been made on the spot after preliminary investigation, had lost its authenticity as such-like reports were looked by the court with suspicion---All prosecution witnesses except one, were closely related to complainant and were thus highly interested witnesses and in such case, for conviction of accused, some corroboration either from independent or reliable source was required, but same was lacking in the case---Prosecution witness who appeared to be somewhat an impartial witness, had not supported prosecution case, who had stated in cross-examination that he had neither identified nor had known any of the accused---Not only material contradiction were noticed in the ocular version furnished by eye-witnesses and medical evidence on record, but also there were sufficient improvements in the eye-witness account given before the Court as against the version given in the F.I.R.---Prosecution had failed to prove its case against accused beyond any reasonable doubt---Accepting appeal against judgment of Trial Court, accused were acquitted from the charges levelled against them and were released from jail.

Barrister M. Zahoorul Haq for Appellants.

Asadullah Khan Chamkani and Sher Bahadur Khan for the State.

Date of hearing: 28th March, 2006.

P L D 2006 Peshawar 151

Before Muhammad Raza Khan, J

SAID NAWAZ KHAN---Petitioner

Versus

MUNAWAR KHAN and 4 others---Respondents

Civil Revision Nos.53 and 56 of 2005, decided on 30th March, 2006.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Pre-emption, right of---Talb-i-Muwathibat, performance of---Legal requirements and objects stated.

The legal formality with regard to performance of Talb-i-Muwathibat is that plaintiff/pre-emptor should declare his intention to pre-empt on receipt of information about the sale transaction of a property over which his right of pre-emption extends. This Talb has to be made before the dispersal of the assembly in which the information was transmitted.

The minor discrepancies in evidence can be ignored, however, the major contradictions can be considered, whereby the fact of compliance of Talb-i-Muwathibat in accordance with legal requirements appear to have been negated, particularly when Talb-i-Muwathibat is not made in the said assembly, where the information was transmitted. The purpose is that the intention to pre-empt a transaction should be declared openly and immediately on the receipt of information about the sale, and that it should be done in the assembly i.e. Majlis where the information was transmitted. The period of Talb-i-Ishhad is counted from the date of Talb-i-Muwathibat. Another objective of the strict application of requirement of Talb-i-Muwathibat is to avoid the possibility of afterthoughts and manipulations. Every care has to be taken by the Courts to analyze the strict compliance of said requirements to achieve the objectives thereof. However, in the obsessions of taking extraordinary care, the Courts may not use the requirements of Talb-i-Muwathibat as a tool to non-suit the plaintiff/pre-emptor.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Pre-emption, right of---Talb-i-Muwathibat, performance of---Proof---Plaint and notice of Talb-i-Ishad disclosing performance of Talb?i-Muwatibat at 8-30 p.m.---Statement of witness of Talb-i-Muwathibat that he was present with pre-emptor at 8-30 hours (0)41;1 ) , when information of sale was communicated by informer and such Talb was made by pre-emptor---Validity---Making of such Talb at "Isha" time was in evidence---According to lunar calendar, day starts from evening of previous night, while under solar calendar, entire day including evening and following night till 12 midnight is considered to be a part of day---Unless the term "morning" was mentioned in evidence, mere use of words ( v, L, trt ) would not deny the fact that time referred to in such statement was not 8-30 p.m.---Such witness held, was present with the pre-emptor at 8-30 p.m. on Sunday.

(c) Words and phrases---

----"Day"---Starting of day according to Lunar and Solar Calendars stated.

North-West Frontier Province Pre-emption Act (X of 1987)-

--S. 13---Talb-i-Ishhad, notice of---Proof---Production in evidence photocopies of such notices by pre-emptor---Plea of vendee was that such notices were not proved as photocopies thereof being inadmissible in evidence for want of original and in absence of permission for secondary evidence---Validity---Pre-emptor had placed on record original notices along with envelopes returned undelivered---Court in presence of author of such notices had opened one envelope containing original notice---Such notices, held, were proved.

(e) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 31(b)---Non-attestation of mutation of sale on date of suit or pre?emption---Admission of sale by vendee in written statement---Effect---Permanent transfer could be challenged through pre-emption suit despite non-payment of entire sale consideration by the time of institution of suit---Suit was not premature in circumstances.

Khawaja Nawaz Khan for Petitioner.

Gouher Zaman Khan Kundi for Respondents.

Date of hearing: 30th March, 2006.

P L D 2006 Peshawar 156

Present: Muhammad Raza Khan, J

ABDUL WAHEED KHAN and another---Petitioners

Versus

Mst. RUQIA BIBI and 17 others---Respondents

Civil Revision Nos.37 and 45 of 2003, decided on 6th April, 2006.

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

----Ss. 115(1), First, Second Provisos & 151---Revision---Limitation---Exclusion of time spent in getting certified copies of documents/orders (to be attached with revision necessarily) over and above the period of ninety days prescribed for filing of revision---Not justified---Purpose of legislature to specify period of ninety days was to provide sufficient time to petitioner for obtaining such copies and eliminate possibility of filing revision one or two days late---By prescribing a time in terms of days and not in months, legislature intended its strict compliance---Such period of ninety days being obligatory could not be extended---Revision had to be filed within prescribed period of ninety days including time spent in getting such copies---When such copies were not available by last date, then petitioner could file revision without such copies---When

such copies were delivered beyond ninety days, then delay of a day or two in filing revision could be condoned only in exercise of inherent powers of Court---Principles.

Faizullah and others v. Rustam and others PLD 2003 Pesh. 217 ref.

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

---S. 115(1), Second Proviso---Certified copes of documents, delivery of---Automatic delivery of such copies within three days and free of cost by court as claimed by petitioner was neither logical nor reasonable---Principles.

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

---S. 115(1), Second Proviso---Second Proviso---Period of three months prescribed for decision of revision by High Court---Failure of High Court to abide by such time schedule---Effect---Such provision was regulatory in nature---Efforts should be made to decide revision within minimum possible time---Such failure would not operate as ouster of jurisdiction---Principles.

(d) Interpretation of statutes---

---Time prescribed in a statute in terms of days and not in months---Legislature intended its strict compliance.

(e) Interpretation of statutes---

---Facility for particular action provided by law---Not generally applicable to other similar actions---Principles.

When the law provides a facility for a particular action, it has to be extended to the same action and cannot be generally applied to other similar actions, because, otherwise the very words restricting the application of a particular facility to a particular mode would become redundant or surplusage, which is never the intention of law.

Rustam Khan Kundi for Petitioners.

Sardar Allah Nawaz Khan Sadozai for Respondents.

Date of hearing: 6th April, 2006.

P L D 2006 Peshawar 163

Before Ijaz-ul-Hassan Khan, J

AMIR ZAMAN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.261 of 2006, decided on 29th May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 514---Forfeiture of bond---Accused for whom appellants stood sureties, having remained absent and appellants having failed to produce them in Court, Court had forfeited one half of bail bonds of the sureties---Validity---Appellants who stood sureties for accused, were under legal obligation to discharge their liability under bail bonds furnished by them---Appellants having undertaken the liability themselves, it would not lie in their mouth to say that on account of their financial condition, they could not pay amount of bond executed by them; and they stood sureties of accused out of benevolence and without any monetary gain---No legal embargo existed to the effect that amount of bail bond in full could not be forfeited---Where accused jumped bail bond, entire surety amount would become liable to confiscation---Sureties, were liable to produce accused in the Court in view of their undertaking---Trial Court, in the present case, had already taken a lenient view by forfeiting one half of the bail bond---Impugned order being correct, proper and legal, did not call for interference of High Court in its appellate jurisdiction.

Muhammad Shah and others v. The State 1994 PCr.LJ 2316; Amanullah and others v. The State 1997 PCr.LJ 1927; Muhammad Khan v. The State 1986 PCr.LJ 2028; Shatab Khan and another v. The State PLD 1996 Lah. 600 and Muhammad Aslam and another v. The State 2004 SCMR 211 ref.

Javed Ali Asghar for Appellants.

P L D 2006 Peshawar 165

Before Tariq Parvez Khan, C J

ESA KHAN---Petitioner

Versus

NAWAB KHAN and another---Respondents

Criminal Revision No.206 of 2005 and Cr.Q.P. No.106 of 2006, heard on 8th June, 2006.

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

----S. 561-A---Penal Code (XLV of 1860), Ss.302, 324 & 34---Releasing accused on personal bonds---Accused was released by S.H.O. of concerned Police Station on personal bonds---S.H.O. had acted in utter disregard of law in releasing accused on personal bond as he was vested with no legal authority to release accused on his personal bonds---High Court while exercising jurisdiction under S.561-A, Cr.P.C., held the said order of S.H.O. to be unsustainable.

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

----Ss. 497(5) & 561-A---Constitution of Pakistan (1973), Art.199---Bail, cancellation of---Court granting bail or the Court of Session or High Court, could recall order of grant of bail, but where bail was granted by police, that too on personal bonds, would not be amenable to jurisdiction under S.497(5), Cr.P.C., but to the jurisdiction of High Court either exercising inherent jurisdiction or jurisdiction vested in it under Constitution.

1994 PCr.LJ 1166; 1996 PCr.LJ 1987 and AIR 1933 Sindh 331(2) ref.

Kh. Muhammad Khan for Petitioner.

Mumrez Khan for Respondents

Akhtar Naveed D.A.-G. for the State.

Date of hearing: 8th June, 2006.

P L D 2006 Peshawar 167

Before Ijaz-ul-Hassan Khan, J

THE STATE through Advocate-General, N.-W.F.P.-Appellant

Versus

PIR MUHAMMAD and others---Respondents

Criminal Appeals Nos.178 and 85 of 1998, decided on 19th May, 2006.

Criminal Procedure Code (V of 1898)---

----S.417---Penal Code (XLV of 1860), Ss.419, 468, 482, 286 & 487--- Appeal against acquittal---Conclusion drawn by Trial Court in acquitting accused, was neither arbitrary, fanciful nor .artificial in nature---Judgment returned by Trial Court was a fair judgment, based on proper, just and legal appreciation of evidence on record---Appellant had failed to show that impugned judgment of acquittal was fanciful or based on no evidence and it had not been demonstrated that some material evidence was not taken into consideration by the Trial Court, which had caused miscarriage of justice---Acquittal judgment was not to be interfered with and due consideration and weight was to be attached to observations made in acquittal judgment---View and approach for dealing with appeal against conviction would be different and distinguishable from appeal against acquittal because of presumption of double innocence of accused was attached in the order of acquittal---Appeal against acquittal was dismissed and impugned order of acquittal was maintained.

State through the Advocate-General, N.-W.F.P., Peshawar v. Habib PLD 1996 Pesh. 43 and Syed Azeem Shah v. The State PLD 1987 Quetta 96 ref.

Aminur Rehman for the State.

Tariq Javed for Respondents.

Date of hearing: 19th May, 2006.

P L D 2006 Peshawar 171

Before Salim Khan and Humid Farooq Durrani, JJ

ANTI-NARCOTICS FORCE (A.N.F.) through Regional Director Industrial Estate Narcotics Directorate, Peshawar---Petitioner

Versus

GHAFOOR KHAN through Guardian and 8 others---Respondents

Writ Petition No.991 of 2003, decided on 2nd June, 2006.

Prevention of Smuggling Act (XII of 1977)---

----Ss. 2(1)(F), 21, 29, 31 & 43---Customs Act (IV of 1969), S.2(S)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Forfeiture/confiscation of property---Authority informed the Special Judge that property acquired by deceased/predecessor-in-interest of respondents, being outcome of narcotics smuggling, could be forfeited in favour of Government---Special Court, after issuing show-cause notices to respondents and hearing them, by its order declared some of the assets of respondents liable to forfeiture---Special Appellate Court, set aside order/judgment of Special Court and properties ordered to be forfeited, were discharged---Validity---Special Appellate Court while dealing with the matter had taken great pains in discussing entire evidence produced by parties before Special Court---Appellate Court had canvassed ali factual aspects and had also returned its verdict in the light of provisions contained in S.31 of Prevention of Smuggling Act, 1977 and other relevant sections of the said Act---Findings of facts recorded by Appellate Court being result of proper appreciation of evidence, would not require interference by High Court in exercise of its constitutional jurisdiction which jurisdiction was further narrowed down---Authority had not succeeded in establishing that while passing impugned judgment, Appellate Court had travelled beyond its jurisdiction or that said judgment was without lawful authority---Alleged F.I.R. which was made basis of proceedings against deceased/predecessor-in-interest of respondents, was absolutely silent regarding act of smuggling being attributed to the deceased---Impugned judgment of Appellate Court, whereby findings of Special Court were set aside, did not call for interference by High Court.

M. Tariq Kakar (Special Prosecutors) for Petitioner.

Respondents Nos. 1 to 3 (Present in person).

Qazi M. Anwar assisted by Haji Ghulam Basit for Respondents Nos. i to 5.

Date of hearing: 18th May, 2006.

P L D 2006 Peshawar 176

Before Ijaz-ul-Hassan Khan and Muhammad Raza Khan, JJ

MAQSOOD AKBAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.64 of 2006, decided on 11th May, 2006.

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

----Ss. 9(c) & 25---Appreciation of evidence---Both complainant and prosecution witness had supported recovery of 1900 grams of opium from possession of accused at the given date, time and place---Both said witnesses had demonstrated complete unanimity on material points and accused had failed to point out any discrepancy in their statements---Contradictions highlighted by accused were so minor that on the basis of those, it could not be said that trial of case stood vitiated---Complainant and prosecution witness though were officials of Anti-Narcotic Force, but they had no reason or motivation for false implication of accused and they could not-be said to be interested witnesses as no animosity of the witness, was alleged towards the accused---Prosecution witnesses had fully corroborated each other---Official witnesses were as good as any, unless mala fide intention was established by accused and no such intention had been established in the present case---Section 25 of Control of Narcotic Substances Act, 1997 had excluded the applicability of S.103, Cr.P.C. pertaining to search and seizure---Mere delay in sending sample to Laboratory for testing, was insignificant as no evidence was . available to the effect that property produced was tampered with---No serious defect had been pointed out in the investigation other than certain minor lapses which did not affect validity of trial---Recovery evidence supported by Chemical Examiner's report was beyond doubt and was confidence-inspiring---Defence plea advanced by accused, was not solid, convincing and, sufficient to rebut entire case of prosecution---Impugned judgment based on correct application of law and proper evaluation of evidence, was maintained---Fine imposed on accused, however, being on higher side, was reduced from Rs.50,000 to Rs.40,000 accordingly.

Muhammad Hanif v. The State 2003 SCMR 1237; Muhammad Ali v. The State 2002 PCr.LJ 976 and Gharibullah v. The State 2002 YLR 3822 ref.

Mian Mohibullah Kakakhel for Appellant.

Tariq Khan Kaker for the State

Date of hearing: 11th May, 2006.

P L D 2006 Peshawar 180

Before Dost Muhammad Khan and Raj Muhammad Khan, JJ

IIAZ KHAN---Petitioner

Versus

APA BARRA, PESHAWAR and another---Respondents

Writ Petition No.2038 of 2005, decided on 31st May, 2006.

(a) Administration of justice---

----Tribunal having jurisdiction to decide a particular matter, would decide same according to law as it had no jurisdiction to decide it in contravention of any law---Any wrong decision by it would suffer from jurisdictional defect and. would be in disregard of law.

Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal PLD 1987 SC 447 ref.

(b) Frontier Crimes Regulation (III of 1901)--

---Ss. 8 & 11---Penal Code (XLV of 1860), Ss.419 & 420---Constitution of Pakistan (1973), Art.199---Constitutional petition---Issuance of non-bailable warrants of arrest---Petitioner had questioned non-bailable warrants of arrest in a case/complaint---Petitioner had further questioned jurisdiction of Assistant Political Agent on the subject matter---Assistant Political Agent assumed jurisdiction without judicial satisfaction under S.11 of Frontier Crimes Regulation, 1901, treating application as complaint for crimes under Ss.419 & 420, P.P.C.---Assistant Political Agent, at a later stage made a somersault and laid hand on S.8 of Frontier Crimes Regulation, 1901 treating criminal complaint a civil suit and without referring case to the Council of Elders passed an ex parte decree and that too without any proof much less legal and tangible one; if at all he was of the view that no criminal case/offence was constituted from the facts mentioned in application/complaint, the only legal course open to him was to have dismissed complaint and under no circumstances he had any legal authority under Frontier Crimes Regulation, 1901 to quit criminal jurisdiction and assume other one under S.8 of the Regulation at his whim and pleasure.

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

----Arts. 199 & 247(7)--- Frontier Crimes Regulation (III of 1901), Ss.8 & 11---Constitutional jurisdiction of High Court---Scope---Assistant Political Agent though resided and performed his functions beyond the territorial jurisdiction of High Court, but illegal and unlawful warrant of arrest issued against petitioner was being executed within territorial jurisdiction of High Court---Imminent threat of arrest to the petitioner had been caused, the effect and impact of the order was felt here and impugned order of arrest was being given effect within jurisdiction of High Court---High Court, in circumstances had jurisdiction to strike down same or to restrain local authorities who were functioning within jurisdiction of High Court from execution of such warrant---Not only under provisions of Chapter-I, Part-II of Constitution, liberty, security, dignity and freedom of a person had been fully secured and guaranteed, but also under Charter of Human Rights, High Court had constitutional obligation to jealously safeguard such fundamental rights against any invasion and could competently step in such a case---Constitutional Petition was allowed and warrant of arrest issued by Assistant Political Agent to effect the arrest of petitioner was declared to be the result of illegal exercise and assumption of jurisdiction and same was declared to be without lawful authority and without jurisdiction---Contention that High Court had no jurisdiction in the matter was repelled.

Abdul Ghani and another v. Subedar Shoebar Khan Company and others PLD 1968 SC 131 and Muhammad Akram v. The State PLD 1963 SC 373 ref.

S.M. Attique Shah for Petitioner.

Akhtar Naveed, D..A.-G. and Muhammad Iqbal Durrani for Respondents with Safirullah Khan, APA, Bara, Khyber Agency.

P L D 2006 Peshawar 189

Before Dost Muhammad Khan and Raj Muhammad Khan, JJ

MUHAMMAD TARIQ---Petitioner

Versus

Mst. SHAHEEN and 2 others---Respondents

Writ Petition No.161 of 2005, decided on 16th May, 2006.

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

----S. 5, Sched---Muslim Family Laws Ordinance (VIII of 1961), S.10---Dower, its meaning, and origin---Right of wife to recover dower and cases in which such right would be extinguished, stated.

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

----S. 5 & Sched.---Muslim Family Laws Ordinance (VIII of 1961), S.10---Dower---Dower paid and snatched by husband---Dower would remain as dower, neither it would undergo any change nor it would be transformed into a civil liability in case it was snatched or taken back-forcibly from wife by husband---Neither Muslim Family Laws Ordinance, 1961 nor provisions of West Pakistan Family Courts Act, 1964 had provided either impliedly or expressly that when dower paid was snatched by husband then for its retrieval, wife would have to make recourse to the civil court---Dower paid to wife and snatched by husband would automatically restore his liability to repay same and it would remain as a dower due to wife, triable by Family Court alone---Once dower was paid, then it would become the property of wife as her complete domain was established over it---Act of its snatching would amount to the disposal of her property and Family Court alone would have jurisdiction to take cognizance for the recovery of the same---Appellate Court had committed legal error by refusing. to exercise jurisdiction vested in it with regard to dower---Impugned judgment and decree reversing judgment and decree of Family Court with regard to recovery of dower and directing plaintiff to have recourse to Civil Court for its recovery was held to be without lawful authority---Impugned judgment and decree of Appellate Court, was set aside and it was directed to decide entire case/appeal on merits.

Allauddin Arshad's case 1984 CLC 3369, 401 distinguished.

(c) Interpretation of statutes---

----Court would strive in search of the construction which would advance cause of justice by providing relief to a party entitled to it and to suppress mischief of denying such right on the ground of unnecessary technicality---Once Tribunal of exclusive jurisdiction was established/constituted for the trial of particular cases/disputes, then, in absence of. express provision, its jurisdiction could not be taken away on the ground that matter triable by it had undergone a trivial change due to the act or omission of the party in default.

Imtiaz Ahmad v. Ghulam Ali and 2 others PLD 1963 SC 382 ref.

Saeed Baig for Petitioner.

Muhammad Alam Khan for Respondents.

Date of hearing; 16th May, 2006.

P L D 2006 Peshawar 196

Before Salim Khan and Hamid Farooq Durrani, JJ

SHAMRAZ KHAN and 8 others---Petitioners

Versus

MUHAMMAD RAFIQUE and others---Respondents

C. M. No.121 of 2004, decided on 6th July, 2006.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Application on plea of fraud and misrepresentation---Forum to file such application---Suit was decreed by Trial Court and appeal against same having also been dismissed by High Court, petitioners filed application under S.12(2), C.P.C.---Senior Civil Judge before whom said application was filed, returned same to petitioner holding that for adjudication of said application proper forum would be the Court which had passed final judgment/decree and that his Court did not have jurisdiction---Senior Civil Judge/Trial Court had finally decided dispute between parties as appeal against order of Trial Court was dismissed which amounted to confirmation of said original judgment of Trial Court---No modification, alteration, amendment was made by Appellate Court in judgment and decree of Trial Court and impugned judgment which remained intact had attained finality---Proper forum for submission of application under S.12(2), C.P.C., would be Trial Court, whose judgment, decree or order had attained finality and not the Appellate Court; which had not changed or reversed said judgment and decree---Judgment and decree having remained intact in appeal without any change or interference doctrine of merger would not apply in the case---Judgment of Senior Civil Judge having attained finality due to dismissal of appeal against it, Senior Civil Judge was not justified to hold that he lacked jurisdiction to entertain application under S.12(2), C.P.C.---Said application was wrongly returned to petitioners for its submission before any other forum---Senior Civil Judge being proper forum, should decide application filed under S.12(2), C.P.C. on its merits.

1993 CLC 1257 (Karachi); PLD 1994 Lah. 119; 1999 MLD 3082; 2001 MLD 1033; 1997 CLC 1893; 2001 SCMR 1062; Mubarak Ali v. Fazal Muhammad and another PLD 1995 SC 564; Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid 1993 SCMR 1171; PLD 2002 SC 391; Khawaja Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others 1999 SCMR 1516 and Abid Kamal v. Mudassar Mustafa and others 2000 SCMR 900 ref.

Ghulam Younas Khan Tonli for Petitioners.

Faheem Tanoli for Respondent.

Date of hearing: 15th June, 2006.

P L D 2006 Peshawar 201

Before Fazal-ur-Rehman Khan and Raj Muhammad Khan, JJ

REHMAT WALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.291 of 2004, decided on 21st July, 2006.

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

----S. 9(c)---Appreciation of evidence---Contradictions were appearing both in the relevant documents as well as in the statements of prosecution witnesses recorded in the case with regard to the recovery of contraband charas as well as its quantity---Forensic Science Laboratory report had shown that 7 parcels were drawn from the lot, but that figure of 7 parcels was nowhere appeared in the record---Parcels were made available to Laboratory after about 20 days of alleged occurrence and no explanation was given for said delay---Time of occurrence as well as the report i.e. 1200 hours, was the same---Before the report, not only Gas Cylinder containing charas was to be broken, but charas was also to be weighed, samples were to be drawn and to be sealed in parcels and murasila was to be drafted---All said steps had to take sufficient time, but it was not known and explained as to how those actions were completed within no minutes---Neither any other passenger in the vehicle in question nor its driver was made witness to the recovery in question--Investigating Officer had admitted that he himself had not seen accused inside the vehicle and also had not seen Gas Cylinder in question---No Constable was produced as prosecution witness to depose about recovery of Cylinder containing charas from direct and physical possession of accused---Poor quality of investigation made in the case by Investigating Officer both in drafting of murasila containing an ambiguous number of packets and colour thereof, preparation of recovery memo, etc., had benefited accused by creating doubt in the recovery of contraband charas from him while sitting among other passenger in the vehicle---Benefit of doubt must be extended to accused---Impugned judgment of the Trial Court whereby accused was convicted and sentenced, was set aside and he was acquitted of the charge against him.

Noor Alam Khan for Appellant.

Miss Neelam Khan for the State.

Date of hearing: 21st July, 2006.

P L D 2006 Peshawar 206

Before Salim Khan, J

SHAFAQAT-UR-REHMAN---Appellant

Versus

DAUD-UR-REHMAN and 11 others---Respondents

R.F.A. No.45 of 2006, decided on 29th June, 2006.

Defamation Ordinance (LVI of 2002)---

----Ss. 3, 4, 8 & 13---Civil Procedure Code (V of 1908), O.VII, Rr.10 & 11---Limitation Act (IX of 1908), S.14---Suit for defamation, damages and mental torture---Limitation---Condonation of delay---Return of plaint for filing same before proper forum---Civil Court returned plaint in the suit under O.VII, R.10, C.P.C. with direction to submit same before proper forum on the ground that Civil Court had no jurisdiction to entertain the matter in the light of provisions of Defamation Ordinance, 2002---Revision filed by plaintiff against order of Civil Court having been dismissed by Appellate Court plaintiff filed another suit against defendants---Said suit was dismissed on application of defendant filed under O.VII, R.11, C.P.C. on ground that notice given by plaintiff was time-barred---Submission of counsel for plaintiff was that time spent by plaintiff in the wrong forum was to be condoned---Validity---Person could not claim condonation of period if he did not use the mind properly and did not initiate proceedings at the proper forum with due diligence---Ignorance of law was no excuse, and could not be said that plaintiff went to the Court of Civil Judge in good faith or that he had used due diligence to ascertain the exact law---Law was to take its own course and was to be applied strictly for the ends of justice---Two suits filed by plaintiff had shown that he threw the net too wide, though with less amount for each person at the second phase of litigation---Plaintiff by his conduct, had shown that he was trying to engage defendants in litigation due to his annoyance with them---In absence of any ground for interference with the impugned order passed by Addl. District Judge, regular first appeal was dismissed by the High Court.

Sardar Tahir Hussain for Appellant.

Nemo for Respondent.

Date of hearing: 29th June, 2006.

P L D 2006 Peshawar 208

Before Salim Khan and Hamid Farooq Durrani, JJ

MASOOD ANWAR---Appellant

Versus

SABIR KHAN---Respondent

R.F.A. No.140 of 2003, decided on 27th June, 2006.

Civil Procedure Code (V of 1908)---

---O. XXXVII, Rr.2 & 3---Stamp Act (II of 1899), S. 5---Suit for recovery of amount on basis of promissory note---Leave to defend suit---Deficiently stamped document---Effect---Suit was filed on the ground that defendant had obtained a loan of Rs.45,00,000 from plaintiff and executed a Demand Promissory Note for the said value---Defendant who was allowed to defend suit filed written statement, in which he denied execution of promissory note and receipt of suit amount-+-Defendant also asserted that disputed promissory note being insufficiently stamped was not admissible in evidence under S.5 of Stamp Act, 1899---Marginal witnesses to said promissory note produced by plaintiff were cross-examined on behalf of defendant at length, but statement of said two witnesses were almost similar which complemented the claim of plaintiff---Said witnesses were unanimous on the points of payment of suit amount by the plaintiff in favour of defendant; execution of promissory note; their signature on said instrument as marginal witnesses and also attestation of promissory note by the Notary Public---Exhaustive cross-examination on behalf of defendant, to which said two witnesses were subjected, could not bring forth any material discrepancy or contradiction inter se---Plaintiff was able to prove execution of promissory note in question and also the fact of money changing hands between plaintiff and defendant---Findings of the Trial Court to the extent of disbelieving witnesses on account of minor discrepancies, were not worthy of sustenance---Payment of stamp duty was not a question between the parties to the suit, but was between the State/Government and party who was to use deficiently stamped document---Trial Court could have ordered plaintiff for making up deficiency at any time---Held, plaintiff, in circumstances was entitled to a decree for recovery of suit amount on the strength of promissory note, executed in his favour by defendant---On accepting appeal against judgment of the Trial Court, a decree for recovery of suit amount along with 6% profit/interest, was passed in favour of plaintiff with costs.

PLD 1978 SC 279 and PLD 2003 Lah. 173 ref.

Younus Khan Tanoli for Appellant.

Malik Mehmood for Respondent.

Date of hearing: 14th June, 2006.

P L D 2006 Quetta 1

Before Mehta Kailash Nath Kohli and Amanullah Khan Yasinzai, JJ

Sardar Haji MUHAMMAD YOUSAF and another---Petitioners

Versus

DISTRICT COORDINATION OFFICER and another---Respondents

Constitutional Petition No.797 of 2005, decided on 28th December, 2005.

System of Sardari (Abolition) Ordinance (XXXV of 1976)---

----S. 3---Constitution of Pakistan (1973), Arts. 28 & 199---Constitutional petition---Preservation of language, script and culture---Petition for declaration petitioner as Sardar of the Tribe---Petitioner had claimed that Sardar of his Tribe having died, according to their tribal culture, petitioner, son of the deceased, being owner of more than 400 acres of property in the area, should be declared Sardar of the Tribe in view of Art.28 of the Constitution---Validity---Fundamental right as provided in Art.28 of the Constitution though had provided that citizens having a distinct language, culture, had right to preserve, but custom, language, script and culture, did not include appointment of Sardar, which institution stood abolished under System of Sardari (Abolition) Ordinance, 1976---All such cultural customs to that extent, had been declared to be against provisions of law relating to Sardari System and thus relief claimed by petitioner, could not be granted---Constitutional petition, being legally not competent, was dismissed.

Manzoor Ahmed Rahmani for Petitioners.

Respondent: District Coordination Officer Killa Saifullah and General Public.

Date of hearing: 19th December, 2005.

P L D 2006 Quetta 4

Before Raja Fayyaz Ahmed, J

GOVERNMENT OF BALOCHISTAN through Secretary Forest, Quetta and 2 others---Petitioners

Versus

AYUB and another---Respondents

Civil Revision No.16 of 1998, decided on 20th October, 1999.

Civil Procedure Code (V of 1908)---

----S. 115---Revision petition---Limitation---Condonation of delay, application for---Petitioners who filed revision after delay of 8 days from prescribed period of 90 days, had filed. application for condonation of said delay---Petitioners had asserted that due to fact that some important documents required to be obtained for filing revision petition, could not be obtained due to non-availability of concerned official, revision could not be filed in time---Validity---Held, in the application for condonation of delay description of said documents had not been mentioned nor even particulars of concerned official causing delay were given---Delay in filing revision could not be condoned unless same was satisfactorily shown to the Court to have been caused due to circumstances beyond control of the petitioners---Contention that since impugned judgments/decrees, were void, period of limitation would not run, was repelled because even if impugned judgments/decrees be treated to be void, petitioners were required to have filed revision petition within prescribed period of limitation from the date when copy of impugned judgment was received---Even in case of void order, an aggrieved person had to approach to next available higher forum within prescribed period of limitation and if no limitation period was prescribed, within reasonable time on acquiring knowledge about an adverse or even void order---No case for condonation of delay having been made out, application for condonation of delay was rejected and consequently revision petition hit by limitation, was dismissed.

Noor Muhammad Achakzai, Addl. A.-G. for Petitioners.

Ikhlaq Ahmed for Respondents.

Date of hearing: 7th October, 1999.

P L D 2006 Quetta 10

Before Amanullah Khan, C.J. and Mehta Kailash Nath Kohli, J

SHER ZAMAN BAZAI and another---Petitioners

Versus

DIRECTOR, AGRICULTURE, ECONOMICS AND MARKETING, QUETTA and others---Respondents

Constitutional Petitions Nos. 256, 327 and 353 of 2005, decided on 28th December, 2005.

(a) Balochistan Agricultural Produce Markets Ordinance (I of 1991)--

----Ss. 8, 10, 11 & 13---Balochistan Agricultural Produce Markets General Rules, 1995, R.69---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment of member of Market Committee---Period of office of Member, starting point of---Claim of one petitioner was that original Market Committee having been constituted in the year, 2000, while elections for the posts of Chairman and Vice-Chairman having been held vide order dated 7th April, 2003 and the matter remaining under litigation, period of said Committee would commence from 7th April, 2003---Contention of second petitioner was that as he was elected for a period of three years and that period would expire in the year, 2006, he could not have been removed before that period---Contention of respondents, on the other hand, was that under provisions of S.10 of Balochistan Agricultural Produce Markets Ordinance, 1991 ,and S.13 thereof, every member would hold office for a period of three years from the date of his appointment and not from the date subsequent to that---Validity---Under provisions of S.10 of Balochistan Agricultural Produce Market Ordinances, 1991, period of limitation would start from date of appointment and in any case, if no person was appointed to succeed, he would continue to hold office until his successor was appointed---Law had provided appointment of members of Market Committee and definite tenure had been fixed for Market Committee and members thereof which was not relatable to Chairman or Vice-Chairman---Contention that election of Chairman and Vice-Chairman which was held on 7th April, 2003 would be the starting point, was not correct---Intention of the Legislature was always be seen---Actual specified period which had been incorporated, could not be given effect from any other date---Life time of Committee provided by law was three years and its commencing date would be from the date of appointment---Petitioners could not claim more than the period of three years as of right---Government has the discretion either to allow petitioner to continue or to appoint new Committee.

(b) Words and phrases---

----"Date" and "appointment", defined and explained.

Shakil Ahmed for Petitioner (in C.Ps.Nos.256 and 327 of 2005).

Waseem Khan Jadoon for Petitioners (in C.P.No.353 of 2005)..

Tahir Muhammad Khan and M. Salahuddin Mengal, A.-G. for Respondents (in C.Ps.Nos.256, 327 and 353 of 2005).

Date of hearing: 19th December, 2005.

P L D 2006 Quetta 18

Before Muhammad Nadir Khan, J

ABDUL QAYYUM and 20 others---Petitioners

Versus

CENTRAL GOVERNMENT through District Executive Officer (Revenue) and another---Respondents

Civil Revision No.153 of 2003, decided on 12th July, 2004.

Civil Procedure Code (V of 1908)---

----Ss. 79 & 80---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration, injunction and correction of revenue record was decreed ex parse---Federal Government was recorded owner of property in dispute in revenue record and Federal Government had been sued through Provincial functionary which was in clear violation of S.79, C.P.C.---Procedural pre-conditions as provided by S.80, C.P.C. were also not acted upon---Non-compliance of S.80, C.P.C. though did not result in dismissal, of the suit, but in such an eventuality Government was to be provided three months time. to submit written statement, but defendant/Government was proceeded ex parte only after 27 days of the institution of the suit, which had spoken of hasty proceedings carried in violation of provision of S.80, C.P.C.---Trial Court, not only had ignored improper description of defendant, but also failed to comply with legal requirements---Judgment and decree passed in favour of plaintiffs, in such circumstances, could not sustain---Both the Courts had rightly found that Federal Government was not properly sued and decree in its present form was not executable---Impugned order being free from any flaw, would call for no interference, while judgment and decree passed in favour of plaintiff by the Trial Court being in violation of provisions of law, was set aside.

Azizullah Kakar for Petitioners.

Ch. Mumtaz Yousaf, Federal Counsel.

Date of hearing: 1st July, 2004.

P L D 2006 Quetta 23

Before Muhammad Nadir Khan, J

NAZAR ALI---Appellant

Versus

Malik MUHAMMAD QAZZAFI---Respondent

F.A.O. No.59 of 2003, decided on, 15th December, 2004.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-

---Ss. 13(3)(ii) & 15---Bona fide personal need of landlord---Establishment of a business, despite having earnings from other properties, would not debar landlord to establish his own business to increase his earnings---No limit on the earning of an individual and his efforts to increase the same---If landlord was member of a wealthy family and had income from other properties, that would not affect his entitlement to get vacated shop for his personal bona fide use, but in such view of the matter, the pivotal point which would need to be examined, was bona fides of the landlord---Landlord in the present case had failed to establish his bona fides with regard to his personal need and requirement---Landlord had a wholesale business of Ghee/edible oil, but that fact was concealed by landlord and his witness who happened to be his brother, which had reflected on bona fides of landlord---Ejectment of tenant only on the ground that his interest was safeguarded by S.13(4) of West Pakistan Urban Rent Restriction Ordinance, 1959, would not be justified---Landlord had himself admitted that a shop situated in same vicinity was got vacated from one of the tenants by father of landlord, but same was subsequently sold out by landlord which also had affected bona fides of landlord---Ejectment of tenant, in circumstances could not be validated---Order of ejectment passed by Rent Controller, was set aside, in circumstances.

1988 SCMR 819; 1988 SCMR 1515; PLD 1982 Kar. 790; 1981 SCMR 784; PLD 2003 Quetta 147; 1981 CLC 1386 and 1981 SCMR 789 ref.

Tahir Muhammad Khan for Appellant.

Muhammad Sharif for Respondent.

Date of hearing: 30th November, 2004.

P L D 2006 Quetta 30

Before Ahmed Khan Lashari and Mehta Kailash Nath Kohli, JJ

SULEMAN and others---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN through Deputy Commissioner/Collector Khuzdar and others---Respondents

Constitutional Petitions Nos.398, 399, 400, 401, 402, 403 and 443 of 2003, decided on 12th June, 2006.

(a) West Pakistan Board of Revenue Act (XI of 1957)---

----S. 8---Review of orders by Board of Revenue---Provisions of S.8 of West Pakistan Board of Revenue Act, 1957, had given review powers to Board of Revenue relating to any order which was found on discovery of new facts based on mistake or error affecting the root of the case---Said powers appeared to be very wide and Legislature in its wisdom allowed Full Board to examine even new grounds.

Munawar Kashan and another v. Government of Balochistan through Secretary, Revenue, Balochistan Civil Secretariat, Quetta and 2 others 2000 MLD 2015 ref.

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

----S. 5---Question of limitation---If order was passed and jurisdiction was exercised in the manner, which was against the provisions of law or had exceeded the authority prescribed by law, question of limitation, would lose its significance.

Sardar Ahmed Yar Khan Jogezai and 2 others, v. Province of Balochistan 2002 SCMR 122 ref.

Muhammad Riaz Ahmad for Petitioners (in C.Ps. Nos.398, 399, 400, 401, 402, 403 and 443 of 2003).

Shamsuddin, Asstt. A.-G. for Respondents (in C.Ps. Nos.398, 399, 400, 401, 402, 403 and 443 of 2003).

Date of hearing: 6th June, 2006.

P L D 2006 Quetta 36

Before Amanullah Khan Yasinzai, C.J. and Akhtar Zaman Malghani, J

MINING INDUSTRIES OF PAKISTAN (PVT.) LTD. through Authorised Director---Petitioner

Versus

DEPUTY SPEAKER, BALOCHSITAN PROVINCIAL ASSEMBLY, QUETTA and 3 others---Respondents

Constitutional Petition No.276 of 2005, decided on 26th June, 2006.

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

----Arts. 199, 63, 66, 68 & 69---Rules of Procedure and Conduct of Business, 1974, R.114---Constitutional petition---Freedom of speech in Assembly---Scope and extent of privileges of Members---Freedom of speech in Assembly was subject to Constitution and Rules of Procedure---No discussion would take place in Majlis-e-Shoora with respect to conduct of a Judge of Supreme Court or of a High Court, in discharge of his duties---Member of Parliament of Provincial Assembly would render himself disqualified under Art.63(1)(g) of the Constitution to remain member as such, if he propagated any opinion or acted in any manner prejudicial to the Ideology of Pakistan; or the sovereignty, integrity or security of Pakistan or morality or the maintenance of Public order; or defamed; or brought into ridicule the judiciary or Armed Forces, notwithstanding anything contained in Art. 66 or 69 of the Constitution---Proceedings of Assembly, though were protected under Art. 69, but to enjoy that immunity, such proceedings must fall wholly within the privileges of Assembly and it was certainly not the legal right or privilege of Assembly to out-step its own competence and jurisdiction laid down by Constitution---Question relating to title of a person to be a Member of House or to continue to sit therein, was not a question pertaining to the internal proceedings of the House, but a question affecting the constitution of the House and was not barred from inquiry by the Courts under Art.199 of the Constitution.

PLD 1970 SC 98 ref.

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

----Arts. 199 & 63---Constitutional petition---Disqualifications for Members of Majlis-e-Shoora---Reference to Chief Election Commissioner for disqualifying Member, Provincial Assembly and Speaker of Assembly---Grievance of petitioner was that Deputy Speaker had failed to perform his lawful duty by not forwarding his application to Chief Election Commissioner for disqualifying respondents/Member Provincial Assembly and Speaker of Provincial Assembly; without seeing as to whether allegations levelled in said reference application had made out a case of disqualification or not; and that it was for the Chief Election Commissioner to decide whether member against whom reference had been made, was disqualified to continue as Member of Assembly or not---Validity---Contention of petitioner was repelled in view of the fact that on submission of reference, it was for the Speaker and in his absence for the Deputy Speaker to take decision as to whether a "question" as contemplated under Art.63(2) of the Constitution had arisen---Speaker was not to act just as a Post Office to forward reference without application of mind for determining the question---Decision, in the present case, had already been taken by Deputy Speaker and he refused to make reference to Chief Election Commissioner---Such decision could not be said to be without jurisdiction---Constitutional petition being devoid of any merits, was dismissed, accordingly.

1995 MLD 1903 ref.

Nawaz Kasuri and Tariq Mehmood Butt for Petitioner.

Ch. Mumtaz Yousaf S.C., H. Shakil Ahmed and Manzoor Khan Jadoon for Respondents.

Date of hearing: 30th May, 2006.

P L D 2006 Supreme Court 1

Present: Iftikhar Muhammad Chaudhry, C.J., Khalil-ur-Rehman Ramday, Tassaduq Hussain Jillani and Ch. Ijaz Ahmed, JJ

SUO MOTU PETITION NO.11 OF 2005

Suo Motu Petition No. 11 of 2005, decided on 25th October, 2005.

(Petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan).

Punjab Prohibition of Dangerous Kite Flying Activities Ordinance (LIX of 2001)-

----Preamble---Punjab Local Government Ordinance (XIII of 2001), Ss.141, 142, 143, 144 & Fourth Schedule, Part II, Item 34---Constitution of Pakistan (1973), Arts. 9, 24, 184(3) & 204---Suo motu action under Art. 184(3) of the Constitution originating from an article appearing in a weekly, sent by a citizen with the request that on having gone through the said article, restriction be imposed on kite-flying as it was causing loss of billions of rupees of property as well as valuable human being---Validity---Held, Punjab Prohibition of Dangerous Kite Flying Activities Ordinance, 2001 did not fulfil certain requirements as indicated by Lahore High Court in the case M.D. Tahir, Advocate v. Government of Punjab reported as 2001 CLC 1180 and the result was that day by day the incidents of causing huge damages to the public property and life were increasing on account of kite-flying activity---Kite-flying activity, prima facie, was no more the activity of enthusiasm but a serious threat to the lives of innocent citizens---Laws so far applicable in the Province of Punjab, seemed to be insufficient to achieve the object---Provisions of Ss.141 & 142, Punjab Local Government Ordinance, 2001, if adhered to/enforced fully even then there was need of promulgating a stringent law, to nab those persons, who were directly or indirectly responsible for causing danger to the lives of innocent citizens, as well as the property owned by the individual and the company, responsible for supply electricity which involved denial of fundamental rights of the citizens, enshrined in Arts.9 & 24 of the Constitution and it would not be fair to allow kite-flying activity, at the cost of life of human being and property, owned by the Government institution or private individuals---Supreme Court in view of the situation created by kite-flying issued directions detailed hereinbelow.

Following were the directions issued by the Supreme Court while adjourning the matter for next hearing:

(i) Pending decision of the petition, the manufacturers/sellers of kites, kite-flying strings of all kinds, including the "sharp Maanjha", metallic wire and nylon cord, are restrained to indulge into this trade either manufacturing or selling in wholesale or in retail, on any business or open place, till the next date of hearing. Similarly, no one, whosoever he may be, is allowed to fly kites with "sharp Maanjha", metallic wire, nylon cord or any sort of string, during the period of operation of this order.

(ii) Inspector-General of Police (Punjab) and other Provinces with the assistance of Nazims/Naib Nazims, DCOs, Councillors of the District, Towns, Tehsils as well as Union Councils, shall ensure the compliance of this order in letter and spirit. However,. if anyone is found, violating the order, he shall be served with a notice by the concerned SHO of the Police Station, to appear before Supreme Court on the next date of hearing for facing the proceedings of contempt of Court and on having taken surety bonds from each of them in the sum of Rs.5,000, he or they shall be released. Photo-copy of the Identity Card of the contemner be also retained for the purpose of identification at the time of hearing of the case.

(iii) The alleged contemner, if any, shall be dealt with in accordance with the provisions of law of contempt of Court and if found guilty, shall be punished adequately.

(iv) The Inspector-General of Police (Punjab) and other Provinces shall transmit a report qua the incidents of violations of the order of the Court, to the Registrar of Supreme Court immediately, who shall issue notices to the violators forthwith, to appear and explain as to why action for contempt of Court may not be initiated against them. The cases of all such persons shall be fixed on the next date of hearing.

(v) If, in the meantime, any untoward incident takes place within the jurisdiction of a particular Police Station, the concerned SHO shall register a case against the persons, including the manufacturers and sellers of the kites and kite-flying strings, and after investigations, cases shall be forwarded against them before the Court of law, notwithstanding the fact that they may be facing the proceedings of violating the order of the Supreme Court.

(vi) The Chief Secretary of the Provincial Governments shall ensure necessary amendments, if needed, in the relevant laws, in the meantime, in order to make the existing laws viable for the purpose of controlling kite-flying activities, within the urban areas.

(vii) The owners/occupants of the houses, shops, hospitals, buildings, etc. shall not allow kite-flying activity on their roof-tops, failing which, they would also be liable for action of contempt of Court and the concerned SHO shall submit a report against them, as well, in the manner specified herein above.

(viii) The Kite-flying associations and the Provincial Government shall examine ways and means, jointly, to prevent the citizens from loss of life and property, in future.

(ix) The Provincial Governments shall give wide publication to the order of the Supreme Court through press and electronic media, so that every one may know that kite-flying -activity has been banned by the Supreme Court.

(x) The Chairman of Lahore Electric Supply Company shall submit a report indicating that how many trippings took place during the period of operation of present order and the quantum of loss, if sustained by it.

(xi) The Secretary, Health Department Government of Punjab is directed to examine, in the meantime, as to whether arrangements can be officially made for the treatment of young boy who lost his speaking power on account of incision on his throat with the kite-flying string, within or outside Pakistan. A report in this behalf shall be submitted by him on the next date of hearing.

Notice in the meantime, be issued through newspapers at the cost of Provincial Governments, to the manufacturers/sellers of kites, kite-flying strings of all kinds, including the "sharp Maanjha", metallic wire and nylon cord, to appear, if desired/advised, on the next date of hearing in support of their respective pleas. Notice to Nazims, Naib Nazims of the District, DCOs and Councillors be also issued through publication at the cost of' Provincial Governments.

Attorney General for Pakistan as well as Advocates-General of the Provinces be also requested to appear and assist the Supreme Court.

M.D. Tahir, Advocate v. Government of Punjab 2001 CLC 1180 and Shehla Zia v. WAPDA PLD 1994 SC 693 ref.

Shahid Hamid, Senior Advocate Supreme Court, M.Ismail Qureshi, Senior Advocate Supreme Court, Ahmer Bilal Sufi, Advocate Supreme Court and Muhammad Fahim Shehzad (On Court Notice).

Aftab Iqbal Chaudhry, A.-G. (Punjab), Dr. Danishwar Malik, Dy. A.-G. (Punjab) for Government of Punjab.

Javed Shaukat Malik, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Government of N.-W.F.P.

S.M. Masud, Advocate Supreme Court and Mahmood-ul-Islam, Advocate-on-Record for K.B. Traders.

Muhammad Akram Arain, Chief Executive (WAPDA) for WAPDA.

Muhammad Afzal Sindhu, Advocate Supreme Court and Haji M. Qayyum Mazhar, Advocate-on-Record for Faisalabad Kite Flying Association.

Date of hearing: 25th October, 2005.

P L D 2006 Supreme Court 15

Present: Javed Iqbal and Tassaduq Hussain Jillani, JJ

Mst. NUSRAT ZOHRA --- Petitioner

Versus

Mst. AZHRA BIBI and others---Respondents

Civil Petition No. 1343 of 2003, decided on 27th September, 2005.

(On appeal from the judgment dated 18-3-2003 of the Lahore High Court, Lahore, passed in C. R. No. 1094-D of 1995).

(a) Islamic law---

----Gift---Donor, power of---Preferential gift, a transaction termed as Zulm---Donor made gift of his all property in favour of his two daughters from one wife, while plaintiff being his daughter from other wife was excluded out of his property---Donor appeared in Court as witness in favour of donee daughters and stated that no gift was ever made in favour of plaintiff daughter---Suit-land was gifted to donees who accepted the same and possession of the land was also handed over to them---Trial Court dismissed the suit but Appellate Court allowed the appeal of plaintiff, which judgment was set aside by High Court in exercise of revisional jurisdiction and the suit was dismissed---Plea raised by plaintiff was that preferential gift in favour of two daughters by her father, while depriving her from the property, was an act of Zulm---Validity---Authenticity and genuineness of the statement of donor could not be questioned because the gift was neither vague nor uncertain---Preferential gift made in favour of one or two by donor in his lifetime could not be termed as 'void'---Legal heir could not challenge validity of gift by her ancestor during lifetime of donor---There was no question of Zulm in the gift made by donor excluding plaintiff, because donor had divorced mother of plaintiff who after her abduction, had contracted second marriage, which prompted donor to deprive plaintiff from his property---One might not agree with the reasoning of donor but it could not be questioned by anybody including the legal heirs and it was enough that the donor himself was satisfied---Donor was entitled to gift whole of his property to one of his legal heirs and no bar had been imposed under Islamic Law---Judgment and decree passed by High Court did not call for any interference---Leave to appeal was refused.

Noor Muhammad Khan v. Habibullah Khan PLD 1994 SC 650 fol.

(b) Islamic Law---

---Gift---Donor, powers of---Scope---Muslim donor has vast powers to alienate his property by way of gift during his lifetime, subject to one condition that he should be in proper state of health and gift is made at his own without any coercion or inducement---Powers of a Muslim to dispose of his property by way of gift are unfettered---Gift cannot be invalidated only because the heirs are deprived of their shares, but where material facts are concealed by donee, such gift can be declared invalid on such account---Policy of Islamic Law appears to be to prevent a testator interfering by Will with the course of devolution of property according to law among his heirs, although he may give a specified portion, as much as one third to a stranger, but it also appears that a holder of property may, to a certain extent, defeat the policy of law by giving in his lifetime the whole or any part of his property to one of his sons, provided he complies with certain forms.

Muhammad Bashir v. Allah Ditta 1994 SCMR 1870; Durr-u1-Mukhtar, p.636, Fatawai Alamgiri, IV, p.545; Zahida Khanum v. Rifat Ullah Khan 1986 MLD 1462; Muhammad Bashir v. Allah Ditta 1994 SCMR 1870; Hussain Bibi v. Aisha Bibi 1981 CLC 962; Saima Khatoon v. Manzar Hussain 1993 MLD 1542; Sardar Ahmad Khan v. Zamroot Jan PLD 1950 Pesh. 45; Khajooroonissa v.Rowshan Jehan (1986) 2 Cal. 184, 197, 3 IA, 291, 307; Chaudhry Mehdi Hassan v. Muhammad Husan (1905) 28 All. 439, 449, 33 IA 68, 75, Sadik Husain v. Hashim Ali (1916) 43 IA 212, 221, 38 All. 627, 645-646, 36 IC 104 and Lala v. Rasula (57) A.J. & K 3 rel.

(c) Islamic Law---

----Gift---Preferential gift---Scope---No prohibition has been laid down under Islamic Law that a preferential gift cannot be made, though a few jurists are of the view that it was not prohibited, yet such act can be considered as `sinful'.

Shamshad Ali Shah v. Hassan Shah PLD 1964 SC 143; Muhammad Mumtaz Ahmad v. Zubaida Jan and others 1888-89) 16 IA 205 (PC); ILR 16 All 460 (PC) and Nawab Muhammad Sadiq Ali Khan v. Nawab Fakr Jehan Begum AIR 1932 PC 13 ref.

Hafiz Saeed Ahmad Sheikh, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 27th September, 2005.

P L D 2006 Supreme Court 24

Present: Iftikhar Muhammad Chaudhry, C.J., M. Javed Buttar and Syed Jamshed Ali, JJ

MUHAMMAD JAMIL---Petitioner

Versus

MUNAWAR KHAN and others---Respondents

Civil Petition No.2483 of 2005, decided on 30th September, 2005.

(On appeal from the order passed by Peshawar High Court, Peshawar in W.P. No. 1624 of 2005 dated 23-9-2005).

(a) North-West Frontier Province Local Government (Conduct of Elections) Rules, 2005---

----R. 12(4), Form XIX---Constitution of Pakistan (1973), Art. 185(3) ---Election of District Nazim---Declaration of assets by the candidate---Candidate submitted his nomination papers along with Form XIX under R.12(4), N.-W.F.P. Local Government (Conduct of Elections) Rules, 2005 meant for declaration of assets---Returning Officer, on the day of scrutiny of papers, obtained a fresh declaration from the candidate containing details, of assets owned by him and nomination papers submitted by the candidate were accepted---One of the voters presented appeal before the District Returning Officer stating that the previous Form XIX filed with the nomination papers was considered incomplete by the Returning Officer only on the ground that the candidate had not stated his income from a Sugar Mill mentioned at S.No.4 of the Form and position of subsequently filed Form XIX was the same---Validity---Held, Returning Officer was empowered to reject a nomination form on conducting summary enquiry and he had no jurisdiction to allow a candidate to submit further explanation of the assets owned by him during the process of scrutiny---Such concession, if extended to a candidate, would tantamount to allowing him an opportunity to make up deficiency, if any, in submitting nomination papers---Essentially such concession could not be extended to candidate after the expiry of the date for filing of nomination papers, as it would mean that period of filing nomination papers along with Declaration Form XIX had been extended to the benefit of the candidate, which was prohibited in law---Returning Officer had no jurisdiction to procure fresh Declaration Form XIX from the, candidate---Such Form, to all intents and purposes, ought to be kept out of consideration---Principles.

Bindra's 7th Edn. 1984 p.678 and Dr.Haq Nawaz v. Balochistan Public Service Commission and others 1996 CLC 58 ref.

(b) Interpretation of statutes---

----Statutory directions to individuals---Principles---When a statute directs things to be done by a private person within specified time and makes his rights dependent on proper performance thereof, unless the failure, to perform in time may injure the public or individuals, the statute is mandatory---When an individual is the person not complying, he has no grounds for complaint---Under statutes of procedure, failure to complete required steps within the time specified, is fatal to the case.

Bindra's 7th Edn. 1984 p.678 and Dr.Haq Nawaz v. Balochistan Public Service Commission and others 1996 CLC 58 ref.

(c) North-West Frontier Province Local Government (Conduct of Elections) Rules, 2005---

----Rr. 12(4), Form XIX & 14(3)(iii)---Election of District Nazim---Declaration of assets by the candidate, submission of---Where the candidate, who was Chief Executive of a Sugar Mill, had mentioned the approximate value of the Sugar Mill in the Form XIX, but did not mention his net yearly income in the relevant column except for the year 1998, no other inference could be drawn except that he concealed his income arising from the share owned by him without any justification---Nomination papers of such candidate were liable to be rejected under R.14(3)(iii) of N.-W.F.P. Local Government (Conduct of Elections) Rules, 2005---District Returning Officer/Appellate Authority, in appeal had rightly intervened in the order of the Returning Officer by which he had accepted the nomination papers of the said candidate---Supreme Court directed the Election Commission to delete the name of the candidate from the list of persons contesting election for the office of District Nazim.

Abbas Khan and another v. Appellate Authority, District and Sessions Judge Attock and others 2002 SCMR 398 ref.

Wasim Sajjad, Senior Advocate Supreme Court, Abdul Latif Yousafzai, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Qazi Muhammad Anwar, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondents.

Date of hearing: 30th September, 2005.

P L D 2006 Supreme Court 30

Present: Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ

MANJEET SINGH---Petitioner

Versus

THE STATE---Respondent

Criminal Petitions Nos.529 to 531 of 2003, decided on 18th August, 2005.

(On appeal from the judgments of Lahore High Court, Lahore, dated 27-12-2001 passed in Criminal Appeals Nos. 1054/1991, 68-J/1991 and 107-J/1991 respectively).

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

----S. 164---Confession---Conviction on retracted confession---Guidelines---Court should be very careful in ascertaining the true character of the confession for conviction and must consider the reasons given for retraction of the confession to find out the truth in such reasons before making use of the confession for conviction.

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

---S. 164---Confession---Retracted confession---Validity---Retracted confession either judicial or extra-judicial, if found truthful and confidence inspiring and also qualified the test of voluntariness, can be used for conviction without looking for any other sort of corroboration.

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

----S. 164---Confession---Retracted confession---Conviction on retracted confession---General rule---Not prudent to base the conviction in a criminal case only on the strength of retracted confession without independent corroboration in necessary particulars---Court is under obligation to inquire into all the material points and surrounding circumstances to satisfy itself regarding the truthfulness and voluntariness of the confession, but it is not an inflexible rule that retracted confession cannot be made basis of conviction without independent corroboration, rather the rule of corroboration is a rule of abundant caution which is insisted only to exclude any possibility of doubt qua the guilt of a person---Retracted confession can be legally taken into consideration against the maker, if it is found true and voluntary and can also be used as sole evidence for conviction without any corroboration, if the Court is satisfied about its voluntary character and truthfulness.

The State v. Minhum PLD 1964 SC 813 ref.

(d) Explosive Substances Act (XI of 1908)---

----S. 3---Penal Code (XLV of 1860), Ss.302 & 307---Constitution of Pakistan (1973), Art. 185(3)---Appreciation of evidence---Prosecution in addition to the judicial confession of the accused also relied upon the ocular account of the injured witnesses, the Magistrate who recorded the statement of the accused and the Army Officer who initially interrogated him and produced him before the Magistrate---Accused, however, had subsequently retracted the judicial confession in his statement made under S.342, Cr.P.C. before the Trial Court---Accused having the exclusive knowledge of the facts relating to the occurrences in which he caused bomb blasts, had disclosed the same in his confessional statement, when he was brought before the Magistrate from the, custody of an Intelligence Battalion of Pakistan Army and not from the custody of the police and since his involvement in the cases came to the notice of police subsequent to the recording of his statement by the Magistrate, therefore, there would be no possibility of the confessional statement being tutored---Accused did not lodge any complaint of torture or coercion before the Magistrate or the Trial Court at any stage and also did not complain that prior to recording his statement he was kept in illegal custody, instead he denied to have made a confession or that he was produced before a Magistrate -Mere such denial of the accused would neither effect the admissibility of the confessional statement nor reduce its evidentiary value---Objection regarding the delay in recording the confessional statement, similarly, would be of no significance as in such cases of terrorism, availability of direct evidence would not be possible and the delay would not be fatal if the confession was found true and voluntary---Confessional statement made by accused was based on truth which he had made willingly and voluntarily without any outside pressure, influence or coercion-- Subsequent retraction of the confession by the accused at the trial, therefore, was not sufficient to disbelieve the confession or doubt its truthfulness to exclude the same from consideration---Oral testimony of eye-witnesses who were victims of the occurrences as well as circumstantial evidence of recovery of fake Pakistani I.D. Card from the accused and the motive of terrorism through subversive activities to achieve the evil design of creating unrest in Pakistan resulting in death of number of innocent persons caused in brutal manner, had sufficiently affirmed the truthfulness of the confessional statement of the accused and had not only reasonably but strongly suggested his involvement in the crime---Name of the accused being "Surjeet Singh" or "Manjeet Singh" did not have any significance, as he admittedly being an Indian national was arrested as suspect from the territory of Pakistan and on production before a Magistrate had given full details of the terrorist activities committed by him in Pakistan and substitution which was otherwise a rare phenomenen, was not possible---Accused, no doubt, was stranger to the witnesses, but in view of the peculiar circumstances of the case and his exclusive knowledge of the facts regarding bomb explosions mentioned by him in his statement, the question of his identification was immaterial and of no significance---Witnesses who had sustained injuries in the occurrences and claimed identification of accused in the Court, were not shown to have any personal motive to make a false statement against him---No element of bias or malice could even be pointed out of the Army or Police Officer who interrogated the accused or the Magistrate who recorded his, confessional statement---Accused, thus, was proved to be responsible for causing bomb blasts in the cases in which a number of innocent persons had lost their lives and many had sustained injuries---Accused an agent of an Indian Intelligence Agency, had committed the subversive acts secretly at the behest of a hostile country with the object and motive to destabilize Pakistan by creating unrest and causing harassment among the public through terrorism---Neither any direct evidence could be available nor it would be fair to expect such evidence in such a case of subversive activities to maintain conviction---Act of accused was not only an act of terrorism at the national level rather it was an act of international terrorism, the object of which was to disrupt and destroy the national life of the people of Pakistan and he by committing this heinous offence had not only caused loss of life and property of innocent persons but also made an attempt to damage the national integrity and stability of Pakistan---Accused, therefore, did not deserve any leniency in the matter of sentence---In a case of terrorism or subversive activities if the charge stood proved, there was no justification to withhold the maximum sentence of death provided under the law---Leave to appeal was refused to accused in all the three petitions accordingly.

The State v. Minhum PLD 1964 SC 813; Shankaria v. State of Rajasthan AIR 1978 SC 1399; Shankaria v. State of Rajasthan AIR 1978 SC 1248 and Sarwan Singh v. State of Punjab PLD 1957 SC(Ind.) 555 ref.

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

----S. 164---Confession---Conviction on retracted confession---Where the accused while retracting his confession did not say that he was tutored by police to make the confession, but only stated that he made it under compulsion and threat and was false and a perusal of the confessional statement would show that, prima facie, there was nothing improbable or unbelievable in it; that it appeared to be a spontaneous account studded with such vivid details about the manner of the commission of the crimes in question, which only the perpetrator of the crimes could know, and the confession received assurance in several material particulars from reliable independent evidence mainly of circumstantial character---Held, the confession coupled with the other evidence on the record had unerringly and indubitably brought home the charges to the accused.

Shankaria v. State of Rajasthan AIR 1978 SC 1248 ref.

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

----S. 164---Confession---Retracted confession---Corroboration not always necessary for conviction---No rule of criminal administration of justice existed to the effect that the Court having found the retracted confession voluntary and true must look for the corroboration and that in absence of corroborative evidence conviction cannot be maintained---Retraction of a judicial or extra-judicial confession itself is not an infirmity to be considered sufficient to withhold the conviction, because the evidentiary value of a confession is not diminished by the mere fact that it was retracted by the maker at the trial---Independent corroboration from other source direct or circumstantial, therefore, cannot be insisted in every case as a mandatory rule, rather the rule of corroboration is applied by way of abundant caution and in a case depending entirely on the confessional statement of a person or only on the circumstantial evidence, this rule is applied more cautiously.

?

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

----Art. 185(3)---Criminal Procedure Code (V of 1898), S.164---Petition for leave to appeal---Scope---Question whether confession was true and voluntary or not is necessarily a question of fact and in a petition for special leave to appeal normally neither such question of fact is open to be raised before the Supreme Court nor the conviction and sentence based upon concurrent finding of fact, is interfered unless it is shown that such finding was vitiated by error of law or the conclusion of facts drawn at by the lower Courts was patently opposed to the well-established principles of judicial approach and criminal administration of justice which would be considered as wholly unjustified and perverse.

?

Sarwan Singh v. State of Punjab PLD 1957 SC (Ind.) 555 ref.

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

----S. 164---Confession---Test for truthfulness of confession---Confession must not only be voluntary but it must also be true and to ascertain its truthfulness it is necessary to examine and compare the confession with the rest of the prosecution evidence to exclude any possibility or probability of any doubt qua its true character.

?

(i) Explosive Substances Act (XI of 1908)---

----S. 3---Penal Code (XLV of 1860), S.302---Sentence---Question of sentence is always determined in the light of the nature of the offence and the circumstances under which the offence was committed, but in case of terrorism or subversive activities if the charge is proved, there would be no justification to withhold the maximum sentence provided under the law for such offences as the concept of lesser punishment on the basis of mitigation has no place in such cases of terrorism.

?

Rana Abdul Hameed, Advocate Supreme Court for Petitioner.

Ms. Afshan Ghazanfar, A.A.-G. Punjab (on Court call).

Date of hearing: 18th August, 2005.

P L D 2006 Supreme Court 51

Present: Iftikhar Muhammad Chaudhry and Hamid Ali Mirza, JJ

KACHKOL KHAN---Petitioner

Versus

HAYA KHAN and another---Respondents

Criminal Petition No.33-P of 2000, decided on 23rd June, 2005.

(On appeal from the order dated 29-3-2000 in Criminal Miscellaneous No.87 of 1999 passed by the Peshawar High Court, Peshawar).

(a) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)---

----S. 7---Criminal Procedure Code (V of 1898), S.561-A---Constitution of Pakistan (1973), Art.185(3)---High Court in exercise of its inherent power under S.561-A, Cr.P.C. had refused to interfere in the order of acquittal passed by the Special Judge under the Suppression of Terrorist Activities (Special Courts) Act, 1975---Validity---Private complainant under the law could not invoke the jurisdiction of High Court under S.561-A, Cr.P.C. to avail alternate or substitute remedy for what had been denied by law---Petition under S.561-A, Cr.P.C. for the purpose of interfering in the acquittal order passed by Special Judge under the Suppression of Terrorist Activities (Special Courts) Act, 1975, was not maintainable---Impugned order of High Court having been based on law did not suffer from any infirmity---Leave to appeal was refused by Supreme Court accordingly.

Faizur Rehman v. The State and others PLD 2002 Pesh. 6 ref.

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

----S. 561-A---Suppression of Terrorist Activities (Special Courts)'Act (XV of 1975), 5.7---Inherent jurisdiction of High Court---Scope---Order of acquittal---Petition under S.561-A, Cr.P.C. against an order of acquittal passed under the Suppression of Terrorist Activities (Special Courts) Act, 1975, is not maintainable.

Faizur Rehman v. The State and others PLD 2002 Pesh. 6 ref.

Khalid Khan, Advocate Supreme Court for Petitioner.

Hamid Farooq Durrani, A.-G., N.-W.F.P. for Respondents.

Date of hearing: 23rd June, 2005.

P L D 2006 Supreme Court 53

Present: Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday and Muhammad Nawaz Abbasi, JJ

GHULAM FARID alias FARIDA---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.327-L of 2003, decided on 30th March, 2005.

(On appeal from the judgment dated 5-3-2003 of the Lahore High Court, Multan Bench passed in Criminal Revision No. 160 of 1999).

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

----S. 345(2)---Compromise as a mitigating circumstance---Scope---Courts at all levels, without any legal impediment, while deciding the criminal cases on merits in the regular proceedings, can consider the compromise of an offender with the victim or his legal heirs as a mitigating circumstance for the purpose of awarding sentence in a non-compoundable offence, but after final disposal of a criminal matter Courts cannot assume jurisdiction to re-open the case on merits in collateral proceedings arising out of miscellaneous application.

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

----Ss. 396, 412, 309, 310, 338-E & 338-F---Criminal Procedure Code (V of 1898), S.345---Constitution of Pakistan (1973), Arts.187 & 185(3)---Compounding an offence by Court which is non-compoundable in statutory law in the light of concept of forgiveness in Islam, on the basis of compromise---Feasibility---Accused had been sentenced to death under S.396, P.P.C. and to ten years' R.I. under 5.412, P.P.C. by the Trial Court and he had lost his case on merits up to Supreme Court in regular proceedings---Accused moved an application to the Court of first instance for his acquittal on the basis of his compromise with the legal heirs of the deceased wherein he also made an alternate prayer of reduction in sentence---Question was as to whether the Court on the basis of the compromise of the accused with the legal heirs of the deceased could compound the offence under S.396, P.P.C. which was non-compoundable in statutory law in the light of concept of forgiveness in Islam---Two kinds of punishment existed in Islam i.e. "Hadd" and "Tazir"---Punishment of Hadd was in the Will of God, whereas any other punishment was called Tazir---Islam recognized the concept of deterrent punishment and also the theory of Tazir---Islam also recognized the concept of detrimental punishment and also the theory of repetence for the purpose of reformation and preservation of society and in the light of this concept the offences in the Islamic Penal Laws were also divided into two categories namely compoundable and non-compoundable offences either punishable as Hadd or Tazir---Offences which were compoundable in Islam had also been made compoundable under the statutory law and in compoundable offences it was permissible for the Courts to give effect to the compromise between the parties at any stage of the proceedings before or after the final conclusion of the matter whereas a compromise in non-compoundable offences could not be given legal cover at any stage---Offence of murder punishable with death under S.302(a), P.P.C. as Qisas and under S.302(b), P.P.C. as Tazir was compoundable under the law, but the murder committed during the course of committing dacoity punishable with death under S.396, P.P.C. was not compoundable ---Ayat Nos. 178 and 179 of Surah Baqara of the Holy Qur'an also revealed that there was no conflict of the statutory law with the law of Islam regarding forgiveness, as the offence under S.302, P.P.C. and offence under. S.396, P.P.C. were entirely different and distinct offences---Offence of dacoity was not compoundable either under Islamic law or under the statutory law of the Country---Concept of right of "Afw" and "Badal-e-Sulh" in a case of Qatl-i-Amd punishable under S.302(a), P.P.C. as Qisas can also be exercised with permission of Court in a case in which punishment of death is awarded as Tazir under S.302(b), P.P.C., but the concept of "Afw" and "Badl-e-Sulh" under the existing law had not been made applicable to a case under S.396, P.P.C. in which death was awarded for murder taken place during the course of committing dacoity---Court, thus, could not competently give effect to a compromise in a non-compoundable offence against the policy of law---Notwithstanding the pardon given by the legal heirs of the deceased to the accused who had been awarded death sentence under S.396, P.P.C. he could not avail the benefit of Ss.309 and 310, P.P.C. read with S.338-E, P.P.C. as the same could not be made applicable to give effect to a compromise in a non-compoundable offence under the law---Court in the matter of interpretation and application of the provisions of Chap XVI, P.P.C. in respect of the offences mentioned therein or the matters ancillary or akin thereto could seek guidance from the Holy Qur'an and Sunnah as provided in S.338-F, P.P.C. but it could not bring a non-compoundable offence within the purview of S.345, Cr.P.C. by virtue of S.338-F, P.P.C.---Supreme Court while upholding the judgment of High Court whereby conviction and sentence of accused were maintained, had already dismissed the petition for leave to appeal---Present petition had arisen out of the proceedings in a miscellaneous application moved by the accused for his acquittal on the basis of his compromise with the legal heirs of the deceased, therefore, in these proceedings High Court could not possibly re-open the case on merits in exercise of its powers under S.561-A, Cr. P.C.---Supreme Court also was not supposed to undertake such an exercise under Article 187 of the Constitution and consider the question relating to the quantum of sentence on the basis of compromise between the parties in such a heinous offence, which was considered a crime against the society---Compromise between the parties could not be treated a mitigating circumstance for the purpose of lesser punishment---Leave to appeal was declined to accused accordingly.

Al-Qur'an Ayat Nos.178 & 179 of Surah Al-Bagar; Muhammad Bashir v. State PLD 1982 SC 139 and Muhammad Rawab v. State 2004 SCMR 1170 ref.

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

---S. 345---Compounding of offences---Scheme and scope---Tabulation of the offences as made under S.345, Cr.P.C. being unambiguous remove all doubts and uncertainty and must be taken as complete and comprehensive guide for compounding the offences---Legislature has laid down in this section the test for determining the classes of offences which concern individuals only as distinguished from those which have reference to the interests of the State---Courts of law cannot go beyond the said test and substitute their own test for it---To compound non-compoundable offence is against public policy, keeping in view the state of facts existing on the date of application to compound---No offences shall be compounded except where the provisions of S.345, Cr.P.C. are satisfied as to all matters mentioned therein.

Muhammad Rawab v. State 2004 SCMR 1170 ref.

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

----S. 338-F---Interpretation---Court, in the matter of interpretation and application of provisions of Chap. XVI, P.P.C. in respect of the offences mentioned therein or the matters ancillary or akin thereto, can seek guidance from the Holy Qur'an and Sunnah as provided in S.338-F, P.P.C. but it cannot bring a non-compoundable offence within the purview of S.345, Cr.P.C. by virtue of S.338-F, P.P.C. for the purpose of compounding it on the basis of compromise.

(e) Interpretation of statutes---

----Court can interpret the provisions of law but cannot change or substitute such provisions and also cannot go beyond the wisdom of law.

Qazi M. Salim, Senior Advocate Supreme Court for Petitioner.

Nasir Saeed Shiekh, D.A.-G., Aftab Iqbal Ch. A.-G. Punjab, Ms. Afshan Ghazanfar, A.A.-G., Syed Sajjad Hussain Shah, A.A.-G., Isa Khan, Addl. A.-G. N.-W.F.P., and Raja Abdul Ghafoor, Advocate Supreme Court on behalf of A.-G. Sindh for the State.

Date of hearing: 30th March, 2005.

P L D 2006 Supreme Court 61

Present: Iftikhar Muhammad Chaudhry, C.J., M. Javed Buttar and Hamid Ali Mirza, JJ

GHULAM QADIR---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.55 of 2005, decided on 12th October, 2005.

(On appeal from the judgment dated 3-1-2005 passed by Balochistan High Court in CNS Appeal No.238 of 2004).

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

----S. 9(c)---Constitution of Pakistan (1973), Art. 185(3)---Poppy Flowers weighing 320 kg. packed in eight sacks were allegedly recovered from the vehicle being driven by the accused---Presence of the accused being a driver of the vehicle was not denied---Not possible that the accused who was driving the vehicle would have no knowledge about the recovered articles lying openly in eight sacks on the roof of the vehicle---Accused could not be absolved from the responsibility if the contraband items were being transported openly on the roof of the vehicle being driven by him---Contradiction in the stance taken by the prosecution in the initial and subsequent stages of the case regarding recovery of the Poppy Flowers was immaterial as the same were found lying on the roof of the vehicle and the technicality was not sufficient to acquit the accused---Courts in such like cases were supposed to dispose of the matter with dynamic approach, instead of acquitting the drug paddlers on technicalities---Leave to appeal was refused to accused in circumstances.

Muhammad Shah v. State PLD 1984 SC 278; Said Shah v. State PLD 1987 SC 288; Nadir Khan v. State 1988 SCMR 1899; Shehrzada v. State 1993 SCMR 149; Shah Wali & another v. The State PLD 1993 SC 32; Rab Nawaz v. The State PLD 1994 SC 858; Ikram Hussain v. The State 2005 SCMR 1487; 1993 SCMR 785 and PLD 1996 SC 305 ref.

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

----S. 9(c)---Appreciation of evidence---Driver's responsibility regarding the narcotics being carried in his vehicle---Driver cannot be absolved from the responsibility if the contraband items are being transported openly on the roof of the vehicle driven by him.

Muhammad Shah v. State PLD 1984 SC 278; Said Shah v. State PLD 1987 SC 288; Nadir Khan v. State 1988 SCMR 1899; Shehrzada v. State 1993 SCMR 149; Shah Wali & another v. The State PLD 1993 SC 32; Rab Nawaz v. The State PLD 1994 SC 858 and Ikram Hussain v. The State 2005 SCMR 1487 ref.

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

----S. 9(c)---Appreciation of evidence---No acquittal on technicalities---Courts in such like cases are supposed to dispose of the matter with dynamic approach, instead of acquitting the drug paddlers on technicalities.

1993 SCMR 785 and PLD 1996 SC 305 ref.

Tariq Mehmood, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 12th October, 2005.

P L D 2006 Supreme Court 66

Present: Iftikhar Muhammad Chaudhry, C.J., Rana Bhagwandas and Falak Sher, JJ

JAVAID IQBAL---Appellant

Versus

ABDUL AZIZ and another---Respondents

Civil Appeals Nos. 153 and 154 of 2000, decided on 30th September, 2005.

(On appeal from judgment of Lahore High Court, Lahore dated 24-11-1997 passed in Civil Revisions Nos. 856 and 857 of 1991).

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

----Ss. 12 & 42---Civil Procedure Code (V of 1908), O.VI, R.17---Constitution of Pakistan (1973), Art.185 (3)---Leave to appeal was granted by Supreme Court to consider; whether a suit for declaration seeking ownership was competent on the basis of an agreement to sell; whether form of suit was a technical one and could the same be converted into a suit for specific performance of contract; and whether in absence of any prayer by respondents to convert the suit for declaration into one for specific performance without seeking any `amendment for twelve years, could High Court order such conversion.

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

----Preamble & S.151---Object of the Code---Civil Procedure Code, 1908, was enacted to regulate the proceedings before Civil Courts---Provisions contained in Civil Procedure Code, 1908, are mainly rules of procedure---All procedural laws are subservient to the cause of justice and, therefore, such laws neither limit nor control the power of Court to pass an order or decree, which is necessary to do complete justice in the facts and circumstances of the case---Construction of procedural law in a manner, which tends to obstruct the course of justice, must be avoided as far as possible---Authors of Civil Procedure Code, 1908, were fully conscious of the underlying object of procedural law and in all probability, in order to remove and dispel all doubts in such regard, categorically provided in S.151 in Civil Procedure Code, 1908 that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of process of the Court.

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

----Ss. 12 & 42---Transfer of Property Act (IV of 1882), S.53-A---Civil Procedure Code (V of 1908), O. VI, R.17 & O.VII, R.7---Agreement to sell---Part performance of agreement---Transfer of possession---Relief not prayed for---Plaintiffs entered into agreement to sell of suit land with defendant, made the payment and took over the possession, thereafter raised construction over the suit land---Suit for declaration was filed by plaintiffs on the ground that their names appeared in record of rights and they were owners in possession--, Suit and appeal were dismissed by Trial Court and Appellate Court on the ground that agreement to sell did not create any right, title or interest in immovable property---High Court in exercise of revisional jurisdiction set aside the concurrent judgments of two Courts below and remanded the case to Trial Court with a direction to treat the suit of plaintiffs as one for specific performance of agreement to sell and also directed to allow necessary amendments---Plea raised by defendant was that in absence of written prayer for conversion of relief in the suit on the part of plaintiffs, High Court could not grant such relief---Validity---High Court, in revision was justified in observing that the suit could not fail merely for the reason that some relief which was available had not been claimed---High Court was also justified in observing that the suit could not have been dismissed on account of any defect in its form---Plaintiffs having had passed on total sale consideration and obtained possession in part performance of sale, they were entitled to full protection of their possession within the contemplation of S.53-A of Transfer of Property Act, 1882---Both the Courts below had failed to take into account the legal impact and effect of the provisions contained in S.53-A of Transfer of Property Act, 1882, and the provisions of Civil Procedure Code, 1908, providing sufficient mechanism for doing complete justice---Present case a fit one for exercise of jurisdiction under O.VI, R. 17, O. VII, R.7 C.P.C. and S.151 C.P.C. rather than attaching much importance to defective drafting of plaint and prayer clause---High Court being a Court of record with powers of supervision and correction of orders passed by lower Courts, was not helpless, in appropriate cases, to pass such order, in order to do substantial justice and to advance the cause of justice---Supreme Court declined to interfere in the judgment and decree passed by High Court---Appeal was dismissed.

Karimdad v. Arif Ali PLD 1978 Lah. 679; L.T. Muddu Krishana v. Lalitha Ramchandra Rao AIR 1997 SC 772; Ahan Saz Contractors v. Pak. Chromical Limited 1999 MLD 1781; Keramat Ali v. Muhammad Yunus PLD 1963 SC 191; Ahmed Din v. Muhammad Shafi PLD 1971 SC 762 and Shabir Ahmed v. Khushi Muhammad 1993 CLC 2316 ref.

Muhammad Zahoor Ali Khan v. Mst. Thakooranee Rutta Koer 11 MIA 468; Jankirama Iyer v. Nilakanta Iyer AIR 1962 SC 633; Bhagwati v. Chandramaul AIR 1966 SC 735; Ahmad Din v. Muhammad Shafi PLD 1971 SC 762; Manager, Jammu and Kashmir, State Property v. Khuda Yar PLD 1975 SC 678; Amina Begum v. Ghulam Dastgir PLD 1978 SC 220; Samar Gul v. Central Government PLD 1986 SC 35; Mir Mazar v. Azim PLD 1993 SC 332; Shabbir Ahmad v. Khushi Muhammad 1993 CLC 2316; Lachman Das v. Servanand 1995 SCMR 435; Province of Punjab v. Abdul Majeed 1997 SCMR 1692; Barkat Ali v. Muhammad Ehsan 2000 SCMR 556 and Kashi Parsad v. Banshidhar AIR 2001 Maddhya Pradesh 185 rel.

Malik Muhammad Qayyum, Advocate Supreme Court and Chaudhry Akhtar Ali, Advocate-on-Record for Appellant.

Muhammad Munir Peracha, Advocate Supreme Court for Respondents.

Date of hearing: 3rd May, 2005.

P L D 2006 Supreme Court 78

Present: Iftikhar Muhammad Chaudhry, C. J. M. Javed Buttar and Hamid Ali Mirza, JJ

SHAUKAT ALI and another---Petitioners

Versus

DISTRICT RETURNING OFFICER and another---Respondents

Civil Petition No. 1532-L of 2005, decided on 12th October, 2005

(On appeal against the judgment dated 5-8-2005 passed by the Lahore High Court, Lahore in Writ Petition No. 14204 of 2005).

Punjab Local Government Ordinance (XIII of 2001)---

----S. 152(1)---Constitution of Pakistan (1973), Art. 185(3)---Qualification of candidate---Sanad of Deeni Madrissa---Doctrine of throw away votes'---Applicability---Despite objection to the educational qualification of petitioner, he was allowed to contest election, and was declared as returned candidate but Election Authority was directed not to publish his result---Plea raised by the petitioner was that his Sanad of Deeni Madrissa was equal to matriculation certificate---Contention of respondent was that after disqualification of the returned candidate, the candidate having second highest votes be declared as returned candidate ---Validity ---Madrisa from where Sanad had been obtained by petitioner, was not recognized by University Grants Commission as per its notifications issued from time to time, therefore, petitioner was not qualified to contest election as his academic qualification was not equivalent to matriculation in accordance with the provisions of S. 152(1)(e) of Punjab Local Government Ordinance, 2001---Respondent, who had secured second highest votes could not be declared as successful candidate, as disqualification of the petitioner was not notorious---Doctrine ofthrow away votes' would not be applicable---Election as a whole of the constituency was declared bad---Supreme Court directed Election Commission to take steps to conduct fresh election for the seat, in accordance with law---Petition for leave to appeal was disposed of in said terms.

Sh. Amjad Aziz v. Haroon Akhtar Khan and others 2004 SCMR 1484 ref.

S.M. Masood, Advocate Supreme Court for Petitioners.

Muhammad Aslam Ulan, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondents.

Date of hearing: 12th October, 2005.

P L D 2006 Supreme Court 81

Present: Justices Abdul Hameed Dogar, Chairman, Mian Shakirullah Jan, Raja Fayyaz Ahmad, Dr.Allama Khalid Mahmud and Dr. Rashid Ahmed Jullundhari, Members

SHAUKAT ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.38(S) of 2003, decided on 2nd December, 2005.

(On appeal from the judgment dated 29-3-2002 of the Federal Shariat Court, Bench at Lahore, passed in Criminal Appeal No.39-L of 2002).

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

----S. 10(2)---Constitution of Pakistan (1973), Art.203-F---Reappraisal of evidence---Allegation of offence of Zina---Burden of proof---Mere fact that the lady who was allegedly subject to Zina became pregnant and gave birth to a baby and after four days she expired would not, by itself, ex facie prove the commission of Zina by the accused---Burden to prove commission of Zina always lay upon the prosecution which, in the present case, it had failed to prove---Proceedings were initiated after the death of the lady---Considering the fact that an attempt to miscarriage foetus was also done at the instance of the accused was also not proved by the prosecution beyond reasonable doubt---No cogent evidence was available on record to establish the allegation, against the accused---Shariat Appellate Bench of the Supreme Court allowed appeal of the accused giving him benefit of doubt and was ordered to be acquitted.

Nemo for Appellant.

Muhammad Zaman Bhatti, Advocate Supreme Court for the State.

Date of hearing: 2nd December, 2005.

P L D 2006 Supreme Court 84

Present: Rana Bhagwandas, Mian Shakirullah Jan and Hamid Ali Mirza, JJ

MUHAMMAD AFZAL---Petitioner

Versus

MATLOOB HUSSAIN and others---Respondents

Civil Petition No.178 of 2003, decided on 30th September, 2005.

(On appeal from the judgment dated 15-10-2002 passed by the Lahore High Court, Rawalpindi Bench in Civil Revision No.170 of 1992).

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

----S. 52---Record of rights---Presumption of correctness---Scope---Party having more reliable and authentic document in form of decree of the Court stood on a stronger footing and presumption of correctness was successfully rebutted---Principles.

According to section 52 of the West Pakistan Land Revenue Act, 1967 presumption of correctness is attached to the entries in the Record of Rights or periodical record as the same shall be presumed to be true, until contrary is proved. The presumption of truth or correctness is rebuttable. The entries are not the foundation of title but are mere items of evidence to be adduced by the vendee to prove the sale.

The entries in the Revenue Record are not the foundation of title but some items of evidence to prove title. By no stretch of imagination "Jamabandi" can be considered as exclusive proof of ownership or allotment.

The entries in the Revenue Record are maintained mainly for fiscal purposes and they neither create nor extinguish the title to the property and are not conclusive proof of ownership.

Since the plaintiffs were having a more reliable and authentic document in the form of decree of the Court they stood on a stronger footing and' presumption of correctness had been successfully rebutted.

Wali Muhammad and others v. Muhammad Bakhsh and others AIR 1930 PC 91; Muhammad Bakhsh v. Zia Ullah and others 1983 SCMR 988; Fazal Hussain v. Additional Settlement Commissioner (Lands) and 5 others PLD 2001 SC 401; Muhammad Ali and 25 others v. Muhammad and 6 others PLD 1994 SC 245 and Muhammad Hussain v. Wahid Bakhsh 2004 SCMR 1137 ref.

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

--- S. 41---Qanun-e-Shahadat (10 of 1984), Art.114---Transfer by ostensible owner---Scope---Ingredients---Estoppel, doctrine of--Applicability-Principles.

The general principle of law of Transfer of Property is enunciated by the maxim that no man can transfer to another or can confer a right or title greater or higher than what he himself possesses and he gives not who hath not. In other words, generally a purchaser cannot take more than what the vendor has to sell. Section 41 Transfer of Property Act, 1882 provides an exception- to this general rule. This section exhorts the principle that whenever one of the two innocent persons has to suffer by the act of third person, he who has enabled that person to occasion the loss, must sustain it or where one of the two innocent persons suffer from the fraud of third party, the loss should fall on him who has created or could have prevented the opportunity for fraud.

It is a principle of natural equity which has universal application that where one man allows another to hold himself out as the owner of an estate and a third person purchases it, for value, from the apparent owner in the belief that he is the real owner, the man who so allows the other to hold himself out shall not be permitted to recover upon his secret title, unless he can overthrow that of the purchaser by showing either that he had direct notice, or something which amounted to constructive notice of the real title; or that there existed circumstances which ought to have put him upon on inquiry that, if prosecuted, would have led to a discovery of it.

?

This exception which is the form of equitable doctrine of estoppel as embodied in Article 114 of the Qanun-e-Shahadat, 1984 with a distinction as intentional inducement and unintentional inducement as in Article 114 that, a person pleading estoppel should act on the representation of the other while under section 41 Transfer of Property Act, 1882 that if a person allows the other to hold himself out as the owner of the property and the third person purchases it for value from the ostensible owner in the belief that he is the real owner then the latter shall not be permitted to recover upon his secret title. In this he shows that the purchaser had direct or constructive notice of his ownership.

In order that this section may apply, it must be shown that (a) the Transferor is the ostensible owner. (b) He is so by consent, express or implied, of the real owner. (c) The transfer is for consideration. (d) The Transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer. If any one of the stated ingredients is wanting, then the Transferor will not be eligible to seek protection of equitable doctrine envisaged under section 41. It is not attracted unless a party claiming benefit thereof has fulfilled the aforesaid four conditions.

The petitioner in the present case has taken the plea of "Bona fide Purchaser for consideration" but in the evidence, his attorney, appeared in the Court. He has not stated anything about either the plea taken under section 41 or about being a bonafide purchaser for consideration thus this plea was not substantiated at all. Even otherwise one of the foremost conditions for the plea under section 41 of the Act, that the Transferor must be shown as ostensible owner but in the present case, the transferor was neither in actual and physical possession nor he had been shown in the Revenue Record as in possession of his share but rather plaintiffs or their predecessor had been shown to be in physical possession of the property in dispute. The possession of immovable property, with a title if any, by itself has been considered as a notice of title to the person interested in acquiring any right in the property as evident from the explanation (II) of section 3 of the Transfer of Property Act, 1882.

?

The Transfer of Property Act, 1882 further places heavy responsibility on the purchaser that he should not be guilty of gross negligence or of wilful abstention from an inquiry or search otherwise he will be deemed to have notice of the fact which if he would not suffer aforesaid disqualification.

In the present case, not to speak of any authentic document in favour of the transferor, rather the one which is available on record goes against them and favours the plaintiffs i.e. the decree of the Court coupled with possession both at the spot as well as in the Revenue Record and more so when, the petitioner has failed to substantiate the plea under section 41 of the Transfer of Property Act by not proving any of the four ingredients mentioned in the section. He cannot be considered as a bona fide purchaser for consideration, the plea taken by him in written statement, as he had the notice of the title of the plaintiffs in terms of explanation-II to section 3 of the Act.

Transfer of Property Act (10th Edn. 1987) by Mulla quoted.

Ilahi Bakhsh and others v. Hassan Khan and others PLD 1966 (W.P.) Lah. 654 and Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53 distinguished.

Sh. Zamir Hussain, Advocate Supreme Court and Ejaz Muhammad Khan Advocate-on-Record for Petitioner.

Respondent No.2 in person.

Date of hearing: 30th September, 2005.

P L D 2006 Supreme Court 94

Present: Sardar Muhammad Raza Khan, Falak Sher and Nasir-ul-Mulk, JJ

ISHTIAQ AHMED SHEIKH and others---Appellants

Versus

Messrs UNITED BANK LIMITED and others---Respondents

Civil Appeals Nos. 991, 992 of 2001 and 441 to 447 of 2004, decided on 20th September, 2005.

(On appeal from the judgments of the Federal Service Tribunal, Islamabad, dated 13-4-1999 passed in Appeal Nos.621 and 622(R) of 1998, and Federal Service Tribunal, Karachi, dated 23-11-2000 passed in Appeals Nos.99, 89(K), 90(K), 102(K), 103(K), 108(K) & 107(K) of 1998 respectively).

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

----Art. 212(3)---Termination of service of bank employees---Leave to appeal was granted by the Supreme Court to the employees to consider their submissions that no particular rule or regulation had been either mentioned or relied upon which could be said to have been violated; that documents .appended by the employees with their replies to the charge-sheet and produced in appeal before the Service Tribunal and their defence plea had been ignored and their case was decided on the basis of news item about the alleged bad reputation of a customer of the Bank though all along the employees kept the higher authorities aware of the matter, therefore, they could not have been punished and that extreme penalty of dismissal from service could not be imposed for at the most it was a case of negligence and not of corruption even if allegations for the sake of arguments, without conceding, were admitted as correct.

(b) Administration of justice---

----Impression gathered from newspaper reports could hardly be made basis for judicial findings, moreso, when no reference was made to any such report.

(c) Service Tribunals Act (LXX of 1973)---

----S. 4---Appeal to Service Tribunal---When charge-sheet served on the employee did not mention a specific violation, Service Tribunal would proceed on wrong assumption of said violation.

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

----Arts. 212(3) & 184(3)---Appeal to Supreme Court---Question of law of "public importance"---Connotation---Phrase "public importance" appearing in Art.212(3) of the Constitution, cannot be accorded restrictive meanings, in view of the very nature of the jurisdiction, which deals with appeals by Civil Servants, a restricted defined class, and not the public at large---Meaning of the Phrase "public importance" appearing in Art.212(3) of the Constitution cannot be equated with the same phrase used in Art.184(3) of the Constitution, which related to original general jurisdiction of the Supreme Court for the enforcement of Fundamental Rights.

?

Lahore High Court v. Muhammad Jahangir Khan Goraya 1999 SCMR 2117 ref.

(e) Civil service-

----Misconduct---Bank employees negotiating Letter of Credit contrary to the instructions on the subject, misconducted themselves by not following said instructions, even if their non-observance had not resulted in financial loss to the Bank.

(f) Civil service---

----Misconduct---Penalty---Quantum---Employees of the Bank being guilty of misconduct by acting in violation of the clear written instructions of the Bank regarding negotiation of Letters of Credit by non-correspondent bank were dismissed from service---Validity---Negotiation of such documents was the prime responsibility of the concerned branch of the Bank, however the conduct of the senior officers mellowed down the extent of culpability of the employees---If the senior officers, whose support encouraged the employees to negotiate the said Letters of Credit, had been let off lightly, it would be unjust to punish the employees severely---Supreme Court, in circumstances, partially allowed the appeals of the employees aid modified the impugned judgments of the Service Tribunal to the extent that the penalty of the employees of termination/dismissal from service was converted into compulsory retirement from the date on which their orders of termination/dismissal from service were passed by the Authority.

(g) Words and phrases---

--"Public importance"---Connotation.

Abid Hassan Minto, Senior Advocate Supreme Court and Sh. Masood Akhtar, Advocate-on-Record for Appellant (in C.A.No.991 of 2001).

Raja Muhammad Akram, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for Respondent No.1 (in C.A.No.991 of 2001).

Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.2 (in C.A.No.991 of 2001).

Abid Hassan Minto, Senior Advocate Supreme Court and Sh. Masood Akhtar, Advocate-on-Record for Appellant (in C.A.No.992 of 2001).

Ejaz Muhammad Khan, Advocate-on-Record (absent) for Respondent No.1 (in C.A.No.992 of 2001).

Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.2 (in C.A.No.992 of 2001).

Niaz Ahmad Khan, Advocate Supreme Court and M.Shabbir Ghauri, Advocate-on-Record (absent) for Appellant (in C.A.No.441 of 2004).

Kamal Azfar, Senior. Advocate Supreme Court and M.S.Khattak, Advocate-on-Record for Respondent (in C.A.No.441 of 2004).

Manzoor Ali Khan, Advocate Supreme Court for Appellant (in C.A.No.442 of 2004).

Kamal Azfar, Senior Advocate Supreme Court and M.S.Khattak, Advocate-on-Record for Respondents ((in C.A.No.442 of 2004).

Manzoor Ali Khan, Advocate Supreme Court for Appellant (in C.A.No.443 of 2004).

Kamal Azfar, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents (in C.A.No.443 of 2004).

Mazhar Ali B. Chohan, Advocate Supreme Court for Appellant (in C.A.No.444 of 2004).

Kamal Azfar, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents (in C.A.No.444 of 2004).

Mazhar Ali B. Chohan, Advocate Supreme Court for Appellant (in C.A.No.445 of 2004).

Kamal Azfar, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents (in C.A.No.445 of 2004).

H.A. Jafri, Advocate Supreme Court and Abul Khair Ansari, Advocate-on-Record for Appellant (in C.A.No.446 of 2004).

Kamal Azfar, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents (in C.A.No.446 of 2004).

Niaz Ahmed, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record (absent) for Appellant (in C.A.No.447 of 2004).

Kamal Azfar, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents (in C.A.No.447 of 2004).

Date of hearing: 20th September, 2005.

P L D 2006 Supreme Court 109

Present: Javed Iqbal, Mian Shakirullah Jan and Tassaduq Hussain Jillani, JJ

ZAHID IMRAN and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeals Nos. 396 to 400 of 2003, decided on 1st December, 2005.

(On appeal from the judgment dated 4-3-2003, passed by the Lahore High Court, Lahore in Criminal Appeals Nos. 986, 987, 988, 989 of 2002 and M.R. No.67-T of 2002).

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

----Ss. 302/149, 148 & 316---Anti-Terrorism Act (XXVII of 1997), S.7-A---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to ascertain as to whether judgment of High Court convicting the accused under S.316, P.P.C. was sustainable in law and whether the case fell within the ambit of S.7-A of the Anti-Terrorism Act, 1997 and also to consider the quantum of sentence awarded in the case.

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

----Ss. 302/149; 148 & 316---Anti-Terrorism Act (XXVII of 1997), S.7-A---Appraisal of evidence---Ocular version given by the eye-witnesses was consistent and straightforward which was corroborated by medical evidence, motive, recoveries of weapons of offence i.e., iron fists, Dandas and Sotas and abscondence of accused---Eye-witnesses had explained their visit at the scene of occurrence and apprehending of three accused at the crime spot had fully established their presence there---Reasons of nominating the accused in the F.I.R. had also been fully explained---Prosecution witnesses had no rancour, enmity or ill-will against the accused and question of their false involvement did not arise---Accused were identified by the eye-witnesses in the Court at the trial---Prosecution evidence being worthy of credence and confidence-inspiring had rightly been believed by the Trial Court which had convicted the accused under S.302(b), P.P.C. and S.7-A of the Anti-Terrorism Act, 1997, while the High Court upholding the determination of guilt of accused had convicted them only under S.316, P.P.C.---Courts below had differed with regard to the sentences and the sections applicable in the case---Provisions as contained in S.316, P.P.C. could not be made applicable in the case---Import and significance of the illustration appended to S.315, P.P.C. had been ignored by the High Court which is an integral and inseparable part of the section and could be called in aid to interpret the intention of the legislature---High Court had erred while converting S.302, P,.P.C. into S.316, P.P.C. by ignoring the evidence on record---Accused had been found guilty of deliberate and premeditated murder and the only sentence which could be awarded to them was death, as these were no mitigating circumstances to alter the same with any other sentence, nor any cogent reasons were given by High Court for such conversion---Multiple blows inflicted by the accused and various injuries received by the deceased were indicative of the gravity of the force which was used---No doubt the weapons used were not such so as to cause fatal injury, but the force used was so great as to show that the accused intended to cause injury sufficient in the ordinary course of nature to cause death and they were guilty of Qatl-i-Amd---Murder of the deceased Professor was not the result of personal enmity, but he was murdered as he had not allowed the accused to use unfair means in the examination hall which was his official duty---Manner in which the murder of the Professor was committed had created sensation and terror in the entire teaching class---Murder had been committed with due deliberation, premeditation, common intention and prior concert of mind---Murder was committed in a barbaric and brutal manner which was an act of terrorism and the sentence of death had rightly been awarded to accused by Trial Court under S.7-A of the Anti-Terrorism Act, 1997---Impugned judgment of High Court was set aside and that of Trial Court was restored in toto in circumstances.

(c) Interpretation of statutes---

----Illustration to a section---import and significance---Illustration appended to a section is to" be taken as part of that section, unless it is found inconsistent with the same---Main purpose of illustration is to show how the principle already enunciated or contained in that section of the enactment is to be applied or how the particular facts of the case supposed by that illustration come under that principle---Illustration to a section of a statute plays an important role for the interpretation and application of that section and to gather the true intention of the Legislature in framing that particular section---Illustration serves as a sort of key to unlock the mind of the draftsman regarding the true intention in framing that particular section.

?

AIR 1944 PC 67, 69; Anirudha v. Administrator-General of Bengal, AIR 1949 PC 244, 250; Ashrafalli v. Mohammedali, AIR 1947 Born. 122, 130; Interpretation of Statutes 7th End. 1984 by N.S. Bindra, revised by Dr. Tahir Mahmood; 1980 CLC 433; 1996 CLC 1932; 1996 CLC 1331; PLD 1959 Lah. 429; PLD 1957 SC (Ind) 18; PLD 1959 Dacca 131; Canon of Construction and Interpretation of Statutes by M. Mahmood; (Understanding Statutes-Canon of Construction by S.M. Zafar; Naveed Aziz v. Rauf Ali Syed 1996 CLC 1932; Shaukat v. State PLD 1982 FSC 179; AIR 1918 PC 249 and Ghulam Rasul v. Crown PLD 1951 FC 62 ref.

(d) Criminal trial---

----Intention---Meaning and import---Concept elucidated---In order to constitute a crime the act must be accompanied by a criminal intent or by such negligence or indifference of duty or to consequences, as is regarded by the law as equivalent to criminal intent---Intention is not capable of positive proof and it can only be implied from overt act---No hard and fast rule can be formulated to know the intention which must always be gathered from the circumstances of the case---Matter which is primarily to be considered is the consequences which flow from an act, because a man is usually presumed to intend the consequences of his own act---By intention is meant the expectation of the consequences in question---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.

Mewa Khan v. The State PLD 1995 Quetta 108; (1887) PR. No.62 of 1887; 34 Cr.LJ 1055 Ramsukh; Consul Confizon v. H.M. Prosecutor General AIR 1918 PC 354; PLD 1959 Lah. 495; PLD 1958 Lah. 395; Taj Muhammad's case PLD 1963 Kar. 118; Rehmat Ullah's case PLD 1961 Lah. 221; Jane Alam's case PLD 1965 SC 640 ref.

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

----Ss. 34 & 149-Common intention, ascertainment of---Common intention is a question of fact which can be ascertained on the basis of the acts and the conduct of the accused, the ferocity of the attack, the weapons used, the number and seat of injuries, the number of blows coupled with the element of prior concert of mind.

B.N. Srikantiah and others v. The State of Mysore 1959 SCR 496 ref.

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

----Ss.302, 149, 148 & 316---Appreciation of evidence---Murder---Connection between the "act" and the "death"---Principles---Connection between the act and the death caused thereby must be direct and distinct, and though not immediate it must not be too remote---If the nature of the connection between the act. and the death is in itself obscure, or if it is obscured by the action of the concurrent causes, or if the connection is broken by the intervention of subsequent causes, or if the interval of time between the act and the death is too long, the above condition is not fulfilled---Death should be clearly connected with the act of violence, not merely by a chain of causes and effects, but by such direct influence as is calculated to produce the effect without the intervention of any considerable change in circumstances.

(1864) W.R. (Gap.No.) (Cr.) 31 ref.

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

----Ss.302, 148, 149 & 316---Sentence, determination of quantum---Principles---Question of sentence demands utmost care on the part of the Courts dealing with the life and liberties of the people---Sentence must be weighed in golden scales as it was to be properly balanced, to punish the offender in proportion to the character and extent of his guilt, to be deterrent for him and for the rest of the society, without being unnecessarily harsh or needlessly indulgent---All the circumstances surrounding the guilt must be carefully borne in mind---Overriding consideration in determining the kind and quantum of sentence to be awarded must be that it should be fair and even on humane standards to produce the correct results in a given case, to be a solacing palliative for the party that has been wronged and an effective punishment for the one that has done the wrong---In case of murder when the facts are clear the onus is upon the accused to show the circumstances which would bring the offence within the category of those offences in which capital sentence should not be imposed---Law indicates the gravity of the offence by the maximum penalty and the Courts have to judge whether the act committed falls short of the maximum degree of gravity and if so to what extent---Unless extenuating circumstances can be found, a murderer must be sentenced to death---Court would be justified in imposing the lesser of the two sentences provided by law only when it is satisfied about the presence of the mitigating circumstances---Nature of the proof has nothing to do with the character of the punishment.

PLD 1967 Pesh. 119 and AIR 1957 SC 614 ref.

(h) Interpretation of statutes---

----Court while applying a particular law should take into consideration the object for which it has been enacted---Law should be interpreted in a manner which may advance the object and suppress the mischief for which it might have been enacted and not in the manner which may defeat its object.

Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 and State through Advocate-General, Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1 ref.

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

----S. 6---Terrorist act---Connotation---Striking of terror is sine qua non for the application of the provisions as contained in S.6 of the Anti-Terrorism Act, 1997, which cannot be determined without examining the nature, gravity and heinousness of the alleged offence, contents of the F.I.R., its cumulative effects on the society and a class of persons and. the evidence which has come on record---Where the action of an accused person 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 S.6 of the Anti-Terrorism Act, 1997.

Muhammad Farooq v. Ibrar PLD 2004 SC 917; Province of Sindh v. Ghulam Hussain 2002 SCMR 908; Mehram Ali and others. v. Federation of Pakistan and others PLD 1998 SC 1445;- 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.

Sardar Muhammad Latif Khan Khosa, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellants (in Cr.A.No.396 of 2003).

Ch. Riyasat Ali, Advocate Supreme Court for Appellant (in Cr.A.No.400 of 2003).

Sardar Muhammad Latif Khan Khosa, Senior Advocate Supreme Court for Respondents (in Cr. A. No.400 of 2003).

Ch. Munir Sadiq, Advocate Supreme Court for the State.

Dates of hearing: 28th and 29th April, 2005.

P L D 2006 Supreme Court 140

Present: Sardar Muhammad Raza Khan and Khalil-ur-Rehman Ramday, JJ

SHUJAT ALI---Petitioner

Versus

MUHAMMAD RIASAT and others---Respondents

Civil Petition No.1630 of 2004, decided on 1st December, 2005.

(On appeal from the judgment dated 8-6-2004 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Civil Miscellaneous No.495/C/2004 in Civil Revision No.541 of 2003).

Punjab Pre-emption Act (IX of 1991)---

----S. 13--Civil Procedure Code (V of 1908), S.148 & O.XX, R.14---Constitution of Pakistan (1973), Art.185 (3)---Decree in pre-emption suit---Conditional decree---Non-fulfillment of condition---Suit of pre-emptor was decreed by High Court and the Court directed him to deposit the pre-emption money within a specified period---Pre-emptor, instead of depositing the amount, filed application under S.148, C.P.C. for extension of time to deposit the amount---High Court dismissed the application and dismissed the suit of pre-emptor---Validity---Once having passed conditional decree and suit having stood automatically dismissed for non-deposit of pre-emption money, the Court decreeing the suit had become functus officio--High Court could not have extended the time not only because non-compliance had operated into automatic dismissal of suit but also because a valuable right had accrued to the vendee---Supreme Court declined to interfere in the judgment and decree passed by High Court---Leave to appeal was refused.

Sardar Asmat Ullah Khan, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 1st December, 2005.

P L D 2006 Supreme Court 142

Present: Rana Bhagwandas and Nasir-ul-Mulk, JJ

DIRECTOR-GENERAL, RAWALPINDI DEVELOPMENT AUTHORITY and others---Petitioners

Versus

Mian MUHAMMAD SADIQ and others---Respondents

Constitutional Petition No.1850 of 2004, decided on 13th December, 2005.

(On appeal from order of Lahore High Court, Rawalpindi Bench, Rawalpindi dated 7-6-2004 passed in Writ Petition No.1629 of 2000).

Constitution of Pakistan (1973)---

----Art. 185(3)---Constitutional jurisdiction---Unnecessary litigation---Government functionaries, duties of---Respondents purchased plots from authorities in open auction and had deposited their dues---Sale was confirmed in favour of respondents, who raised construction after approval of their site plans---Authorities resumed the plots of respondents in year, 1962, on account of their failure to pay composition fee and notice for recovery of rent since year, 1962 had been issued to respondents---Notice of such demand was assailed by respondents and High Court in exercise of Constitutional jurisdiction held that respondents had acquired absolute right, interest and title to the property, but accepted the demand of authorities only to the extent of payment of composition fee---Validity---Authorities were not authorized under any law to resume the plots and claim rent after a period of 38 years, when respondents had acquired absolute right and title in the property and raised construction after approval of site plans---Only allegation against respondents appeared to be some irregularity or deviation from approved plan, which would not justify resumption of plots as wrongly resorted to by authorities---High Court was justified in striking down the action of authorities, which was patently illegal and unwarranted---Supreme Court noted it with concern that it was high time to act fairly and rationally while resorting to avoidable and unnecessary litigation by public authorities---No question of law of public importance had been raised within the contemplation of Art.185 (3) of the Constitution---Leave to appeal was refused.

Mrs. Afshan Ghazanfar, Advocate Supreme Court for Petitioners.

Nemo for Respondents

Date of hearing: 13th December, 2005.

P L D 2006 Supreme Court 145

Present: Iftikhar Muhammad Chaudhry, C. J., M. Javed Buttar and Tassadduq Hussain Jillani, JJ

GHULAM ABBAS and others---Petitioners

Versus

THE STATE---Respondent

Criminal Petitions Nos. 848-L, 920-L and 921-L of 2002 and Jail Petition No.2 of 2003 along with Criminal Miscellaneous No.62 of 2005 in Criminal Petition No.920-L of 2002), decided on 12th December, 2005.

(On appeal against the judgment dated 2-10-2002 passed by the Lahore High Court, Lahore in Criminal Appeals Nos.622, 637, 638 of 1997 and M.R.No.247-T of 1997).

Penal Code (XLV of 1860)---

----Ss. 391, 396, 395, 458, 458/114 & 412---Constitution of Pakistan (1973), Art.185(3)---Contention was that in accordance with the provisions of S.391, P.P.C. read with S.396, P.P.C. accused deserved for same sentence, as they were all equally responsible for the commission of the offence, and as such on having reduced the sentence of death by the High Court to imprisonment for life of the other co-accused the sentence of death of the accused was not liable to be maintained. However, at this stage having seen the law relied upon by the counsel of the accused, Supreme Court prima facie was of the opinion that if the sentence of death of the accused was maintained, then remaining accused would also be liable to the sentence of death therefore, while granting leave to appeal in the cases of co-accused, notices were also issued to them to explain as to why their sentences might also not be enhanced---Leave to appeal, thus, was granted, inter alia, to examine the said contentions as well as on merits of the case to the extent of other accused persons.

Puranmal Agarwalla and others v. Rautmal Pincha AIR 1953 Assam 44); Shivappa and others v. Hyderabad State AIR 1955 Hyd. 147; Geedo and others v. The State 1986 PCr.LJ 2192, Abdul Qayyum and others v. The State PLD 2004 Kar. 232; Khalid Mehmood and 4 others v. The State 2004 SCMR 199 and Muhammad Rawab v. The State 2004 SCMR 1170 ref.

Syed Mazhar Ali Akbar Naqvi, Advocate Supreme Court for Petitioner (in Crl. P. 848-L of 2002).

Nemo for Petitioners (in Crl.Ps. 920-L, 921-L of 2002 and JP No.2 of 2003).

Mrs. Afshan Ghazanffar, A.A.-G. for the State.

Dates of hearing: 12th and 13th December, 2005.

P L D 2006 Supreme Court 148

Present: Iftikhar Muhammad Chaudhry, C.J., Faqir Muhammad Khokhar and M. Javed Buttar, JJ

COLLECTOR OF CUSTOMS, CENTRAL EXCISE AND SALES TAX and others---Appellants

Versus

MAHBOOB INDUSTRIES (PVT.) LTD. and others---Respondents

Civil Appeals Nos. 813 to 821, 932 and 933 of 2002, decided on 21st December, 2005.

(On appeal from order/judgment dated 21-1-2002 and 11-2-2002, passed by the Lahore High Court, Lahore in C.As.Nos.347/2001, 348/2001, 349/2001, 350/2001, 351/2001, 352/2001, 355/2001, 356/2001, 357/2001, 359/2001, 2/2002).

Sales Tax Act (VII of 1990)---

----Ss. 2(16), 2(33), 3, 33(4) & VIth Sched.---Central Excise Act (I of 1944), S.2(25) & 3---Central Excise Rules, 1944, R.210---Notification S. R.O.No.456(1)96, dated 13-6-1996---Taxable supply---Polyethylene poly bags, manufacturing of---Respondents were manufacturers of vegetable Ghee/oil and authorities issued notices for recovery of sales tax and central excise duty on polyethylene poly bags in which vegetable Ghee/oil was packed---High Court in exercise of Constitutional jurisdiction declared polyethylene poly bags as inseparable part of vegetable ghee and not a distinct product liable to levy of central excise tax and sales tax---Validity---Preparation of pouches/poly bags by converting polyethylene film was a manufacturing process---Word `manufacture' under S.2(25) of Central Excise Act, 1944, included any process incidental or ancillary to the completion of a manufactured product, any process of remanufacture, re-melting, reconciliation or repair and process of packing or repacking such product---Pouches/poly bags manufactured by respondents were capable of being sold in market and it would not make any difference even if conversion of polyethylene bags were manufactured for self or home consumption---Notification S.R.O. 456(I)/96, dated 13-6-1996, issued under S.3 of Central Excise Act, 1944, and Sales Tax Act,'1990, were clearly applicable---Poly bags were put to business use and were not exempt from sales tax under the provisions of S.3 read with 6th Sched. of Sales Tax Act, 1990---Mere fact that vegetable oil/ghee was exempt from central excise and sales tax would not exclude production/manufacturing of polyethylene poly bags from the ambit of taxable activity or goods for the purpose of Central Excise Act, 1944 and Sales Tax Act, 1990---High Court took the erroneous view of the matter in treating the manufacturing activity of polyethylene poly bags as an inseparable part of vegetable ghee/oil making and not a distinct product---Judgment passed by High Court was set aside---Appeal was allowed.

Commissioner of Sales Tax and others v. Hunza Central Asian Textile and Woolen Mills Ltd. and others 1999 SCMR 526; Sheikhu Sugar Mills Ltd. and others v. Government of Pakistan and others 2001 SCMR 1376; Messrs Noorani Cotton Corporation v. the Sales Tax Officer "A" ward, Lyallpur PLD 1965 SC 161; Messrs Pak Cosmetic Products Karachi v. Pakistan through the Secretary, Ministry of Finance, Government of Pakistan, Islamabad and 3 others 1988 CLC 1772; State of Karnataka v. B. Raghurama Shetty and others AIR 1981 SC 1206 and Adil Polypropylene Products Limited and others v. The Federation of Pakistan through Secretary Finance, Federal Secretariat, Islamabad and others 2000 SCMR 1708 rel.

Makhdoom Ali Khan, A.-G. along with Izhar-ul-Haq Sheikh, Advocate Supreme Court and Khurram Hashmi, Advocate for Appellants (In all cases).

Zaeem-ul-Farooq Malik, Advocate Supreme Court for Respondents (in all cases).

Date of hearing: 21st December, 2005.

P L D 2006 Supreme Court 153

Present: Iftikhar Muhammad Chaudhry, C.J., Muhammad Nawaz Abbasi and Tassadduq Hussain Jillani, JJ

M. YOUNUS HABIB---Petitioner

Versus

THE STATE---Respondent

Cr. P.L.A. No.63 of 2001, decided on 7th December, 2005.

(On appeal from the judgment of the High Court of Sindh at Karachi dated 6-3-2000 passed in Criminal Appeal No.25 of 1995).

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

---Ss. 221, 222, 223, 224 & 225---Framing of charge---Scheme---Rationale for laying down an elaborate procedure for framing the charge is that the accused should know the exact nature of the accusations made against him, so that he may give a proper reply and is not misled by any vagueness in the said accusations.

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

----S. 477-A- Prevention of Corruption Act (II of 1947), S.5(2)---Criminal Procedure Code (V of 1898), Ss.225 & 537---Constitution of Pakistan (1973), Art.185(3)---Case remanded by High Court on the basis of charge framed against the accused being defective---Validity---Non-mention of the particular State Bank Regulation or the rule which required deposit of sale deposits of Dollar Bearer Certificates with the State Bank within 72 hours, the absence of particulars and the manner of falsification of accounts by the accused, as also about the charge under S.5(2) of the Prevention of Corruption Act, 1947, were omissions or irregularities, but the same could warrant annulling of the findings of 'conviction justifying retrial only if the accused had been mislead by them and if they had occasioned miscarriage of justice---Charge framed against the accused did spell out the period within which the alleged transaction took place, the total amount allegedly misappropriated, the manner in which the offence took place and the offences which were attracted to the facts of the case---F.I.R. registered against the accused on the complaint of the Director-General F.I.A. had contained specific explicit allegations that the accused who was the Chief Operating Officer of Bank had acted in violation of the Banking and ocher relevant laws---High Court did not appreciate that the aforesaid errors or omissions could not be material unless the accused was in fact misled by the same and they had occasioned a failure of justice---Accused admittedly had not raised any objection either before the trial 'Court or even after his conviction before the High Court at any stage that he had been misled by the framing of the charge---High Court, in circumstances, could not have annulled the judgment and directed retrial after more than five years of the judgment of the Trial Court, particularly when the irregularities in framing the charge were curable both under Ss.225 & 537, Cr.P.C.---High Court's judgment was consequently set aside and the appeal of the accused was directed to be decided by the High Court on merits---Petition for leave to appeal was converted into appeal and allowed accordingly.

Moti Das and others v. The State of Bihar AIR 1954 SC 657 ref.

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

----S. 537---Finding or sentence when reversible by reasons of error or omission in charge or other proceedings---Prerequisite---Law mandates that the Court before giving any finding or observation that any error or omission had occasioned a failure of justice, shall have regard to the fact that whether the objection should have been raised at on earlier stage in the proceedings.

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

---Ss. 225 & 537---Effect of errors---Nature and scope---Mere imperfection in the charge cannot be used to overthrow a conviction unless prejudice can be shown---Irregularity is curable both under S.225 - and S.537 of the Code of Criminal Procedure.

Moti Das and others v. The State of Bihar AIR 1954 SC 657 ref.

Afzal Siddiqui, Advocate Supreme Court for Petitioner.

Raja Abdul Ghafoor, Advocate Supreme Court for Respondents.

Date of hearing: 7th December, 2005.

P L D 2006 Supreme Court 158

Present: Muhammad Nawaz Abbasi and M. Javed Buttar, JJ

SINDH EMPLOYEES' SOCIAL SECURITY INSTITUTION, KARACHI---Appellant

Versus

Messrs PEARL CONTINENTAL HOTEL, CLUB ROAD, KARACHI---Respondent

Civil Appeal No.420 of 2002, decided on 13th January, 2006.

(On appeal from the Judgment of Sindh High Court Karachi dated 16-3-2001 passed in Miscellaneous Appeal No.35 of 1990)

(a) Provincial Employees' Social Security Ordinance (X of 1965)---

----S. 2(30)---Leave to appeal was granted by Supreme Court to examine whether guaranteed payment made by employer to its employees being uniform and regular in character would not fall within the ambit of expression `wages' in terms of S.2(30) of Provincial Employees' Social Security Ordinance, 1965.

(b) Provincial Employees' Social Security Ordinance (X of 1965)-

--Preamble, S. 2(30)---Expression wages' andremunerations'---Scope---Guaranteed payment---Mutual understanding of employee and employer---Effect---Dispute between employer and authorities was with regard. to payment of contribution of guaranteed payment---High Court had found that such payment was not part of wages of employees---Validity---In plain words wages meant all kinds of payments which might be covered by definition of remuneration for services rendered by a person and word remuneration' had greater significance thanwages' which might include payments in respect of allowances or services rendered and such other payments---Definition of term "wages" in S.2(30) of Provincial Employees' Social Security Ordinance, 1965, was comprehensive and exhaustive and except occasional payment which was not considered as part of wages, all payments which were made under any rule or instrument, contract or settlement either as a statutory or contractual obligation must be treated as part of wages, unless specifically excluded from definition of wages under the law---Concept of social security contribution was to promote welfare of working class---Payments made and expenses incurred by employer on welfare and well-being of his employees as his obligation were included in the definition of wages, therefore, provisions of Provincial Employees' Social Security Ordinance, 1965, could not be construed in a manner which could destroy the purpose and defeat its object---If employer in discharge of his contractual or statutory obligation had paid amount to an employee for service rendered by him, such amount would be treated as part of wages in terms of S.2(30) of Provincial Employees' Social Security Ordinance, 1965---Notwithstanding mutual understanding between employer and employee that any payment would not be considered as part of wages, the same would remain part of wages unless excluded from the definition of wages under the statute---Payments which were made by employer occasionally without any statutory or contractual obligation for well-being of his employees, could not be treated as part of wages but if similar category of payment was made as contractual or statutory obligation, it would become part of wages under the law---Judgment passed by High Court was set aside and guaranteed payment was declared as part of wages---Appeal was allowed.

?

Brooke Bond Pakistan Ltd. v. Sindh Employees' S.S.I. 1990 SCMR 175 and Consolidated Sugar Mills v. Sindh Employees' Social Security Institution PLD 1991 SC 862 rel.

National Embroidery Mills Ltd. v. Punjab Employees' Social Security Institution 1993 SCMR 1201 and PLD 1978 Kar. 744 ref.

Khalid Habibullah, Advocate Supreme Court for Appellant.

Muhammad Hamayun, Advocate Supreme Court for Respondent.

Date of hearing: 19th October, 2005.

P L D 2006 Supreme Court 163

Present: Abdul Hameed Dogar, Mian Shakirullah Jan and Raja Fayyaz Ahmed, JJ

MUHAMMAD AHSAN alias AKSAN---Petitioner

Versus

THE STATE---Respondent

Jail Petition No.102 of 2004, decided on 29th November, 2005.

(On appeal from the judgment dated 17-9-2003, of the Lahore High Court, Rawalpindi Bench, passed in Crl. A. No.153 of 1992).

Penal Code (XLV of 1860)--

----S. 302(b)-Constitution of Pakistan (1973), Art. 185(3)---Statement given by the deceased in the Hospital in an injured condition to the police officer had rightly been treated as dying declaration in which he had nominated the accused as his murderer---Deceased had no reason to substitute the accused for someone else and to allow the real culprit to go scot-free---Said statement of the deceased was a strong and reliable evidence against the accused---Ocular testimony was fully corroborated by medical evidence---Accused was extensively proved to have killed the deceased by giving him a "Chhuri" blow---Concurrent findings of the two Courts below warranted no interference---Petition for leave to appeal was barred by time for 140 days which had not been plausibly explained---Leave to appeal was declined to accused accordingly on merits as well as in the point of limitation.

Nemo for Petitioner.

Dil Muhammad Tarar, Advocate Supreme Court for the State.

Date of hearing: 29th November, 2005.

P L D 2006 Supreme Court 166

Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Nasir-ul-Mulk, JJ

TEHSIL MUNICIPAL ADMINISTRATION FAISALABAD CITY---Appellant

Versus

MUHAMMAD SALEEM and others---Respondents

Civil ,Appeals Nos. 61, 62 of 2003 and 713 of 2005, decided on 16th December, 2005.

(On appeal from the judgment dated 6-5-1999 in Writ Petition No.5938 of 1996 and dated 14-10-2002 in Writ Petitions Nos.18452 and 18453 of 2002 passed by the Lahore High Court, Lahore).

Payment of Wages Act (IV of 1936)---

----S. 2(j)---Factories Act (XXV of 1934), S.2(g)---Overtime, payment of---Employees of Tehsil Municipal Administration---Entitlement--Condonation of delay---Principle of consistency---Applicability---Judgment in rem---Effect---Authorities were aggrieved of the judgment passed by High Court, whereby its employees were found entitled to overtime---Contention of respondents was that appeal filed by Authorities was barred by time---Validity---If definitions of factory' andmanufacturing process' were kept in view , it would indicate that Municipal Committee or Municipal Administration did not at all fall within the definition of a factory' and nomanufacturing process' was undertaken therein or thereby---Once it was determined that Municipal Committee/Administration was not a factory' within the meanings of Factories Act, 1934, the employees thereof could not be held as workers specifically entitled to overtime payment---Though some extra payment made to employees at one time or the other was taken benefit of and was alleged as estoppel against the Committee but it carried no weight because such payment was made as bonus in order only to compensate the employees---Committee might on its own accord, pay as much bonus as it liked to the employees for any extra work but the same could not be claimed as of right by the employees as was done by workers working in afactory' defined by Factories Act, 1934---Once the Court had found that employees of committee were not the workers in a `factory' it could not be visualized that some of them would be disentitled and the others would become entitled merely because appeal of Committee against them was time-barred---Verdict of the Court already given and endorsed with regard to law point involved was a judgment in rem, and not in personam---Benefit of limitation could not be derived and it was condoned though it otherwise would have made the least difference--Judgment passed by High Court was set aside---Appeal was allowed.

Town Committee Gakhar Mandi v. Authority under Payment of Wages Act, Gujranwala PLD 2002 SC 452 and 1987 SCMR 753 fol.

Syed Farooq Hassan Naqvi, Advocate Supreme Court for Appellant.

N.A. Butt. Advocate Supreme Court for Respondents.

Date of hearing: 16th December, 2005.

P L D 2006 Supreme Court 169

Present: Rana Bhagwandas, Saiyed Saeed Ashhad and Hamid Ali Mirza, JJ

MIAN CORPORATION through Managing Partner---Petitioner

Versus

Messrs LEVER BROTHERS OF PAKISTAN LTD. through General Sales Manager, Karachi---Respondent

C.P.L.A. No.490 of 2004, decided on 15th December, 2005.

(On appeal from judgment of High Court of Sindh Karachi dated 23-1-2004 passed in H.C.A. No.875 of 2000).

Arbitration Act (X of 1940)---

--------Ss. 14, 17 & 30---Award, setting aside of---Jurisdiction of court---

Scope---Arbitrator being final judge on questions of law and fact his decision is entitled to utmost respect and weight, unless misconduct was alleged and proved against him to the satisfaction of court---Court, while examining validity of award, would not act as court of appeal---Not open to court to reappraise evidence recorded by arbitrator in order to discover error or infirmity in award---Possibility of different view could not be made a ground to disturb award---Principles.

Arbitrator acts in a quasi-judicial manner and his decision is entitled to utmost respect and weight, unless the misconduct is not only proved, but also proved against him to the satisfaction of the court. The arbitration award however, may be discarded, if the findings are contrary to law and the material on record.

While examining the award, the court does not sit in appeal over the award and has to satisfy itself that the award does not run counter to the settled principles of law and the material available on record. Indeed, arbitrator is final judge on the questions of law and facts and it is not open to a party to challenge the decision, if it is otherwise valid. If an arbitrator has made an award in terms of the submissions made before him, no adverse inference can be drawn against him. An award cannot be lawfully disturbed on the premise that a different view was possible, if the facts were appreciated from a different angle. The court while examining the correctness and legality of award does not act as a court of appeal and cannot undertake reappraisal of evidence recorded by arbitrator in order to discover the error or infirmity in the award.

Pakistan Steel Mills Corporation v. Mustafa Sons (Pvt.) Ltd. PLD 2003 SC 301 rel.

Rana Fayyaz Ahmad, Advocate Supreme Court and Chaudhry Akhtar Ali, Advocate-on-Record for Petitioner.

Sheikh Iftikhar Ahmad, Advocate Supreme Court for Respondent.

Date of hearing: 15th December, 2005

P L D 2006 Supreme Court 172

Present: Iftikhar Muhammad Chaudhry and Hamid Ali Mirza, JJ

MUHAMMAD MUBEEN-US-SALAM and others-Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Defence, Government of Pakistan and others---Respondents

Civil Petitions Nos.148 to 167 and 174 to 178 of 2005, decided on 21st June, 2005.

(On appeal from the judgment/order dated 27-11-2004 passed by the Federal Service Tribunal in Appeals Nos.1021, 1023, 1024, 1025, 1027, 1028, 1029, 1031, 1032, 1033, 1034, 1038, 1087, 1083, 1091, 1092, 1094, 1095, 1098, 1099, 1090, 1096, 1097, 1101,(R)/CS/2003).

Service Tribunals Act (LXX of 1973)---

----Ss. 2-A & 4---Civil Servants Act (LXXI of 1973), S.2(1)(b)---Air Force Manual, R.54-2---Constitution of Pakistan (1973), S. 212(3)---Employees/Teachers of Pakistan Air Force Educational Institutions---Appeal to Service Tribunal---Maintainability---Supreme Court granted leave to appeal to consider, whether or not teachers/employees of such Institutions managed by Managing Committee or Bodies were civil servants under S.2(1)(b) of Civil Servants Act, 1973 or for purpose of S.2-A of Service Tribunals Act, 1973, whether such employees/teachers could invoke jurisdiction of Tribunal as well as of Supreme Court under Art. 212(3) of the Constitution and question of validity and vires of S.2-A of Civil Servants Act, 1973 on the touchstone of Art. 212 and other provisions of the Constitution.

Managing Committee, PAF Model Inter College, Sargodha v. Malik Muhammad Pervaiz Akhtar 1997 SCMR 1957 ref.

Muhammad Akram Sheikh Senior Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioners (in all cases).

Hafiz S.A. Rehman, Advocate Supreme Court Raja Abdul Ghafoor Advocate-on-Record and M. S. Khattak, Advocate-on-Record for Respondent No.2. (in all cases).

Date of hearing: 21st June, 2005.

P L D 2006 Supreme Court 175

Present: Muhammad Nawaz Abbasi and M. Javed Buttar, JJ

MANAGING DIRECTOR, NBF, ISLAMABAD and 2 others---Petitioners

Versus

MUHAMMAD ARIF RAJA---Respondent

Civil Petition No.836 of 2004, decided on 21st October, 2005.

(On appeal from the judgment of Federal Service Tribunal, dated 14-2-2004 passed in Appeal No. 175-R.C.S./03)

(a) Government Servants (Conduct) Rules, 1964---

----R.16---Private work---Government servant while in service could not engage himself in private business---Running of such a business without permission would be misconduct in terms of Government Servants (Conduct) Rules, 1964.

(b) Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----S.3---Government Servants (Conduct) Rules, 1964, R. 16---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service--Running of private business, 'charge of---Proof---Raising presumption regarding engagement of employee in such business on basis of a photostat letter addressed to Sales Manager of a foreign business company---Validity---Employee on oath while denying his signatures on such letter had stated that same resembled to be his signatures---Such statement of employee could not be treated as his admission to charge---Authority without proving genuineness of signatures of employee and existence of original letter through reliable evidence had drawn such inference on basis of inadmissible evidence---Authority could not be allowed to hold a fresh inquiry to fill in such lacuna---Such charge in circumstances, was not proved beyond doubt.

(c) Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art. 212(3)---Appeal before Service Tribunal---Scope---Such appeal would lie both on question of law and fact, which Tribunal would be under legal obligation to decide--Supreme Court would not go into factual controversy and reappraise evidence for determination of question of fact.

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

----Arts. 185(3) & 212(3)---Findings of fact by judicial forum---Petition for leave to appeal to Supreme Court---Scope---Where such findings arrived at as a result of scrutiny, even if erroneous, could not be gone into and disturbed by Supreme Court, unless found to be suffering from jurisdictional defect.

(e) Civil Service---

----Misconduct, charge of---Standard of evidence in proceedings before departmental authority and regular Court---Distinction stated.

The standard of evidence in departmental proceedings in certainly not the same as is required to prove a fact before regular Courts and the departmental authorities are not supposed to follow the technicalities of law to ascertain the genuineness of a document in the manner as is done by the Courts of general jurisdiction, but the evidence, oral or documentary, to be used for proving the charge of misconduct must be of legal character and admissible in law.

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

----Art. 212(3)---Non-raising substantial question of law of public importance---Supreme Court dismissed petition and refused leave to appeal.

Muhammad Afzal Siddiqui, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioners.

Raja Muhammad Asghar Khan, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondent.

Date of hearing: 21st October, 2005.

P L D 2006 Supreme Court 182

Present: Iftikhar Muhammad Chaudhry, C.J., Faqir Muhammad Khokhar and M. Javed Buttar, JJ

M. ASHRAF BHATTI and others---Petitioners

Versus

M. AASAM BUTT and others---Respondents

Criminal Petition No.435-L of 2002 and Criminal M.A. No.187 of 2004 in Criminal Petition No.445-I of 2002, decided on 19th December, 2005.

(On appeal from the judgment dated 9-4-2002 of the Lahore High Court, Lahore, passed in Criminal Appeal No.98/99 of 2001 and M.R. No.8/T-2001).

Penal Code (XLV of 1860)---

---Ss. 302(b)1149, 186/149, 353/149, 148/149 & 311---Anti-Terrorism Act (XXVII of 1997), S.7---Criminal Procedure Code (V of 1898), S.345(2)---Constitution of Pakistan (1973), Art.185(3)---Parties had compromised the matter and compensation had already been received by the complainants---Permission to compound the offence, therefore, was accorded under S.345(2), Cr.P.C.---Accused, however, had committed the murder of two young boys who were confined in judicial lock-up in a brutal and shocking manner, which had outraged the public conscience and they were liable for punishment on the principle of "Fasad-fil-Arz"---Accused had taken the law in their hands without caring that police stations or Court premises were the places where law protected the life of citizens---Consequently, in exercise of jurisdiction under S.311, P.P.C. death sentence of two accused was reduced to imprisonment for life under S.302(b), P.P.C. and under S.7 of the Anti-Terrorism Act, 1997 on both the counts---Similarly, sentences of imprisonment for life awarded to two other accused under S.302(b), P.P.C. was reduced to fourteen years' R.I., but their life imprisonment awarded under S.7(b) of the Anti-Terrorism Act, 1997, was maintained on both the counts with benefit of S.382-B, Cr.P.C.---Remaining sentences awarded to accused were kept intact---All sentences were directed to run concurrently.

Petitioner in person.

Dil Muhammad Tarar, Advocate Supreme Court for Respondents (in Cr.P.No.435-L of 2002) along with Mrs. Yasmeen.

Maqbool Elahi Malik, Senior Advocate Supreme Court (On Court Notice).

Date of hearing: 19th December, 2005.

P L D 2006 Supreme Court 186

Present: Abdul Hameed Dogar, Mian Shakirullah Jan and Rana Fayyaz Ahmed, JJ

MUHAMMAD RAFIQ---Petitioner

Versus

THE STATE---Respondent

Jail Petition No.176 of 2004, decided on 29th November, 2005.

(On appeal from the judgment dated 5-4-2002 of Lahore High Court, Rawalpindi Bench, passed in Criminal Appeal No.192 of 2003)

Penal Code (XLV of 1860)---

---S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---F.I.R. was recorded by the deceased himself while being in an injured condition, which was treated as his dying declaration---Minor dispute between the parties had culminated into the occurrence---Ocular testimony was corroborated by medical evidence---Dying declaration of the deceased was also corroborated by the Police Officer who had recorded his statement in the Hospital---Presence of eye-witnesses at the site at the relevant time had been established and their relationship with the deceased alone did not render them as interested and partisan witnesses---Ocular account of incident had no inherent defect or material lacuna---Concurrent findings of the Courts below did not suffer from any illegal infirmity warranting interference by the Supreme Court---Leave to appeal was refused to accused accordingly.

Rafaqat Hussain Shah, Advocate Supreme Court for Petitioner.

Mahmood Ahmed Sheikh, Advocate Supreme Court for the State.

Date of hearing: 29th November, 2005.

P L D 2006 Supreme Court 189

Present: Hamid Ali Mirza, Muhammad Nawaz Abbasi, and Faqir Muhammad Khokhar, JJ

Mst. RUKHSANA MEHDI---Petitioner

Versus

WARYAM and others---Respondents

Civil Review Petitions Nos.124 and 125-L of 2003, decided on 2nd June, 2005.

(On review from judgment dated 19-3-2002 passed by this Court in Civil Petitions Nos.1252 and 1253-L of 2001).

(a) Land Reforms Act (II of 1977)---

----Ss. 6 & 7---Land Reforms Regulation, 1972 (MLR 115), para.7---Supreme Court Rules, 1980, O.XXVI, R.1---Constitution of Pakistan (1973), Art. 188---Declaration of land holding---Review of judgment---Non-mentioning of fact at the time of making declaration---Declarant was the husband of petitioner and grievance of petitioner was that excess land resumed by the authorities was already gifted in lieu of dower, to her by declarant by incorporating the same in Nikahnama---Petitioner made such claim seven years after the land was resumed---Authorities accepted her claim but such order was set aside by High Court in exercise of Constitutional jurisdiction---Supreme Court declined to grant leave to appeal against the order passed by High Court---Contention of petitioner was that Supreme Court had fallen into error by applying the provisions of para.7 of Land Reforms Regulation, 1972 (MLR 115) and the transaction of gift of land in favour of petitioner was governed by S.6 of Land Reforms Act, 1977---Validity---Declarant had shown disputed land as part of his holding without making any mention of the gift thereof at the relevant time---Declarant had also exercised his choice for the surrender of land being excess area---Neither petitioner nor declarant had ever approached Revenue Authorities for attestation of the mutation of gift of land---Entries of gift of land in question, in lieu of dower, in Nikahnama did not see light of the day for about seven years and were not reflected in revenue record of rights---At no stage of proceedings, did the petitioner claim that she had paid any land revenue or had received any share produce from tenants in respect of disputed land---Supreme Court had already taken the view in the judgment under review that petitioner had failed to substantiate genuineness of the transaction of gift---Authorities had also recorded a finding of fact that declarant had not made any transaction of alienation or transfer between 20-12-1971 to 4-1-1977---Supreme Court did not find any merit in the contention of the petitioner, as such no case for review was made out---Petition was dismissed.

Qazalbash's case PLD 1990 SC 99; Dhani and others v. Senior Member Federal Land Commission, Rawalpindi and others 1990 SCMR 478 and Sultan Muhammad Khan and another v. The Federal Land Commission and 4 others 1983 SCMR 797. rel.

Muhammad Yousaf Khan v. The Chairman, Federal Land Commission and others 1988 SCMR 611 distinguished.

(b) Islamic Law---

----Gift---Hiba-bil-lwz---Essential ingredients---In case of Hiba-bil-lwz, a bona fide intent on the part of donor to divest himself in praesenti of property and to confer it upon donee is essential for its validity.

(c) Land Reforms Act (II of 1977)---

----Preamble---Agrarian reforms---Object---Agrarian reforms were introduced in Pakistan from time to time, in order to provide social and economic justice to actual tillers of land so as to achieve declared objectives of the Constitution makers.

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

----Chap. 2 [Arts.29 to 40]---Principles of policy---Individual interests---Scope---Individual interests being subservient to collective rights of society are required to be adjusted accordingly---State must strive to achieve the greatest happiness for the greatest number.

(e) Land reforms---

----Removal of defects by legislation---Federation and Provinces are at liberty to make necessary remedial legislation for the purpose of land reforms by removing the defects, which were pointed out by Supreme Court in its various judgments.

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

----Art. 185(3)---Grant of leave to appeal---Effect---Mere grant of leave to appeal in some other case was no ground to recall and reverse the leave refusing order in an other case.

Qazalbash's case PLD 1990 SC 99 and 1993 SCMR 1697 ref.

Kh. Ai mad Tariq Rahim, Advocate Supreme Court for Petitioner.

M. Younis Bhatti, Advocate Supreme Court for Respondents Nos.1-6 (in C.R.P. No.124-L of 2003).

Abdul Rehman Madni, Advocate Supreme Court for Respondent No.7 (in C.R.P.No.124-L/03 and for Respondent No.3 (In C.R.P. No.125-L/2003).

Date of hearing: 9th December, 2004.

P L D 2006 Supreme Court 196

Present: Rana Bhagwandas Actg. C.J. and Hamid Ali Mirza, J

MUHAMMAD FAROOQ---Appellant

Versus

NAZIR AHMAD and others---Respondents

Civil Appeal No.988 of 2000, decided on 30th November, 2005.

(On appeal from the judgment dated 23-12-1999 in C.R.No.1998 of 1999 passed by the Lahore High Court, Lahore).

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

---S. 34---Constitution of Pakistan (1973), Art. 185(3)---Words "taking any other steps in the proceedings" as used in S.34 of Arbitration Act, 1940---Import---Supreme Court granted leave to appeal to consider the true import and significance of such words.

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

--S. 34---Stay of proceedings in suit---Filing of application under S.34 of Arbitration Act, 1940 by defendant after having availed several adjournments for filing written statement, contested application for interim injunction and applied for rejection of plaint---Validity---Plea of referring matter to arbitrator should be raised promptly at the very first opportunity and delay on any pretext would estop party from seeking stay of proceedings in the suit---Such act of defendant would show his intention to participate and defend suit before Court-Frequent requests for adjournment for filing written statement would fall within ambit of phrase "taking any other steps in the proceedings" as used in S.34 of Arbitration Act, 1940---Defendant had taken positive steps for furtherance of proceedings in suit---Application for stay of' proceedings in suit was dismissed in circumstances.

Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Clearners PLD 1981 SC 553; New Bengal Shipping Company v. Eric Lancaster Stump PLD, 1952 Dacca 22; Nuruddin Abdulhusein v.Abu Ahmed Abdul Jalli AIR (37) 1950 Bomby 127; Subal Chandra Bhur v. Md. Ibrahim and another AIR (30) 1943 Cal. 484 and Badsha Meah Sowdagar v. Nuraul Haq and others PLD 1967 Dacca 250 rel.

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

----Ss. 28, 34 & Sched. I, para. 3---Stay of proceedings in suit---Arbitration agreement between parties---Non-fixation of time in agreement for making award by arbitrator---Non-issuance of notice by parties to arbitrator for entering upon reference--Denial of execution of agreement by defendant---Withholding of original agreement from Court, but filing of only copy thereof--Such agreement, if any having been made between parties, stood revoked---No such agreement existed, thus, no reliance could be placed thereon for purpose of staying proceedings in suit.

Appellant in person.

Respondent No.1 in person.

Respondents Nos. 2 and 4: Ex parte.

Respondent No.3: Pro forma.

Date of hearing: 30th November, 2005.

P L D 2006 Supreme Court 202

Present: Javed Iqbal and Hamid Ali Mirza, JJ

JEEWAN SHAH---Appellant

Versus

MUHAMMAD SHAH and others---Respondents

Civil Appeal No.693 of 1999, decided on 21st November, 2005.

(On appeal from the order dated 11-12-1997 of the Lahore High Court, Multan Bench, passed in C.R.No.714-D/97, 9-CM 1/2-97).

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

----O. II, R.2 & O.XXIII, R.1---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider the contention of petitioner that neither O.II, R.2 nor O.XXIII, R.1, C.P.C. were attracted as both the suits were pending at the time when first suit was withdrawn.

(b) Words and phrases---

----"Unsoundness of mind"---Legal and medical meaning---Distinction---Factum of unsoundness of mind legally and medically does not convey similar meaning---From medical point of view even a feeble-minded person or a borderline mentally deficient is a person of unsound mind---It is a disease, which has to be cured clinically or by use of psychiatric methods but it is not so in law---Insanity is not mental infirmity but something more---Even if a person is not sufficiently 'intelligent to manage his own affairs, such person is not necessarily of unsound mind.

Jamila Begum v. Awam-un-Nass PLD 1978 Lah. 1376; Mahipati v. Mt. Changuna AIR 1934 Nag. 27; George P.O. Sherman v. Edwin Sherman Schora (1875) 24 WR 124, Joshi Rain Krishan v. Rukmini Bai AIR 1949 All. 449; Mst. Teka Devi v.Gopal Das AIR 1930 Lah. 289 and Sonabati Debi v, Narayan AIR 1935 Pat. 423 rel.

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

--O. XXXII, R.15---Insanity---Determination---Duty of Court---Question of insanity in a civil suit cannot be determined without recording evidence by affording proper opportunity of hearing to the party concerned to substantiate the factum of insanity by leading evidence---Court is duty bound to protect the interest of a lunatic person.

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

----O. II, R.2, O. VII, R.11, O. XXIII, R.1 & O. XXXII, R.15--Rejection of plaint---Withdrawal of suit during pendency of second suit---Two suits were pending between the parties, earlier suit was filed on the ground that owner of suit property was in wrongful confinement of defendants and his signature on the sale deed was obtained by undue influence and pressure whereas the second suit was filed on the ground that the owner of suit property was person of unsound mind---During the pendency of both the suits earlier suit was withdrawn unconditionally, whereafter on application under O.VII, R.11, C.P.C., plaint of-second suit was rejected---Appeal and revision filed by owner of the suit property were dismissed by Appellate Court and High Court, respectively---Validity---In view of the pendency of second suit, provisions of O.XXIII, R.1, C.P.C. could not be made applicable because second suit was pending adjudication at the relevant time---Parties in both the suits were different and cause of action was also different---In earlier suit genuineness and authenticity of documents which remained in question were challenged on the basis of coercion, wrongful confinement and threats to the life of the owner of suit property, whereas in the second suit same documents were challenged on the basis of insanity of the owner---Such aspect of the matter should have been considered prior to invoking of the provisions as contained in O.VII, R.11., C.P.C.---Without having gone through the entire evidence and peculiar circumstances of the case, the provisions as contained in O.II, R.2, C.P.C. could not have been made applicable---Question as to whether the provisions as contained in O.XXXII, C.P.C. could have been ignored also deserved consideration---Judgments and decrees passed by High Court as well as Appellate Court were set aside and the second suit was remanded to Trial Court for decision on merits after recording of evidence.

Sheikh Khizar Hayat, Advocate Supreme Court for Appellant.

Gulzarin Kiani, Advocate Supreme Court and Arshad Ali Ch. Advocate-on-Record for Respondents.

Date of hearing: 21st November, 2005.

P L D 2006 Supreme Court 209

Present: Iftikhar Muhammad Chaudhry, C.J., Faqir Muhammad Khokhar and M.Javed Buttar, JJ

ASSISTANT COLLECTOR OF CUSTOMS AFU, AIRPORT, LAHORE---Appellant

Versus

Messrs TRIPPLE-M (PVT) LTD. Through Managing Director and 4 others---Respondents

Civil Appeal No.2036 of 2004, decided on 9th-January, 2006.

(On appeal from the judgment dated 10-1-2002 of the Lahore High Court, Lahore passed in W.P. No.6490 of 1994).

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

--S. 32(3)---Constitution of Pakistan (1973), Art.185(3)---Notice of demand---Limitation---Leave to appeal was granted by Supreme Court to give authoritative determination with regard to questions of limitation and unreasonable delay.

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

----S. 32(3)---Notification S.R.O. 561(I)/88, dated 30-6-1988---Regulatory duty, payment of---Notice of demand under S.32(3) of Customs Act, 1969---Limitation---About two months after clearance of goods, on 10-7-1989 authorities issued notice of demand for recovery of regulatory duty---After receiving reply of importer, authorities remained silent for about three years, when on 31-8-1992 a notice of hearing was issued to the importer---During the hearing, authorities decided the matter against importer but High Court, in exercise of Constitutional jurisdiction, set aside the order passed by the Authorities on the ground that the order-in-original had been passed after an unreasonable delay---Plea raised by the authorities was that the statutory notice had been issued within the prescribed period of time, while second notice was only a notice for hearing of the case---Validity---Statutory notice was issued within less than two months of-the clearing of the consignment and thus was within time---Subsequently notice dated 31-8-1992, was a notice of date of hearing requiring the importer to appear before the Authorities for showing cause as to why short recovery as regulatory duty be not recovered---Issuance of notice of date of hearing was not a fresh show cause notice---Second notice had to be treated as a notice in continuation of the proceedings before the Authorities which had commenced within time, under the earlier show-cause notice and was merely a notice of date of hearing of the case---Proceedings initiated through show-cause notice dated 10-7-1989, were well within time and were not hit by the period of limitation prescribed under S.32(3) of Customs Act, 1969, and were never dropped---Order of High Court that the order-in-original passed by Authorities was not within a reasonable time from the date of issuance of notice dated 10-7-1989, the same were neither here nor there---No order could be scrapped or annulled or set aside, only on the ground that the same had been passed with unreasonable delay---No such concept was attached to judicial and quasi-judicial proceedings, unless provided in the statute---Such observation of High Court had no value in the eye of law and judgment passed by High Court was set aside---Appeal was allowed.

A. Karim Malik Senior Advocate Supreme Court and M.A.Qureshi, Advocate-on-Record (absent) for Appellant.

Mushtaq Ahmad Chaudhry, Advocate Supreme . Court for Respondent No.1.

Date of hearing: 20th December, 2005.

P L D 2006 Supreme Court 214

Present: Iftikhar Muhammad Chaudhary, C.J., and M. Javed Buttar, J

Mst. MOBIN FATIMA---Petitioner

Versus

MUHAMMAD YAMIN and 2 others---Respondents

Civil Petition No.725-K of 2005, decided on 23rd November, 2005.

(On appeal from the judgment dated 27-4-2005 of the High Court of Sindh, Karachi passed in C.P. No.S-241/2004).

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

----S. 5---Constitution of Pakistan (1973), Art.185(3)---Limitation---Condonation of delay---No notice for date of hearing---Petition for leave to appeal was filed with a delay of 116 days, against judgment passed by High Court---Plea raised by petitioner was that High Court reserved its judgment without giving any date for its announcement---Validity---Office of High Court reported that matter was never notified, no notice was issued to the parties/counsel for announcement of judgment---Concerned Branch of High Court did not receive any intimation from the concerned Court for such act---.Sufficient material was available on record to show that sufficient material/justifiable grounds existed for condonation of delay---Delay was condoned.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Error of law---Conclusion drawn by Courts below---High Court in exercise of its jurisdiction under Art.199 of the Constitution, can interfere if wrong or illegal conclusions are drawn by the Courts below, which are not based on facts found because each of such acts amounts to an error of law---Such error of law can always be corrected by High Court.

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

----S. 15---Constitution of Pakistan (1973), Art. 199---Ejectment of tenant---Constitutional jurisdiction of High Court---Scope---Substitution of findings of fact---Rent Controller dismissed ejectment application but Appellate Court allowed the appeal and passed eviction order---High Court in exercise of Constitutional jurisdiction reappraised the evidence, set aside the judgment passed by Lower Appellate Court and restored the order of Rent Controller---Plea raised by landlady was that High Court in exercise of Constitutional jurisdiction could not act as Court of appeal---Validity---Interference was made by High Court merely because a different conclusion was possible from the facts found, which did not amount to error of law---Lower Appellate Court discussed entire evidence and its judgment did not suffer from any misreading or non-reading of evidence---Findings of Lower Appellate Court were cogent and consistent with the evidence on record and its conclusions were in accordance with the facts found---Finality was attached to the findings of judgment of Lower Appellate Court, which could not be interfered with by the High Court merely because a different conclusion was also possible---High Court exceeded its jurisdiction and acted as a Court of appeal, which was not permissible under law---High Court ought not to have undertaken the exercise of reappraisal of evidence---Petition for leave to appeal was converted into appeal and judgment passed by High Court was set aside and that of Lower Appellate Court was restored---Appeal was allowed.

Secretary to the Government of the Punjab Forest Department, Punjab, Lahore v. Ghulam Nabi and 3 others PLD 2001 SC 415 and United Bank Limited v. Mrs. Alafia Hussain 1999 SCMR 1796 rel.

Abdul Qadir Khan, Advocate Supreme Court and A. Aziz Khan, Advocate-on-Record for Petitioner.

Anwar Hussain, Advocate Supreme Court and Ali Akbar, Advocate-on-Record for Respondent No.1.

Nemo. for Respondents Nos.2 and 3.

Date of hearing: 23rd November, 2005.

P L D 2006 Supreme Court 219

Present: Javed Iqbal and Raja Fayyaz Ahmad, JJ

MUHAMMAD AMIN---Petitioner

Versus

THE STATE---Respondent

Criminal Petitions Nos. 46 and 49-Q of 2005, decided on 24th October, 2005.

(On appeal from the judgment dated 5-9-2005 passed by the High Court of Balochistan, Quetta, in Criminal Appeal No.56 of 2003).

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

----S. 164---Qanun-e-Shahadat (10 of 1984), Art.39---Confession---Confessional statement', when to form sole basis for conviction---Confession, judicial or extra judicial, whether retracted or not retracted, can in law validly form the sole basis of conviction of its maker, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture, coercien or inducement.

Mst. Joygun Bibi v. The State PLD 1960 SC (Pak) 313; The State v. Minhun alias Gul Hassan PLD- 1964 SC 813; Muhammad Yaqoob V. The State 1992 SCMR 1983; Mokha v. Zulfiqar PLD 1978 SC 10; Zakir Khan v. The State 1995 SCMR 1793; Roshan v. The State PLD 1977 SC 557; Umar Din v. Crown ILR 1921 Lah. 129; State v. Waqar Ahmed 1992 SCMR 950; Nadir Hussain v. The Corwn 1969 SCMR 442 and Hibib Ullah v. The State 1971 SCMR 341 ref.

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

-- S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7(a)-Constitution of Pakistan (1973), Art.185(3)---Criminal Procedure Code (V of 1898), 5.164---Qanun-e-Shahadat (10 of 1984), Art.39---Confession---Judicial confession got recorded with promptitude had depicted its voluntariness and though retracted subsequently by the accused, the same did not suffer from any infirmity or irregularity---Said confession was corroborated by the ocular testimony, medical evidence and the recovery 'of the pistol at the pointation of accused---Entire evidence had been appreciated in accordance with the well-entrenched prevalent principles of criminal administration of justice by the Courts below and their finding being well based did not warrant any interference by Supreme Court---Leave to appeal was refused to accused accordingly.

Mst. Joygun Bibi v. The State PLD 1960 SC (Pak) 313; The State v. Minhun alias Gul Hassan PLD 1964 SC 813; Muhammad Yaqoob v. The State 1992 SCMR 1983; Mokha v. Zulfiqar PLD 1978 SC 10; Zakir Khan v. The State 1995 SCMR 1793; Roshan v. The State PLD 1977 SC 557; Umar Din v. Crown ILR 1921 Lah. 129; State v. Waqar Ahmed 1992 SCMR 950; Nadir Hussain v. The Corwn 1969 SCMR 442 and Hibib Ullah v. The State 1971 SCMR 341 ref.

M. Aslam Chishti, Senior Advocate Supreme Court and S.A.M. Quadri, Advocate-on-Record for Petitioner (in both Cases).

Nemo for the State.

Date of hearing: 24th October, 2005.

P L D 2006 Supreme Court 226

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

HAPPY FAMILY ASSOCIATE through CHIEF EXECUTIVE---Petitioner

Versus

Messrs PAKISTAN INTERNATIONAL TRADING COMPANY---Respondent

Civil Petition No.1317-L of 2005, decided on 19th January, 2006.

(On appeal from the order dated 20-6-2005 passed by the Lahore High Court, Lahore in Civil Revision No.2004 of 2003).

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

----O. XXXVII, R.1---Decree for dishonoured cheque---Awarding of damages in such decree---Validity---No amount on any other account including damages can be awarded by Court, except interest in such decree.

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

---Ss. 12(2), 151 & O.XXI, R.23-A---Constitution of Pakistan (1973), Art.185(3)---Execution of decree in money suit---Jon-deposit of decretal amount---Assailing of judgment and decree under S.12(2), C.P.C.---Suit filed by plaintiff was decreed in his favour and defendant instead of assailing judgment and decree in appeal, filed application under S.12(2), C.P.C. which was dismissed---Validity---Defendant sealed his own fate by not challenging the judgment and decree and it had attained finality---Contentions of defendant could have been examined, if petition for leave to appeal/appeal against decree was filed in Supreme Court---Application under S.12(2),C.P.C. or S.151, C.P.C. was no substitute to regular appeal or revision or review, nor such provisions could be construed as something over and above the normal modes of questioning a decree by way of appeal, revision or review---Supreme Court observed that it was unfortunate that some litigants attempt to frustrate decree/its execution by resorting to provisions of Ss.12(2) and 151, C.P.C., unnecessarily---Objection to execution by judgment-debtor could not be considered unless judgment-debtor had deposited decretal amount in Court or had furnished a security for its payment, under O.XXI, R.23-A, C.P.C.---Both the Executing Court and High Court had correctly found that objections of defendant to execution of decree were liable to be dismissed for failure to comply with the provisions of O.XXI, R.23-A, C.P.C., in spite of the order of Executing Court---Leave to appeal was refused.

Malik Gul Hassan and Co. and others v. Allied Bank of Pakistan 1996 SCMR 237; Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690 and Fidaally v. Syed Iqbal Shabbir and others PLD 1960 Kar. 241 distinguished.

A.K. Dogar, Advocate Supreme Court and M. Rafi Siddiqui, Advocate-on-Record for Petitioner.

Jehangir A. Jhojha, Advocate Supreme Court for Respondent.

Date of hearing: 3rd January, 2006.

P L D 2006 Supreme Court 230

Present: Rana Bhagwandas, Saiyed Saeed Ashhad and Hamid Ali Mirza, JJ

ENGLISH BISCUIT MANUFACTURES (PVT.) LIMITED and, another-Petitioners

Versus

MONOPOLY CONTROL AUTHORITY and others---Respondents

C.P.L.A. No.1191 of 2004, decided on 16th December, 2005.

(On appeal from judgment of Sindh High Court, Karachi dated 30-3-2004 passed in M.A.No.7 of 2003).

(a) Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance (V of 1970)-----

----Ss. 3, 11 & 14---Special inquiry, non-holding of---Condition precedent---Withdrawal of . show-cause notices---Grievance of complainant was that Monopoly Control Authority had withdrawn the show-cause notices and dropped the proceedings against accused---Validity---Monopoly Control Authority had been given discretion under S.14 of Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970, not to hold special inquiry, if application/complaint was found to be frivolous or vexatious or based on insufficient facts---Wrong issuance of notices to accused party would not bring the proceedings conducted by Monopoly Control Authority within the ambit of S.11 of Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970---From the facts contained in complaint, the Authority found that there was no contravention of S.3 of Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970, and complaint was frivolous and vexatious---Monopoly Control Authority acted within the authority conferred upon it by S.14 of Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970, in withdrawing the show-cause notices issued to the parties and dropping the proceedings---Order of the Authority could not be considered to be an order under S.11 of Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970, so as to be appealable under S.20 of the Ordinance.

(b) Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance (V of 1970)-

--Ss. 3, 11, 12 & 14---Passing of order by Monopoly Control Authority---Principles---Provisions of S,12 of Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970, would not have come into play or could not be resorted to until the Authority, in pursuance of special inquiry, had come to the conclusion that there was prima facie contravention of 'S.3 of Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970 and it was necessary to initiate proceedings in public interest---Initiation of proceedings by Monopoly Control Authority has been made dependent upon the finding of special inquiry conducted under S.14 of Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970, rendering or establishing contravention of S.3 of the Ordinance, whereupon it would order initiation of statutory proceedings under S.11 of Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970-Once statutory proceedings under S.11 of Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970, are commenced, Monopoly Control Authority would have the power or authority to make an order under S.11 (2) of the Ordinance, recommending/ordering one or more remedial/corrective measures enumerated and specified in S.12 of Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970, to be adopted for arresting the contravention of S.3 the Ordinance.

(c) Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance (V of 1970)---

----Ss.3, 11 & 12---Cognizance by Monopoly Control Authority---Principles---Provision of S.3 of Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970, is a remedial section to be read and acted upon in conjunction with S.11 of the Ordinance enabling the Authority to adopt or order anyone or more of the remedies enumerated in S.12 of Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970, for redress of the grievance on account of violation of S.3 of the Ordinance.

?

(d) Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance (V of 1970)-----

----Ss. 11 & 12---Orders of Monopoly Control Authority---Scope---While making one or more orders specified in S.12 of Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970, the order is to be deemed to be an order under S.11 of the Ordinance and not under S.12 of Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970.

(e) Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance (V of 1970)---

----Ss. 3, 11, 12, 14, 19 & 20---Constitution of Pakistan (1973), Art.185(3)---Appeal to High Court---Maintainability---Special inquiry non-holding of---Withdrawal of show-cause notices---Filing of complaint by less than 25 persons---Complaint of petitioner was dismissed by Monopoly Control Authority on the ground that the petitioner was not an aggrieved person---Show-cause notices issued to respondents were withdrawn by Monopoly Control Authority and proceedings were dropped---Appeal filed by the petitioner was also dismissed by High Court, being not maintainable---Validity---Person aggrieved by an order under Ss. 11 or 19 of Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970, had a right to file appeal under S.20 of the Ordinance---Order passed by Monopoly Control Authority was not an order under Ss.11 or 19 of Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970 but was an order under S.14 of the Ordinance, against which no appeal could be entertained in view of the provisions of S.20. of the Ordinance---Neither the order of the Authority, nor judgment of High Court suffered from any illegality, impropriety or grave irregularity nor it suffered from misconstruction or misinterpretation of any provisions/sections of Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970---High Court was justified in holding that complaint filed by petitioner was not maintainable as it was not filed or presented by the requisite number of 25 persons as required by S.14(2) of Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970 and that the order of the Authority was not an order under S.11 of the Ordinance---High Court was also right in holding that Monopoly Control Authority was not legally bound to adopt or pass an order recommending anyone or more of the directives, prohibitions or limitations enumerated in S.12 of Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970---Supreme Court declined to interfere with the order passed by High Court---Leave to appeal was refused.

Shaiq Usmani, Senior Advocate Supreme Court, Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, Aziz A. Munshi Senior Advocate Supreme Court, Salman Aslam Butt, Advocate,Supreme Court, Mehr Khan Malik, Advocate-on-Record for Petitioners.

M. Bilal, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondent No.1.

Fakhruddin G. Ehrahim, Senior Advocate Supreme Court, and M.A. Khattak, Advocate-on-Record for Respondents Nos. 2 and 3.

Munir A. Malik, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondent No.4.

Date of hearing: 16th December, 2005.

P L D 2006 Supreme Court 243

Present: Rana Bhagwandas, Khalil-ur-Rehman Ramday and Nasir-ul-Mulk, JJ

UNIVERSITY OF THE HEALTH SCIENCES LAHORE and others---Petitioners

Versus

Sh. NASIR SUBHANI and others---Respondents

Civil Petition No.314 of 2005, decided on 27th January, 2006.

(On appeal from the judgment and order of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 3-12-2004 passed in W.P. No.2896 of 2004).

Educational institution-

----Examination of M.B.,B.S.---Award of grace marks to a student in failing subjects---Validity---Medical practitioners had to deal with precious human lives, thus they would be expected to be fully equipped with professional skill, knowledge and expertise in medical discipline---Award of grace marks would be against the settled principles of good governance and improving higher standard of professional education---Principles.

There are serious doubts whether the Vice-Chancellor of University has statutory powers under the statute of the University or any other law for the time being in force to grant grace marks in each subject and thereby deteriorate the quality of education which has already gone below standard. The Syndicate of a University might have certain discretion but the Vice-Chancellor alone, would not be competent to exercise all the powers of the Syndicate and benevolently grant grace marks to the failed candidates in theory as well as practical subjects. It is well-settled that once a student fails to qualify First Professional M.B.,B.S, Examination and avails three chances he would not be entitled to promotion to the Second Professional M.B.,B.S. Class. Even otherwise, this culture of seeking award of grace marks is against the settled principles of good governance and improving the higher standards of, professional education more particularly medical education, because the doctors are required to deal with precious human lives. Medical practitioners are expected to be fully equipped with professional skill, knowledge and expertise in the medical discipline to practise,, the profession, to deal with the patients and looking after their health' and hygienics.

Shahid Karim, Advocate Supreme Court for Petitioners.

Shoukat Aziz Siddiqui, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondents.

Date of hearing: 27th January, 2006.

P L D 2006 Supreme Court 246

Present: Muhammad Nawaz Abbasi and Nasir-ul-Mulk, JJ

SARFRAZ ALI KHAN---Appellant

Versus

FEDERATION OF PAKISTAN and others---Respondents.

Civil Appeal No.1225 of 2001, decided on 24th November, 2005.

(On appeal from the judgment of the Federal Service Tribunal , Islamabad, dated 2-2-2001 passed in Appeal No.903(R) of 1999).

(a) Fundamental Rules---

----F.R. 10-A(a)---Compilation of Fundamental and Supplementay Rules, Vol. I, Rr.3 & 4-A---Mental and physical fitness of civil servant for further service, determination of---Selection Board, without medical examination of civil servant by a Medical Board, could not determine his fitness---Not permitted by law to declare civil servant 'medically unfit to hold a particular post on basis of remarks of reporting or countersigning authority in A.C.R. regarding his poor health or his suffering from a disease likely to endanger health of other servants---Civil servant could not be superseded or ignored on ground of ailment, unless he was medically so categorized on basis of medical examination conducted by competent medical authority in accordance with Rules on the subject---Principles.

(b) Service Tribunals Act (LXX of 1973)---

----S. 4(b)---Promotion---Deprivation of---Appeal against---Authority depriving civil servant of his legitimate right of promotion in an illegal manner and by improper exercise of discretion---Held: Civil servant could avail remedy of appeal under S.4(b) of Service Tribunals Act, 1973.

Fazal Ellahi Siddiqui, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for Appellant.

Raja Muhammad Irshad, Dy. A.-G. with Raja Abdul Ghafoor, Advocate-on-Record for Respondents.

Date of hearing: 24th November, 2005.

P L D 2006 Supreme Court 249

Present: Muhammad Nawaz Abbasi, and Saiyed Saeed Ashhad, JJ

TANVEER HUSSAIN---Petitioner

Versus

DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS and 2 others---Respondents

Civil Petition No.2597 of 2005, decided on 23rd January, 2006.

(On appeal from judgment of Federal Service Tribunal, Islamabad, dated 7-9-2005 in Appeal No.971(R)(CS) 2002).

(a) Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 9 & 10---Service Tribunals Act (LXX of 1973), S.4(1), proviso (a)---Appeal before Service Tribunal---Limitation---Civil servant would not be required to wait indefinitely for decision of departmental appeal---Maximum period of 120 days would be available to civil servantfor filing appeal before Tribunal under S.4 of Service Tribunals Act, 1973 i.e. 90 days for waiting decision of departmental appeal and 30 days for filing appeal before Tribunal after expiry of such 90 days---Maximum period of 90 days would be available to civil servant for filing appeal before Tribunal under S.10 of Removal from Service (Special Powers) Ordinance, 2000 i.e. 60 days for waiting decision of departmental appeal and 30 days for filing appeal before Tribunal after expiry of such 60 days---After promulgation of the Ordinance, period of limitation for filing appeal before Tribunal would be governed by S.10 thereof having overriding effect over proviso (a) to S.4(1) of Service Tribunals Act, 1973, which stood impliedly repealed--Principles.

Syed Firdos Ali v. Secretary, Establishment Division, Islamabad and 2 others 1997 SCMR 1160; Ghulam Sarwar Bhutto v. Chief Secretary, Government of Sindh and 2 others 2001 SCMR 1229; Teekam Das M. Hasseeja, Executive Engineer, WAPDA v. Chairman WAPDA and another 2002 SCMR 142; Mumtaz Ali Khan Rajban and another v. Federation of Pakistan and others PLD 2001 SC 169; The Punjab Province v. Malik Khizar Hayat Khan Tiwana PLD 1956 FC 200; Saiyyid Abul A'la Maudoodi and others v. The Government of West Pakistan and others PLD 1964 SC 673; Neimat Ali Goraya and 7 others v. Jaffar Abbas, Inspector/Sargeant Traffic through S.P. Traffic and others 1996 SCMR 826 and Dur Muhammad v. Abdul Sattar PLD 2003 SC 828 rel.

(b) Interpretation of statutes---

----Implied repeal of an earlier statute or a provision thereof by a later statute---Essential conditions stated.

When provision of former statue is inconsistent and in conflict with a provision of a later statute and the two cannot be reconciled or harmonized so as to stand together, then the provision of the earlier statute will give way to similar provision in the later statute on the doctrine of implied appeal.

The necessary conditions of implied repeal of an earlier statute or a provision thereof by a later statute are that; firstly, the two statutes cannot stand or co-exist together; secondly, to stand side by side, they will lead to absurd consequences; and thirdly, when the entire subject matter of the earlier statute or a provision thereof is taken away by the later statute.

?

Mumtaz Ali Khan Rajban and another v. Federation of Pakistan .and others PLD 2001 SC 169; The Punjab Province v. Malik Khizar Hayat Khan Tiwana PLD 1956 FC 200; Saiyyid Abul A'la Maudoodi and others v. The Government of West Pakistan and others PLD 1964 SC 673; Neimat Ali Goraya and 7 others v. Jaffar Abbas, Inspector/Sargeant Traffic through S.P'. Traffic and others 1996 SCMR 826 and Dur Muhammad v. Abdul Sattar PLD 2003 SC 828 rel.

(c) Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 3(1)(b), 9 & 10---Compulsory retirement---Misconduct, charge of---Departmental appeal filed on 26-3-2002 was rejected on 23-10-2002---Appeal before Service Tribunal was filed on 30-11-2002---Validity---Period of 90 days as provided under Ss.9 & 10 of Removal from Service (Special Powers) Ordinance, 2000 had expired much before the decision of departmental appeal---Appeal before Tribunal was time-barred.

(d) Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 3(1)(b) & 10---Compulsory retirement---Misconduct, charge of-Undertaking by civil servant not to file appeal before Service Tribunal, if he was given pensionary benefits---Appeal before Tribunal by civil servant after receipt of such benefits---Maintainability---Civil servant, after accepting such benefits, would have no rights to assail order of compulsory retirement as he would be deemed to have waived such right as he acquiesced in such order---Appeal was dismissed in circumstances.

Ch. Shafiq Muhammad Warraich, Advocate Supreme Court and Ejaz M. Khan, Advocate-on-Record (absent) for Petitioner.

Nemo for Respondents.

Date of hearing: 23rd January, 2006.

P L D 2006 Supreme Court 255

Present: Muhammad Nawaz Abbasi and M. Javed Buttar, JJ

Mst. ZAHIDA BIBI---Petitioner

Versus

THE STATE---Respondent

Jail Petition No.182 of 2004, decided on 19th July, 2005.

(On appeal from the judgment dated 15-8-2002 of the Lahore High Court, Lahore passed in Criminal Appeal No.921 of 2001).

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

----S. 302(b)/34---Qanun-e-Shahadat (10 of 1984), Art.46---Constitution of Pakistan (1973), Art.185(3)---Statement of the deceased was not recorded by the Investigating Officer in hospital in presence of the Doctor and further neither any member of the hospital staff was associated at the time of recording her statement, nor the same was got verified by any official of the hospital that the statement was actually made by the deceased---Status of such statement would be of a statement under S.161, Cr.P.C. and not of a "dying declaration" of the deceased---Dying declaration or a statement of a person without the test of cross-examination was a weak kind of evidence and its credibility depended upon the authenticity of the record and the circumstances under which it was recorded---Courts below in complete departure from the principles of appraisal of evidence and the rule of criminal administration of justice, had held the accused guilty of the charge on the basis of hearsay and shaky evidence---Dying declaration allegedly made by the deceased could not. be treated as: an admissible evidence and conviction on the basis of such an evidence on capital charge was not legal and with the exclusion of dying declaration which was the foundation of the prosecution case, the remaining evidence was not sufficient to sustain the conviction---Prosecution, thus, had not been able to prove the charge against the accused beyond reasonable doubt---Petition for leave to appeal was converted into appeal and the accused was acquitted in circumstances.

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

----S. 302(b)/34---Qanun-e-Shahadat (10 of 1984), Art. 46---Dying declaration---Dying declaration like the statement of an interested witness requires close scrutiny and is not to be believed merely for the reason that dying person is not expected to tell a lie.

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

----S. 302(b)/34---Qanun-e-Shahadat (10 of 1984), Art.46---Dying declaration or a statement of a person without the test of cross-examination was a weak kind of evidence and its credibility depended upon the authenticity of the record and the circumstances under which it was recorded.

Zia-ul-Qamar Bhatti, Advocate Supreme Court and A.H. Masood, Advocate-on-Record (absent) for Petitioner.

Ms. Afshan Ghazanfar, A.A.-G. Punjab for the State.

Date of hearing: 19th July, 2005.

P L D 2006 Supreme Court 263

Present: Abdul Hameed Dogar, Mian Shakirullah Jan and Raja Fayyaz Ahmed, JJ

RIAZ MASIH---Petitioner

Versus

THE STATE---Respondent

Jail Petition No.62 of 2005, decided on 7th December, 2005.

(On appeal from the judgment dated 11-6-2004 passed by the Lahore High Court, Rawalpindi Bench in Criminal Appeal No.78-T of 2004).

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

----Ss. 7(b) & 7(h)---Constitution of Pakistan (1973), Art.185(3)---Accused was a habitual car lifter and was involved in many cases---Many incriminating articles including registration books and number plates of different vehicles had been recovered by the police from the house of accused---Stolen car of the present case had also been recovered from the possession of accused---Forensic Science Laboratory had given a positive report about the crime empties collected by the police from the spot--Prosecution witnesses had fully implicated the accused in the commission of offence--Petition for leave to appeal was barred by 198 days for which no plausible explanation had been given---Leave to appeal was declined to accused in circumstances.

Zulfiqar Ahmad Bhutta, Advocate Supreme Court for Petitioner.

Mehmood Ahmed Sheikh, Advocate Supreme Court for the State.

Date of hearing: 7th December, 2005.

P L D 2006 Supreme Court 265

Present: Abdul Hameed Dogar, Muhammad Nawaz Abbasi and Raja Fayyaz Ahmed, JJ

SIKANDAR RAZA---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.321 of 2004, decided on 6th January, 2006.

(On appeal from the judgment dated 5-7-2004 of the Lahore High Court Rawalpindi Bench, Rawalpindi, in Criminal No.404 of 2001).

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

----S. 9(c)---Constitution of Pakistan (1973), Art.185(3)---Irrespective of the ocular testimonies judicial confession of the accused had also been brought on record---Huge quantity of 30 kgs. of "Charas" had been secured at the pointation of accused from inside a Trunk belonging to him---Report of the Chemical Examiner regarding a sample of 1200 grams of "Charas" was in positive---Presence of the recovered "Charas" was in the exclusive knowledge of the accused---"Trunk" from which the "Charas" was recovered, its key whereby the accused had unlocked and opened the "Trunk" and other incriminating articles produced at the trial had further strengthened the prosecution case---Accused had taken a quite contradicting stand in his defence which was not believable---No illegality, misreading or non-appraisal of evidence could be pointed out in the concurrent findings of the two Courts below qua the guilt of accused---Leave to appeal was declined to accused in circumstances.

Altaf Ellahi Sheikh, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 6th January, 2006.

P L D 2006 Supreme Court 267

Present: Abdul Hameed Dogar, Mian Shakirullah Jan and Raja Fayyaz Ahmed, JJ

AHMAD BAKHSH---Petitioner

Versus

THE STATE---Respondent

Jail Petition No.-151 of 2003, decided on 5th December, 2005.

(On appeal from the judgment dated 24-2-2003 passed by the Lahore High Court, Rawalpindi Bench in Criminal Appeal No.244-J of 2001).

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

---S. 302(b)-Constitution of Pakistan (1973), Art.185(3)---Prosecution had successfully brought on record the evidence of the complainant, the extra-judicial confession, recovery of dead body on the pointation of accused and recovery of string---Prosecution witnesses had categorically stated that the accused had voluntarily confessed to kill the deceased by strangulation, because he suspected her to be a lady of bad character--Accused, however, to substantiate his stance could not even refer to a single person with whom the deceased had earlier eloped or any person from whose custody she was recovered---Impugned judgment did not suffer from any illegality, infirmity, misreading or non-appreciation of evidence---Leave to appeal was refused to accused accordingly.

Rafaqat Hussain Shah, Advocate Supreme Court for Petitioner.

S.M. Siddique Khan, Advocate Supreme Court for Respondent.

Date of hearing: 5th December, 2005.

P L D 2006 Supreme Court 270

Present: Jawed Iqbal, Mian Shakirullah Jan, Raja Fayyaz Ahmed, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhari, JJ

JEHANDAD and 2 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Petition No.35(S) of 2005, decided on 31st January, 2006.

(On appeal from the judgment dated 12-5-2005 of the Federal Shariat Court passed in Criminal Miscellaneous No.77-I of 2004).

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

----Art. 185(3)---Federal Shariat Court by means of the impugned order had dismissed the application of the accused for summoning the entire record of the proceedings conducted by the Military Court and of the High Court and affording them an opportunity for perusing the same for evolving a strategy for their defence----All the proceedings conducted by the Military Court were set aside by the High Court and Supreme Court which culminated into fresh trial, which had already been concluded and at the moment appeal was pending adjudication before Federal Shariat Court and the same would be decided on merits in accordance with law---Fate of the said appeal could not be adjudged during its pendency on conjectural presumptions---Even otherwise, the impugned order being an ad interim order could not be assailed by invoking the provisions as contained in Art. 185(3) of the Constitution--Leave to appeal was refused to accused in circumstances.

Said Khan v. Aya Khan 1979 SCMR 577; Ismat Khanum Toor v. Riaz Ali Khan 1978 SCMR 334; Abdul Hamid v. Sher Alam. 1968 .SCMR 1143; Muhammad Sadiq v. Bashir Ahmed PLD 1966 SC 717 and Zafarullah Khan v. Abdul Rehman 1971' SCMR 702 ref.

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

----Art. 185(3)---Leave to appeal against interim order---Scope---Entertainment of petition for leave to appeal against interim order and hearing of case piecemeal, is not desirable.

Said Khan v. Aya Khan 1979 SCMR 577; Ismat Khanum Toor v. Riaz Ali Khan 1978 SCMR 334; Abdul Hamid v. Sher Alam 1968, SCMR 1143; Muhammad Sadiq v. Bashir Ahmed PLD 1966 SC 717 and Zafarullah Khan v. Abdul Rehman 1971' SCMR 702 ref.

Fazal Ellahi Siddiqui, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioners.

M. Saeed Khan, Addl. A.-G., N.-W.F.P. for the State.

Date of hearing: 3rd January, 2006.

P L D 2006 Supreme Court 273

Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ

MUHAMMAD LATIF---Petitioner

Versus

THE STATE---Respondent

Jail Petition No.45 of 2005; decided on 30th December, 2005.

(On appeal from the judgment of Lahore High Court, Lahore, dated 19-10-2004 passed in Murder Reference No.311 of 2000 and Criminal Appeal No.559 of 2000).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art.l85(3)---Leave to appeal, refusal of---Accused armed with a rifle having prepared himself went to the place of occurrence with the intention to kill the deceased and it was not a sudden occurrence as pleaded in the defence version---Defence plea of self-defence had no substance in the light of prosecution evidence---Trial Court after having found the accused guilty of the charge of murder had sentenced him to death, whereas High Court being of the view that the accused had committed the offence under the influence and command of his father reduced his sentence from death to imprisonment for life---Impugned judgment did not warrant any interference---Leave to appeal was declined to accused accordingly.

Tariq Bilal, Advocate Supreme Court for Petitioner.

Sardar Muhammad Siddique, Advocate Supreme Court for the State.

Date of hearing: 30th December, 2005.

2006 P L D Supreme Court 277

Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ

MUHAMMAD AKRAM----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.326 of 2004, decided on 30th December, 2006.

(On appeal from the judgment of Lahore High Court, Lahore, dated 21-4-2004 passed in Criminal Appeal 337 of 2003 and Criminal Revision 297 of 2003).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Occurrence having taken place in broad-daylight in the street near the residence of the parties, presence of eye-witnesses at the scene of incident was quite natural and doubtless---Eye-witnesses had no enmity or malice against the accused---Ocular testimony was confidence-inspiring, truthful and unimpeachable and was duly supported by medical evidence---Accused had admitted the occurrence giving his own version, which did not indicate even a remote possibility of the happening of the incident in such manner---According to evidence, accused on the instigation of the acquitted accused had fired a shot at the most sensitive part of the body of the deceased which proved fatal---Murder, thus, was neither an accidental one, nor a sudden occurrence to bring the case within the provisions of S.302(c), P.P.C. Leave to appeal was refused to accused in circumstances.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Petitioner.

Muhammad Zaman, Advocate Supreme Court for the State.

Date of hearing: 30th December, 2005.

P L D 2006 Supreme Court 279

Present: Justice Abdul Hameed Dogar, Chairman, Justices Muhammad Nawaz Abbasi, Mian Shakirullah Jan, Dr. Allama Khalid Mehmood and Allama Rashid

Ahmed Jullundhari, Members

HAFEEZ alias HAFEEZA----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.26(S) of 2003, decided on 19th December, 2005.

(On appeal from the judgment, dated 10-4-2002 of the Federal Shariat Court, Bench at Lahore, in Criminal Appeal No.6-L of 2001).

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S. 12---Penal Code (XLV of 1860), S.377---Constitution of Pakistan (1973), Art.203-F(2B)---Leave to appeal was granted to accused by Supreme Court to reappraise the evidence in order to ascertain whether the testimony of the victim in particular was properly appreciated by the Courts below or not.

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

----S. 12---Penal Code (XLV of 1860), S.377---Appraisal of evidence---Prosecution evidence against all the three accused in the case was identical and on the same footing, but the testimony of the victim and that of the complainant had not been believed against the 'two acquitted accused---Anal swabs of the victim, no doubt, were found to be stained with semen, but the belated sending of the same from Malkhana to the Chemical Examiner was not explained---Version put forth by the victim was not supported by medical evidence---Defence version taken by accused had reflected the existence of some dispute between the parties prior to the incident and possibility of his false implication in the case could not be ruled out---Accused was acquitted in circumstances.

Nemo for Appellant.

Raja Saeed Akram, Additional Advocate-General, Punjab for the State.

Date of hearing: 19th December, 2005.

2006 P L D Supreme Court 283

Present: Javed Iqbal, Muhammad Nawaz Abbasi and Raja Fayyaz Ahmed, JJ

MUHAMMAD AMEER----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.322, Criminal Appeal No.203 of 1999, Criminal Revision No.186 of 1999 and Murder Reference No.111 of 1999, decided on 27th July, 2005.

(On appeal from the judgment of Lahore High Court, Lahore, dated 27-5-2003 passed in Murder Reference No.111 of 1999 and Criminal Appeals 203 of 1999, with Civil Revision No.186 of 1999).

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Case was of two versions---Case of accused was that be having come to know about the immoral act of deceased with his daughter lost self-control and in the heat of passion due to "Ghairat" under grave and sudden provocation fired at the deceased---Evidence on record did not suggest that accused at any time had seen his daughter and the deceased together at any place---Version of the accused even if is given full weight, still the element of grave and sudden provocation would be missing and it could hardly be suggested that the accused on receiving the information about the act of the deceased, was provoked and instead of setting the machinery of law at motion against the deceased, took the law in his own hands on the excuse of grave and sudden provocation---Commission of an offence due to "Ghairat" or family honour must be differentiated from grave and sudden provocation in consequence to which crime was committed---Plea of grave and sudden provocation might not be available to an accused who having taken plea of "Ghairat" and family honour committed the crime with premeditation---Accused with the intention to take revenge of the immoral act of the deceased of outraging the modesty of his daughter having prepared himself to commit the crime, armed with a gun, went to the place of occurrence and fired successive shots at the deceased--Action of accused, therefore, was not covered by the provisions of S.302(c), P.P.C. as the same might be attracted in a case in which the essential ingredients of Qatl-i-Amd punishable under S.302(a) & (b), P.P.C. were missing---Leave to appeal was declined to accused in circumstances.

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

----Ss. 302(b) & 302(c)---Commission of offence due to "Ghairat" or family honour and on grave and sudden provocation---Distinction---Commission of an offence due to "Ghairat" or family honour must be differentiated from grave and sudden provocation in consequence to which crime is committed in the light of facts and circumstances of each case---Plea of grave and sudden provocation may not be available to an accused who having taken plea of "Ghairat" and family honour committed to crime with premeditation.

Niaz Ahmed Rathore, Advocate Supreme Court for Petitioner.

Ch. Munir Sadiq, Advocate Supreme Court for the State.

Date of hearing: 27th December, 2005.

2006 P L D Supreme Court 288

Present: Abdul Hameed Dogar, Mian Shakirullah Jan and Raja Fayyaz Ahmed, JJ

INAM DIN and another----Petitioners

Versus

THE STATE----Respondent

Jail Petition No.149 of 2005, decided on 7th December, 2005.

(On appeal from the judgment, dated 19-4-2005 passed by the Lahore High Court, Lahore, in Criminal Appeal No.1729 of 2001).

Penal Code (XLV of 1860)---

----Ss. 324/34, 337-A(i) & 337-A(ii)---Constitution of Pakistan (1973), Art.185(3)---No plausible explanation had been furnished by the prosecution for belated lodging of F.I.R.---None of the accused was nominated in the F.I.R.--.Prosecution witness, after one month and four days of the occurrence, had disclosed about the involvement of the accused in the crime for the first time before the police, although he had already been examined by the police on the second day of the incident---Admittedly parties were known to each other and in such a situation accused being not nominated in the F.I.R., had made the prosecution case doubtful, benefit of which must be extended to accused---Petition for leave to appeal was converted into appeal and allowed and the accused were acquitted in circumstances.

Rafaqat Hussain Shah, Advocate Supreme Court for Petitioners.

M. Aslam Malik, Advocate Supreme Court for the State.

Date of hearing: 7th December, 2005.

2006 P L D Supreme Court 292

Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ

SAJID----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.47 of 2005, decided on 30th December, 2005.

(On appeal from the judgment of Lahore High Court, Lahore, dated 8-4-2004 passed in Criminal Appeal 125/J of 2001).

Penal Code (XLV of 1860)---

----Ss. 302(b) & 452---Constitution of Pakistan (1973), Art.185(3)---Occurrence had taken place in broad-daylight in the courtyard of the house of the deceased---Police within one and a half hours of the occurrence had recorded the statement of the husband of the deceased, on the basis of which F.I.R. was registered---Eye-witnesses being the inmates of the house were natural witnesses of the incident and despite their relationship with the deceased they had no enmity or malice against the accused and were quite independent in their evidence---Ocular testimony was natural and truthful which was corroborated by medical evidence, motive and attending circumstances and notwithstanding minor discrepancies and contradictions was of unimpeachable character---Digested food in the stomach of the deceased was not suggestive of the happening of the incident before she had taken her breakfast---Eye­witnesses could not be expected to measure the exact distance and any discrepancy in describing the distance would be of no significance to doubt their credibility---Concurrent findings of the Courts below qua the guilt of accused did not suffer from any misreading or non-reading of evidence or any material defect warranting interference in the matter---Leave to appeal was refused to accused accordingly.

Zulfiqar Ahmad Bhutta, Advocate Supreme Court for Petitioner.

Sheikh Mehmood Ahmad, Advocate Supreme Court for the State.

Date of hearing: 30th December, 2005.

P L D 2006 Supreme Court 295

Present: Javed Iqbal, Muhammad Nawaz Abbasi and Raja Fayyaz Ahmed, JJ

RIASAT ALI---Petitioner

Versus

THE STATE---Respondent

Jail Petition No.407 of 2004, decided on 4th January, 2006.

(On appeal from the judgment of Lahore High Court, Multan Bench dated 27-9-2004 passed in Cr. A. No.371 of 2000).

Penal Code (XLV of 1860)---

----S.302(b)---Constitution of Pakistan (1973), Art.185(3)---Accused had admitted the occurrence by taking the plea of self-defence which was not supported directly or indirectly by the prosecution evidence or the attended circumstances---Eye-witnesses were most natural witnesses, one of them had also sustained injuries in the occurrence at the hands of accused---Circumstances leading to the occurrence did not suggest that the complainant party had acted in aggression or the accused had acted in exercise of his right of private defence---Accused had fired two successive shots at the unarmed deceased on the most sensitive part of his body which were supported by the medical evidence---Injuries of deceased had suggested that the shots were fired by the accused with the intention to kill and not to save himself from the aggression of empty-handed opponents---Occurrence was certainly a pre-planned and premeditated one and case against accused did not fall within the ambit of S.302(b), P.P.C. for the purpose of punishment---Leave to appeal was declined to accused in circumstances.

Javed Aziz, Advocate Supreme Court for Petitioner.

Dil Muhammad Tarar, Advocate Supreme Court for Respondent.

Date of hearing: 4th January, 2006.

P L D 2006 Supreme Court 300

Present: Rana Bhagwandas, Khalil-ur-Rehman Ramday and Nasir-ul-Mulk, JJ

MUHAMMAD UMAR WAHID and others---Petitioners

Versus

UNIVERSITY OF HEALTH SCIENCES LAHORE, and others---Respondents

Civil Petition No.45 of 2006, decided on 26th January, 2006.

(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench, Bahawalpur, dated 10-11-2005 passed in Writ Petition No.2029 of 2005).

Statutes and Regulations of University of Health Sciences, Lahore, 2004---

----Regln.3---Constitution of Pakistan (1973), Art.185(3)---Educational institution---First professional Part I of M.B.B.S. examination, non-clearance of---Grievance of petitioners was that their promotion to Part II could not be withheld on account of failure to pass subjects of Part I examination---Validity---Provisions of Regln. No.3 of Statutes and Regulations of University of Health Sciences, Lahore, dated 14-7-2004, were applicable to all medical colleges falling under its authority and the same had imposed a bar on the promotion of students to second year until all subjects in first professional Part I examination were cleared---Such provision of Statutes and Regulations of University of Health Sciences, Lahore, dated 14-7-2004, was not only in conflict with the restrictions imposed by Pakistan Medical and Dental Council but was a further step in achieving the objects for which the provision was incorporated to strengthen the academic competency of students---Supreme Court having not found any error in the conclusion drawn by High Court, leave to appeal was refused.

Alaptagin v. Principal, Saidu Sharif Medical College, Swat and others PLD 2004 Pesh. 307 distingusihed.

Sardar Muhammad Rafiq Khan, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 26th January, 2006.

P L D 2006 Supreme Court 302

Present: Rana Bhagwandas, Khalil-ur-Rehman Ramday and Nasir-ul-Mulk, JJ

MUNICIPAL COMMITTEE, TEHSIL TALAGANG through Chairman---Petitioner

Versus

GHULAM SHABBIR---Respondent

Civil Petition No.1579 of 2003, decided on 30th January, 2006.

(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 22-5-2003 passed in Intra-Court Appeal No.41 of 2000).

Punjab Local Councils (Tax on Transfer of Immovable Property) Rules, 1981---

----R.4---Constitution of Pakistan (1973), Art.185(3)---Transfer of immovable property---Levy of transfer fee---Principles---Respondent was auction-purchaser of land in question and sale was to be effected after registration of sale deed---Petitioner sought recovery of transfer fee prior to registration of sale-deed---High Court, in exercise of its 'constitutional jurisdiction, dismissed the petition of auction-purchaser but Division Bench of High Court set aside the judgment passed by Single Judge of High Court---Validity---Two situations covered under R.4 of Punjab Local Councils (Tax on Transfer of Immovable Property) Rules, 1981, were: when immovable property was transferred through registered sale-deed or orally, followed by mutation in revenue office, then transfer tax became due upon registration of sale-deed or sanctioning of the mutation as the case might be---When transfer of property had neither been through registered deed nor through mutation, only then residuary provision of R.4 (3) of Punjab Local Councils (Tax on Transfer of Immovable Property) Rules, 1981,would come into play and transfer tax would become payable on the completion of sale itself---As the transfer of property in favour of auction-purchaser was to be effected by a registered sale-deed, the tax became due in terms of the provisions of R.4(1) of Punjab Local Councils (Tax on Transfer of Immovable Property) Rules, 1981, and not the residuary sub-rule (3)---Division Bench of High Court came to the correct conclusion in law---Supreme Court declined to interfere with the judgment passed by Division Bench of High Court---Leave to appeal was refused.

Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 44 ref.

Mrs. Afshan Ghazanfer, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 30th January, 2006.

P L D 2006 Supreme Court 306

Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Saiyed Saeed Ashhad, JJ

Mst. MAQSOOD MAI---Appellant

Versus

ABDUL RASHID and 4 others---Respondents

Civil Appeal No.632 of 2002, decided on 31st January, 2006.

(On appeal from the judgment dated 20-10-2001 passed by the Lahore High Court, Bahawalpur Bench in Civil Revision No.362-D of 1987).

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

----Ss.21 & 30---Limitation Act (IX of 1908), Art.10---Pre-emption suit-Limitation-Transfer of possession on the basis of agreement to sell---Imperfect title of vendor---Agreement to sell was executed between vendee and vendor and possession was transferred---Sale deed was registered on 27-11-1980 in favour of vendee in compliance with decree passed by Civil Court in suit for specific performance of agreement to sell---Pre-emptor filed suit on 11-3-1981, which was dismissed by Trial Court being time-barred as possession had already been transferred much earlier than registration of sale deed---Appellate Court set aside judgment and decree passed by Trial Court but High Court in exercise of revisional jurisdiction restored the judgment of Trial Court---Validity---Agreement to sell was not a sale, as such, and hence for such reason, any transfer-of possession, if at all, could not be deemed to be a transfer of possession under sale and prospective pre-emptor could not be expected to follow the delivery of possession---Under the registered agreement to sell, performance of contract was deferred to registration of sale, subject to payment of remaining amount and, most importantly, subject to procurement of sale certificate by the vendor, for, he had acquired the property from Government through auction---Vendor was yet to mature his title and the agreement was to be completed after acquisition of title and through registered document---Sale was never complete and any possession even if delivered would never be considered to be one under the sale---Judgment and decree passed by High Court was set aside and that of Appellate Court was restored---Appeal was allowed.

Muhammad Inayat's case PLD'1994 SC 120 ref.

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

----S.21---Oral sale---Effect---Possession obtained under oral sale though gives a prospective pre-emptor a cause of action but in that case too, the completion of oral sale has to be proved.

Mian Allah Nawaz, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record (absent) for Appellant.

Ejaz Ansari, Advocate Supreme Court and Tanvir Ahmed Khan, Advocate-on-Record (absent) for Respondents.

Date of hearing: 31st January, 2006.

P L D 2006 Supreme Court 309

Present: Khalil-ur-Rehman Ramday and Muhammad Nawaz Abbasi, JJ

ATIQ-UR-REHMAN through (Real Father) and another---Appellants

Versus

MUHAMMAD AMIN---Respondent

Civil Appeal No.846 of 2005, decided on 20th September, 2005.

(On appeal from the judgment of Lahore High Court, Lahore, dated 3-3-2005 passed in C.R. 2084 of 2003).

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Talb-i-Muwathibat and Talb-i-Ishhad, performance of---Proof---Right of pre-emption was a piratical right and pre-emptor must prove essential conditions for exercise of such right strictly in accordance with law---Right of pre-emption could not be claimed without fulfillment of requirements of both such Talbs---Without proving performance of Talb-i-Muwathibat, requirement of Talb-i-Ishhad, even if fulfilled, would be of no consequence---Talb-i-Muwathibat was the foundation for exercise of right of pre-emption---Performance of Talb-i-Muwathibat could not be proved, unless pre-emptor, through positive evidence, proved specific date of knowledge of sale and Majlis in which declaration was made for exercise of right of pre-emption---Principles.

Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315; Muhammad Siddique v. Muhammad Sharif 2005 SCMR 1231; Abdul Qayyum through L.Rs. v. Muslik-e-Alain and another 2001 SCMR 198 and Zarghoon Shah (deceased) through L.Rs. v. Muhammad Yaqoob Khan Civil Appeal No.560 of 1995 rel.

Noor Muhammad v. Abdul Ghani 2000 SCMR 329 not approved.

(b) Punjab Pre-emption Act (IX of 1991)---

----S.13--- Talb-i-Muwathibat, performance of---Proof---Pre-emptor in plaint pleaded knowledge of sale on 14-4-1999, but witness deposed in general terms that he having acquired knowledge of sale about eight months prior to date of making statement fulfilled requirement of Talb-i-Muwathibat and also sent notice of Talb-i-Ishhad on next date of making Talb-i-Muwathibat---Witnesses of pre-emptor also, in general terms, stated that about one year and eight months ago, they, on coming to know of sale, informed pre-emptor, who, in their presence, there and then made announcement of exercise of right of pre-emption---Held, pre-emptor having failed to prove particular date of knowledge of sale had not discharged burden of proving performance of Talb-i-Muwathibat and Talb-i-Ishhad in accordance with S.13 of Punjab Pre-emption Act, 1991 in order to succeed in the suit for pre-emption.

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

----S.115---Revisional jurisdiction of High Court---Scope---Such jurisdiction would confine to the extent of misreading or non-reading of evidence, jurisdictional error or illegality in judgment having material effect on result of case or conclusion drawn was perverse or contrary to law---Interference in such jurisdiction would not be possible for mere fact that appraisal of evidence might suggest another view of the matter---Misreading/non-reading and misappreciation of evidence not same thing---Principles.

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

---Art. 185---Appeal to Supreme Court---Limitation---Condonation of delay---Where the delay was not intentional and deliberate, rather was result of a bona fide mistake, Supreme Court condoned the same and proceeded to decide the appeal on merits.

Syed Fayyaz Ahmad Sherazi, Advocate Supreme Court for Appellants.

M. Anwar Bahour, Advocate Supreme Court for Respondent.

Date of hearing: 20th September, 2005.

P L D 2006 Supreme Court 316

Present: Khalil-ur-Rehman Ramday and Raja Fayyaz Ahmed, JJ

Syed MUHAMMAD AHMED---Petitioner

Versus

THE STATE and others---Respondents

Civil Petition No.507-L of 2005, decided on 8th March, 2006.

(On appeal from the order dated 23-2-2005 of the Lahore High Court, Lahore, passed in Writ Petition No.16975 of 2004).

Penal Code (XLV of 1860)---

----Ss. 420/467/468/471---Criminal Procedure Code (V of 1898), Ss.4(1), 63, 173 & 190---Police Rules, 1934, R.24.7---Constitution of Pakistan (1973), Art.185(3)---High Court had directed that the petitioners before it in the constitutional petition who were accused persons in an F.I.R., would not be treated as accused and would not be challaned in the case, only because the Investigating Officer had informed the High Court that the involvement of the said accused persons in the case could not he established and that they had not forged any document or offered any kind of inducement to the complainant to secure any pecuniary benefit---Investigation according to S.4(1), Cr.P.C. only meant collection of evidence and no more---Determination of guilt or innocence of the accused persons was an obligation cast on the Courts of law which task could never be permitted to be delegated to the police officers investigating a case---Provisions of' S.63, Cr.P.C. had prohibited discharge of an accused person except under a special order of a 'Magistrate---Rule 24.7 of the Police Rules, 1934, had also prohibited cancellation of F.I.Rs without the orders of the Magistrate---Provisions of S.173, Cr.P.C. had provided only that after the available material had been collected by the S.H.O. during investigation, result of the same had to be reported to the Magistrate competent to take cognizance under S.190, Cr.P.C. and thereafter the Magistrate was to decide whether the accused did or did not deserve to be tried---Impugned order passed by High Court only on the alleged opinion of the Investigating Officer, therefore, was not sustainable and the same was set aside by converting the petition for leave to appeal into appeal which was allowed---S.H.O. was directed to proceed with the matter in accordance with law.

S.M. Zameer Zaidi, Advocate Supreme Court with Mahmudul Islam, Advocate-on-Record for Petitioner.

Mian Ghulam Hussain, Advocate Supreme Court with Fateh Khan, A.S.I. for the State.

Nemo for Respondent No.2.

Syed Zahid Hussain Bokhari, Advocate Supreme Court with Haji M. Rafi Siddiqui, Advocate-on-Record for Respondent No.3.

Date of hearing: 8th March, 2006.

P L D 2006 Supreme Court 318

Present: Faqir Muhammad Khokhar and Ch. Ijaz Ahmad, JJ

MUHAMMAD AMEEN---Petitioner

Versus

SARDAR ALI---Respondent

Constitutional Petition No.3369-L of 2004, decided on 9th March, 2006.

(On appeal from the order dated 2-11-2004 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur in C.R. No.176-D/1992).

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

----Arts. 1(3) & 17(2)(A)---Transfer of Property Act ((V of 1882), S.54---Agreement to sell dated 16-11-1981---Non-attestation of agreement by witnesses---Applicability of Qanun-e-Shahadat, 1984 to such agreement---Scope---Qanun-e-Shahadat, 1984 came into force on 26-10-1984, which would not apply retrospectively to already executed documents for being past and closed transaction.

Manzoor Ahmad's case 2002 SCMR 1391; Noor Muhammad's case 2002 SCMR 1301; Syed Muhammad Sultan's case 1997 CLC 1580 and Ramzan's case 2001 MLD 957 rel.

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

----S. 115---Revision---Decision of First Appellate Court being violative of law laid down by Supreme Court---Validity---Appellate Court had committed material irregularity---High Court would be justified to interfere in such decision in exercise of power under S.115, C.P.C.

Inam Naqshband's case PLD 1995 SC 314 and Shaukat Nawaz's case 1988 SCMR 851 rel.

(c) Pleadings---

----Parties would be bound by their pleadings.

Mst. Murad Begum's case PLD 1974 SC 322 rel.

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

----Art. 185(3)---Findings of fact recorded by High Court---Interference with such finding by Supreme Court---Scope.

Supreme Court cannot interfere with findings of fact duly recorded by High Court after proper appreciation of evidence .on record, unless it can be shown that such findings are result of misreading or non-reading of evidence and to accept them would amount to perpetuating a grave miscarriage of justice. This being the practice and the rule of Supreme Court in civil matters, the burden heavily lies on petitioner to point out that findings of fact recorded by High Court are not sustainable on the record.

Allen v. Qubee Warehouse Co. (1887) 12 AC 101; Bibhabats v. Ramendra Narayan 1947 PC 19 and Federation of Pakistan v. Ali Ihsan PLD 1967 SC 249 rel.

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

----Art. 185(3)---Fresh plea could not be raised before Supreme Court.

Ashfaqur Rehman Khan's case PLD 1971 SC 219 rel.

Ch. Muhammad Ashraf, Advocate Supreme Court with Ch. Muhammad Hanif Zahid, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 9th March, 2006.

P L D 2006 Supreme Court 322

Before M. Javed Buttar and Raja Fayyaz Ahmed, JJ

Mst. JANNTAN and others---Petitioners

Versus

Mst. TAGGI through L.Rs. and others---Respondents

Civil Petition No.1179-L of 2005, decided on 23rd February, 2006.

(On appeal from the judgment dated 25-5-2005 of the Lahore High Court Lahore, passed in C.R. No.1102 of 1996).

(a) Specific Relief Act (I e1877)---

----S.42---Constitution of Pakistan (1973), Art.185(3)---Islamic Law---Inheritance---Declaration of title---Limitation---Concurrent findings of fact by two Courts below---Right of co-sharer---Plaintiff and predecessor-in-interest of defendants were brother and sister---Disputed mutation of inheritance was attested in year, 1909, in favour of predecessor-in-interest of defendants only, excluding the plaintiff---Suit filed by plaintiff was dismissed by Trial Court but Appellate Court allowed the appeal and decreed the suit on the ground that father of plaintiff was governed by Shariat in the matter of inheritance---Judgment and decree passed by Appellate Court was maintained by High Court---Plea raised by defendants was that the suit was barred by limitation as it was filed after 70 years---Validity---Two Courts below correctly concluded that father of plaintiff was governed by Shariat in the matters of inheritance---Mutation of inheritance of father of plaintiff, attested in year, 1909 was not decided under custom, as such the mutation did not show that Revenue Officer had information that father of plaintiff left behind a daughter (plaintiff) as well---Such mutation was procured in favour of father of defendants, to the exclusion of plaintiff, by concealing the fact of existence of plaintiff---Plaintiff was proved to be the daughter of predecessor-in-interest of parties who was admittedly the last owner of land in dispute and was governed by Shariat in the matters of inheritance---Under Islamic Law of inheritance, the land automatically devolved on the plaintiff and her brother (father of defendants), the moment their father died---Was immaterial that ownership of plaintiff was not recorded in mutation of inheritance, as it was not a title document---Plaintiff was, therefore, a co-sharer in land in dispute to the extent of her share since very beginning thus the suit was not barred by time---Suit was rightly decreed by Appellate Court and High Court---Supreme Court declined to interfere with the judgments and decrees passed by two Courts below---Leave to appeal was refused.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 ref.

Shahro and others v. Mst. Fatima and others PLD 1998 SC 1512 fol.

(b) West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983)---

----S. 2-A---Inheritance---Past and closed transaction---Disputed mutation was attested in year, 1909, in favour of son of deceased owner, while daughter was excluded---Seventy years later, the daughter assailed the mutation---Plea raised by defendants was that. in view of Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983, it was a past and closed transaction---Validity---Provisions of Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983 were applicable only to those male owners who had acquired any agricultural land under custom from a Muslim---As father of defendants inherited land under Muslim Shariat and not under custom, provisions of Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983, were not applicable in the case.

Ch. Muhammad Abdus Saleem, Senior Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioners.

Hameed Azhar Malik, Advocate Supreme Court/Advocate-on-Record for Respondents.

Date of hearing: 23rd February, 2006.

P L D 2006 Supreme Court 328

Present: Tassaduq Hussain Jillani and Syed Jamshed Ali, JJ

MULTAN ELECTRIC POWER COMPANY LTD. through Chief Executive and another---Petitioners

Versus

MUHAMMAD ASHIQ and others---Respondents

Civil Petition No.2971-L of 2004, decided on 2nd March, 2006.

(On appeal from the judgment dated 31-7-2004 passed by Lahore High Court Bahawalpur Bench, Bahawalpur in W.P. No.4863/2001/BWP).

(a) Electricity Act (IX of 1910)---

----Ss. 26(6) & 26-A---Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997), S.38---Civil Procedure Code (V of 1908), S.9---Detection bill on account of theft or abstraction of energy---Jurisdiction to decide validity of such bill---Scope---Neither Provincial Government nor Advisory Board had original or appellate jurisdiction to examine validity of such bill---Electric Inspector had no jurisdiction to adjudicate such dispute, rather only Civil Court could resolve the same.

Water and Power Development Authority and others v. Mian Muhammad Riaz and another PLD 1995 Lah. 56; Colony Textile Mills Ltd. Multan through Factory Manager v. Chief Executive, Multan Electricity Power Company Ltd. (MEPCO) Multan and 2 others 2004 SCMR 1679 and Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.W.F.P. and another PLD 1995 SC 66 rel.

(b) Electricity Act (IX of 1910)---

----Ss. 26(6), 26-A & 36(3)---Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997), S.38---Detection bill due to theft or abstraction of energy---Order of Electric Inspector---Jurisdiction of Advisory Board to hear appeal against such order---Scope---Right of appeal being a creation of statute, unless specifically conferred, would not be available---Jurisdiction to decide validity of detection bill neither vested in Provincial Government nor its direction could confer same on Advisory Board---Offices to be established under S. 38 of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 could be empowered to enforce decision of theft cases and not to decide theft cases---Neither Provincial Government nor Advisory Board had original or appellate jurisdiction to examine validity of disputed detection bill---Electric Inspector had no jurisdiction to adjudicate such dispute, rather only Civil Court could resolve same---Such appeal would be competent, but relief claimed would be against the excess of jurisdiction of Electric Inspector.

Water and Power Development Authority and others v. Mian Muhammad Riaz and another PLD 1995 Lah. 56; Colony Textile Mills Ltd. Multan through Factory Manager v. Chief Executive, Multan Electricity Power Company Ltd. (MEPCO) Multan and 2 others 2004 SCMR 1679 and Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. and another PLD 1995 SC 66 rel.

(c) Electricity Act (IX of 1910)---

----Ss. 26(6), 26-A & 36(3)---Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997), S.38---Constitution of Pakistan (1973), Art. 199---Constitutional petition before High Court---Detection bill due to theft or abstraction of energy, issuance of---Advisory Board declaring such bill illegal---Constitutional petition by licensee raising objection as to jurisdiction of a Advisory Board---High Court repelled such objection for non-raising same before Advisory Board observing that Advisory Board had jurisdiction by virtue of direction given by Provincial Government under S.36(3) of Electricity Act, 1910---Validity---Right of appeal being a creation of statute, unless specifically conferred, would not be available---Jurisdiction to decide validity of detection bill neither vested in Provincial Government nor its direction could confer same on the Advisory Board---Offices to be established under S.38 of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 could be empowered to enforce decision of theft cases and not to decide theft cases---Neither Provincial Government nor Advisory Board had original or appellate jurisdiction to examine validity of disputed detection bill---Electric Inspector had no jurisdiction to, adjudicate such dispute, rather only Civil Court could resolve same---Equities were not against licensee to withhold relief against an order of Advisory Board having no jurisdiction in such matter---Licensee had invoked constitutional jurisdiction in official capacity and no personal benefit was involved---Interference of High Court had not brought about an unjust consequence---Supreme Court accepted appeal and set aside orders of Advisory Board and High Court, resultantly consumer would be free to have recourse to remedy available to him under law.

Water and Power. Development Authority and others v. Mian Muhammad Riaz and another PLD 1995 Lah. 56; Colony Textile Mills Ltd. Multan through Factory Manager v. Chief Executive, Multan Electricity Power Company Ltd. (MEPCO) Multan and 2 others 2004 SCMR 1679 and Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. and another PLD 1995 SC 66 rel.

(d) Appeal (Civil)-

----Relief not grantable by original forum---Jurisdiction of Appellate Court to grant such relief---Scope---Appellate Court could not grant such relief as appeal being continuation of original proceedings and Appellate Court having same powers which original forum had, no appeal could be successfully maintained to get such relief---Civil Procedure Code (V of 1908), S.107(2).

(e) Appeal---

----Right of---Such right being a creation of statute, unless specifically conferred, would not be available.

(f) Appeal---

----Appeal against an 'illegal order would lie in same manner as it lies against a legal order.

Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. and another PLD 1995 SC 66 rel.

(g) Administration of justice---

---Duty of Courts and adjudicatory forums to decide a lis before them in accordance with law---Courts and other forums would not be relieved of such duty on account of an act or omission of a litigant or a lawyer.

Haji Abdullah Khan and others v. Nasir Muhammad Khan and others PLD 1965 SC 690 ref.

(h) Jurisdiction---

---Jurisdiction on Court or Tribunal would be conferred by law and not by consent of parties, express or implied---Consent could not confer or take away jurisdiction.

Chief Engineer, Hydel (North) and Project Director, WAPDA, Warsak v. Zafarullah Shah and another 2003 SCMR 686; Ahmad Khan and another v. Zahur Ahmad Khan Tareen and 7 others PLD 1986 Lah. 184; Naik Muhammad and others v. A.D.C.(C) and others PLD 1988 Lah. 299; Raleigh Investment Co. Ltd. v. The Governor-General in Council AIR 1947 Privy Council 78; Haji Abdullah Khan and others v. Nasir Muhammad Khan and others PLD 1965 SC 690; Muhammad Afzalv. Board of Revenue, West Pakistan and another PLD 1967 SC 314; Maulvi Aziz-ur-Rehman v. Ahmad Khan and others 2004 SCMR 1622; Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. and another PLD 1995 SC 66; Chief Administrator of Auqaf, Punjab v. Allah Ditta and another 1990 CLC 821; Muhammad Hayat v. Additional District Judge 1st, Okara and 2 others PLD 1990 Lah. 350; Ghulam Ali v. The District Judge, Lahore and others 1994 MLD 720; Chaudhry Haq Nawaz Chohan v. Chaudhry Tariq Azam and 43 others 1994 CLC 1530 and The Committee of Receivers of Assets of Mr. Abdul Wahab Galadari v. Abdul Wahab Ebrahim Galadari and another 1991 CLC 694 ref.

(i) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Order without jurisdiction---Interference or non-interference in such order by High Court---Exercise of constitutional jurisdiction discretionary---High Court could refuse relief against such order, if interference in constitutional jurisdiction would perpetuate ill-gotton gains or bring about an unjust consequence or where equities were against petitioner---Non-interference in such order, if would perpetuate an illegality or bring about an unjust result, then imperatives of justice would require exercise rather than excise of jurisdiction.

Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD .1973 SC 236 and Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others PLD 1991 SC 691 rel.

Aurangzeb Mirza, Advocate Supreme Court for Petitioners.

M. Arif Alvi, Advocate Supreme Court and A.H. Masood for Respondents:

Date of hearing: 2nd March, 2006.

P L D 2006 Supreme Court 341

Present: Iftikhar Muhammad Chaudhry, C.J. and M. Javed Buttar, J

SADRUDDIN SHAIKH---Petitioner

Versus

SAJJADULLAH QURESHI and others---Respondents

Civil Petition No.2524 of 2005, decided on 14th October, 2005.

(On appeal from the order dated 21-9-2005 passed by High Court of Sindh, Sukkur in C.P. No.D-288 of 2005).

Constitution of Pakistan (1973)---

----Art.185 (3)---Supreme Court Rules, 1980, O.XIII, R.5 & O.XXVIII, R.3---Public nuisance---Local Commissioner, report of---Frivolous litigation---Special costs, imposition of---High Court, in exercise of constitutional jurisdiction directed the petitioner to confine his construction only to the extent of his plot and to remove encroachments made on public streets---Such direction was given by High Court on the report of Local Commissioner after site inspection---Validity---In view of the report of Local Commissioner that construction was being raised by petitioner by making encroachment on public streets and under the circumstances, High Court had rightly issued the writ---Petitioner was not entitled to any relief and as he had resorted to frivolous litigation, Supreme Court imposed special costs of Rs.50,000 under O.XIII, R.5 and O.XXVIII, R.3 of Supreme Court Rules., 1980---Leave to appeal was refused.

1985 SCMR 1226 fol.

Roy Muhammad Nawaz Kharal, Advocate Supreme Court, Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 14th October, 2005.

P L D 2006 Supreme Court 343

Present: Tassaduq Hussain Jillani and Nasir-ul-Mulk, JJ

MANZAR QAYYUM---Petitioner

Versus

THE STATE and others---Respondents

Crl. P.L.A. No.192-L of 2006, decided on 14th April, 2006.

(On appeal 'from the order of a Division Bench of the Lahore High Court dated 23-2-2006 passed in Criminal Appeal No.160 of 2006).

National Accountability Ordinance (XVIII of 1999)---

----Ss. 31-A, 9 & 10---Constitution of Pakistan (1973), Art.185(3)---Allegations of abscondence of accused and avoidance of process of Trial Court---Reference filed under Ss.9 & 10 of the National Accountability Ordinance, 1999 against the accused, having been withdrawn, S.31-A of the Ordinance indicated that it constituted a distinct offence---Trial Court would be seized of the question as to whether the allegation of abscondence or avoidance of service of the process of the Trial Court was borne out from the record or material placed before it or not---Supreme Court, in circumstances, declined to pre-empt the function of the Trial Court and dismissed the petition for leave to appeal by the accused with observation that accused would be within his right to move an application under S.265-K, Cr.P.C. and if such an application was moved, the Trial Court shall decide the same on merit with independent application of mind within specified time.

Noor Muhammad Khatti and others v. The State 2005 PCr.LJ 1889 and N.M.V. Vellayappa Chettiar v. Alagappa Chettiar AIR (29) 1942 Mad. 289 distinguished.

Malik Muhammad Qayyum, Ch. Muhammad Ashraf, Advocates Supreme Court and Ch. Muhammad Hanif Zahid, Advocate-on-Record for Petitioner.

Mian Muhammad Ilyas, Deputy Prosecutor-General, NAB for Respondents.

M. Salim Shad, Advocate Supreme Court for the State.

Date of hearing: 14th April, 2006.

P L D 2006 Supreme Court 347

Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Saiyed Saeed Ashhad, JJ

GHULAM SARWAR and others---Appellants

Versus

CHANAN DIN through Legal Heirs and others---Respondents

Civil Appeals Nos. 137 and 1315 of 2002, decided on 31st January, 2006.

(On appeal from the judgment dated 30-11-2001 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Regular Second Appeal No.124 of 1981).

(a) Land Reforms Regulations, 1972 (M.L.R. 115)---

----Para. 25(3)(d)---Expression comprised in tenancy'---Applicability---Expression,comprised in tenancy' used in para. 25 (3)(d) of M.L.R.115, is referable to the piece of land physically possessed by a tenant.

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

---Ss. 4 & 21---Land Reforms Regulations, 1972 (M.L.R.115), para.25(3)(d)---Superior right of pre-emption---Co-tenancy, claim of---Father of vendee was tenant over suit-land and after his death vendee and his brother inherited the tenancy---Trial Court non-suited pre-emptor on the ground that vendee being tenant had a superior right of pre­emption---High Court granted pre-emptor a decree for half of the suit-land holding that the vendee could defend pre-emption suit only to the extent of half share comprised in his tenancy---Validity---Neither landlord allotted any specific portion to two sons of the deceased tenant, nor both the brothers distributed the land among themselves, on the principle of partition---Each brother, by virtue of inheritance, was a tenant over the entire property and that was the only conclusion that fell in consonance with the principle of co-tenancy in line with the principle of co-sharer---After succession of tenancy, the vendee had become owner of entire property while other brother would never lose his tenancy and would remain a tenant over entire property as inherited from his father---High Court had misconstrued principle of co-tenancy particularly when no specific portion of suit land was possessed as tenant by any of the brothers---Unless it was proved that brothers had divided between themselves their portion of tenancy in accordance with their share, no one could be restricted to half portion in physical terms---One of the tenants could defend a pre-emption suit on the basis of his co-tenancy over the entire land---Judgment and decree passed by High Court was set aside and pre-emption suit was dismissed---Appeal was allowed.

Abdul Karim Kundi, Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Appellant (in C.A.No.137 of 2002).

Muhammad Munir Peracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for Respondents (in C.A.No.137 of 2002).

Muhammad Munir Peracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for Appellants (in C.A.No.1315 of 2002).

Abdul Karim Kundi, Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Respondent (in C.A.No.1315 of 2002).

Date of hearing: 31st January, 2006.

P L D 2006 Supreme Court 350

Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Saiyed Saeed Ashhad, JJ

Sh. JAMIL AHMED through Legal Heirs and others---Petitioners

Versus

ADMINISTRATOR MUNICIPAL COMMITTEE, ABBOTTABAD and others---Respondents

Constitutional Petitions Nos. 1758 and 1856 of 2005, decided on 25th January, 2006.

(On appeal from the judgment dated 9-2-2005 passed by Peshawar High Court, Abbottabad Bench in W.P. No.226 of 2001 in both cases).

(a) North West Frontier Province Public Property (Removal of Encroachment) Act (V of 1977)---

----S. 3---Constitution of Pakistan (1973), Art.185(3)---Removal of encroachment---Past and closed transaction---Concurrent findings of fact by the Courts below---Notice under S.3 of North West Frontier Province Public Property (Removal of Encroachment) Act, 1977, was issued against petitioner, for possession of the property in question---Petitioner claimed to have purchased the disputed property in Court auction but suit filed by him was dismissed by the Tribunal---Judgment passed by the Tribunal was maintained by High Court in exercise of constitutional jurisdiction---Validity---Supreme Court in an earlier appeal arising out of the dispute regarding title of the property in question, between the original lessee and the Municipal Committee, had determined the character and status of the shops as part of the premises and held that the entire property belonged to the Municipal Committee---Matter relating to the dispute of title and ownership of disputed property having attained finality was a past and closed transaction, which could not be reopened---Concurrent findings of Courts regarding the origin and character of property would not call for interference of Supreme Court---Petition was dismissed.

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

----Ss. 61 & 64---North West Frontier Province Public Property (Removal of Encroachment) Act (V of 1977), S.3---Constitution of Pakistan (1973), Art.185(3)---Relation of licensee and grantor---Recovery of possession---Construction raised by licensee---Compensation---Property in question was owned by Municipal Committee and respondent being licensee had raised construction thereon---Municipal Committee issued notice under S.3 of North West Frontier Province Public Property (Removal of Encroachment) Act, 1977---High Court in exercise of constitutional jurisdiction directed the Committee to compensate the respondent for the claim of construction---Plea raised by Municipal Committee was that the respondent was not entitled to compensation for the construction as he had regularly been receiving rent of premises even after expiry of the original lease thus was adequately compensated---Validity---Premises in question was reconstructed by respondent with the permission of Municipal Committee---Even after expiry of the original lease, the Committee, without treating the respondent as unauthorized occupant,. allowed him to retain the possession as landlord of the premises till issue of notice under S.3 of North West Frontier Province Public Property (Removal of Encroachment) Act, 1977---In any case,, the status of respondent was recognized in law as licensee and he had legitimate claim of compensation for the construction raised by him with the permission of Municipal Committee---Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused.

Qazi Ghulam Rauf, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner (in C.P. No. 1758 of 2005).

Nemo for the Respondents/State (in C.P. No. 1758 of 2005).

Malik- Manzoor Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners (in C.P. No. 1856 of 2005).

Nemo for the Respondents/State (in C.P. No. 1856 of 2005).

Date of hearing: 25th January, 2006.

P L D 2006 Supreme Court 354

Present: Iftikhar Muhammad Chaudhry, C.J. Muhammad Nawaz Abbasi and Tassaduq Hussain Jillani, JJ

KHURRAM MALIK and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeals Nos. 122 and 123 of 2000, decided on 7th December, 2005.

(On appeal from the judgment dated 23-12-1999 of the Peshawar High Court, Abbottabad Bench in Criminal Appeal No.13 of 1999 and Murder Reference No.3 of 1999).

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

----S. 164---Criminal trial---Confessional statement of accused---Scope---Accused got recorded his statement on the day following his arrest but in Court proceedings, in his statement under S.342 Cr.P.C.,. he denied recording of confession along with recovery of incriminating evidence--Effect---Voluntariness of confessional statement under S.164 Cr.P.C. of accused could be adjudged if it was recorded without unexplained delay after his arrest---As recovery of incriminating evidence was duly established against accused, his confessional statement also got strong corroboration from the same---Such confessional statement could be used against the accused.

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

----S. 164---Qanun-e-Shahadt (10 of 1984), Art.43---Circumstantial evidence---Confessional statement---Accused committed offence of murder in presence of two ladies---After the arrest of accused, his confessional statement was recorded---Both the ladies in their confessional statements also did not deny happening of the incident---Effect---Statements of the ladies could also be considered as circumstance against the accused in terms of Art.43 of Qanun-e-Shahadt, 1984.

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

----S.302---Criminal Procedure Code (V of 1898), S. 410---Sentence, reduction in---Failure to give reasons---Trial Court at the conclusion of trial, awarded death penalty but High Court in exercise of appellate jurisdiction, reduced the sentence to that of imprisonment for life---High Court agreed with the findings recorded by Trial, Court concerning commission of offence by convict but had expressed its reservation only on the quantum of the sentence---Validity---Appellate Court (High Court) was legally empowered to record its own findings but subject to furnishing the reply of reasons advanced by Trial Court for the purpose of not awarding normal penalty of death to accused under S.302, P.P.C.

Abdul Subhan v. Rahim Bukhsh and others PLD 1994 SC 178 rel.

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

--S. 302---Motive---Scope---Motive is always known to accused who commits the crime and there are cases where it is not possible to disclose the same by prosecution in First Information Report---For determining and awarding adequate sentence to an accused involved in capital offence, existence of motive is not necessary.

Talib Hussain v. State 1995 SCMR 1776 and Muhammad. Akbar and another v. The State PLD 2004 SC 44 rel.

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

----S. 302---Re-appraisal of evidence---Confessional statement---Plea of mitigating circumstances---Onus to prove---Accused, after committing murder, cut the body of deceased into pieces and threw away the pieces at different places---After the arrest of accused, his confessional statement was recorded under S.164, Cr.P.C.---Murder was committed in presence of two eye;-witnesses who also supported the commission of offence---Pieces of body were recovered on the pointation of accused---Trial Court at the conclusion of trial, awarded death penalty but High Court in exercise of appellate jurisdiction, reduced the sentence to that of imprisonment for life---Plea raised by the accused was that there were mitigating circumstances warranting lesser punishment to him---Validity---Accused murdered deceased in the most brutal and desperate manner and exhibited inhuman attitude by cutting into pieces the dead body of deceased and throwing the same at different places---If accused had taken a special plea to claim lesser punishment on the basis of particular facts and circumstances of the case, burden was upon him to establish the same---Supreme Court did not find any mitigating circumstance claimed by accused, warranting lesser sentence---Sentence modified by High Court was set aside and accused was awarded death penalty---Appeal was dismissed.

Mandoos Khan v. The State 2003 SCMR 884 and Abdul Haque v. The State PLD1996 SC 1 rel.

(f) Criminal trial---

----Sentence, award of---Duty of Court---Principles---Justice is not for one but is for all and while examining the case of convict, Court owe a duty to the legal heirs/relatives of the convict and also to the society that justice should also be done with them as well---Sentence should be such, which should serve as deterrent for the like minded persons.

Muhammad Saleem v. The State PLD 2002 SC 558 and State v. Farhan Ali PLD 1995 SC 1 rel.

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

----S. 302---Murder---Awarding of sentence---Plea of life expectancy--Scope---Expectancy of life is per se not a valid ground for awarding lesser punishment.

Moahzam Shah v. Mohsan Shah and another 1995 SCMR 1190 rel.

Muhammad Munir Peracha, Advocate Supreme Court and Ch.Akhtar Ali, Advocate-on-Record for Appellant (in C.A. No. 122 of 2000) .

Muhammad Saeed, Addl. A.G., N.W.F.P. and Mushtaq Ahmad Tahir Kheli, Advocate Supreme Court for Respondents (in C.A. No. 122 of 2000).

Mushtaq Ahmad Tahir Kheli, Advocate Supreme Court for Appellant (in C.A. No. 123 of 2000).

Muhammad Munir Peracha, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents (in C.A. No. 123 of 2000).

Date of hearing: 7th December, 2005.

P L D 2006 Supreme Court 365

Present: Iftikhar Muhammad Chaudhry, C. J. Rana Bhagwandas, Faqir Muhammad Khokhar, M Javed Buttar and Tassaduq Hussain Jillani, JJ

ABDUL MALIK and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeals Nos. 324-325/1995, 63/1997, 134-135/1998, 52/98, J.P.157, 169/1998,Crl.As. Nos. 237/1998,.42-43/1999, 100-101/1999, 384-385/1999, 22-23/2000, 31/2000, 94/2000, 148/1999, 150/151/2000, 191/2000, 195/2000, 206/2000, 212/2000, 214/2000, 225/2000, 306/2000, 326-328/2000, and Cr.P.115/2002, Crl.As.390/2000, 297/2001, Crl.P. No.176/2001,Cr1.As. Nos.326/2001, 250/2001, 424/2001, 144/2002, Civil Appeal No.340/2002, Crl.As.NOs.160/2003 and Crl.M.A.No.188/.2003, Crl .P. No. 177/2003 , Crl.A.No.203/2003, C.A.No.1371/2003, Crl.Ps, Nos.29/2003, 351/2003, Crl.R.P.No.12/2001 in Crl.A.No.22/97 and Crl.R.P.No.39/2002 in Cr1.A.No.530/2000, heard on 15th September, 2005.

(On appeal from the judgments/orders dated 29-7-1997, 23-9-1997, 5-3-1998, 17-2-997, 26-2-1997, 16-11-1998, 5-3-1998, 18-2-1999, 24-9-1997, 4-6-2001, 8-2-2001, 30-3-2001, 7-8-2001, 15-8-2001, 8-12-1999, 12-6-2001, 22-10-2002, 11-10-2001, 11-12-2002, 28-2-2001, 22-5-2002, 6-7-1998, 29-9-1998, 6-7-1999, 5-5-1999, 21-7-1998, 24-7-1997, 24-11-1997, 4-6-1998, 31-8-1999 and 29-3-2000, in Crl.A.Nos.280/96, 134/98, 25/93, 216/91, 13/96, 85/BWP, 36/94, 434/99, Crl.R. No.282/92, Crl.A.Nos.703/95; 614/00, 225/98,210-J/96, W.P. No.5566/99, Crl.A.Nos.178/95, 357/97, W.P.No.2274/01, Cr1.A. Nos.36/98, 23/97, 530/00, 278/98, 25/94, 94/97, 286/97, 484/93, Crl.R.No.319/94, Crl.A. No.119/93, 98/92, Crl.R. No.150/94 and Crl.A. No.24/98 passed by High Court).

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

----Art. 13---Criminal Procedure Code (V of 1898), Ss.423, 427, 435 & 439---Penal Code (XLV of 1860), S.302(b)---Double jeopardy---Article 13 of the Constitution was not a bar for enhancement and final determination of sentence by the Appellate Court established under the law---Enhancement of a sentence of a convict who has already undergone the sentence of life imprisonment during the pendency of appeal/revision would not be hit by the principle of double jeopardy enshrined in Art.13 of the Constitution---Import of principles as enshrined in Art.13 of the Constitution and broad principles/guidelines where the Court can interfere and enhance the sentence, stated.

The genesis of Art.13 of the Constitution can be traced to the English Common Law rule "nemo debet bis vexari", which, in literal sense, means that a person may not be put twice in peril for the same offence. This principle by now has come to assume a universal application and is found in Constitutions of most of the countries.

This almost universally accepted principle and as enshrined in Article 13(a) of the Constitution of Pakistan in its import and as evolved through the precedent case-law, has following implications:

(i) A person may not be tried for a crime in respect of which he has previously been acquitted or convicted.

(ii) In respect of the crime of which he could on some previous charge/indictment has been lawfully convicted.

(iii) Where the offence charged is in effect the same or substantially the same as one in respect of which the person charged has previously been acquitted or convicted or in respect of which he could,. on some previous indictment, have been convicted.

(iv) The evidence necessary to support the second indictment or the facts which constituted the second offence would have been sufficient to procure a legal conviction upon the first indictment either as to the offence charged or as to an offence of which on the indictment, the accused could have been found guilty.

(v) The offence charged in the second indictment must have been committed at the time of the first charge i.e. a conviction or acquittal for an assault will not bar a charge of murder if the assaulted person later died.

(vi) The earlier adjudication leading to guilt or innocence of a person charged must have been through a valid process and by a Court of competent jurisdiction.

(vii) The conviction or acquittal in the previous proceedings must be enforced at the time of the second trial.

The proceedings in which the plea of double jeopardy is being raised must be fresh proceedings where the person is sought to be prosecuted for the same offence for the second time.

When the conviction or acquittal of a person is under challenge in appeal or revision the proceedings are neither fresh prosecution nor there is any question of second conviction or double jeopardy. An appeal or revision is continuation of trial and any alteration of sentence would not amount to double jeopardy.

An appeal against an acquittal wherever such is provided by the procedure is in substance a continuation of the prosecution.

To say that an appellate or revisional Court cannot enhance the sentence of a convict who during the pendency of the appeal or revision, as the case may be, has undergone the sentence under challenge is to negate the mandatory provisions relating to the powers of the appellate Court under sections 423, 427 of Cr.P.C. and of the revisional Court under sections 435 and 439 of the same Code. Under these provisions, the concerned Court, seized of the appeal or revision, has the power to annul, to reduce or to enhance the sentence.

The question of sentence is primarily a matter of judicial discretion to be exercised in the first instance by the Trial Court. The Court of appeal can enhance the sentence if the same is found to be inadequate or not in accord with judicial principles laid down by superior Courts in this regard. But it will depend on circumstances of that case and it would be undesirable to lay a principle of general application.

There are four broad principles/guidelines in this regard where the Court could interfere and enhance the sentence. Those are as under:-

(i) Where the sentence was not justified by law.

(ii) Where a person was sentenced upon a wrong factual basis.

(iii) Matters improperly taken into consideration or fresh matters to be taken into account.

(iv) The sentence manifestly is excessive or wrong in principle.

These are mere guidelines and their application would depend on each case. The cases entailing capital charge are to be decided with, utmost care. When law vests a discretion in Courts to award sentence of death or life imprisonment, it casts a heavy duty to balance the various considerations which underlie these sentencing provisions.. The circumstances surrounding the offence, the question of mens rea, the principle of proportionality of sentence, of the gravity of the offence charged, the considerations of prevention or of deterrence and of rehabilitation may also be kept in view if the circumstances of the cases and the law applicable so warrant.

There is no rule of general application that the serving out of sentence during the pendency of appeal or revision, by itself, would constitute a bar for enhancement of sentence or that any exercise to that effect would be violative of Article 13 of the Constitution. This could be one factor which the Court may consider, along with other factors and the principles while deciding the question of enhancement.

Mostly there were multiple factors which weighed with the Court in not enhancing the sentence and the circumstance that a convict has already undergone the sentence also weighed with the Court.

Article 13 of the Constitution of Pakistan is not a bar for enhancement and final determination by the appellate Court established under the law.

PLD 2003 SC 240; AIR 1950 SC 365; 2002 SCMR 810; Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others PLD 1976 SC 452; AIR 1983 SC 636; AIR 1953 SC 362; PLD 2001 SC 465; Kalawati and another v. The State of Himachal Pardesh AIR 1953 SC 131; Zarin v. The State 1976 SCMR 359; Muhammad Afzal v. Ghulam Asghar and 2 others PLD 2000 SC 14; Asharafi Lal and others v. State of U.P. AIR 1987 SC 1721; R. v. Newsome and Browne 1970 (2) QB 711; Mst. Razia Begum v. Jahangir and others PLD 1982 SC 302; Mst. Promilla and others v. Safeer Alam and others 2000 SCMR 1166; Aziz Muhammad v. Qamar Iqbal and others 2003 SCMR 579; Abdul Haq v. Muhammad Amin alias Manna and others 2004 SCMR 810; 2002 SCMR 403 and 2001 SCMR 465 ref.

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

----Arts. 45, 48(2) & 2-A---Criminal Procedure Code (V of 1898), 5.402---Power of President of Pakistan to grant remissions in terms of Art.45 of the Constitution---Nature and scope---President enjoys unfettered powers to grant remissions in respect of offences and no clog stipulated in a piece of subordinate legislation could abridge such powers of the President---Such powers of the President were not violative of the spirit of Art.2-A of the Constitution---Power of the President to grant pardon, reprieve, respite, remit or suspend, or commute any sentence was not subject to S.402, Cr.P.C.---Principles.

The exercise of the discretion by the President under Article 45 of the Constitution is to meet at the highest level the requirements of justice and clemency, to afford relief against undue harshness, or serious mistake or miscarriage in the judicial. process, apart from specific or special cases where relief is by way of grace alone, as for instance to celebrate an event or when a new President or Prime Minister is installed, where relief or clemency is for the honour of the State. In the former case, the discretion has to be exercised with care, keeping in mind the duty to maintain justice, so as to prevent the erosion of the deterrent effect that judicial punishment must retain. The scope of the power of the President under Article 45 is basically discretionary, in view of Article 48(2) of the Constitution. The power under Article 45 being at the apex and unfettered, the President, whilst commuting a sentence (on a number of counts) or different sentences, can order the commuted sentences to run concurrently inter se and/or concurrently with any other or others imposed by the Court.

It was contended that the power enshrined in Article 45 was violative of the spirit of Article 2-A of the Constitution. Any theological debate in this context was unnecessary as Article 2-A was not a self-executing provision and unless there was proper legislation or amendment in the Constitution, the provision as it stands has to be given effect to. The power of the President to grant pardon, reprieve or respite and to remit or suspend or commute any sentence is a power which is given to Heads of the States in most of the Constitutions of the world.

The argument that the power of the President to grant pardon, reprieve, respite, remit, suspend, or commute any sentence is subject to section 402, Cr.P.C. is not tenable and is not only against the constitutional mandate but also the scope of section 402-C, Cr.P.C.

?

A provision enshrined in the Constitution shall prevail notwithstanding anything contrary contained in a piece of subordinate legislation.

Under Article 45 of the Constitution, the President enjoys unfettered powers to grant remissions in respect of offences and no clog stipulated in a piece of subordinate legislation can abridge this power of the President.

Bhai Khan v. State PLD 1992 SC 14 quoted

(c) Interpretation of Constitution---

----Provision enshrined in the Constitution shall prevail notwithstanding anything contrary contained in a piece of subordinate legislation.

(d) Pakistan Prison Rules, 1978---

----Rr. 140, 198(b) & 217---Penal Code (XLV of 1860), S.57---Grant of remissions to the prisoners---Scope---Provincial Governments and other authorities competent under law can grant remissions to the prisoners in accordance with law and the rules framed thereunder---Combined effect of Rr.217 and 140 of the Pakistan Prison Rules, 1978 is that ordinarily the total remissions given to someone, who has been sentenced to life imprisonment, cannot shorten the period of sentence of a convict to less than 15 years---Principles---Life imprisonment---Definition.

Muhammad Hussain and 5 others v. The State through Superintendent, District Jail, Lahore PLD 1968 Lah. 1 and R. V. Foy (1962 All. ELR 246 ref.

Maqbool Elahi Malik, Senior Advocate Supreme Court for Appellant (in Crl.A.324 of 1995)

Nasir Saeed Sheikh, D.A.G. for the Federation (in Crl.A.No.324 of 1995).

M.A. Zafar, Advocate Supreme Court for the Complainant (in Crl.A.No.324 of 1995).

Aftab Iqbal .Chaudhary, A.-G. Punjab, Ch. Khrushid Anwar Bhinder, Addl. A.-G. (Pb), Ms. Afshan Ghazanfar, A.A.-G. (Pb) and Syed Sajjad Hussain Shah, A.A.-G.(Pb) for the State (in Crl. A. No.324 of 1995).

M.A. Zafar, Advocate Supreme Court for Appellant (in Crl.A.No.325 of 1995).

Aftab Iqbal Chaudhary, A.-G. Punjab, Ch. Khrushid Anwar Bhinder, Addl. A.-G. (Pb), Ms. Afshan Ghazanfar, A.A.-G. (Pb) and Syed Sajjad Hussain Shah, A.A.-G.(Pb) for the State (in Crl. A. No.325 of 1995)

Sardar Latif Khan Khosa, Advocate Supreme Court for Appellant (in Crl. A. No.63 of 1997).

Altaf Elahi Sheikh, Advocate Supreme Court for the Complainant/Respondent (in Crl. A. No.63 of 1997)

Aftab Iqbal Chaudhary, A.-G. Punjab, Ch. Khrushid Anwar Bhinder, Addl. A.-G. (Pb), Ms. Afshan Ghazanfar, A.A.-G. (Pb) and Syed Sajjad Hussain Shah, A.A.-G.(Pb) for the State (in Crl. A. No.63 of 1997).

Muhammad Munir Peracha, Advocate Supreme Court for Appellant (in Crl. A. No.134 of 1998).

Javed Aziz Sidhu, Advocate Supreme Court for the Complainant (in Crl. A. No.134 of 1998).

Aftab Iqbal Chaudhary, A.-G. Punjab, Ch. Khrushid Anwar Bhinder, Addl. A.-G. (Pb), Ms. Afshan Ghazanfar, A.A.-G. (Pb) and Syed Sajjad Hussain Shah, A.A.-G.(Pb) for the State (in Crl. A. No.134 of 1998).

Javed Aziz Sidhu, Advocate Supreme Court for the Appellant (in Crl. A. No.135 of 1998).

Aftab Iqbal Chaudhary, A.-G. Punjab, Ch. Khrushid Anwar Bhinder, Addl. A.-G. (Pb), Ms. Afshan Ghazanfar, A.A.-G. (Pb) and Syed Sajjad Hussain Shah, A.A.-G.(Pb) for the State (in Crl. A. No.135 of 1998).

Arshad Ali Chaudhry, Advocate-on-Record/Advocate Supreme Court for Appellant (in Crl. A. No.152 of 1998).

Ali Hassan Gillani, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for the Complainant (in Crl. A. No.152 of 1998).

Aftab Iqbal Chaudhary, A.-G. Punjab, Ch. Khrushid Anwar Bhinder, Addl. A.-G. (Pb), Ms. Afshan Ghazanfar, A.A.-G. (Pb) and? Bhinder, Addl. A.-G. (Pb), Ms. Afshan Ghazanfar, A.A.-G. (Pb) and Syed Sajjad Hussain Shah, A.A.-G.(Pb) for the State (in Crl. A. No.384 of 1999).

Saleem Sheikh, Advocate Supreme Court for Appellant (in Crl.A. No.385 of 1999).

Aftab Iqbal Chaudhary, A.-G. Punjab, Ch. Khrushid Anwar Bhinder, Addl. A.-G. (Pb), Ms. Afshan Ghazanfar, A.A.-G. (Pb) and Syed Sajjad Hussain Shah, A.A.-G.(Pb) for the State (in Crl. A. No.385 of 1999).

S.M. Abdul Wahab, Advocate Supreme Court for Appellant (in Crl. A. No.22 of 2000).

M. Amin Jan, Advocate Supreme Court and M.A.Zaidi, Advocate-on-Record for Respondent (in Crl. A. No.22 of 2000).

Aftab Iqbal Chaudhary, A.-G. Punjab, Ch. Khrushid Anwar Bhinder, Addl. A.-G. (Pb), Ms. Afshan Ghazanfar, A.A.-G. (Pb) and Syed Sajjad Hussain Shah, A.A.-G.(Pb) for the State (in Crl. A. No.22 of 2000).

Muhammad Ilyas Siddiqui Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant (in Crl. A. No.23 of 2000).

Aftab Iqbal Chaudhary, A.-G. Punjab, Ch. Khrushid Anwar Bhinder, Addl. A.-G. (Pb), Ms. Afshan Ghazanfar, A.A.-G. (Pb) and Syed Sajjad Hussain Shah, A.A.-G.(Pb) for the State (in Crl. A. No.23 of 2000).

Ch. Mushtaq Ahmad Khan Senior Advocate Supreme Court for Appellant (in Crl. A. No.31 of 2000).

Sh. Khizar Hiyat, Advocate Supreme Court for Respondent (in Crl. A. No.31 of 2000).

Aftab Iqbal Chaudhary, A.-G. Punjab, Ch. Khrushid Anwar Bhinder, Addl. A.-G. (Pb), Ms. Afshan Ghazanfar, A.A.-G. (Pb) and Syed Sajjad Hussain Shah, A.A.-G.(Pb) for the State (in Crl. A. No.31 of 2000).

Sh. Zamir Hussain, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Appellant (in Crl. A. No.94 of 2000).

Rabnawaz Noon., Senior Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondent (in Crl. A. No.94 of 2000).

Syed Sajjad Hussain Shah, A.A.-G.(Pb) for the State (in Crl. A. No.152 of 1998)

Superintendent Jail for Petitioners (in Jail Petitions Nos.157 and 169 of 1998).

Nemo for Respondents (in Jail Petitions Nos.157 and 169 of 1998).

Tariq Mehmood, Advocate Supreme Court for Appellant (in Crl. A. No.237 of 1998).

Raja Abdul Ghafoor, Advocate-on-Record/Advocate Supreme Court for Respondent (in Cr1. A. No.237 of 1998).

Salauddin Mangel, A.G. (Balochsitan) for the State (in Cr1. A. No.237 of 1998).

Malik Saeed Hassan, Senior Advocate Supreme Court along with Muhammad Naeem Sheikh, Advocate Supreme Court for Appellant (in both cases) (in Crl. As. Nos.42 and 43 of 1999).

Raja Abdul Ghafoor, Adovcate-on-Record/Advocate Supreme Court for Respondent (in Crl.A.42 of 1999).

Aftab Iqbal Chaudhary, A.-G. Punjab, Ch. Khrushid Anwar Bhinder, Addl. A.-G. (Pb), Ms. Afshan Ghazanfar, A.A.-G. (Pb) and Syed Sajjad Hussain Shah, A.A.-G.(Pb) for the State (in Cr1. As. Nos.42 and 43 of 1999).

Ch. Naseer Ahmad, Advocate Supreme Court for appellant (in Crl. A. No.100 of 1999).

Raja Abdul Ghafoor, Advocate-on-Record for the Complainant (in Crl. A. No.100 of 1999).

Raja Abdul Ghafoor, Advocate-on-Record/Advocate Supreme Court for Appellant (in Crl. A. No.101 of 1999)

Aftab Iqbal Chaudhary, A.-G. Punjab, Ch. Khrushid Anwar Bhinder, Addl. A.-G. (Pb), Ms. Afshan Ghazanfar, A.A.-G. (Pb) and Syed Sajjad Hussain Shah, A.A.-G.(Pb) for the State (in Crl.A. No.101 of 1999).

Ch. Afrasiab Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant (in Crl. A. No.384 of 1999).

M. Munir Paracha, Advocate Supreme Court for Respondent (in Crl. A. No.384 of 1999).

Aftab Iqbal Chaudhary, A.-G. Punjab, Ch. Khrushid Anwar Aftab Iqbal Chaudhary, A.-G. Punjab, Ch. Khrushid Anwar Bhinder, Addl. A.-G. (Pb), Ms. Afshan Ghazanfar, A.A.-G. (Pb) and Syed Sajjad Hussain Shah, A.A.-G.(Pb) for the State (in Crl. A. No.94 of 2000).

Sardar Latif Khan Khosa, Advocate Supreme Court and Sh. Masood Akhtar, Advocate-on-Record for Appellant (in Crl. A. No.148 of 1999).

Aftab Iqbal Chaudhary, A.-G. Punjab, Ch. Khrushid Anwar Bhinder, Addl. A.-G. (Pb), Ms. Afshan Ghazanfar, A.A.-G. (Pb) and Syed Sajjad Hussain Shah, A.A.-G.(Pb) for the State (in Crl. A. No.148 of 1999).

Sardar Latif Khan Khosa, Advocate Supreme Court for Appellant (in Crl. A. No.149 of 2000).

Aftab Iqbal Chaudhary, A.-G. Punjab, Ch. Khrushid Anwar Bhinder, Addl. A.-G. (Pb), Ms. Afshan Ghazanfar, A.A.-G. (Pb) and Syed Sajjad Hussain Shah, A.A.-G.(Pb) for the State (in Crl. A. No.149 of 2000).

Sardar Latif Khan Khosa, Advocate Supreme Court for Appellant (in Crl. A. No.150 of 2000).

Aftab Iqbal Chaudhary, A.-G. Punjab, Ch. Khrushid Anwar Bhinder, Addl. A.-G. (Pb), Ms. Afshan Ghazanfar, A.A.-G. (Pb) and Syed Sajjad Hussain Shah, A.A.-G.(Pb) for the State (in Crl. A. No.150 of 2000).

M. Amjad Malik, Advocate Supreme Court for Appellant (in Crl. A. No.151 of 2000).

Aftab Iqbal Chaudhary, A.-G. Punjab, Ch. Khrushid Anwar Bhinder, Addl. A.-G. (Pb), Ms. Afshan Ghazanfar, A.A.-G. (Pb) and Syed Sajjad Hussain Shah, A.A.-G.(Pb) for the State (in Crl. A. No.151 of 2000).

M. Zahoor Qureshi, Advocate-on-Record/Advocate Supreme Court for Appellant (in Crl. A. No.191 of 2000).

Syed Sardar Hussain, Advocate Supreme Court and Syed Safdar Hussain, Advocate-on-Record for Respondent (in Crl. A. No.191 of 2000).

M. Younas Khan Tanoli, A.-G.(N.-W.F.P.), Pir Liaqat Ali Shah, Addl. A.-G. (N.-W.F.P.) and M. Bilal, Senior Advocate Supreme Court for the State (in Crl. A. No.191 of 2000).

Syed Sardar Hussain, Advocate Supreme Court and Syed Safdar

Hussain, Advocate-on-Record for Appellant (in Crl. A. No.195 of 2000).

M. Younas Khan Tanoli, A.-G.(N.-W.F.P.), Pir Liaqat Ali Shah Addl. A.-G. (N.-W.F.P.) and M. Bilal, Senior Advocate Supreme Court for the State (in Crl. A. No.195 of 2000).

Nemo for Appellant (in Crl. A. No.206 of 2000).

M. A. Zafar, Advocate Supreme Court for the Complainant/ Respondent (in Crl. A. No.206 of 2000).

Aftab Iqbal Chaudhary, A.-G. Punjab, Ch. Khrushid Anwar Bhinder, Addl. A.-G. (Pb), Ms. Afshan Ghazanfar, A.A.-G. (Pb) and Syed Sajjad Hussain Shah, A.A.-G.(Pb) for the State (in Crl. A. No.206 of 2000).

Nemo for Appellant (in Crl. A. No.212 of 2000).

Aftab Iqbal Chaudhary, A.-G. Punjab, Ch. Khrushid Anwar Bhinder, Addl. A.-G. (Pb), Ms. Afshan Ghazanfar, A.A.-G. (Pb) and Syed Sajjad Hussain Shah, A.A.-G.(Pb) for the State (in Crl. A. No.212 of 2000).

Nemo for Appellant (in Crl. A. No.214 of 2000).

Aftab Iqbal Chaudhary, A.-G. Punjab, Ch. Khrushid Anwar Bhinder, Addl. A.-G. (Pb), Ms. Afshan Ghazanfar, A.A.-G. (Pb) and Syed Sajjad Hussain Shah, A.A.-G.(Pb) for the State (in Crl. A. No.214 of 2000).

Afzal Siddiqui, Advocate Supreme Court for Appellant (in Crl. A. No.225 of 2000).

Raja Abdul Ghafoor, Advocate-on-Record for Respondent (in Crl. A. No.225 of 2000).

Anwar Mansoor, A.-G. Sindh and Dr. Qazi Khalid Ali, Addl. A.-G. Sindh for the State (in Crl. A. No.225 of 2000).

Nemo for Appellant (in Crl. A. No.306 of 2000).

Aftab Iqbal Chaudhary, A.-G. Punjab, Ch. Khrushid Anwar Bhinder, Addl. A.-G. (Pb), Ms. Afshan Ghazanfar, A.A.-G. (Pb) and Syed Sajjad Hussain Shah, A.A.-G.(Pb) for the State (in Crl. A. No.306 of 2000).

Dr. Baber Awan, Advocate Supreme Court for Appellant (in Crl. A. No.326 of 2000).

Ch.Mushtaq Ahmed Khan, Senior Advocate Supreme Court, Saeed Akhtar Khan, Advocate Supreme Court for Respondent (in Crl. A. No.326 of 2000).

Nasir Saeed Sheikh, D.A.-G. for Federation (in Crl. A. No.326 of 2000).

M. Younas Khan Tanoli, A.-G. (N.-W.F.P.), Pir Liaqat Ali Shah, Addl. A.-G. (N.-W.F.P.) and M. Bilal, Senior Advocate Supreme Court for the State (in Crl. A. No.326 of 2000).

Dr. Baber Awan, Advocate Supreme Court and Saeed Akhtar Khan, Advocate Supreme Court for Appellant (in Crl. A. No.327 of 2000).

M. Younas Khan Tanoli, A.-G. (N.-W.F.P.), Pir Liaqat Ali Shah, Addl. A.-G. (N.-W.F.P.) and M. Bilal, Senior Advocate Supreme Court for the State (in Crl. A. No.327 of 2000).

Saeed Akhtar Khan, Advocate Supreme Court for Appellant (in Cr1. A. No.328 of 2000).

M. Younas Khan Tanoli, A.-G. (N.-W.F.P.), Pir Liaqat ali Shah, Addl. A.-G. (N.-W.F.P.) and M. Bilal, Senior Advocate Supreme Court for the State (in Cr1. A. No.328 of 2000).

Dr. Baber Awan, Advocate Supreme Court and Ejaz Muhamamd Khan, Advocate-on-Record for Petitioner (in Crl. P. No.115 of 2002).

M. Younas Khali Tanoli, A.-G. (N.-W.F.P.), Pir Liaqat Ali Shah, Addl. A.-G. (N.-W.F.P.) and M. Bilal, Senior Advocate Supreme Court for the State (in Crl. P. No.115 of 2002).

Sh. Zamir Hussain, Senior Advocate Supreme Court for Appellant (in Crl. A. No.390 of 2000).

Munir Ahmad Bhatti, Senior Advocate Supreme Court for Respondent (in Crl. A. No.390 of 2000).

Salauddin Mangel, A.-G. (Balochistan) for the State (in Crl. A. No.390 of 2000).

M.A. Zafar, Advocate Supreme Court for Appellant (in Crl. A. No.297 of 2001).

Aftab Iqbal Chaudhary, A.-G. Punjab, Ch. Khrushid Anwar Bhinder, Addl. A.-G. (Pb), Ms. Afshan Ghazanfar, A.A.-G. (Pb) and Syed Sajjad Hussain Shah, A.A.-G.(Pb) for the State (in Crl. A. No.297 of 2001).

M.A. Zafar, Advocate Supreme Court for Petitioner (in Cr1. P. No.176 of 2001).

Nemo for Respondent (in Crl. P. No.176 of 2001). Nemo for Appellant (in Crl. A. No.236 of 2001).

Aftab Iqbal Chaudhary, A.-G. Punjab, Ch. Khrushid Anwar Bhinder, Addl. A.-G. (Pb), Ms. Afshan Ghazanfar, A.A.-G. (Pb) and Syed Sajjad Hussain Shah, A.A.-G.(Pb) for the State (in Crl. A. No.236 of 2001).

Dr. Baber Awan, Advocate Supreme Court and Ejaz Muhamamd Khan, Advocate-on-Record for Appellant (in Crl. A. No.250 of 2001).

Rana Muhammad Arshad, Advocate Supreme Court for the Complainant (in Crl. A. No.250 of 2001).

Aftab Iqbal Chaudhary, A.-G. Punjab, Ch. Khrushid Anwar Bhinder, Addl. A.-G. (Pb), Ms. Afshan Ghazanfar, A.A.-G. (Pb) and Syed Sajjad Hussain Shah, A.A.-G.(Pb) for the State (in Crl. A. No.250 of 2001).

Sardar Muhammad Ishaq Khan, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Appellant (in Crl. A. No.424 of 2001).

Sardar Asmatullah Khan, Advocate Supreme Court for the Respondent/Complainant (in Crl. A. No.424 of 2001).

Aftab Iqbal Chaudhary, A.-G. Punjab, Ch. Khrushid Anwar Bhinder, Addl. A.-G. (Pb), Ms. Afshan Ghazanfar, A.A.-G. (Pb) and Syed Sajjad Hussain Shah, A.A.-G.(Pb) for the State (in Crl. A. No.424 of 2001).

Sardar Muhammad Ishaq Khan, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Appellant (in Crl. A. No.144 of 2002).

Muhammad Ilyas Siddiqui, Advocate Supreme Court for the Complainant (in Crl. A. No.144 of 2002).

Aftab Iqbal Chaudhary, A.-G. Punjab, Ch. Khrushid Anwar Bhinder, Addl. A.-G. (Pb), Ms. Afshan Ghazanfar, A.A.-G. (Pb) and Syed Sajjad Hussain Shah, A.A.-G.(Pb) for the State (in Crl. A. No.144 of 2002).

Ch. Arshad Ali Chaudhry, Advocate-on-Record/Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Appellant (in Crl. A. No.340 of 2002).

Respondent: Ex parte (in Crl. A. No.340 of 2002).

Dr. Babar Awan, Advocate Supreme Court and Ejaz Muhamamd Khan, Advocate-on-Record for Appellant (in Crl. A. No.411 of 2002).

Aftab Iqbal Chaudhary, A.-G. Punjab, Ch. Khrushid Anwar Bhinder, Addl. A.-G. (Pb), Ms. Afshan Ghazanfar, A.A.-G. (Pb) and Syed Sajjad Hussain Shah, A.A.-G:(Pb) for the State (in Cr1. A. No.411 of 2002).

Sh. Khizar Hayat, Advocate Supreme Court for Appellant (in Crl. A. No.203 of 2003).

M. A. Zafar, ,Advocate Supreme Court and Rana Muhammad Arshad, Advocate Supreme Court for Respondents (in Crl. A. No.203 of 2003).

Nasir Saeed Sheikh, D.A.-G. for the 'Federation (in Cr1. A. No.203 of 2003).

Aftab Iqbal Chaudhary, A.-G. Punjab, Ch. Khrushid Anwar Bhinder, Addl. A.-G. (Pb), Ms. Afshan Ghazanfar, A.A.-G. (Pb) and Syed Sajjad Hussain Shah, A.A.-G.(Pb) for the State (in Crl. A. No.203 of 2003).

M. Younas Khan Tanoli, A.-G. (N.-W.F.P.), Pir Liaqat Ali Shah, Addl.A.-G. (N.-W.F.P.) and M. Bilal, Senior Advocate Supreme Court for the State (in Crl. A. No.203 of 2003).

Salauddin Mangel, A.-G. (Balochsitan) for the State (in Crl. A. No.203 of 2003).

Anwar Mansoor, A.-G. (Sindh) and Dr. Qazi Khalid Ali, Addl. A.-G. (Sindh) for the State (in Crl. A. No.203 of 2003).

Sardar Latif Khan Khosa, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Appellant (in Crl. A. No.1371 of 2003).

Ilyas Siddiqui, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondents (in Crl. A. No.1371 of 2003).

Sardar Muhammad Ishaq Khan, Senior Advocate Supreme Court for Petitioner (in Crl. P. No.29 of 2003).

Muhammad Ilyas Siddiqui, Advocate Supreme Court for the Complainant (in Crl. P. No.29 of 2003).

Ch. Afrasiab Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner (in CrI. P. No.351 of 2003).

Muhammad Ilyas Siddiqui, Advocate Supreme Court for Respondent (in Crl.P. No.351 of 2003).

Sardar Muhammad Ishaq Khan, Senior Advocate Supreme Court for Petitioner (in Crl. Review P. No.12 of 2001).

Tariq Azam Chaudhry, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent (in Crl. Review P.No.12 of 2001).

Arshad Ali Chaudhry, Advocate-on-Record/Advocate Supreme Court for Petitioner (in Crl. Review Petition No.39 of 2002).

Altaf Elahi Sheikh, Advocate Supreme Court for Respondent (in Crl. Review Petition No.39 of 2002).

Dates of hearing: 12th to 15th September, 2005.

P L D 2006 Supreme Court 394

Present: Iftikhar Muhammad Chaudhry, CJ, Mian Shakirullah Jan and Saiyed Saeed Ashhar, JJ

Moulvi IQBAL HAIDER---Petitioner

Versus

CAPITAL DEVELOMENT AUTHORITY and others---Respondents

Constitution Petition No.36 of 2005 (Conversion of Public Park into a Mini Golf Course), decided on 7th February, 2006.

(a) Capital Development Authority Ordinance (XXIII of 1960)---

----Ss. 12, 19, 20, 21 & 49---Islamabad Land Disposal Regulation, 1993, Reglns 3 & 12(3)---Constitution of Pakistan (1973), Arts.184(3), 9 & 26---Constitutional petition before Supreme Court under Art.184(3), Constitution of Pakistan---Contentions of the petitioner were that wherever, a Scheme under the provisions of S.12 of the Capital Development Authority Ordinance, 1960 was prepared by the Authority, amenity plots including the plot for public park, playing field, graveyard and incidental open places, etc. were earmarked separately; that under Regulation 3 of the Islamabad Land Disposal Regulation, 1993 for the purpose of establishing Mini Golf Course on the public Park, no permission was sought from the Federal Government nor objections were invited in this behalf in accordance with S.19 read with S.20 of the Capital Development Authority Ordinance, 1960; that the transaction of leasing the plot had been made by the Capital Development Authority with the private party without any lawful authority and jurisdiction, as such, in this manner the fundamental rights of general public enshrined in Arts.9 & 26 of the Constitution had been denied; that in a public park, citizens including children were not required to purchase tickets and once Mini Golf Course was established, the entry of general public would be obstructed in terms of imposing conditions, including purchase of tickets and to enjoy other amusement against payments and that Development Authority was committed to provide a public park for the residents of the sector concerned, which would be maintained by the Authority itself and could not be allowed to be converted into a commercial project by the third party in terms of Regulation 12(3) of Islamabad Land Disposal Regulation, 1993---Validity---Held, during the classification of the plots under Regulation 3 of Islamabad Land Disposal Regulation, 1993, if a piece of land had been earmarked for the purpose of Public Park, same could not be leased out and Capital Development Authority itself was bound to develop the same---Neither the permission was sought to convert the public park into the Mini Golf Course nor before doing so objections were invited from the general public in terms of S.21, Capital Development Authority Ordinance, 1960---Production of original file/documents with regard to the plot in question for purpose of examining the exact position of the lease and status of the plot by the Supreme Court was denied by the Capital Development Authority stating in writing that the same were not available and were being traced out and will be produced before the Court when the same were found out---Public park, if earmarked in a housing Scheme, created a right amongst the public and that right included their right of entry in the park without any obstacle, being fundamental right as enshrined in Art.26 read with Art.9 of the Constitution---Liberty of a person, to have access or utilize a right available to him, could not be taken away by converting such facility into commercial one, for the purpose of extending benefit to a third person, as in the present case, considerably a big plot of land measuring five acres, had been handed over to a third person at a throwaway lease money, causing huge loss to the public exchequer, therefore, tax payers had a right to inquire from Capital Development Authority as to how a right of life and liberty could be denied to them---Facts of the case were admitted by the Capital Development Authority, no formal evidence therefore, was required to prove the same---Deal between Capital Development Authority and the third person had not been made in a transparent manner, coupled with the fact that the lease of a public park had been given for 15 years at a rate of Rs.2.55.million per annum, to be paid after about 20 months with clear delegated authority to the lessee that it could issue licence to the local or international parties for the purpose of providing amusement/commercial activities etc.---Such delegation to private person to watch its financial interests of the high degree would tantamount to depriving the Capital Development Authority as well as the public from their valuable rights, for whose benefits such Authority had been created and apparently such action had no legal sanctity---Law on the subject, on the other hand, was, that such parks were to be developed or to be maintained by the Capital Development Authority itself---Park was earmarked in the original Scheme of the sector, as it was meant for low income group, who were deprived of the benefits of having their own private gardens---Comparing to higher income groups, therefore, converting such parks for commercial activity with the collaboration of multinational companies, would deny the people rights guaranteed to them--Functionaries, exercising statutory power, like Capital Development Authority, were bound to discharge their functions strictly in accordance with law, otherwise the action contrary to law would not be sustainable and such Authority shall expose itself for disciplinary action---Without obtaining no objection certificate from the general public, such plot could not be used for any other purpose--- Capital Development Authority, in such-like situation, if at all was interested to lease out the public park, instead of developing the same, might have invited fresh proposals instead of calling the third person to enhance the lease money because in granting contracts for the purpose of fetching money to support the public exchequer, the competent authority had an obligation to adopt such devices on the basis of which more money could be procured---Capital Development Authority as per record, was only interested to grant lease to the third party, mala fide---In concluding the transaction with the third party therefore, it was abundantly apparent on the record, that lease agreement with the said party was not transparent---Allowing the third party to avail benefit of the lease, in circumstances, would tantamount to perpetuate the unlawful/illegal acts of both Capital Development Authority and the third party---Constitutional petition was accepted by the Supreme Court with directions that lease agreement executed by Capital Development Authority for the development of Mini Golf Course was not sustainable in the eye of law, being contrary to law and fundamental rights of the general public, enshrined under Art.26 of the Constitution; that third party was to hand over vacant possession of the plot, lease of which had been obtained by him from the Capital Development Authority, within a period of four weeks, in its original condition---Subject to complying with the directions of the Court Capital Development Authority would refund Rs.5 lacs to the third party deposited by it as security, that enquiry report shall be sent to the Registrar Supreme Court within three months for Court's perusal in Chambers and passing further order, if need be; that Board of the Capital Development Authority shall examine the case thoroughly to explore possibility of initiating disciplinary/penal action before the competent forum against the delinquent officers/officials, responsible for executing the lease with the third party, in view of the law laid down by Supreme Court in the case of Pervaiz Oliver PLD 1999 SC 26; that Board of Capital Development Authority will take steps to find out the relevant record of the Park, and if record was not made available, then report shall be lodged before the competent law enforcing agency, according to law and that Capital Development Authority shall be free to develop the public park itself for the purpose of providing entertainment to the public of Islamabad, in discharge of duties under the law---Principles.

Mian Fazal Din v. Lahore Development Trust, Lahore PLD 1969 SC 223; Government of Punjab v. Crescent Textile PLD 2004 SC 108; Captain-PQ Chemical Industries (Pvt.) Ltd. v. A.W. Brothers 2004 SCMR 1956; Government of West Pakistan v. Begum Agha Abdul Karim Shorash Kashmiri PLD 1969 SC 14; Ahmad Hassan v. Government of Punjab 2005 SCMR 186; Engineer-in-Chief Branch v. Jalaluddin PLD 1992 SC 207; Abdul Haque Indhar v. Province of Sindh2000 SCMR 907; Pakistan Tobacco Company Ltd. v. Federation of Pakistan 1999 SCMR 382; Javed Ibrahim Paracha v. Federation of Pakistan and others PLD 2004 SC 482; Muhammad Bashir v. Abdul Karim PLD 2004 SC 271; Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883 and Pervaiz Oliver v. St. Gabriel School PLD 1999 SC 26 ref.

Lahore Improvement Trust v. Custodian of Evacuee Property PLD 1971 SC 811; Muhammad Shahbaz Sharif v. Federation of Pakistan PLD 2004 SC 583 and All Pakistan Newspapers Society v. Federation of Pakistan PLD 2004 SC 600 distinguished.

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

----Art. 184(3)---Constitutional petition before Supreme Court under Art.184(3) of the Constitution---Scope---Vested right of an individual can be protected, if the order passed in his favour is lawful.

Engineer-in-Chief Branch v. Jalaluddin PLD 1992 SC 207 and Abdul Haque Indhar v. Province of Sindh 2000 SCMR 907 ref.

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

----Art. 184(3)---Constitutional petition before Supreme Court under Art.184(3) of the Constitution---Maintainability---Constitutional petition under Art.184(3) of the Constitution can be maintained subject to establishing by the petitioner that question of public importance with reference to enforcement of fundamental right has been made out---Maintainability of a petition under Art.184(3) of the Constitution is to be examined by the Court not on the basis as to who has filed the same but if the controversy involves question of public importance with reference to enforcement of any fundamental right, petition will be sustainable.

Muhammad Shahbaz Sharif v. Federation of Pakistan PLD 2004 SC 583; All Pakistan Newspapers Society v. Federation of Pakistan PLD 2004 SC 600 and Pakistan Tobacco company Ltd. v. ,Federation of Pakistan 1999 SCMR 382 quoted.

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

----Arts. 184(3) & 199---Public interest litigation---Invocation of constitutional jurisdiction of Superior Courts---Scope---"Pro bono publico" and "public interest"---Connotation---Person can invoke the constitutional jurisdiction of the Superior Courts as pro bono publico, but while invoking said jurisdiction, he has to show that he is litigating, firstly, in the public interest and, secondly, for the public good or for the welfare of the general public---In case of public interest litigation, one can agitate the relief on his own behalf and also on behalf of the general public against various public functionaries, where they have failed to perform their duties relating to the welfare of public at large, which they are bound to provide under the relevant laws and that petitioner's bona fides in that respect is also established.

Javed Ibrahim Paracha v. Federation of Pakistan and others PLD 2004 SC 482 ref.

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

----Arts. 184(3) & 26---Conversion of public park into a commercial park by the Capital Development Authority violating the fundamental right enshrined in Art.26 of the Constitution---Question of public importance---Constitutional petition under Art.184(3) of the Constitution before the Supreme Court---Maintainability---Person not living at the place in question, who approaches the Supreme Court for exercising the jurisdiction under Art.184(3) of the Constitution was not disqualified and petition under Art.184(3) of the Constitution by such person was maintainable---Principles.

Muhammad Bashir v. Abdul Karim PLD 2004 SC 271 quoted.

Raja Muhammad Ibrahim Satti, Advocate Supreme Court along with' Moulvi Iqbal Haider (petitioner), and Ch.Muhammad Akram, Advocate-on-Record for Petitioner.

Malik Muhammad Nawaz, Advocate Supreme Court, Rai Muhammad Nawaz Kharral, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.1.

Ahmer Bilal Sufi, Advocate Supreme Court along with Arshad Ali Chaudhry, Advocate-on-Record for Respondent No.2.

Date of hearing:7th February, 2006.

P L D 2006 Supreme Court 418

Present: Falak Sher and Ch. Ijaz Ahmad, JJ

RASHEEDUR REHMAN KHAN---Petitioner

Versus

Mian IQBAL HUSSAIN---Respondent

C.P. No.1226-L of 2005, decided on 3rd April, 2006.

(On appeal from order dated 15-3-2005 passed by Lahore High Court in R.F.A. No.204 of 1999).

(a) Interpretation of documents---

----Document must be construed and read as a whole.

N.S. Krishnaswami Ayyangar's case PLD 1949 PC 289; Mian Nawaz Sharif's case PLD 1993 SC 473 and Ihsan Ilahi's case PLD 1967 SC 200 ref.

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

----S. 28---Negotiable Instruments Act (XXVI of 1881), S.4---Promissory note---Condition prescribed in the document to forego his right of appeal brings the document outside the purview of the provisions of Negotiable Instruments Act, 1881 and it falls under the provisions of Contract Act, 1872 automatically, meaning thereby that despite the fact that it was written on the pro forma of pro note but due to the condition in the document had changed its status from pro note to an agreement/contract---No one can exclude himself from the protection of Courts by contract---Principles.

AIR 1947 PC 116= 45 Indian App. 61 ref.

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

---S.28---Scope of S.28, Contract Act, 1872---Section 28 applies where there is absolute restraint against the enforcement of rights.

AIR 1921 Mad.599; AIR 1916 Lah. 89 and AIR 1928 Sindh 481 ref.

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

---Art. 185(3)---Petition for leave to appeal---Both the Courts below had given concurrent findings of fact against the petitioner after proper appreciation of evidence on all material issues---Supreme Court declined to interfere under Art.185(3) of the Constitution and dismissed the petition.

Malik Muhammad Ishaque's case PLD 1977 SC 109 and Noora's case PLD 1973 SC 469 ref.

S. M. Tayyab, Advocate Supreme Court with Mahmudul Islam, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 3rd April, 2006.

P L D 2006 Supreme Court 422

Present: Iftikhar Muhammad Chaudhry, C.J. and Tassaduq Hussain Jillani, J

MUNIR AHMAD NAULAKHA and others---Petitioners

Versus

Ch. MUHAMMAD DIN and others---Respondents

Civil Petition No.439-L of 2005, decided on 30th January, 2006.

(On appeal from the judgment/order dated 4-3-2005 passed by Lahore High Court Lahore in W.P. No.13782 of 2003).

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)----

--Ss. 2(d)(g), 19, 11 & 13---Bona fide personal need of landlord---Status of non-residential building cannot be changed into residential building, notwithstanding the fact whether commercial activity is going on therein or not---Section 11 of the West Pakistan Urban Rent Restriction Ordinance, 1959 prohibits conversion of residential building and non-residential building, subject to permission in writing of the Rent Controller---Principles.

Status of a residential building is distinct and different from non-residential building. So far as the non-residential building is concerned, definition given in S.2(d)(g) of the West Pakistan Urban Rent Restriction Ordinance, 1959 includes the buildings which are used for commercial purposes e.g. shops etc. whereas residential building includes the area which meant/declared for dwelling purposes.

From the above definition yet another type of building can be identified namely 'composite building' which includes its residential and non-residential portions. The flats, subject-matter of the proceedings were located on the first floor of the building, whereas there were statedly a good number of shops on the ground floor. Thus the status of the portion of the building i.e. residential and non-residential, would remain intact, unless changed otherwise. At this juncture, reference to section 11 of the Ordinance would not be out of context, which prohibits conversion of residential building and non-residential building, subject to permission in writing of the Controller. Violation of this section calls for imposition of penalty under section 19 of the Ordinance. Status of non-residential building cannot be changed into residential building, notwithstanding the fact whether commercial activity is going on therein or not.

Landlord had no authority to convert flats, into non-residential premises for the reason that the tenant had already running an office because such activity can be considered as an ancillary one, in a building which is otherwise a residential building.

Qurban Khan v. Begum M.M. Sharif 1980 SCMR 590; Amjad Ali Shah v. Iqbal Ahmad Farooqi PLD 1985 SC 242 and Habib Bank Ltd. v. Anis Ahmad 2001 SCMR 981 ref.

Dr. A. Basit, Advocate Supreme Court for Petitioners.

Malik Muhammad Qayyum, Advocate Supreme Court for Respondents.

Date of hearing: 30th January, 2006.

P L D 2006 Supreme Court 427

Present: Faqir Muhammad Khokhar, Raja Fayyaz Ahmad and Ch. Ijaz Ahmad, JJ

Mst. ZAHIDA SALEEM---Petitioner

Versus

MUHAMMAD NASEEM and others---Respondents

Criminal Petition No.42-L of 2004, decided on 31st March, 2006.

(On appeal from order dated 17-12-2003 passed by Lahore High Court, in Criminal Appeal No.1657 of 2003).

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

----Art.185---Penal Code (XLV of 1860), Ss.302/364/324/109/34---Appeal against acquittal---Interference by superior Courts---Principles---Superior Courts while dealing with the appeal against acquittal can interfere only in such cases where the judgment and acquittal is based on misreading, non-appraisal of evidence or is speculative, artificial, arbitrary and foolish on its face.

Following are the principles laid down to interfere where the accused were acquitted by the Courts below:-

(I) In an appeal against acquittal the Supreme Court would not, on principle, ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This different approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: one initial, that till found guilty, the accused is innocent; and two that again after the trial a Court below confirmed the assumption of innocence.

(II) The acquittal will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally.

(III) In either case the well-known principles of reappraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principles as noted above and for no other reason.

(IV) The Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in an irresistible conclusions and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous.

Superior Courts while dealing with the appeal against the acquittal interfered only in such cases where the judgment and acquittal is based on misreading, non-appraisal of evidence or is speculative artificial, arbitrary and foolish on its face.

Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 quoted.

(b) Penal Code (XLV of 1860)-

----Ss. 302/364/324/109/34---Appreciation of evidence---Principles---When witnesses, deliberately involved innocent person on a charge of capital nature, then the Court was to insist upon independent support in the nature of circumstantial evidence or otherwise for giving finding of guilt---Mere such aspect of the case was sufficient that the impugned judgment was passed by the Court below against the accused with cogent reasons as the prosecution was responsible to involve large number of persons in the case---Weak evidence could not corroborate another weak evidence---Whenever any corroboration was required, it implied that the same should be an independent one---If the corroboration was also through the same witness whose statement was required to be corroborated that would be no corroboration in the eye of law.

Wasiullah v. Mirza Ali and others PLD 12963 SC 25 ref.

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

----Art. 185(3)---Petition for leave to appeal---Supreme Court, while exercising power under Art.185(3) of the Constitution, cannot interfere in the concurrent conclusions arrived at by both the Courts below.

Hamayun's case 1986 SCMR 1987; Ibrahim's case 1989 SCMR 1521; Muhammad Khalid's case 1986 SCMR 1956; Abdullah's case 1987 SCMR 513 and Ghulam Hussain's case 1984 SCMR 1540 ref.

Ch. Muhammad Jehangir Wahla, Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 31st March, 2006.

P L D 2006 Supreme Court 432

Present: Faqir Muhammad Khokhar and Ch. Ijaz Ahmad, JJ

NIAZ and others---Petitioners

Versus

ABDUL SATTAR and others---Respondents

C.P. No.1249-L of 2003, decided on 24th March, 2006.

(On appeal from order dated 2-4-2003 passed by Lahore High Court, Lahore in C.R. No.476 of 2003).

(a) Tort---

----Malicious prosecution---Basic elements on the basis of which suit for malicious prosecution could be accepted, or rejected, enumerated.

Following are the basic elements on the basis of which suit for recovery for malicious prosecution could be accepted or rejected.

(a) The prosecution of the plaintiff by the defendant.

(b) There must be a want of reasonable and probable cause for that prosecution.

(c) The defendant must have acted maliciously i.e. with a improbable motive and not to further the ends of justice.

(d) The prosecution must have ended in favour of the person proceeded against.

(e) It must have caused damage to the party proceeded against.

(b) Tort---

----Malicious prosecution---Damages, grant or refusal of---Principles laid down.

Following are the principles qua the granting or refusing damages with regard to malicious prosecution:

(i) That the plaintiff was prosecuted by the defendant.

(ii) That the prosecution ended in plaintiff's failure.

(iii) That the defendant acted without reasonable and probable cause.

(iv) That the defendant was actuated by malice.

(v) That the proceeding had inferred with plaintiff's liberty and had also effected her reputation and finally.

(v) That the plaintiff had suffered damages.

Muhammad Akram's case PLD 1990 SC 28 quoted.

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

----S. 96---First appeal---Appellate Court had all the powers under S.96, C.P.C. to reappraise the evidence on record.

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

----Arts. 189 & 190---Judgment of Supreme Court is binding on each and every organ of the State.

(e) Tort---

----Malicious prosecution---Damages, grant of---Prosecution may not be entirely mala fide but the continuance of such prosecution after it was discovered that the facts upon which it was based were not true may give rise to claim for damages for malicious prosecution.

Fetzjohn v. Mackinder 30 LJCP 257 fol.

(f) Tort---

--Malicious prosecution---Proof of existence of malice itself is not enough in suit for malicious prosecution but it should be accompanied by proof of absence of reasonable and probable cause.

(g) Tort---

----Malicious prosecution---"Reasonable and probable cause"---Meaning---"Reasonable and probable cause" means that it is an honest belief in the guilt of accused based upon full conviction, based on reasonable grounds, of the existence of a state of circumstances, which, , assuming them to be true, would reasonably lead any ordinary prudent man to come to the conclusion that the person charged was probably guilty of crime imputed---If reasonable and probable cause is established, then question of malice becomes irrelevant.

?

V.T. Strinivasa Fhathachariar v. Thirunvenkat Achariar AIR 1932 Mad. 601 and Denning L.J. in Tempest v. Snowden (1952) 1 KBN 130 ref.

Muhammad Bashir v. The State PLD 1982 SC 139 and Muhammad Yousaf v. Syed Ghayyur Hussain Shah and others NLR 1993 'SCJ 462 rel.

(h) Words and phrases----

---"Reasonable" and "probable cause"---Connotation.

V.T.Strinivasa Fhathachariar v. Thirunvenkat Achariar AIR 1932 Mad. 601 ref.

(i) Constitution of Pakistan (1973)---

----Arts.4 & 14---Tort---Malicious prosecution---Suit for damages---. Held, it would be more in consonance with the genesis of the Constitution, Arts.4 & 14 in particular, to say that the foundation of the action for damages for malicious prosecution lies not in the abuse of the process of Court, but in the abuse in process of law---Principles---Supreme Court urged the Bar Associations and the Bar Councils to educate the people and to file suit for damages against the offenders apart from the criminal proceedings.

By Article 4 of the Constitution, it is the inalienable right of every citizen to enjoy the protection of law and to be treated in accordance with law and in particular no action detrimental to the life, and, liberty, body, reputation or property of any person shall be taken except in accordance with law. Article 14 of the Constitution also guarantees the dignity of man and subject to law, the privacy of home. In the context of the Constitution, it is no more necessary to hedge in an action for damages for malicious prosecution by the condition that the action was an abuse of the "process of the Court". It will be more in consonance with the genesis of the Constitution, Articles 4 and 14 in particular, to say that the foundation of the action for damages for malicious prosecution lies, not in the abuse of the process of Court, but in the abuse in the process of law. For, one has to bear in mind the ground realities of life existing in the country, it should appear plainly that proceedings before the police afford a stronger ground for an action for malicious prosecution than proceedings in a Court of law, for it is an unfortunate fact that, as things are, human dignity suffers or is likely to suffer more at the hands of the police than in a Court of law. One of the modes to achieve this goal is to file a suit for damages against the offenders by the aggrieved persons. It is the duty of the members of the Bar Associations 'and Bar Council to educate the people and to file suits for damages against the offenders apart from the criminal proceedings.

It is a high time to put the nation on a right path to promote the law of tort. In case citizens and the Courts are conscious to save the nation from the agony of telling lies or involving innocent persons in criminal cases, then the only solution to stop this frivolous litigation for the purpose of taking revenge from the other side is to file suits for damages as and when the competent forum has declared the accused persons as innocent acquitted/discharged by the competent Court so that prosecution must lodge genuine cases.

Ch. Muhammad Ashraf, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 24th March, 2006.

P L D 2006 Supreme Court 441

Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

ALLAH BAKHSH---Petitioner

Versus

THE STATE---Respondent

Jail Petition No.305 of 2003, decided on 8th November, 2005.

(On appeal from the judgment dated 14-7-2003 of the High Court of Balochistan, Quetta passed in Cr.J.A.No.8 of 2003).

Penal Code (XLV of 1860)---

• S. 302(a)---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Confessional statement of accused---Accused immediately after his arrest made confessional statement and also admitted commission of offence during framing of charge---Trial Court awarded death penalty under S.302(a) P.P.C. to the accused, which was maintained by High Court---Validity---Immediately after arrest accused volunteered to confess the guilt which was recorded by Judicial Magistrate in which he categorically admitted to have killed the deceased---Accused failed to point out any illegality, non-reading or misreading of evidence---Supreme Court did not find any reason to interfere with concurrent findings of two Courts below---Leave to appeal was refused.

Javed Aziz Sindhu, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 8th November, 2005.

P L D 2006 Supreme Court 444

Present: Javed Iqbal and Nasir-ul-Mulk, JJ

SARDAR MUHAMMAD and others---Petitioners

Versus

Mst. SHARIFAN BIBI---Respondent

Civil Petition No.1933 of 2004, decided on 3rd March, 2006.

(On appeal from judgment dated 31-5-2004 of the Lahore High Court, Lahore, passed in C.R. No.3069 of 1994).

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.XXIII, R.3---Constitution of Pakistan '(1973), Art.185 (3)---Declaration of title---Compromise decree---Plea not raised---Effect---Concurrent findings of fact by the Courts below---Father of plaintiffs, in earlier round of litigation, consented to the share of widow of his brother and suit was decided accordingly---Later on widow gifted her land in favour of her adopted daughter---Plaintiffs assailed mutation of gift and claimed their share in the property left by the widow---Trial Court and Lower Appellate Court concurrently dismissed the suit and appeal respectively---Judgments of both the Courts below were maintained by High Court in exercise of revisional jurisdiction---Validity---Plaintiffs' case was not that they were deprived of their legal share as excessive land was devolved upon the widow pursuant to the gift---Case of plaintiffs before High Court was that Trial Court had not framed proper issues and moreso the evidence could not be appreciated in its true perspective, which resulted in serious miscarriage of justice---Such new plea pressed into service did not even find mention in memorandum of petition for leave to appeal---Point which had not been urged before lower Court and was not mentioned in petition for leave to appeal, could not be allowed to be raised at the hearing of the petition---Plaintiffs were successors of the husband of predecessor-in-interest of defendants but land in question exclusively belonged to the widow and devolved upon her under Islamic law to the extent of 1/4th share, such land could not be given to plaintiffs, who were not her legal heirs---Plaintiffs had no cause of action when gift was already restricted to the lawful share of predecessor-in-interest of defendants and hence question of annulment of the gift did not arise which was never challenged by predecessor-in, interest of plaintiffs but impliedly which culminated into a compromise between the predecessor-in-interest, of plaintiffs and the widow---Supreme Court declined to interfere with the judgments and decrees passed by the Courts below---Leave to appeal was refused.

Muhammad Ibrahim v. Allah Bakhsh 1968 SCMR 143; Ghulam Haider v. Settlement Commissioner 1972 SCMR 559 and Begum Zahoorul Haq v. Muhammad Younus 1985 SCMR 1657 ref.

Saleem A. Rehman, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 3rd March, 2006.

P L D 2006 Supreme Court 448

Present: Sardar Muhammad Raza Khan and Falak Sher, JJ

AHMAD SHER and others---Appellants

Versus

MUHAMMAD HAYAT---Respondent

Civil Appeal No.2569 of 2001, decided on 8th March, 2006.

(On appeal from the judgment dated 23-4-2001 passed by the Lahore High Court, Lahore in Civil Revision No.1764-D of 1985).

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

----S. 2(2)---Decree, drawing of---Scope---Dismissal of suit is also a decree under S.2(2) C.P.C.

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

----S. 21---Punjab Pre-emption Act (IX of 1991), S.35---Constitution of Pakistan (1973), Art.185(3)---Pre-emption suit---Ex parte decree prior to cut-off date---Effect---Suit was decreed ex parte in favour of pre-emptor on 15-12-1973---On the application of vendees, ex parte decree was set aside and after holding trial, Trial Court dismissed the suit---Judgment and decree passed by Trial Court was maintained by Appellate Court but High Court in exercise of revisional jurisdiction set aside the concurrent judgments passed by both the Courts below and the suit was decreed in favour of pre-emptor---Plea raised by vendees was that there was no decree in favour of pre-emptor before the cut-off date i.e. 31-7-1986, as the same had been set aside by Trial Court itself---Validity---There was no difference between an ex parte decree set aside by the same Court and the one set aside by higher Court, as the effect of both decrees was the same---Was not at all necessary that such ex parte or contested decree must subsist up to 31-7-1986---Ex parte decree was a decree all intents and purposes---Pre-emptor had already obtained an ex parte decree on 15-12-1973, much before the target date, regardless of the fact that such decree was subsequently set aside---Once decree was obtained before target date, it had eliminated the mischief involved---Pre-emptor could not, therefore, be non-suited for non-performance of Talb-i-Muwathibat---Supreme Court did not find any reason to interfere with the judgment passed by High Court---Leave to appeal was refused.

Said Kamal Shah's case PLD 1986 SC 360; Babar Shehzad's case 1999 SCMR 2518; Ghulam Rasool's case 1992 SCMR 1328; Bahadur Khan's case 1992 SCMR 2117 and Nazir Begum's case 1999 SCMR 210 ref.

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

----S. 21---Constitution of Pakistan (1973), Art.185 (3) --Pre-emption suit---Consent decree---Scope---Non-impleading of pre-emptor in subsequent suit of pre-emption filed by some third person---Effect---Subsequent to the suit filed by present pre-emptor, some third person filed another suit for recovery of possession under pre-emption---Such another suit was decreed in favour of third person with the consent of defendants---Later on High Court in exercise of revisional jurisdiction, decreed the suit filed by present pre-emptor---Plea raised by vendees was that as a decree with regard to the suit-land had already been passed, therefore, no decree could be passed in favour of present pre-emptor---Validity---Present pre-emptor was not a party to such suit and the decree was obtained on conceding written statement of defendant---Being a consent decree, it was no more than a mere agreement between the parties regardless of the judicial imprimatur that it contained---Such agreement without the present pre-emptor being a party to it, was not binding upon him---High Court was justified in holding that such consent decree was collusive between the parties thereto to damage the already pending suit for pre-emption---Such suit could not have been filed in the absence of present vendees and if such vendees were party thereto, they could have informed about the pendency of pre-emption suit of the present pre-emptor---Supreme Court declined to interfere with the judgment and decree passed by High Court---Leave to appeal was refused.

Maqbool Elahi Malik, Senior Advocate Supreme Court and Ch. Mumtaz Yousaf, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Appellants.

Gulzarin Kiani, Advocate Supreme Court for Respondent.

Date of hearing: 8th March, 2006.

P L D 2006 Supreme Court 452

Present: Rana Bhagwandas, Actg. C.J., Khalil-ur-Rehman Ramday and Nasir-ul-Mulk, JJ

FEDERATION OF PAKISTAN through Secretary, Revenue Division, Central Board of Revenue, Islamabad and another---Appellants

Versus

Messrs BALOCHSITAN MINERALS AND OIL (PVT.) LTD., QUETTA---Respondent

Civil Appeal No.728 of 2002, decided on 14th February, 2006.

(On appeal from the judgment of the Balochistan High Court, Quetta, dated 28-2-2002 passed C.P. No.634 of 2001).

(a) Central Excise Act (I of 1944)---

----Ss. 2(f) & 3---S.R.O. No. 456(I)/96, dated 13-6-1996---S.R.O. No.685(I)/2001, dated 27-9-2001---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to consider; whether lubricating oil supplied in excess of 10 litres would not be covered by Item No. 2710.0081 of S.R.O. No. 456(I)/96, dated 13-6-1996; and whether levy of central excise duty on bulk by S.R.O. No.685(I)/2001, dated 27-9-2001, was not meant to clarify that the duty thereon was also payable under S.R.O. No.456(I)/96, dated 13-6-1996.

(b) Central Excise Act (I of 1944)---

---Ss. 2(f) & 3---S.R.O. No. 456(1)/96, dated 13-6-1996---S.R.O. No.685 (1)/2001, dated 27-9-2001---Central excise duty, levy of---Mobil oil and lubricating oil packed in bulk---Company was manufacturing and supplying Mobil oil and lubricating oil in bulk---High Court in exercise of Constitutional jurisdiction declared such supply exempted from central excise duty---Contention of authorities was that lubricating oil in excess of 10 litres supplied by respondent would fall under Item No.2710.0082 of S.R.O. No.456(I)/96, dated, 13-6-1996 and that S.R.O. No.685(I)/2001, dated 27-9-2001, was intended to be a clarification necessitated by an earlier decision of another High Court similar to the one under appeal---Validity---By not challenging the judgments of other High Courts and instead adding another such heading to bring into the regime lubricating oil in bulk, the Authorities had accepted the interpretation placed by the other High Court on the relevant provisions of S.R.O. No.456 (1)/96, dated 13-6-1996---Contention of the Authorities based on addition of Sub-heading No.2710.0083 rather supported the case of the company-Such addition became necessary after the Central Board of Revenue had realized that existing provisions of S.R.O. No.456(1)/96, dated 13-6-1996 did not cover the supply of oil in bulks---If object of new provision was simply to clarify situation already in existence, the same would have been incorporated as explanation to the existing Item No. 2710.0082---Addition of separate Item No.2710.0083 by S.R.O. No.685 (1)/2001, dated 27-9-2001, in S.R.O. 456 (I)/96, dated 13-6-1996 amounted to acknowledgement by legislature that supply of oil in bulk was not covered by the existing items---Supreme Court declined to interfere with the Judgment passed by High Court---Appeal was dismissed.

Adam Lubricants Limited v. Federation of Pakistan and others Suit No.840 of 2001 and Punjab Petroleum Industries (Pvt.) Limited v. Collector Central Excise Writ Petition No.14312 of 2001 ref.

Raja M. Irshad, Deputy Attorney General with Sh. Mumtaz Ahmed, Member Legal, C.B.R. for Appellants.

Fakharuddin G. Ebrahim, Senior Advocate Supreme Court with Shehanshah Hussain, Advocate Supreme Court with Raja Abdul Ghafoor, Advocate-on-Record for Respondent.

Date of hearing: 14th February, 2006.

P L D 2006 Supreme Court 457

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

Mst. FARAH NAZ---Appellant

Versus

JUDGE FAMILY COURT, SAHIWAL and others-Respondents

Civil Appeals Nos. 1336 and 1337 of 2005, decided on 6th March, 2006.

(On appeal from judgment of Lahore High Court, Mutlan Bench dated 15-12-2005 passed in Writ Petitions Nos. 3179 and 4259 of 2004).

(a) Supreme Court Rules, 1980---

----O.XIII, R.2---West Pakistan Family Courts Act (XXXV of 1964), S.5---Filing of petition for leave to appeal---Limitation---Condonation of delay---Wrong advice of counsel---Wife, in the matter of recovery of dowry articles and past maintenance, being dissatisfied from the judgment of High Court, filed petition for leave to appeal which was barred by 27 days---Plea raised by the wife was that delay was due to wrong advice of counsel who consulted a diary published by Punjab Bar Council---Wife produced affidavit of the counsel and also copy of the diary relied upon---Validity---Party should not be made to suffer or prejudiced on account of wrong advice of counsel provided it was tendered bona fide---Supreme Court, in larger interest of justice extended period for filing of petition for leave to appeal under the provisions of O.XIII. R. 2 of Supreme Court Rules, 1980.

Rajendra Bahadur v. Rajeshwar Bali AIR 1937 PC 276; Nazar Muhammad v. Shahzada Begum PLD 1974 SC 22 and Abdul Raid v. Khurshid Ali 1992 SCMR 592 rel.

(b) Affidavit---

----Admissibility---Procedure---Deponent not subjected to cross­ examination---Effect---Trial Court illegally accepted affidavit on its face value merely because deponent had been living abroad and was not readily available in Pakistan---Such approach on the part of Trial Court and endorsed by Appellate Court apart from being without legal backing was repugnant to settled principles of law---Affidavit, without an opportunity of cross-examination to opposite party did not constitute legal and valid evidence and must be excluded from consideration.

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

----S. 5---Limitation Act (IX of 1908), S.13 & Art.120---Recovery of past maintenance---Limitation---Husband was living abroad and wife filed suit for recovery of past maintenance---Wife was non-suited on the ground that suit was filed beyond the period of three years when the cause of action had accrued to her---Validity---Claim for past maintenance would be governed by Art.120 of the Limitation Act, 1908, which prescribed a period of six years in a suit for which no period was provided elsewhere in the Act, from the date when the right to sue had accrued---In computing period of limitation prescribed for any suit, by reason of S.13 of Limitation Act, 1908, time during which defendant had been absent from Pakistan and from the territories beyond Pakistan under administration of the Central Government would be excluded---Even if period of limitation for such suit would be three years, in view of absence of husband from Pakistan, period of his absence from Pakistan would be excluded for reckoning the period of limitation---Suit filed by wife was not barred by limitation.

Muhammad Nawaz v. Khurshid Begum PLD 1972 SC 302; Mst. Bushra Qasim v. Dr. Abdul Rasheed and others 1993 CLC 2063; Mst. Zaibun v. Mehrban PLD 2004 SC (AJ&K) 25 and Mst. Anar Mamana and another v. Misal Gul and 2 others PLD 2005 Peshawar 194 rel.

(d) Islamic Law---

--Maintenance-Responsibility-In absence of any proof of dissolution of marital tie, it is legal, moral as well as social duty of husband under Islamic principles to provide adequate maintenance for respectable living of wife---In law, husband cannot neglect to maintain his wife during subsistence of marriage tie.

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

----S. 5---Muslim Family Laws Ordinance (VIII of 1961), Ss.7 & 9---Recovery of past maintenance---Plea of oral divorce---Validity---Husband was required to send notice of divorce to Arbitration Council under Muslim Family Laws Ordinance, 1961 and also to send copy of such notice to wife by registered post---No such proceedings having been ever conducted, oral allegation of Talaq would neither be effective nor valid and binding on wife, who was legally entitled to past maintenance.

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

----S. 5---Recovery of past maintenance---Affidavit attested by Pakistan. Embassy abroad---Non-appearance of deponent---Wife filed suit for recovery of past maintenance at the rate of Rs.10,000 per month, against her husband who was living abroad---Family Court relying on affidavit of husband, duly attested by Embassy and contents of written statement, dismissed the suit---Judgment and decree passed by Family Court was set aside by Appellate Court and the suit was partly allowed but, High Court in exercise of constitutional jurisdiction restored the judgment and decree passed by Family Court---Validity---Amount of maintenance claimed by wife was neither excessive nor unreasonable in view of inflation in the cost of living and the amount of probable income earned by husband---Claim of wife was justified by all canons of justice and reason---Judgments of two Courts below as well as of High Court suffered from serious error of law by misreading of record and exclusion of material piece of evidence from consideration which had resulted in gross miscarriage of justice---In fact written statement could not be considered as substitute of evidence on oath---Affidavit of husband attested by Pakistan Embassy abroad would not constitute legal evidence as he did not appear for his cross-examination before the Family Court---Husband did not endeavour to appear even before Appellate Court at any point of time---I. n-rebutted version of wife would, therefore, be considered as valid and legal to all intents and purposes, particularly when it remained uncontroverted---Interference of High Court in the matter in its constitutional jurisdiction was beyond the scope of Art.199 of the Constitution and judgment of High Court must not be allowed to remain in field---Supreme Court set aside the judgments of High Court and Family Court and suit was decreed in the sum of Rs.10,000 per month as claimed by the wife---Appeal was allowed.

Saeed Ahmad v. Mehmood Ahmad PLD 1968 Lah. 520 ref.

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

----S. 5---Constitution of Pakistan (1973), Art.199---Recovery of dowry articles---List containing value of dowry articles---Affidavit attested by Pakistan Embassy abroad---Non-appearance of deponent---Wife filed suit for recovery of dowry articles valuing Rs.955,038 against her husband who was living abroad---Family Court relying on affidavit of husband duly attested by Pakistan Embassy and contents of written statement, partly decreed the suit to the extent of Rs.400,000----Judgment and decree passed by Family Court was set aside by Appellate Court and the suit was decreed in favour of wife in the sum of Rs.955,038 but High Court in exercise of constitutional jurisdiction restored the judgment and decree passed by Family Court---Validity---Evidence of wife was neither contradicted nor rebutted and list of articles as well as value of articles shown in it must be accepted on its face value---Reasons recorded by Family Court did not appeal to Supreme Court and assessment of value of articles in the sum of Rs.400,000 appeared to be artificial, whimsical and arbitrary---On the other hand calculation made by Lower Appellate Court accepting claim of wife in the sum of Rs.955,038 was evidently justified and warranted by law---High Court in constitutional jurisdiction could not substitute its own findings for the findings recorded by Court of appeal after appraisal of evidence---Judgments passed by High Court as well as by Family Court were set aside and that of the Appellate Court was restored---Appeal was allowed.

S.M. Masud, Advocate Supreme Court for Appellant.

Nemo for Respondents Nos. 1 and 2.

Muhammad Asghar Bhutta, Advocate Supreme Court and Ch. Arshad Ali, Advocate-on-Record for Respondent No.3.

Date of hearing: 6th March, 2006.

P L D 2006 Supreme Court 465

[Shariat Appellate Jurisdiction]

Present: Justice Abdul Hameed Dogar, Chairman, Justices Muhammad Nawaz Abbasi, Mian Shakirullah Jan, Dr. Allama Khalid Mehmood and Allama Rashid Ahmad Jullundhri, Members

MUHAMMAD ASLAM---Petitioner

Versus

THE STATE and another---Respondents

Criminal Petition No.2(s) of 2005, decided on 22nd December, 2005.

(On appeal from the judgment of Federal Shariat Court, dated 24-11-2004 passed in Criminal Appeal No.199-L of 1996).

(a) Acquittal---

----Verdict of acquittal carries double presumption of innocence and unless there is strong reason, the reversal of finding of acquittal into that of conviction is not justified.

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

----Art. 203-F---Criminal Procedure Code (V of 1898), S. 417---Appeal against acquittal---Finding of Trial Court---Another view of evidence---Scope---Weight is to be given to the finding of Trial Court if conclusion drawn is based on fair reading of evidence and is not perverse or wholly unreasonable---Interference in acquittal for mere reason that another view of evidence is possible is not proper---If appreciation of evidence has caused failure of justice, the order of acquittal must be set aside.

(c) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S. 10(3)---Constitution of Pakistan (1973) Arts. 187, 203-DD & 203-F(2B)---Reappraisal of evidence---Sentence---Enhancement---Victim, a minor girl of 12/13 years was forcibly taken to fruit garden adjacent to her house and was subjected to Zina bil Jabr by both the accused who with a view to fulfil their sexual lust, ruptured virginity of an innocent girl---Trial Court acquitted both the accused but Federal Shariat Court set aside the order of acquittal and convicted and sentenced the accused for seven years imprisonment---Validity---Examination of statement of victim and eye witnesses in the light of circumstantial evidence of unimpeachable character in shape of Medico-legal Report and report of Chemical Examiner, would suggest no other conclusion of evidence except the one drawn by Federal Shariat Court in appeal---Finding of acquittal arrived at by Trial Court was based on minor contradictions and discrepancies, therefore, conclusion drawn was result of misinterpretation of evidence against principles of appraisal of evidence in criminal cases---Finding of acquittal being wholly unreasonable and perverse, had rightly been set aside by Federal Shariat Court in appeal by reappraising the evidence---Judgment passed by Federal Shariat Court did not call for any interference by Supreme Court---Federal Shariat Court having found the accused guilty of committing offence under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, awarded them sentence of 7 years each without giving any reason as to how in the given circumstances, the sentence was justified to meet the ends of justice---Supreme Court in exercise of powers under Art.203-DD read with Art. 187 of the Constitution, in the interest of complete justice, enhanced the sentence of imprisonment of accused from seven years to fourteen years---Leave to appeal was refused.

(d) Sentence---

----Quantum---Determining factors---Quantum of sentence is determined by Trial Court or Appellate Court as the case may be in consideration of (a) the nature of offence, (b) the circumstances in which the offence was committed, (c) the gravity and degree of deliberation shown by offender and such other factors appearing in the evidence.

(e) Sentence---

----Quantum---Lenient view---Import, object and scope---Purpose of sentence is prevention of crime and to discourage others to turn to crime---Leniency in the matter of sentence in serious offences is against the object and wisdom of law---Whereas rationale behind the deterrent punishment is to eliminate the crime or at least to reduce and discourage the crime in the interest of peaceful atmosphere in the society---Ultimate purpose of deterrence or lenient view in the matter of sentence directly or indirectly is the reformation of an individual as well as the society---Concept of lenient view in punishment is to bring down an offender to reform himself and restrain from repeating the crime---Whereas goal of deterrence in the sentence is reduction in crime in society due to fear of law.

Muhammad Aslam Uns, Advocate Supreme Court for Petitioner.

Ch. Munir Sadiq, Advocate Supreme Court for Respondent.

Date of hearing: 22nd December, 2005.

P L D 2006 Supreme Court 472

Present: M. Javed Buttar and Raja Fayyaz Ahmed, JJ

IMTIAZ AHMED and others---Petitioners

Versus

PUNJAB PUBLIC SERVICE COMMISSION through Secretary, Lahore and others---Respondents

Civil Petition No.2270-L of 2005, decided on 30th March, 2006.

(On appeal from the judgment dated 10-11-2005 of the Lahore High Court, Lahore passed in I.C.A. No.54 of 2005).

(a) Punjab Judicial Service Rules, 1994---

----R.7(1)(22)---Punjab Government Notification SOR-III(S&GAD)2-17/ 83(P-1) dated 30-4-2004---Constitution of Pakistan (1973), Art.185(3)---Petitioners, in the present case, were graduates and had qualified their L.L.B. examination during the period from 1999-2004; during the period, there was no condition provided for two years experience as practising Advocate for appearing in the Punjab Public Service Commission's Competitive Examination for the Posts of "Civil Judges ­cum-Judicial Magistrates"---Petitioners were eligible to compete for the posts of "Civil Judges-cum-Judicial Magistrates", at that time and had appeared in the competitive examination but failed---Condition of two years' active practice after having been enrolled as an Advocate was introduced by amending Rule-7(I)(ii) of the Punjab Judicial Service Rules, 1994 when the petitioners had failed in their first attempt---Contention of the petitioners was that condition of two years' practice as an Advocate was introduced which consequently rendered the petitioners as not eligible to appear in the competitive examination for the posts of "Civil Judges-cum-Judicial Magistrates", inter alia on the ground that amendment introduced vide impugned notification could not be applied with retrospective effect---Validity---Held, notification in the exercise of executive powers or in the shape of subordinate legislation was indeed not retrospective in operation, but in the present case, retrospective application of the impugned notification was not involved for the simple reason that at the time when the applications were invited through public notice from the candidates by the Public Service Commission the petitioners were not eligible for want of requisite experience of two years active practice in law and their case was to be seen in view of the conditions of eligibility to qualify them to appear in the competitive examination in the light of the existing rules and not when they had appeared for the first time in the competitive examination as no such condition was provided under the then existing Rules---Conditions, qualifications and criteria prevailing at the time of appointment were to be taken into consideration and not what were in the past nor a candidate had a vested right to claim to be governed by any particular set of rules---Where rules relating to the subject had been modified, changed or altered, then the latter rules would prevail and would supersede the former---No vested rights had accrued to the petitioners under the old existing rules or by operation of law in view of the amended rules---Law makers were fully competent to make rules, alter qualification or criteria for a particular post and no one could make a grievance about the conditions and qualifications provided by the competent authority or rule making authority for appointment and selection against the post, which were to be considered as it existed at the time of appointment or inviting applications from the candidates for such post, as the case may be---Candidates having failed once could not claim to be governed by the same set of Rules as no candidate had a vested right to be governed by any particular set of Rules.

Pakistan through the Secretary Ministry of Finance v. Muhammad Hamayatullah Farukh PLD 1969 SC 407; Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd. Chitagong PLD 1970 SC 439; Government of the Punjab through Secretary, Home Department v. Ziaullah Khan and 2 others 1992 SCMR 602 and Gatron (Industries) Limited v. Government of Pakistan and others 1999 SCMR 1072 distinguished.

Mumtaz Ali Bohio's case 2002 SCMR 772 applied.

2002 SCMR 772; PLD 1964 SC 494; PLD 1965 SC 106; PLD 1969 SC 407; PLD 1970 SC 439; 1977 SCMR 509; 1988 SCMR 810; 1992 SCMR 602; 1999 SCMR 1072; Abdul Aziz Shah and another v. Abdul Ghafoor and another 1985 SCMR 221; Government of N.-W.F.P. v. Dr. Sheikh Muzaffar Iqbal and others 1990 SCMR 1321; Federation of Pakistan through Secretary, Government of Pakistan, Establishment Division, Islamabad v. Mirza Muhammad Irfan Baig and 4 others 1992 SCMR 2430; Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351; Dr. Mrs. Shahnaz Akhtar, Associate Professor v. Government of N.-W.F.P. through Chief Secretary, Peshawar and others 1998 PLD (C.S.) 1112; Mumtaz Ali Bohio and 24 others v. The Federal Public Service Commission through Chairman at Islamabad and another 2002 SCMR 772; Dr. Muhammad Hussain v. Principal Ayub Medical College and another PLD 20.03 SC 143 ref.

(b) Notification---

----Notification issued in the exercise of executive powers or in the shape of subordinate legislation is not retrospective in operation.

Sh. Fazal Ahmed v. Raja Ziaullah Khan and another PLD 1964 SC 494; Islamic Republic of Pakistan through Secretary, Ministry of Commerce and Local Government (Commerce Division), Islamabad v. Mazhar-ul-Haq and two others 1977 SCMR 509 and Trustees of Port of Karachi and another v. Zafar Zaid Ahmed 1988 SCMR 810 ref.

A. K. Dogar, Advocate Supreme Court for Petitioner.

Ch.Aamir Rehman, Addl. A.-G. Punjab for the State.

Nemo for Respondents.

Date of hearing: 23rd February, 2006.

P L D 2006 Supreme Court 483

Present: Muhammad Nawaz Abbasi and Mian Shakirullah Jan, JJ

MUHAMMAD SALEEM and another---Petitioners

Versus

THE STATE---Respondents

Criminal Petition Nos. 299 and 377-L of 2005, decided on 26th October, 2005.

(On appeal from the judgment of Lahore High Court, 'Lahore dated 15-6-2005 passed in Criminal Misc. No.1/2005 in Criminal Appeal No.692 of 2005) (in both cases).

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

----Ss. 426 & 497---Suspension of sentence---Bail, grant of---Powers of Courts---Scope---Appellate Court, in exercise of its powers under S.426, Cr.P.C., may in a suitable case, suspend sentence of a convict and grant him bail pending disposal of his appeal and notwithstanding absence of any material difference in principle governing for grant of bail under Ss.497 and 426, Cr.P.C., consideration for suspension of sentence and grant of bail pending trial may not be the same, therefore, distinction must be adhered to for exercise of power under both the provisions in proper manner---Power of Appellate Court under S.426(1), Cr.P.C. is not limited and Court may, pending disposal of appeal, suspend sentence of a convict in an appropriate case in its discretion for good and sufficient reasons but such power of suspension of sentence and grant of bail is not wider than that under S.497, Cr.P.C.---Unless it is shown that conviction is based on no evidence or being based on inadmissible evidence, is not ultimately sustainable, grant of bail under S:426, Cr.P.C. without consideration or ascertaining question of guilt or innocence on merits through appraisal of evidence is not justified as bail either under S.497 or 426(1), Cr.P.C. cannot be allowed only on the basis of tentative assessment of evidence.

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

----Art. 185---Bail, grant or refusal of---Criminal Procedure Code (V of 1898), S.497---Interference of Supreme Court---Scope---Supreme Court normally is reluctant to interfere in discretion exercised by High Court in matter of bail but if such discretion was exercised in departure from the settled principles of criminal administration of justice, the reluctance to interfere would result in miscarriage of justice.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S.426(1)---Suspension of sentence---Deep appraisal of evidence---Accused was convicted and sentenced to life imprisonment by Trial Court under S.302(b), P.P.C. for causing one of the fatal blows to deceased---High Court, after appraisal of evidence, suspended the sentence of accused---Plea raised by complainant was that High Court had made deep appraisal of evidence while suspending the sentence, which had prejudiced the prosecution case---Validity---Unless it could be shown from evidence that the finding of Trial Court was in utter disregard to the factual position on record, mere possibility of another view of evidence would not be a valid and sufficient ground to suspend the sentence under S.426(1), Cr.P.C. and grant of bail to a, life convict pending disposal of his appeal against conviction on capital charge---Difference existed between tentative assessment and deep appraisal of evidence and rule was that Appellate Court could, on the basis of tentative assessment for reasons to be recorded, suspend the sentence and grant bail to a convict but exercise of power to grant bail through suspension of sentence on the basis of deep appraisal of evidence was against the principle governing exercise of power under S.426(1), Cr.P.C.---Appellate Court should not go deep into the evidence for the purpose of suspension of sentence by giving reasons which might amount to expressing its views on the merits of the case prejudicing the case of one or the other party in appeal--Accused was granted bail under S.426(1), Cr.P.C. in improper exercise of discretion---Supreme Court converted petition for leave to appeal into appeal and set aside the order passed by High Court, whereby sentence of the accused was suspended---Appeal was allowed.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), 5.426---Constitution of Pakistan (1973), Art.185(3)---Suspension of sentence---Tentative assessment of evidence---Minor contradictions---Accused was convicted and sentenced to life imprisonment by Trial Court under S.302(b), P.P.C. for causing one of the fatal blows to deceased---High Court dismissed application of accused under S.426, Cr.P.C. and refused to suspend his sentence---Plea raised by the accused was that there was material contradiction of medical evidence with ocular account which would lead to a definite result of his ultimate acquittal--Accused further raised the plea that injuries sustained by accused strongly suggested that defence plea was more plausible and nearer to truth, therefore, there was every possibility of ,,his success in appeal---Validity---Accused on the basis of minor contradictions and discrepancies in prosecution evidence, made an attempt to make out a case for suspension of sentence---Grounds taken in support of suspension of sentence and grant of bail could not be appreciated without detailed scrutiny of evidence and such exercise could not be undertaken by 'Supreme Court at such stage---Supreme Court declined to interfere with the order passed by High Court under S.426, Cr.P.C.---Leave to appeal was refused.

Muhammad Hussain Chachar, Advocate Supreme Court for Petitioner (in Crl.P.No.299 of 2005).

Rana M. Arshad, Advocate Supreme Court and A.H. Masood, Advocate-on-Record for the Complainant (in Cr1. P.No.299 of 2005).

Rana M. Arshad, Advocate Supreme Court and A.H. Masood, Advocate-on-Record for Petitioner (in Crl.P.377-L of 2005).

Muhammad Hussain Chachar, Advocate Supreme Court for the Complainant (in Cr. P. No.377-L of 2005).

Dil Muhammad Tarar, Advocate Supreme Court for the State (in both cases).

Date of hearing: 26th October, 2005.

P L D 2006 Supreme Court 489

Present: M. Javed Buttar and Raja Fayyaz Ahmed, JJ

MATLOOB HUSSAIN---Petitioner

Versus

Mst. SHAHIDA and 2 others---Respondents

Civil Petition No.2368-L of 2004, decided on 15th February, 2006.

(On appeal from the judgment dated 17-6-2004 of the Lahore High Court, Multan Bench, Multan, passed in W.P. No.1444 of 2004).

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

----Ss. 23, 17, 5 & Sched.---Muslim Family Laws Ordinance (VIII of 1961), Ss.5 & 3---West Pakistan Rules under Muslim Family Laws Ordinance, 1961, Rr.7, 8, 9, 10 & 11---Qanun-e-Shahadat (10 of 1984), Art. 79---Civil Procedure Code (V of 1908), Ss.10 & 11---Oaths Act (X of 1873), Ss.8, 9, 10 & 11---Registration of marriage---Procedure elaborated---Jactitation of marriage---Family Court had exclusive jurisdiction to adjudicate upon the case of jactitation of marriage brought before it even though marriage was registered under the Muslim Family Laws Ordinance, 1961, which Ordinance essentially referred to and dealt with valid marriages solemnized under the Islamic Sharia and not otherwise---Principles.

Malla v. Mst. Jawai and others 1981 CLC 1097; Younus v. Mst. Naseeran and Abdul Ghafoor 1992 CLC 42 and Mst. Nighat Ijaz v. Muhammad Jameel PLD 1994 Kar. 46 ref.

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

----Ss. 33, 5 & Sched.--Muslim Family Laws Ordinance (VIII of 1961), Ss.5 & 3---Constitution of Pakistan (1973), Arts.199 & 185(3)---Jactitation of marriage---Valid and lawful marriage---Burden of proof---Principles---Lady, in her pleadings categorically contended that she was abducted by the man with the help of his companions and thereafter, without her free-will and accord entered into a marriage contract with her and eventually on the intervention of the respectables of the area she was restored to her parents and during this period the man started claiming her as his legally wedded wife---Claim of the lady, being in negative form and nature, obviously she could not have been burdened to substantiate the same by producing further evidence that she did not, in the exercise of her own free will and accord, entered into a contract of marriage---Record also showed that the alleged Nikah was not performed even in the district where the lady was ordinarily residing rather, hundreds of miles away from her place of ordinary abode---Stated Nikah was registered and performed in a mosque, where no relative, friend or any other acquaintance of the bride was present, therefore, in such a situation, the evidence of lady which withstood the test of cross-examination was sufficient to convince that she did not enter into contract of marriage out of her own free-will in exercise of her right of option---Lady, therefore, succeeded in discharging the onus of the issue and thereupon the burden shifted to the man to rebut the same through evidence that Nikah between the parties was validly and lawfully performed by the lady in exercise of her free-will being the persona majora, who consented for the same and thereby entered into the contract of marriage by performance of Nikah---Man, in peculiar facts and circumstances of the case, was obliged to have proved the factum of performance of a valid Nikah and such onus on him could not have been successfully discharged unless the witnesses of Nikah and other witnesses in whose presence lady allegedly appointed the cited witness in the Nikahnama to act her Wakilfor Nikah, was produced, which in the present case was completely wanting---Material evidence in the case having been misread, misconstrued and misapplied by the lower forums i.e. Family Court and the Appellate Court, by upholding the marriage as valid one, interference of High Court in exercise of its constitutional jurisdiction, was very much called for to rectify the manifest error committed by them in the exercise of their jurisdiction.

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

----Art. 35---Protection of family---No valid marriage (not recognized under the Muslim Law), even if registered, having taken place, provisions of Art.35, Constitution would not be applicable.

Hamid Khan, Senior Advocate Supreme Court and Mehmoodul Islam, Advocate Supreme Court for Petitioner.

Ch. Muhammad Ashfaque, Advocate Supreme Court for Respondent No.1.

Date of hearing: 15th February, 2006.

P L D 2006 Supreme Court 500

[Shariat Appellate Jurisdiction]

Present: Abdul Hameed Dogar, Chairman, Mian Shakirullah Jan, Raja Fayyaz Ahmed, Dr.Allmna Khalid Mahmood and Dr. Rashid Ahmed Jullandhari, Members

Mst. KANIZ BEGUM---Appellant

Versus

MUHAMMAD ASHRAF and 3 others---Respondents

Criminal Appeal No.10(S) of 2001, decided on 14th December, 2005.

On appeal from the judgment dated 15-6-1999 of the Federal Shariat Court at Lahore passed in Crl. A. No.156 of 1998 along with M.R.No.8-L of 1998).

Penal Code (XLV of 1860)---

----Ss. 302/148/149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14---Constitution of Pakistan (1973), Art.203-F---Appeal to Appellate Shariat Bench of the Supreme Court---Reappraisal of evidence---Prosecution case comprised ocular account given by the complainant/widow of the deceased, medical evidence and the recoveries i.e. gun allegedly used during the incident by accused and a .12 bore shotgun alleged to have been brought at the place of incident by daughter of the deceased from her house and allegedly snatched by accused, which during the course of investigation of the case were statedly recovered at the instance of accused from his house and other pieces of circumstantial evidence, such as blood stained earth, blood stained clothes of the deceased taken into possession after autopsy of the dead body of the deceased and motive of crime disclosed by the complainant was that about four days prior to the incident, the sister's son of her deceased husband had a row with the son of one of the accused persons over which another accused person and the deceased had exchanged abuses---Ocular account, recoveries and the other circumstantial evidence had been correctly dealt with, scrutinized and reappraised by the Federal Shariat Court in its true perspective and no material part of the prosecution evidence appeared to have been misread, misappraised or misconstrued by the Federal Shariat Court---Observations made by the Federal Shariat Court, as regards the delay in lodging the report and the incident having taken place much earlier to the given time, even if be treated as not exactly correct, could not have resulted into varying the impugned judgment for want of any substantial bearing on the fate of the case---Federal Shariat Court had properly dealt with the issue of motive and on having taken into account the fact relating to the other adult members of the accused party, had rightly come to the conclusion that all the male adult members of the family of the accused party were involved in the case by attributing specific roles to each of the accused persons except the minors and those living abroad which even during the course of submissions made on behalf of complainant had not been disputed---Medical evidence had been dealt with by the Federal Shariat Court in juxtaposition with the ocular account of witnesses and the Court had rightly come to the conclusion that the ocular account was in conflict with the medical evidence, to which no exception could be taken and there was no reason available on record to disbelieve the medical evidence, as against the evidence of prosecution witnesses i.e. the ocular witness not otherwise capable of implicit reliance in absence of independent corroboration lacking in the case---Contentions raised by the appellant (complainant) being devoid of any substance in the peculiar circumstances of the case, entire evidence having been correctly appraised, scanned and dilated upon in depth by the Federal Shariat Court, was not open to any interference by the Supreme Court---Appeal, in circumstances, was dismissed.

PLD 1967 SC 167; 1981 SCMR 182; PLD 1981 SC 265; 1985 PCr.LJ 349; PLD 1991 SC 575; PLD 1992 Lah. 314; 1994 SCMR 1; .1996 SCMR 3; PLD 1997 SC 408; 2002 SCMR 1578; 2003 SCMR 1391; 2005 SCMR 1568; PLD 1959 SC109; PLD 1985 SC 11; 1988 SCMR 940; 1991 SCMR 2220; 1992 SCMR 96; PLD 1993 SC 251; 1993 SCMR 585; 1993 SCMR 828; 1995 SCMR 535; 1995 SCMR 599; 1995 SCMR 1627; 1998 SCMR 624; 1999 SCMR 223; 2001 SCMR 308; PLD 1964 SC 26; PLD 1966 W.P. Pesh. 255; PLD 1969 SC 293; PLD 1976 SC 452; PLD 1980 SC 225; 1991 SCMR 1622; PLD 1994 SC 178; 1994 SCMR 1614; PLD 1995 SC 46; PLD 1996 SC 138; PLD 1998 SC 1445; 1999 SCMR 2722 and 2005 SCMR 1758 ref.

Mian Aftab Farrukh, Senior Advocate Supreme Court and Tanvir Ahmed Advocate-on-Record (absent) for Appellant.

Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court for Respondents Nos. 1 to 3. .

M. Zaman Bhatti, Advocate Supreme Court for the State. Dates of hearing: 9th, 13th and 14 December, 2005.

P L D 2006 Supreme Court 512

Present: Javed Iqbal, Muhammad Nawaz Abbasi and Syed Jamshed Ali, JJ

MUHAMMAD YOUSAF and others---Petitioners

Versus

Mst. NAJMA BIBI and others---Respondents

Civil Petition Nos.83, 84 and 1499 of 2005, decided on 29th March, 2006.

(On appeal from the judgment dated 22-12-2004 of Lahore High Court, Lahore passed in C.M. No.247-C/2004 in C.R.No.19/1997 and C.M.246-C/2004 in C.R.N.20/1997 and Order dated 9-2-2005 passsed in C.M. No.l-C/2004 in C.R. 1274/1998).

Limitation Act (IX of 1908)---

----Art. 181---Civil Procedure Code (V of 1908), Ss.48 & 151---Constitution of Pakistan (1973), Art.185(3)---Application for restoration of civil revision dismissed in default-Limitation-:-Leave to appeal was granted by the Supreme Court, inter alia, on the points as to whether the provisions as contained in Article 181 of the Limitation Act, 1908 could be made applicable to case of an application moved for restoration of a civil revision petition which was dismissed in default as no specific period of limitation had been provided in the Schedule or in section 48 of C.P.C.; whether no remedy whatsoever was available against dismissal of a civil revision petition for non-prosecution and in such an eventuality whether Court could invoke its inherent powers as conferred upon it under section 151, C.P.C.; whether omission of the case from the cause list circulated by the registry of the High Court did constitute sufficient cause for restoration of the civil revision petition; and whether the divergence of opinion qua application of Article 181 of the Limitation Act, 1908 in cases Allah Bachai v. Fida Hussain 2004 SCMR 615, Muhammad Sadiq v. Bashiran PLD 2000 SC 820 had not created an anomalous situation justifying an authoritative judgment.

Allah Bachai v. Fida Hussain 2004 SCMR 615 and Muhamm J Sadiq v. Bashiran PLD 2000 SC 820 ref.

M.A. Zaidi, Advocate on Record for Petitioners (in C.Ps. No.83-84/2005).

Malik Rab Nawaz Noon, Senior Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record (in C.P. No.1499 of 2005).

Nemo for Respondents (in C.Ps. No.83-84 of 2005).

Mahmood Khan, Advocate Supreme Court (in C.P.No.1499/2005) on Court Notice.

Date of hearing: 29th March, 2006.

P L D 2006 Supreme Court 514

Present: Iftikhar Muhammad Chaudhary, C.J., Mian Shakiurullah Jan and Syed Jamshed Ali, JJ

SUO MOTU CASE NO.3 OF 2006-Cutting down of Trees in Jahangir Park, Saddar, Karachi: In the matter of

Suo Motu Case No.3 of 2006, decided on 5th April, 2006.

Constitution of Pakistan (1973)---

----Art.184---Suo motu action by Supreme Court in the matter of cutting down of trees in a public park---Park in question was being utilized since 1893 as a public place and reportedly City District Government had earmarked the same for the purpose of construction of multistoreyed car parking plaza---Supreme Court, in circumstances, directed the City District Government that although the project had been abandoned for the reasons mentioned in the statement but City District Government was restrained to convert the park in future to any other use save in accordance with law---City District Government was also directed to restore the status of public park and develop the same accordingly.

Naeemur-Rehman, Advocate Supreme Court for Applicant.

Mrs. Naheeda Mehboob Elahi, Dy. A.-G. and Manzoor Ahmed, EDO (Law), City Government Karachi (On Court's Notice).

Date of hearing: 5th April, 2006.

P L D 2006 Supreme Court 516

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan and M. Javed Buttar, JJ

SHAUKAT KHAN and others---Petitioners

Versus

CHIEF ELECTION COMMISSIONER and others---Respondents

Civil Petitions No.146-149 of 2006, decided on 21st March, 2006.

(On appeal from the judgment/order dated 1-3-2006 passed by the Peshawar High Court, Abbottabad Bench in W.P. Nos. 9-12 of 2006).

Constitution of Pakistan (1973)---

----Arts. 185(3) & 199---Interim relief had been granted by the Bench of High Court despite the fact that vide an earlier order, a larger Bench of the High Court had declined to grant the same interim relief to the party---Validity---Held, there was no distinction between the prayer pertaining to the interim relief to all intents and purposes---Once the larger Bench of the High Court had declined to grant relief the only remedy available to the aggrieved party was either of review of the order subject to maintainability of petition or to approach the Supreme Court if they had a case falling within the mischief of Art.185(3) of the Constitution, or of separate request by filing a separate application for interim relief on fresh grounds---Principles.

1997 SCMR 1473 and 1994 SCMR 1764 ref.

Malik Muhammad Qayyum, Advocate Supreme Court with Arshad Ali Chaudhry, Advocate-on-Record for Petitioners.

Muhammad Younus Tanoli, A.-G. N.-W.F.P. along with Muhammad Saeed, Addl. A.-G. (On Court's Notice).

Barrister Masood Kausar, Advocate Supreme Court for Respondents (Res.4 in C.P. No. 146/2006 & Res.5 in C.Ps. 147/149/2006)

Date of hearing: 21st March, 2006.

P L D 2006 Supreme Court 519

Present: Javed Iqbal, Muhammad Nawaz Abbasi and Raja Fayyaz Ahmed, JJ

MUSHTAQ HUSSAIN alias MUSHTAQI and another---Petitioners

Versus

THE STATE---Respondent

Jail Petitions Nos. 9 and 10 of 2005, decided on 4th January, 2006.

(On appeal from the judgment of the Lahore High Court, Lahore dated 26-11-2004 passed in Criminal Appeals Nos.6-19 and 239 of 2004).

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

----Ss. 392 & 353---Anti-Terrorism Act (XXVII of 1997), S.7(i)---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Prosecution had substantiated the accusation by producing cogent and concrete evidence; conscious analysis of the depositions of the eye-witnesses would reveal that accused persons had played pivotal role in the commission of alleged offence; no glaring contradiction could be pointed out in their statements and in so far as the minor contradictions were concerned the same did creep in with the passage of time and could be ignored safely; in spite of exhaustive cross-examination nothing advantageous could be elicited rendering any help to the case of accused persons; statements of prosecution witnesses had rightly been considered and relied upon by the Trial Court who made it abundantly clear in their statements that alleged offences were committed by the accused persons; amount in question was looted by the accused who were duly armed with fire-arms and one of them was apprehended at the spot by the police officials who were by chance available at the place of occurrence and looted amount was also recovered which was a strong piece of corroboration and could not be discarded; all the prosecution witnesses were natural and impartial having no enmity or rancour against the accused persons---In view of such overwhelming evidence the question of false implication of accused persons did not arise who were apprehended at the spot duly armed and besides the looted amount was also recovered; identification parade was immaterial if the identification of the accused persons was proved by other convincing evidence; statements of prosecution witnesses were indicative of the fact that there was absolutely no doubt in their minds qua identification of accused who was apprehended at the spot; so far as injuries sustained by accused, who was apprehended at the spot were concerned a plausible justification had been given by the prosecution that the same were caused due to accident as the police vehicle hit the motorcycle which was being driven by the accused along with a co-accused and resultantly the accused had fallen on ground and sustained few injuries---In view of such a plausible justification no adverse inference could be drawn---Such aspect of the matter further lent corroboration to the prosecution case and if the defence version was kept in juxtaposition which being false, fabricated and an afterthought, had rightly been rejected by the Courts below and evidence which had come on record had rightly been appreciated by the Trial Court determination whereof had been upheld by the High Court which being well-reasoned and unexceptionable did not call for any interference by the Supreme Court for which no lawful justification or concrete reasoning was available---Petitions for leave to appeal being devoid of merit were dismissed by supreme Court and leave refused.

The State v. Farman Hussain Shah PLD 1995 SC 1 and Muhammad Afzal v. The State 1982 SCMR 129 ref.

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

----Ss. 392 & 353---Anti-Terrorism Act (XXVII of 1997), S.7(i)---Reappraisal of evidence---Identification parade---Necessity---Identification parade was immaterial if the identification of accused persons was proved by other convincing evidence. s

Zulfiqar Khalid Maluka, Advocate Supreme Court for Petitoners (in both cases), Sh. Mahmood Ahmed, advocate Supreme Court for the State.

Date of hearing: 4th January, 2006.

P L D 2006 Supreme Court 524

Present: Javed Iqbal, Muhammad Nawaz Abbasi and Mian Shakirullah Jan, JJ

MUHAMAMD NADEEM---Petitioner

Versus

THE STATE---Respondent

Jail Petition No.336 of 2004, decided on 2nd January, 2006.

(On appeal from the judgment of the High Court of Sindh, Karachi dated 7-10-2004 passed in Spl. A.T.Acq. Appeal No.82 of 2001).

Penal Code (XLV of 1860)---

----S. 377---Anti-Terrorism Act (XXVII of 1997), Ss.6(c) & 7(ii)---Constitution of Pakistan (1973), Art.l85(3)---Reappraisal of evidence---Prosecution had proved the accusation by adducing confidence inspiring evidence---Victim had mentioned in categoric manner that sodomy was committed by the accused and inspite of victim having been subjected to an exhaustive cross-examination and various searching questions, nothing beneficial to defence could be extracted---Statement of victim had been corroborated by medical report wherein it was opined in categoric terms that victim was subjected to sodomy---Complainant (father of the victim) had furnished a plausible justification qua the minor delay in lodging the F.I.R.---Defence version put in juxtaposition with statement of accused under S.342, Cr.P.C. was not convincing---Accused did not opt to get his statement recorded on oath and no evidence whatsoever was led in defence---Plea of innocence and denial simpliciter by accused could not be believed in circumstances and High Court had appreciated the entire evidence strictly in accordance with law and §ettled norms of justice and conclusion arrived at by the High Court was based on sound reasoning which being well based did not warrant interference by the Supreme Court---Petition for leave to appeal was dismissed.

Sughran Bibi v. Aziz Begum 1996 SCMR 135 and Zar Bahadar v. State 1978 SCMR 136 ref.

Sadaqat A. Mirza, Advocate Supreme Court for Petitioner. Nemo for the State.

Date of hearing: 2nd January, 2006.

P L D 2006 Supreme Court 528

Present: Abdul Hameed Dogar, Hamid Ali Mirza and Karamat Nazir Bhandari, JJ

PROVINCE OF SINDH through Secretary, Ministry of Excise and Taxation and others---Petitioners

Versus

Messrs AZAD WINE SHOP and others---Respondents

Civil Petitions Nos.26-K to 39-K, 42-K, 43-K and 53-K of 2006, decided on 14th April, 2006.

(On appeal from the judgment dated 9-12-2005 in C.Ps.No.1070 to 1072, 1284, 1739, 1740, 1771 to 1776, 1798, 2034 of 2002 and C.Ps. Nos. 213 and 746 of 2005, passed by High Court of Sindh, Karachi).

(a) Sindh Prohibition Rules, 1979---

----R. 10---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 21 & 31---Constitution of Pakistan (1973), Art. 199---Constitutional petition before High Court---Scope---Adequate alternative remedy---Question of validity of levy and recovery of vend fee, assessment fee and surcharge on the touchstone of the Prohibition (Enforcement of Hadd) Order, 1979 and Sindh Prohibition Rules, 1979 was a question of law---Rule 10, Sindh Prohibition Rules, 1979 authorized the Government or its authorized officers to call for and examine the record of proceedings, taken or passed by any authority ubordinate to it, so as to satisfy itself as to the legality or propriety of the same-Said revisional power of the government could not be said to be an alternative remedy, much less adequate---Where validity of the law or the rules or instructions having the force of law was involved, the availability of alternative remedy had never operated as a bar to the exercise of constitutional jurisdiction by the High Court.

Collector of Customs, Lahore and others v. Universal Gateway Trading Corporation and another 2005 SCMR 37; Pakistan Tobacco Company Ltd and others v. Government of N.-W.F.P. through Secretary Law and others PLD 2002 SC 460 and Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652 distinguished.

(b) Sindh Prohibition Rules, 1979---

----R. 18---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.23-A & 23-B---Levy of vend fee, assessment fee and surcharge on assessment---Validity---Prohibition (Enforcement of Hadd) Order, 1979 only authorizes the grant of licence on payment of fee and does not even mention the vend fee, assessment fee and surcharge on assessment and said terms are used in Sindh Prohibition Rules, 1979---Taxing provision is to be construed strictly against the State and in favour of citizen---Tax can only be levied by an Act of legislature---Rules are subordinate legislation and are made by the Executive authorities to give effect to the parent statute---Execution wing of the State had itself no authority to levy and recover the tax/fee.

(c) Sindh Prohibition Rules, 1979---

----R. 18---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.23-A & 23-B---Constitution of Pakistan (1973), Fourth Schedule, Federal Legislature List, Part-I, Item 49---Levy of vend fee, assessment fee and surcharge on assessment---Validity---"Vend" and "Surcharge"---Connotation---'Vend' means "to sell or offer for sale or deal in" and its noun is 'sale' and relevant notification levying the fee showed that said fee was to be recovered at various rates per dozen quart---Subject of _taxing sales apparently fell within the domain of Federal Legislature (Fourth Schedule, Federal Legislature List, Part I, item 49 of the Constitution)---Provincial Assembly could not have levied said fee, much less the Sindh Government, simply by framing Rules---Levy and recovery of surcharge seemed to be 'utterly without authority inasmuch as the parent statute viz., Prohibition (Enforcement of Hadd) Order, 1979 did not confer the authority to recover such a surcharge.

Chambers Dictionary ref.

Dr. Qazi Khalid Ali, Addl. A.-G. Sindh and Akhlaq Ahmed .Siddiqui, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 14th April 2006.

P L D 2006 Supreme Court 533

Present: Khalil-ur-Rehman Ramday, Tassaduq Hussain Jillani and Raja Fayyaz Ahmed, JJ

Mst. RAZIA REHMAN---Petitioner

Versus