PLD 2007 Judgments

P L D 2007 Federal Shariat Court 1

Present: Haziqul Khairi, C.J., Dr. Fida Muhammad Khan and Salahuddin Mirza, JJ

MUHAMMAD FAYYAZ and another---Petitioners

Versus

ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Ministry of Religious Affairs, Islamabad and 4 others---Respondents

Shariat Petitions Nos. 6/I of 2004 L.W. and 27/I of 1992, decided on 8th June, 2007.

Constitution of Pakistan (1973)---

----Arts. 203-B(c) & 203-D---Majority Act (I of 1875), S.3---Contract Act (IX of 1872), S.11---Repugnancy to injunctions of Islam---Petitioners had called in question S.3 of Majority Act, 1875 read with S.11 of Contract Act, 1872, praying that same be declared repugnant to injunctions of Islam---Contention of counsel for petitioners was that age of 18 years as mentioned in impugned S.3 of Majority Act, 1875, was against injunctions of Islam and a source of botheration for the father as he had to provide maintenance to his son till age of 18 years, despite the fact that his son might have much earlier attained puberty according to Islamic injunctions---Shariat Court was empowered to examine laws as defined in Art.203-B(c) of the Constitution, only on the touchstone of injunctions as contained in Holy Qur'an and Sunnah of Holy prophet (p.b.u.h.)---Court had great regard for opinion of Muslim Jurists, however, according to constitutional requirements, Shariat Court could not declare any law or its provisions repugnant to injunction of Islam merely on basis of opinion expressed by a Muslim Jurist---No verse of Holy Qur'an or authentic Hadith, on said particular matter could be found to support contentions raised by counsel for petitioners---Mere manifestation of physical symptoms of attaining puberty, as submitted by counsel for petitioners, were not, by themselves, sufficient to hold that concerned person had also attained the age of majority/maturity---There were definitely other mental, emotional and psychological aspects also that would form necessary basis for that purpose---Ages in attaining physical puberty, would vary from place to place and from person to person and no definite criteria could be specified' to exactly determine who attained puberty and on which date---Such was the reason why even renowned Muslim scholars were not unanimous on that point and had held divergent opinions in respect of age of puberty---For the purpose of legislation, a specific age limit had to be fixed by the legislation so that the parties who entered litigations in that respect were conveniently found by the definite law to follow the same without indulging in further controversies and complications for determination of puberty.

Muhammad Akram Gondal for Petitioner (in Sh.P.No.6/I of 2004).

Nemo for Petitioner (in Sh.P.No.27/I of 2004).

Sardar Abdul Majeed, Standing Counsel for Federal Government for the State.

Date of hearing: 7th May, 2007.

P L D 2007 High Court (AJ&K) 1

Before Sardar Muhammad Nawaz Khan, C J

Khawaja IFTIKHAR AHMED and another---Petitioners

Versus

AZAD JAMMU AND KASHMIR, GOVENRMENT through Chief Secretary, Muzaffarabad and others---Respondents

Writ Petitions Nos.303 and 399 of 2003, decided on 22nd December, 2006.

(a) Interpretation of statutes--

----Legislation, commencement of---Legislation like Act, Ordinance or Rules, had a commencement clause---Some time such clause provided enforcement of a law with immediate effect, when it was published in the official Gazette; in both the cases it was always made clear through an express provision as to what would be the date of enforcement---When commencement clause would provide validity of a law after publication in the official Gazette, any action taken or any act done in view of said law before its publication in the official Gazette, would be invalid, but; when commencement clause would expressly provide enforcement of a law with immediate effect, it had nothing to do with its publication in the official Gazette---When a law did not have commencement clause, law would be deemed to take effect immediately---Rules, in the present case, as expressly provided, came into force immediately---Provisions of the parent statute though had provided that government could, by publication in the official Gazette, make rules for the purposes enumerated thereunder, but validity of those rules was not qualified with their publication in the official Gazette---Application of Rules was intended to for information of general public, it had nothing to do with enforcement or validity of rules as there. was an express provision in the rules showing their validity with immediate effect---Publication in the official Gazette would become relevant for the purpose of validity of a law when it was expressly provided that law would come into force after its publication in the Gazette---Amendment in the Rules though did not provide commencement clause, but it would be deemed to be valid with immediate effect in absence of any express provision contrary to deeming provision.

PLD 1983 SC (AJ&K) 20 rel.

(b) Azad Jammu and Kashmir Additional Custodian, Deputy Custodian and Manager of Evacuee Property (Terms and Conditions of Service) Rules, 1992---

----R. 2---Azad Jammu and Kashmir Rules of Business, R.16(4)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Vires of Rules---Azad Jammu and Kashmir Additional Custodian, Deputy Custodian and Manager of Evacuee Property (Terms and Conditions of Service) Rules, 1992, were not proposed by the `Rules Committee' nor processed by the Services and General Administration Department or vetted by the Law Department, but non-following of such procedure would not render the Rules as invalid---Provision of R.16(4) of Rules of Business, was not mandatory in its nature; for its consequences were not provided, it was simply a provision directory in nature and its non-observance, would not affect validity of Rules adversely---Rules in circumstances held the field.

PLD 1974 SC 134 rel.

Yaqoob Mughal and Kh. Imtiaz Ahmed for Petitioners.

Raja Muhammad Hanif Khan and Kh. Attaullah Chuck for Respondents.

P L D 2007 Karachi 1

Before Rahmat Hussain Jafferi, J

MUHAMMAD RAMZAN---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.33 of 2002, decided on 16th March, 2005.

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

----S. 302(b)/34---Criminal Procedure Code (V of 1898), S.164---Qanun-e-Shahadat (10 of 1984), Arts.2(7), (8), 90-100 & 129---Appreciation of evidence---Judicial confession---Death of Magistrate who recorded statement of accused under 5.164, Cr.P.C.---Mode of proof of statement/confession---Procedure---Allegation against accused/appellant was that he committed murder of deceased with hatchet blows---Accused allegedly made judicial confession before Magistrate from which he later on retracted---Trial Court convicted and sentenced accused to life imprisonment---Validity---Eye-witnesses had stated that four hatchet blows were given to deceased by accused but there were three injuries on the dead body of deceased-Discrepancy as to one injury was to be ignored because evidence was recorded six years after incident and such discrepancy was bound to occur because of long span of time between the incident and recording of evidence in the Court---Eye-witnesses' presence on the spot was not disproved---Promptly lodged F.I.R. was to be taken as one of the circumstances for eliminating the false implication of sole accused---Prosecution successfully proved ocular testimony--Prosecution did not examine Magistrate who had recorded confession of accused for the reason that the former had died---Prosecution, in order to prove judicial confession, examined a witness who had worked with the late Magistrate---Witness produced judicial confession of accused and deposed that he (witness) was conversant with the signature and handwriting of the late Magistrate and testified that confessional statement was in the handwriting of late Magistrate, bearing his signature---Witness was not cross-examined by accused---Accused, however, contended that he did not make any judicial confession---Under provision (illustration (e)) of Art.129 of Qanun-e-Shahadat, 1984 it was to be presumed that judicial and official acts were regularly performed---Under Art.91 of Qanun-e-Shahadat, if a document was produced before the Court purported to be statement or confession of an accused person, recorded in accordance with law, duly signed by Magistrate, then the Court was required to presume that the document was genuine---Confession was supported by medical evidence and ocular testimony---Accused was produced before Magistrate on the day of his arrest and he made judicial confession on the same day---Such promptly recorded confession eliminated possibility of inducement or torture---As to question of identity of accused, under Arts.91 & 129 of Qanun-e-Shahadat, 1984 presumption was attached to the identity of person mentioned in the document---Mashir of recovery of hatchet though did not state whether hatchet was sealed by police or not, but. Chemical Examiner's report showed that hatchet received by him from police was stained with blood---Prosecution had proved case against accused beyond any reasonable doubt---Appeal filed by accused was dismissed.

?

Queen v. Nussurddin 21 WR 5 (Cr); Brajabballar Ghose v. Akhov Bagdi AIR 1926 Cal. 705; Muhammad Ali v. E, AIR 1934 All. 81; Maqboolan v. Ahmed Hussain 31 IA 38; Surabjit v. Matti Din 60 IC 437; Hari Ram v. E. AIR 1926 Lah. 122; Bagwat Prasad v. Sher Khan AIR 1926 Oudh 489; Baijnath Singh v. Jamal Bros. AIR 1924 PC 48; Apaya Dundyappa v. Govind Dallatraya AIR 1956 B 625 and Gopaldas v. Sri Thakurji AIR 1943 PC 83 rel.

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

----Arts. 2(7)(8), 55 & 90, 95, 96, 97, 99, 100, 128 & 129---Criminal Procedure Code (V of 1898), 5.164---Presumptions, obligatory and permissive---Scope and effect---Presumption was a rule of law---Under Art.2(7) & (8) of Qanun-e-Shahadat, 1984, however, the Court may draw a particular inference from a particular fact or particular evidence unless and until the truth of such inference was disproved---Presumptions mentioned in Arts.90 to 95 and 99 of Qanun-e-Shahadat were obligatory whereas presumptions mentioned under Arts.96, 97, 98, and 129 were permissive in nature and Court might or might not raise a presumption---Court was bound to raise presumptions which were obligatory to the Court---Presumptions mentioned in Arts.90 to 100 and 129 were not conclusive but rebuttable---In case of presumptions mentioned under Arts.55 & 128 of Qanun-e-Shahadat, 1984, as "conclusive proof", no evidence was to be given in rebuttal of such presumptions---Statement of accused recorded under S.164, Cr.P.C. was a permissive presumption, hence rebuttable---Accused did not lead any evidence to rebut such presumption---Presumption as to legality and correctness of Court proceedings could be challenged only by exceptionally strong evidence which in the present case accused failed to rebut.

Sheodarsham Lal v. Assessar Singh 46 IC 52 rel.

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

----Arts. 91 & 129---Maxim:---"Onmia praesumuntur rite esse acta"---Arts.91 & 129 of Qanun-e-Shahadat, 1984 were based on the maxim, "Omnia praesumuntur rite esse acts" which meant that "all things are presumed to have been done rightly."

Ahsan Ahmed Qureshi, for Appellant.

Muhammad Ismail Bhutto for State.

Date of hearing: 15th February, 2005.

P L D 2007 Karachi 11

Before Anwar Zaheer Jamali and Syed Zawwar Hussain Jaffery, JJ

NESTLE MILKPAK LTD.---Appellant

Versus

SINDH INSTITUTE OF UROLOGY and others---Respondents

H.C.A No. 271 of 2004, decided on 1st September, 2006.

(a) Pakistan Environmental Protection Act (XXXIV of 1997)---

----S. 12---Easements Act, (V of 1882), S.7---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1, 2, 4 & O.I, R.8 & S.151---Specific Relief Act (I of 1877), Ss.39, 42 & 53---Suit for permanent injunction, declaration and cancellation of documents---Area specified for 'Education City'---Transfer of land to "water bottling company" for business gains in specified area---Effect on enviromnent and residents of area---Public interest litigation---Scope---Plaintiff/ respondents (Health & Educational Institutions) filed a suit for declaration, permanent injunction and cancellation of documents against defendants/appellants, to the effect that a certain area, to be termed as "Education City", was to be reserved for the purpose of establishing health and educational institutions/projects and one of the defendants (water bottling company) had acquired 20 acres of land in "Education City" in a legally defective manner---Plaintiffs averred in their suit that; defendant/company was setting up a water bottling plant over disputed land for their use of sub-soil water/aquifer in huge quantities; that act of defendant-company was likely to cause scarcity of water for use of plaintiffs and other institutions to be set up in that area in future; that defendant's project was in violation of S.12 of Pakistan Environmental Protection Act, 1997 and that defendant had not obtained any requisite permission under Canal and Drainage Act, 1873---Defendant, on the other hand, denied assertions of plaintiffs as to; any illegality committed by it in acquiring ownership of 20 acres of land; legality of title of plaintiffs in respect of land claimed by them; existence of "Education City" in the area; causing of any damage to sub-soil water/aquifer due to operation of their water bottling plant over its 20 acres of land---Defendant further contended; that construction of building and installation of plant by it over its land was in accordance with law; that it had obtained necessary permission from concerned Government Agencies including Environmental Protection Agency; that project was intended to provide portable water to citizens of Pakistan; that suit, which was allegedly not maintainable, was filed by plaintiff with delay and that under S.7 of Easements Act, 1882, every owner of land had absolute right to enjoy and dispose of his immovable property, subject to any law, for the time being in force and while there was no law in Pakistan prohibiting defendant from using sub-soil water in quantity they needed to extract by installation of two tubewells in defendant's own land---Validity---Held, it was hard to believe that extraction of alleged brackish water from aquifer by defendant in huge quantities was not to disturb aquifer and environment of area and it was difficult to believe that having only 20 acres of land in area was to remain within their legal rights to extract such huge quantities of water on plea of being brackish without causing prejudice/harm to interests of other residents of the area, particularly when area in question was situated in a country where natural source of water for aquifer i.e. raining, was negligible and highly insufficient---Plaintiffs were not responsible for delay in approaching the Court, rather filing of written statement was delayed by defendant, so as to avail maximum benefit of order of the Court---Question of locus standi and personal grievance of plaintiffs in the form of filing suit, had lost its significance in view of the fact that already steps had been taken in the suit to bring it within the category of representative suit and controversies raised in suit were also in the nature of public interest litigation rather than to be confined to the interest of plaintiff---Plaintiffs/respondents had succeeded to make out prima facie case in their favour and had also met with other ingredients i.e. balance of convenience, irreparable loss and injury, which justified grant of interim injunction in their favour---Appeal was dismissed.

Walayat All Mir v. Pakistan International Airlines Corporation 1995 SCMR 650; Pakistan International Airlines Corporation v. Messrs Hazir (Pvt.) Ltd. (PLD 1993 Kar. 190; Pirjee Muhammad Naqi v. Messrs Pakistan State Oil Corporation 2000 CLC 1276; Muhammad Suleman v. Azad Government and 5 others 2002 PLC (C.S.) 889; Macshannon v. Rockware Glass Ltd. 1978) 1 All ER 625; Jahar Mal . G.M. Tritchard AIR 1919 Patna 503; Chasemore v. Richards (1843-60) All ER Rep 77; Mayor and Co. of Bradford v. Pickles H.L. (E) (1895) AC 587; Perumatty Grama Panchayat v. State of Kerala 2004 (1) KLT 731 (Kerala High Court); State of Tamil Nadu v. Hind Stone (1981) 2 Supreme Court Cases 205; M.C. Mehta v. Kamal Nath (1997)1 Supreme Court Cases 388; National Audubon Society v. Superior Court (1983) 33 Cal. 3rd 419 (Supreme Court of California); Marks v. Whitney 6 Cal. 3d 251 (Supreme Court of California); Ardeshir Cowasjee v. Province of Sindh 2004 SBLR Sindh 763; Shehri v. Province of Sindh (2001 YLR 1139); Gaved v. Martyn 34 LJCP 352; Gul Haider v. Asat PLD 1978 Pesh. 157; Anjum Irfan v. Lahore Development Authority PLD 2002 Lah. 555 and Asrabulla v. Kiamatulla AIR 1937 Calcutta 245 ref.

(b) Words and phrases---

----"Prima facie case" cannot be equated with "indefeasible case".

Muhammad Matin v. Mrs Dino Majkji Chinoy and others PLD 1983 Kar. 387 and Mrs. Naz Shaukat Khan and 3 others v. Mrs Yasmin R. Minhas and another 1992 CLC 2540 rel.

Khalid Anwar for Appellant.

Qazi Faiz Isa for Respondents.

Anwer Mansoor Khan, A.-G., Sindh for Respondents Nos. 5 and 6.

Nemo for the remaining Respondents.

P L D 2007 Karachi 27

Before Muhammad Mujeebullah Siddiqui, J

Raja MUHAMMAD ZARAT KHAN---Applicant

Versus

THE STATE---Respondent

Special Criminal Bail Applications Nos.36, 37, 38 and 39 of 2006, decided on 4th September, 2006.

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

----S. 497---Customs Act (IV of 1969), Ss.2-B, 3-A, 3-E, 16, 19, 25, 32(A)(B)(C), 156(1), (10=A), (14), (14-A), (77), (82), 168, 178, 171 & 195-C---S.R.O. 450(I)/2001, dated 18-6-2001---S.R.O. 509(I)/97, dated 8-7-1997---S.R.O. 698(I)/02, dated 9-10-2002---National Accountability Ordinance (XVIII of 1999), S.25---Bail, grant of---Criminal liability under Customs Act, 1969---Misuse of DTRE Scheme---Claim to inadmissible customs rebate---Plea bargain---Applicability---Four F.I.Rs. were lodged against accused/petitioner by Customs Authority, alleging therein that he being involved in claiming inadmissible customs rebate, and misuse of DTRE by way of phony and fraudulent export, caused loss to State exchequer; and that consignments/containers intended for export when examined by Authority did not contain those export articles which accused had declared--Bail petition of accused was dismissed by Trial Court on ground that accused was prima facie connected with offence alleged by prosecution and further investigation was still in progress---Accused contended; that he was ready to pay alleged evasion of customs duty; that allegation as to claiming rebate after export was imaginary; that under S.32(A)(B) of Customs Act, 1969, offence allegedly committed by accused was to be compounded if he paid amount of duty or tax evaded along with penalty; that under S.195-C of Customs Act, 1969, accused was to apply to Central Board of Revenue for appointment of Alternative Dispute Resolution (ADR) Committee for resolution of dispute as to matter pertaining to customs duty, liability, rebate, waiver, penalty or fine; that case of accused being of civil nature in view of Ss.32-(A)(B) & 195-C of Customs Act, 1969, no criminal proceedings were to be initiated against him; that offence allegedly committed by accused did not fall in prohibitory clause of S.497, Cr.P.C. and that resort was to be made to resolution of dispute through negotiated settlement with reference to law pertaining to plea bargain contained in National Accountability Ordinance, 1999---Validity---Application of accused under 5.195-C of Customs Act, 1969 for recourse to Alternative Dispute Resolution had already been rejected by Central Board of Revenue---Provisions of Ss.32 & 195 of Customs Act, 1969, pertained to discharge of civil liability and even if matter was settled under these provisions, accused was not to be absolved automatically of criminal liability especially when prosecution had already been launched before Trial Court---Plea bargain contained in National Accountability Ordinance 1999, was not attracted to criminal proceedings under Customs Act, 1969---Contention of accused that as officials of Directorate-General of Intelligence and Investigation (Customs & Central Excise) were not conferred authority under Ss.2-B & 3-A of Customs Act, 1969, and they did not exercise jurisdiction properly, required deeper appreciation which was not to be considered at bail stage--Offence allegedly committed by accused was punishable with imprisonment for 10 years and fell within prohibitory clause of S.497, Cr.P.C.---Bail petition was dismissed.

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

---Ss.32-B & 195-C----National Accountability Ordinance (XVIII of 1999), S.25---Public Policy and plea bargain---Applicability of plea bargain to criminal proceedings under Customs Act, 1969---Scope---Rationale behind National Accountability Ordinance, 1999, was not only to punish those who were found guilty of charges levelled under the Ordinance but to facilitate early recovery of ill-gotten wealth through settlement where practicable---Plea bargain was not desirable in cases opposed to principles of public policy---Provisions pertaining to plea bargain in National Accountability Ordinance, 1999, were not attracted to present prosecution under Customs Act, 1969---Fraudulent and phony exports were utterly opposed to public policy for the simple reason that they not only brought bad name to country but also promoted corruption-based culture, economy, bureaucracy, business and trade activities---Such was a crime against entire society and country which was more heinous than any other ordinary criminal offence---Person who was involved in any embezzlement, criminal breach of trust, fraud, forgery, accepting illegal gratification etc., was not to be let off the hook merely on depositing the amount of loss caused by such person---Such practice, if adopted, was to make provisions of criminal law redundant, otiose and nugatory, changing criminal liability into civil liability, hence, the same was not to be permitted.

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

----S. 497(2)---Offence not falling in prohibitory clause of S.497, Cr.P.C.---Refusal of bail---Scope---Under exceptional circumstances, Court might refuse grant of bail to accused even if offence committed by him did not fall in prohibitory clause to S.497, Cr.P.C.---Distinction was to be made between an offence which was committed by an individual like theft and an offence which was directed against the whole society for the purpose of bail, in the former category practice to allow bail in cases not falling under prohibitory clause of S.497, Cr.P.C., in absence of exceptional circumstances, might be followed; but in latter category, the Courts were to be strict in exercise of discretion of bail---In cases affecting whole society, the offenders belonged to a distinct class and they qualified to be falling within an exceptional circumstance warranting refusal of bail even where maximum sentence was less than ten years for the offence involved, provided the Court was satisfied that prima facie, there was material on record to connect accused with commission of offence.

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

----Art. 189---Decision passed by Supreme Court---Binding effect on Courts in Pakistan---Scope---Decision of Supreme Court as to extent of question of law or enunciation of principle of law was binding on all Courts in Pakistan---Judgment in criminal case, however, did not have the force of precedent, in that, facts and circumstances of two criminal cases were seldom identical---Judgments in criminal cases where principles of law had been laid down, were to have force of precedent and were of binding nature.

(e) Precedent---

----Judgment in criminal case, however, did not have the force of precedent, in that, facts and circumstances of two criminal cases were seldom identical---Judgments in criminal cases where principles of law had been laid down, were to have force of precedent and were of binding nature.

Azizullah K. Shaikh and Ismat Mehdi for Applicants.

Abdul Hafeez Pirzada for Directorate General of Intelligence and Investigation (Customs, Sales Tax and Federal Excise) along with Khalid Mehmood, Director, Dr. Saifuddin Junejo, Deputy Director and Fakhar Ali Shah, I.O.

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

Date of hearing: 4th September, 2006.

P L D 2007 Karachi 50

Before Anwar Zaheer Jamali, J

Mrs. TAHIRA DILAWAR ALI KHAN through Attorney and 2 others---Petitioners

Versus

Mst. SYEDA KANEEZ SUGHRA and 2 others---Respondents

Constitution Petition No. S-291 of 2005, decided on 20th September, 2006.

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

----Ss. 15-A & 15(vii)---Constitution of Pakistan (1973), Art.199---Transfer of Property Act (IV of 1882), Ss.107 & 17---Registration Act (XVI of 1908), S.49---Constitutional jurisdiction of High Court--Scope---Bona fide personal need of landlady---Choice of landlady---Scope---Pagri---Lease in perpetuity---Applicability of Ss. 107 & 17 Transfer of Property Art, 1882 read with S. 49 Registration Act, 1908---Scope---Laches, principles of---Landlady filed ejectment petition regarding rented shop against tenant/ petitioner on ground of personal need of her son---Rent Controller ordered eviction of tenant on ground of personal need, which finding was maintained by lower Appellate Court---Tenant contended that he had paid `Pagri' amount to predecessor of landlady in the year 1968; that landlady was actually planning to dispose of rented shop; that landlady owned several other properties in the area and that vide tenancy agreement, a lease in perpetuity had been created in favour of tenant---Validity---Held, owner of property had absolute right to deal with her property in the manner she liked and no clog, disqualification or adverse inference was to be drawn in the context of denied suggestion that landlady was planning to sell the rented shop nor it was to be made a ground for refusal of ejectment on plea of personal need, for S.15-A of Sindh Rented Premises Ordinance, 1979 in such situation provided ample safeguard to interest of tenant in rented premises---No suggestions were made to landlady about vacation and availability of the other shops owned by her in adjacent area of rented shop---Even if landlady owned certain other shops at other locations, she was not required to decide the suitability of need of her son at the dictates of tenant or anybody else, as it was her absolute choice and prerogative---Payment of Pagri to predecessor of landlady was not a hindrance in or bar against seeking eviction of tenant under S.15(vii) of Sindh Rented Premises Ordinance, 1979---Claim of lease in perpetuity in respect of rented shop in favour of tenant was not to be accepted on the basis of tenancy agreement for reasons, firstly, tenancy agreement being unregistered had lost its legal validity for enforcement of rights after expiry of one year as per Ss.107 & 17 of Transfer of Property Act, 1882 read with S.49 of Registration Act, 1908, secondly, claim of personal need had an overriding effect on such alleged terms of lease provided in tenancy agreement, being against public policy and provisions of Sindh Rented Premises Ordinance, 1979---Engagement of landlady's son in some temporary service/business to earn livelihood or to have some monetary gains was also not a disqualification for landlady to seek eviction of tenant from rented shop---Party was to succeed on the basis of his own evidence and not on the basis of weakness of evidence of other side---Tenant had approached High Court more than seven months after passing of judgment by lower Appellate Court which fact suffered from laches---Constitutional petition thus was not maintainable---Power vested in High Court under Art. 199 of Constitution was discretionary in nature and was to be exercised fairly and equitably in favour of party who approached Court with clean hands---Tenant having not come to Court with clean hands, his constitutional petition was dismissed.

Mohammad Akther v. 'Mst. Manna and 3 others 2001 SCMR 1700; Allies Book Corporation v. Sultan Ahmad and others 2006 SCMR 152; Anisur Rehman v. Mst. Sharifa Khatoon and another 1986 CLC 448; Muhammad Aslam v. Muhammad Aslam 1987 CLC 686; United Bank Ltd. v. Ehsan Ellahi 1989 CLC 287; Montessori Home v. Muhammad Shekoh Salim 1995 CLC 1353; Shah Noor Fazal v. Ghulam Akber Mangi 1987 SCMR 2051; Province of Sindh v. Nisar Ahmed Khan 1983 CLC 1905; Mst. Toheed Khanam v. Muhammad Shamshad 1980 SCMR 593; Abdul Wahid Lehri v. Arbab Mir Nawaz and 3 others 1997 SCMR 1789; United Bank Limited v. Mrs. Alafia Hussain 1999 SCMR 1796; Miss Akhtar Qureshi v. Nisar Ahmed 2000 SCMR 1292; Hussaini v. Mukaram Ali 2006 SCMR 1483 and Mst. Zainab v. Majeed Ali and another 1993 SCMR 356 rel.

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

----S. 21---Constitution of Pakistan (1973), Art.199-Constitutional jurisdiction of High Court---Scope---Reappraisal of evidence---Section 21 of Sindh Rented Premises Ordinance, 1979---Object---By conferring only one right of appeal under S.21 of Sindh Rented Premises Ordinance, 1979, the legislature in its wisdom seemed to have tried to shorten span of litigation in rent cases---Interference by High Court under Art.199 of the Constitution in judicial orders passed by Tribunals, merely on ground that another view of the matter was possible, was not to serve any other purpose but to add to misery of prolonged litigation between parties and defeat the spirit and object of statute---High Court, in exercise of its jurisdiction under Art.199 of the Constitution arising out of cases under Sindh Rented Premises Ordinance, 1979, did not act as a Court of second appeal and reappraisal of evidence was uncalled for even if on the basis of evidence available on record some other conclusion was also possible---Constitutional jurisdiction was not to be exercised to appraise evidence and come to independent findings where findings of facts were recorded by authority below after giving good reasons in support of it---High Court had ample jurisdiction to refuse relief where its grant tantamount to injustice---High Court was not bound to grant relief to aggrieved person simply because he was legally entitled to the same, if grant of such relief was immoral, unfair or against dictates of good conscience and fairplay---High Court was not obliged to press into service its constitutional jurisdiction in every case in which illegality or void action or void order was impugned but Court was to see whether grant of relief prayed for fostered cause of justice or was to perpetuate injustice.

Secretary to the Government of the Punjab, Forest Department v. Ghulam Nabi and 3 others PLD 2001 SC 415; Messrs Mehraj (Pvt.) Ltd. (judgment authored by me) and Shamim Akhter v. State Life Insurance Corporation PLD 2005 Kar. 554 rel.

(c) Evidence---

----Burden of proof---Burden of proof loses its significance after leading evidence by both parties and it is only a matter of preponderance of evidence which enables the Court to record correct conclusion on the basis of evidence led by both parties.

Mst. Zainab v. Majeed Ali and another 1993 SCMR 356 rel.

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

----S. 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Bona fide personal need of landlady---Equitable relief---Laches---Conduct of tenant---Tenant in another case had got certain premises on rent and while delivering back possession of them, he had admittedly charged huge amount from owner of property---Such fact, though not material to determine bona fides of claim of landlady in the present case which was to be adjudged independently, spoke volume about greed of tenant---Tenant in view of his conduct was disentitled to grant of relief under Art.199 of Constitution which was purely equitable and discretionary in nature---Tenant, moreover, filed constitutional petition more than seven months after passing of judgment by lower Appellate Court, therefore, the same was hit by laches and was not maintainable in law.

Muhstaq A. Memon for Petitioners.

Zahid Marghoob for Respondent No.1.

Nemo for Respondents Nos. 2 and 3.

P L D 2007 Karachi 62

Before Faisal Arab, J

NEK MUHAMMAD and another---Petitioners

Versus

THE STATE---Respondent

Constitutional Petition No.S-173 of 2006, decided on 28th August, 2006.

Criminal Procedure Code (V of 1898)---

----S. 397---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioners had sought concurrent running of their sentences awarded to them in three different cases by three different Courts---Relief of seeking concurrent running of subsequent sentences ought to be sought either before the Court which passed subsequent sentence or if denied by such Court, ought to be sought before higher forum where appeal or revision lay---Having not sought the remedy before higher forum and the sentences awarded in three cases having attained finality, petitioners in collateral proceedings could not agitate the matter, because finality was attached to all legal decisions, if not reversed or modified by i.i.2her forum provided under the law, in such a situation a party in a case could not seek any relief through collateral proceedings, which was either denied to him or the party itself failed to seek such relief by impugning the order of the Court before higher legal forum in the same hierarchy---Where no appeal or revision was preferred, relief for seeking concurrent running of the subsequent sentences, could not be sought in any collateral proceedings as no other proceedings could be the substitute for an appeal or revision---All three offences in the present case, though identical in nature, were committed with distinct and separate criminal objectives sought to be achieved at three different points of time---Justification to seek concurrent running of all the three sentences, in circumstances, did not arise at all---Courts below did not have the discretion to order concurrent running of subsequent sentences---Constitutional petition was dismissed.

Mian Gulzar Muhammad v. Crown PLD 1950 Lah. 497; Zakir Ali v. The State PLD 1977 Kar. 833; Muhammad Khan's case PLD 1986 Lah. 294; Abdul Hamid v. The State 1990 PCr.LJ 568 and Muhammad Yaqoob Tahir v. Superintendent District Jail Rawalpindi PLJ 1978 Lah. 531 ref.

Petitioners in person.

Habibur Rehman Shaikh, A.A.-G. for the State.

Hadi Bux Bhutt, Nizamuddin Baloch and Imdad Ali Awar as: Amicus Curiae.

Date of hearing: 30th May, 2006.

P L D 2007 Karachi 68

Before Rahmat Hussain Jafferi and Nadeem Azhar Siddiqi, JJ

HABIBULLAH alias BHUTTO and 4 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.D-l00 of 2004 and Confirmation Case No.D-8 of 2004, decided on 10th August, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 342, 367 & 537---Penal Code (XLV of 1860), Ss.302, 147, 149 & 34---Failure of Court to put to accused specific questions as to incriminating fact, cropping up in evidence against him---Duty of defence counsel---Non-compliance of mandatory provisions of S.367, Cr.P.C. by Court---Effect---Proper judgment, requirement of---Duty of Court---Scope---Accused/appellants were tried and convicted by Trial Court under Ss.302, 147, 149 & 34, P.P.C. and sentenced to various terms of imprisonment including death sentence to one of the accused/appellants---Accused/appellants contended that while trying them Trial Court did not observe the provisions of Ss.342 & 367, Cr.P.C. which prejudiced the cause of accused---Validity---Under S.342, Cr.P.C., a duty was cast upon Trial Court to put questions to accused persons on incriminating facts coming in evidence so that accused be enabled to explain circumstances appearing in evidence against them---Defect in recording statements of, accused under S.342, Cr.P.C. was curable unless it was shown that accused had been prejudiced and miscarriage of justice had occurred---Obligation was cast upon defence counsel to take active part in proceedings and assist the Court if he found any irregularity or illegality committed by Trial Court---Appellate Court was required to examine and determine the question whether failure of justice had occurred due to error, omissions or irregularity in proceedings; and whether objection could or should have been raised at an earlier stage in proceedings as provided under explanation to S.537, Cr.P.C.---Had the defence counsel furnished proper guidance to the Court then defects could not have occurred in proceedings---Silence on the part of defence counsel indicated that he did not find such defects which were to prejudice the accused in their defence---Such aspect, however, did not mean that Trial Court was given licence to commit such defects---Where court did not put all incriminating evidence to accused to obtain his explanation, such piece of evidence was not to be used against accused to convict him---Court was to be very careful in recording statements under S.342, Cr.P.C.---Major defect in the case was violation of mandatory provisions of S.367,. Cr.P.C. under which Trial Court was required to give reasons for decision arrived at by it after considering various pieces of evidence and discussion on them with specific findings as to whether the same had been proved or not---Trial Court was obliged to thoroughly examine all evidence adduced by parties as well as their arguments and to appreciate the same in accordance with law---Conclusions drawn in respect of such points were to be based on sound grounds and reasoning--Judgment written without discussion of evidence of witnesses or the effect of corroborative evidence and without giving any reasons was not a proper judgment---Judgment suffered from illegality within the meaning of S.367, Cr.P.C. which was not curable under S.537, Cr.P.C.---Judgment was set aside and case remanded to Trial Court for retrial from the stage of recording statements of accused/ appellants under S.342, Cr.P.C.

S. Mushtaque Hussain Shah for Appellants.

M. Mehmood Khan S. Yousifi, A.A.-G. for the State.

Date of hearing: 10th August, 2006.

P L D 2007 Karachi 72

Before Nadeem Azhar Siddiqi, J

Sardar M. SHAKOOR KHAN---Plaintiff

Versus

PAKISTAN through Secretary, Ministry of Labour and Manpower, Government of Pakistan, Karachi and 2 others---Defendants

Suit No.252 of 1983, decided on 5th August, 2006.

(a) Emigration Ordinance (XVIII of 1979)---

----Ss. 12(3) & 25---Tort---Suit for damages by Overseas Employment Promoter (plaintiff) for illegal cancellation of its licence---Order of cancellation of plaintiff's licence was declared by High Court to be without lawful authority and of no legal effect---Defendant-Authority claimed protection under S.25 of Emigration Ordinance, 1979---Held: such action of defendant was illegal and could not be termed as done in good faith, thus, protection claimed would not be available.

(b) Emigration Ordinance (XVIII of 1979)---

----Ss. 12(3)---Civil Procedure Code (V of 1908), O.I, R.3 & O.XXVII, R.3---Tort---Suit for damages against officials of Emigration Bureau by Overseas Employment Promoter (plaintiff) for illegal cancellation of his licence---Maintainability---Plaintiff had not sued such officials in their natural/individual names, but had sued them in their official capactiy---Such suit was not maintainable against such officials.

Mirza Abdur Rahim Baig v. Abdul Haq Lashari and others PLD 1994 Kar. 388 ref.

(c) Emigration Ordinance (XVIII of 1979)---

----Ss. 12(3)---Civil Procedure Code (V of 1908), O.XXVII, R.3---Tort---Suit for damages against officials of Emigration Bureau by Overseas Employment Promoter (plaintiff) for illegal cancellation of its licence---Proof---Plaintiff not specifically alleged to have suffered loss due to conduct of Government of Pakistan or that same had gained some thing due to cancellation' of licence or that same had at any stage owned such illegal act of its Director-General---Plaintiff did not produce evidence to show that Government of Pakistan had ratified such act of its officials and had benefited therefrom---Suit as framed being non-maintainable under law was dismissed.

Pakistan v. Muhammad Yaqoob Butt and others PLD 1963 SC 627 and Government of Pakistan v. Sardar Muhammad Ali PLD 1965 (W.P.) Karachi 1 fol.

Rizwan Ahmed Siddiqui for Plaintiff.

Syed Tariq Ali for Defendants.

Date of hearing: 5th August, 2006.

P L D 2007 Karachi 78

Before Faisal Arab, J

Messrs MARVI INTERNATIONAL through Partners---Plaintiff

Versus

MUHAMMAD ASLAM and 2 others---Defendants

Suit No.655 of 2005 and C.M.A. No.990 of 2006, decided on 25th September, 2006.

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

----O. VII, R.11---Rejection of plaint---Court would take into consideration only averments made in plaint and documents annexed thereto.

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

----S. 69(2)---Civil Procedure Code (V of 1908), O.VII, R.11---Suit by unregistered firm---Registration of firm during pendency of suit--Amendment of plaint to substitute partners' names with that of subsequently registered firm---Validity---Institution of suit by unregistered firm would be void for being prohibited by mandatory provisions of S.69(2) of Partnership Act, 1932---Registration of firm, after institution of suit, could not cure inherent defect of non-registration existing at the time of institution of suit---No power of condonation vested in Court to grant any relief to such defaulting firm---Such such would still be liable to be declared as barred under S.69(2) of the Partnership Act, 1932---Plaint was rejected in circumstances--Principles.

The object of the bar contained in section 69(2) of the Partnership Act, 1932 is based on the intention of the legislature that a unregistered firm must be subjected to a disability in order to compel registration and such intention should not be allowed to be thwarted o nullified by an interpretation which the words are not capable of bearing The provisions of section 69(2) of the Partnership Act, 1932 are mandatory and there is no power of condonation vested in the Courts t grant any relief to a defaulting firm. The effect of such prohibition has t be determined at the very inception in the same manner, as the Courts d not take cognizance of a suit barred by limitation or of a suit suffering, from a defect of jurisdiction in the form in which it is instituted. The registration after the institution of the suit cannot cure the defect of non registration existing at the time of the institution of the suit.

The provisions of section 69(2) of the Partnership Act, 1932 are mandatory in character as they prohibit institution of a suit by partnership firm unless it is registered. In case an unregistered firm file a suit, it would be rendered void and subsequent registration of the firm during the pendency of the suit will also not cure this inherent defect any the suit shall still be liable to be declared as barred under the provision of section 69(2) of the Partnership Act, 1932.

In the present case,-the application filed under Order VII Rule 11, C.P.C. was allowed as the suit is barred under section 69(2)o the Partnership Act, 1932, thus, the plaint was rejected.

Naved Ahmed Khan for Plaintiff.

Abdul Qayyum Abbasi for Defendant No.2.

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

P L D 2007 Karachi 85

Before Mushir Alam and Azizullah M. Memon, JJ

MUHAMMAD QASIM and 26 others---Petitioners

Versus

PROVINCE OF SINDH through Secretary, Land Utilization Department, Government of Sindh and 21 others---Respondents

Constitutional Petition No.-125 of 2004, decided on 22nd March, 2006.

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

----Ss. 161 & 163---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Allotment of land under Land Grant Policy---Cancellation of allotment---Land in dispute was allotted to petitioners by the order of Chief Minister---Appeal filed by respondents against said allotment was allowed on the ground that impugned allotment/grant was made in favour of petitioners in deviation of Land Grant Policy as petitioners were holding double allotment---Under Schedule to Land Grant Policy, land could have been granted for five years on Harap condition, whereas in the instant case, grant was made on permanent basis on the direction of the then Chief Minister---Petitioners were favoured by the Chief Minister for extraneous consideration---Petitioners were not able to demonstrate that conclusion drawn by Member Board of Revenue that petitioners having been granted land in more than one Deh were not eligible or qualified in terms of Land Grant Policy applicable in the case---Ill-gotten gain could not be allowed to be retained and Court would decline to interfere in exercise of constitutional jurisdiction---Constitutional jurisdiction could be invoked in aid of justice and not to perpetuate injustice or to retain ill-gotten gain.

Government of the Punjab v. Hudabia Textiles Mills, Faisalabad 2001 SCMR 209; Abdul Haq v. Province of Sindh PLD 2000 Kar. 224; Abdul Haq Indhar v. Province of Sindh 2000 SCMR 907; Ranaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236 and Chief Settlement Commissioner v. Muhammad Fazil Khan PLD 1975 SC 331 ref.

Bhimraj R. Mullani for Petitioners.

Masood A. Noorani, Addl. A.-G. Sindh for Respondents Nos. 1 to 4.

Rustam Khan M. Talpur for Respondents Nos. 5 to 18 and 20 to 22.

Date of hearing: 1st March, 2006.

P L D 2007 Karachi 91

Before Muhammad Mujeebullah Siddiqui, J

SULTAN RIAZ KHAN---Applicant

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Application No.389 of 2002, decided on 2nd October, 2006.

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

----S. 4---Criminal Procedure Code (V of 1898), S.188---Extra-territorial jurisdiction---Pre-conditions---Such jurisdiction is subject to fulfilment of conditions that accused is not found at any place in Pakistan under any circumstance and certificate of political agent or sanction of Federal Government as the case may be is obtained---If either of the conditions is not satisfied, a criminal Court in Pakistan cannot have the extra-territorial jurisdiction to try a person alleged to have committed an offence outside Pakistan.

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

----Ss. 3, 4, 12, 109, 197, 198, 406, 409, 411, 414, 420, 421, 424, 468, 471 & 477-A--Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14---Criminal Procedure Code (V of 1898), Ss.188, 190(1), 204 & 439---Extra-territorial jurisdiction---Expression "found", as used in S.188, Cr.P.C.---Connotation---Quashing of proceedings---Offence was committed in a foreign country and private complaint was filed in Criminal Court in Pakistan; in which Trial Court issued process against the accused who was a resident of foreign country---Accused raised the plea that after commission of offence, he never arrived/brought in Pakistan, therefore, Trial Court had no jurisdiction in the matter---Validity---Expression "found" used in S.188, Cr.P.C. meant that a person was physically and actually present at any place in Pakistan or had voluntarily appeared before a Court in Pakistan or appeared in answer to the summons or he was brought before the Court under arrest---Presence of accused anywhere in Pakistan and procurement of his attendance before trial Court in Pakistan had not been shown, therefore, Courts in Pakistan taking cognizance of the offence under S.190(1), Cr.P.C. upon receiving a complaint had no jurisdiction to deal with the accused---High Court in exercise of revisional jurisdiction quashed the proceedings against the accused being without jurisdiction---Revision was allowed accordingly.

Sodagar V. The State PLD 1962 (W.P.) Pesh. 32; Pheroze Jehangir Dastoor v. The State AIR 1964 Bom. 264; Abu Bakar v. The State 1989 PCr.LJ 369; AIR 1948 Nag. 251; AIR 1936 Nag. 152; Empress v. Maganlal 1882 ILR, Vol. VI and Queen-Empress v. Daya Bhima 1888 Bom. Series, Vol. XIII, 147 rel.

A. Q. Halepota for Applicant.

Abdullah Khan, State Counsel for the State.

Khalid Jawaid for the Complainant.

Date of hearing: 18th September, 2006.

P L D 2007 Karachi 99

Before Azizullah M. Memon, J

FAZALULLAH KHAN---Appellant

Versus

Begum FATIMA IMTIAZ and 3 others---Respondents

Criminal Acquittal Appeal No.123 of 2005, decided on 24th November, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 417, 431 & 265-K---Penal Code (XLV of 1860), Ss.408, 467, 468, 471, 477-A & 109---Appeal against acquittal---Abatement of

appeal---Appellant/complainant during pendency of appeal had died---Acquittal appeal could not be taken to have abated on the death of appellant/complainant as once an appeal against acquittal was entertained by the Court, it was to be decided on its own merits, irrespective of the death of appellant/complainant---High Court directed that appeal would be heard and decided on its own merits.

Khedu Mohton and others v. State of Bihar AIR 1971 SC 66; Hafiz Nehal Ahmed v. Ramjio Das AIR 1925 All 620 and Mad. High Court in Thothan v. Murugan AIR 1958 Mad. 624 ref.

Raza Hashmi for Appellant.

Javaid Ahmed Siddiqui for Respondents.

Ms. Cookie Rawar for the State.

P L D 2007 Karachi 102

Before Sabihuddin Ahmed, C.J. and Khilji Arif Hussain, J

MUHAMMAD HANIF through Attorney---Appellant

Versus

KARACHI BUILDING CONTROL AUTHORITY through Chief Executive and nother---Respondents

High Court Appeals Nos.163, 164, 167, 168 and 174 of 2004, decided on 7th September, 2004.

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

----Ss. 6(2) & 7-A---Law Reforms Ordinance (XII of 1972), S. 3---High Court Appeal---Appellants who were purchasers of certain shops in a building constructed by respondent, were aggrieved by an order of Single Judge of High Court dismissing appellants' applications for interim relief seeking to restrain Authority from taking action under S.7-A of Sindh Buildings Control Ordinance, 1979---Shops purchased/occupied by appellants were constructed by respondent in violation of approved plan and respondent could not honour its undertaking to remove objections of Building Authority---Nothing was available on record to show that appellants occupied respective shops only after an occupation certificate in terms of the provisions of S.6(2) of Sindh Buildings Control Ordinance, 1979 was issued---Appellants being not innocent purchasers of shops, could be arrayed for the wrongs of respondent---Appellants could not acquire better rights than their predecessors and in any event when they chose to purchase properties without verifying compliance of requirements of law enacted more than 20 years ago, they could only blame themselves.

Abdul Razzak v. KBCA PLD 1994 SC 512 and Muhammad Saleem and others v. Administrator, Karachi Metropolitan Corporation 2000 SCMR 1748 ref.

Shahenshah Hussain and Rana Azeem for the Appellants.

Shahid Jamiluddin and Mansoor Ahmed for Respondents.

P L D 2007 Karachi 105

Before Faisal Arab, J

Messrs MARKETING SERVICES INC., through President---Plaintiff

Versus

Messrs JULLUNDUR PVT. LTD. KARACHI---Defendant

Suit No.1191 of 2003, decided on 6th November, 2006.

Civil Procedure Code (V of 1908)---

----O. XI, R.1---Object of O.XI, R.1, C.P.C.---Interrogatories intended to be answered by plaintiff's witness and to be used as evidence--Interrogatories not to dispense with recording of evidence---Deposition taken in examination-in-chief to lose its evidentiary value if it did not pass the test of cross-examination---Scope---Plaintiff-company moved application for appointment of Commission to record evidence on interrogatories of its witness who was stationed abroad---Plaintiff, in this regard, appended with application a list of questions to be answered by plaintiff's witness and such answers were then to be sought to be treated as plaintiff's evidence---Defendant objected to grant of application on ground that as plaintiff had option to file proceedings either in Pakistan or abroad and he had chosen to file suit in Pakistan, therefore, plaintiff's witness had to appear before the Court to adduce evidence---Validity---Plaintiff's application was based on premise that answers to plaintiff's own questions were to be treated as plaintiff's evidence in the matter which meant that plaintiff's witness, after answering its own suggested questions was not to be submitted to defendant's cross-examination--Treating answers to questions suggested by plaintiff as evidence seemed to be quite absurd and alien to procedure of evidence---Such could never be the object of provisions relating to interrogatories as provided in Order XI, C.P.C.---Rule 1 of Order XI of C.P.C. provided that interrogatories were to be delivered to opposite party for examination so that those could be answered by it---Word "examination" used in Rule 1, Order XI does not mean `examination of a witness' as is done in examination-in-chief but it means perusal of interrogatories by opposite party which is called upon to answer them and deliver answers in writing to the party seeking interrogatories---Need to deliver interrogatories under Order XI, rule 1, C.P.C. may arise for the reason that plaint or written statement may not be disclosing actual nature of case and replies through interrogatories became necessary to particularize and identify the real nature and scope of controversy involved in the case---Such course saves time and expense as it prevents unnecessary and irrelevant evidence from being brought on record---Information thus collected through serving interrogatories on opposite party is then used to support one's case or to demolish the case of opposing party---Interrogatories are, however, not intended to dispense with requirement of recording of evidence of a party in the matter---Court whenever allowed a party to deliver interrogatories on opposing party, it did not mean that obligation to adduce evidence was dispensed with---Party answering interrogatories has to adduce evidence in support of its case---Party if allowed to answer its own suggested questions and use them as its evidence then it would mean that one's own answers given to one's own questions had to be treated as complete discharge of burden to adduce evidence in the matter---Such unacceptable interpretation would totally absolve a party from submitting itself to the test of cross-examination by opposing party---Even deposition taken in examination-in-chief loses its evidentiary value if it does not go through test of cross-examination---Interrogatories could not be suggested by a party to itself---Interrogatories were meant to be served on opposite party and not on party which had itself suggested questions---Even interrogatories delivered by one party to be answered by opposite party were not to absolve the requirement of adducing evidence in the matter---Plaintiff could, however, seek permission of the Court to examine its witness on Commission on its own cost and expense either in Pakistan or abroad subject to right of defendant to cross-examine such witness---Application was dismissed.?

PLD 1988 Lah. 294 distinguished.

R.F. Virjee for Plaintiff.

Tasawar Ali Hashmi for Defendant.

P L D 2007 Karachi 110

Before Rahmat Hussain Jafferi, and Mrs. Yasmin Abbasey, JJ

AHUDHA MANLIKI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.521 of 2006, decided on 1st November, 2006.

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

----Ss. 6, 7, 8 & 9---Drug trafficking, smuggling and normal possession of drugs---Drug trafficking and smuggling from Pakistan to another country---Criteria and yardstick for examining the cases of normal possession or transportation of narcotic drugs, should be different from cases of trafficking and smuggling of narcotic drugs as in latter class of cases, it was difficult for prosecution to procure the evidence of the quality which was normally procured in former class of cases and further examine the facts, surrounding circumstances and evidence collected so far with a view to ascertain innovative method adopted by the trafficker or smuggler to take away the material.

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

---S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 51---Bail, refusal of---Accused being foreign national, possibility of absconding of accused, could not be ruled out and once he would leave the country through any illegal method his attendance could not be procured for his trial, even if his and his surety's bail bonds were cancelled and surety amount was recovered from the surety---Reasonable grounds existed for believing that accused was involved in the case---Case of accused, in circumstances, fell under prohibitory clause of S.51 of Control of Narcotic Substances Act, 1997---Accused was not entitled to concession of bail, in circumstances.

Raja Qureshi for Applicant.

Syed Ashfaq Hussain, Special Prosecutor ANF for Respondent.

P L D 2007 Karachi 113

Before Rahmat Hussain Jafferi, J

WAZIR and 4 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.129 of 1998, decided on 11th September, 2006.

Probation of Offenders Ordinance (XLV of 1960)---

----S. 5---Penal Code (XLV of 1860), Ss. 324, 337-A(i) & (ii)---Appreciation of evidence---Concept of punishment---Sending accused on probation---Medical Officer had fully supported prosecution case and corroborated evidence of witnesses under which accused had been assigned various specific roles of causing injuries to the witnesses--Counsel for accused could not point out any discrepancy in the oral evidence---Parties who were related to each other were residing within same compound and incident had taken place on a very minor affair and in a heat of passion and temper---No reason existed that prosecution witnesses had falsely involved accused in the case---Ocular testimony was confidence inspiring---Steps in circumstances, were to be taken towards the reformation of accused---One of the concepts of punishment was also reformation and in view of said basic principle of punishment, Probation of Offenders Ordinance, 1960 had been promulgated by which benefit of probation could be extended to the offenders---Key note of Probation of Offenders Ordinance, 1960 was reformation and rehabilitation---Offences in the present case, for which accused had been convicted did not come within the debaring provisions of S.5 of Probation of Offenders Ordinance, 1960---In view of present conditions of jail where offenders instead of reforming themselves, come out as hardened criminals---Accused, could be sent on probation so that they could reform themselves while remaining within the society; it was thus expedient in the interest of justice that while maintaining conviction and sentence, instead of sending accused at once to jail a probation order be passed---Accused were sent on probation for a period of 3 years, accordingly.

Javed Ahmed Qureshi for Appellants.

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

Date of hearing: 11th September, 2006.

P L D 2007 Karachi 116

Before Sabihuddin Ahmed, C.J., and Ali Sain Dino Metlo, J

IMDAD HUSSAIN---Petitioner

Versus

PROVINCE OF SINDH through Secretary to Government of Sindh, Karachi and 3 others---Respondents

Constitutional Petition No.D-24 of 2006, decided on 10th March, 2006.

Per Ali Sain Dino Metlo, J; Sabihuddin Ahmed, C.J. agreeing.

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

----Art. 9---Term "life"---Scope, import and applicability---Term "life" used in Art.9 of the Constitution is of very wide import and includes all those rights which are necessary for living a quality life befitting human dignity, as such the term "life" cannot be limited to mere vegetative or animal life.

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

----Arts. 9, 14, 18, 20, 37(c) & 199---Sindh Medical Colleges Act (V of 1987), S.3---Constitutional petition---Educational institution---Right of education---Vires of statutory rules---Candidate was given admission in medical college on Self Finance Basis---Authorities directed the candidate to furnish bank guarantee regarding college dues for five years---Plea raised by the candidate was that demand of such bank guarantee was unreasonable, harsh and discriminatory, which was in fact to help the rich at the cost of poor---Validity---Right to education was a fundamental right covered by Arts.9, 14, 18 and 20 read with 37(c) of the Constitution and, therefore, any unreasonable restraint, hindrance or condition on its exercise would be ultra vires the Constitution, irrespective of whether the same was imposed by an administrative or executive act, by some statutory rule or even by the statute itself---Condition of furnishing bank guarantee was unreasonable inasmuch as it was neither fair nor meant to achieve any useful purpose---Such condition placed the less opulent in disadvantageous position as compared to the more opulent; nor same was reasonable, in the sense that besides being unfair it served no useful purpose---High Court declared the condition of depositing of bank guarantee for five years' fee contained in prospectus to be both unreasonable and unconstitutional and of no legal effect---High Court restrained the authorities from giving effect to the condition of furnishing of bank guarantee---Constitutional petition was allowed in circumstances.

Per Sabihuddin Ahmed, C.J.--

Right of education is part of right to life guaranteed under Article 9 of the Constitution and, therefore, Section 3 of the Sindh Medical Colleges Act, 1987 cannot be so construed as to enable the Government to make a rule permitting deprivation of a guaranteed fundamental right under the Constitution and, therefore, the stipulation in question has to be treated as ultra vires the rule making power conferred by section 3 of the Act.

Muhammad Iqbal Khan Niazi v. Vice-Chancellor University of Punjab PLD 1979 SC 1; Ahmed Abdullah and 62 others v. Government of Punjab and 3 others PLD 2003 Lah. 752; Ms. Benazir Bhutto's case PLD 1988 SC 416; Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473; Shehla Zia v. WAPDA PLD 1994 SC 693; Sharaf Faridi v. Federation of Islamic Republic of Pakistan PLD 1989 Kar. 404; Government of Balochistan v. Azizullah Memon PLD 1993 SC 341; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 and Shaikh Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504 rel.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Statutory rules---Judicial review---Statutory rules can always be questioned and struck down on the ground of being unreasonable.

Saleh Muhammad v. Traffic Manager, Karachi Port Trust PLD 1961 (W.P.) Kar. 349; S.M. Sharif v. Federation of Pakistan PLD 1981 Lah. 74; Muzzafar and others v. Evacuee Trust Properties through Deputy Administrator 2002 CLC 1819 and Karachi Building Control Authority and 3 others v. Hashwani Sales and Services Ltd. and 3 others PLD 1993 SC 210 rel.

Per Sabihuddin Ahmed, C.J. agreeing with Ali Sain, Dino Metlo, J

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

----Arts. 8, 22 & 199---Sindh Medical Colleges Act (V of 1987), S.3---Constitutional petition---Right of education---Statutory rules framed by Government in exercise of powers conferred by the statute' andbye-laws or regulations' made by any other authority---Distinction---Statutory rules, per se could not be struck down on the grounds of unreasonableness---Principles.

A statutory rule made by the Government itself in exercise of powers conferred by statute as distinguished from a bye-law or a regulation made by any other authority could not be struck down on the grounds of unreasonableness per se. A validly made rule under S.3 of the Sindh Medical Colleges Act, 1987 would remain effective unless it is found to be repugnant to the Act itself. On the other hand, if regulations or bye-laws were to be made by any other subordinate authority they could always be struck down on the grounds of being unreasonableness.

Asif Ali Abdul Razzak Soomro for Petitioner.

Muhammad Qasim Mir Jat, A.A.-G. for Respondents Nos. 1 and 2.

Kamaluddin for Respondent No.3.

Khalid Anwar and Anwar Masnoor Khan (A.G.), Amicus Curiae.

Dates of hearing: 9th and 10th March, 2006.

P L D 2007 Karachi 123

Before Rahmat Hussain Jafferi, J

NIDOO alias NIZAMUDDIN and 4 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.118 of 1998, decided on 20th September, 2006.

(a) Probation of Offenders Ordinance (XLV of 1960)---

----S. 5---Penal Code (XLV of 1860), Ss.324, 337-A(ii) & 149---Appreciation of evidence---Sending accused on probation---Injured prosecution witness added name of accused A of causing hatchet injuries to him, but said fact had not been supported and corroborated by complainant---Case of accused A, in circumstances was distinguished from the case of other accused persons B & C---Both complainant and injured witness were unanimous that accused D instigated remaining accused on which two accused B & C caused hatchet injuries to injured---Said fact had been fully supported and corroborated by medical evidence---Trial Court found Lathi injuries allegedly caused by accused two co-accused D & E on the person of injured doubtful and acquitted said accused persons from the charge---Injuries caused by accused B & C on instigation of accused D, had been proved from the evidence of prosecution witnesses---Trial Court in circumstances had rightly convicted and sentenced them---Case of accused A being doubtful, he could not be convicted for said offence and he was entitled to be acquitted from charges---As no part of causing injuries to injured from the hands of accused E had been established, he was also liable to be acquitted from the charge---No case having been made out against accused A & E, impugned judgment of the Trial Court with respect to their involvement, was set aside---Accused B, C & D, being first offenders, their sentences were maintained, but they were sent on probation for a period of three years.

(b) Probation of Offenders Ordinance (XLV of 1960)---

----S. 5---Penal Code (XLV of 1860), S.324---Sending accused on probation---Concept of punishment---Appreciation of evidence---One of the concepts of punishment was to reform an offender so that after serving out sentence he should become a beneficial member of the society---Present state of affairs in the jails was such where a person once entered into it, then instead of coming out as a reformed person, he would come out as a hardened criminal---Basic and main idea of punishment was reformation, which apparently was not available in the jails---Keeping in view basic principle of punishment, Legislature had enacted Probation of Offenders Ordinance, 1960, with a view that instead of sentencing offenders at once after proving them guilty, they should be sent on probation keeping in view the offence and its punishment and for that purpose S.5 of Probation of Offenders Ordinance, 1960 had provided certain categories of offences for which a convict could not be sent on probation and for offence which carried punishment of imprisonment for life or death---Accused in the present case had been convicted for offence punishable under S.324, P.P.C. and other minor offences, which did not carry punishment of imprisonment for life and death---Accused also did not come within the bar of offences specified in it---Case in circumstances was fit where question of sending accused on probation, could be considered.

Khawand Bux Mahar for Appellants.

Habibur Rehman Shaikh, A.A.-G. for the State.

Date of hearing: 8th September, 2006.

P L D 2007 Karachi 127

Before Muhammad Mujeebullah Siddiqui, J

MUMTAZ ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.S-503/2006 (Hyd.) and 916/2006 (Kar.), decided on 9th October, 2006.

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

----S. 497---Penal Code (XLV of 1860), Ss.324, 430, 425 & 34---Bail, grant of---Abscondence of accused for 8 years---Categories of abscondence---Scope---Attempt to commit mischief---Effect---Allegation against accused/petitioner was that he along .with co-accused (petitioner's real brothers) wanted to divert flow of water and complainant resisted them whereupon accused persons fired at complainant with .their fire-arms, with intention to commit his murder but fires remained-ineffective-Trial Court granted bail before arrest to all accused persons---On 12-12-1998 when accused/petitioner remained absent from Court during case proceedings, he was declared absconder---Accused/petitioner was re-arrested on 22-4-2006---Accused filed his post-arrest bail before Trial Court/Assistant Sessions Judge which was dismissed on ground that accused had misused the concession of bail and remained absconder for a long time and also that offence committed by accused fell under prohibitory clause of S.497, Cr.P.C.---Accused contended that he had absconded because during trial complainant had lodged three F.I.Rs. against him in a span of four months---Validity---Two categories of abscondence existed; firstly, in which absconder destroyed prosecution case/evidence, and secondly; in which there was no such effect but accused on account of certain circumstances or to save himself from harassment resorted to abscondence---In first category, abscondence was to adversely affect the grant of bail; and in second category, abscondence was to be considered in the light of facts and circumstances prevailing therein---Accused, in rare cases, might be released on bail despite his abscondence, for instance, when accused was a woman, a child or a sick and infirm person or when he otherwise became entitled to bail as of right under subsection (2) of S.497, Cr.P.C. or his abscondence was satisfactorily explained---Abscondence disentitled a person from grant of bail but rule was not absolute and there were exceptions, one of which was that if accused was entitled to grant of bail as a matter of right then it was not to be refused---Rule of refusal of bail on account of abscondence was not a rule of law but a rule of prudence, discipline and propriety---Grant or refusal of bail was to be considered in the light of facts and circumstances of each case, depending on merits---Under S.425, P.P.C. the condition precedent for causing mischief was to cause injury to such property by destruction or change or by diminishing its value or utility---In the present case, there was only allegation against accused that he attempted to divert the water course---No allegation existed that any injury was caused to property/drain through which water was flowing---Accused had already remained in jail for a period of more than 5 months and punishment provided under S.430, P.P.C. was 5 years or tine or both---Contention of accused that three F.I.Rs. were registered against him in a span of four months and that he apprehended further lodging of F.I.Rs., had substance---Accused was entitled to grant of bail in circumstances-Bail 'was granted to accused.

Jan Muhammad v. the State 1978 SCMR 287; Rais Khan v. Said Hanif 1979 SCMR 90; Ibrahim v. Hayat Gul 1985 SCMR 382 and Shakeel Ahmad v. The State 2000 PCr.LJ 116 rel.

Dosoo v. The State 2003 PCr.LJ 933; Abdul Wahab y. The State 2003 YLR 1915 and Sher Ali alias Sher v. The State 1998 SCMR 190 ref.

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

----Ss. 497, 6, 9, 31(3), 193(2) & 408---Bail after arrest---Procedure---Bail after arrest dismissed by Assistant Sessions Judge---Bail application was filed before High Court---Scope---Bail after arrest application filed by accused/petitioner was dismissed by Trial Court/Assistant Sessions Judge---Accused filed post-arrest bail petition before High Court which was opposed by complainant on grounds; that bail application of accused was rejected by Trial Court presided over by Assistant Sessions Judge and where Assistant Sessions Judge awarded sentence up to 4 years then appeal was to lie before Sessions Judge; that co-accused in the present case were sentenced to 3 years who had filed appeal before Sessions Court; that on the same analogy bail application was to be submitted before Sessions Court instead of High Court---Validity---High Court had jurisdiction to try any case which was within competence of subordinate Courts, if the circumstances so required---Facts and circumstances of the present case provided that bail application was to be heard by High Court without going into technicalities for the reason that it was not to amount to wrong exercise of jurisdiction or commission of any illegality or irregularity causing miscarriage of justice.

(c) Criminal trial--

---Administration of justice---Procedural technicalities were not to be stretched to the extent which might cause miscarriage of justice---Procedural laws were meant for advancing interest of justice and hypertechnicalities were not to be acted upon in a manner which might thwart dispensation of justice.

(d) Precedent---

---Criminal trial---Judgments in criminal cases were not to be taken as precedent in all cases except where a principle of law was enunciated or the facts of two cases were identical, which was seldom in criminal cases.

M.M. Aqil Awan for Applicant.

Hyder Shaikh for Respondent.

Shahadat Awan for the Complainant.

P L D 2007 Karachi 139

Before Sabihuddin Ahmed, C. J., Muhammad Mujeebullah Siddiqui and Mrs. Qaiser Iqbal, JJ

SALEEM RAZA and 31 others---Petitioners

Versus

THE STATE---Respondent

Constitutional Petition No.D-1258 of 2006, decided on 21st November, 2006.

Per Muhammad Mujeebullah Siddiqui, J; Sabihuddin Ahmed, C.J. and Mrs. Qaiser Iqbal, J., agreeing.

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

----Art.25---Phrase "equal protection of law"---Applicability---All persons subjected to law should be treated alike under all circumstances and conditions both in privileges conferred and in liabilities imposed---Equality must be amongst equals and has to be between persons who are placed in same set of circumstances---Guarantee of equal protection of law requires that all persons have to be treated alike, under like circumstances and conditions--Phrase "equal protection of law" as envisaged by Art.25 of the Constitution means that no person or class of persons would be denied the same protection of law which is enjoyed by persons or other class of persons in like circumstances in respect of their life, liberty, property or pursuit of happiness---Persons similarly situated or in similar circumstances are to be treated in the same manner---In application of such principles, it has always been recognized that classification of persons or things is in no way repugnant to the equality doctrine, provided the classification is not arbitrary or capricious, is natural and reasonable and bears a fair and substantial relation to the object of legislation---Two sets of similar circumstances should not have different legal effects, unless there is a difference of circumstances and difference between the two sets is material enough to support discrimination.

Waris Meah v. The, State PLD 1957 SC 157; Government of Balochistan v. Azizullah Memon, PLD 1993 SC 341; Jibendra Kishore Achharyya Choudhry and others v. Province of East Pakistan PLD 1957 SC 9; Bazal Ahmed Ayyubi v. The West Pakistan Province PLD 1957 Lah. 388; Zain Noorani v. Secretary of the National Assembly of Pakistan PLD 1957 Kar. 1; Malik M. Usman v. State PLD 1965 Lah. 229; East and West Steamship v. Pakistan PLD 1958 SC 41; F.B. Ali's case PLD 1957 SC 506; Fauji Foundation's case PLD 1983 SC 457; I.A. Sherwani's case 1991 SCMR 1041; Abdul Wali Khan's case PLD 1976 SC 57; Aziz Begum's case PLD 1999 SC 899; Shirin Munk and others v. Government of Punjab PLD 1990 SC 295 and Inam-ur-Rehman v. Federation of Pakistan (sic) rel.

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

----S.10 (d)---Constitution of Pakistan (1973), Art.12---Protection against punishment-Remissions-Denial-Effect-Denial of remission to convicts under National Accountability Ordinance, 1999 by virtue of S.10(d) of the said Ordinance, amounts to enhancement of sentence and thus is violative of provisions contained in fundamental rights guaranteed under Art.12 of the Constitution.

Farid Khan v. The State PLD 1965 (W.P.) Pesh. 31 fol.

(c) Interpretation of statutes---

----Constitutionality of an enactment---Presumption---Principles---Presumption is always there in favour of constitutionality of an enactment---Such principle is connected with another principle that presumption may be rebutted in cases where it appears on the face of statute, that there is no classification at all and there is no difference peculiar to an individual or class and yet law hits only a particular individual or class.

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

----Art. 25---Reasonable classification---Determination---While consider­ing whether there is any reasonable classification, it is imperative to examine if classification is based on some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained and the classification is not arbitrary and without any substantial distinction.

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

----S. 18(g)---Criminal Procedure Code (V of 1898), Ss.170 & 204---Referring a case to court for trial---Powers under S.18 (g) of National Accountability Ordinance, 1999, and Ss.170 and 204, Cr.P.C.---Object and comparison---Provisions of S.18 (g) of National Accountability Ordinance, 1999, and Ss.170 and 204, Cr.P.C. are aimed to provide protection to citizens from malicious and frivolous prosecution and to keep check on arbitrary prosecution of citizens.

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

----S. 18(g)---Criminal Procedure Code (V of 1898), Ss.170 & 204---Referring a case to court for trial---Powers under S.18 (g) of National Accountability Ordinance, 1999, and Ss.170 and 204, Cr.P.C.---Distinction---No much difference exists in the provision of S.18 (g) of National Accountability Ordinance, 1999, and Ss.170 and 204, Cr.P.C., with the variation that there is no choice of forum in respect of cases and accused persons who are to be tried by virtue of the provisions under Ss.170 and 204, Cr.P.C., while on account of the fact that offences triable under National Accountability Ordinance, 1999, are mostly triable by other forums also---Power has been conferred on Chairman NAB or an officer authorized by him to decide whether or not the case is to be referred to an Accountability Court---If Chairman NAB or officer authorized by him decides that reference is not be made to Accountability Court then accused persons alleged to have committed offences are to be tried by forums other than Accountability Court.

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

----S.18(g)---Filing of reference---Conditions precedent---Decision of Chairman NAB---Scope---Two conditions are to be satisfied under S.18(g) of National Accountability Ordinance, 1999, first that there is sufficient material to justify filing of reference and second the Chairman NAB or officer authorized by him decides that it would be proper and just to file reference, then only matter can be referred to Accountability Court---So far second condition of taking decision by Chairman NAB or officer authorized by him is concerned, there are no guidelines for exercising of jurisdiction by him---In such case dictum laid down by Supreme Court in case titled Waris Meah v. The State, reported as PLD 1957 SC 157, is fully applicable.

Waris Meah v. The PLD 1957 SC 157 fol.

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

----S. 9(a)---Prevention of Corruption Act (II of 1947), S.5---Terms "corruption and corrupt practices" and "criminal misconduct"---Comparison---Not much difference exists in the definition of "criminal misconduct" contained in S.5 of Prevention of Corruption Act, 1947 and "corruption and corrupt practices" defined in S.9 of National Accountability Ordinance, 1999, however scope of S.9 of National Accountability Ordinance, 1999, is wider than S.5 of Prevention of Corruption Act, 1947---Nonetheless, provisions pertaining to illegal gratification etc. by public servants in both the provisions are similar to a large extent---While extending scope of corruption and corrupt practices envisaged under S.9 of National Accountability Ordinance, 1999, several offences punishable under Penal Code, 1860, with certain modifications have been added---Likewise several offences punishable under Penal Code, 1860, and triable by the Courts specified in Second Schedule to Criminal Procedure Code, 1898, have been made triable by Accountability Court, in some cases, in respect of public servant and in other cases by any person, public servant or a common citizen.

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

---S. 14---Prevention of Corruption Act (II of 1947), S.5(3)---Presumption---Scope---Provisions pertaining to presumption contained in National Accountability Ordinance, 1999, are similar to provisions contained in Prevention of Corruption Act, 1947.

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

---Ss. 9(a) & 10(d)---Prevention of Corruption Act (II of 1947), S.5---Penal Code (XLV of 1860), Ss.218, 219, 468, 471, 472 & 477-A---Pakistan Criminal Law Amendment Act (XL of 1958), S.5---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), S.4---Constitution of Pakistan (1973), Art. 25---Reasonable classification---Doctrine of intelligible differentia---Applicability---Petitioners being convicts under National Accountability Ordinance, 1999 were denied remissions of their sentence---Contention of authorities was that petitioners belonged to different class of accused---Validity---If for the commission of same offences, accused persons were convicted by Courts other than Accountability Court, they were entitled to remission, while convicts under National Accountability Ordinance, 1999 for commission of same offences under similar set of circumstances would be deprived of remission on account of 5,10(d) of National Accountability Ordinance, 1999---Public servants indulged in corruption and corrupt practices or criminal misconduct belonged to the same class---Merely on the basis of change of forum of trial or change of term defining offences, accused could not be termed as belonging to different class---As in respect of public servants found involved in corruption or criminal misconduct, offences punishable under Ss.218 and 219, P.P.C. which are ordinarily triable by the Courts specified in Second Schedule to Criminal Procedure Code, 1898, are also triable by Accountability Court---Punishment and nature of offences are still same---Similarly offences triable under Ss.469, 471, 472 and 477-A, P.P.C. are triable ordinarily by Court specified in Second Schedule to Criminal Procedure Code, 1898, in appropriate cases by Special Courts under the Offences in Respect of Banks (Special Courts) Ordinance, 1984, and Special Judges appointed under Pakistan Criminal Law Amendment Act, 1958, as well as by Accountability Courts by virtue of S.10 (b) of National Accountability Ordinance, 1999---Nature of offences are same and punishments provided are also the same---Special rules of evidence contained in National Accountability Ordinance, 1999, Prevention of Corruption Act, 1947, Criminal Law Amendment Act, 1958 and Offences in Respect of Banks (Special Courts) Ordinance, 1984, are also similar---Merely on account of change of forum one set of convicts under the same class not convicted by Accountability Court is entitled to remission and thus would serve out their sentence, much earlier than the other set of convicts in the same category or class convicted by Accountability Court---No intelligible differentia exists distinguishing one group of persons from other group of persons, and thus no reasonable classification permissible for such purpose---Merely on the basis of change of forum, classification cannot be held to be permissible as reasonable because such classification would not be based on any real and substantial distinction.

(k) Constitution of Pakistan (1973)---

----Art. 25---Reasonable classification---Principle of intelligible differentia---Applicability---Classification of persons or a class which is permissible and is not hit by the mandate of Art.25 of the Constitution, must be founded on reasonable distinction or reasonable basis, based on intelligible differentia and must not be arbitrary---Test for permissible classification is that differentia must have rational nexus to the object sought to be achieved by such classification.

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

----Art. 25---Equality of citizens---Scope---Where legislature lays down law and indicates the persons or things to whom its provisions are intended to apply and leaves the application of law to an administrative authority while indicating policy and purpose of law and laying down standards or norms for guidance of designated authority in exercise of its powers, no question of violation of Art. 25 of the Constitution arises---In case, however, the designated authority abuses its powers or transgresses the limit when exercising the power, the actual order of such authority and not the State would be condemned as unconstitutional.

(m) Constitution of Pakistan (1973)---

----Arts.8 & 25---Fundamental rights---Inconsistency of laws---Discrimination---Scope--Where the State itself does not make any classification of persons or things and leaves it to the discretion of the Government or any authority to select and classify persons or things, without laying down any principle or policy to guide the government or authority in exercise of discretion, or a law is made by the State, whereby certain persons or group of persons are discriminated without any rational and reasonable classification and leaving the other groups of the same class, the denial of benefit, privilege or right to one group of persons and allowing same to the other group of persons would certainly be a discrimination between the persons or things similarly situated and consequently would be void on account of the provisions contained in Art. 25 (1) of the Constitution read with Art.8 thereof.

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

----Ss. 12, 23, 25, 25-A, 31-D & Preamble---Keeping of accused in custody---Principles---Object and purpose of National Accountability Ordinance, 1999, is not to keep accused persons in custody for longer periods but main purpose is to recover outstanding amounts and State money misappropriated by persons prosecuted---Entire scheme of plea bargain, power to freeze property, holding transfer of property void, voluntary return, constitution of Conciliation Committees for payment of loans, reference of cases to Governor State Bank and prior approval of State Bank are directed towards not to keep accused persons in custody for a longer period.

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

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

----Ss.9(a) & 10(d)---Anti-Terrorism Act (XXVII of 1997), S.21-F---Remissions---Denial---Petitioners being convicts under National Accountability Ordinance, 1999 were denied remissions of their sentence---Contention of authorities was that a similar provision was also available in Anti-Terrorism Act, 1997---Validity---Merely because a similar provision was contained in Anti-Terrorism Act, 1997, it would not provide any justification for upholding the provision of S.10 (d) of National Accountability. Ordinance, 1999---Object of enacting Anti-Terrorism Act, 1997, was entirely different from the object sought to be achieved through the enactment of National Accountability Ordinance, 1999---Provision in every law was to be construed on its own merits with reference to the particular law under consideration.

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

----S. 401---Pakistan Prison Rules, 1978, R.218---Penal Code (XLV of 1860), Chap. XVI [Ss.299 to 338-H]---Constitution' of Pakistan (1973), Art.25---Remission---Types---Grant and denial--Principles-Classification of convicts---Remissions under Pakistan Prison Rules, 1978, are of two kinds; ordinary and special; it is provided in R.218 of Pakistan Prison Rules, 1978, that special remission is awarded by. Government on occasions of public rejoicing and is granted unconditionally under S.401(1), Cr.P.C. and is not governed by Pakistan

Prison Rules, 1978 and under the proviso to S.401, Cr.P.C. there is no total denial of remission---Denial is only in respect of remission granted by Provincial Government under S.401, Cr.P.C. in respect of sentences awarded under Chapter XVI of Penal Code, 1860, and in respect of a class of criminals who committed offence in the name or on the pretext of Kara Kari, Siah Kari or similar other customs and practices; in addition to the fact that under proviso to S.401, Cr.P.C, there is no total denial of remission, a reasonable classification based on intelligible differentia is available.

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

----Ss. 9(a) & 10(d)---Constitution of Pakistan (1973), Arts. 8(1), 12, 25 & 199---Constitutional petition---Remission, grant of---Vires of S.10 (d) of National Accountability Ordinance, 1999---Fundamental rights---Protection against confinement---Reasonable classification---Forum of trial---Petitioners being convicts under National Accountability Ordinance, 1999 were denied remission of their sentence---Plea raised by petitioners was that provision of S.10(d) of National Accountability Ordinance, 1999, was ultra vires the Constitution---Validity---Denial of remission to said convicts had the effect of enhancing the punishment awarded to them---Such denial was discriminatory as it was not based on any reasonable and rational classification and was arbitrary in nature and was merely based on the basis of forum of trial---Mere forum of trial was not a reasonable and rational classification based on intelligible differentia---Denial of remission to such convicts under S.10(d) of National Accountability Ordinance, 1999, has no nexus with the object of legislation and consequently it was violative of and repugnant to the provisions contained in Arts.12 and 25 of the Constitution---Such provision of law was not permissible and could not be saved being patently violative of fundamental right guaranteed in the Constitution--Provision of S.10(d) of National Accountability Ordinance, 1999, was ultra vires the Constitution and was liable to be struck down being void under Art.8(1) of the Constitution on account of being inconsistent with the right conferred by the Constitution---All persons convicted under National Accountability Ordinance, 1999, were entitled for such remissions in the same manner as persons convicted under other ordinary and special laws---Constitutional petition was allowed in circumstances.

The State through National Accountability Bureau v. Shaikh Abdul Sattar Lasi Criminal Petition No.59-Q of 2005; Dr. Azhar Atta Malik v. Chairman NAB PLJ 2005 Cr. Cases Lahore) 354; Farid Khan v. The State PLD 1965 (W.P.) Pesh. 31; Waris Miah v. The State PLD 1957 SC 157 and Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 rel.

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

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

----S. 18 & Preamble---Constitution of Pakistan (1973), Art.25---Reasonable classification---Keeping accused in custody---Petitioners being convicts under National Accountability Ordinance, 1999 were denied remission of sentences awarded to them---Plea raised by authorities was that reasonable classification of accused was available in S.18 of National Accountability Ordinance, 1999---Validity---Reasonable classification could not be effected through conferment of unbridled power under S.18 of National Accountability Ordinance, 1999---Dominant object of statute was to recover ill-gotten wealth rather than make people rot in jails---Petitioners were entitled to remissions in circumstances.

Rauf Bakhsh Kadri v. The State SBLR 2003 Sindh 163 ref.

Petitioners in person.

Shafaat Nabi Sherwani, DPGA and Akhtar Ali Mehmood, D.A.G. for Respondents.

Messrs Abdul Maroof, MG (Legal) Sindh, Nusrat Hassan Mangan, Superintendent Central Prison Karachi and Imdad Mirza, Assistant Superintendent Central Prison, Karachi.

Date of hearing: 6th November, 2006.

P L D 2007 Karachi 174

Before Amir Hani Muslim, J

MANGER through Legal Heirs---Petitioner

Versus

HASHIM through Legal Heirs---Respondent

Civil Revision No.44 of 1998, decided on 17th October, 2007.

Succession Act (XXXIX of 1925)---

----S. 278---Civil Procedure Code (V of 1908), S.11---Suit for administration of property---Limitation---Res judicata, principles of---Applicability---No limitation prescribed for filing administration suit---Neither principle of res judicata nor limitation, would apply to suit for administration of property---Unless the properties were distributed between the hems in accordance with Sharia, no co-owner could be deprived of inheriting his share of properties on those technicalities---No period of limitation was prescribed for filing an administration suit---Possession of properties by one of the co-owners would not defeat the right of other co-owners, who in law, could inherit their share in land in question---Possession of land being in the nature of trust, co-owner would not acquire the status of owner by lapse of time---Co-owner in physical possession of the property could not acquire exclusive ownership on the ground of limitation as for all times he would remain trustee of suit property---Question of limitation, either for the purpose of possession or mutations in circumstances would not come in the way to seek the relief---Cause of riling present suit was distinct besides the relief sought in an earlier suit---Cause in earlier suit having distinct scope, same would not attract bar contained in S.11, C.P.C.

S. Zahir Hassan for Petitioner.

Abdul Fattah Malik for Respondent.

Date of hearing: 17th October, 2006.

P L D 2007 Karachi 178

Before Muhammad Moosa K. Leghari, J

SHAHID MEHMOOD---Petitioner

Versus

Mst. NASREEN MASOOD and 4 others---Respondents

Constitutional Petitions Nos. 115 and 116 of 2005, decided on 11th May, 2006.

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

----Ss. 15(2), 16(1)(2) & 21-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant---Non-compliance of tentative rent order---Tenant was directed to deposit arrears of rent within specified period during pendency of appeal against ejectment order, which he failed---Striking off defence of tenant---Validity---Provisions of S.16(2) of Sindh Rented Premises Ordinance, 1979 had provided that where tenant had failed to deposit arrears of rent or pay monthly rent under subsection (1) of S.16 of the Ordinance, his defence would be struck off and landlord would be put into possession of premises---Impugned order whereby defence of tenant was struck off for non-compliance of mandatory tentative rent order, was quite just and proper---Appellate Court having been vested with all the powers of Rent Controller, impugned order was legally valid and could not be interfered with in exercise of constitutional jurisdiction.

Lt. Commdr. (Retd.) Syed Askari Hasan v. Mst. Zubeda Khanum 1984 SCMR 542 rel.

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

----Art. 199---Constitutional jurisdiction---Scope---Jurisdiction conferred upon High Court under Art.199 of the Constitution had to be exercised in the aid of justice and not for perpetuation of ill-gotton gains.

Abdul Haq Indhar v. Province of Sindh 2000 SCMR 907 and Nawab Sayed Ranunaq Ali's case PLD 1973 SC 230 ref.

Attaullah Khan for Petitioner.

Munir-ur-Rehman for Respondents.

P L D 2007 Karachi 182

Before Zia Perwaz, J

FAROOQUE AHMED---Applicant

Versus

RAZA MUHAMMAD---Respondent

Civil Revision No.136 of 2006, decided on 22nd December, 2006.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.2 & 3---Limitation Act (IX of 1908), Art.159---Suit for recovery of amount on basis of negotiable instrument---Application to appear and defend suit---Procedure---Defendant was not entitled to appear or defend suit as a matter of course, unless he obtained leave from the court so as to appear and defend suit---In default of his obtaining such leave for his appearance and defend in pursuance thereof, allegations in the plaint would be deemed to be admitted and plaintiff would be entitled to decree--Advantage in adopting procedure, prescribed by O.XXXVII, C.P.C., was that defendant was not as a matter of right entitled to. appear or defend, but if he desired to be heard, he must apply to the Court for permission to appear and defend suit within ten days of service of summons as envisaged by Article 159 of Limitation Act, 1908---Till such time as leave to defend was granted, defendants could not even file interlocutory application in order to agitate the point of jurisdiction nor to question the transactions between the parties or to challenge validity and legal effect of promissory note and issues could be decided at the trial after recording evidence after leave to defend was granted to the defendants on disclosing a sufficient cause.

Naziran Begum v. Saleh Muhammad 2002 SCMR 37 and Messrs United Distributors Pakistan Limited v. Ahmad Zarie Services and another 1997 MLD 1835 rel.

Ghulam Shabir Shar for Applicant.

M.B. Khagaija for Respondent.

P L D 2007 Karachi 184

Before Rahmat Hussain Jafferi and Mrs. Yasmin Abbasi, JJ

THE STATE through Advocate-General, Sindh---Appellant

Versus

MUNIR AHMED and 2 others---Respondents

Criminal Acquittal Appeal No.293 of 1993, decided on 22nd November, 2006.

Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Arts. 27, 3 & 4---Criminal Procedure Code (V of 1898), Ss.249-A & 417---Appeal against acquittal---Jurisdiction of Federal Shariat Court---Scope---Appellant had challenged the judgment of acquittal passed by Trial Court by invoking provision of S.249-A; Cr.P.C. in case for offences punishable under Arts. 3 & 4 of Prohibition (Enforcement of Hadd) Order, 1979---Question was raised as to whether High Court or Federal Shariat Court had jurisdiction to hear the appeal against acquittal---Held, word Court' appearing in S.417, Cr.P.C. would mean "the Federal Shariat Court" as per interpretation given to wordsmutatis mutandis' mentioned in Art.27 of Prohibition (Enforcement of Hadd) Order, 1979---High Court had no jurisdiction to hear appeal against acquittal passed by Trial Court in case of Prohibition (Enforcement of Hadd) Order, 1979---Appeal was returned to appellant to be filed before Federal Shariat Court.

Muhammad Sharif v. State PLD 1999 SC 1063 rel.

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

Muhammad Shahid Qadeer for Respondent No.1.

Respondents Nos. 2 and 3 in person.

Date of hearing: 17th November, 2006.

P L D 2007 Karachi 186

Before Sarmad Jalal Osmany and Ali Sain Dino Metlo, JJ

RAZA-UR-REHMAN---Petitioner

Versus

GOVERNMENT OF SINDH through Secretary Home Department and 2 others---Respondents

Constitution Petitions Nos.D-163 of 2004, D-242 of 2005 and D-992 of 2006, decided on 4th January, 2007.

(a) Interpretation of statutes---

----Retrospective operation of statute---Past and closed transactions---No retrospective operation could be given to the statute so as to impair an existing right or obligation, unless same was Manifest from the very wording of statute itself or could be gathered by necessary intendment---Such rule, however, would not apply to procedural laws since no person had a vested right in the course of procedure, unless same could be demonstrated and clearly spelled out from the statute itself---Statute which impaired vested rights acquired through past and closed transactions could not be held to be retrospective in operation only by virtue of mere implication.

Asif Ali Zardari v. The State 1993 PCr.LJ 781; Pakistan Steel Mills Corp. v. Muhammad Azam Katpar 2002 SCMR 1023; CIT v. EFU Insurance Company PLD 1982 SC 247 and Hassan and others v. Fancy Foundation PLD 1995 SC 1 ref.

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

---Ss. 10(d) & 15---Constitution of Pakistan (1973), Arts.45 & 199---Criminal Procedure Code (V of 1898), S.401---Constitutional petition---Remissions---Types---Claim for---Section 10(d) of National Accountability Ordinance, 1999 which had prohibited remissions to those persons convicted under National Accountability Ordinance, 1999 being not retrospective in nature, could not take away vested rights of petitioners who Were convicted prior to addition of section 10(d) in the Ordinance, to earn remission---Remissions were of two types, general and special, the former of which (general) were earned by convict under the Jail Rules, whereas the latter (special) consisted of remissions granted by the President of Pakistan under Art.45 of the Constitution and by the Provincial Government under S.401, Cr.P.C.---Remissions earned under the Jail Rules were as of right---Section 10(d), National Accountability Ordinance, 1999 being not 'retrospective in nature, remissions earned by persons convicted under National Accountability Ordinance, 1999 prior to the imposition of S.10(d) of the Ordinance, were to be given to them under the Jail Rules---Remissions given by the Provincial Government under S.401, Cr.P.C., were normally given on festive occasions like, Eid-e-Meladun Nabi, Independence Day, etc. and were not as of right and could not be claimed as such by the convict---Denial of remission to convicts under National Accountability Ordinance, 1999 and allowing same in respect of those convicted under the Anti-Corruption Laws by Provincial Government, would be discriminatory---Petitioner would be entitled to those remissions which had been granted by the Provincial Government under S.401, Cr.P.C. to other persons---Power of the President of Pakistan under Art.45 of the Constitution to grant or withhold remissions, was not subject to judicial review---Inspector-General Prisons and Jail Authorities failed to grant remission during some years to all convicts and in some years to those convicts under the National Accountability Ordinance, 1999 which policy could not be endorsed at all under the law--Where Inspector-General Prisons and the Superintendent of Jail, had denied remissions to ordinary convicts as earned by them under the Prison Rules, same could not be upheld; similarly denial of remissions due to petitioners and convicts under National Accountability Ordinance, 1999 who were convicted prior to 22-11-2002, when S.10(d) was added in National Accountability Ordinance, 1999 would be an exercise without any legal sanction as S.10(d) would not apply retrospectively.

Shahzad Abid v. State 2003 PCr.LJ 661; Qaim Khan and 4 others v. State 2002 MLD 715; Bhai Khan v. State PLD 1992 SC 14; Abdul Malik v. The State PLD 2006 SC 365; Hakim Khan v. Government of Pakistan PLD 1992 SC 595; Maru Ram v. Union of India AIR 1980 SC 2147; Pakistan Steel Mills Corporation v. Muhammad Azam Katpar 2002 SCMR 1023; Haji Abdul Ali v. Haji Bismillah PLD 2005 SC 163 and Muhammad Arif v. Superintendent Central Jail Lahore and 2 others PLD 2006 Lahore 561 ref.

Ghulam Sarwar Chandio for Petitioner (in C.P.No.992 of 2006) Faisal Siddiqui for Petitioner (in C.P.No-163 of 2005).

Aamir Mansoob Qureshi for Petitioner in (C.P. No.D-242 of 2005).

Shaffat Nabi K. Sherwani, DPG NAB.

Habib Ahmed, A.A.-G. along with Abdul Marooq, AIG (Legal) and Mirza Imdad ASJ.

Dates of hearing: 4th, 10th 30th August, 21st September, and 17th November, 2006.

P L D 2007 Karachi 194

Before Rahmat Hussain Jafferi and Mrs. Yasmin Abbasy, JJ

Begum SALMA AHMED---Petitioner

Versus

THE STATE through Chairman, Accountability Bureau and another---Respondents

Constitutional Petition No.D-1798 and C.M.A. No.7301 of 2006, decided on 6th December, 2006.

Criminal Procedure Code (V of 1898)---

----S. 540---National Accountability Ordinance (XVIII of 1999), S.10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Production of additional evidence---Reference against petitioner for offence punishable under S.10 of National Accountability Ordinance, 1999---Case proceeded and last witness, the Investigating Officer, was examined and after that prosecution closed its side---Twenty days after close of evidence, Special Prosecutor NAB filed application under S.540, Cr.P.C. for examining Deputy Director NAB to produce a letter---Said application was objected to by petitioner contending. that name of witness sought to be examined and document/letter sought to be produced, was not mentioned in the Reference or investigation papers; that prosecution could not be allowed to fill the lacuna, which had emerged after cross-examination of Investigating Officer---Validity---Name of witness and document purported to be produced, though were not mentioned in the Reference or in the list of documents, but necessity to examine witness and production of document/letter arose when Investigating Officer was cross-examined---Prosecution, in circumstances was justified in moving application to bring official document on record through witness mentioned in application filed under S.540, Cr.P.C.---Impugned order whereby application for production of evidence was accepted for just decision of the case, did not suffer from any illegality or irregularity and thus did not require any interference.

1987 SCMR 886; PLD 1991 Pesh. 143; 1992 SCMR 140; 2000 PCr.LJ 372; 2003 PCr.LJ 1778 and PLD 1970 Lahore 1431 ref.

Farooque H. Naek for Petitioner.

Shafaat Nabi Khan Sherwani DPGA for the State.

P L D 2007 Karachi 197

Before Sabihuddin Ahmed, C.J. and Muhammad Mujeebullah Siddiqui, J

MUHAMMAD NADIR KHAN and 4 others---Petitioners

Versus

GOVERNMENT OF SINDH through DCO Sanghar and 13 others---Respondents

Revision Application No.1 of 2006, decided on 19th December, 2006.

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

----S. 4---Civil Procedure Code (V of 1908), O. VII, R. 11---Inheritance---Rejection of plaint---Claim of grandson of propositus (plaintiff)---Propositus died in year 1960, while his son died in year 1940---Proprietary rights conferred by Rehabilitation Department on propositus in evacuee suit-land were finally transferred to him on 23-12-1996---Mutation excluding plaintiff from inheritance was attested in year 1997---Decision of Shariat Court declaring S.4 of Muslim Family Laws Ordinance, 1961 to be repugnant to Injunctions of Islam was subject of appeal pending before Supreme Court---Rejection of plaint by Trial Court on ground of such repeal of S.4 of Muslim Family Laws Ordinance, 1961---Appellate Court on basis of judgment of Supreme Court PLD 2003 SC 475 set aside order of Trial Court and remanded case for its decision on merits---Validity---Supreme Court in said judgment had observed that grandson could inherit share of his predeceased father from his grandfather---Not possible to say at such stage that plaintiff had no cause of action at all for examination in a full-fledged trial---If cause of action was to be on only legal issues, even then plaint should not have been rejected under O. VII, R.11, C.P.C.-Parties would be at liberty to raise questions of fact and law as deemed fit by them, which would be decided by Trial Court after framing issues and recording evidence---High Court dismissed revision petition.

Yousaf Abbas v. Asmat Mustafa PLD 1968 Kar. 480; Ibrahim v. Nehmat Bi PLD 1988 Lah. 186; Sardar v. Nehmat Bi 1992 SCMR 82; Nazir Ahmed v. Abdullah 1997 SCMR 81; Muhammad Murad v. Allah Bux 2006 MLD 286 and Shah Alam v. Zafar Iqbal 1986 Law Notes (Lah.) 1176 ref.

Fazeelat Jan v. Sikandar PLD 2003 SC 475 and Manzoor Ahmed v. Abdul Khaliq 1989 SCMR 1329(2) rel.

(b) Islamic Law---

----Succession, opening of---Essential conditions---Deferment of opening of succession---Conditions---Succession normally opens immediately at the time of death of propositus, but such rule is not absolute---Exceptions to such rule---Three conditions must co-exist for opening of succession: propositus, estate left by propositus and successors/heirs---Opening of succession would defer on account of non-fulfillment of requirements of one of such conditions---Succession opens in respect of estate and not in respect of some property in which propositus at the time of his death had merely certain rights, but did not acquire/hold/possess ownership rights---Such property would become subject of succession on fulfillment of conditions of acquiring ownership/proprietary rights---When two such conditions, one death of propositus and other existence of heirs at relevant time are satisfied, but third condition of leaving of estate by propositus (subject matter of succession)' is lacking, then succession would not open until and unless such third condition was satisfied---Child in womb would be included in heirs---Concept of deferring succession even in case of estate held by propositus is not alien to Islamic Law---Principles.

Yousaf Abbas v. Mst. Asmat Mustara PLD 1968 Kar. 480; Sakhi Muhammad v. Ahmed Khan 1980 CLC 1006; Ibrahim v. Nehmat Bi PLD 1988 Lah. 186; Sardar v. Nehmat Bi 1992 SCMR 82; Nazir Ahmed v. Abdullah 1997 SCMR 281; Muhammad Murad v. Allah Bux 2006 MLD 286; Shah Alain v.Zafar Igbal 1986 Law Notes (Lah.) 1176; Aimnul Hadaya, Urdu Translation of Hidaya by Allama Moulana Syed Amir Ali, Vol.4, P.869; Fatawah Usmani by Muhammad Mazharul Haq Ansari published by Quanuani Qutab Khana, Katcheri Road, Lahore; Urdu Dairia Maarifi Islamia, published by University of Punjab in Vol. 21, 1st Edn. 1987,p,569; Encyclopedia of Islam, 1993 Edn., Vol. VII, p.60 Edited by C.E. Bosworth E Van Donzel W.P. Heinrichs and the Late Ch. Pellat; Islamic Law of Inheritance titled as Mufeedul Waresin by Moulana Syed Mian Sahib Asghar Hussain, Huhadis, Dar-ul-Uloom Deoband, published in Pakistan by Adarah-e-Islamiat and Muslim Law of Inheritance complied by Al-Haj Muhammad Allah Ibne S. Jang, p.88 rel.

Muhammad Murad v. Allah Bux 2006 MLD 286 dissented from.

(c) Words and phrases---

----"Milk" or "Truka" or Mal-e-Metruka"---Definition.

Fatawah Usmani by Muhammad Mazharul Haq Ansari published by Quanuani Qutab Khana, Katcheri Road, Lahore; Urdu Dairia Maarifi Islamia, published by University of Punjab in Vol. 21, 1st Edn. 1987, p.569; Encyclopedia of Islam 1993 Edn. Vol VII, p.60 Edited by C.E. Bosworth E Van Donzel, W.P. Heinrichs and the Late Ch. Pellat ref.

Applicant in person.

Anand P. Kamrani for Respondents Nos.11 and 14.

Date of hearing, 4th December, 2006.

P L D 2007 Karachi 214

Before Sabihuddin Ahmed, C.J., and Faisal Arab, J

Syed ARSHAD ALI and 55 others---Petitioners

Versus

PAKISTAN TELECOMMUNICATION COMPANY LTD. through President and 8 others---Respondents

Constitutional Petition No.D-2086 and Misc. No.8139 of 2006, decided on 13th December, 2006.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Maintainability---Objection as to maintainability of constitutional petition was raised on the ground that respondent-Company having been privatized, constitutional petition against said company was not maintainable---Sixty-two per cent. shares in the company continued to remain with Federal Government but 26% were transferred to proposed buyer of controlling shares---Managerial control was effectually transferred to the proposed buyer to the extent of 58.43% shares---Proposed buyer under the present state of affairs was only exercising managerial control on behalf of the owner which was the Federal Government---Petition under Art.199 of the Constitution, was maintainable, in circumstances---Petition requiring consideration, was admitted and was fixed for regular hearing.

Muhammad Tariq Rajwana for Petitioners.

Sakhiullah Chandio for Respondents Nos. 1 to 7.

Ashudas for Respondent No.9.

P L D 2007 Karachi 216

Before Sarmad Jalal Osmany and Ali Sain Dino Metlo, JJ

Syed HASAN RAZA---Petitioner

Versus

THE STATE---Respondent

Accountability Criminal Appeal No.46 of 2002 and Constitutional Petitions Nos.D-992 of 2006, 163 of 2004 and 242 of 2005, decided on 14th January, 2007.

(a) Interpretation of statutes---

----Retrospective operation of statute---Vested rights---Effect---Principles---Fundamental rule of interpretation of statutes is that there could not be any retrospective operation of a statute so as to impair an existing right or obligation, unless same was manifest from the very wording itself or could be gathered by necessary intendment---Such rule, however, would not apply to procedural laws, since no person had a vested right in the course of procedure, unless the same could be demonstrated and clearly spelled out from the statute itself---Statute which impaired vested rights acquired through past and closed transaction, could not be held to be restrospective only by virtue of mere implication.

Asif Ali Zardari v. The State 1993 PCr.LJ 781; Pakistan Steel Mills Corp. v. Muhammad Azam Katpar 2002 SCMR 1023; CIT v. EFU Insurance Company PLD 1982 SC 247 and Hassan and others. v. Fancy Foundation PLD 1995 SC 1 ref.

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

----S. 10(d)---Remission---Entitlement---Operation of S.10(d) of National Accountability Ordinance, 1999 which had prohibited remission to those persons convicted under said Ordinance, would not be retrospective in nature---All those who were convicted under National Accountability Ordinance, 1999, prior to 10-11-2002, would be entitled to.ordinary remission under Jail Rules---Provisions of S.10(d) of National Accountability Ordinance, 1999, being not retrospective in nature, could not take away vested rights of persons who were convicted prior to addition of the provision in the Ordinance, to earn remission.

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

----S. 10(d)---Constitution of Pakistan (1973), Arts.45 & 199---Criminal Procedure Code (V of 1898), S.401---Constitutional petition----Remission, grant of---Kinds of remissions---Remissions were of two kinds, general and special, general remissions were earned by convicts under the Jail Rules, whereas special remissions were granted. by the President of Pakistan under Art.45 of the Constitution; and by the Provincial Government under S.401, Cr.P.C.---Remissions earned under the Jail Rules, were as of right---Since S.10(d) of National Accountability Ordinance, 1999 which had prohibited remissions, was not retrospective in nature, those remissions earned by NAB convicts who were convicted prior to imposition of S.10(d) of the Ordinance, were to be given under Jail Rules---Remissions given by Provincial Government under S.401, Cr.P.C., were normally given On festivals viz. Eid, Eid-e-Milad-un-Nabi, Independence Day etc. and were not as of right and could not be claimed as such by any convict, however, denial of such remissions to NAB convicts and allowing same in respect of those convicted under Anti-Corruption Laws by the Provincial Government, would be discriminatory---Petitioner (NAB convict) in circumstances would be entitled to those remissions, which had been granted by the Provincial Governments under S.401, Cr.P.C. to other prisoners---Insofar as the power of the President of Pakistan under Art.45 of the Constitution to grant or withhold remission was concerned, same was not subject to judicial review---Jail authorities were directed to prepare fresh Jail Rolls of petitioners and release them from Jail.

Shahzad Abid v. State 2003 PCr.LJ 661; Qaim Khan and 4 others v. State 2002 MLD 715; Bhai Khan v. State PLD 1992 SC 14; Abdul Malik v. The State PLD 2006 SC 365; Hakim Khan v. Government of Pakistan PLD 1992 SC 595; Maru Ram v. Union of India AIR 1980 SC 2147; Pakistan Steel Mills Corporation v. Muhammad Azam Katpar 2002 SCMR 1023; Haji Abdul Ali v. Haji Bismillah PLD 2005 SC 163; Muhammad Arif v. Superintendent Central Jail Lahore and 2 others PLD 2006 Lahore 561 rel.

Ghulam Sarwar Chandio for Petitioner (in C.P.No.992 of 2006).

Faisal Siddiqui for Petitioner (in C.P.No.D-163 of 2004).

Aamir Mansoob Qureshi for Petitioner (in C.P.No.D-242 of 2005).

Shafaat Nabi K. Sherwani, DPG NAB.

Habib Ahmed, A.A.G. along with Abdul Marooq, AIG (Legal) and Mirza Imdad ASJ.

P L D 2007 Karachi 224

Before Anwar Zaheer Jamali, Muhammad Mujeebullah Siddiqui and Rahmat Hussain Jafferi, JJ

UMEED ALI and 12 others---Plaintiffs

Versus

GOVERNMENT OF SINDH and others---Respondents

Suit No.Nil of 1998, decided on 19th December, 2006.

Court Fees Act (VII of 1870)---

----S.17 & Sched. I, Art.1---Sindh Finance Ordinance (VII of 1977), S.2---Sindh Finance Act (IV of 1990), Ss.4 & 6---Constitution of Pakistan (1973), Arts.2-A & 37(d)---Multifarious suits---Maximum court fee payable---Plaintiffs jointly maintaining one suit---Ends of social justice---Question posed in Reference for determination before Full Bench of High Court was with regard to affixing of maximum Court fee in a suit having different plaintiffs with distinct subjects---Despite amendment in Court Fees Act, 1870, made by Ss.4 and 6 of Sindh Finance Act, 1990, thereby repealing earlier amendment in Art. 1 of Sched. 1 of Court Fees Act, 1870, introduced by S.2 of Sindh Finance Ordinance, 1977, the position had remained unchanged i.e. maximum court-fee recoverable was still in the sum of Rs.15,000---In chargeability of court-fee in suits, reference to Arts.2-A and 37 (d) of the Constitution was also pertinent, as by virtue of the same, State was obliged to promote ends of social justice by providing inexpensive and expeditious justice to every citizen of country---Following the guidelines given by Supreme Court in case titled Aslam Industries (Pvt.) Limited Khanpur v. Pakistan Edible Corporation and others, reported as 1993 SCMR 683, all questions proposed in Reference were answered in affirmative by the Full Bench accordingly.

Aslam Industries (Pvt.) Limited, Khanpur v. Pakistan Edible Corporation and others 1993 SCMR 683 fol.

Avan A. Cowasji v. Nasreen Nizam 1984 CLC 2705; I.S. Venkatanarayana Lyer v. The State of Madras AIR 1953 Madras 888; D. Lakshminarayana Chettiar AIR 1954 Madras 594; AIR 1954 Mad. 602; Federation of Pakistan v. The General Public PLD 1988 SC 645; Government of Sindh and others v. Sharaf Faridi and others PLD 1994 SC 105; Government of Balochistan v. Azizullah Memon and 16 others PLD 1993 SC 341; Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabe-ul-Khari and others v. Federation of Pakistan and others PLD 1996 SC 324; Aftab Shaban Mirani v. President of Pakistan and others 1998 SCMR 1863; New Jubilee Insurance Company Ltd., Karachi v. National Bank of Pakistan PLD 1999 SC 1126; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Sh. Liagnat Hussain and others v. Federation of Pakistan PLD 1999 SC 504: Sh. Riazuddin v. Aquilur Rehman Siddiqui v. and 4 others PLJ 1993 SC 141; Sindh High Court Bar Association Karachi and another v. Islamic Republic of Pakistan PLD 1991 Kara 178 and Arbab Ghulam Ali Khan v. Arbab Muhammad Hussain and 4 others PLD 1986 Pesh. 72 ref.

Dr. Mahmood-ur-Rehman Faisal v. Secretary, Ministry of Law and Justice and Parliamentary Affairs, Government of Pakistan, Islamabad and 6 others PLD 1992 FSC 195 distinguished.

Shafi Muhammadi, Abid Akram, Munir A. Malik along with Adnan Chaudhry, B.M. Bangesh, Mazhar Ali B. Chohan, Amir Malik. K.A. Wahab for Plaintiffs.

Anwar Mansoor Khan, A.-G. Sindh, Muhammad Ali Sayeed and Iqbal Kazi as Amicus Curiae.

P L D 2007 Karachi 238

Before Rahmat Hussain Jafferi and Mrs. Yasmin Abbasi, JJ

THE STATE/ANTI-NARCOTICS FORCE through Deputy Director (Law), Karachi---Appellant

Versus

MUHAMMAD IRSHAD---Respondent

Special Criminal Acquittal Appeal No.551 of 2005, decided on 19th January, 2007.

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

----Ss. 6, 9(c) & 48---Criminal Procedure Code (V of 1898), Ss.516-A & 537---Destruction of recovered property---Procedure---Presence of accused at the time of destruction of recovered property---Necessity---Defects in destruction of property---Effect---When application under S.516-A, Cr.P.C. for destruction of remaining recovered property was filed by the prosecution, notice of such application was not given to accused and order was also passed in absence of the accused---No doubt under S.516-A, Cr.P.C., it was provided that property could be destroyed and sample could be prepared, which could represent the entire property, but it would not mean that the sample should be prepared in the absence of accused as it was against the principles of natural justice---In order to give full opportunity to accused to participate in the process and safeguard his interest, it should be done in his presence---Was incumbent upon the Trial Court to have issued notice to accused in respect of application under S.516-A, Cr.P.C. and order could have been passed after hearing him, but in the present case order was passed in his absence---Accused was also not given an opportunity to verify as to whether the sample, which was to be used against him, was drawn from the property of the case---Valuable right of accused, was infringed in circumstances and his defence was prejudiced, which had occasioned a failure of justice---Defects in the destruction of property were such which could not be cured under S.537, Cr.P.C.---Such proceedings could not be fairly used against accused particularly when all proceedings were conducted in his absence, without his notice and knowledge---Memorandum showed that samples were sealed, but when property was produced in the court, it was not intact and no seal of the court or signature of the Judge was found on the sample---Sample produced in the court, had not been proved beyond any reasonable doubt that same was drawn from the case property---Prosecution, in circumstances had failed to produce the required evidence of the property before the Trial Court---Trial Court had considered the evidence produced by the parties, assessed and appreciated the same on settled principles of law---Reasons for arriving at the conclusion of acquittal of accused were supported by the evidence and were not artificial or ridiculous---Impugned judgment did not require any interference---Appeal against acquittal was dismissed.

Sikandar Hayat v. Muhammad Nawaz PLJ 1995 SC 351 rel.

Syed Ashfaq Hussain Rizvi, Special Prosecutor, ANF for Appellant.

Shaikh Ghulam Sabir Niazi for Respondent.

Dates of hearing: 7th and 8th December, 2006.

P L D 2007 Karachi 243

Before Rahmat Hussain Jafferi and Munib Ahmed Khan, JJ

ZAHOOR AHMED SHEIKH and others---Petitioners

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD and others---Respondents

Constitutional Petitions Nos.D-2234, D-2246, D-2340, D-2344, D-2361 and D-2381 of 2006, decided on 17th January, 2007.

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

----Ss. 169, 170 & 173---Administration of criminal Justice---Crux of provisions of Ss.169, 170 & 173, Cr.P.C. is that whatever the course Investigating Officer adopts i.e. whether he acts under S.169 or under S.170, Cr.P.C., it is incumbent upon him to submit a `final report' under S.173, Cr.P.C. with regard to the result of his investigation to a competent Magistrate and the said Magistrate, shall thereafter, take such action as he may consider proper under S.173, Cr.P.C. or under S.190, Cr.P.C. as the case may be---Principles.

Under the criminal administration of justice, and Code of Criminal Procedure a criminal case is initiated on filing F.I.R. After registration of the F.I.R. the police officer starts investigation for collecting the evidence. After collecting the evidence and completing the investigation the Investigating Officer, if he finds that there is no sufficient evidence collected against the accused then he has to release the accused as provided under section 169 of the Code. If he finds that there is sufficient evidence against the accused then he is required to submit the report within the meaning of section 170 of the Code. In both the cases the police officer is required to submit a police report or challan as provided under section 173(1)(a) of the Code in the form provided by the Provincial Government containing various columns.

The crux of sections 169, 170 and 173, Cr.P.C. is that whatever course the Investigating Officer adopts i.e. whether he. acts under section 169 or under 170, Cr.P.C. it is incumbent upon him to submit a final report under section 173, Cr.P.C. with regard to the result of his investigation to a competent Magistrate and the said Magistrate shall, thereupon, take such action as provided under subsection (3) of section 173, Cr.P.C. or under section 190, Cr.P.C. as the case may be.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Ahmed Siyal v. National Accountability Bureau 2004 SCMR 265 and Habib v. State 1983 SCMR 370 rel.

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

----Ss. 18 & 17---Criminal Procedure Code (V of 1898), Ss.169, 170 & 173--Filing of Reference before Accountability Court by the Chairman National Accountability Bureau---Mode and procedure---Applicability of Ss.169, 170 & 173, Cr.P.C.---Scope and extent--Provisions of Ss.169, 170 & 173, Cr.P.C. being not inconsistent with any of the provisions of National Accountability Ordinance, 1999, are applicable to proceedings under National Accountability Ordinance, 1999 but with necessary adaptations and changes as detailed by High Court---Direction of the law is that the accused should be forwarded to custody at the time of filing of reference if the Chairman National Accountability Bureau or any officer of the Bureau duly authorized violates such direction then he is exposing himself to the provisions of S.166, P.P.C. which provide that disobedience of direction of law is an offence; furthermore cases should be disposed of expeditiously within a period of 30 days--Principles.

In the NAB case the Chairman NAB starts proceedings on receipt of a reference from appropriate Government of a complaint or on its own accord about the offence under the Ordinance. Then he sends the matter for inquiry or investigation. After completing the investigation the material is to be placed before the Chairman NAB or any officer of the NAB duly authorized who again has to form opinion as to whether the Reference is to be filed or otherwise. If he forms opinion that Reference is to be filed then he is required to file Reference within the meaning of section 18(g) before the Accountability Court. The Reference is the final opinion of the Chairman NAB or any officer of the NAB duly authorized. Under the Criminal Procedure Code, a police officer is required to express his final opinion in the shape of report, in the form prescribed by the Provincial Government, which is commonly known as `challan'. As such, the reference filed by the Chairman NAB and challan filed by police are one and same except the form in which they are to be submitted or filed before the competent Court.

Final opinion of competent authority (Reference or challan) can be formed after going through the evidence collected during investigation and after deciding as to whether there is sufficient evidence against the accused justifying him to forward him for trial or there is no such evidence against the accused, justifying him to release him. Such decisions have to be expressed in the manner as provided under sections 169 and 170 of the Criminal Procedure Code and final opinion is to be expressed in the manner provided under section 173 of the Code by filing Reference or challan, as the case may be, because all three provisions are to be read together.

A perusal of the Ordinance reveals that no corresponding provisions as that of sections 169, 170 and 173 of the Criminal Procedure Code are available in the National Accountability Ordinance. Now it is to be seen whether the said provisions can be made applicable in the proceedings under the Ordinance.

Section 17 of the Ordinance provides that provisions of the Code are applicable in the proceedings under the Ordinance if they are not inconsistent with the provisions of the Ordinance.

The investigation of a case is conducted under the Ordinance, therefore, the provisions of Chapter XIV, Part V of the Criminal Procedure Code are applicable if they are not inconsistent with the provisions of' the Ordinance: If any of the provisions of the Code is in conflict with any of the provision of the NAB Ordinance then the provisions of the NAB Ordinance would prevail otherwise the provisions of the Code would apply with necessary adaptation and changes as in section 17 phrase "mutatis mutandis" is used.

Sections 169, 170, Cr.P.C. are not in conflict with any of the provisions of the Ordinance, therefore, they are applicable in the proceedings under the Ordinance but with necessary adaptation and changes.

The provisions of section 18(g) of the NAB Ordinance, 1999 have been made subject to compliance with the procedure laid down in section 170 of the Code. The Supreme Court in Asfand Yar Wali v. Federation of Pakistan PLD 2001 SC 607 directed that to that extent section 18(g) be suitability amended. It appears that section 18(g) has not been suitably amended so as to make it in consonance with section 170 of the Criminal Procedure Code.

After investigation of the case if the Chairman NAB or any officer of the NAB duly authorized finds that no evidence has been collected against the accused then he is required to release the accused within the meaning of section 169 of the Code. If he forms such opinion then he is required to submit the reference before the Accountability Court for passing appropriate order in view of rule laid down by the Hon'ble Supreme Court of Pakistan in the case of Habib v. State 1983 SCMR 370. If the Chairman NAB forms opinion that there is sufficient evidence against the accused then he is also required to file Reference forwarding the accused in custody within the meaning of section 18(g), National Accountability Ordinance, 1999 read with section 170 of the Criminal Procedure Code.

The sections 169 an4 170 of the' Code with necessary adaptation and changes outlined by High Court.

From Ss. 169 and 170, Cr.P.C. with necessary changes it appears that it is the mandate of the law that the Chairman NAB or any officer of the NAB duly authorized is required to forward the accused in custody in a case of non-bailable offence. Thus, the said provision is mandatory provision. Furthermore, the word "shall" has been used before the words "forward the accused in custody to the Accountability Court with the Reference". The word "shall" clearly demonstrates that the public functionaries are required to perform their duties in accordance with law hence no discretion has been given to the chairman NAB or any officer of the Nab duly authorized in performance of duties of forwarding the accused in custody to the Accountability Court along with Reference. If the Chairman NAB or any officer of the NAB duly authorized releases any accused person within the meaning of section 169 of the Code then such fact is required to be mentioned in the Reference and if the accused is absconder and the Chairman NAB or any officer of the NAB duly authorized forms such opinion after going through the material placed before him then such fact is also required to be mentioned in the Reference. Furthermore, the Chairman NAB or any officer of the NAB duly authorized may request the Court for trial of absconder within the meaning of section 31(A) of the National Accountability Ordinance as the concealing of accused or evading the service, etc. of non-bailable warrants issued by Chairman NAB is an offence.

The heading of section 173, is in conflict with the provisions of the Ordinance, therefore, the words of heading "report of police officer" are required to be changed with the words "Reference of Chairman NAB or any officer of the NAB duly authorized". In subsection (1) for the words "under this Chapter" are required to be substituted with the words "under NAB Ordinance, 1999" and for the words "without unnecessary delay" are required to be changed with the words "expeditiously as may be practical and feasible" as mentioned in section 18(1) of the Ordinance. In subsection (1)(a) for the designation "Magistrate" the words "Accountability Court", for the words "police report", "Reference", for the word "Report", "Reference" are required to be substituted. After the words "the nature of the information" appearing in subsection (1)(a) after putting comma (,) the words "the substance of offence or offences as the case may be" [section 24(b) of the Ordinance] are required to be added. In subsection (1)(b) the words ", in such manner as may be prescribed by the Provincial Government," are required to be omitted and after the words "action taken by him" the words "the officer of appropriate' Government from where Reference was received" (section 18(b)(i)) are required to be added.

In the proviso to subsection (1) time of 14 days is provided to complete the investigation but no time is fixed for completing the inquiry or investigation as is clear from section 18(f) of the Ordinance. Previously a time period of 75 days was fixed for such purpose but the provision was amended and the inquiry or investigation is to be completed expeditiously as may be practical and feasible. The word `expeditiously' referred to in section 18(f) clearly demonstrates the intention of the legislature that inquiry or investigation is required to be completed in speed within shortest possible time depending upon the facts and circumstances of each case. The legislature does not intend that inquiry or investigation should be kept pending for unlimited period but it is to be completed within a reasonable period depending upon the facts and circumstances of each case. The legislature has specifically expressed its intention that it should be completed with speed. However, the legislature has fixed a period of 90 days for detaining an accused in NAB custody during the pendency of inquiry or investigation. It appears 90 days' period is a reasonable period where inquiry or investigation should normally be completed. Thus normally inquiry or investigation should be completed within a period of 90 days. In case the inquiry or investigation is not completed within 90 days from the date of initiation of proceedings as provided under section 18(e), then the entire material be placed before the Administrative Judge or Accountability Court, as the case may be, with interim Reference, who, after examining the same, can extend the time for completing the inquiry or investigation from time to time but such time should not exceed 15 days at a time and for every subsequent time the Judge or Court shall record reasons in writing. Therefore, necessary changes are required to be made in the proviso and by deleting the words which are not applicable.

Subsection (2) of section 173 of the Code is not applicable, therefore, the same is 'required to be omitted. In subsection (3) for the word "report" the word "Reference" and for the word "Magistrate" the words "Accountability Court" are required to be substituted. In subsection (4) for the word "report" the word "Reference" is required to be substituted and the comma (,) and words "on application," are required to be deleted in view of section 24(b) of the Ordinance. The proviso to section 4 is not applicable, therefore, it is required to be deleted. In subsection (5) for the words "officer in charge of a police station" the words' "the Chairman NAB or any officer of the NAB duly authorized"; for the word "report" wherever appearing the word "Reference"; for the word "Magistrate" the words "Administrative Judge or Accountability Court" are required to be substituted.

Adaptation and changes to be made in section 173, Cr.P.C. outlined by High Court.

The Chairman NAB or any officer of the NAB duly authorized is required to comply with the provisions of sections 169, 170 and 173 of the Code with necessary changes as mentioned above.

It is the direction of law that the accused should be forwarded to custody at the time of filing Reference if the Chairman NAB or any officer of the NAB duly authorized violates such direction then he is exposing himself to the provisions of section 166, P.P.C. which provides that disobedience of direction of law is an offence.

Furthermore, the scheme of the NAB Ordinance is that the cases should be disposed of expeditiously within a period of 30 days. By not complying with the above provisions of law the spirit of the law is being frustrated, therefore,' in order to implement the spirit of NAB Ordinance the Chairman NAB or any officer of the NAB duly authorized should strictly comply with the provisions of sections 169, 170 and 173 of the Code with above mentioned necessary changes read with sections/other provisions of the Ordinance.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Ahmed Siyal v. National Accountability Bureau 2004 SCMR 265; Habib v. State 1983 SCMR 370 and Black's Law Dictionary (6th Edn.) ref.

(c) Words and phrases---

----"Mutatis mutandis"---Meaning.

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

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

----Ss. 24 & 18---Criminal Procedure Code (V of 1898), S. 54---Arrest---Powers of arrest of Chairman, National Accountability Bureau or any officer of the Bureau duly authorized by him during pendency of inquiry or investigation---Scope and extent.

The legislature has made all the offences under the National Accountability Ordinance. as non-bailable and no Court has been given powers to release the accused on bail by invoking any provision of the Code or any other law for the time being in force as provided under section 9(b) of the Ordinance.

When any offence is made non-bailable, then the accused is required to be arrested on fulfilment of certain conditions of law. However, he can be released from custody under the order of the competent Court. From the above provisions the legislature in clear, unambiguous terms and words, has expressed its intention that the person or persons involved in the offences of the Ordinance should be arrested, of course on fulfilment of conditions of arrest, and should remain in custody till final disposal of the case. Further, even the appellate Court's powers to suspend the sentence under section 426 of the Criminal Procedure Code have been curtailed rather snatched so that the convict should remain in jail till final disposal of appeal. The basic principle of interpretation of statute is that the intention of the legislature is required to be implemented in letter and spirit by the Courts and other authorities. Nevertheless, the Ordinance is a sub-constitutional statute which cannot override the Constitution but it is subservient to it, therefore, it cannot curtail the constitutional powers of Court or any authority. Thus High Court being the constitutional Court, in exercise of its constitutional powers under Article 199 of the Constitution, can entertain the bail pleas of aggrieved persons.

Keeping in view the above basic principles and intention of the legislature the Chairman NAB or any other specified persons have been given powers to arrest a person or persons involved in the offence of the Ordinance. Such powers are available in the provisions of sections 18 and 24 of the Ordinance and 54 of the Criminal Procedure Code.

A bare reading of section 18(b), (c), (d) and (e) of the Ordinance reveals the scheme of the Ordinance, It provides that after the receipt of information of the commission of the offence through any source as mentioned in clause (b) if the Chairman NAB or any officer of the NAB duly authorized by him forms opinion to initiate proceedings against any person, then he is required and duty bound to refer the matter for inquiry or investigation. The sole responsibility to conduct such inquiry or investigation rests upon the NAB authority. However, the Chairman NAB or any officer of the NAB duly authorized can refer it to any other agency or authority for doing the needful. In conducting such inquiry or investigation, the Chairman, NAB, member of any other agency or authority or officer or servant of NAB are required and authorized to exercise all the powers of arrest, which are exercised by an officer-in-charge of a Police Station under the Criminal Procedure Code. Under the provisions of section 54 of the Criminal Procedure Code any police officer can make arrest without order from Magistrate and without a warrant of arrest. Thus such officer of NAB or authorized officer can make arrest without the, order of Accountability Court .and without warrant of arrest. Nevertheless, except the Chairman NAB such powers of officers of other agency or authority or officer or servants of NAB have been curtailed as they cannot make such arrest without the permission of the Chairman NAB or any officer of the NAB duly authorized by the Chairman NAB. It follows that if any other officer, except Chairman NAB, during the course of inquiry or investigation after collecting material forms opinion that the accused is to be arrested, then such officer shall produce the material before the Chairman NAB to seek permission to arrest the accused. The Chairman NAB if after perusing the material collected by the inquiry or investigating officer forms the opinion within the scope of first clause of section 54 of the Criminal Procedure Code, he shall grant such permission so as to implement the intention of the legislature. If he cannot form such opinion then he shall defer to grant such permission till sufficient material is collected. No form of such permission is provided under the Ordinance, therefore, the Chairman NAB, may grant such permission in any form but it should be in writing. After receipt of such permission the concerned officer can make arrest.

(e) Interpretation of statutes---

----Intention of legislature is required to be implemented in letter and spirit by the Courts and all authorities.

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

---Ss. 9(b)---Constitution of Pakistan (1973), Art.199---Bail, grant of--High Court, in exercise of its constitutional powers under Art.199 of the Constitution, can entertain the bail pleas of aggrieved persons---Principles.

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

---Ss. 18(b) & 24---Criminal Procedure Code (V of 1898), S.54---Arrest---Powers of Chairman, National Accountability Bureau, to arrest the accused after receipt of information through any source as provided under S.18(b), National Accountability Ordinance, 1999---Nature, scope and extent---Procedure---Powers of arrest conferred under National Accountability Ordinance, 1999 are part of normal powers conferred upon a police officer under S.54, Cr.P.C.---Principles.

A bare reading of section 18(b), (c), (d) and (e) of the Ordinance reveals the scheme of the Ordinance. It provides that after the receipt of information of the commission of the offence through any source as mentioned in clause (b) the Chairman NAB or any officer of the NAB duly authorized by him forms opinion to initiate proceedings against any person, then he is required and duty bound to refer the matter for inquiry or investigation. The sole responsibility to conduct such inquiry or investigation rests upon the NAB authority. However, the Chairman NAB or any officer of the NAB duly authorized can refer it to any other agency or authority for doing the needful. In conducting such inquiry or investigation, the Chairman NAB, member of any other agency or authority or officer or servant of NAB are required and authorized to exercise all the powers of arrest, which are exercised by an officer-in-charge of a Police Station under the Criminal Procedure Code.

Under the provisions of section 54 of the Criminal Procedure Code any police officer can make arrest without order from Magistrate and without a warrant of arrest. Thus such officer of NAB or authorized officer can make arrest without the order of Accountability Court and without warrant of arrest. Nevertheless, except the Chairman NAB such powers of officers of other agency or authority or officers or servants of NAB have been curtailed as they cannot make such arrest now without the permission of the Chairman NAB or any officer of the NAB duly authorized by the Chairman NAB. It follows that if any other officer, except Chairman NAB, during the course of inquiry or investigation after collecting material forms opinion that the accused is to be arrested, then such officer shall produce the material before the Chairman NAB to seek permission to arrest the accused. The Chairman NAB, after perusing the material collected by the inquiry or investigating officer forms the opinion within the scope of first clause of section 54 of the Criminal Procedure Code, he shall grant such permission so as to implement the intention of the legislature. If he cannot form such opinion then he shall defer to grant such permission till sufficient material is collected. No form of such permission is provided under the Ordinance, therefore, the Chairman NAB, may grant such permission in any form but it should be in writing. After receipt of such permission the concerned officer can make arrest.

As regards the powers of the Chairman NAB, after receipt of information through any source as provided under section 18(b), the Chairman NAB, finds sufficient material in such information; he can arrest the accused person without the order of Accountability Court or warrant of arrest. However, if he finds no sufficient material but merely a suspicion that the person is involved then he can defer the arrest of such person. Nevertheless, after collecting sufficient material he shall make arrest within the scope of section 54 of the Criminal Procedure Code.

The legislature might have visualized that if for any reason, the Investigating Officer did not approach the Chairman NAB to grant him permission to arrest the accused, would it mean that the accused should move freely in spite of the fact that sufficient material was collected against him justifying his arrest---The legislature has taken care of it by giving new and additional power to the Chairman NAB in the shape of section 24 to get the accused arrested. Under section 24(a) of the Ordinance, if the Chairman NAB finds that during the inquiry or investigation an accused has not been arrested then he has been given power to issue direction that the accused shall be arrested. The words `shall be arrested' clearly demonstrates the intention of legislature that the accused must be arrested, of course on fulfilment of the conditions of arrest and if the accused is not already arrested under the general powers of arrest as provided under section 18(e) of the Ordinance. However, to issue direction of arrest, the power of the Chairman NAB appears to be discretionary. For exercise of such power only condition precedent to it is that the accused is not already arrested. If such condition is fulfilled then the Chairman NAB is required to issue such direction. No form of such direction is mentioned in the Ordinance, therefore, such direction can be issued in any form but it should be in writing to the authority or person to comply with the direction. This additional power has to be exercised by the Chairman NAB only.

Under clause (b), if the Chairman NAB decides to send the case to the Court for trial then a copy of the Reference containing substance of the offence or offences is required to be forwarded to the Court through its Registrar and another copy of the Reference is required to be handed to the accused. The word `deliver' appearing in the clause has been defined in the American Heritage dictionary as "To put into another's possession or power; surrender; hand over; to take to the intended recipient." Thus, for receiving the copy of the reference from the Chairman NAB or an officer of the NAB duly authorized by him, the presence of accused is necessary, if he is present, Reference is to be filed and if there is sufficient material against the accused justifying his arrest, then at this stage also he shall be arrested. This provision further supports that the accused is required to be in custody at the time of filing reference, hence he is required to be forwarded in custody to the Court.

Under clause (c) the Chairman NAB can exercise the power of issuing direction that the accused shall be arrested, if he is not already arrested even after filing the Reference in appropriate cases.

The power of arrest conferred under the provisions are part of normal powers conferred upon a police officer under the Code under section 54 thereof.

Section 24(a) of the Ordinance the phrase "shall have the power" has been used which appears to have given power to the Chairman NAB of discretionary nature.

Under the powers of arrest the Chairman NAB can deprive the liberty of citizens, therefore, it is to be safeguarded jealously and citizen should not be arrested without fulfilling the conditions mentioned in any clause of section 54 of the Criminal Procedure Code. Further, the conditions prescribed for the exercise of such powers, including procedural requirements must be strictly followed. At the same time the discretion does not mean that the Chairman NAB should conduct himself in a discriminatory manner but he should exercise' such powers in a uniform manner keeping in view the facts, circumstances, evidence collected or material placed before him. Thus he should conduct himself justly, fairly, equitably, for the advancement of the purposes of the Ordinance in accordance with law and in conformity with the provisions of section 24-A of General Clauses Act, 1897. It will be further noticed that the power of arrest, no doubt, apparently, is a discretionary power with the Chairman NAB but at the same time a duty is cast upon him to act in the manner, it is intended to achieve the objective of the Ordinance, intention of the legislature and to advance the cause of justice.

From the plain reading of section 24(a) of the Ordinance and section 54 of the Criminal Procedure Code an impression would be gathered that the police officer or the Chairman NAB is under an obligation and duty bound to arrest a person if he is involved in a non-bailable offence subject to the condition that the requirements of section 54 are fulfilled. Nevertheless, if the Chairman NAB merely suspects of involvement of an accused he can keep it as secret and if there is no risk of abscondance of accused, the Chairman NAB may defer making the arrest until the investigation is sufficiently completed but if any interference with the liberty of the accused person is necessary to prevent him from absconding and the facts justify arrest, the Chairman NAB shall arrest him. The police officer has also such powers to defer the arrest of a person merely on suspicion, but can arrest him if there is apprehension of his abscondence. Such powers are available to a police officer under Rule 26.2 Chapter XVI, Volume III of Police Rules, 1934. It will be noticed that arrest can be deferred in the case where the competent authority merely suspects without any tangible evidence against the accused. But once some evidence is collected and suspicion turns into reasonable ground then the concerned officer is required and duty bound to arrest the accused as the law puts an obligation upon him to do so by making the offence non-bailable.

(h) Interpretation of statutes--

----When permissive words are employed by the legislature to confer a power on a Court or authority to be exercised in the circumstances pointed out by the statute, it becomes the duty of the Court or authority to exercise that power on proof of those circumstances. Thus, if the Chairman NAB or any officer of NAB duly authorized forms opinion on proof of circumstances mentioned in any clause of section 54 of the Code it becomes his duty to arrest the accused.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Ahmed Siyal v. National Accountability Bureau 2004 SCMR 265; Habib v. State 1983 SCMR 370; Black's Law Dictionary (6th Edn.); Principles of Statutory Interpretation by Justice G.P. Singh; Madasslal Fakir Chund v. S. Changdeo Sugar Mills AIR 1962 SC 1543; Chinnamar Kathiam v. Ayyavoo AIR 1982 SC 137; Commissioner of Police v. Godhandas Bhauji AIR 1952 SC 16; Abu Bakar Siddique v. Collector of Customs 2006 SCMR 705; Official Liquidator v. Dharti Dhan AIR 1977 SC 740; Hirday Narain v. I.T. Officer, Bareilly AIR 1971 SC 33 and Julius v. Lord Bishop of Oxford 1874-80 All ER Rep 43(HL), P.47 ref.

(i) Words and phrases---

---"Shall have the power"---Interpretation.

Principles of Statutory Interpretation by Justice G.P. Singh; Madasslal Fakir Chund v. S. Changdeo Sugar Mills AIR 1962 SC 1543; Chinnamar Kathiam v. Ayyavoo AIR 1982 SC 137; Commissioner of Police v. Godhandas Bhauji AIR 1952 SC 16 ref.

(j) Discretion---

---Discretionary powers of public functionaries---Scope.

Abu Bakar Siddique v. Collector of Customs 2006 SCMR 705; Official Liquidator v. Dharti Dhan AIR 1977 SC 740; Hirday Narain v. I.T. Officer, Bareilly AIR 1971 SC 33 and Julius v. Lord Bishop of Oxford 1874-80 All ER Rep 43(HL), P.47 ref.

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

----Ss. 17, 18 & 24---Criminal Procedure Code (V of 1898), Ss.169, 170 & 173---Reference to Accountability Court by the Chairman National Accountability Bureau---Procedure---Chairman National Accountability Bureau is required to forward the accused in custody to the Accountability Court at the time of filing reference or if the accused is released under S.169, Cr.P.C. or absconded then such facts should also be mentioned in the Reference so that the Accountability Court may exercise powers provided under S.173(3), Cr.P.C.---High Court observed that the References that have already been filed in which the accused persons have not been forwarded in custody or shown released or absconded at the time of filing Reference, the Trial Court shall take appropriate steps to procure their attendance as per law.

Habib v. State 1983 SCMR 370 fol.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Ahmed Siyal v. National Accountability Bureau 2004 SCMR 265; Habib v. State 1983 SCMR 370; Black's Law Dictionary (6th Edn.); Principles of Statutory Interpretation by Justice G.P. Singh; Madasslal Fakir Chund v. S. Changdeo Sugar Mills AIR 1962 SC 1543; Chinnamar Kathiam v. Ayyavoo AIR 1982 SC 137; Commissioner of Police v. Godhandas Bhauji AIR 1952 SC 16; Abu Bakar Siddique v. Collector of Customs 2006 SCMR 705; Official Liquidator v. Dharti Dhan AIR 1977 SC 740; Hirday Narain v. I.T. Officer, Bareilly AIR 1971 SC 33 and Julius v. Lord Bishop of Oxford 1874-80 All ER Rep 43(HL), P.47 ref.

Muhammad Nawaz Shaikh, Muhammad Zafar, Minhaj Farooqui, Saeed Akhtar Abbasi, Ghazi Qurban Hisbani, Iqbal Khurram, Shafaat Nabi Sherwani, DPGA, NAB for Petitioners.

I.A. Hashmi, M. Anwar Tariq and Ms. Ismat Mehdi as Amicus Curiae.

P L D 2007 Karachi 277

Before Rahmat Hussain Jafferi and Munib Ahmed Khan, JJ

ATHAR NAEEM alias WAQAS CHAUDHRY---Appellant

Versus

THE STATE---Respondent

Special Anti-Terrorism Jail Application No.31 of 2006, decided on 13th February, 2007.

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

----Ss. 7(e) & 25---Penal Code (XLV of 1860), S.365-A---Limitation Act (IX of 1908). S.5---Condonation of delay---Appeal, in the present case, against judgment of Anti-Terrorism Court which was to be filed within 7 days from date of judgment, as per S.25 of Anti-Terrorism Act, 1997, was barred by 105 days---Appellant had filed application under S.5 of Limitation Act, 1908 for condonation of said delay---Validity---No provision existed in Anti-Terrorism Act, 1997 which could authorize the Court to invoke provisions of S.5 of Limitation Act, 1908---Time provided under Anti-Terrorism Act, 1997 for filing appeal was different from the time provided in the Schedule attached to Limitation Act, 1908 for filing such appeal---Section 5 of Limitation Act, 1908, being not applicable to the case, delay in filing appeal could not be condoned by invoking section 5, Limitation Act, 1908---Appeal being time barred, stood dismissed.

Appellant in person.

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

Date of hearing: 13th February, 2007.

P L D 2007 Karachi 278

Before Maqbool Baqar, J

Messrs TIME N VISIONS INTERNATIONAL (PVT.) LTD.-Plaintiff

Versus

DUBAI ISLAMIC BANK PAKISTAN LIMITED---Defendant

Suit No.862 of 2006, decided on 30th August, 2006.

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

----S. 202---Agency coupled with interest---Concept---Scope and applicability.

The concept of an `agency coupled with interest' is a special concept. It envisages a pre-existing interest of the agent in the subject matter of the agency which is sought to be protected through creation of the agency and not an interest arising therefrom. The concept can be clearly comprehended through the illustration given in section 202 of the Contract Act.

Where the agency is created by deed, or for valuable consideration, and the authority is given to effectuate a security to secure the interest of the agent, the authority cannot be revoked. Thus, if an agreement is entered into on a sufficient consideration whereby an authority is given for the purpose of securing some benefit to the donee of the authority, the authority is irrevocable on the ground that it is coupled with an interest. So, an authority to sell in consideration of forbearance to sue for previous advances, an authority to apply for share to be allotted on an underwriting agreement a commission being paid for the underwriting, and an authority to receive rents until the principal and interest of a loan have been paid off or to receive money from a third party in payment of a debt, have been held to be irrevocable. On the other hand, an authority is not irrevocable merely because the agent has a special property in or a lien upon goods to which the authority relates, the authority not being given for the purpose of securing the claims of the agent.

Section 202, Contract Act, 1872 lays down an exception to the general rule. A contract of agency by its very nature is personal to the parties and revocable at their volition subject to agreed terms. It does not create eternal legal relations. Under this section in certain exceptional circumstances, such contracts can be considered irrevocable, the most common examples of such contracts are when the owner of certain goods appoints his creditor as agent to sell the goods and recover the amount advanced or where the owner of immovable property, having agreed to transfer such property appoints, before formal title is passed, the vendee as his agent to manage the property or effect the final transfer of title. In such cases interest in the property has already been created in favour of another who is appointed agent primarily to secure such interest. The principal is precluded from revoking the authority of such agent unless otherwise agreed, because the main interest in the property is not retained by him but is passed on to the agent. The interest of the agent, forming subject-matter of the agency, is to be some sort of an adverse nature qua the principal. So, according to the true construction and scope of section 202 the agency can be said to be coupled with interest where the authority of an agent is given for the purpose of effectuating a security or of securing an interest of the agent. This can be inferred from documents forming the basis of agency or from the course of dealings between the parties and from the other surrounding circumstances.

Section 202 does not get attracted merely because the agent has acquired substantial interest in the returns arising from the agency. A comparison between sections 202 and 206 may clarify the legal position. Under section 206 when the contract of agency does not contain a specific stipulation as to termination, it may be terminated upon reasonable notice. In the absence of such notice the damage resulting to one party must be made good by the other. If the principal terminates the agency without notice, he must compensate the agent. It follows that the agent must be having an interest which must be compensated for. Therefore it is not possible to say that whenever an agent has an interest in the continuance of an agency section 202 gets attracted. Section 202 applies only where an agent has a special kind of interest i.e. pre-existing interest in the subject-matter of the agency which is sought to be protected through creation of the agency and not an interest arising therefrom.

Substantial investment in the business of agency would not make the agency irrevocable.

As regards the contention that the agent had invested colossal amount of funds in setting up of office and necessary infrastructure and so the agency was irrevocable, suffice it to say that setting up of office and employment of necessary staff was essential for carrying on the business of the agency. These acts were not anterior to the contract. These were not consideration to any right of agent. Under no circumstances they can be considered as security for any interest of the agent under the agreement of agency.

Halsbury's Laws of England IVth Edn. Vol. I; p.2036; Messrs Business Computing International (Pvt.) Ltd. v. IBM World Trade Corporation 1997 CLC 1903; World Wide Trading Company v. Sanyo Electric Trading Company Ltd. and another PLD 1986 Kar. 234; Messrs Farooq & Co. v. Federation of Pakistan and 3 others 1996 CLC 2030 and Palani Vannan v. Krishnaswami Konar AIR 1946 Mad. 2036 fol.

Ghulam Ishaq Khan Institute of Engineering, Science and Technology and another v. M/s. Hassan Construction Co. (Pvt.) Ltd. Engineer and Consultants 1998 CLC 485; Manzoor Construction Co. Ltd. v. University of Engineering and Technology, Taxila 1984 CLC 3342; Muhammad Younus and 2 others v. Abdul Ghaffar and others 1998 MLD 1622; M/s. Jamia Industries Ltd. v. M/s. Pakistan Refinery Ltd., Karachi PLD 1976 Kar. 644; Mst. Neelam Nosheen and others v. Raja Muhammad Khaqaan and others 2002 MLD 784; Unreported judgment passed in Suit No. 388 of 2002 between ACB (Pvt. Ltd. UPS Worldwide; Pak National Construction Co. v. State Bank of Pakistan PLD 1977 Kar. 838; Progressive Engineering Associates v. Pakistan Steel Mills Corporation Limited 1997 CLC 236; Roomi Ent. (Pvt.) Ltd. v. Stafford Miller Ltd. 2005 CLD 1805; Huma Enterprises v. S. Pir Ali Shah and others 1985 CLC 1522; World Wide Trading v. Sanyo Electric Trading Co. Ltd. and another PLD 1986 Kar. 234; Farooq & Co. v. Federation of Pakistan and others 1996 CLC 2030; Business Computing International v. IBM World Trade Corporation 1997 CLC 1903; Philippine Airlines v. Paramout Aviation (Pvt.) Ltd. and others PLD 1999 Kar. 227 and Muhammad Yousuf v. M/s. Urooj (Pvt.) Limited and another PLD 2003 Kar. 16 ref.

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

----S. 20---Contract Act (IX of 1872), S.202---Agency agreement--Application to file in court arbitration agreement---Powers conferred on the court under S.20, Arbitration Act, 1940---Scope.

Question as to whether, in the present case, in terms of the agency agreement, the agency could be terminated by serving two months' advance notice, only after the initial two years of the creation of the agency, would certainly require interpretation of the agreement itself, and which question, in view of the clause of agreement, which provides for a dispute resolution mechanism through arbitration in respect of every dispute, difference or question which may at any time arise between the parties, touching or arising out of or in respect of the agreement, can only be decided by the arbitrators. The scope of the powers conferred on the Court under section 20 of the Arbitration Act, 1940 is merely limited to determination of the factum of real dispute and no more. It is not for the Court to go into the question pertaining to the dispute raised or suggested, the manner of decision thereof for that would amount to usurping the jurisdiction of the domestic tribunal constituted under the arbitration agreement Court, therefore would refrain from delving into the controversy as to at what point of time the parties can exercise their option to terminate the agency, which forms, a real dispute amenable to arbitration only.

Jamia Industries Limited v. Pakistan Refinery Ltd. PLD 1976 Kar. 644 and Manzoor Construction Co. Ltd. v. University of Engineering and Technology Taxila 1984 CLC 3347 ref.

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

----S. 20---Contract Act (IX of 1872), S.202---Specific Relief Act (I of 1877), Ss.12, 42 & 55---Agency agreement---Termination of agency---Arbitration clause in agency agreement---Application to file in court agreement and for grant of injunction---Agency in question was not an agency coupled with interest---Such agency did not attract exceptional status of irrevocability as provided by S.202, Contract Act, 1872---Provision of S.201, Contract Act, 1872 provided for termination of an agency by the Principal revoking his authority, an order restraining the principal from revoking the agency and forcing the principal to continue with relationship would not be justified, as even if the arbitrators come to the conclusion that the termination of the agency would, in terms of the agreement, be premature for want of the requisite notice, the agent may be duly compensated by awarding damages-Application for grant of injunction was dismissed and defendant was directed to file the original arbitration agreement in court within specified time---Principles.

Huma Enterprises and 3 others v. S. Pir Ali Shah and others 1985 CLC 1522; West Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi 1973 SCMR 555 'and Messrs Business Computing International (Pvt.) Ltd. v. IBM World Trade Corporation 1997 CLC 1903 ref.

Abdul Hafeez Pirzada, Hasaamuddin and Abdul Sattar Pirzada for Plaintiff.

Rasheed A. Razvi and Mahmood Mandviwala for Defendant.

Dates of hearing: 24th and 30th August, 2006.

P L D 2007 Karachi 293

Before Mushir Alam and Maqbool Baqar, JJ

SHEHRI C.B.E.---Petitioner

Versus

GOVERNMENT OF PAKISTAN and others---Respondents

Constitutional Petition No.D-455 of 2005, decided on 25th October, 2006.

(a) Pakistan Environmental Protection Act (XXXIV of 1997)---

----S. 12---Pakistan Environmental Protection Agency (Revenue of IEE and ETA) Regulations, 2000, Regln. 10---Establishment of project not only for power generation but also for desalination of a massive quantity of seawater every day---Essential pre-requisite---Such plant cannot be classified as a power generation plant only, ignoring its attributes of a desalination plant---Desalination plant can be classified as a treatment plant-'Treatment' means and includes a desalination plant, not only in the common usage of the term, but a desalination plant would clearly fall within the classification `treatment plant'---Principles---Term 'Treatment'-Connotation-Desalination process--Description.

Sindh Institute of Urology and Transplantation and others v. Nestle Milkpak Ltd. and others 2005 CLC 424; Illinois Central R. Co. v. Illinois 146 U.S. 387 (1892); Appleby v. City of New York 271 US 364 (1926); Reynolds v. Ingalls Shipbuilding Div. v. Litton Systems Incorporation C.A. Miss. 788 F 2nd 264, 268; New Encyclopaedia Britannica 15th Edn.; WiseGEEK by S.Mithra; The ABCs of Desalting by O.K. Burros California Coastal Commission Report on Seewater Desalination in California in Chap. 3 and Einav R. Harussi K. and Perry D., in Article The Footprint of the Desalination Process on the Environment Desalination 152 (2002) pp.141--154 ref.

(b) Interpretation of statutes---

----Words of a statute are to be understood in their natural sense, and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context, or in the object of the statute to suggest the contrary---Expressions used in the statute should ordinarily be understood in a sense in which they best harmonize with the object of the statute and which effectuate the object of the Legislature.

(c) Pakistan Environmental Protection Act (XXXIV of 1997)---

----S. 12 & Preamble---Pakistan Environmental Agency (Revenue of IEE and EIA), Regulations, 2000, Regln. 10---Term `treatment plant' cannot be given a restrictive meaning so as to artificially exclude desalination plant from its meaning and scope---Pakistan Environmental Protection Act, 1997, as declared in its preamble has been promulgated to provide for the protection, conservation, rehabilitation and improvement of the environment and for the prevention and control of pollution and promotion of sustainable development and for matters connected therewith and incidental thereto.

(d) Pakistan Environmental Protection Act (XXXIV of 1997)---

----Ss. 5, 6, 8, 11, 12, 13, 16 & 17---Environmental Protection---Object, purpose and applicability of Ss.5, 6, 8, 11, 12, 13, 16 & 17, Pakistan Environmental Protection Act, 1997.

(e) Pakistan Environmental Protection Act (XXXIV of 1997)---

----S. 12--- Pakistan Environmental Agency (Revenue of IEE and EIA), Regulations, 2000, Reglns. 11, 10, 3 & 9---Establishment of a desalination plant---Implications---Desalination plant' falls in the category of atreatment plant'---Desalination plant, unless appropriate mitigating measures are employed and adequate monitoring is implemental, and effective corrective measures are suggested and implemented after thorough assessment and evaluation of the project as required under S.12, Pakistan Environmental Protection Act, 1997, may impair or damage the environment and therefore, in the context of Pakistan Environmental Protection Act, 1997 also a desalination plant cannot be deemed to be a plant not falling into the category of a treatment plant.

(f) Pakistan Environmental Protection Act (XXXIV of 1997)---

----S. 12---Held, it is essential to maintain balance between industrialization and ecology and that development and environmental protection must progress, it is in consonance with such principle that Pakistan Environmental Protection Act, 1997 has been enacted and enforced and thus its mandate should be honoured its true letter and spirit.

(g) Pakistan Environmental Protection Act (XXXIV of 1997)---

----S. 12---Establishment of Environmental Tribunals---High Court directed the Government of Pakistan to establish Environmental Tribunals as required in terms of, S.12, Pakistan Environmental Protection Act, 1997 at the earliest and preferably within two months from the date of the present judgment, so that, the issues such as raised in the present case may be decided expeditiously.

Abdul Rehman and Rizwana Ismail for Petitioner.

Makhdoom Ali Khan, Attorney-General and Dr. M. Usman for Respondents Nos. 1 and 5.

Abbas Ali, A.A.-G. for Respondents Nos. 3 and 4.

Sohail H.K. Rana for Respondent No.6.

Mahmood Mandviwala for Respondent No.7.

Date of hearing 25th October, 2006.

P L D 2007 Karachi 310

Before Khilji Arif Hussain, J

SABA JAMIL and 3 others---Plaintiffs

Versus

Mst. SULTANA WILAYAT and 4 others---Defendants

Suit No.334 of 2001, decided on 27th March, 2007.

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

----S. 52---Civil Procedure Code (V of 1908), O.XX, Rr. 13 & 18---Suit for partition and administration---Property in question was purchased by the deceased in his name; late husband of one of the defendants (son of deceased owner) had contributed some amount for the purpose of construction of the property in question; at no point of time till the demise of the deceased owner, late husband of said defendant had alleged that he was the owner of the property in question, even after the alleged statement of deceased owner allegedly relinquishing his right in the property in favour of late husband of the defendant and the deceased has admittedly purchased the property after selling his two properties in another city, in his own name, and till his death he used the property as owner---Defendant's case was that her late husband was the real owner of the property and his father (deceased owner) was benamidar owner and/or due to expenses incurred in the development of property he became owner of the same or that in acknowledgement of expenses incurred by him in development of the property he became owner of the same on the declaration of the deceased relinquishing his right in the property---Validity---Held, S.52 Transfer of Property Act, 1882 required that right in case of tangible immovable property of the value of Rs.100 or more could be transferred only by a registered instrument---Value of property, in the present case, admittedly was more than Rs.100 and deceased had not transferred his right in the property in question by executing registered instrument in this regard---Right in a property could be relinquished by a party if party had that right and if the deceased was owner of ,the property then the plea of defendant that deceased was the ostensible owner of the property and the real owner of the property was defendant's late husband would fall to ground---Merely because some amount had been contributed by the late husband of defendant being the son of the deceased owner, which was his moral and legal obligation to help his father and family members to have better environment and accommodation, the same could not make the defendant husband as owner of the property---High Court, in circumstances, decreed the suit as prayed and final decree for sale of the property was ordered to be prepared, as property could not be partitioned according to respective shares of the parties---Official Assignee who was receiver of the property, was also directed to sell the property by inviting public offers---Parties, however, could participate in the auction to be held by the Official Assignee/Receiver.

Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700; Sakhi Muhammad v. Muhammad Nazir Bashir 1999 CLC 454; Mst. Anwar Begum and 7 others v. Syed Muhammad Siddique and others 1991 MLD 1182; M/s. Master Sons v. M/s. Ebrahim Enterprises and others 1999 CLC 404 and Allah Din v. Habib PLD 1982 SC 465 ref.

(b) Benami transaction---

---Classes of transactions and ingredients.

The word `Benami' is used to denote two classes of transactions which differ from each other in their legal character and incidents. In one sense, it signifies a transaction which is real, as for example, when A sells properties to B but in the sale-deed mentions "X" as the purchaser. Here the sale itself is genuine but the real purchaser is B, "X" being his Benamidar. This is the class of transaction which is usually termed as Benami. But the word "Benami" is also occasionally used, perhaps not quite accurately, to refer to a sham transaction, as for example, when A purports to sell his property to B without intending that his title should cease or pass to B. The fundamental difference between these two classes of transactions is that whereas in the former case there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none and the transferor continues to retain the title notwithstanding the execution of the transfer deed.

To constitute a transaction as "Benami transaction" it is necessary that property must have been purchased by the person from his own money, for his own benefit, and he exercises right of ownership from the date of purchase of property as his own in the name of benami/ostensible owner.

Yawar Farooqui for Plaintiffs.

Kanwar Majid for Defendants.

Date of hearing: 9th February, 2007.

P L D 2007 Karachi 317

Before Nadeem Azhar Siddiqi, J

GHULAM SARWAR and others---Petitioners

Versus

PROVINCE OF SINDH, REVENUE DEPARTMENT through Deputy Commissioner, Shikarpur and 2 others---Respondents

Civil Revision No.136 of 1994, heard on 23rd August, 2006.

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

----O. VII, R.11---Rejection of plaint---Principles---Questions of fact and limitation---Court though has power to reject the plaint without any application under O.VII, R.11, C.P.C., however it is the duty of Court to examine the plaint and reject the same suo motu if the plaint comes within the mischief of O.VII, R.11, C.P.C.---While rejecting the plaint under O.VII, R.11, C.P.C. the controversial question of facts cannot be resolved and for that purpose the parties are entitled to lead evidence in support of their respective claims---Contents of the plaint are to be taken as true oh its face value while rejecting the plaint--Plaintiffs, in the present case, had claimed that they were the legal heirs of the deceased who expired issueless and was actual owner of the suit-land---Such being a factual controversy could not be decided summarily without allowing the parties to lead their evidence; question of limitation also being a mixed question of law and facts, issues could be framed in that regard and rejection of plaint was unwarranted---Judgments passed by the Trial Court as well as Appellate Court were set aside and the case was remanded by the High Court to the Trial Court for. deciding the same in accordance with law after framing the issues and after giving due opportunity to the parties to lead their evidence in support of their cases---Case pertained to the year 1991, Trial Court was directed to proceed with the suit expeditiously.

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

-- -O. VII, R.11---Rejection of plaint---Scope---Plaintiffs had clearly pleaded that cause of action had accrued to them on 8-10-1991 which had to be thrashed out after the evidence whether in fact the cause of action had accrued to the plaintiffs on that day or before that day---Trial Court was not justified in giving the findings that the knowledge of brother in a certain transaction of property definitely could be presumed to be the knowledge of his brother and his family members---Findings of Trial Court Bing based on presumption and not on the basis of material available on record were liable to be set aside.

A. M. Mobeen Khan for Applicants.

G.D. Shahani, Addl. A.G. for Respondent Nos. 2 and 3.

Abdul Fattah Malik for Respondent No.3.

Date of hearing: 23rd August, 2006.

P L D 2007 Karachi 397

Before Gulzar Ahmed, J

ALLIED BANK OF PAKISTAN LTD.---Decree-Holder

Versus

FATEH TEXTILE MILLS LIMITED and 7 others---Respondents

Execution Application No.69 of 2004, and C.M.A. No.900 of 2006, decided on 2nd April, 2007.

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

----O. XXI, R.23-A & S.47---Money decree, execution of---Objection to or question relating to execution of decree---Consideration of such objection/question by Executing Court---Essentials---Executing Court would be barred from considering such objection/question, unless judgment-debtor deposited decretal amount in court or furnished security for its payment---Principles.

The provisions of Order XXI, C.P.C. as it relates to the objections to the execution of a decree are to be read in conjunction with the provision of S.47, C.P.C. which lays down the scope of objection that can be raised in execution. Section 47 empowers the Executing Court to determine questions relating to execution, discharge and satisfaction of decree. It bars a separate suit where question is within the scope of this section that a court is barred from considering such objections, unless judgment-debtor makes compliance of Rule 23-A, O.XXI, C.P.C. by depositing the decretal amount in court or furnishes security for its payment.

Happy Family Associates v. M/s. Pakistan International Trading Company PLD 2006 SC 226 and Gul Muhammad Meer Bahar v. NLC 2001 YLR 837 rel.

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

----S. 47 & O.XXI, Rr.2(3), 23-A---Money decree execution of---Part payment out of a court to decree-holder---Execution petition for recovery of remaining decretal amount---Objection to execution by judgment-­debtor---Prayer of judgment-debtor for treating such objection to be an application under O.XXI,R. 2(3), C.P.C. for recording satisfaction of decree by way of an adjustment, and in such case, he would not be required to make deposit or furnish security in terms of O.XXI, R.23-A, C.P.C.---Validity---Judgment debtor's plea in substance was an objection falling within scope of S.47, C.P.C. which related to question of execution, discharge and satisfaction of a decree---Such objection and all other points raised by judgment debtor could be considered only when he deposited decretal amount in Court or furnish security for its payment---High Court directed judgment-debtor to furnish security in the sum of remaining decretal amount within specified time to the satisfaction of Nazir of Court.

Muhammad Jamil v. Haji Muhammad Din PLD 1995 Lah. 107; Muhammad Yasin Khan v. Aftab Ahmed Khan PLD 1976 Kar. 1133; Hanifa Begum v. Muhammad Qamar Zaman 1992 CLC 1699; Abdul Hameed v. Allied Bank of Pakistan 2003 CLD 288; M/s. Naushera Bricks & Tiles (Pvt.) Ltd. v. Regional Development Finance Corporation 2002 CLC 904; Ganga Dihal Rai v. Ohdh Ram AIR 1929 All. 79; Abdi Hussain v. Kunj Behai Lal AIR 1939 All. 581; Ram Chand Gupta v. Wazir Chand AIR 1962 Punjab 293; Bholo Ram v. Kanhya AIR 1963 Punjab 133; Darumal v. Todar AIR 1938 Lah. 602; Murli Dhar v. Firm Bashesharlal Motilal AIR 1938 Lah. 126; Muhammad Tariq v. Mst. Fazeelat PLD 1977 Lah. 728; Ramnath Sarma v. Baidyanath Chatterjee AIR 1954 Cal. 620; Mrs. Zia Farhat v. Presiding Officer Special Court (Banking) 1969 MLD 680; The Allahabad Bank Limited v. Chairman Chaudhry AIR 1964 Mad. Pra. 226; Usman Hussain v. Habib Bank Limited PLD 1988 Kar. 620; Malik Gul Hassan and Company v. Allied Bank of Pakistan 1966 SCMR 237; Jagan Nath Charan Das v. Thakardas Kaliandas AIR 1935 Lah. 589; S. Udham Singh v. S. Atma Singh AIR 1941 Lah. 149; Ramanarasu v. Matta Vankata Reddy AIR 1933 Mad. 28; Lachhumal Morumal v. Attamaharm ad Khan v. Nabibaksh Khan AIR 1939 Sindh 243; VNA Firm v. Bank of Chettinal Ltd. AIR 1938 Rang. 353; Major (Red.) Ahmed Khan Bhatti v. Mst. Masood Fatmi PLD 1981 Kar. 398; Al-Huda Hotels and Tourism Company v. Paktel Limited 2002 CLD 218; Sandoz Ltd. v. Federation of Pakistan 1995 SCMR 1431; Province of West Pakistan v. Gammon's Pakistan Ltd. PLD 1976 Kar. 458; Nagendranath Majumdar v. Kshitish Chandra Ghose PLD 1958 Dacca 179; Banque Indosuez v. Banking Tribunal for Sindh and Balochistan 1994 CLC 2272; Todarmal Tejmal v. Chironjilal Gopilal AIR 1956 MB 25; Moll Shah v. Ghandharp Singh AIR 1926 All. 715; Muhammad Sama Mondal v. Muhammad Ahmed Shaikh PLD 1963 Dacca 816; Rajkishor Mohanty v. Banebehari Patnik AIR 1951 Orissa 291; M/s. Seghal Brothers v. Bharat Bank Ltd. AIR 1961 Punjab 439; Bharat Bank Ltd. v. M/s. Seghal Brothers AIR 1960 Punjab 459; Oudh Commercial Bank Ltd. v. Thakurain Bind Basni Kuer AIR 1939 PC 80; Ram Das v. Ali Bahadur AIR 1933 Pesh. 53; Haji Hafiz Abdul Shakoor Khan v. Administrator Municipal Committee, Multan PLD 1951 Lah. 32; Sultan Ahmed Sharif v. Mathura Mohan Chowdhury PLD 1958 Dacca 36; Islamic Republic of Pakistan v. Muhammad Saeed, PLD 1961 SC 192; Chaudhry Muhammad Nawaz v. Chaudhry Rehmat Ali 1994 SCMR 349; Girish Chandra Santra v. Purana Chandra Bhattachar Jya AIR 1944 Cal. 53; Dr. Major Abdul Ahad Khan v. Muhammad Iqbal PLD 1989 Kar. 102; A.T.N.A.T. Chokalingam Chettyar v. A.K.R.M.M.N.M.N. Naryana Chettyar AIR 1938 Rangon 328; Anath Nath Birwas Dwarkanath Chakravati AIR 1939 PC 86; Chowdhry Abdul Sobhan Sahib v. Kanti Ramana AIR 1945 Mad. 161; Kirishna Govind Patil v. Moolchand Keshavechand Gujar AIR 1941 Bom. 302; Chaudhry v. Aliraja AIR 1928 Cal. 527; Abdul Ghani v. Rasif Khan PLD 1994 AJ&K 8; Muhammad Ishaque Ali v. Heeralal Seraogi PLD 1964 Dacca 637; Makachhed Molla v. Abdul Jabbar Molla PLD 1956 Dacca 96; Fatimunissa v. Asghar Hussain AIR 1928 Oudh 195; Mehbunissa Begum v. Mehdunissa Begum 1925 Bom. 309; Shiraldas Mohandas v. Lalchand Vallabdas AIR 1933 Sindh 305; B. Mourari Lal v. Raghbir Saran AIR 1934 All. 209; Messrs Shalsons Fisheeries Limited Karachi v. M/s. Lohmann and Company PLD 1982 Kar. 76; Mst. Bhagawani v. Lakhim Ram AIR 1960 Punjab 437 and Anarunchallam Chettyar and A.P. Bhagchi v. Mrs. F. Morgan AIR 1935 All. 513 ref.

Happy Family Associates v. M/s. Pakistan International Trading Company PLD 2006 SC 226; Gul Muhammad Meer Bahar v. NLC 2001 YLR 837; Chairman District Council Jhelum v. Ali Akbar 1970 SCMR 105 and Nazir Hussain Shah v. The State PLD 1965 SC 139 rel.

Rashid Anwar for Decree-Holder.

Dr. Farogh Naseem for Judgment-Debtor.

Mansoorul Arifin, Amicus Curiae

P L D 2007 Karachi 415

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

HAKIM ALI---Appellant

Versus

Messrs PAKISTAN HERALD PUBLICATIONS (PVT.) LTD. through Chief Executive

and 4 others---Respondents

High Court Appeal No.324 of 2001, decided on 4th May, 2007.

(a) Dafamation---

----Damages, suit for---Plaintiff was Director of a company, engaged in business of real estate and was alleged in a news item appearing in two dailies that he was arrested, suspected to be a link between illegal immigrants and some agents settled abroad with international passports of other countries---Plaintiff, contended that said news item had defamed, harassed and tarnished his reputation which was published for some ulterior motives---Source of the news item was the F.I.R. which was lodged at a police station against the plaintiff with the allegation that the plaintiff indulged in a business of passport/visa falling within the scope of offences punishable under S.6(1)(g) & (h) of Passports Act, 1974 read with Ss.420/468/471, P.P.C.---Record showed that the news item was based on F.I.R. and applications were moved by the Investigating Officer before the Magistrate for obtaining remands--Purpose of publication of news item was primarily and predominantly one of general interest of the community, therefore the publication was made for the beneficial consumption of public in order to save them from being deceived---Name of the plaintiff was mentioned in the F.I.R. as an accused person of the offence which was lodged by inspector of police on behalf of the State---F.I.R. recorded by the police officer under S.154, Cr.P.C. was recorded by him in the discharge of his official duty by virtue of Art.49 of the Qanun-e-Shahadat, 1984, therefore, it was a public document---No malice was found on the part of newspapers to publish the news item---Sting or the main point of the news item being based on the F.I.R., therefore, by publishing such news item which was already known to a section of public would not come within the ambit of defamation---Principles.

Wolston v. Reader's Digest Association, Inc. No.78-5414; Mehmood Ali v. Network Television Marketing (Pvt.) Limited PLD 2005 Kar. 399; Abdul Ghafoor v. Muhammad Hasan SBLR 2006 SC 1616; Muhammad Sharif v. Nawab Din PLD 1957 Lah. 283; Muhammad Ansar-ul-Islam v. Karachi Stock Exchange Limited, Kar. PLD 1975 Kar. 556; Altaf Gauhar v. Wajid Shamsul Hasan PLD 1981 Kar. 515; Majid Nazami v. Muhammad Rashid PLD 1996 Lah. 410; Moosa v. Muhammad PLD 1968 SC 25; Muhammad Rashid v. Majid Nizami PLD 2002 SC 514; Bashir Ahmed v. Ahmad-ul-Haq Siddiqui 1985 SCMR 123; State of Bihar v. Sir Kameshwar Singh AIR 1952 SC 252 and Hamabai Framjee v. Secretary of State for India AIR 1914 PC 20 ref.

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

----Art. 85---Public document---If a public officer maintains a record then the same would become the public record.

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

----S. 154---Qanun-e-Shahadat (10 of 1984), Art.49---F.I.R. recorded by the police officer under S.154, Cr.P.C. was recorded by him in the discharge of his official duty by virtue of Art.49 of the Qanun-e-Shahadat, 1984, therefore, it was a public documents.

(d) Public purpose---

---Concept-Connotation-Test.

Public purpose is not capable of precise definition and has not a rigid meaning. It can only be defined by a process of judicial inclusion and exclusion. However a broad test has been formulated by Judicial decisions, and it is that--

Whatever furthers the general interest of the community as opposed to the particular interest of the individual must be regarded as a public purpose.

The basic concept underlying the expression "public purpose" is general interest of the community. The test which has, therefore, to be applied is whether the purpose is one which is primarily and predominantly one for the general interest of the community or it is mainly or primarily to serve the interest of a few individuals. Is the emphasis on general benefit of the community or it is on the benefit of some specified individuals? If it is the former, it would be a public purpose but not so, if it is the latter. The said test is the only way in which a line can be drawn to distinguish a public purpose from a private purpose. The difference between the two can become recognizable and meaningful only if this interpretation is accepted.

The phrase, whatever else it may mean, must include a purpose, that is an object or aim, in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned.

State of Bihar v. Sir Kameshwar Singh AIR 1952 SC 252 and Privy Councils Hamabai Framjee v. Secretary of State for India AIR 1914 PC 20 ref.

(e) Defamation---

----Question of rights of persons who occupy the public office and individual persons in respect of defamation is a completely different subject---Principles.

Abid S. Zuberi for appellant.

Slalahuddin Ahmed for Respondents

Date of hearing: 30th March, 2007.

P L D 2007 Karachi 421

Before Faisal Arab, J

IRSHAD alias ABDUL RAHIM and 2 others---Applicants

Versus

ASHIQ HUSSAIN---Respondent

Civil Revision Application No.25 of 2005, decided on 27th April, 2007.

(a) Partition---

----Private arrangement and partition deserves the same sanctity which a lawful contract deserves and should not be interfered within any legal proceedings unless the private arrangement or partition is otherwise not legally permissible---Principles elucidated.

It is not unusual in Pakistan that properties held in common at times are privately partitioned between the co-sharers without taking recourse to any legal forum, be it revenue or civil Court. The private arrangement or partition so arrived at between the co-sharers is honoured by them and acted upon for years together. Individual holding of a particular co-sharer is respected and recognized by the other co-sharers as his exclusive share in the joint properties. Such private arrangement or partition if acted upon by the co-owners has to be recognized as lawful partition. In such eventuality the co-sharers who have recognized the private arrangement or partition if acted upon by the co-owners has to be recognized as lawful partition. In such eventuality the co-sharers who have recognized the private arrangement or partition and have also acted thereon for years together cannot then turn around and question the same by seeking fresh partition before any revenue or other appropriate judicial forum on the ground that no formal partition from a Court of law has been obtained. The private arrangement and partition deserve the same sanctity which a lawful contract deserves and should not be interfered with in any legal proceedings unless the private arrangement or partition is otherwise not legally permissible. Where a co-sharer of such private arrangement or partition of joint properties had disposed of his individual share to a third person, then such disposition is also to be given legal validity. Certainly any one or all of the other co-sharers may choose to exercise right of pre-emption if available in law but it does not mean that the co-sharers can question the right of a co-sharer to deal with his specifically assigned share in any manner he likes. Any disposition of a share in a joint property, which was assigned to a co-sharer under a private arrangement or partition cannot be questioned for want of formal decree of partition of a competent court of law.

Under a private arrangement or partition one may not rule out the possibility that it is so divided among the co-sharers which may not reflect one's true percentage of share which he owns in the joint properties. An apparent disproportionate distribution may have taken place keeping in view various other factors prevalent at the time of distribution. A co-sharer may have been given a smaller or bigger share in a particular property to be owned and enjoyed by him towards his share on account of its location or monetary value, built up area or quality of land in comparison to other joint properties. Once distribution is carried out and acted upon by the co-sharers then any subsequent variation in their value would not warrant de novo distribution of shares. A particular business given to one co-sharer as his share may grow by geometrical proportions or value of a particular immovable property may enhance manifold than the value of properties belonging to other co-sharers. In such like events; a co-sharer may be tempted to retract from the private arrangement or partition arrived at earlier and seek de novo partitioning before a Court of law. Such redistribution of joint properties cannot be allowed on the ground that earlier private distribution was not carried out by taking recourse to a Court of law or is disproportionate to the actual share of a co-sharer.

Before a private arrangement or private partition is legally recognized it is to be seen whether there is sufficient evidence on record to give legal validity to such private arrangement or partition. A written private arrangement or partition poses no difficulty and is to be given effect straightaway. However, where there is nothing in writing about private arrangement or partition but has been carried out and acted upon for years together by all the co-sharers and the individual holder of a particular share in the joint property exclusively enjoyed the property falling to his share to the exclusion of all other co-sharers with the right to dispose it of then such arrangement and partition, if established by conduct of the parties, has also to be given legal validity.?

?

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

----O. II, R.2---Object and scope of O.II, R.2, C.P.C.---Order II, R.2 was devised to prevent a party from splitting up claims and remedies arising out of same cause of action against the same party or its successors---Principles.

Order II, Rule 2 of Civil Procedure Code, provides that every suit must include all claims to which a plaintiff is entitled in respect of a cause of action. Sub-rule 3 of Order II, Rule 2 provides that where a plaintiff is entitled to more than one relief in respect of a cause of action then he may sue for all or any of other reliefs but if he in his suit either omits or relinquishes any of the reliefs to which he was entitled then he shall not be permitted at any subsequent stage to sue for such reliefs. Thus it is quite evident that Rule 2 of Order II, C.P.C. was devised to prevent a party from splitting up its claims and remedies arising out of same cause of action against the same party or its successors. The main object of Order II, rule 2, C.P.C. is to prevent a plaintiff from initiating multiple proceedings against a defendant on the basis of same cause of action and in case he had omitted to seek any relief based on same cause of action in one proceedings then in terms of Order II, rule 2, C.P.C. he is barred from seeking the relief or reliefs so omitted in any subsequent proceedings. It is the commonality of cause of action in the subsequent suit that bars its maintainability and the fact that the reliefs sought in both the suits are different is hardly of any legal consequence. The suit for partition filed, in the present case in 1998 being subsequent and based on the same cause of action that resulted in the filing of earlier suit for pre-emption in 1983 was barred under the provisions of Order II, rule 2, C.P.C.?

Kazi Munawar Ali for Applicants.

Naimatullah Soomro for Respondent.

Date of hearing: 10th April, 2007.

P L D 2007 Karachi 429

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

MUHAMMAD HANIF and 2 others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU (NAB), SINDH through Director-General, Sindh and another---Respondents

Constitutional Petition No.D-382 of 2007, decided on 3rd April, 2007.

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

----Art. 40---National Accountability Ordinance (XVIII of 1999), S.16---Reference---Investigating Officer, so far, had neither collected any record on the information supplied by the accused nor any mashirnama had been prepared---Prosecution had absolutely no material with them connecting the accused with the crime except the confession of the accused before the Investigating Officer which was not admissible in evidence as per Art.40 of Qanun-e-Shahadat, 1984---Provision of Art.40, Qanun-e-Shahadat, 1984 was not applicable in circumstances.

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

----S. 497---National Accountability Ordinance (XVIII of 1999), Ss.16 & 17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Bail, grant of---Allegation against the accused persons was of abetting the co-accused---Main accused had been granted bail by High Court---Abettor, in circumstances, was also entitled to the concession of bail particularly in absence of any evidence collected, so far by the prosecution against the accused parties.

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

----S. 17(a)---Criminal Procedure Code (V of 1898), S.5---Offences under National Accountability Ordinance, 1999 are to be investigated under Criminal Procedure Code, 1898 as no procedure is provided under the Ordinance to deal with the process of investigation---Provisions of Criminal Procedure Code, 1898 have mutatis mutandis been made applicable to the proceedings under the Ordinance by virtue of S.17(a) of National Accountability Ordinance, 1999.

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

----S.24(d)---Criminal Procedure Code (V of 1898), S.167---Remand--Procedure--Requirements---.Duty of Courts and Investigating Officers---Provisions of S.24(d) National Accountability Ordinance, 1999 and S.167, Cr.P.C.---Distinction---When the Investigating Officer had not collected or produced any material before the Court, connecting the accused with crime, Court was not justified to grant police remand and the same was not justified and thus was illegal---Principles.

After the arrest of the accused, if the investigation of the case cannot be completed within 24 hours and the custody of the accused is required, then the police are required to produce the accused before a Magistrate to obtain remand, as required under section 167 of the Criminal Procedure Code. Section 24(d) of the National Accountability Ordinance deals with remand of the accused. The main difference between section 167 of the Code and 24(d) of the Ordinance is the period of grant of remand. As according to section 167 of the Code the maximum period of remand is 15 days, whereas in the latter case maximum period of police remand is 90 days. Thus the Investigating Officer is required to produce the accused before the Accountability Court within 24 hours; excluding the time necessary for journey from the place of arrest to the Court. After the accused is presented before the Court, the Judge is required to examine the allegation and evidence collected against the accused, justifying his arrest. For arriving at such conclusion, the Judge is required to examine the investigation papers and police diaries/Zimnies. The Investigating Officer is required to produce the copies of police diaries along with the letter of request for grant of remand of the accused. He is required to maintain the diaries in the format as provided under section 172, Cr.P.C. which stipulates that the proceedings of the investigation are to be on day to day basis, showing the date, time, place or places visited and statement of the circumstances ascertained through investigation. Initially, the Judge shall see the diaries of 24 hours to ascertain as to what investigation was conducted by the Investigating Officer during those 24 hours after the arrest of the accused. If the Investigating Officer fails to produce such copies with the remand report it can reasonably be inferred that the entries in the police diaries were not in existence by that time and manipulation of entries in the diaries to fit in the circumstances of the case, which developed later on, cannot be ruled out of consideration. The wisdom behind producing the police diaries is to eliminate all such manipulation, because once the diaries are produced in the Court, then they cannot be changed subsequently to fill the lacuna or create a, new evidence. Therefore, the Judge should not entertain the remand reports or letters of request for grant of remand without receiving the copies of the police diaries or Zimnies and the same shall be preserved for further reference at the time of trial. If the diaries do not show the date and time of making such diaries, then in the first instance, the same be returned to Investigating Officer to complete it so as to make them in conformity with the provisions of section 172, Cr.P.C. At the same time, he should be warned to be careful in future. If such mistake is again committed then, he should be dealt with according to law.

The Judge is required to give due attention to the complaint of maltreatment. If the accused has injuries on his person, it is the duty of the Judge to inquire as to how the accused had received the injuries before remanding him to police custody. If he does not do so and passes an order of remand mechanically, his conduct is highly improper. The Judge, then is required to scrutinize the record and act of the police to see whether the act was legal, proper and formalities required by law had been complied with, for the simple reason that the right to personal liberty is one of the most precious rights of the subject, which is required to be very jealously guarded by the Court against any invasion. When the Judge is satisfied that the arrest of the accused was justified then question of remand to police or judicial custody arises. For that purpose the Judge is required to look into the police diaries or Zimnies and police papers, satisfying himself whether there are grounds for believing that the allegation against the accused is well founded as the detention of a citizen by the police on mere suspicion is to be very strongly deprecated. Judicial Officers were supposed to know that the arrest of a citizen without any legal justification and his detention through unjustified remands besides being illegal creates a sense of injustice and insecurity in the minds of the people and no greater mischief than this can be imagined. The Judge should also see that there should be good and sufficient reason for remanding the accused to police custody instead of judicial custody. If no good or sufficient reason exists, then accused shall not be remanded to police custody. Judge should give due attention to the fact that some material during the extended period of remand should have been collected by the Investigating Officer involving the accused in the case justifying the grant of remand. For that purpose the Judge must see that previous order has been made in the case and the longer the accused has been in custody, the stronger should be the grounds required for further remand to police custody. If no such material is collected and the Investigating Officer did not conduct himself in accordance with law to pursue his investigation diligently and with speed, then in absence of such material the required demand cannot be extended.

The Investigating Officer did not collect or produce any material before the Judge, connecting the accused with crime, but in spite of that the Judge granted police remand. Under the law he was not justified to do so, hence, remand orders are illegal.

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

----S. 24(3)---Criminal Procedure Code (V of 1898), S.167---Remand---Accused having been maltreated by the Investigating Officer; in all fairness the accused was not required to be remanded to police custody but was required to be remanded by judicial custody subject to fulfilling the conditions for grant of remand.

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

----S. 167---National Accountability Ordinance (XVIII of 1999), S.24(d)---Remand---High Court recorded the principles in the matter of granting remands with observation that said principles can also be followed by the Accountability Court with necessary changes and subject to the provisions of National Accountability Ordinance, 1999 while granting the remand to the accused persons.

Following are principles in the matter of granting remands. With necessary changes, the Accountability Court shall follow the said principles:--

(1) Under no circumstances should an accused person be remanded to police custody unless it is made clear that his presence is actually needed in order to serve some important and specific purpose connected with the completion of the inquiry. A general statement by the Officer applying for that remand that the accused may be able to give further information, should not be accepted.

(2) When an accused person is remanded to police custody, the period of the remand should be as short as possible.

(3) In all ordinary cases in which time is required by the police to complete the inquiry, the accused person should be detained in magisterial custody.

(4) Where the object of the remand is merely the verification of the prisoner's statement, he should be remanded to magisterial custody.

(5) Any prisoner who has been produced for the purpose of making a confession and who has declined to do so, or made a statement which is unsatisfactory from the point of view of the prosecution, should in no circumstances be remanded to police custody.

Following were the principles, which were in accordance with law, High Court Rules and Orders and case law laid down by superior Court.

(1) During first 15 days, the Magistrates may authorize the detention of the accused in judicial custody liberally but shall not authorize the detention in the custody of the police except in strong and exceptional grounds and that too, for the shortest possible period.

(2) The Magistrate shall record reasons for the grant of remand.

(3) The Magistrate shall forward a copy of his order passed under section 167, Cr.P.C., to the Sessions Judge concerned.

(4) After the expiry of 15 days, the Magistrate shall require the police to submit complete or incomplete challan and in case, the challan is not submitted, he shall refuse further detention of the accused and shall release him on bail with or without surety.

(5) After the expiry of 15 days, no remand shall be granted unless, the application is moved by the police for the grant of remand/adjournment.

(6) The application moved by the prosecution police after the expiry of 15 days of the arrest of the accused, be treated as an application for adjournment under section 344, Cr.P.C.

(7) Before granting remand, the Magistrate shall assure that evidence sufficient to raise suspicion that the accused has committed the offence has been collected by the police and that further evidence will be obtained after the remand is granted.

(8) The Magistrate shall not grant remand/adjournment in the absence of the accused.

(9) The Magistrate should avoid giving remand/adjournment at his residence.

(10) The Magistrate shall give opportunity to the accused to raise objection, if any, to the grant of adjournment/remand.

(11) The Magistrate shall record objection which may be raised by an accused person and shall give reasons for the rejection of the same.

(12) The Magistrate shall examine police file before deciding the question of remand.

(13) If no investigation was conducted after having obtained remand, the Magistrate shall refuse to grant further remand/adjournment.

(14) The Magistrate shall not allow remand/adjournment after 2 months (which is a reasonable. time) of the arrest of the accused unless it is unavoidable.

(15) In case, complete challan is not submitted, the Magistrate shall commence trial on the strength of incomplete challan and examine the witnesses given in the list of witnesses.

(16) If the challan is not submitted within 2 months, the Magistrate shall report the matter to the Sessions Judge of the District and also bring the default of the police to the notice of Superintendent of Police of the District.

(17) The Magistrate shall not grant remand mechanically for the sake of co-operation with the prosecution/police.

(18) The Magistrate shall always give reasons for the grant of remand and adjournment.

Ghulam Sarwar v. The State 1984 PCr.LJ 2588 fol.

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

----S. 24(d)---Remand---Record showed that Judge Accountability Court had not conducted himself in accordance with law in granting the remand of the accused persons---High Court remarked that Judge should be careful in future.

Ghulam Sarwar v. The State 1984 PCr.LJ 2588 ref.

Rasheed A. Razvi and Amir Raza Naqvi for Petitioners.

Shafaat Nabi K. Sherwani, DPG, NAB along with I.O.

Altaf Hussain for Respondents.

P L D 2007 Karachi 442

Before Ali Sain Dino Metlo, J

KHALID HUSSAIN---Appellant

Versus

NAVEED alias QALB ALI and 2 others---Respondents

Criminal Appeals Nos.S-19, S-20 of 2006, decided on 18th April, 2007.

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

----S. 417(2-A)---Appeal against acquittal---Scope---Aggrieved person--- Legislative changes---Right of appeal against acquittal was extended to every person aggrieved by the order of acquittal under S.417(2-A), Cr.P.C.---Term "person aggrieved" as used in subsection (2-A) of S.417, Cr.P.C. could not be interpreted liberally so as to include every person who, as a member of the society, could claim to be interested to make the society free from crime by way of getting offenders punished---System of administration of criminal justice, which was adversarial in nature provided that a person accused of an offence was presumed to be innocent unless proved guilty in a trial before a competent Court---Finding of acquittal given by a court of law strengthened the presumption of innocence in his favour---In absence of compelling reasons, finding of acquittal was not to be disturbed---Consensus of judicial opinion was that scope of appeal against acquittal was narrower than the scope of appeal against conviction and acquittal could not be disturbed simply because other view of evidence was also possible---Every enemy of an acquitted person, could not be allowed to drag acquitted person in appeal on the plea that he was interested to live in a crime free society---For the purpose of filing appeal against acquittal, person aggrieved must be the person whose personal and not only general rights were affected---In a case of an offence against a person, victim and in case his death had been caused, his legal heirs and blood relations, would be the persons aggrieved for the purpose of filing appeal against acquittal---In the case of an offence against property, the owner, the possessor of the property or any other person having a right in its would be the 'aggrieved person'.

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

----S. 403---Double jeopardy---Person once tried or acquitted by a competent court for reason of inadequacy of evidence, could not be tried again for the same offence, even though evidence sufficient for his conviction could have been subsequently found against him.

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

----S. 417(2-A)---West Pakistan Arms Ordinance (XX of 1965), S.13(e)---Appeal against acquittal---Maintainability---Appellant had challenged acquittal of respondents/accused from the charge of possessing unlicensed pistol---Judicial Magistrate had acquitted respondents/accused on the ground that prosecution had failed to produce its witnesses against them---Investigating Officer while investigating the case regarding murder of appellant's brother, recovered unlicensed T.T. pistols from possession of respondents/accused and cases were registered against respondents for committing offence punishable under S.13(e) of West Pakistan Arms Ordinance, 1965---Respondents were already in the custody of police in murder case---Appellant being brother of deceased, would be an 'aggrieved person' entitled to file appeal against acquittal of respondents from the charge of his brother's murder, but that was not the case of their acquittal from the murder charge---Respondents had been acquitted only of the charge of possessing unlicensed pistols and that too on the ground of prosecutions' failure to produce witnesses and not by disbelieving the evidence---Magistrate had not recorded any evidence---Question of expressing any opinion about it would not arise-- contention of counsel for appellant that acquittal of respondents from the charge of possessing unlicensed pistol had damaged the murder case of his brother, was wholly unfounded as no opinion had been expressed by the Magistrate regarding the quality of evidence---Even if Magistrate had acquitted respondents by appraising evidence, his opinion about the quality of evidence, would not have the binding effect upon Trial Court trying murder case---Every case had to be decided on the basis of its own record---Evidence recorded in one case, could not be used as evidence in any other case---Sessions Judge trying murder case, being a higher court, was not expected to be influenced by any finding given by a Magistrate, a court subordinate to him---Appellant who was father of deceased, being not an 'aggrieved person', in circumstances, was not entitled to file appeal against acquittal of accused---Orders of Magistrate acquitting respondents, on examination, were found to be grossly improper and illegal, even the counsel for respondents could not support them---Case property was not available before Magistrate without which witnesses could not be examined---Appeals were converted into revisions, orders of the Magistrate acquitting respondents were set aside and case was remanded to the Magistrate for its disposal according to law.

Ubedullah M. Abro for Applicant.

Yaseen Khan Babar for Respondents Nos. 1 and 2.

Mushtaq Ahmed Abbasi, Asstt. A.-G.

Date of hearing: 22nd November, 2006.

P L D 2007 Karachi 448

Before Khilji Arif Hussain, J

ARIF HASHWANI and 3 others---Plaintiffs

Versus

SADRUDDIN HASHWANI and 3 others---Defendants

Suit No.1001 of 2004 and C.M.As. Nos.600, 601, 1177, 1360 and 1361 of 2007, decided on 27th April, 2007.

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

----O. VII, Rr. 1, 14, O.VI, R.2 & O.XIII, R.2---Non-production of evidence (recorded cassettes) along with plaint---Effect---Party who failed to produce documents on the first date of hearing, or within the time granted by the Court then unless good cause had been shown for non-production of the documents on the first date of hearing such documents could not be allowed to be produced by him---Nonetheless, in the present case plaintiffs had relied upon cassettes in question and specifically mentioned the same in the memo. of plaint as required under O.VII, R.14(2), C.P.C. and further produced the same before the expiry of time for production of documents fixed by the Court, there was no delay in production of the documents by the plaintiffs in existing circumstances-Principles.

Order VII, Rule 1, C.P.C. provides that the plaint should contain apart from the name of the Court, name, description of the plaintiffs, name and description of the defendants, then facts constituting the cause of action, facts showing that the Court has jurisdiction and relief claimed by the plaintiffs. Order VI, Rule 2, C.P.C. required that every pleading shall contain, and contain only, a statement in a. concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.

On reading Order VII, Rule 1 read with Order VII, Rule 14 and Order VI, Rule 2, C.P.C. it appears that plaintiffs while giving description of the parties also has to state concise material facts on which party pleading relies upon the purpose for his claim or defence which he wants the other parties to know what they are required to meet but not the evidence by which they are to' prove. The plaintiffs claim, in the present suit, is based upon family settlement between the parties and shareholding of defendant-Company and the recorded cassettes are not the basis of the claim in the matter but can be a piece of evidence in support of the plaintiffs' claim in the matter and the plaintiffs are not required in terms of Order VI, Rule 2, C.P.C. read with Order VII, Rule 1, C.P.C. to disclose or produce the same along with the plaint. As regards Order VII, Rule 14, C.P.C. the plaintiffs are required to produce only those documents upon which plaintiffs sue against the defendant and the other documents in support of claim and are not the basis of the cause need not to be produced along with the plaint but the plaintiffs if want to rely upon any such documents, evidence, whether in his possession or not has to disclose the same as documents relied upon in a list to be annexed with the plaint.

As regards the question that the defendant has failed to produce the cassettes within a reasonable period of time it appears that the plaintiffs did not file tape/audio recorded cassettes, CD and transcript along with other documents filed with the plaint but made reference to the same as documents relied upon. It appears that in their application-plaintiffs produced copies of the tapes/audios CD along with their statement and same were produced by the expert witnesses after 22 months of institution of the suit. The claim of the plaintiffs is not based upon audio/video tapes but they want to rely upon the same as a piece of evidence in support of their claim. Parties after the framing of issues were directed to file documents within a week in support of their respective claims and much before the passing of the order directing the parties to file documents in support of their respective claims. Plaintiffs have not only produced transcript of the audio tapes in question but also produced the same in Court. The plaintiffs filed an application under section 151, C.P.C. seeking permission to bring on record audio/video

cassettes and it was ordered to be fixed along with the main case after recording of the evidence. It is not disputed by the defendants that the entire transcript of the audio recording were brought on record by the plaintiffs within a reasonable period of time and further cassettes and CD tapes were produced along with application under Order XIII, Rule 2, C.P.C.

The party who failed to produce documents on the first date of hearing or if within the time granted by the Court then unless good cause has been shown for non-production of the documents on the first date of hearing such documents cannot be allowed to be produced by the party, who failed to produce the same on the first date of hearing. Nonetheless in the matter the plaintiffs relied upon cassettes in question and specifically mentioned the same in the memo of plaint as required under Order VII, Rule 14(2), C.P.C. and further produced the same before the expiry of time for production of documents fixed by the Court. For the foregoing reasons, there was no delay in production of the documents by the plaintiffs.?

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

---Arts. 164, 46-A, 70(8)(a), 73 & 2(1)(b), (c), (e) & (f)---Electronic Transmission Ordinance (LI of 2002), Preamble---Audio, video recorded cassettes, CDs are admissible piece of evidence; however, the authenticity of same is always subject to proof in case the party against which it can be used disputed or denied the authenticity and information contained in the said electronic documents---Principles elaborated.?

(c) Interpretation of statutes---

----Word "include" is always used in 'interpretation clause' in order to enlarge the meaning of the word and phrase occurring in the body of a statute.?

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

----Art. 73---Copy of an electronic generated information can be used as a preliminary evidence as provided, in Art.73 of Qanun-e-Shahadat, 1984; nonetheless original copy at least of mobile-phone memory card admittedly empty, and one can say that the preliminary evidence has been destroyed and party is not in a position to produce the same as such secondary evidence can be accepted in the matter.?

Hakim Ali Bhatti v. Qazi Abdul Hakim and others 1986 CLC 1784; Mst. Mariam Haji and others v. Mst. Yasmin R. Minhas and others PLD 2003 Kar. 148; Rup Chand v. Mahabir Prashad AIR 1956 Punjab 173; Yousuf Ali Ismail Ali Nagri v. State AIR 1968 SC 147; Lachmandas v. Deepchand AIR 1974 Raj. 79; Sumitra Debi v. Calcutta Dyeing & Bleaching Works AIR 1976 Cal. 99; Smt. Joginder Kaur v. Surjit Singh AIR 1985 Punjab and Haryana 128; C.R. Mehta v. State of Maharashtara 1993 Cr.LJ 2863 and Partab Singh v. State of Punjab AIR 1963 Punjab 298 ref.

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

----Arts. 164, 46-A, 70(8)(9), 73 & 2---Tape record cassettes are admissible piece of evidence, but while accepting the same, extra care is to be taken to declare and satisfy that the voice of the person alleged, and there is no tampering with the recorded statement---Best person who can make a statement about the authenticity of the conversation in tape is the defendant himself and the basis of his statement that there was any tampering, whether voice in the recorded cassette is his voice or not, whether there was any editing in the conversation or not can be decided. ?

Hakim Ali Bhatti v. Qazi Abdul Hakim and others 1986 CLC 1784; Mst. Mariam Haji and others v. Mst. Yasmin R. Minhas and others PLD 2003 Kar. 148; Rup Chand v. Mahabir Prashad AIR 1956 Punjab 173; Yousuf Ali Ismail Ali Nagri v. State AIR 1968 SC 147; Lachmandas v. Deepchand AIR 1974 Raj. 79; Sumitra Debi v. Calcutta Dyeing & Bleaching Works AIR 1976' Cal. 99; Smt. Joginder Kaur v. Surjit Singh AIR 1985 Punjab and Haryana 128; C.R. Mehta v. State of Maharashtara 1993 Cr.LJ 2863; Partab Singh v. State of Punjab AIR 1963 Punjab 298; Ziyauddin Burshanuddin Bukhari v. Brij Mohan Ramdas Mehra and others AIR 1975 SC 1788 and Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57 ref.

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

----Arts. 30, 59 & 73---Statement generated by the automated information system is admissible to prove an admission made by the parties---Admission information has, been defined under Art.30, Qanun?-e-Shahadat 1984 as a statement oral or documentary which suggested any inference as to, fact in issue or relevant facts which is made by any person and in view of Explanation added to Art.30, statement generated by automated information system can also be used as an admission by any person---Opinion of a forensic witness, in terms of Art.59 of Qanun-?e-Shahadat, 1984 relating to authenticity or integrity of electronic document made by or through any information system is also admissible---Printout or other form of reproduction of another electronic document is admissible in evidence as preliminary evidence in view of Explanations 3 and 4 to Art. 73, Qanun-e-Shahadat, 1984---Reproduction of an electronic document cannot be termed as coy or secondary evidence.?

Miss Sana Minhas and Adnan Chaudhry for Plaintiffs.

Iqbal Qazi, Liaquat Merchant and Zahid F. Ebrahim for Defendants.

Dates of hearing: 27th February; 7th, 20th and 22nd March, 2007.

P L D 2007 Karachi 469

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

GHULAM HUSSAIN BALOCH and another---Petitioners

Versus

CHIARMAN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD and 2 others---Respondents

Constitutional Petition No.D-188 of 2007, decided on 4th May, 2007.

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

----Ss. 18 & 19---Police Rules, 1934, Chap. XXV, R.25.2, 25.18 & 25.54---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Inquiry or investigation initiated against the petitioners by National Accountability Bureau---Validity-Record did not show that Chairman NAB had formed the opinion that any offence punishable under the National Accountability Ordinance, 1999 was committed by any person so as to empower him to initiate the inquiry or investigation in the matter-Silence on the part of the authorities in their comments on this very important aspect of the matter had adversely affected the entire process of inquiry and investigation---If there was no foundation of any allegation of commission of offence under the Ordinance then the superstructure made on such foundation was bound to collapse without any further action---Simple mention in the comments that the Chairman NAB had ordered for inquiry or investigation by itself was not sufficient to order for inquiry unless it was mentioned that inquiry or investigation was required to be conducted in an offence, which was punishable under the Ordinance---None of the notices issued by the Investigating Officer to the petitioners and other persons had disclosed the nature and commission of any offence and the same were also silent on the subject---Said notices were vogue as no specific offence or specific charge against the accused had been mentioned in them, no required or specified information, particulars of documents or things required to be produced before the Investigating Officer had been mentioned therein--- All the notices, thus, suffered from material irregularity and illegality and they could not be termed as legal notices within the meaning of S.19 of the National Accountability Ordinance, 1999---Said notices were consequently declared as illegal by the High Court---If the Investigating Officer wanted any information, document, thing or to examine any person, then he could issue fresh notices keeping in view the observations of High Court in respect of exercise of such powers---Constitutional petition was disposed of accordingly.

Muhammad Akbar v. Chairman NAB and others (Constitutional Petition No.D-807 of 2006 and 116 U.S.616 (1886) at p.96 of Constitution of Pakistan, 1973 by Shaukat Mahmood ref.

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

----S. 19(a)(b)(c)---Power to call for information from any person about any contravention of the provisions of National Accountability Ordinance, 1999 etc.---Such power elaborated with instructions and guidelines.

A bare reading of provisions of S.19(a)(b)(c), National Accountability Ordinance, 1999 reveals that if an inquiry or investigation is ordered in respect of offence punishable under the Ordinance by the Chairman NAB then during the course of said inquiry or investigation of such offence the Chairman NAB or any officer duly authorized by him is authorized to call for information from any person for the purpose of satisfying himself whether there has been any contravention of provisions of the Ordinance or any rule or order made thereunder. In this clause, "any person" would mean all persons including witnesses and accused from whom the information is required. The question arises as to what sort of information the person is required to furnish to the competent authority. The information would be in respect of offence alleged or any matter which can suggest that the provisions of the Ordinance, rule or order made thereunder have been contravened. For that purpose competent authority is required to ask any person from whom such information is required to provide information which has nexus with the above provisions. If a person does not know the point or allegation or offence or fact on which information is to be provided or the person against whom such information is required then how such person would be in a position to help the competent authority, therefore, while calling the information from any person, the person must be informed the fact, point, allegation, offence, name of accused, specified matter, if any, concerning the matters of the provisions in the notice so that the person can furnish such information. If such specified information is of such a nature which if furnished through any mode will serve the purpose, then such person should not normally be called to appear in person.

The improvements in the investigation process before the NAB authorities are basically carried out to facilitate all the concerned persons to give them due respect, not to harass them, to provide all reasonable facilities, relieve them within shortest possible time, without detaining them unnecessary or put any hardship to any person then in all fairness the person at the initial stage should not normally be asked to appear in person and furnish such information, which otherwise, can serve the purpose by furnishing such information through any other manner. This does not mean that the authorities have no power to call such person, but in unavoidable circumstances where the presence of the person is necessary then the person can be called by signing reasons as required under section 24-A of General Clauses Act, which stipulates that where any authority or officer is empowered to make order or give any direction, such power is required to be exercised reasonably, fairly, justly and for the advancement of the purpose of enactment and give reasons for making such order. The copy of such order should find place and be made available in the case diary.

If a person is called then in the summons or notice the date, time and place of his appearance should be specifically mentioned. After doing the needful an endorsement be made on the notice or summon showing the date, time and place of his appearance and the date, time and departure from the place to which he was summoned, which shall be delivered to the said person. All such orders mentioning such facts and information should be attached to the case diary. It is also pointed out that no avoidable trouble should be given to any person, from whom information is called for or inquiries are made and no person should be unnecessarily detained.

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

----S. 19(b)---Power to require any person to produce or deliver any document or thing useful or relevant to the inquiry or investigation---Procedure amplified with directions and guidelines.

Under section 19(b), National Accountability Ordinance, 1999 Orson can also be asked to produce or deliver the document or thing which will help the Investigating Officer in the inquiry or investigation of the offence. Under this clause, the Investigating Officer is also required to specify the offence, name of the accused person, particulars of the document or thing, if available or any document or thing concerning the offence and accused having nexus with inquiry or investigation, which is required to be produced or delivered in the notice. Under this clause also at the initial stage, normally the person should not be asked to 'appear in person and to produce such document or thing for the simple reasons that when the document or thing is received by the Investigating Officer it will serve the purpose and if for any reason attendance of such person is required then he can be called by assigning valid and cogent reasons which shall appear in the case diary. The date, time and place of his appearance and production of the document or thing should be mentioned in the notice or summons. After appearance and doing the needful, an endorsement be made on the copy of notice or summons showing the date, time and place of his appearance and the date, time of his production of document or thing and departure from the said place which shall be delivered to the said person and the copy of such order shall be attached with the case diary.

(d) National Accountability Ordinance (XIII of 1999)---

----S. 19(c)---Power to examine any person acquainted with the facts and circumstances of the case---Purposes of examination of witness, practice, procedure and safeguards for persons including accused detailed with guidelines.

Under section 19(c) National Accountability Ordinance also, the normal practice is that the Investigating Officer normally records the statements of the witnesses at the place of incident without loss of time by personally going there. In the cases before the NAB Authorities, the statements can also be recorded at the place of incident or residence of the person. For any reason, if the Investigating Officer finds that the witness or any person should be examined at certain place then he can issue such summons or notice showing the name of accused and particulars of offence with date, time and place of his appearance. As soon as he appears before him then his statement should be recorded. After doing the needful, an endorsement be made on the copy of notice or summon, showing the date, time and place of his appearance and the date, time of his departure from the said place, which shall be delivered to the said person and such order should also be filed with the case diary.

It is hot out of place to mention here that the concerned officer is authorized to record statements of witnesses, but he cannot force any of the witnesses to make a statement other than one which such witness voluntarily likes to make. The law does not permit such officer to beat the witness or confine him for the purpose or inducing him to make a particular statement. One of the purposes of examination of witness is to obtain evidence preliminary to arrest the accused.

The words "any person" appearing in section 19(c) of the Ordinance include the accused person also. The Constitution gives guarantee to the citizen under Article 4 that they will be treated according to law. Under Article 13 protection has been given to the accused of an offence that he will not be compelled to be a witness against himself. It is also against the natural justice and principles of Criminal Law to compel a person to give evidence against himself in the offence instituted against him and then base the charge on such evidence. During the interrogation, the accused can refuse to answer only those questions which are incriminatory, but he is required to answer all other questions. The protection against self-incrimination is available to accused not only in respect of his words, but also on the use of documents, books, papers etc. Forcing a person to produce, deliver or turnover incriminating written materials is in effect requiring him to testify against himself. It is also against the guarantee provided under Article 13 of the Constitution.

In the last half of the Seventeeth Century privilege against self-incrimination was well-established in England. The adoption of privilege marked a great advance over earlier practices when suspects were not only required to give testimony against themselves, but were tortured to force them to do so. The privilege has been incorporated in the Criminal Procedure Code. It has been regarded as one of the great landmark in man's struggle to make himself civilized and assuming that a man is presumed to be innocent until proved 'guilty. All the other protection facilities as discussed under clause (a) should also be provided to the persons in respect of clauses (b) and (c) of section 19 of the Ordinance.

116 U.S.616 (1886), p.96 of Constitution of Pakistan, 1973 by Shaukat Mahmood ref.

Shaukat Hussain Zubedi for Petitioners.

Shafaat Nabi Khan Sherwani, Deputy Prosecutor-General Accountability for Respondents.

P L D 2007 Karachi 485

Before Muhammad Moosa K. Leghari, J

Mst. MASUDAH JAWAD through her Daughter---Petitioner

Versus

STATE LIFE INSURANCE CORPORATION OF PAKISTAN, KARACHI and another---Respondents

Constitutional Petition No.S-540 of 2006, decided on 1st June, 2007.

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

----S. 8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Fair rent---Date for payment---Determination---Landlord filed application before Rent Controller for fixation of fair rent but being not satisfied with the rent fixed, preferred appeal---Appellate Court allowed the appeal, enhanced the rate of rent and directed the tenant to deposit the arrears at the rate of rent fixed, from the date of institution of the application---Plea raised by tenant was that as delay in deciding application for fixing the fair rent was caused by landlord, therefore, she be allowed to pay fair rent from the date of order passed by Appellate Court---Validity---Date for payment of fair rent was to be fixed according to the facts and circumstances of each case---No hard and fast rule existed that fair rent was to be paid from the date of institution of rent application---Although Rent. Controller or for that matter Appellate Court were bestowed discretionary powers to fix fair rent from the date of institution of rent application or from the date of the order or, even from a date in between the two events, however such discretion was to be exercised judiciously and reason should be assigned for fixing the fair rent from a particular date---Neither Rent Controller nor Appellate Court had assigned any reasons to justify payment of fair rent from the date of institution of rent application---High Court modified the judgment of Appellate Court and directed the tenant to pay fair rent from the date of the order passed by Appellate Court---Petition was allowed accordingly.

Volkart (Pakistan) Ltd., Karachi v. Interavia Pakistan Limited, Karachi 2001 SCMR 671; H. Cooper and others v. State Life Insurance Corporation of Pakistan 1994 SCMR 2115 and Messrs Olympia Shipping and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan 2001 SCMR 1103 rel.

Muhammad Hand Khatana for Petitioner.

Mian Mushtaq Ahmed for Respondents.

P L D 2007 Karachi 489

Before Munib Ahmad Khan, J

BASHIR AHMED and others---Applicants

Versus

ABDUL AZIZ and 7 others---Respondents

Criminal Miscellaneous Applications Nos.22, 31, 33, and 6 of 2007, decided on 23rd-May, 2007.

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

----S. 190---Cognizance of offences by Magistrate---Contention that Magistrate could not take cognizance of case of which trial was not available with him, was totally misconceived---Expression "any offence" occurring in S.190(1), Cr.P.C. gave unfettered powers to the Magistrate to deal with any case for the purpose of their cognizance on police report, irrespective of section of law mentioned in the F.I.R.---Difference between "cognizance" and "trial" had also been pointed out in S.190, Cr.P.C. and subsection (1) of the section was limited to the extent of "cognizance", and when the Magistrate, after taking the cognizance, was of the opinion that the gist of accusation was triable by Sessions Court, then he would resort to subsection (2) of S.190, Cr.P.C. and would send the papers to Sessions Court, but without recording evidence.

(b) Words and phrases---

----"Cognizance", defined and explained.

(c) Criminal 1rocedure Code (V of 1898)---

----S. 190---Cognizance of offence by Magistrate---No restriction under S.190, Cr.P.C. existed on the Magistrate to take cognizance/notice of any case---No procedure- was defined under S.190, Cr.P.C. as to what mode of scrutiny was to be adopted by the Magistrate towards sorting out the version of the police---Magistrate had to act according to his wisdom and judicial acumen which could differ in each. case---Towards the assessment and scrutiny of police version, Magistrate, however could interrogate the witnesses for the purpose of authentication of their version which the police claimed that it had been given by them and could also be taken on account of other documents submitted by police e.g., pendency of civil litigation or counter cases etc.---Magistrate, however could not record evidence. of, witnesses or of the complainant nor could examine defence witnesses as that would amount to initiation of trial which was not permitted under the law, because if such a situation was allowed, then formation of opinion' by the Magistrate after such an exercise, would amount to judgment and that would affect the trial of accused; which could be conducted by another Magistrate or by Sessions Court if section of law was triable by that Court---Magistrate, however was required to give his finding towards the assessment of material submitted before him and in his summarized way, he should record his agreement with the police version, but he could not straightaway order for acceptance or rejection of the police version.

Hussain Ahmad v. Irshad Bibi 1997 SCMR 1503; Ghulam Dastagir v. State 2007 YLR 930; Abdul Qadir v. State 2000 PCr.LJ 520; Farooq Sumar v. State 2004 PCr.LJ 1023; Safdar Ali v. Zafar Iqbal 2002 SCMR 63; Mehrab v. Emperor (F.B.) 26 Cr.LJ 181 and Lal Bihari Singh v. Emperor 31 Cr.LJ 55 ref.

Ali Nawaz Ghamghro for Applicant (Cr.M.A. No.22 of 2007).

Nemo for Respondents (Cr.M.A. No.22 of 2007).

Muhammad Ismail Bhutto for the State (Cr.M.A. No.22 of 2007).

Ali Nawaz Ghanghro for Applicants (Cr.M.A. No.31 of 2007).

Muhammad Ismail Bhutto for the State (Cr.M.A. No.31 of 2007).

Ali Nawaz Ghanghro for Applicant (Cr.M.A. No.33 of 2007).

Nemo for Respondents (Cr.M.A. No.33 of 2007).

Muhammad Ismail Bhutto for the State (Cr.M.A. No.33 of 2007).

Ahmed Ali M. Shaikh for Applicants (Cr.M.A. No.6 of 2007).

Muhammad Ismail Bhutto for the State (Cr.M.A. No.6 of 2007).

Date of hearing: 17th May, 2007.

P L D 2007 Karachi 498

Before Sarmad Jalal Osmany and Faisal Arab, JJ

SHAMSUL ARFIN and others---Petitioners, Versus

KARACHI BUILDING CONTROL AUTHORITY and others---Respondents

C.P. No.D-162.01' 2007, decided on 20th July, 2007.

(a) Karachi Building and Town Planning Regulations, 2002---

----Sindh Buildings Control Ordinance (V of 1979), S.6---Constitution of Pakistan (1973), Art.199---Constitutional petition---Legality of the construction of a residential complex being built on the piece of land belonging to Karachi Port Trust was challenged by residents of a Housing Society adjacent to the plot in question on the ground that the construction in question was being carried without approval of building plans from Karachi Building Control Authority on the assumption that no such approval was required from Karachi Building Control Authority as according to Karachi Port Trust, Schedule 1-A to Chapter 1 of the Karachi Building Town Planning Regulations, 2002 had notified the Karachi Port-Trust Authority as one of the authorities which could sanction and approve building plans of the buildings that were to be constructed on the land belonging to the Karachi. Port Trust---Validity---Held, Plot in question being not located in the cantonment area, construction on the plot in question was to be regulated by the Karachi Building and Town Planning Regulations, 2002 and legality of the building in question was to be examined in the light of .provisions of Karachi Building and Town Planning Regulations, 2002---Where the construction was to be raised by the Karachi Port Trust itself, then it could not act as "Concerned Authority" and all such constructions were to be regulated by Karachi Building Control Authority itself---Merely because the plot in question was owned by the Karachi Port Trust did not mean that it also fell within Karachi Port Trust area---Object of dividing the city of Karachi in different zones and providing different standards of construction for each zone under the Regulations, was intended to maintain area-wise standards of construction. that were peculiar to a particular zone and whole idea of dividing the entire city into various zones would be defeated if construction of a particular type of building which was permissible only in one zone was allowed to be constructed in another zone---Construction on the plot in question, therefore, was to be regulated by such Regulations that were applicable to the zone .only wherein the plot in question fell and Karachi Building Control Authority only wasempowered to approve building plan for the same---Building plans, of the plot in question were to be approved by he Karachi Building Control Authority and not by the Karachi Port Trust---Karachi Port Trust ought to have taken approval of building plan from Karachi Building Control Authority---High Court directed the Karachi Port Trust to submit building plans to Karachi Building Control Authority for scrutiny and to immediately stop construction work on the plot in question until building plans were approved by the said Authority---Karachi Building Control Authority was also directed to ensure that before according its approval, the building plans of Karachi Port Trust should conform to all requirements of the Karachi Building and Town Planning Regulations, 2002 which were applicable to the zone where the plot in question was located and any violation of any clause of the said Regulations should be dealt with by the Karachi Building Control Authority in accordance with law.

(b) Pakistan Environmental Protection Act (XXXIV of 1997)--

----S. 12---Karachi Building and Town Planning Regulations, 2002---Constitution of Pakistan (1973), Art.199---Constitutional petition---Contention of the petitioner was that construction of a multi-storyed building would. be an environmental hazard and therefore prior to approval of building plans, permission from Environment Protection Agency under S.12, Pakistan Environmental Protection Act, .1997 was necessary---Validity---Held, petitioners' contention that permission from Environment Protection Agency was to be first sought had no force for the reasons that firstly it was a case of a residential building and secondly, when the building plans were submitted to Karachi Building Control Authority, they were to be vetted by the Master Plan and Environmental Control Department also which took case of environmental effect of the building proposed to be constructed---Question of first seeking permission for a residential building from Environment Protection Agency, therefore, would not arise.

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

----Art. 199---Constitutional petition---Illegal construction of multi­storeyed building--Leaches, plea of---Where a controversy fell within the domain of public .interest, such plea was not attracted and court had ample powers to proceed on its own motion with the matter---Principles.

No doubt that in certain cases delay of few months disentitles a petitioner to pursue his remedy but such plea can be agitated against a party when the controversy involved in the case falls within the domain of private disputes. However, where a controversy falls within the domain of public interest then even if it is brought to the notice of the concerned authority belatedly, it is the statutory duty of the concerned authority to take appropriate remedial steps for eradication of illegality and where authority does not discharge its statutory duty, then Court is bound to issue appropriate directions irrespective of the delay in bringing the cause before the court. An illegal multistoreyed building is not a wrong against an individual or a set of private individuals but is a wrong against the society. Therefore, such illegality cannot be condoned on the ground that challenge to it was belatedly initiated in a Court of law. Where a controversy falling within the domain of public interest and is not prosecuted by the person who. has brought the lis before the Court, the Court has ample powers to proceed on its own motion with the matter and issue appropriate directions to the concerned authority or to a private respondent to right the wrong being committed against the society. The delay or disinterestedness of the petitioner in a controversy involving public interest or a plea of coming to court with unclean hands arc of no legal consequence in such cases.

PLD 1960 Kar. 826; PLD 1976 SC 410; PLD 1977 Kar. 524 and PLD 1969 SC 223 distinguished.

Rafiq Ahmed Kalwar for Petitioners.

Delawar Hussain Khan for Respondent No.1.

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

Manzoor Ahmed for Respondent No.3.

Mushtaq A. Memon with Shahid Ali Ansari for Respondents Nos. 4 and 5.

Dates of hearing: 13th and 18th June, 2007.

P L D 2007 Karachi 508

Before Zia Perwez, J

KASB BANK LIMITED---Plaintiff

Versus

Messrs TRANS LIMA PRIVATE LIMITED and 4 others---Defendants

C.M.As. Nos. 476 and 477 of 2006 in Suit No.B-33 of 2005, decided on 27th July, 2007.

(a) Lease---

----"Financial lease" and "operating lease"---Distinction illustrated.

Distinction between Financial Lease as opposed to Operating Lease can be summarized as follows:--

| | | | --- | --- | | Financial Lease | Operating Lease | | Financial lease is a long term lease on fixed assets, the same may not be cancelled by either | Operating Lease is anon-pay-out lease which may be cancelled by the lessee prior to its expiration. | | In financial lease the leasing company buys the equipment and leases it to the lessee. | The sum of all the lease payments by the lessee does not necessarily fully provide for the recovery of the assets cost. | | It is a full payout lease involving obligatory payment by the lessee to the lessor that exceeds the purchase price of the leased property .and financial cost. | In operating lease sphere of operation is limited which generally cover those goods which could be needed by different users. | | Financial Lease is a lease that transfers substantially all the risks and rewards incident to ownership of an asset. Lessor is only a financier and is not interested in the assets. | In Operating Lease, the lessor will have the continuing interest in the leased equipment and thereby undertakes to bear the maintenance etc. Lessor retains the usual risks and rewards that come from the ownership of the assets. | | The Financial Lease is not cancellable by the lessee prior to its expiration date. | The Operating Lease is cancell­able by the lessee prior to its expiration. | | The Financial Lease provides for maintenance services at the cost of lessee. | The lessor provides service, maintenance and insurance. | | The asset is fully amortized over the life of the lease. | Under such lease the equipment cost is not fully amortized over the leased tenure. | | The lessee has the use of the asset for 75% or more of the estimated economic life of the leased property. | Such lease is usually for a short period i.e. less than 75% of the estimated life of the assets, which period may not be adequate to recover to the full extent the investment in the asset. | | The present value at the beginning of the lease term of the minimum amounts payable under the lease (exclusive of amounts payable for insurance, maintenance and similar normal outgoings) is at least equal to 90% of the cost of the leased assets net of investment grants. | | | The lessor makes payment for the cost of the asset and remains the owner of such equipment and permits the use of equipment to the lessee for a specified period of time against the rentals. | | | During the period of lessee, the lease must fulfil the obligations irrespective of the fact whether the asset remains in use or becomes obsolete. | | | In case of default committed by the lesse in payment of lease money the lessor has recourse to the leased asset as the owner. | |

The operating lease is a non-pay-out lease in which the lessor's obligations may include services attached to the leased property such as maintenance, repair and technical advice. A good example of an operating lease is a lease for telephone service wherein the Telephone Department readers all such services for the leased telephone equipment against fixed uniform rentals from the users. Furthermore, the Operating Lease generally cover those goods which could be needed by different users which includes goods that are not peculiar to one kind of industry i.e. the things that many different kinds of lessees can use, like air conditioners, which could be used in offices, hospitals, laboratories and cars, etc. Thus the equipments/machineries, like the buses cannot be included in the category for Operating Lease.

Normally the rentals or charges for any machinery is maximum for a new machine and may decrease over the period of its use.

Lease Financing and Hire Purchase 4th Edn. by Dr. I.C. Verma ref.

(b) Lease---

----Financial lease---Rentals or charges for any machinery is maximum for a new machine and may decrease over the period of its use.

(c) Financial Institution (Recovery of Finance) Ordinance (XLVI of 2001)---

----Ss. 9, 10 & 15---Suit for recovery of financial lease money of buses leased to defendants---Default by lessee---Remedies available to the lessor---Record showed that defendants defaulted to pay several installments as per lease agreement acid failed to get the insurance polices of the leased vehicles renewed on expiry of the insurance policies--Such being obligations on the part of defendants and by their acts and omissions, plaintiff-Bank became entitled to act in pursuance of the terms agreed to between the parties and effect recovery of the amount in pursuance of the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001---Principles.

Hadley v. Baxendale (1854), 9 Ex. 341, 156 E.R. 145; Victoria Laundry (Windsor) Ltd. v. Newman Industry Ltd. (1949) 2 KB 528; (1949) I A11.ER 997; Humphrey Motors Ltd. v. Ells, (1935) SCR 249; Financings Ltd, v. Baldock, (1963) 1 Al1.ER 443; Buchanan v. Byrnes (1906), 3 CLR 704; Hughes v. N.Ls. (Pvt.) Ltd. (1966) WAR 100; Pigott Construction Co. v. W.J. Crowe Ltd. (1961), 27 DLR (2d) 258; Alkok v. Grymek, (1968) SCR 452; Hongkong Fir Shipping Co. v. Kawasaki Kiser Kaisha Lt.d., (1962) 2 Q.B. 26; Cehave N.V. v. Bremer Handelsgesellschaft m.b.H., the `Hansa Nord'; (1976) Q.B.44; Johnson. v. Agnew, (1980) AC 367; (1979) 1 All. ER 884; Moschi v. Lep Air Services ltd., (1973) AC 331; (1972) 2 Al1.ER 393; red Deer college v. Michaels, (1976) 2 SCR 324 and Keneric Tractor Sales Ltd. v. Langille, (1987) 2 SCR 440 ref.

(d) Lease---

----Financial lease---Default by lessee---Damages---Remedies available to the lessor.

The modern view is that when one party repudiates the contract and the other party accepts the repudiation, the contract is at this paint terminated or brought to an end. The contract is not, however, rescinded in the true legal sense, i.e. in the sense of being void ab initio by some vitiating element. The parties are discharged of their prospective obligations under the contract as from the date of termination but the prospective obligations embodied in the contract are relevant to the Assessment of damages. Such is the law for contracts generally and it is this law which should apply equally to breaches of chattel lease.

Hadley v. Baxendale (1854), 9 Ex. 341, 156 E.R. 145; Victoria Laundry (Windsor) Ltd. v. Newman Industry Ltd. (1949) 2 KB 528; (1949) 1 All. ER 997; Humphrey Motors Ltd. v. Ells, (1935) SCR. 249; Financings Ltd. v. Baldock, (1963) 1 All. ER 443; Buchanan v. Byrnes (1906), 3 CLR 704; Hughes v. N.Ls, (Pvt.) Ltd: (1966) WAR 100; Pigott Construction Co. v. W.J. Crowe Ltd. (1961), 27 DLR (2d) 258; Alkok v. Grymek, (1968) SCR 452; Hongkong Fir Shipping Co. v. Kawasaki Kisen Kaisha Ltd., (1962)2 Q.B. 26; Cehave N.V. v. Bremer Handelsgescllschaft m.b.H., the `Hansa Noxd'; (1976) Q.B.44; Johnson v. Agnew, (1980) AC 3.67; (1979) 1 All. ER 884; Moschi v. Lep Air Services Ltd., (1973) AC 331; (1972): 2 All. ER 393; Red Deer College v. Michaels, (1976) 2 SCR '324 and Keneric Tractor Sales Ltd. v. Langille, (1987) 2 SCR 440 ref.

(e) Lease--

----Operating lease---Default in payment or discontinuation of lease by lessee---Remedies available to the lessor.

Where an operating lease is extended under a written contract extending over a fixed tenure the remedy available to the lessor in case of default in payment or discontinuation of the lease by the lessee would be to lease out the property elsewhere and to recover the amount of difference, if any, from the lessee for the un-expired period of lease under written contract in addition to the higher lease charges for the period that the property remained with the lessee.

(f) Lease---

----Financial lease---Main business of lessor not hiring of machinery but that of providing finance for purchase of chattels ox machinery to be leased---Default by lessee---Remedies available to the lessor.

Cases involving financial lease, where the main business of the lessor is not that of hiring of machinery but it is that of providing finance for purchase of chattels or machinery to be leased out on lease suitable to the particular needs and requirements of the specific lessee. Default in such cases of financial lease can be distinguished from that in case of an operating lease. However as in such cases the lessor indulges only to the extent of financing which is his main vocation, the ordinary course to be followed to minimize the losses would be to dispose of the chattel or machinery. The amount of sale proceeds be adjusted towards the unpaid instalments due for 'the entire tenure of the lease under contract. The balance outstanding, if any, may be recovered from the lessee, to secure the agreed amount of return and the finance, as already stipulated under the teens of the agreement between the parties.

(g) Financial Institution (Recovery of Finance) Ordinance (XLVI of 2001)---

----S. 10---Suit for recovery of advanced amount by Bank---Application for leave to defend suit by defendants---Validity---All the figures had been settled and worked out by the parties in their agreement in specific detail at the time of agreement which also .provided for agreed loss in case of default and from such amount of agreed losses the defendants were entitled to adjustments out of auction proceeds of items, hence no ground for grant of leave to defend the suit was made out.

Qutub Saim with Jam Asif Mehmood Lar of Ahmed and Qazi for Plaintiff.

M. Salim Thepdawala for Defendant Nos.1, 2 and 4.

Mirza Adil Baig M. Beg for Defendant No.3.

Dates of hearing: 28th September, 25th November, 2006 and 20th January, 2007.

P L D 2007 Karachi 525

Before Nadeem Azhar Siddiqi, J

PAK-LIBYA HOLDING COMPANY (PVT.) LTD.---Applicant

Versus

MULTITRADE (PVT.) LTD. and 5 others---Respondents

Execution Application No.50 of 1991 in Suit No.138 of 1986 and C.M.A. No.1797 of 2003, decided on 23rd November, 2005.

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

----Ss. 2(2), 50 & O.XXII, Rr.3, 12---Execution of decree against legal heirs of judgment-debtor---Scope---Decree could be executed on estate of judgment-debtor, but not against his legal heirs, who had not inherited from judgment-debtor---Principles.

Qadir Hassan Tahir v. M/s. Fahimuddin Cotton Industries and others PLD 2000 Karachi 27 ref.

Industrial Development Bank of Pakistan v. Mst. Boqiya Begum 1986 CLC 1592 rel.

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

----S. 50, O.XXII, R.3 & O.XXXIX, Rr. 1, 2---Sindh Chief Court Rules (O.S.), R.74(a)---Execution, proceedings---Judgment-debtor, death of---Application by decree-holder .for bringing on record legal heirs of judgment-debtor and granting of injunction restraining them from selling property---Maintainability---According to R.74(a) of Sindh Chief Court Rules, miscellaneous application must contain one prayer or one series of alternative prayers of same kind---Decree-holder had made two prayers i.e. substitution of legal heirs and permanent and ad interim injunction---Injunction could not be termed as alternative prayer of the same kind of main relief to bring legal heirs on record---Such application was liable to be returned for amendment.

Nemo for- Decree-holder.

Anjum Ghani Khan for Judgment-Debtor No.4.

Nemo for the Remaining Judgment-Debtors.

P L D 2007 Karachi 527

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

SAEED UR REHMAN---Appellant

Versus

EHSANULLAH KHAN AFRIDI and 4 others---Respondents

High Court Appeal No.77 of 2007, decided on 14th June, 2007.

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

----O. XL, R.1---Receiver, appointment of---Object, scope and effect of appointment of receiver and his status stated.

Receiver appointed under Order XL, Rule 1, C.P.C. is ordinarily an impartial and indifferent person between the parties to a cause, appointed by the court to receive and preserve the property or fund in litigation pendente lite, when it does not seem reasonable to the court that either party should hold it or where a party is incompetent to do so as in the case of an infant. Thus, a receiver is an officer of the court through whom equity takes possession of the property, preserves it from waste and destruction, secures and collects the proceeds and ultimately disposes of them according to the rights and priorities of those entitled thereto, whether regular parties in the cause or only coming before the court in a reasonable time and in the due course of procedure to assert and establish their claims. The effect of the appointment of a receiver is not to prejudge the case in any way. The only object and effect of it is to maintain things in their present condition during the pendency of the suit.

The main object of the appointment of a receiver is to protect the estate from unnecessary and expensive litigation, to preserve it for the equal benefit of those equally interested in its distribution and to keep the property at all times within the control of the court by which the receiver has been appointed. Thus, the receiver's possession is not a possession by any personal right. It is the possession of the court and he is totally devoid of any interest in the property. He is in the position of a stake-holder, who has custody of the property for the benefit of the true owner, hence the possession of the receiver is on behalf and for the benefit of all the parties to the suit according to their rights in which he is appointed. Therefore, the property in the hands of receiver is in custodia legis for the person, who can make a title to it. No doubt through the appointment a change of possession takes place, but it has no effect upon the title of the property in any way and determines no right as between the parties, therefore, the possession of a receiver during the pendency of a suit should be regarded as possession for the party, who might ultimately turn out to be the true owner and entitled to possession as such. The effect of such possession by the receiver is to destroy the adverse possession.

The appointment as well as the removal of a receiver is also a matter that rests in the sound discretion of the Court. In exercising its discretion, the court should proceed with caution and be governed by a view of the whole circumstances of the case. A receiver should not be appointed in supersession of a bona fide possessor of property in controversy unless there is some substantial ground for interference. In order XL, Rule 1, C.P.C. the words "just and convenient" have been used, which mean that the Court should appoint a receiver for the protection of property or the prevention of injury, according to legal principle and not that the court can make such appointment because it thinks convenient to do so. A receiver can be appointed, if it is found that the estate is in danger, because no longer properly managed or that difficulties have arisen in connection with litigation about the properties comprised in the estate or that there is good ground to apprehend that the defendant may misapply trust funds.

Yakhtiar Khan v. Rahim Bux PLD 1978 Karachi 401; Azher Walt v. Bell Hellicopter Textran Inc. 1987 MLD 1336, Salahuddin v. Rahim Bakhsh PLD 1992 Quetta 59; Abdul Karim v. Abdul Karim 2001 MLD 1905; Mst. Muhammad Bibi v. Additional Settlement Commissioner, Khairpur PLD 1976 Karachi 181; Shaikh Abdul Shakoor v. Shaikh Abdul Kadir 1982 CLC 707; Muslim Commercial Bank Limited v. Panama Trading Co. (Pvt.) Ltd. 1998 MLD 1844; Iqrar Muhammad Siddiqi v. Mst. Shahid Zareen PLD 1997 Karachi 409; Mithan v. Mst. Jamila 2001 YLR 2291; Maqbool Hussain v. Haji Muhammad Ashraf 1991 MLD 1134; Aftab Ahmed Mufti v. Mst. Seema alias Zareena 1988 CLC 1567; Lala Roshan Lal v. Ch. Muhammad Afzal PLD 1949 Lahore 60; Motherwell Bridge Contracting and Trading Co. Ltd. v. Riaz Ali Khan PLD 1978 Karachi 1093; Mst. Sadma Abbasi v. Ahmed Sideman 1992 MLD 746 and M. Ataur Rehman Alvi v. Inamur Rahman 1974 SCMR 54 ref Habib v. Abtia 23 CLJ 567; Bhupendra v. Monohar 28 (WN) 86; Owen v.-Homan 94 RR 516 and Lala Roshan Lal v. Ch. Muhammad Afzal PLD 1949 Lah. 60 rel.

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

----O. XL, R.1 & O.XXXIX, Rr. 1, 2---Specific Relief Act (I of 1877), Ss.12, 44, 54 & 55---Injunction and appointment of receiver during pendency of suit--Effect---Both such reliefs being preventive in nature having common object to preserve subject-matter of litigation--Where receiver was appointed, then granting of an injunction would not be necessary as such appointment would operate as an injunction against parties from interfering with possession of receiver except by permission of Court---Principles.

The issue of appointment of a receiver during pendency of suit and issue of injunction, whether temporary or permanent, are a form of specific relief. A relief by specific performance, injunction and receiver belongs to the same branch of the law. The appointment of a receiver operates as an injunction against the parties, their agents and person claiming under them, restraining them from. interfering with the possession of the receiver except by permission of the court and an order for an injunction is always more or less included in an order for a receiver, therefore, it is not necessary, if a receiver be appointed, to go on and grant an injunction in terms. The Specific Relief Act deals with all the three forms of relief. The relief granted by appointment of receiver pendente lite bears in many respects a close analogy to that by temporary injunction, as such, both are essentially preventive in their nature being properly used only for the prevention of future injury, rather than for the redress of past grievances and both have one common object in so far as they seek to preserve the res or subject-matter of the litigation unimpaired, to be disposed of in accordance with the future decree or order of the Court.

M. Ataur Rehman Alvi v. Inamur Rahman 1974 SCMR 54 fol.

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

----Ss. 12, 39, 42 & 54---Civil Procedure Code {V of 1908), O.XL, R.1---Suit for declaration, specific performance of agreement of sale, permanent injunction, possession and cancellation of subsequent agreement of sale---Appointment of receiver, application for---Plaintiffs plea that defendant-vendor had taken possession of suit land by force---Subsequent vendor claimed to be holding suit land bonafidely under subsequent agreement, which fact was denied by vendee-defendant---Plea of subsequent- vendor of having let out suit land to his tenant was not raised in written statement---Court appointed receiver and handed over him possession of suit land in circumstances.

(d) Equity---

----Person seeking equity must come to court with clean hands.

K.A. Wahab for Appellant.

Abid S. Zuberi for Respondent No.1.

Saathi M. Ishaque for Respondent No.2.

Date of hearing: 18th May, 2007.

PLD 2007 Karachi 536

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

ZULFIQAR ALI SHAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.193 of 2006, decided on 10th August, 2007.

Penal Code (XLV of 1860)---

----Ss. 409 & 477-A---Appreciation of evidence---Benefit of doubt---Charge against accused being that of criminal breach of trust, prosecution must prove not only entrustment of or dominion over property, but also that accused either, dishonestly misappropriated, converted, used or disposed of that property himself or that he wilfully helped some other person to do so---Prosecution must affirmatively prove those ingredients of the offence unless the receipt of the money was admitted by accused and he offered no satisfactory explanation of what he did with it---In the present case, accused, in his statement recorded under S.342, Cr.P.C., had categorically denied the receipt of amount in dispute---Prosecution had failed to prove the ingredients of offence under provisions of S.409, P.P.C.---Accused had further been convicted for offence punishable under S.477-A, P.P.C..---No evidence had been led by the prosecution to prove that accused, with intent to defraud, had made or abetted the making of any false entries in the books of accounts, except the statement of Handwriting Expert which had simply shown that writing on some documents was similar to that of the accused---Examination of said documents and specimen writing of the accused showed vast difference between both the writings---Handwriting Expert was also not definite with the disputed writing as he had opined that writings were similar but did not use the word "same"---Prosecution, in circumstances had failed to prove the case against accused beyond any reasonable doubt---Conviction and sentence awarded to accused under impugned judgment were set aside giving him benefit of doubt---Accused was acquitted and set at liberty.

Shakir Hussain v. The State PLD 1956 SC (Pak.) 417 and Kishin Singh v. Emperor AIR 1928 PC 254 ref.

Muhammad Ashraff Kazi for Appellant.

Ainuddin Khan, ADPGA for Respondent.

Date of hearing: 29th May, 2007.

PLD 2007 Karachi 544

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

FAISAL---Appellant

Versus

THE STATE---Respondent

Special Anti-Terrorism Jail Appeal No.15 of 2003, decided on 17th August, 2007.

(a) Review (Criminal)---

----Criminal Procedure Code, 1898 does not contain any provision for reviewing the judgment---Once the judgment is signed and announced, it cannot be reviewed.

Rehmat Ali v. State 1971 SCMR 513; Muhammad Khan v. Muhammad Aslam 1971 SCMR 789; Gulzar Hassan Shah v. Ghulam Murtaza PLD 1970 SC 335; Juan Sullivan. v. State 1971 SCMR 618 and Muhammad Ismail v.. Hidayatullah 1981 SCMR 35 ref.

Mst. Mumtaz Begum v. Shakil Hyder 1997 PCr.LJ Kar. 776 distinguished

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

----Arts., 9 & 4---Access to justice---Accused .person involved in an offence carrying imprisonment of any description and unable to engage an advocate, is entitled to be represented by an advocate, and such right of the accused is his Fundamental Right as enshrined in Art.9 of the Constitution---Representation by a counsel and assistance by a person learned in law is a sine qua non for enjoying protection of Arts. 9 & 4 of the Constitution and a fair trial cannot be visualized without such an accused being represented by a counsel of his choice or by a counsel on State expense---Trial and proceedings without a counsel, in case of such an accused would be violative of Art.9 of the Constitution---Accused from the very stage of his arrest till final disposal of the case is required to be defended or represented by a legal expert viz. advocate, if he is poor, indigent or pauper the State is responsible to provide such assistance to him on State expense---Principles---No scheme to deal with such matter being under consideration with the Government nor any adequate arrangements being made available to them to cater with the requirements of such poor accused persons, High Court observed that it was expected that Government would give very serious consideration to prepare and implement, on urgent basis, a scheme in respect of providing free legal assistance to poor, indigent or incommunicado accused persons and provide guidelines in that respect---High Court also clarified that present order Had no retrospective effect and shall not affect cases past and closed nor would invalidate the judgments, orders or sentences passed nor the proceedings which may have become final, however, pending trials and proceedings may continue subject to the present judgment.

Rehmat Ali v. State 1.971 SCMR 513; Muhammad Khan v. Muhammad Aslam 1971 SCMR 789; Gulzar Hassan Shah v. Ghulam Murtaza PLD 1970 SC 335: Juan Sullivan v. State 1971 SCMR 618; Muhammad Ismail v. Hidayatullah 1981 SCMR 35; Mst, Mumtaz Begum v. Shakil Hyder 1997 PCr.LJ Kar. 776; Banazir Bhutto v. President of Pakistan PLD 1998 SC 388; Arshad Mahmood v. Government of Punjab PLD 2005 SC 193; Mushtaq Ahmed Mohal v. Hon'ble Lahore High Court 1997 SCMR 1043; Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504; Government of Balochistan v. Azizullah PLD 1993 SC 341; Gideon v. Wainwright (1963) 372 US 335; Jon Richard Argersinger. v. Raymond Hamlin (1972) 407 US 25; Hussainara Khatoon v. State of Bihar AIR 1979 SC 1369; 5uk Das v. Union of Territory of Aruxadal Paradesh AIR 1986 SC 991 and Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 ref.

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

----Art. 9---Right of access to justice to all---Such right is equally found in the .doctrine of due process of law'---Right of access to justice includes the right to be treated according to law, the right to have a fair .and proper trial and a right to have an impartial court of tribunal---Termdue process of law' summarized.

The Constitution gives guarantee to the citizens that their life and °liberty would not be deprived except in accordance with law. Right of access to justice also comes within such guarantee which means that the accused should have a fair trial. Thus a fair trial is a fundamental right of an accused person. The right of access to justice to all' Ss a well recognized and invariable right enshrined in Article 9 of the Constitution. This right is equally found in the doctrine ofdue process of law'. The right of access to justice includes the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial Court or Tribunal. The term `due process of law' is summarized as follows:--

(1) Accused shall have due notice of proceedings which affects his rights;

(2) He shall be given reasonable opportunity to defend;

(3) The Tribunal or Court before which his rights are to be adjudicated shall be so constituted as to give reasonable assurance of its honesty and impartiality; and

(4) It shall be a Court of competent jurisdiction.

The right of access to justice includes the right to be treated according to law, the right to have a fair and proper trial.

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

----Part II, Chap. I [Arts.8 to 28]---Fundamental Rights---Interpretation of fundamental rights---Principles.

Abdul Razzak for Appellant.

Habib Ahmed, A.A.-G. for Respondent.

PLD 2007 Karachi 555

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JT

ALI MURAD---Appellant

Versus

THE STATE---Respondent

Special Criminal Appeal No.D-145 of 2005, Criminal Appeal No.164 of 2007 (Kar.) decided on 20th August, 2007.

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

----S. 9(c)---Appreciation of evidence---Benefit of doubt---Recovery of 2 kilograms of Charas---Proof---Receiving of sample by Chemical Examiner---Un-explained delay---Accused was convicted by Trial Court and sentenced to eight years' imprisonment for possessing 2 kilograms of Charas---Accused pointed out that there was gap of 28 days between the date of dispatch of property from police station and receipt of same by Chemical Analyzer and there was discrepancy in weight of sample received---Plea raised. by accused was that on such discrepancies conviction was not justified---Validity---Held, there was gap of 28 days in between the date of dispatch of the property from police station and receipt of same by Chemical Analyzer, therefore, prosecution was required to furnish explanation as to where was the property in between that period---Weight of sample was quite different when it was weighed by Chemical Analyzer, therefore, the possibility of tampering with the property during the period when it was dispatched and when it was received by Chemical Analyzer could not be ruled out---Chemical Analyzer's report in such circumstances had lost its importance---Sample received by Chemical Analyzer was riot the same which was sent to him for examination and report---Entire case hinged on the report of Chemical Analyzer but the same had been discarded---Prosecution failed to prove that property allegedly secured from the possession of accused was Charas, thus no case against the accused was proved beyond reasonable doubt---Conviction and sentence awarded to accused by Trial Court was set aside---Appeal was allowed in circumstances.

Adnan Karim for Appellant

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

Date of hearing: 15th August, 2007.

P L D 2007 Karachi 558

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

MUZAFFAR AYAZ ABID BALOCH---Petitioner

Versus

REGIONAL NATIONAL ACCOUNTABILITY BUREAU (SINDH) through Director-General---Respondent

Constitutional Petition No.D-1446 of 2007, decided on 24th August, 2007.

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

----Ss. 9(a)(iv) & 9(b)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Bail, grant of---Corruption and corrupt practices---Prima facie case---Accused was clerk in a bank and he received four Pay Orders to be posted in accounts of two departments but he, instead of doing .that posted those Pay Orders in a private accounts, from where amount of two Pay Orders had been withdrawn---Credit/deposit slips filled in by the accused were sent to handwriting expert, whose report was in positive---Effect---Accused appeared to have some connection in depositing the four Pay Orders in that private account---Accused was a bank employee who had knowledge that Pay Orders were to be deposited in the account of person in whose favour they were issued but in spite of his knowledge, he filled in credit/deposit slips so as to be deposited in the private account---One of the entries in clearance register was also maintained by accused as per Handwriting Expert's positive report with regard to the entry---Cash incharge also stated that two amounts were received by accused which were drawn from the private account---Reasonable grounds were available for believing that accused was involved in the case along with other co-accused---Bail was declined in circumstances.

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

----Ss. 17(b) & 18(c)---Criminal Procedure code (V of 1998), S.161---Investigation of case---Statements under S.161, Cr.P.C., recording of---Procedure---Statements under S.161, Cr. P. C. are required to be made in first person and it should be as nearly as possible a complete record of what the witness has said.

Bommanaboyina Ramaiah v. State of Andhra Pradesh AIR 1960 Andhra Pradesh 160 ref.

Shaukat Hayat for Petitioner.

Shafaat Nabi Khan Sherwani, Deputy Prosecutor-General Accountability for Respondent.

Date of hearing: 9th August, 2007.

P L D 2007 Karachi 562

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

Syed QAMAR ALI SHAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.345 of 2006; decided on 20th August, 2007.

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

----S. 9(c)---Appreciation of evidence---Discrepancies in evidence---Effect---Accused was arrested while travelling in a public transport and was carrying 5 kilograms of charas---Accused was convicted by Trial Court and sentenced to 14 years of imprisonment and fine---Accused pointed out contradictions in the statements of prosecution witnesses with regard to names of persons who boarded bus when it was stopped; about the number of adjoining seat; and about the time of departure of the bus---Plea raised by accused -was that in view of such discrepancies his conviction boas not justified---Validity---All contradictions pointed out were minor in nature because through such contradictions basic story of prosecution was not changed nor through such contradictions improvements had been made so as to strengthen the case of prosecution---Such contradictions. did not come within the definition of major contradictions and could be safely ignored---Minor contradictions could appear when evidence was recorded after lapse of one year---Prosecution had proved its case against accused, beyond any reasonable doubt but the sentence was on higher side, therefore, it was reduced to 10 years---Appeal was dismissed accordingly.

Ali Muhammad v. State 2003 SCMR 54 ref.

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

----S. 9(c)---Criminal procedure Code (V of 1898), S.516-A, proviso three---Recovery of charas---Proof---Sending of samples for chemical examination---Plea raised by accused was that material not sent to Chemical Examiner was not proved to be charas---Validity--When a sample was prepared from the property then it would represent the entire property---Such observation was supported from the provisions of last proviso to S.516-A, Cr. P. C.

Shoukat Hayat for Appellant.

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

Date of hearing: 16th August;-2007.

P L D 2007 Karachi 566

Before Anwar Zaheer Jamali, J

MUHAMMAD TAHIR BHATTI---Appellant

Versus

ADMINSITRATOR, K.M.C. and others---Respondents

Civil Revision Application No.23 of 2001, decided on 20th August, 2007.

Specific Relief Act (I of 1877)---

----S. 42 & 54---Partnership Act (IX of 1932), S.37---Declaration of title and mandatory injunction---Dissolved partnership---Outgoing partner---Entitlement---Misreading and non-reading of evidence---Plaintiff and defendant were partners in a firm which was dissolved many years ago and defendant had been given his share through court decree---Later on plaintiff got suit plot allotted in his name on the basis of dissolved partnership---Authorities, on application filed by defendant, inserted name of defendant in the allotment order of suit plot on the ground of his being partner---Suit filed by plaintiff was concurrently dismissed by both the. courts below---Validity---Provision of S.37 of Partnership Act, 1932, only envisaged sharing of profits of business which had accrued during intervening period before final settlement of accounts, in favour of outgoing partner---Scope of such provision of Partnership Act, 1932, could not be stretched to the extent that a person who had independent source, was to be made responsible to share such property, with a person with whom his partnership business stood dissolved much earlier---Judgments and .decrees passed by both the courts below were based on patent misreading and non-reading of evidence---After issuance of allotment order in favour of plaintiff in respect of suit plot, authorities had no jurisdiction to entertain application of defendant and to order insertion of his name in allotment order of plaintiff---Judgments and decrees passed by both the courts below were set aside and suit was decreed in favour of plaintiff--Revision was allowed accordingly.

Raja Ali Asghar for Applicant.

Ataullah Khan for Respondents Nos. 4 to 7.

Nemo for the Remaining Respondents.

Dates of hearing: 6th, 13th November, and 11th December, 2006.

P L D 2007 Karachi 573

Before Anwar Zaheer Jamali and Muhammad Ather Saeed, JJ

BOSICOR CORPORATION LTD. through Attorney---Appellant

Versus

AMAN-UR-REHMAN---Respondent

High Court Appeal No.30 of 2006, decided on 24th August, 2007.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Limitation Act (IX of 1908), S.23 & Art.120---Civil Procedure Code (V of 1908), O. VII, R.11---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court appeal---Declaration of title and mandatory injunction---Limitation---Continuing breaches and wrongs, principle of---Applicability---Rejection of plaint---Plaintiff-company, in year 1994, issued its fully paid-up share certificates along with blank transfer deeds to defendant in lieu of his service incentive---When defendant resigned from the service of plaintiff, in year 1996 plaintiff company called upon defendant to surrender disputed certificates and blank transfer deeds---On refusal of defendant, suit was filed by plaintiff in year, 2004---Single Judge of High Court rejected the suit being barred by limitation---Plea raised by plaintiff was that period of limitation was continuing as provisions of S.23 of the Limitation Act, 1908, were applicable---Validity---If any cause of action had accrued to plaintiff-company for filing of suit, it had accrued on issuance of letter to defendant in year, 1996, therefore, period of limitation as provided under Art.120, Limitation Act, 1908 was to be computed from such date---Abiding by terms of the letter issued in year 1994, the defendant addressed letter in year 2003, which therefore, had neither given any fresh cause of action to plaintiff, nor had extended the period of limitation for any action against defendant, which had expired much earlier of the issuance of letter in year, 2003---Provisions of S.23 of Limitation Act, 1908, were not available to plaintiff to cover up the period of limitation for the purpose of filing of suit---Division Bench of High Court in High Court Appeal declined to interfere in the order passed by single Judge of High Court---Intra-Court appeal was dismissed in circumstances.

A. Ismailjee and Sons Ltd. v. Pakistan PLD- 1986 SC 499; The Commissioner of Income Tax v. M/s. Kotak and Co., PLD 1958 Karachi 606; H.B. F.C. v. Shahinsha Cooperative Building Society 1992 SCMR 19; Niranjan Das v. S.M. Charu Bala Das PLD 1964 Dacca 406; Custodian of Enemy Property v. Hoshang M. Dastur PLD 1977 Karachi 377; Abdul Sattar and Co. v. Dada Ltd. PLD 1979 Karachi 88; Brothers Steel Ltd. v. Mian Mairajuddin PLD 1995 SC 320; Muhammad Ahmed v. Associate Engineering Concern (Pvt.) Ltd. 1998 CLC 426; Bashir Ahmed and others v. Muhammad Aslam and others 2003 SCMR 1864; Mst. Bolo v. Koklan AIR 1930 PC 270; Karanamurthi Thevar v. Ramanatha Thevar AIR 1946 Madras 248; Muhammad Ali and 7 others v. Sakar Khanoo Bai PLD 1984 Karachi 97; Khushi Muhammad and 3 others v. Mst. Zainab Bibi and 20 others 1981 SCMR 814; Mst. Zarifan v. Mst. Rahmati 1987 SCMR 66; Wali and 10 others v. Akbar and 5 others 1995 SCMR 284; Haji Kadir Bux v. Province of Sindh and another 1982 SCMR 582; Muhammad Munir and others v. Mst. Sharifan and others 1989 MLD 3350; Jurawan Singh and others v. Ramsarekh Singh and others AIR 1935 Cal. 405; Sheo Prasad Sonar v. Manager Manhar and .another AIR 1914 All. 531; Nur Muhammad v. Gauri Shankar and another AIR 1920 Lah. 195; K.A. Srinivasa Ayyangar v. Ramanujachariar AIR 1941 Madras 498; Mukhedo Singh and another v. Harakh Narayan Sindh and others AIR 1931 Patna 285; Muhammad Matin v. Mrs. Dino Manekji Cinoy PLD 1993 Karachi 387; Maneckji Pestonji Bharucha and another v. Wadilal Sarabhai and Company AIR 1926 PC 38; Abdul Ghafur v. The Thal Development Authority, PLD 1958 (W.P.) Lahore 169; Nazakat Ali v. WAPDA and others 2004 SCMR 145; Haji Ghulam Rasul and others v. Government of the Punjab and others 2003 SCMR 1815; Cantonment Board, Rawalpindi v. Muhammad Sharif PLD 1995 SC 472; Khawaja Muhammad Afzal and another v. Sh. Muhammad Sadiq and others 1988 SCMR 179; Syed Niamat Ali and 4 others v. Dewan Jairam Dass and another PLD 1983 SC 5; Jumma Khan and others v. Mahmud Khan and others 1973 SCMR 289; Mst. Izzat v. Allah Ditta PLD 1981 SC 165 ref.

Rasheed A Razvi and Salman Talibuddin for Appellant.

Munib Akhtar for Respondent No.1.

Nemo for Respondents Nos. 2 and 3.

PLD 2007 Karachi 586

Before Muhammad Afzal Soomro and Mrs. Qaiser Iqbal, JJ

MUHAMMAD NAZIM-UD-DIN---Petitioner

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU through Director General, National Accountability Bureau, Karachi and 6others---Respondents

Constitutional Petition No.D-348, D-381 and D-507 and C.M.A No.1326 of 2007, decided on 24th September, 2007.

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

----Preamble---Object of National Accountability Ordinance, 1999 is to expedite disposal of cases involving corruption, corrupt practices, misuse of power, misappropriation of property and matters connected therewith under National Accountability Ordinance, 1999, and to avoid procedural delays and technicalities.

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

----S. 16-A(a)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Transfer of case to Accountability Court---Principles---Trial Court, on application by Chairman, NAB, passed order for transfer of case to Accountability Court---Appellate Court set aside the order passed by Trial Court and dismissed application filed by National Accountability Bureau---Validity---Provision of S.16-A of National Accountability Ordinance, 1.999; being self-contained and self-executory left no option to the court before whom cases involving Scheduled offences were pending except to transfer the same; it was rather imperative to accede to such request unless it could be shown to the satisfaction of the court that the offence against the accused did not fall amongst the offences included in the Schedule---Court, on no other ground could turn down a request for transfer of a pending case to Accountability Court on application made by Chairman National Accountability Bureau under the Ordinance---High Court in exercise of constitutional jurisdiction, set aside the order passed by Appellate Court and maintained the order passed by Trial Court, whereby the case was transferred to Accountability Court---petition was allowed accordingly.

M.S. Khawaja v. The state PLD 1965 SC 287; Ch. Zulfiqar Ali v. Chairman, NAB and others PLD 2003 Lah. 593; M. Asham Zaheer v. Ch. Shah Muhammad and another 2003 SCMR 1691; Sardar Ahmed Siyal and others v. National Accountability Bureau and others 2004 SCMR 265 and Begum Salina Ahmed v. The State and others 2007 YLR 576 ref.

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

----S. 4---National Accountability Ordinance, 1999 extends to whole of Pakistan and applies to all persons in Pakistan that is to say all citizens of Pakistan and persons who are or have been in service of Pakistan, wherever they may be, including areas which are dart of Federally and Provincially Administered Tribal Areas.

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

----Art. 199---Constitutional petition---Maintainability---Efficacious remedy, non-availability of---Effect---When a person/citizen finds no forum to get his grievance redressed, the only way open to such person is to invoke constitutional jurisdiction of High Court and the same could be exercised sparingly and judiciously.

Muhammad Ashraf Kazi for Petitioner (in C.P. No.D-348 of 2007).

Ainuddin Khan, ADPGA for the Petitioners (in C.Ps. Nos.D-381 and D-507 of 2007).

Qadir H. Saeed for Respondents.

PLD 2007 Karachi 594

Before Zaffar Ahmed Khan Sherwani, J

AQUIL LOTIA---Applicant

Versus

DAILY AUSAF, KARACHI through Chief Editor and another---Respondents

C.M.As.Nos.9052 and 9053 of 2005 in Civil Suit No.908 of 2002, heard on 24th September, 2007.

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

----S. 151 & O.V, R.20---Inherent powers of Court under S.151, C.P.C.---Scope---Mistake of office of court in placing the matter before the court for non-prosecution in spite of statement of plaintiff's counsel that no other address except the one which the plaintiff had mentioned in the plaint, was available with him and an application under O.V, R.20, C.P.C. was also on the record---Plaintiff, in the present ease, had suffered on account of such mistake of the official of the court---Effect---Held, court in its inherent powers as provided under S.151, C.P.C. could pass an order correcting the mistake of the court and provide relief to the party, if any adverse order had been passed against it on account of such mistake in order to stop the abuse of the process of the court---Act of the court could not prejudice anyone---High Court, in its original jurisdiction, allowed the application under S.151, C.P.C. and ordered the office to fix application under O.V, R.20 C.P.C. for disposal.

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

----S. 151---Limitation Act (IX of 1908), Art.181---Application under S.151, C.P.C.---Limitation---No period of limitation has, been specifically provided in the Limitation Act, 1908, therefore, the period for limitation for filing such application would be governed by Art.181, Limitation Act, 1908 which provides a period of three years.

Muhammad Chottey Khan v. Muhammad Munir Khan and 2 others PLD 1991 Kar. 331 and Mst. Niqar Bibi v. Salaluddin Khan PLD 1990 SC 76 rel.

(c) Act of Court---

----Act of court could not prejudice ally one.

Mufti Muhammad Bashir for Applicant.

PLD 2007 Karachi 597

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

Raja MUHAMMAD ZARAT KHAN and another---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Cabinet Division and 2others---Respondents

Constitutional Petitions Nos.D-1008 and 1092 of 2007, decided on 21st September, 2007.

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

----Ss. 18(b)(e) & 24(a)---Criminal Procedure Code (V of 1898), S.54---Arrest of accused---Stages---There are three stages where a person can be arrested: first stage being that if after receipt of any information as provided under S.18(b) of National Accountability Ordinance, 1999, Chairman National Accountability Bureau forms opinion that reasonable complaint has been made or credible information has been received or reasonable suspicion exists that accused is involved in the case, then he can arrest accused person; second stage of arrest is provided under S.18(e) of National Accountability Ordinance, 1999, where Chairman, NAB can make arrest if conditions mentioned in S.54, Cr.P.C. are fulfilled or if Investigating Officer requests for permission to arrest accused then he can grant such permission; and third stage is visualized under S.24(a) of National Accountability Ordinance, 1999, under which if accused is neither arrested by Chairman, NAB initially nor as provided under S.18(e) of the Ordinance, then Chairman, NAB can direct that such accused person can be arrested.

Ghulam Hussain Baloch v. Chairman, NAB PLD 2007 Kar. 469 and Zahoor Ahmed Sheikh v. Chairman, NAB PLD 2007 Kar. 243 rel.

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

----Ss. 18(e) & 24(a)---Arrest of accused---Chairman, NAB, duty of---Before making arrest or issuing warrant to arrest or awarding permission to any Investigating Officer to arrest accused, Chairman, NAB is required to satisfy himself as to whether there is tangible evidence fulfilling any of the conditions mentioned in S.54, Cr.P.C.---If Chairman, NAB forms opinion on the material placed before him then he can make arrest or permit Investigating Officer to make arrest, otherwise he cannot do so.

Ghulam Hussain Baloch v. Chairman, NAB PLD 2007 Kar. 469 and Zahoor Ahmed Sheikh v. Chairman, NAB PLD 2007 Kar. 243 rel.

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

----S.24-A---Public functionaries---Speaking order---Scope---Mandatory and compulsory upon officer to give reasons as mandated by S.24-A of General Clauses Act, 1897, under which every authority and officer, who is empowered to pass any order or issue any direction, is required to give reasons for passing such order or issuing such direction.

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

----Ss. 18(e) & 24(a)---Criminal Procedure Code (V of 1898), S.54---Constitution of Pakistan (1973), Art.9---Arrest of accused---Issuance of arrest warrant---Necessary material---Duties of Chairman, NAB and Investigating Officer---Case diaries of Investigating Officer---Plea raised by accused was that his arrest was illegal as warrants of arrest were issued without placing any material before Chairman, NAB justifying his arrest---Validity---When Chairman, NAB issued warrant of arrest of accused, there was no case diary showing that any material was placed before Chairman, NAB for his perusal and examination enabling him to form opinion within the scope of S.54, Cr.P.C.--At the relevant, time there was no tangible evidence with Chairman, NAB to issue warrant of arrest of accused---Warrant, in absence of such evidence, could not be termed as a legal warrant issued under the provisions of S.54, Cr.P.C. nor Chairman, NAB was justified in doing so in absence of such material---Constitution had given guarantee to the citizens under Art.9 that they would be dealt with in accordance with law---Such guarantee had been violated---Investigating Officer did not wait to receive documentary evidence and to examine those documents to form opinion within the meaning of S.54, Cr.P.C.---As such even at the time of arrest of accused there was no material with Investigating Officer justifying arrest---Arrest of accused was declared illegal and in violation of Art.9 of the Constitution.

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

----S. 24(d)---Criminal Procedure Code (V of 1898), Ss.167 & 204---Constitution of Pakistan (1973), Art.199---Constitutional petition---Arrest and physical remand---Administrative Judge, duty of---Case diaries, placing on record---Grievance of accused persons was that they were arrested by Investigating Officer and their physical as well as judicial remand by Administrative Judge were without any material available on record---Validity--- When accused were produced before Administrative Judge, Accountability Court, it was his duty to receive case diaries from Investigating Officer for his own record and after examining the same could have formed opinion about justification of arrest and grant of physical remand---Conduct of Judge was inappropriate and illegal as under S.167, Cr.P.C. he was bound to receive case diaries from Investigating Officer for his record---Administrative Judge, Accountability Court did not apply his mind while granting remand as there was no material available with him to grant remand---Such order of remand passed by Judge was patently illegal and could not be protected under any provision of law and thus arrest and further detention of accused was illegal---Investigating Officer had filed reference and Accountability Court had taken cognizance in the matter, as such the process of investigation was over---After taking cognizance, the court had issued process within the meaning of S.204, Cr.P.C. and thereafter remanded the accused to judicial custody, therefore, detention of accused after such order was legal---Petition had become infructuous in circumstances.

Ghulam Hussain Baloch v. Chairman, NAB PLD 2007 Kar. 469; Zahoor Ahmed Sheikh v. Chairman, NAB PLD 2007 Kar. 243 and Muhammad Hanif v. NAB PLD 2007 Kar. 429 rel.

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

----Ss. 18(d) & 24(a)---Constitution of Pakistan (1973), Art.9---Illegal arrest---Remedy---As arrest of accused persons was illegal and violative of Art.9 of the Constitution, therefore, NAB was directed by High Court to pay compensation of Rs.500,000 to each of the accused in circumstances.

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

----S. 18---Police Rules, 1934, R.25.54---Investigation of case---Case diaries---Necessary ingredients---Case diary' andcase file'---Distinction---Case diaries produced by Investigating Officer were not prepared as per law as those .did not contain number on the sheet, stamp of police station, list of statements recorded ender S.161, Cr.P.C. number of pages of each such statement, diaries were without supporting material as in the file no complaint or information received by Chairman, NAB on which inquiry or investigation was authorized and/or any other document, memo. or statements of any witnesses were available---Case file did not fulfil the requirements of rules of "case diaries" and "record of case diaries" as provided under R.25.54 of Police Rules, 1934.

Raja Qureshi for Petitioners (in C.P.No.D-1008 of 2007).

Ali Ahmed Junejo for Petitioners (in CP.No.D-1092 of 2007).

Shafat Nabi Sherwani, DPGA, NAB for Respondents.

Date of hearing: 9th August, 2007.

P L D 2007 Lahore 1

Before Mian Saqib Nisar, J

D.G. KHAN CEMENT COMPANIES LIMITED through Company Secretary/through Chairperson---Appellant

Versus

MONOPOLY CONTROL AUTHORITY---Respondent

Monopoly Appeal No.2 of 2005, decided on 26th July, 2006.

(a) Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance (V of 1970)--

----S.20---Civil Procedure Code (V of 1908), S.100---Appeal to High Court---Scope.

An examination of section 20 of the Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970, indicates that it is based on, and indeed is identical to section 100 C.P.C., which provides for second appeals, against decrees of Civil Courts. As is well known, the second appeal under section 100, C.P.C. lies only on questions of law. The scope and extent of scope of section 100, C.P.C. and the sort of questions and issues which are regarded as questions of law for purposes of that section are well settled by numerous decisions of the Supreme Court and the High Courts. It is clear from the close identity between section 20 of the Ordinance and section 100, C.P.C. that an appeal against an order of the Authority also lies only on questions of law. Furthermore, the sort of questions and issues which should be regarded as questions of law under section 20 of the Ordinance are essentially the same on which a second appeal can be taken under section 100 C.P.C.. The principles established for the proper application and interpretation of section 100, C.P.C. can, therefore, be adopted and applied for purposes of section 20 of the Ordinance as well.

(b) Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance (V of 1970)---

----S.3---Prohibition on undue concentration of economic power---Scope.

Section 3 of the Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970 is one of the most important provisions of the Ordinance. It prohibits and renders unlawful, any undue concentration of economic power, or unreasonable monopoly power, or unreasonably restrictive trade practices. Each of these is a distinct category of undesirable situation and proscribed circumstances and each is separately defined and dealt with in the Ordinance.

(c) Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance (V of 1970)---

---S.10---Function of the Authority---Scope.

Section 10 of the Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970, lays down the functions of the Authority, and clause (t) of this section empowers the Authority "to make such orders and to do all such things as are necessary for carrying out the purposes of this Ordinance". Thus the Authority has a general statutory duty to ensure that there is no violation of section 3 of the Ordinance by any person or persons, and it has been empowered accordingly.

(d) Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance (V of 1970)--

----Ss.2, 3 & 6---"Trade" and "trade practice"---Concepts---Power of Authority---Scope.

An unreasonably restrictive trade practice is defined in section 2(m), of the Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970 but in order to properly appreciate this definition, it is necessary also to examine the concepts of trade and trade practice, both of which are also defined terms. Trade is defined in broad terms, and it is not in dispute that the cement industry is a trade within the meaning of section 2(k). Section 2 (1) defines a trade practice. Though exhaustive, the definition brings within its ambit both an act (i.e. a single or isolated instance or event), and also a practice (i.e. a trade custom or usage or acts or events or series of acts or events undertaken with some degree of regularity, continuity or repetition) in relation to the carrying on of a trade or business. If the definition (section 2(n) of an unreasonably restrictive trade practice is now examined, it will be found to comprise of two main components: (a) there must be a trade practice, and (b) such trade practice must or must have the effect of unreasonably preventing, restraining or otherwise lessening competition in any manner. Obviously, both components must exist for a finding of an unreasonably restrictive trade practice to be recorded. Looking at the second component of the definition, it is clear that this itself has two requirements: (i) the trade practice must prevent, restrain or lessen competition, and (ii) it must have this effect in any unreasonable manner or to an unreasonable degree. The term competition is not as such defined in the Ordinance and it is not necessary to exhaustively examine this concept in the context of monopoly law (or anti-trust law as it is known in American jurisprudence). It is sufficient to note that competition means and requires the free interplay between the suppliers and consumers of goods in a market environment. The actions and decisions of the buyers and sellers (such as the price demanded for the commodity by the suppliers or accepted by the consumers, the quantity to be supplied or consumed, etc.) must be set purely by market forces and conditions. The market itself may, of course, be subject to regulation by the State. For example, a retail market where foodstuff and other perishable items are sold may be subject to local regulations as to timings, hygiene requirements, specifications as to weights and measures to be used, etc. The requirement of competition under the Ordinance focuses on the actions and decisions of those who act in, or in relation to, the market as the suppliers and consumers of goods. These actions and decisions must be solely controlled by the market forces and conditions as prevailing from time to time". It is also important to keep in mind in this context that the requirement as to competition is not limited to the immediate or actual market participants. To revert to the example just given, the suppliers would include not just the shopkeepers in the retail trade, but also their wholesale suppliers and the persons from whom the wholesellers acquire the goods, etc.

Ordinarily, if the Authority is of the view that there has been or is likely to be a breach of section 3, it must establish that there exists, or will exist, an unreasonably restrictive trade practice. Put differently, the Authority must establish that all of the various ingredients of an unreasonably restrictive trade practice as discussed above have been made out. Section 6 (1) however, contains a deeming provision with regard to unreasonably restrictive trade practice. Once it is shown that a situation as contemplated by that subsection has arisen, the law deems that an unreasonably restrictive trade practice exists, i.e. has been resorted to or is being continued. The existence of a subsection (1) situation is in and of itself a contravention and violation of section 3 by virtue of the deeming provision.

(e) Interpretation of statutes---

----Deeming provision in a statute---Principles of interpretation.

Once a deeming provision is attracted, the court must not let its mind boggle at the consequences that may flow from or be ancillary to such deeming and is required to recognize and give effect to the same. However, the court is entitled to ascertain the purpose and scope of the deeming provision, i.e. as to how and between whom is the deeming provisions attractive or made applicable. Finally for the deeming provisions to be applicable, all the conditions laid down in the relevant provisions must be fulfilled before it can be regarded as having taken effect.

Mehreen Zaib-un-Nisa v. Land Commissioner, Multan and others PLD 1975 SC 397 ref.

(f) Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance (V of 1970)---

----Ss.6 & 2(a)---Unreasonably restrictive trade practices---Interpretation, application and scope of S.6, Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970---Agreement or cartel---Agreement of the nature covered by S.6(1), Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970---Existence---Onus of proof---Section 6, Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970 contains a two stages process; in the first instance, an agreement must establish in terms of S.6(1); such an agreement may be admitted or found (objectively) to exist in the facts and circumstances of the particular situation being examined, if an agreement is so found to exist, the deeming provision of S.6(1) becomes applicable, if however, this stage is crossed, only then would the matter move to the second stage, namely that of determining whether the conditions of S.6(2) are found to be attractive (i.e. all of its clauses held to apply) then the deeming provisions of S.6(1) would be negated---Principles elaborated---Making of gateway---Ingredients.

Subsection (1) of section 6, Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970 contains three clauses, the first two of which also contain certain sub-clauses. The first requirement for the deeming provision to become applicable is that there must be an agreement. This is the most basic requirement, and without there being an agreement, section 6(1) can have no application at all. In the first instance, therefore, the agreement must be established. Indeed, if it is asserted that subsection (I) applies to any situation, what is being asserted is nothing more than that there exists an agreement of the sort referred to in that subsection. The requirement as to the existence of any agreement, is therefore, central to a proper appreciation and correct application of section 6.

Three primary questions arise in relation to an agreement under section 6(I): (a) what is the nature of the agreement; (b) among whom must the agreement subsist or exist and (c) how is the agreement to be established?. As to the first question, the answer is contained in the definition given in section 2(a) of the Ordinance. As is immediately apparent, the law has defined the expression in very broad terms. The definition is inclusive and not exhaustive. It includes any arrangement or understanding. It does not need to be in writing and it does not even have to be or intended to be legally enforceable. Thus the meaning of agreement in the Ordinance goes far beyond (although it certainly includes) that which is contained in the Contract Act, 1872. While there must necessarily be a meeting of minds for there to be an agreement at all, it can be of the most informal or casual nature for purposes of section 2(a).

As to the second question i.e. among whom must the agreement subsist or exist, the answer is contained in subsection (1) itself. Clause (a) relates to a certain group of persons, namely "actual or potential competitors". Clauses (b) and (c) apply to certain types of groups or persons in specified situations or relationship. Clause (b) applies to "a supplier and a dealer of goods" where the agreement is being entered into for purposes of fixing minimum resale prices. Clause (c) applies to agreements between "suppliers or buyers" where the agreement is being subjected to the additional conditions of the sort specified in that clause.

The third question is as to how is the agreement to be established. Obviously, such an agreement can be established by direct evidence. However, it is in the very nature of things that agreements of the sort covered by section 6(1) are born in darkness and remain shrouded in secrecy. Direct evidence of such agreements would invariably be rare. Given the definition of agreement in section 2(a) and the purpose and scope of the Ordinance, especially the prohibition of unreasonable restrictive trade practice, an agreement in terms of section 6(1) can be established indirectly, i.e. through circumstantial evidence. More particularly, it can be inferred from the facts and circumstances of the particular situation that it is being examined. In the present case this point was not seriously disputed by the counsel for the appellants. There is, needless to say no direct evidence of any agreement in the present case,, and it was common ground between the parties that if at all any such agreement existed (which was of course, asserted by the Authority and denied by the appellants), it could only be inferred from circumstantial evidence. The crucial question therefore, is as to what were, in the facts and circumstances of the present case, the permissible inferences that could be drawn from the record, and did those inferences establish, in law and in fact an agreement of the nature covered by subsection (1). This is the exercise that would invariably have to be carried out, whenever there is an assertion that there exists an agreement of the nature covered by section 6(1).

The policy reasons behind deeming agreements of the nature covered by subsection (1) of section 6 to be unreasonably restrictive trade practices are clear. These agreements invariably have such a deleterious and harmful effect on competition that the mere existence of such an agreement is sufficient to condemn it. The most obvious example, which in fact is the very situation with which the present appeals are concerned, is a price fixing agreement between actual or potential competitors. Such an agreement, if found to exist, is the very anti-thesis of competition, and indeed its very purpose is to negate competition. By deeming such agreements to be unreasonably restrictive trade practices, the law obviates the need for an enquiry or finding into whether the particular agreement in question "has or may have the effect of unreasonably preventing, restraining or otherwise lessening competition in any manner." Those who enter into such agreements do so at their own peril: the law will deem that they have acted in an unlawful manner. The law, however, also recognizes that while this broad approach of condemning such agreements out of hand is generally desirable, there may yet exist some agreements, which require a different response. It is in this connection that, according to the appellants, the provisions of subsection (2) of section 6 have been enacted, and it is this point, which now needs consideration.

On a bare reading, subsection (2) appears to be essentially in the nature of an exception to subsection (1). It provides that if the clauses specified therein are fulfilled in relation to an agreement to which subsection (1) applies, then that agreement shall not be deemed to be an unreasonably restrictive trade practice. It is important to note that the three clauses of subsection (2) are cumulative, i.e. all must be shown to exist before this subsection can take effect. Contention on behalf of the Authority was that the proper interpretation of the two subsections was that all that was required was for the Authority to be satisfied that there was a prima facie case made out in terms of subsection (1). Such satisfaction raised a rebuttable presumption that the deeming provisions of subsection (1) had become applicable. It was then for the other side to rebut the presumption by establishing that the provisions of subsection (2) were applicable. This is not a correct interpretation of the two subsections. It is clear from the opening words of subsection (2) that it applies only to an "agreement as is referred to in subsection (1)". If no such agreement exists, then subsection (2) can obviously have no application at all. Subsection (1) itself does not state that an agreement must exist to the Authority's satisfaction or use some such subjective language. It simply deems an unreasonably restrictive trade practice to have been resorted to or continued, if an agreement of the nature covered by the subsection (1) is found to exist. The test must, therefore, be objective, i.e. the agreement must be found to exist on an objective assessment of all the facts and circumstances. If no agreement can be found, either as a matter of law or on the facts on the basis of such an objective assessment, the matter ends and there is no need to take recourse to subsection (2).

The proper interpretation of section 6, therefore, is that it contains a two stages process. In the first instance, an agreement must be established in terms of subsection (1). Such an agreement may be admitted or found (objectively) to exist in the facts and circumstances of the particular situation being examined. If an agreement is so found to exist, the deeming provisions of subsection (1) become applicable. If this stage is crossed, only then would the matter move to the second stage, namely that of determining whether the conditions of subsection (2) are made out. If the conditions of the latter subsection (2) are found to be attractive (i.e. all of its clauses held to apply,) then the deeming provisions of subsection (1) would be negated.

It appears that the provisions similar to subsection (2) of section 6 are well established in this branch of the law, and are known as `gateways'. These provisions reflect the policy of the law noted above, namely that while agreements of the sort hit by the deeming provisions of subsection (1) were generally to be condemned as being unreasonably restrictive trade practices, in certain situations, such agreements had to be allowed to stand. In effect, the disadvantages or harmful effects of such an agreement are outweighed by the benefits obtained by letting it stand. One example will suffice to illustrate the point. Suppose the Pakistani exporters of a particular commodity enter into a price fixing agreement e.g. agree not to sell their product abroad at less than the price agreed upon. Obviously, such an agreement is precisely that sort of arrangement to which subsection (1)(a)(i) applies, namely an agreement between actual or potential competitors to fix the selling price of goods. Such an agreement would, therefore, ordinarily be deemed to be an unreasonably restrictive trade practice and would stand condemned accordingly. However, recourse may be possible in such a situation to subsection (2). In the example, being considered, the clauses would apply if following conditions are found to exist: (a) the agreement promotes the export of goods from Pakistan; (b) such promotion could not have been achieved by means less restrictive of competition i.e. without the agreement; and (c) the benefits of such an agreement (i.e. the promotion of exports) clearly outweigh the adverse impact on competition (i.e. that the selling prices being charged by the exporters are not being set by market conditions). If these conditions are fulfilled, then the agreement will not be deemed to be an unreasonably restrictive trade practice i.e. will be allowed to stand and continue.

The onus lies on the Authority to establish that an agreement of the nature specified in section 6(1) exists in order to attract the deeming provisions thereof. This assessment must be made on an objective basis since the Ordinance, does not use subjective language that the Authority must be so satisfied (or any such similar words). This position is also clear from general principles, since it is the Authority that is asserting the positive (i.e. that an agreement exists), whereas the persons alleged to have entered into such an agreement are asserting the negative (that such an agreement does not exist). Clearly the burden of establishing that an agreement exists, must lie on the party making the positive assertion. Furthermore, the agreement, if it exists, would be an unlawful act, being violative of section 3, and the offending persons would be liable to penalties under section 19 of the Ordinance. The burden of discharging the onus of subsection (1) of section 6 must therefore lie squarely on the Authority. Once this burden is discharged, and an agreement is found to exist, then if at all a subsection (2) defence or justification is pleaded, the onus lies on those who entered into the agreement to establish that the ingredients of the gateway' have been made out. The onus shifts from one side to the other, starting in the first instance (i.e. subsection (1)) by being on the Authority and then moving on to the opposite parties, if agateway' (i.e. subsection (2)) defence is pleaded.

In the present case, the appellants have not pleaded any subsection (2) defence. It is therefore., not their case that the provisions of the "gateway" are attracted. Rather, the appellants contend, as noted above, that no agreement at all, as specified in subsection (1), is made out and hence there is nothing that can be deemed to be an unreasonably restrictive trade practice. The matter must therefore, be examined and determined with reference to section 6(1) and the onus of establishing an agreement in terms thereof lies on the Authority.

(g) Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance (V of 1970)---

----Ss. 6, 3, 11, 12, 2 & 20---Appeal to High Court---Allegation of unreasonably restrictive trade practices---Powers, jurisdiction and functions of the Authority---Scope---Monopoly Control Authority's contention which the appellants denied, was that a parallel increase in prices over a given period was in itself sufficient material from which an agreement or cartel could legitimately by indirectly inferred---Impugned order of the Authority showed that the Authority did not find that the prices rose by the same amount or to the same level---Prices of the various cement manufacturers were at different levels and remained so, rising by different amounts and on different dates---Parallel increase in price was noticed i.e. there was a general upward movement over the same period of time---Question therefore, was as to whether it was permissible, both as a matter of law as well as in fact for the Authority to infer from the parallel price increase that there existed an agreement or cartel to which S.6(1), Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970 applied---Held, any price fixing was unlawful under the Ordinance, it was entirely irrelevant whether the prices were rising, falling, remaining steady, high or low or at any level in between, if they were being fixed (and the amount by which the fixation took place was likewise irrelevant) in any manner by agreement between actual or potential competitors, they were unlawful---Agreement under the Ordinance and for the purposes of S.6(1) of the Ordinance could be indirectly inferred from the situation---Parallel business behaviour or conscious parallelism was not in itself sufficient to lead to or permit an inference that a price fixing agreement or cartel existed---Factors in addition to, and over and above the conscious parallelism for the existence of a cartel in violation of S.3 read with S.6 must be established---Authority must identify and particularize the "plus" factors on which it sought to rely in addition to the parallel business behaviour---If such "plus" factors did exist in addition to parallel business behaviour, it would be open to the alleged conspirators to present material to show that it could not be reasonably inferred by the Authority that they had entered into a price fixing conspiracy and they would be entitled to rebut the inferences being drawn from the parallel business behaviour and the plus "factors" as the matter was being determined not on the basis of direct evidence, but on deductions being indirectly made and inferred from the facts and circumstances of the case and it was possible in such a situation that Authority might misread or draw the wrong conclusions from the circumstantial material and it was only right for the alleged conspirators to be entitled to present material to rebut the inferences---If the alleged conspirators fail to present any such material or the material presented was found to be deficient or unconvincing, then it could legitimately be inferred from the parallel business behaviour and the "plus" factors being relied upon that an agreement existed which was violative of S.6(1) of the Ordinance, and that there had been a violation of S.3 thereof---Entire such exercise, however, was to be carried out exclusively with reference to and within the ambit of S.6(1) of the Ordinance---Once such agreement had been legitimately inferred, and was therefore, deemed to exist, it might still be open to the conspirators to rely on the "gateway" contained in S.6(2) of the Ordinance---Onus, however would lie on the alleged conspirators to establish that their situation came within all three clauses of the latter provision and it was only then that they would be entitled to rely on the `gateway'---Price fixing agreement which could be condemned under the deeming provision of S.6(1) of the Ordinance was not limited to price increase only---Section 6(1) of the Ordinance applies to any price fixation, regardless of whether the prices were being increased, reduced or had remained steady, and whether the level was high or low---Authority was the regulator and restorer of competition and not of prices and prices level as such---By fundamentally confusing two entirely separate and distinct functions and powers, the Authority would assert a power that did not vest in it under law---At any time that the prices moved in parallel, the Authority would be able to claim that a cartel existed and that the Authority was entitled to take action in the matter---Regulation of prices by the Authority was clearly beyond the limits of its powers and jurisdiction under the Ordinance---Authority was not concerned with the level of prices as such nor did it have any statutory power to determine whether prices were reasonable or too high or low, its jurisdiction was confined only to ensuring that there was proper competition, i.e. that prices were being determined by market conditions and not fixed collusively and unless there was additional material or evidence, the parallel change in prices could not by itself establish that there had been collusion or cartelization---Mere fact that the prices during one specific month rose parallel would not establish that there existed cartel among the manufacturer in violation of S.6(1) of the Ordinance, there was no basis whatsoever on which the Authority could contend that there had been a "planned or systematic" increase in the prices and it was insufficient to simply rely upon the price increase itself as establishing the existence of a cartel---Authority had also failed to specify or identify the alleged conspirators which was. an infirmity and fatal to the case of the Authority---While referring to the price increases, the impugned order merely stated that "a good number" of the cement manufacturers were involved in the cartel, but the actual conspirators were never identified---No agreement, in circumstances could be spelt out---Authority was bound to particularize the parties to the agreement and identify the participants in the conspiracy and to show when or how they functioned and if the Authority failed to do so, then no agreement could be found to exist---Factors relied upon by the Authority to justify the impugned order included great public outcry at the increase in prices of cement during the particular month---Such was a fundamental misconception of the powers and jurisdiction of the Authority and resulted in a complete transformation of its role from a regulator of competition to a regulator of prices without any warrant in law---Principles on the subject recorded exhaustively---High Court accepted the appeals, set aside the impugned orders of the Authority, declaring the orders as not sustainable either in law or on the basis of the record and material as available before the Authority.

In essence, the point in issue between the parties, in the present case, can be stated as follows: the Authority contends, and the appellants deny, that a parallel increase in prices over a given period is in itself sufficient material from which an agreement or cartel can legitimately be indirectly inferred. It is pertinent to note that, as is clear from the passage from the impugned order, the Authority does not contend that the prices rose by the same amount or to the same level. The prices of the various cement manufacturers were at different levels and remained so, rising by different amounts and on different dates. Thus, there was a parallel increase in prices, i.e. there was a general upward movement over the same period of time. The question is whether it was permissible, both as a matter of law as well as in fact for the Authority to infer from the parallel price increase that there existed an agreement or cartel to which section 6(1) applied.

The deeming provisions of section 6(1) of the Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970 provides that there are certain categories of agreements the very existence of which is violative of law, being section 3 of the Ordinance. The price fixing agreements condemned out of hand under section 6(1)(a)(i) under the deeming provisions of the Ordinance. It is important to keep in mind that any price fixing is unlawful under the Ordinance. It is entirely irrelevant whether the prices are rising, falling, remaining steady, high, low or at any level in between. If they are being fixed (and the amount by which the fixation takes place is likewise irrelevant) in any manner by agreement between actual or potential competitors, they are unlawful in American jurisprudence, price fixing agreements are divided into different types, such as horizontal price fixing, vertical price fixing, predatory pricing etc. Horizontal price fixing-is a price fixing agreement or cartel between actual or potential competitors. Vertical price fixing is a price fixing agreement between producers and wholesalers or distributors, or between producers and retailers, or between wholesalers or distributors and retailers. Predatory pricing is a price fixing agreement between competitors designed to eliminate other competitors from the market. The sort of agreement or cartel with which the present appeals are concerned would be regarded as horizontal price fixing.

The following principles are deducible from the decisions of the US Supreme Court and various Courts of Appeals.

(1) An agreement violative of the Ordinance can be established either by direct evidence or can be inferred indirectly from the facts and circumstances of the case before the Court. Business behaviour is admissible circumstantial evidence from which a cartel can be inferred.

(2) While an agreement can be indirectly inferred, the alleged conspirators must at least be properly identified and there must be some indication of when or how they functioned.

(3) Parallel business behaviour, or conscious parallelism is not in itself sufficient to indirectly establish an agreement in violation of the Ordinance. Parallel business behaviour can be of various sorts, and a parallel movement in prices is one example of conscious parallelism. Parallel business behaviour is all the more possible in the case of standardized products where it is expected that prices will ordinarily tend to move in parallel. Furthermore, in a concentrated market, where there are relatively few sellers, conscious parallelism is also to be expected.

(4) If there are certain factors, referred to as "plus" factors, in addition to, and over and above, parallel business behaviour, then a presumption arises that there has been unlawful price fixing and in such a situation, a violation of the Ordinance can be indirectly inferred. The "plus" factors may include evidence demonstrating that the conspirators acted contrary to their economic interests and were motivated to enter into a price fixing conspiracy. The nature of a "plus" factor must be such as it tends to exclude the possibility that the alleged conspirators acted independently.

(5) If parallel business behaviour and "plus" factors are found to exist, the alleged conspirators can nonetheless rebut the inference of collusion by presenting evidence establishing that it could not reasonably be concluded that they entered into a price fixing conspiracy.

An agreement under the Ordinance and for the purposes of section 6(1) can be indirectly inferred from the facts and circumstances of the situation. Parallel business behaviour or conscious parallelism is not in itself sufficient to lead to or permit an inference that a price fixing agreement or cartel exists. There must be shown to exist factors in addition to, and over and above the conscious parallelism for the existence of a cartel in violation of section 3 read with section 6 to be established. The Authority must identify and particularize the "plus" factors on which it seeks to rely in addition to the parallel business behaviour. If such "plus" factors do exist in addition to parallel business behaviour, it would be open to the alleged conspirators to present material to show that it cannot be reasonably inferred by the Authority that they have entered into a price fixing conspiracy. They would be entitled to rebut the inferences being drawn from the parallel business behaviour and the "plus" factors. The reason is that the matter is being determined not on the basis of direct evidence, but on deductions being indirectly made and inferred from the facts and circumstances of the case. It is possible in such a situation that Authority may misread or draw the wrong conclusions from the circumstantial material and it is only right for the alleged conspirators to be entitled to present material to rebut the inferences. If the alleged conspirators fail to present any suet material or the material presented is found to be deficient of unconvincing, then it can legitimately be inferred from the parallel. business behaviour and the "plus" factors being relied upon that are agreement exists which is violative of section 6(1) of the Ordinance, and that there has thus been a violation of section 3 thereof. Entire exercise as aforesaid is to be carried out exclusively with reference to, and within the ambit of section 6(1). Once such an agreement has been legitimately inferred, and is therefore, deemed to exist, it may still be open to the conspirators to rely on the gateway' contained in section 6(2). However, as explained above, the onus (and it is a heavy burden to discharge) would lie on them to establish that their situation comes within all three of the clauses of the latter provision and it is only then that they would be entitled to rely on thegateway'.

It is important to keep in mind that the price fixing agreement which can be condemned under the deeming provision of section 6(1) is not limited to price increases only. Section 6(1) applies to any price fixation, regardless of whether the prices are being increased, reduced or have remained steady, and whether the level is high or low. At any time that the prices moved in parallel, the Authority would be able to claim that a cartel existed and that the Authority was entitled to take action in the matter. It is a matter of common experience that the prices of most commodities tend to fluctuate and such changes usually occur in parallel, and this is certainly true for standardized products, which arc (if at all) differentiated only by the public perception of their brand names or trademarks, Prices, especially of essential items (e.g. food supplies such as tomatoes and onions during the season), can change suddenly and for no apparent reason, rising and `falling frequently and sometimes on a daily basis. If it is held that price change is itself sufficient to establish a cartel, then the Authority would virtually at any time be able to declare a violation of section 3 read with section 6. All it would need to do is to point to the parallel price movement (regardless of whether the prices were rising or falling) and claim that a cartel existed. This would confer an unfettered discretion and power on the Authority to take action at its own sweet-will and at a time of its own choosing. Such a view cannot be countenanced by the law and is, flatly contrary to the provision of the Ordinance. This would convert the Authority into a price regulator, which is clearly beyond the limits of its powers and jurisdiction under the Ordinance. The Authority is not concerned with the level of prices as such nor does it have any statutory power to determine whether prices are reasonable or too high or too low. Its jurisdiction is confined only to ensuring that there is proper competition, i.e. that prices are being determined by market conditions and not fixed collusively. Unless, therefore, there is additional material or evidence, the parallel change in prices cannot by itself establish that there has been collusion or cartelization.

The principles established by the American courts, and followed and adopted by the Indian Commission, establish the necessary framework and lay down the correct approach to be taken for a proper interpretation and application of the deeming provisions of section 6(1) of the Ordinance. The Authority in the present case, has acted on the basis of a complete misunderstanding of the Ordinance and has misapplied the relevant provisions.

The mere fact that the prices in May, 2003 rose in parallel does not therefore, establish that there existed a cartel among the appellants in violation of section 6(1). There was no basis whatsoever on which the Authority could contend that there had been a "planned" or "systematic" increase in the prices, and it was insufficient to simply rely upon the price increase itself as establishing the existence of a cartel. In this context, there is an additional infirmity, which is fatal to the case put forward by the Authority. The Authority has not specified or identified the alleged conspirators. When referring to the price increases, the Impugned Order merely states that "a good number" of the cement manufacturers were involved in the cartel, but the actual conspirators are never identified. No agreement can legitimately be spelt out in such circumstances. While an agreement can certainly be inferred circumstantially as held above, it is at the very least necessary for the Authority to particularize the parties thereto and identify the participants in the conspiracy and to show when or how they functioned. If the Authority fails to do so, then no agreement can be found to exist. In the present case, there is no specific allegation at all against any particular cement manufacturer that it was a participant in the alleged cartel. Furthermore, the Authority fatally undermines its own case by subsequently referring in the Impugned Order to "some" cement manufacturers having acted together with respect to capacity underutilization. Thus, although orders were passed against nearly all the cement manufacturers, the finding actually recorded by the Authority is only that "a good number" of (unspecified) cement manufacturers increased prices in parallel and that only "some" (again unidentified) cement manufacturers underutilized their plant capacities. There is, to say the least, a great difference between "all", "a good number" and "some" and the failure on the part of the Authority to keep this basic distinction in mind clearly indicates that in fact the Authority did not have any knowledge of the identity of the alleged conspirators, nor did it even bother to carry out such an exercise, which was required under the Ordinance. The Impugned Order, is self-contradictory on the face of it, since the cartel is at one and the same time supposed to be between "a good number" of cement manufacturers and/or "some" of the manufactures. No agreement within the meaning of section 2(a) can be spelt out in such circumstances.

The conclusion purported to be drawn by the Authority in the impugned orders are also not supported by the record of the case. In the impugned order the Authority has purported to "adjust" the central excise duty relief given in the 2003 Budget because, it is stated, the relief "was not passed on to consumers". Yet, this assertion is contradicted by the table of prices given by the Authority itself in its parawise comments. There, the price of cement charged by the appellant is shown as Rs.215 per bag for the first 6 days of June, and then with effect from June 7th, the price is shown as dropping to Rs.205 per bag, a level which is maintained up to June 22nd, whereafter the price is shown as dropping further to Rs.199 per bag. The situation is similar in the case of other cement manufacturers. Thus, it is clear from the Authority's own statements that the budgetary relief in central excise duty was in fact passed on to the consumers. The conclusions drawn in this regard in the Impugned Orders are thus directly contradicted by the record. In any case, even if the relief in central excise duty had not been passed on to the consumers by some or all of the cement manufacturers, it is not clear why that would show the existence of a cartel in violation of section 6(1). It is surely a business decision to be taken by the cement manufacturers in the light of market conditions whether, and if so, to what extent, the relief is to be passed on to the consumers. It would normally be expected that there would be some fall in prices in such a situation and that is in fact what the record establishes. The conclusions to the contrary drawn by the Authority are clearly unsustainable.

The table of prices set out in the Authority's parawise comments clearly shows that there was a lot of price variation and fluctuation in the months leading up to May, 2003. In March, prices did rise and there was a general upward movement. There was thus, throughout the period, prior to the Authority's impugned action, a parallel price movement of the same nature as took place in May, 2003. Furthermore, in June, the prices began to fall, a fact which appears to have been ignored or misunderstood by the Authority. Yet, it is only the May, 2003 price increase that is condemned by the Authority as cartelization. Those that occurred prior thereto are accepted, and attributed to market conditions. It is also pertinent to note that even as per the impugned orders, the price levels in October, 2002 were at about same level as the prices after the May, 2003, increase (and in some cases, were even higher). Yet, no action was earlier taken by the Authority. This contradiction clearly establishes the point that if a mere change in prices is sufficient to spell out a cartel, then the matter is at the unfettered discretion and sweet-will of the Authority. It can at any time condemn a price movement as violative of the Ordinance, or leave it undisturbed as a mere market fluctuation, and justify its fiction or inaction accordingly. In the present case, price movements, including increases, prior to May, 2003, were accepted by the Authority as responses to market conditions and "independent strategies" of the cement manufacturers, and yet, the price increase of May, 2003, was held to establish a cartel. Price changes of the same nature and magnitude as took place in May, 2003, were earlier accepted and passed unnoticed and without action, whereas the situation that prevailed in that month was condemned as proof of cartelization. It seems that in fact, the Authority was only reacting to the public outcry in May, 2003. The Authority simply acted as a price regulator to bring down the prices to what it regarded as a "reasonable" level acceptable to the public. This was clearly beyond its jurisdiction and powers and outside the scope and ambit of the Ordinance. The Authority is the regulator and restorer of competition and not of prices and price levels as such. By fundamentally confusing two entirely separate and distinct functions and powers, the Authority has asserted a power that does not vest in it under law.

The Authority also appears to have ignored altogether, the various factors stated in detail by the cement manufacturers as explaining the price increases and capacity utilization. These factors included the concept of price leadership, seasonal factors and changes in the demand and supply conditions. The Authority was bound to consider the same and if it was not convinced by the submissions that had been made before it in this regard, to give its reasons for rejecting the case put forward by the cement manufacturers. It is also to be noted that while the Authority concluded that the cost of production had been falling over the relevant period, it did not take into consideration the contrary submissions made by the appellants in this regard. In any case the fact that there is no ready explanation forthcoming for the increase in prices is not in itself sufficient to conclude that a cartel or conspiracy existed in violation of the law.

The factors relied upon by the Authority to justify the Impugned Order included the great public outcry, especially in the national press, at the increase in prices in May, 2003, and complaints received by the Authority with regard thereto from various persons and concerned quarters such as builders, etc. These factors appear to have impelled the Authority to take action to bring down cement prices from what was obviously regarded by it as too high a level to a range believed to be more "reasonable" and acceptable. This was a fundamental misconception of the powers and jurisdiction of the Authority and resulted in a complete transformation of its role from a regulator of competition to a regulator of prices without any warrant in law.

Section 3(1) of Price Control and Prevention of Profiteering and Hoarding Act, 1977 empowers the Federal Government, for purposes of ensuring equitable distribution of an essential commodity and its availability at fair prices, to issue an order (to be published in the official Gazette) regulating the price, production, movement, supply, distribution, sale, etc. of the essential commodity. Cement is, or at any rate was, one of the commodities specified in the schedule to the 1977 Act, as an essential commodity. The important point is that if the Authority was allowed to take action at any time there is a price change unacceptable to it (on the basis that such a price change can in and of itself establish a cartel), then there would essentially be no difference between the power exercised by the Authority under the Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970 and the power exercisable by the Federal Government under the Price Control and Prevention of Profiteering and Hoarding Act, 1977 to regulate prices. Indeed, in the operative part of each impugned order, the Authority has purported to fix the price of cement for each manufacturer by requiring it to reduce its price, as prevailing on the date of the order by the amount specified in the order which amount, according to the Authority, represents the "unjustified increase" in the cement price in May, 2003. This is nothing other than price fixation or regulation which is beyond the scope and limits of the Ordinance and indeed, is the very anti-thesis of that law, since the price is being fixed by the administrative fiat and not market conditions. Section 12(1)(c) in terms of which the Authority has purported to take this action, does not and cannot confer any such power on the Authority. The purported action taken by the Authority is therefore, unlawful and contrary to the provisions of the Ordinance. The Authority has also held with reference to the "unjustified increase" that "it remains incorporated in undertaking's selling price till now notwithstanding some fluctuations during the intervening period." To take the example of appellant, the Rs.60 per bag "unjustified increase" is regarded by the Authority as somehow remaining part of the manufacturer's cement price from May, 2003, till October, 2005 (i.e. up to the issuance of the Impugned Order), although the Authority concedes that the cement price did undergo "some fluctuations" during this period. One can find no warrant for this extraordinary conclusion either in law or the record. There is no conceivable basis on which the Authority's conclusion can be supported. Furthermore, the order to reduce the price by the amount specified by the Authority is itself unenforceable. Suppose that a manufacturer does comply with the Authority's order. For how long is a manufacturer required to keep its price artificially depressed by the amount directed by the Authority? There is nothing in the impugned order that would prevent a manufacturer from reducing its price in purported compliance of the order and then raising it the next day. There is an even more fundamental defect in the order. in this regard. A direction to reduce the price by an amount fixed by the Authority is itself a negation of competition since the prices would not then be set by market conditions, but would be at a level mandated by the Authority. The Authority's direction is therefore, on the face of it inconsistent with the concept of market competition and with the Authority's fundamental statutory duty to protect the same. The Impugned Order is therefore, unsustainable in law on this point as well.

The capacity underutilization was also referred to as a factor which justified the Authority in concluding that a cartel existed to increase the prices in May, 2003. One aspect of this part of the Impugned Order, namely the Authority's failure to identify and particularize who, among the cement manufacturers, were "some" of the alleged conspirators in this regard has already been dealt with. It was submitted by the companies in this regard that the Authority had characterized the capacity utilization of each cement manufacturer as "low" or "very low" in a random and haphazard manner and without any basis or proper application of mind. For example, the capacity utilization of one Company Cement was stated to be 68%, which was regarded as "low". The capacity utilization of another company on the other hand, was 71% and this was regarded as "very low". There is force in this submission on behalf of the appellants. There does not appear to have been any proper application of mind in the present case by the Authority. No basis is shown as to how or why some capacity utilization is characterized as low and other as very low. In addition, it is also the case that the record relied upon by the Authority in this regard itself shows great variations in capacity utilization. Annexure to the report to the special enquiry is a table showing the industry wise capacity utilization from July, 2002 to June, 2003. An examination of this Annexure indicates that the capacity utilization changed considerably from month to month and rose and fell regularly, sometimes by substantial amounts. Therefore, it cannot be concluded from the fact that capacity utilization fell in May, 2003, as compared to the previous month that there was a cartel to increase the prices as held by the Authority.

The impugned orders are not sustainable either in law or on the basis of the record and material as available before the Authority. The appeals were therefore, allowed and the impugned orders were set aside and quashed.

Mehram Ali and others v. Federation of Pakistan PLD 1998 SC 1445; Islamization of Laws PLD 1985 FSC 193; Mehreen Zaib-un-Nisa v. Land Commissioner, Multan and others PLD 1975 SC 397; Mahindra and Mahindra Ltd. v. Union of India AIR 1979 SC 798; Kiefer-Stewart Co. v. Joseph E. Seagram & Sons Inc. and others (1951) 340 US 211; United States v. New York Coffee and Sugar Exchange and others (1924) 263 US 611; Theatre Enterprises, Inc. v. Paramount Film Distributing Corporation and others (1954) 346 US 537; Matsushita Electric Industrial Co. Ltd. and others v. Zenith Radio Corporation and others 475 US 574; Brooke Group Ltd. v. Brown and Williamson Tobacco Corporation (1993) 509 US 209; Bendix Corporation and another v. Balax, Inc. and another (1972) 471 F.2d 149; Cayman Exploration Corporation v. Untied Gas Pipe Line Company (1989) 873 F.2d 1357 and Alkali and Chemical Corporation of India Ltd. v. Bayar (India) Ltd. (1984) 3 Comp. LJ 268 ref.

Munib Akhtar and Salman Akram Raja for Appellant.

Dr. Danishwar Malik, D.A.-G. and Ms. Seema Munawar, A.A.-G. for Respondent.

Date of hearing: 3rd July, 2006.

P L D 2007 Lahore 53

Before Tariq Shamim, J

AMANAT MASIH---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, KASUR and 4 others---Respondents

Writ Petition No.8551 of 2006, heard on 11th September, 2006.

Criminal Procedure Code (V of 1898)---

---Ss. 22-A & 22-B---Penal Code (XLV of 1860), S.182---Constitution of Pakistan (1973), Art.199---Constitutional petition---Powers and duties of Justice of Peace---Petitioner had assailed order of Justice of Peace whereby on the application filed by petitioner for registration of a case against respondents under Ss.22-A & 22-B, Cr.P.C., Justice of Peace, after passing dismissal order of the application, directed S.H.O. concerned to initiate proceedings under S.182, P.P.C. against the petitioner---Justice of Peace could only pass an order directing registration of a criminal case if a cognizable offence was made out from the application or decline the same---Direction given to S.H.O. by Ex-officio Justice of Peace to initiate proceedings against petitioner under S.182, P.P.C. was beyond the purview of S.22-A, Cr.P.C. and in excess of jurisdiction conferred upon him under the law---Order of Justice of Peace to the extent of direction given to S.H.O. to initiate proceedings under S. 182, P.P.C. against petitioner, was set aside.

Ch. Muhammad Ashraf Jalal, for Petitioner.

Nisar Ahmad Baig and Muhammad Arif Bhinder, Addl.A.-G. for Respondents.

Date of hearing: 11th September, 2006.

P L D 2007 Lahore 55

Before Syed Zahid Hussain, J

KHURAM ZUBAIR and 2 others---Petitioners

Versus

GOVERNMENT OF THE PUNJAB, through Secretary (Revenue), Punjab, Lahore

and 3 others---Respondents

Writ Petition No.9349 of 2006, decided on 3rd October, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition-Locus poenitentiae, principle of---Applicability---Cancellation of recruitments---Dispute between authorities---After completing all formalities, Recruitment Committee issued letters of appointments to petitioners but the same were cancelled by District Nazim, as a dispute had arisen between the Nazim and Revenue Department about jurisdiction/power and competency to make such recruitments---Validity---High Court refrained from embarking and dilating upon the controversy going on between District Nazim and Government Department as the fate of petition was determinable on the basis of admitted fact that the petitioners had indeed been selected and appointment orders were issued and conveyed to them---Decisive steps having been taken by Authorities and implemented, the order of their appointments could not be cancelled in such an abrupt manner in clear disregard of due process of law---It was only District Nazim who had issued cancellation orders, whose authority and jurisdiction was being disputed even by the Government Department---In the context of such dispute, petitioners being ordinary citizens of Pakistan, could not be made to suffer for any such tussle---Cancellation order issued by District Nazim did not hold good as it had lost its legal efficacy---High Court directed the Authorities to proceed in accordance with law---Petition was allowed accordingly.

Shakeel Tarique for Petitioners.

Ch. Aamir Rehman, Addl. A.-G., Punjab with Dr. Waqar Chaudhry, District Officer (Revenue), and Dr. Ameen, DHQ, Hospital, Hafizabad.

Khalid Arshad, D.D.O. on behalf of Respondent No.3.

Date of hearing: 3rd October, 2006.

P L D 2007 Lahore 57

Before Syed Zahid Hussain, J

SARFRAZ AHMAD TARAR---Petitioner

Versus

PROVINCE OF PUNJAB through Secretary, Government of Punjab, Lahore

and another---Respondents

Writ Petition No.17343 of 2004, heard on 5th September, 2006.

(a) Punjab Office of the Ombudsman Act, (X of 1997)---

----S. 3(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment of Ombudsman---Qualifications---Vires of amended subsection (2) of S.3 of Punjab Office of the Ombudsman Act, 1997---Expression "or any other person of known integrity"---Scope---Petitioner challenged the appointment of respondent as Ombudsman Punjab on grounds that only a Judge of High Court or a person qualified to be Judge of High Court was to be appointed Ombudsman in spite of amendment made in subsection (2) of S.3 of Punjab Office of the Ombudsman Act, 1997 to the effect "or any other person of known integrity", and that amendment in S.3(2) of the Act was ultra vires the Constitution---Validity---Scope of S.3(2) of Punjab Office of the Ombudsman Act, 1997, was enlarged through amendment so as to enable the government to appoint Ombudsman other than a Judge of Superior Court which transpired from phraseology "or any other person of known integrity"-Competency of Provincial Legislature to amend a law enacted by it was not to be disputed nor it had been shown how the amendment so made was ultra vires any of provisions of Constitution---Functions to be performed by holder of office of Ombudsman were not purely and exclusively of judicial nature---Person of integrity having served as civil servant by virtue of his administrative experience could also be eminently suitable for the said office---Any restricted construction of amended provision i.e., that only a person having judicial knowledge could be appointed as Ombudsman, was not only to defeat the intendment of Legislature, rather the same was to render the phrase "any other person" as meaningless and otiose---Each word of statute was entitled to be given meaning and no part of it was to be treated as redundant---Mere desire that Ombudsman's office was to be held by a person belonging to judiciary was not to be made a ground for striking down a provision of law validly made by competent legislature---Contention of petitioner that expression "or any other person" was to be read ejusdem generis and not in isolation, was devoid of force, for the word "or" in the context had consciously been used by the legislature in disjunctive sense---Court had power to change and could change "and" to "or" and vice versa, whenever such conversion was required by the context or was to harmonise the provisions of a statute and give effect to all its provision or to save it from unconstitutionality, or, in general to effectuate the obvious intention of legislature---Amended provisions of S.3(2) of Ombudsman Act, 1997, were free of any taint of invalidity and were intra vires---Integrity of respondent having not been challenged by petitioner, appointment of respondent as Ombudsman did not suffer from any illegality---Constitutional petition was dismissed.

Understanding Statutes, Canons of Construction, Second Edn. by S.M. Zafar ref.

(b) Interpretation of statutes--

----Each word of statute was entitled to be given meaning and no part of it was to be treated as redundant.?

(c) Interpretation of statutes---

----Court had power to change and could change "and" to "or" and vice versa, whenever such conversion was required by the context or was to harmonise the provisions of a statute and give effect to all its provision or to save it from unconstitutionality, or, in general to effectuate the obvious intention of legislature.?

Understanding Statutes Canons of Construction, 2nd Edn. P.826 by S.M. Zafar ref.

Muhammad Ali Malik for Petitioner

Ch. Aamir Rehman, Addl. A.-G., Punjab for Respondent No.1.

Abid Hassan Minto for Respondent No.2.

Date of hearing: 5th September, 2006.

P L D 2007 Lahore 61

Before Syed Zahid Hussain, J

MAKHDOOM MUHAMMAD MUKHTAR, MEMBER PROVINCIAL ASSEMBLY, PUNJAB---Petitioner

Versus

PROVINCE OF PUNJAB through Principal Secretary to Chief Minister, Punjab, Lahore

and 2 others---Respondents

Writ Petition No.9035 of 2006, decided on 26th September, 2006.

Constitution of Pakistan (1973)---

----Art. 199---General Clauses Act (X of 1897), S.21---Constitutional petition---Public welfare scheme duly approved and put in operation---Locus poenitentiae, principle of---Effect---Doctrine of "legitimate expectation" and "promissory estoppel"---Applicability---Power of Chief Minister---Extent---Punjab Government/ respondent approved and launched development scheme for construction and widening of metalled road for the uplift of the areas falling in constituency of petitioner/Member Provincial Assembly---Petitioner sought declaration and direction to the effect that development scheme which was duly approved by Chief Minister and Governor of the Province and being in process of execution, the same was to be implemented and that scheme could not be dropped or substituted---Authorities contended that Chief Executive of Province could approve and annul any scheme at anytime as there was no embargo on his exercise of such power---Validity---Scheme having been approved by Governor and Chief Minister, included in Annual Development Programme, budget allocations made and orders issued therefore, scheme was not to be dropped, cancelled or substituted---Scheme had received due approval and necessary orders had become effective, therefore, it was too late for Authorities concerned to cancel or substitute the same---Cancellation or substitution of scheme was neither permissible under law nor consistent with good governance rule---Convenience, public good and welfare of people being the main objective of democratic set-up and any such scheme aimed at development of area was to be implemented and carried out---Principle of locus poenitentiae embodied in S.21 of General Clauses Act, 1897, was not to permit cancellation/substitution of such approved scheme where decisive steps had been taken by the highest functionaries of the Province---Approval of scheme had given rise to hopes and expectation not only to petitioner but to the local population about its implementation---Doctrine of "legitimate expectation" and "promissory estoppel" were stated to have roots in "fairness"---Public authority where conducted itself in a manner so as to create a legitimate expectation that a certain course was to be followed then it would be unfair if the Authority was permitted to follow a different course to the detriment of one who entertained the expectation, particularly if he acted on it---Reasonableness, fairness and justness all demanded implementation and expectation of first scheme duly approved and put in operation---Petitioner having not sought annulment of any other scheme and sought implementation of scheme already approved, constitutional petition was accepted to the extent that scheme was to remain operative and was to be executed.

Judicial Review of Public actions by Justice (R.) Fazal Karim Vol. 2, p.1365 and R v. IRC ex-p IMK ref.

Sardar Shahbaz Ali Khan Khosa for Petitioner.

Ch. Aamir Rehman, Addl. A.-G. Punjab for Respondents.

Date of hearing: 26th September, 2006.

P L D 2007 Lahore 65

Before Sh. Hakim Ali, J

ABDUL WAHID---Petitioner

Versus

THE STATE and others---Respondents

Writ Petition No.336 of 2006/BWP, decided on 3rd April, 2006.

Criminal Procedure Code (V of 1898)---

---Ss. 167, 169 & 173(3)---Constitution of Pakistan (1973), Art.199---Constitutional petition--Release of accused---Powers of Investigating Officer---Investigating Officer who had arrested respondents had been requesting Magistrate for authorization of detention of said accused persons through remand---After getting permission/ authorization as envisaged under S.167, Cr.P.C., Investigating Officer could not discharge said accused for all times to come---Investigating Officer could release accused after their executing a bond with or without sureties, but could not discharge them, who earlier were detained with Investigating Officer by the permission of Magistrate---Words of S.169, Cr.P.C. "release him on his executing a bond with or without sureties" could not be expounded as having authorized or empowered Investigating Officer to discharge accused---From wording of subsection (3) of S.173, Cr.P.C., it became evident that accused released on bond, with or without sureties, was not a person released for all times to come, in fact, it was a temporary release, which had to be confirmed through an order of discharge from the Magistrate---Release of an accused under S.169, Cr.P.C. was uptill confirmation of the action of Investigating Officer for the release of accused and uptill discharge or order of Magistrate as provided in S.173, Cr.P.C.---After a person was arrested and detained by the police, he could be released on execution of a bond, with or without sureties by the Investigating Officer when he would find against accused no sufficient evidence, no reasonable ground or no suspicion to justify for his forwarding to a Magistrate in custody and it would be the duty of Investigating Officer to report all those facts, by placing name of that accused in Column No. 2 of the report under S.173, Cr.P.C.---Extraordinary powers conferred upon Investigating Officer to release on bond an accused, were open to judicial scrutiny.

Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677; Muhammad Ali and 12 others v. District Magistrate, ,Faisalabad and 3 others PLD 1978 Lahore 1325; Madar Ali alias Muhammad Ali Khan and others v. The State 1991 MLD 2564; Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others PLD 1994 SC 281; Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary Interior Division, Islamabad and 2 others 1994 SCMR 2142; Afsar Khan v. Nawab Khan and 3 others 1995 PCr.L.J 549 and Haji Muhammad Sadiq v. Ilaqa Magistrate, Police Station Factory Area, Faisalabad and others 2001 PCr.LJ 1571 rel.

Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63; M. Ashraf and others v. The State PLD 2005 Lahore 85; Mukamil Shah v. The State 1996 PCr.LJ 1153; Haji Abdul Rahman v. Sultan and another 1971 PCr.LJ 1164; Aziz-ur-Rahman v. Kala Khan and another 1998 PCr.LJ 743; Ghulam Qasim v. Nazir Ahmad and 3 others 1996 PCr.LJ 1187; Muhammad Nasrullah v. Inspector General, Police, Punjab, Lahore and 3 others 1996 MLD 891; 1999 PCr.LJ 469; Sujjat Ali v. The State and others 2001 PCr.LJ 1665; Nasrullah v. The State 1997 MLD 1430; Madar Ali alias Muhammad Ali Khan and others. v. The State 1991 MLD 2564; Mastan Shah v. The State Additional Sessions Judge/Special Judge, Bannu and 2 others 1999 PCr.LJ 469; Muhammad Aksar v. Arshad, and others NLR 2000 Criminal 604; Ghulam Shabbir v. The State 2000 PCr.LJ 1411; Madar Ali alias Muhammad Ali Khan and others v. The State NLR 1991 Criminal 741; M. Ashraf and others v. The State PLD 2005 Lah. 85; Muhammad Ali and 12 others v. District Magistrate, Faisalabad and 3 others PLD 1978 Lah. 1325; Haji Muhammad Sadiq v. Ilaqa Magistrate Police, Station Factory Area, Faisalabad and others 2001 PCr.LJ 1571; Afsar Khan v. Nawab Khan and 3 others 1995 PCr.LJ 549; Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others PLD 1994 SC 281; Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary Interior Division, Islamabad and 2 others 1994 SCMR 2142; Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677; Mastan Shah v. Additional Sessions Judge/Special Judge, Bannu and 2 others NLR 1998 Criminal 516 and Ghulam Shabbir v. The State 2000 PCr.LJ 1411 ref.

Syed Asim Ali for Petitioner.

Mumtaz Hussain Bazmi for Respondents Nos. 3 and 4.

Ch. Shafi Muhammad Tariq, A.A.-G. along with Azizullah Khan, Inspector, S.H.O., Police Station Noshehra Jadid, District Bahawalpur for Respondents.

P L D 2007 Lahore 72

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhary, JJ

NIAZ MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1202 and Murder Reference No.541 of 2000, heard on 4th September, 2006.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Both prosecution witnesses, though were related to deceased, but their statements could not be discarded merely on the basis of relationship---Incident was a case of single accused and daylight occurrence and both prosecution witnesses had no previous enmity or ill-will against accused, so as to involve him in false case---Both witnesses had given a very consistent account of occurrence and had corroborated each other on almost all material points---Matter was reported promptly to the police within an hour---Minor discrepancies in prosecution evidence pointed out by counsel for accused, were of no consequence as same had cropped up naturally when evidence was recorded after delay of more than 5-1/2 years---Ocular account was fully supported by medical evidence which was also corroborated by factum of abscondence of accused---Prosecution had successfully proved its case against accused through ocular account, which was supported by medical evidence and corroborated by abscondence of accused---Case against accused was of capital sentence, but some mitigating circumstances existed in case of accused; firstly accused was less than 20 years of age on the date of occurrence; secondly, no ill-will or enmity existed between deceased and accused, who were almost of the same age prior to the occurrence; thirdly, motive as set down in the F.I.R. was trivial in nature and was not supported by any independent evidence; and, fourthly, accused was not carrying with him any fire-arm and left scene of occurrence after giving solitary blow with chhurri on the person of deceased---Maintaining conviction of accused for offence under S.302(b), P.P.C., his death sentence was reduced to imprisonment for life accordingly and benefit of S.382-B, Cr.P.C. which was mandatory, was also extended to him.

Muhammad Sharif v. Muhammad Javed alias Jedda alias Tedy PLD 1976 SC 452 ref.

Syed Zahid Hussain Bukhari, Ms. Azma Zahid Bukhari and Imtiaz Hussain Baloch for Appellant.

Muhammad Asghar Rokhari for the Complainant.

Masood Sadiq Mirza assisted by Maqbool Ahmad Qureshi for the State.

Date of hearing: 4th September, 2006.

P L D 2007 Lahore 78

Before Mian Hamid Farooq and Syed Hamid Ali Shah, JJ

RASHID NAWAZ and 7 others---Petitioners

Versus

UNIVERSITY OF THE PUNJAB through Vice-Chancellor, Lahore and 3 others---Respondents

Writ Petitions Nos.5540 and 7549 of 2006, decided on 20th July, 2006.

(a) Educational institution---

----Vested right of student---Change in schedule of syllabus---Intervention of Court---Scope---Petitioners being students of fourth year M.B.,B.S. were aggrieved of the decision of University with regard to teaching of two subjects, which were earlier to be taught in final year---Plea raised by the petitioners was that such change was against the program stated in prospectus issued at the time of their admissions---Validity---Authorities had the right to lay down the policy for conduct and regularizing its examination---Rules and regulations framed by University Authorities were left to the Authorities themselves to interpret such rules---Courts avoid to interpret the same unless a case of grave injustice was made out---Intervention by Courts in conduct and regularization of examination would make it difficult for University administration to run its internal affairs relating to examination etc.---No injustice would be done to petitioners, if subjects in question would be taken and taught in fourth year---Policy for teaching the subjects in fourth year was formulated on recommendation of Principal of one of the Medical Colleges, which was duly considered by the Academic Council and thereafter Pakistan Medical and Dental Council had approved it---University Authorities were the best judges, being the policy makers, in the relevant field---Courts could not replace its opinion with the opinion of those who were actively involved in making such policy, merely on sympathetic considerations---Student/candidate had no vested right to claim that examination be taken and a subject be taught exactly in the manner as it had been provided in the prospectus of the college, at the time when such student was admitted to a professional college---Prospectus was subject to change and alteration and plea of legitimate expectation set up by petitioners was neither reasonable nor had the backing of law---High Court declined to interfere in the decision taken by the University---Petition was dismissed in circumstances---Constitution of Pakistan (1973), Art.199.

Muhammad Ilyas v. Baha ud Din Zikria University Multan and another 2005 SCMR 961; Miss Sarah Malik v. Federation of Pakistan through Ministry of Education, Islamabad and others k2001 MLD 1026; Muhammad Iqbal Rafi and 2 others v. Province of Punjab 1986 SCMR 680 and Shafique Ahmad and others v. Province of Punjab and others PLD 2004 SC 168 ref.

(b) Educational institution--

----Regulations---Vested right---Students cannot claim as of right to be governed by regulations prevalent at the time of their admission---Regulation is to take effect from the date of its approval by the syndicate and on examination conducted subsequent are to be governed under the regulation approved later in time.?

Adnan Tariq v. Vice-Chancellor, University of Punjab PLD 1993 Lah. 341 rel.

Ch. Manzoor Hussain for Petitioner.

Raja Muhammad Arif with Abdul Hamid, Asstt. Registrar and Abdul Rashid, Asstt., Asad Munir, Deputy Attorney-General for Pakistan, Ch. Muhammad Javaid Ghani and Saleem-ur-Rehman with Ahmad Nadeem Akbar, Deputy Secretary PM and DC. for Respondents.

P L D 2007 Lahore 83

Before Muhammad Jehangir Arshad, J

MUNAWAR HUSSAIN and 2 others---Petitioners

Versus

AMANAT ALI, and 6 others---Respondents

Civil Revision No.2698 of 2004, decided on 1st June, 2006.

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

----S. 12---Registration Act (XVI of 1908), Ss.52, 58 & 60---Specific performance of agreement to sell---Registered document---Presumption--Plaintiffs sought enforcement of agreement to sell which was duly registered with Sub-Registrar and the defendants had admitted receipt of consideration amount---Plaintiffs also produced bank receipts carrying signatures of one of the plaintiffs whereby they had deposited mortgaged money with regard to suit property---Trial Court decreed the suit in favour of plaintiffs but Appellate Court allowed appeal and dismissed suit on the ground that the agreement was without any consideration---Validity---Endorsement by Sub-Registrar on a document contained presumption of correctness in terms of Ss.52, 58 and 60 of Registration Act, 1908---No more authenticated documentary evidence could be made available on the point of proof of payment of consideration as the facts entered in the endorsement/certificate were presumed to have occurred and as such endorsement/certificate was admissible as evidence of proof of its contents---Findings of Appellate Court holding the agreement as without consideration were based not only on misreading and non-reading of evidence but also in clear disregard/violation of the provisions of Registration Act 1908, hence could not be blessed with any legal sanctity and such findings were not sustainable---Judgment and decree passed by Appellate Court was set aside and that of the Trial Court was restored---Revision was allowed in circumstances.

PIRLA and others v. Noora and others PLD 1976 Lah. 6 rel.

Anwar Ahmad v. Mst. Nafis Bano through Legal Heirs 2005 SCMR 152; Sinaullah and others v. Muhammad Rafique and others 2005 SCMR 1408; Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189; Muhammad Anwar v. Mst. Nawab Bibi and others 2003 MLD 742 and Khurshid Anwar Jalil v. Muhammad Hafeez Mirza and 14 others 2003 CLC 1695 ref.

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

----Art.70---Oral evidence---Admitted document---Scope---When a document is admitted or its execution is proved, then contents of the same are always considered to be proved or admitted---No oral evidence to disprove contents of such document is admissible in terms of Art.70 of Qanun-e-Shahadat 1984.

(c) Partition---

----Transfer out of joint holding---Principles---Any transfer out of joint Khata even with regard to specific Khasra number is always subject to final adjustment of partition---No person can claim his exclusive ownership with regard to a specific Khasra number on the ground of having been purchased by him to the exclusion of other co-sharer.

Mustafa and three others v. Muhammad Khan and another NLR 1978 Civil 539 and Shah Hussain v. Abdul Qayum and others 1984 SCMR 427 rel.

Abdul Rehman Madni for Petitioners.

Rana Nasrullah Khan for Respondents.

Date of hearing: 29th May, 2006.

P L D 2007 Lahore 91

Before Syed Zahid Hussain, J

MUHAMMAD JAVAID---Petitioner

Versus

LESCO through Chief Executive and 5 others---Respondents

Writ Petition No.18792 of 2005, decided on 10th October, 2006.

Constitution of Pakistan (1973)---

----Arts. 199 & 37(d)---Constitutional petition---Public authorities/functionaries declining the return of the money erroneously or wrongfully recovered from a citizen to whom it belonged---Held, in a democratic set up it does not behove such authorities to decline the return of said money---Where the State/Authority has failed to make return/refund such amount to the citizen to which he was lawfully entitled, even the question of limitation or of adequacy of forum will not arise---Principles.

Indeed in a democratic set up it does not behove the public authorities functionaries to decline the return of the money erroneously or wrongfully recovered from a citizen to whom it belongs.

To return what has been taken wrongly is as much a duty and grace of government as to levy relentlessly and fully what is due. Default in either not altogether unfamiliar, shakes the confidence of the community in the Administration. That a party should have been put to too expensive and elongated litigations to recover a relatively small sum is regrettable. In the present case the State/Authority had failed to make return/refund amount to the citizen to which he was lawfully entitled, even the question of limitation or of adequacy of forum will not arise. One of the Principles of Policy, the State is obliged to observe is, clause (d) of Article 37 of the Constitution of Pakistan, 1973 which is that "The State shall ensure inexpensive and expeditious justice". The double exaction of the money for one and the same purpose is not justified on any principle. The petitioner was entitled to the refund of the same.

Aluminium Corporation of India Ltd. v. Union of India and others AIR 1975 SC 2279 rel.

Ch. Abdul Razzaq for Petitioner.

Mian Khurshid Alam Ramey for Respondents.

P L D 2007 Lahore 93

Before Nasim Sikandar and Sh. Azmat Saeed, JJ

G.R. SYED---Appellant

Versus

MUHAMMAD AFZAAL---Respondent

Regular First Appeal No.269 of 2006, decided on 7th September, 2006.

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

----O. XII, R.6---Judgment on admission---Passing of decree---Power of Court---Scope---Trial Court is empowered under O.XII, R.6, C.P.C. to pass judgment on the basis of admissions made by parties in their pleadings or otherwise at any stage of proceedings without waiting for determination of any other question that may arise between them---Such admissions must be specific, clear, unambiguous, categoric and definite---Even in presence of such admissions, it is discretion of Court whether to pass a decree or reject application under O.XII, R.6, C.P.C.

Amir Bibi through Legal heirs v. Muhammad Khurshid and others 2003 SCMR 1261, Sheikh Mahmood Ahmad v. Dr. Ghaith Pharaon and 3 others 1987 CLC 2131 and Lahore Development Authority through Director-General and another v. Mian Riaz Ahmad and others 1987 SCMR 1850 rel.

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

----Ss. 12, 21 & 22---Contract Act (IX of 1872), S.23---Agreement to sell---Enforceability---Condition subsequent---Scope---Where agreement to sell provides for obtaining N.O.C./permission, such is a condition subsequent and does not make agreement void ab initio/violative of S.23 of Contract Act, 1872 or otherwise---Where agreement cannot be performed or consummated without such condition subsequent, as a consequence of operation of law or otherwise, the denial of such condition subsequent would result in frustration of the agreement---Where such permission is granted but subject to such terms and conditions, which are patently disadvantageous to vendor or vendee, the agreement may, subject to its own peculiar circumstances, cease to be specifically enforceable---Where such condition subsequent is not a mandatory legal necessity for performance of agreement, it can be waived by party deriving benefit therefrom.

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

----Ss. 12 & 22---Civil Procedure Code (V of 1908), O.XII, R.6---Specific performance of agreement to sell---Decree on admission---Condition subsequent, waiving of---Non-payment of balance amount---Plaintiff entered into agreement to sell land owned by defendant with condition that he would sell the land after its adjustment/exemption from the Development Authority---On failure of defendant to execute the sale deed and to inform about status of exemption/adjustment by the Development authority, the plaintiff filed suit for specific performance against the defendant---Defendant admitted his ownership of suit land and did not specifically deny execution of the agreement and payment of consideration in the written statement---On application under O.XII, R.6, C.P.C. filed by plaintiff, the Trial Court passed decree in the light of admissions made by defendant---Plea raised by defendant was that the suit was premature as in absence of grant of exemption/adjustment by the Authority, decree for specific performance of agreement to sell could not have been passed---Validity---Condition subsequent, which was not mandatory stood waived by plaintiff, for whose benefit it has been inserted---Suit was neither pre-mature nor barred by law and was liable to be decreed on the basis of admissions on the record---In view of unequivocal and clear admissions, evasive written statement and nature of defence taken, the provisions of O.XII, R.6, C.P.C. were not only applicable but discretion to apply the same had been rightly exercised by Trial Court---Plaintiff, in the facts and circumstances of the case was not required to make balance payment till the condition subsequent of obtaining adjustment/exemption was satisfied or waived by him---Plaintiff could not be penalized or deprived of his remedy of specific performance for not making the payment of balance amount on the date fixed---High Court declined to interfere in the judgment and decree passed by Trial Court---Appeal was dismissed in circumstances.

Qureshi Muhammad Anwar and 6 others v. S.A. Qureshi and 3 others 1994 CLC 733; Macdonald Layton and Company Pakistan Limited v. Uzin Export-Import Foreign Trade Co. and others 1996 SCMR 696; Muhammad Ishaq and another v. Mst. Sufia Begum 1992 SCMR 1629; Federation of Pakistan through Cabinet Secretary to the Government of Pakistan, Cabinet Secretariat, Islamabad and 2 others v. Ally Brothers and Company (Pak) Limited through Managing Director/Chief Executive and another 2001 MLD 1615; Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322 and Rashid ur Rehman Khan v. Riaz Mubarik in. Civil Appeal No.1527 of 1999 distinguished.

Sami ul Haq v. Dr. Maqbool Hussain Butt and others 2001 SCMR 1053; Abdul Karim v. Muhammad Shafi and another 1973 SCMR 225; Mst. Taj Bibi and another v. Muhammad Akbar and 6 others 1987 SCMR 1850 and Mrs. Anwara Chowdhury v. M. Majid and others PLD 1964 SC 807 rel.

Ch. Mushtaq Ahmad Khan for Appellant.

Syed Najm-ul-Hassan Kazmi and Ali Akbar Qureshi for Respondent.

Date of hearing: 24th July, 2006.

P L D 2007 Lahore 104

Before Muhammad Jehangir Arshad, J

MUHAMMAD NAWAZ---Petitioner

Versus

THE STATE and 3 others---Respondents

Writ Petition No.4102 of 2006, decided on 17th August, 2006.

Illegal Dispossession Act (XI of 2005)---

---- S. 4---Criminal Procedure Code (V of 1898), Ss.265-K & 190---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Dismissal of complaint and acquittal---Petitioner in application under S.265-K, Cr.P.C. had sought dismissal of main complaint and his acquittal on the grounds that Additional Sessions Judge had no jurisdiction to entertain complaint under Illegal Dispossession Act, 2005; that complaint having been received in violation of S.193(2), Cr.P.C., could not proceed; and that Additional Sessions Judge was not delegated with the. jurisdiction under Illegal Dispossession Act, 2005---Said application of petitioner having been 'dismissed, petitioner had filed constitutional petition---Provincial Government in consultation with High Court, in terms of Ss.7 & 8 of Cr.P.C., had already declared the relevant Tehsil as Sessions Division, which would be deemed to be the Court of Session, competent to try complaint filed by respondent under S.4 of Illegal Dispossession Act, 2005---Contention that Additional Sessions Judge, was not Court', was repelled, in circumstances---Contention that complaint was entertained by Additional Sessions Judge in violation of S.193(2), Cr.P.C., was also not sustainable for the reason that provisions of Cr.P.C. were not strictly applicable to proceedings under Illegal Dispossession Act, 2005 and Court constituted under the said Act, being Special Court was not bound to follow the procedure as laid down in S.190, Cr.P.C.---Ground that Additional Sessions Judge was not delegated jurisdiction under Illegal Dispossession Act, 2005 had no legal force because a complaint under Illegal Dispossession Act, 2005 was to be filed and tried by the Court of Session---Tehsil in question having been notified as Sessions Division, Additional Sessions Judge working at said Tehsil was alsoCourt of Session'---Complaint, in circumstances was rightly filed, entertained and heard---Impugned order of Additional Sessions Judge, neither suffered from any illegality, nor irregularity or jurisdictional defect.

Federation of Pakistan through Secretary, Establishment Division, Islamabad and others v. Major (Retd.) Muhammad Azam and another 1994 SCMR 2177 and 2005 PCr.LJ 768 rel.

Saghair Ahmad Bhatti, for Petitioner.

P L D 2007 Lahore 106

Before M.A. Shahid Siddiqui and Hasnat Ahmad Khan, JJ

SULTAN and others---Petitioners

Versus

THE STATE and others---Respondents

Criminal Revision No.186 of 2006, heard on 31st October, 2007.

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

----Ss. 6, 7 & 23---Penal Code (XLV of 1860), Ss.324, 427, 148 & 149---Criminal Procedure Code (V of 1898), S. 439---Terrorism---Offence in the case was committed on busy road---Traffic remained suspended in a queue of one mile due to the said act of terrorism, which had shown that panic had been created among the people---Act of petitioners/accused, prima facie had caused fear and insecurity in the minds of the people---Record further showed that 24 empties of the bullets were recovered from the place of occurrence by the police, which had also shown that accused had made reckless firing not only to kill complainant party, but also to frighten the general public Both the screens of the car of complainant party were broken and complainant also received injury by the shot fired from Klashnikov as also by the splinters of the broken screen---Not necessary that commission of offence might have created panic and terror among the people, but the Court had only to see whether the "terrorist act" was such which had the tendency to create sense of fear and insecurity in the minds of the people or any section of the society---Act of petitioners in the present case had created sense of fear and insecurity in the mind of the public, which would fall within the ambit of Ss.6 & 7 of Anti-Terrorism Act, 1997---Trial Court, in circumstances, was quite justified in dismissing application of petitioners for transfer of case.

The State through Advocate-general, N.-W.F.P. Peshawar v. Muhammad Shafiq PLD 2003 SC 224; Muhammad Mushtaq v. Muhammad Ashiq and others PLD 2002 SC 841; Sh. Muhammad Amjad v. The State PLD 2003 SC 704; Mst. Najam un Nisa v. Judge, Special Court constituted under Anti-Terrorism Act, 1997 2003 SCMR 1323; Abdul Ghafoor Bhatti v. Muhammad Saleem and others 2003 SCMR 1934 and Asad Ullah v. Muhammad Tariq and 2 others PLD 2006 Lah. 651 ref.

Abdul Aziz Khan Niazi for Petitioners.

Sh. Muhammad Fahim for Respondents.

Tanvir Haider Buzdar for the State.

Date of hearing: 31st October, 2006.

P L D 2007 Lahore 111

Before Syed Zahid Hussain, J

Sh. MUHAMMAD ARSHAD---Appellant

Versus

Sh. MUHAMMAD ASGHAR---Respondent

Regular Second Appeal No.70 of 1999, heard on 19th October, 2006.

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

----O. XXXVII, R. 1---Suit for recovery of money on basis of pro note---Suit entrusted to Additional District Judge---Trial conducted by Civil Judge---Effect---Suits based on negotiable instruments to be tried under O.XXXVII, C.P.C.---Scope---Plaintiff/respondent filed suit for recovery of certain amount against defendant/appellant in the Court of District Judge who entrusted the matter to Additional District Judge---Case file was sent to the Court of Civil Judge by Additional District Judge on order of District Judge---Civil Judge dismissed suit and appeal filed thereagainst was, however, accepted by Additional District Judge and suit was decreed---Defendant/appellant contended that since suit had been filed under O. XXXVII, C.P.C. on the basis of negotiable instrument (promissory note), therefore, legality of proceedings and judgments passed by Courts were questionable---Validity---Provisions of O.XXXVII, C.P.C. were of special nature which dealt with suits based on negotiable instruments---Suit which was not triable by resort to procedure prescribed in O.XXXVII, C.P.C. its trial could proceed as an ordinary suit---In the present' case, however, order of District Judge directing Additional District Judge to-transmit suit to Civil Judge was not available on file---Basis of transmission of suit to Civil Judge being missing, proceedings conducted by Civil Judge and consequential judgments on mistaken assumption lost legal efficacy---Suit filed by plaintiff needed to be tried by Additional District Judge from stage onward when he passed order to transmit suit to Civil Judge---Appeal was accepted.

Sh. Abdul Majid v. Syed Akhtar Hussain Zaidi PLD 1988 SC 124 and Muhammad Abdullah Sufi v. Messrs Muhammad Bux and Son and others PLD 1957 (W.P.) Kar. 445 ref.

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

----O. XXXVII, R.1, Ss.122 & 128---Suit for recovery of money based on pro note---Procedure---Where the procedure under O. XXXVII, C.P.C. was being claimed by plaintiff but the same was not available, then Trial Court could proceed with the case as an ordinary suit---Rule 1 introduced in O.XXXVII, C.P.C. by amendment by Lahore High Court did not touch jurisdiction and was not in excess of its powers possessed under Ss.122 & 128, C.P.C.---Order XXXVII, C.P.C. related to procedure and not jurisdiction---Amendment introduced by High Court only identified courts where resort was to be had to O. XXXVII, C.P.C. for purpose of trial of a suit of particular category.

Sh. Abdul Majid v. Syed Akhtar Hussain Zaidi PLD 1988 SC 124; Messrs Sh. Siraj & Company and another v. Habib Bank Ltd., Lahore 1969 SCMR 784 and Muhammad Abdullah Sufi v. Messrs Muhammad Bux and Son and others PLD 1957 (W.P.) Kar. 445 rel.

Syed Mumtaz Hussain for Appellant.

Muhammad Aslam Buttar for Respondent.

Date of hearing: 19th October, 2006.

PLD 2007 Lahore 114

Before Mian Saqib Nisar and Fazal-e-Miran Chauhan, JJ

ABDUL RAUF---Appellant

Versus

FAROOQ AHMED and another---Respondents

R.F.A. No.209 of 2006, heard on 2nd October, 2006.

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

----O. XXXVII---Qanun-e-Shahadat (10 of 1984), Art.17(2)(a)---Negotiable Instruments Act (XXVI of 1881), Ss.6, 29-C & 35---Evidence Act (I of 1872)---Stamp Act (II of 1899), S.2(5)(b)---Suit for recovery of money on basis of pro note---Promissory note not attested by marginal witnesses---Article 17(2)(a) of Qanun-e-Shahadat, 1984, applicability to promissory note---Expression "any special law" mentioned in Art.17(2)(a) of Qanun-e-Shahadat, 1984---Scope---Plaintiffs filed suit for recovery of money on the basis of pro note against defendant, asserting therein that defendant had executed pro note along with receipt and an agreement in favour of plaintiffs---Defendant though denied his liability to pay amount but admitted his signature/thumb impression on pro note and receipt which according to him were obtained by plaintiffs on blank papers---Defendant contended that pro note had not been witnessed by two marginal witnesses as required under Art.17 of Qanun-e-Shahadat, 1984 and, therefore, no right to recover any amount was to be based on the same---Trial Court decreed the suit and appeal filed thereagainst by defendant was dismissed by Appellate Court---Validity---Receipt and agreement had been proved by marginal witnesses---Defendant having admitted his signature and thumb impression on pro note, burden of proof had shifted upon him to prove that he had signed and thumb-marked on blank papers---Statements of marginal witnesses had not been shattered in cross-examination, nor any motive was attributed to them that they were making a false statements---Qanun-e-Shahadat, 1984, was a general law and expression "any special law" appearing in Art.17(2)(a) of Qanun-e-Shahadat, 1984, meant special law dealing with special subjects which were existing at the time of enforcement of the Qanun-e-Shahadat, 1984---Negotiable Instruments Act, 1881, was also a special law within meanings of Art.17(2)(a) of Qanun-e-Shahadat, 1984---Under Ss.6 & 29-C of Negotiable Instruments Act, 1881, promissory note and cheque were negotiable instruments which could not be attested by witnesses and in case any signature by stranger were appended thereupon, the signing was to be presumed to have been made as indorser---Under S.35 of Negotiable Instruments Act, 1881, attestation of pro note by witnesses was impermissible and could only be made by a stranger in capacity and status of an indorser---Under S.2(5)(b) of Stamp Act, 1899, if an instrument, which otherwise might be a promissory note, but if attested by witnesses, it attained legal status of a bond and no more remained a negotiable instrument---One of the important tests to determine whether an instrument was bond or promissory note, was attestation of witnesses---Promissory note in question was not required to be attested by any witness and, moreover, when the same was tendered in evidence by plaintiffs, no objection was raised by defendant---Promissory note had been proved by two marginal witnesses of receipt---Appeal was dismissed.

Ram Narayan Bhagat and another v. Ram Chandra Singh and others AIR 1962 Patna 325; Haji Hamzo Panhwar. v. Muhammad Ibrahim, and another PLD 1963 (W.P.) Kar. 962 and Dayal and another v. Bhinuna 1925 Oudh 188 rel.

(b) Negotiable Instruments Act (XXVI of 1881)---

----S. 4---Promissory note---Four conditions to qualify as a promissory note enumerated.

Following are the conditions to qualify as a promissory note:-

(i) an unconditional undertaking to pay;

(ii) sum should be a sum of money and should be certain;

(iii) payment should be to or to the order of a person who is certain or to bearer of instrument; and

(iv) maker should sign it.

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

----Art. 17(2)(a)---Expression "any special law" appearing in Art.17(2)(a) of Qanun-e-Shahadat, 1984 means special law dealing with special subjects which existed at the time of enforcement of the Qanun-e-Shahadat, 1984.

(d) Negotiable Instruments Act (XXVI of 1881)---

---Ss.6 & 29-C---Promissory note and cheque were negotiable instruments which could not be attested by witnesses and in case any signature by stranger were appended thereupon the signing was to be presumed to have been made as indorser.

(e) Negotiable Instruments Act (XXVI of 1881)---

---S. 35---Attestation of pronote by witnesses was impermissible and could only be made by a stranger in capacity and status of an indorser.

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

---S. 2(5)(b)---If an instrument, which otherwise might be a promissory note, but if attested by witnesses, the same attained legal status of a bond and no more remained a negotiable instrument---One of the important tests to determine whether an instrument was bond or promissory note, was attestation of witnesses.

S. M. Masud for Appellant.

Mian Muhammad Aslam Arain for Respondents.

Date of hearing: 2nd October, 2006.

P L D 2007 Lahore 121

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

AHMAD NAWAZ alias GOGI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1751 and Murder Reference No.765 of 2005, heard on 1st November, 2006.

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

----S. 345---Penal Code (XLV of 1860), Ss.302(b), 305, 309 & 324---Application for compounding of offence under S.302(b), P.P.C.---Right of Qisas and Diyat---Wali of deceased---Determination of---Scope---Consanguine sister's refusal to compromise offence---Effect---Accused/appellant was convicted under S.302(b), P.P.C. and was sentenced to death by Trial Court---Being unmarried, deceased was survived by his mother and father---Apart from three real brothers and three real sisters (all minors) deceased had three step-sisters as his father had four wives---During pendency of appeal, real mother of deceased moved an application seeking permission to compound the offence and on direction of High Court, Sessions Court recorded statement of petitioner/mother of deceased whereby she pardoned accused and with regard to share of six minors, Diyat money in shape of defence saving certificates was deposited---Step/consanguine sisters of deceased did not compound the offence with accused---Petitioner contended that where an unmarried person was murdered, then father and mother were to be his only legal heirs; that as in the present case as father of deceased died after murder of deceased there real mother and real brothers and sisters were the only legal heirs of deceased; that Islamic Law categorized three categories such as sharers, residuary and distant kindred and that in presence of real brothers and sisters consanguine sisters were not to be legal heirs---Consanguine sister of deceased contended that real brothers and sisters of deceased were in her custody; that she could not be ousted from getting share of Diyat; that compromise with accused would amount to Fisad-fil­-arz; and that real mother of deceased effected compromise under pressure of accused and that after death of deceased right of Qisas and Diyat devolved upon all legal heirs of the deceased---Validity---Under S.305, P.P.C. heirs of the victim were to by Wali of victim according to their personal law and said provision did not contemplate that heirs of an heir of victim were also to be Wali of victim---Heir of a person was to be a person who was entitled to inherit property of deceased at the time of his death---In the present case, inheritance of victim automatically opened upon his death and at that time, the only heirs of victim were his father and mother, thus property of deceased devolved upon said heirs of deceased---After devolving of property of deceased upon said heirs, inheritance of deceased had been exhausted and nothing was left for any body else to inherit from deceased---Under S.305(a), P.P.C., heirs of deceased were surely different from heirs of a Wali of deceased---Consanguine sisters were to inherit from father of deceased and not from deceased himself, thus, they were heirs of father of deceased and not of deceased---Consanguine sisters were claiming a right to effect or refuse a compromise with accused/appellant which they claimed to have inherited from father of deceased and they did not claim any right to inherit property of deceased directly---Compromise arrived at between accused and real mother and real brothers and sisters of deceased was genuine, without coercion and duress, hence permission was granted to compound offence---Accused was acquitted.

1993 CLC 2539; PLD 1995 Kar. 5; Mohammedan Law, Vol. II by Syed Ameer Ali and 2006 SCMR 1916 ref.

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

----S. 305(a)---Scope---Spirit and rationale of provisions of S.305(a), P.P.C. was that Wali of victim was the person who was entitled to inherit property of victim and interpretation of said provisions could not be stretched to include in the definition of Wali a person who claimed to have inherited right of compromise possessed by Wali---Spirit of Qisas and Diyat laws was to quench thirst of revenge of immediate heirs of victim and thus right to enter into a compromise or otherwise could not be extended to any other remote relative' of deceased at the time of his murder who might at some subsequent stage become entitled to inherit some property from some heir of deceased upon death of such heir.

Mian Muhammad Sikandar Hayat and Waqar ul Mohsin Lak for Appellant.

Syed Zahid Hussain Bokhari for Respondent.

Tahir Mahmood Gondal, Assistant Advocate-General and M. Saleem Shad for the State.

Date of hearing; 1st November, 2006.

P L D 2007 Peshawar 123

Before Muhammad Raza Khan, J

YAFAS---Appellant

Versus

THE STATE and others---Respondents

Criminal Appeal No.130 of 2006, decided on 12th March, 2007.

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

----Ss. 3, 4, 5 & 9---Criminal Procedure Code (V of 1898), S.410---Conviction---Appeal---Maintainability---Accused having been convicted by the Trial Court under S.3 of Illegal Dispossession Act, 2005, had filed appeal against his conviction and sentence---Maintainability of appeal was objected to on the ground that as accused having been convicted under a special statute, which did not provide for a right of appeal, his appeal was not maintainable---Validity---Illegal Dispossession Act, 2005 did not contain any provision with regard to the right of appeal; in view of S.9 of Illegal Dispossession Act, 2005, remedy would be available under Criminal Procedure Code, 1898---Right of, at least, one appeal against any order (particularly against the order of conviction) was an undoubted established principle and practice of criminal justice---Objection with regard to the maintainability of appeal was without force because anything for which there was no contrary provision in Illegal Dispossession Act, 2005, Criminal Procedure Code, 1898 would be applicable and since no provision of appeal existed in the Act, appeal under S.410, Cr.P.C. was the appropriate remedy.

Zahoor Ahmad and 5 others v. The State PLD 2007 Lah. 231 ref.

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

----Preamble & S.5---Object and applicability of Illegal Dispossession Act, 2005---Illegal Dispossession Act, 2005, was promulgated to curb the increasing tendency of the use of force in dispossessing the owners from their valuable properties, however, a nice distinction could be made between Illegal Dispossession Act, 2005 and the earlier law in the field---Immovable property could bring the disputes and controversies along with title and a person could be dispossessed by a contiguous owner, a co-owner or by a stranger---Several provisions in the revenue, civil and criminal law were already in existence to meet such situation---Need of new legislation was felt when organized groups of people tried to dispossess the owners of valuable property by the use of force---Menace of land grabbing or "Qabza Group" was spreading with fast speed---Legislature, in circumstances felt the need to curb the tendency of land grabbing---illegal Dispossession Act, 2005 was promulgated with a view to "curb the activities of the property grabbers" and in view of the desire of Government to nip the evil in the bud, the statute with special provisions was enforced, where not only the level of the Trial Court was specified to be the Court of Session, but the harsh punishment of imprisonment extendable to 10 years with fine was also provided with an additional provision of compensation to the complainant under S.544-A, Cr.P.C.---Law had further provided for the eviction of the illegal occupation as an interim relief for the restoration of possession to the original occupant on the conclusion of trial---Speedy mechanism for the investigation and trial was also provided and in S.5(2) of Illegal Dispossession Act, 2005, it was provided that "the court taking cognizance of a case would proceed with the trial on day to day basis and would decide case within 60 days"---Such an expeditious and strict procedure was laid down with a purpose to discourage the attempts of illegal dispossession and to restore the proprietary confidence and possession to the owners within the minimum possible time and to discourage the grabbers by deterrent punishment---Such a special statute with special mechanism, however, could neither be applied to all the cases of trespass and dispossession nor the power of the civil court and Revenue Court had been withdrawn through the said legislation--Particular phrase like "property grabbers" used in the Preamble and the title of Illegal Dispossession Act, 2005 and the use of the term in plural was of specific importance---Purpose of legislation was "to curb the activities of the property grabbers" and not to provide for a mechanism for the resolution of controversy of encroachment, dispossession etc. between the contiguous owners and the co-owners.

(c) Words and phrases---

----"Grab", "grabber", "land grabber" or "property grabber"---Meaning and connotation.

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

----Preamble, Ss.3 & 5---Appreciation of evidence---Applicability of Illegal Dispossession Act, 2005---Points to be established---For application of Illegal Dispossession Act, 2005, it had to be established; firstly that person who had taken the possession, was not having a title thereto; secondly, that he had taken the possession by the use of force; thirdly, that he had taken over the property without due process of law; and fourthly, that such person or persons belonged to the group of land grabbers---Complainant, in the present case, undoubtedly was a lawful owner of an immovable property and he was an occupier of a part of it, but no evidence was available to the effect that accused had used the force on the complainant or his tenant, lessee or servant for the purpose of dispossession---No proof existed to the effect that any of the building structures, crops, trees etc., were damaged or demolished by accused during alleged act of dispossession and there was no proof at all either that accused was a land grabber or he belonged to the group of land grabbers, property grabbers or the land mafia---Even if it was presumed that accused had dispossessed the complainant illegally, but no proof was available that such dispossession was forcible and there was no proof at all that dispossession of complainant was committed by the property grabbers---Provision of Illegal Dispossession Act, 2005 would not be applicable in circumstances and conviction of accused under said law was legally not proper---Complainant could still resort to appropriate legal remedy---Conviction and sentence awarded to accused by the Trial Court, were set aside and accused was acquitted of the charge and was released.

Kh. Azhar Rashid for Appellant.

Qari Abdul Rashid, D.A.-G. for the State.

Complainant in person (present).

Date of hearing 27th February, 2007.

P L D 2007 Lahore 128

Before Muhammad Akhtar Shabbir, J

MAMOONA SAEED---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary, Home Department and 2 others---Respondents

Writ Petition No.8613 of 2006, decided on 28th August, 2006.

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

----Ss. 3 & 5---Constitution of Pakistan (1973), Arts.9 & 199---Constitutional jurisdiction of High Court---Scope---Judicial review---Preventive detention---Impugned order detaining the detenu was a preventing order to prevent or restrain the detenu from the activities, which could be prejudicial to the public safety and maintenance of public order---Where a person detained was aggrieved of his detention being not justified in law, such person had the right to invoke the jurisdiction of the High Court immediately for restoration of his liberty, which was basic fundamental and birth right---Where an order passed by an executive authority detaining a person was challenged before the High Court in exercise of its extraordinary constitutional jurisdiction, it would be by means of judicial review and it was not an appeal or revision---Right of a person to a petition for "habeas corpus" was a high prerogative and was a constitutional remedy for all matters of illegal confinement.

Wealth Tax Officer and another v. Shaukat Afzal and 4 others 1993 SCMR 1810; Muhammad Siddiq Khan v. District Magistrate PLD 1992 Lahore 140; Maulana Muhammad Azam Tariq v. The District Magistrate, Jhang and 2 others 2001 PCr.LJ 1727 and Sheikh Rashid Ahmad v. D.M. Rawalpindi and others 2004 PLJ (Lahore) 1221 rel.

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

----Ss. 3 & 5---Constitution of Pakistan (1973), Art. 199, 9 & 10---Constitutional petition---Preventive detention---Judicial review---Satisfaction of Court---Requirements for passing of preventive detention order---Court must be satisfied that the material before the detaining Authority was such that a reasonable person would be satisfied as to the necessity for making the order of preventive detention; that satisfaction should be established with regard to each of the grounds of detention and if one of the grounds was shown to be bad, non-existent or irrelevant, the whole order of detention would be rendered invalid; that initial burden lay on detaining Authority to show the legality of the preventive detention; that the detaining Authority must place the whole material before the Court upon which the order of detention was based, notwithstanding its claim of privilege with respect to any document, the validity of which claim would be within the competence of the Court to decide; Court had further to be satisfied, in cases of preventive detention, that order of detention was made by the Authority prescribed by the law relating to preventive detention; that each of the requirements of the law relating to preventive detention, had been strictly complied with; that 'satisfaction' in fact existed with regard to the necessity of preventive detention of the detenu; that the grounds of detention had been furnished within the period prescribed by law and if no such period was prescribed, then "as soon as could be"; that the grounds of detention should not be vague and indefinite and should be comprehensive enough to enable the detenu to make representation against his detention to the Authority prescribed by law; that the grounds of detention were not irrelevant to the aim and object of that law and that detention should not be for extraneous consideration or for purposes which could be attacked on the ground of malice.

Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Mrs. Amatul Jalil Khawaja and others PLD 2003 SC 442 rel.

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

----Ss. 3 & 5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Preventive detention---Judicial review---Duty of Court---One of the grounds of detention, in the present case, was that the detenu was a fire brand speaker---Validity---Such was a qualification of a person and not a disqualification---No material was available before detaining Authority nor any such material/evidence was produced before High Court as to how the activities of detenu were found prejudicial to the public safety and maintenance of public order---Order of detention had been passed by the Authority on the receipt of a letter in a mechanical manner only on the ground that detenu if not arrested or detained, would create law and order situation in the District---Detention order was passed against detenu on the general terminology of acting "in a manner prejudicial to the public safety and maintenance of public order" without specifying the actual guilt or crime---Order passed on said vague allegations, was not only unconstitutional, but also offended against basic principles of teachings of Islam, which order could not be sustained in law---Duty had been cast upon the High Court, whenever a person detained in custody was brought before the Court to 'satisfy itself that he was not being held in custody without lawful authority or in any unlawful manner---Reasonableness of the grounds of detention could also be examined by High Court while exercising constitutional jurisdiction---All the grounds of detention enumerated in the detention order passed by the Authorities in the present case, were vague, based upon presumptions and speculations; it was, therefore, sufficient to infer that detaining Authority had not applied its mind to satisfy itself for issuance of detention order of detenu---Order of detention passed against detenu not fulfilling the requirements of law and criteria laid down, was declared to have been passed illegally and was set aside and detenu was ordered to be set at liberty---Principles.

Gulzar Ahmad v. District Magistrate and another 1988 PCr.LJ 1790; Arbab Akbar Adil v. Government of Sindh through Home Secretary, Government of Sindh, Karachi PLD 2005 Kar. 538; Haji Muhammad Ishaq Shah v. District Magistrate, Lakki Marwat and 2 others 1999 PCr.LJ 1558; Mir Abdul Baqi Baluch v. The Government of Pakistan through the Cabinet secretary PLD 1968 SC 313; Ashutosh Lahiry v. The State of Delhi and another AIR 1953 SC 451; National Bank v. Faridsons' Limited 20 DLR (S C) 249); Liaqat Ali v. Government of Sindh through Secretary, Home Department and another PLD 1973 Karachi 78; Government of Sindh through .The Chief Secretary, Karachi and 4 others v. Raeesa Farooq and 5 others 1994 SCMR 1283; Khan Ghulam Muhammad Khan Loondkhawar and others v. the, State PLD 1957 (W.P.) Lah. 497; Noor Hussain v. Superintendent, Darul Aman, Multan and 2 others PLD 1988 Lah. 333; Abdul Haque alias Dost Muhammad v. District Magistrate and Deputy Commissioner, Naushahro Feroze and 3 others PLD 1990 Kar. 481; Abdul Hamid Khan v. The District Magistrate, Larkana and 2 others PLD 1973 Kar. 344; Masal Khan v. District Magistrate, Peshawar and 3 others PLD 1997 Pesh. 148; Rao Shahid Ali Khan v. Secretary Home Department, Government of Punjab, Lahore and 4 others 2005 MLD 1771; Mulazim Hussain Shah v. Province of Punjab through Secretary Home Department, Government of Punjab, Lahore and 2 others PLD 2006 Lah. 108; Abu Bakar Muhammad Reza v. Secretary to Government of Punjab, Home Department and 3 others PLD 2005 Lah. 370 and Mrs. Arshad Ali Khan v. Government of the Punjab through Secretary Home 1994 SCMR 1532 ref.

Nazeer Ahmad Ghazi, assisted by Rafique Javed Butt, Ch. M. Zafar Iqbal and M. Anas Bin Ghazi for Petitioner.

Muhammad Hanif Khatana, Addl. A.-G. for Respondents.

P L D 2007 Lahore 141

Before Syed Zahid Hussain, J

[Election Tribunal]

Sahibzada MUHAMMAD NAZEER SULTAN---Petitioner

Versus

SAIMA AKHTAR BHARWANA and others---Respondents

Election Petition No.121 of 2002, decided on 3rd November, 2006.

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

----Ss. 39(6) & 46---Representation of the People (Conduct of Election) Rules, 1977, R.26---Recounting of ballots---Principles---Returning Officer and Election Tribunal---Jurisdiction---Returning Officer holds a vital position in conducting and holding of election in a just and fair manner in accordance with law---Returning Officer performs an important duty for such purpose and has the power to recount ballot papers---Election Tribunal can order opening of packets, production of records and inspection of counted ballot papers under S.46 of Representation of the People Act, 1976---Whenever there is allegation of misconduct, the Returning Officer can undertake recount and Election Tribunal can order opening of packets, examination and inspection of ballot papers in order to find out whether statutory provisions were duly observed by statutory functionaries---While seized of election petition, the Tribunal is vested with power to order recount, which power, however is to be exercised on the basis of some material prima facie establishing illegalities and irregularities in the count of polled votes---Party is not entitled to claim recount as a matter of course and it is to be shown that there had been improper reception, refusal' or rejection of votes---Such power of Election Tribunal though quite extensive, yet it is to be exercised sparingly after satisfaction on the basis of material/evidence that there had been wrong inclusion or exclusion of ballot papers in count.

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

----S. 7(4)---Conducting of election---Returning Officer---Duties---Observance and compliance of statutory provisions for conducting election is inviolable duty of Returning Officer.

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

----S. 39(3)---Representation of the People (Conduct of Election) Rules, 1977, R.26 (2)---Ballot papers excluded from count by Presiding Officer---Recounting---Returning Officer, duty of---Returning Officer is duty bound and expected to examine each ballot paper so excluded from count by Presiding Officers and find out whether it had rightly been so excluded and is also empowered to undertake recount.

(d) Interpretation of statutes---

----Mandatory/directory nature of a provision of law---Determination---Irrespective of language and phraseology used by legislature, the legislative intent and end result to be attained is to be discovered in order to reach the conclusion that a particular provision is mandatory or of directory nature.

Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6; Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni and 13 others 1999 SCMR 284; Col.(Retd.) Syed Mukhtar Hussain Shah v. Wasim Sajjad and 30 others PLD 1986 SC 178; Jam Mashooq Ali v. Shahnawaz Junejo 1996 SCMR 426; Morgan and others v. Simpson and another (1974) 3 All ER 722; Mibler v. Lakewood Hsg Co. 1932, the 125 Ohio Court 152; N.S. Bindra; Interpretation of Statutes 9th Edn.; Understanding Statutes-Canons of Construction 2nd Edn. by S.M. Zafar and Francis Bennion in Statutory Interpretation 2nd Edn., p.28 rel.

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

----Ss. 7(4), 39 (3), 52, 67 & 70(a)---Representation of the People (Conduct of Election) Rules, 1977, R.26 (2)---Constitution of Pakistan (1973), Art.218---Election dispute---Excluded ballot papers---Examination and recounting---Declaring election as a whole void---Grievance of petitioner was that election was not conducted in accordance with the provisions of law and Presiding Officers as well as Returning Officer failed in performing their duties---Returning Officer admitted that application was made by petitioner which was rejected by him on the same day without inspecting and examining the ballot papers excluded from count by Presiding Officer---Returning Officer also admitted that he did not open or de-seal any of the packets/bags which were produced by Presiding Officers before him---Effect---Before consolidating results of count, Returning Officer had to examine the ballot papers excluded from the count by Presiding Officers and to reach his own conclusion as to the correctness or otherwise of the exclusion---Imperative duty of Returning Officer to have acted strictly in accordance with the statutory provisions while holding and conducting election---Returning Officer who was a statutory functionary, under S.7(4) of Representation of the People Act, 1976, was charged with the duty to do all acts and things as might be necessary for effectively conducting an election in accordance with the provisions of law and rules---Returning Officer had to ensure the conduct of election honestly, justly, fairly and in accordance with law as ordained by Art.218 of the Constitution---Lapses and violations committed by Returning Officer were very serious and took the issue out of the purview and scope of the pleadings of parties---Non-compliance of statutory provisions of law and their violations were so flagrant, visible and obvious, that provisions of S.70(a) of Representation of the People Act, 1976, were fully got attracted---Election Tribunal was empowered under S.67 (d) of Representation of the People Act, 1976, to declare the election as a whole void---Election Tribunal in the light of statutory provisions and precedents, declared the election as a whole void and ordered fresh election in the constituency---Petition was allowed accordingly.

Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6; Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni and 13 others 1999 SCMR 284; Syed Qurban Ali Shah v. Anis Ahmed Khan and 10 others 1993 CLC 849 and Jam Mashooq Ali v. Shahnawaz Junejo 1996 SCMR 426 rel.

Maulvi Abdul Ghani and another v. Election Tribunal, Balochistan and others 1999 SCMR 1; Paragrah 940 of Vol. 15, Halsbury's Laws of England, 4th Edn.; Km. Shradha Devi v. Krishna Chandra Pant and others AIR 1982 SC 1569; Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another PLD 1986 SC 542; Col. Retd.) Syed Mukhtar Hussain shah v. Wasim Sajjad and 30 others PLD 1986 SC 178; Kanwar Ijaz Ali v. Irshad Ali and 2 others PLD 1986 SC 483; Hukam Singh v. Banwari Lal Bipra and others AIR 1965 All. 552; Faqir Abdul Majeed Khan v. District Returning Officer and others 2006 SCMR 1713; Jan Muhammad v. Collector Jacobabad and others PLD 1963 (W.P.) Kar. 433; Niaz Muhammad Khan v. Mian Fazal Raqib PLD 1974 SC 134; Masood Textile Mills Ltd. through Ch. Muhammad Amin, Director v. Ishan-ul-Haq, Commissioner of Income Tax, companies Zone, Faisalabad and 6 others 2003 PTD 2653 and Messrs R.C.D. Ball Bearing Limited v. Sindh Employees' Social Security Institution, Karachi PLD 1991 SC 308 ref.

Asim Hafeez for Petitioner.

Imtiaz Rasheed Siddiqui with Imran Anjum Alvi for Respondent No.1.

Dates of hearing: 27th October, and 2nd November, 2006.

P L D 2007 Lahore 170

Before Muhammad Akhtar Shabbir and Syed Asghar Haider, JJ

ABDUL SATTAR CHUGHTAI MALIK---Appellant

Versus

PAKISTAN BAR COUNCIL through Secretary and another---Respondent

Intra-Court Appeal No.297 in Writ Petition No.10590 of 2006, decided on 19th October, 2006.

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

---Ss. 55 & 56---Supreme Court Bar Association Rules, Rr.8, 9, 12 & 43---Law Reforms Ordinance (XII of 1972), S. 3---Intra-Court appeal had arisen out of order passed by Single Judge in constitutional petition---Main grievance of appellant in constitutional petition was that reduction of the terms of the Office-Bearers and Executive Committee of Supreme Court Bar Association from two years to one year was not in the interest of Association; that the elected office-bearers were not in a position to achieve their object for which they had constituted election; and the term of one year for Supreme Court Bar Association was ridiculously low and deficient for performing of their obligations to achieve the goal---Arguments of appellant had been opposed before Single Judge contending that amendment made in Rules, 8, 9 & 12 of Supreme Court Bar Association Rules, was in the best interest of all the members of Association who represented all the four Provinces of Pakistan---None of the Elected Representatives of Supreme Court Bar Association or any other Member of the Bar having supported appellant in that matter, contentions of appellant having no force, were repelled---Rules being not statutory in nature, any violation of statutes, Regulations or Rules would not attract constitutional jurisdiction of High Court under Art. 199 of the Constitution---Supreme Court Bar Association was a body, Organization of Lawyers, who were entitled to practise in Supreme Court, which had not been constituted under any Act of the Parliament, but being a non-statutory body, conditions or rules framed by that body would also be non-statutory rules and would have no legal backing---Constitutional petition under Art.199 of the Constitution against a body, organization not constituted under the law would not be competent---Appellant having not been able to assist the Court in believing that rules of Supreme Court Bar Association were statutory in nature, appeal tiled by appellant against judgment of Single Judge was dismissed.

Dr. M. Afzal Beg v. University of Punjab and others 1999 PLC (C.S) 60; Khalid Hussain v. The Chancellor, (Governor of Punjab) and others NLR 1995 CLJ 219; Muhammad Umar Malik, v. The Muslim Commercial Bank through its President, Karachi and 2 others 1995 SCMR 453; Anwar Hussain v. Agricultural Development Bank of Pakistan and others PLD 1984 SC 194; Mr. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232; University of the Punjab, Lahore v. Ch. Sardar Ali 1992 SCMR 1093 and Ijaz Hussain Sulerj v. The Registrar and another 1999 SCMR 2381 ref.

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

----Ss. 55 & 56---Powers of Pakistan Bar Council---Scope---Pakistan Bar Council, had power in the matter of recognition and functioning of Supreme Court Bar Association or any Bar Association of national level whereas S.56 of Legal Practitioners and Bar Councils Act, 1973, by express and necessary intendment, empowered Punjab Bar Council to adjudicate matters of recognition and functions of all Bar Associations in the Province of Punjab.

(c) Interpretation of statutes---

----Non-statutory rules-Nature-'Statute' was the formal expression' in writing of the will of legislative organ in a State-'Statute' was a declaration of the law as it existed or as would be from the time at which such statute was to take effect---Parliament was the law making authority, which passed the Acts and empowered the government under relevant Act to make rules---Statute was the highest constitutional formation of law, by which supreme legislature, after the fullest deliberation expressed its final will---Statute law' was defined as the will of nation, expressed by the legislature expounded by the courts of justice---If the Parliament was not in session then the laws were enforced through Ordinances issued by the President or the Governor expressing will of the nation as the case might be---Act passed by the Parliament and Ordinance issued by the nation would be called the `statutory law'---Rules framed under the powers conferred by the Act were integral part of the Act and those rules were called statutory rules and those were part of the parent Act---Rules or bye-laws made under the statute or Act could not override the provisions of other statutes---Rules under the Act would be made by the authority, empowered under the Act to frame rules or bye-laws and by no other authority which was not empowered under the Act to make rules---Where the statutory corporation, body or organization enacted laws, rules of their own, those were called bye­laws---All bye-laws made by subordinate authorities were subject to system of check and bye-laws required the approval of different concerned government departments---Rules or bye-laws not framed by the government or framed by the corporation, if were not approved by the government, would be called non-statutory rules.

Abdul Sattar Chughtai Malik Appellant (in person).

P L D 2007 Lahore 176

Before Sh. Javaid Sarfraz, J

MANSAB ALI---Petitioner

Versus

ASGHAR ALI FAHEEM BHATTI, ADDITIONAL SESSIONS JUDGE, NANKANA SAHIB and 3 others---Respondents

Writ Petition No.5034 of 2006, decided on 30th October, 2006.

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

---Ss. 176, 173 & 435---Revision against order of Magistrate passed under S.173, Cr.P.C.---Maintainable being a judicial order.

Hakam Ali and others v. The State PLD 2006 Kar. 302; Trovlokhanath Biswas and Ram Chura Biswas ILR 3 Cal. 742; Laxminarayan Tirn nanna Kavki AIR 1928 Bombay 390; Abdul Majeed v. The State 2006 PCr.LJ 818; Khuda Bakhsh v. Province of West Pakistan PLD 1957 W.P. (Lahore) 662; The State v. Ch. Altaf Hussain Magistrate 1st Class, Gujrat and 2 others PLD 1978 Lah. 1259; Muhammad Anwar v. Sheikh Qurban Ali and 3 others 1973 PCr.LJ 882; Ghulam Hussain v. District Magistrate, Muzaffargarh and 3 others 1993 KLR (Cr.C) 179; Mst. Nargis v. The District Magistrate Gujrat and others 1985 Law Notes 1010 and Ghulam Nabi v. District Magistrate, Okara 1989 MLD 4147 ref.

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

----S. 176---Death of deceased alleged to be unnatural---Real cause of death could be ascertained only by exhuming the body of deceased---Legal heirs or other close relative of deceased would be entitled to get his body exhumed to know real cause of his death---No time limit fixed in Pakistan for disinterment of body---Application for disinterment and exhumation of body of deceased could be moved even on simple ground of suspicion---Principles.

Hakam Ali and others v. The State PLD 2006, Kar. 302; Trovlokhanath Biswas and Rain Chura Biswas ILR 3 Cal. 742; Laxminarayan Timmanna Kavki AIR 1928 Bombay 390; Abdul Majeed v. The State 2006 PCr.LJ 818; Khuda Bakhsh v. Province of West Pakistan PLD 1957 W.P. (Lahore) 662; The State v. Ch. Altaf Hussain Magistrate 1st Class, Gujrat and 2 others PLD 1978 Lah. 1259; Muhammad Anwar v. Sheikh Qurban Ali and 3 others 1973 PCr.LJ 882; Ghulam Hussain v. District Magistrate, Muzaffargarh and 3 others 1993 KLR (Cr.C) 179; Mst. Nargis v. The District Magistrate Gujrat and others 1985 Law Notes 1010 and Ghulam Nabi v. District Magistrate, Okara 1989 MLD 4147 not fol.

S.M. Nazim for Appellant.

Muhammad Khalid Sajjad Khan for Respondent.

Date of hearing: 13th October, 2006.

P L D 2007 Lahore 180

Before Mian Saqib Nisar and Fazal-e-Miran Chauhan, JJ

Ch. MUHAMMAD TUFAIL KHAN alias TUFAUL MUHAMMAD through Legal Representatives---Appellants

Versus

ZARI TARAQIATI BANK LIMITED through Branch Manager---Respondent

F.A.O. No.268of 2006, decided on 2nd November, 2006.

Civil Procedure Code (V of 1908)---

----O. I, Rr. 3, 10 & O.XXII, Rr. 1, 4---Suit against sole dead defendant---Addition of legal heirs of deceased defendant in suit with or without permission of Court---Decree in the suit against such legal heirs---Validity---Suit or legal proceedings against a dead person would be non-existent and nullity in law---Such defect not curable by impleading legal heirs of deceased defendant---Such suit not being validly instituted, was liable to be dismissed---Order of Court allowing addition of legal heirs of deceased defendant including any subsequent order or decree, if passed, would be void and without jurisdiction---Duty of Court to set aside decree passed against such legal heirs as being void---Plaintiff could bring fresh suit against the legal heirs, if cause of action survived against them subject to all limitations and defences available to them under law---Principles.

Rampratab Brijmohandas and others v. Gavrishankar Kashiram AIR 1924 Born. 109; Hafiz Brothers (Pvt.) Ltd. and others v. Messrs Pakistan Industrial Credit and Investment Corporation Ltd. 2001 SCMR 1; Roop Chand v. Sardar Khan and others AIR 1928 Lah. 359; Firm Pala Mal-Narain Mal (through Munshi Rain) v. Fauja Singh AIR 1926 Lah. 153; Nabi Bakhsh v. Malik Muhammad Akram, Settlement Commissioner and others PLD 1969 Lah. 880 ref.

Malik Bashir Ahmad Khan and another v. Qasim Ali and 12 others PLD 2003 Lah. 615 fol.

Hafiz Khalil Ahmad for Appellants.

Agha Syed Najamul Hassan Zaidi for Respondent.

Date of hearing: 2nd November, 2006.

P L D 2007 Lahore 185

Before Mian Saqib Nisar, J

MUHAMMAD BAKHSH and 15 others---Petitioners

Versus

ALLAH WASAYIA and others---Respondents

Civil Revision No.3817 of 1994, heard on 11th September, 2006.

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

----S. 11---Qanun-e-Shahadat (10 of 1984), Art.58---Limitation Act (IX of 1908), Art.120---Inheritance claim---Sale of land by defendants (collaterals of deceased) after inheriting same---Decree in pre-emption suit in respect of such sale and sanctioning of mutation on its basis in favour of pre-emptor---First suit by plaintiffs (other legal heirs of deceased) challenging inheritance mutation in favour of defendants and such sale by them---Dismissal of first suit maintaining vendee's plea to be bona fide purchaser---Second suit by plaintiffs after twelve years of dismissal of their first suit challenging inheritance mutation in favour of defendants and mutation sanctioned in favour of pre-emptor on basis of pre-emption decree---Validity---Pre-emptor after getting decree in pre-emption suit had stepped into shoes of vendee found to be bona fide purchaser in first suit filed by plaintiffs---Principle of S.11, C.P.C., would squarely apply to second suit, which could not be protected on basis of rule that Court had to do substantial justice and riot to protect illegal gains-Decree in first suit would not come within purview of Art.58 of Qanun-e-Shahadat, 1984 for not having alleged to have been passed by Court not having jurisdiction or having obtained same by fraud or collusion---Until and unless decree in pre-emption suit and decree in first suit filed by plaintiffs were got set aside or challenged, they could not, on rule of inheritance, file second suit at their choice and time---Second suit having been filed beyond six years from inheritance mutation and sale in favour of vendee by defendants, was barred by limitation, which could not be protected on the principle that in inheritance cases, there would be no period of limitation---Second suit was dismissed in circumstances.

Kala Khan and others v. Rab Nawaz and others 2004 SCMR 517; Nawabzada Zafar Ali Khan v. Chief Settlement Commissioner and others NLR 1999 Civil 699; Hashim Khan v. National Bank of Pakistan PLD 2001 SC 325; Allah Dawaya and others v. Additional District Judge and others 2002 SCMR 1183; Messrs Ghulam Farid Muhammad Latif and others v. The Central Bank of India, Limited Lahore PLD 1954 Lah. 575; Hari Singh v. Khan Moin-ud-Din Khan and others AIR (31) 1944 Lahore 397; Muhammad Shoaib and 2 others v. Government of N.-W.F.P. through the Collector D.I. Khan and others 2005 SCMR 85 = 2005 PLC (C.S.) 1056; Muhammad Asif and another v. Director Public Instruction Punjab and another 2005 PLC (C.S.) 1434 and Muhammad Sadiq v. Sardar and others 1995 SCMR 710 ref.

Shahul Hamid v. Tahir Ali 1980 SCMR 469; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; Salehon and others v. Mst. Sardaran through Legal Heirs and others 1994 SCMR 1856 rel.

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

----S. 11---Principle of res judicata and substantial justice---Conflict between resolution---Principle---In case of such conflict, law would be given preference---Subsequent suit challenging inheritance right of defendant, if barred by rule of res judicata, could not be protected on basis of rule that Court had to do substantial justice and not to protect illegal gains.

Malik Noor Muhammad Awan for Appellants.

Rana Muhammad Sarwar for Respondents.

Date of hearing: 11th September, 2006.

P L D 2007 Lahore 191

Before Mian Hamid Farooq, J

SHAH AHMAD KHAN---Petitioner

Versus

GOVERNMENT OF PUNJAB through Chief Secretary, Punjab and another---Respondents

Writ Petition No.18810 of 2005, heard on 18th October, 2006.

(a) Punjab Advisors (Salary, Allowances and Privileges) Ordinance (LXXVII of 2002)---

----S. 3---Punjab Special Assistants (Salary, Allowances, and Privileges) Ordinance (LXXVI of 2002), .S.3---Rules of Business {Punjab), 1974, Rr.2 & 6-A---Notification No.SO/(CAB11) 2-3/03(A) dated 15-3-2005---Civil Procedure Code (V of 1908), O.XXVII-A, R.1---Constitution of Pakistan (1973), Arts. 199, 129, 130, 137, 139(3), 248, 98(2), 93 & 260---Constitutional petition---Appointments of Advisors/Special Assistants to Government of Punjab by Chief Minister---Writ of quo warranto---Locus standi to file---Status of petitioner to challenge unlawful acts of government before superior Courts---Scope---Notice not issued to Attorney General---Effect---Powers of Chief Minister to appoint Advisors---Extent---Chief Minister not to appoint Advisors/Special Assistants to Government of Punjab but only to himself---Chief Minister not to appoint Advisors and Special Assistants more than 5 in each category---Scope---Appointment of persons who were convicted by Supreme Court in contempt of Court proceedings---Effect---Punjab Advisors and Punjab Special Assistants Ordinances, 2002---Purpose and object---Petitioner through constitution petition challenged the appointment of one of the respondents as Advisor to Chief Minister, Punjab, on grounds; that under Arts. 130 & 139(3) of the Constitution Governor/Chief Minister was not empowered to appoint Advisors and any such authority to make such appointments was absent in the Constitution; that under Art. 93 of the Constitution the President might, on advice of Prime Minister, appoint not more than five Advisors; that respondent was involved in criminal cases; that respondent was convicted by Supreme Court under Art.204 of the Constitution for raising banners and slogans against judiciary and that he had no extraordinary specialisation in any field, therefore, he was not entitled to hold any public office---Petitioner also challenged Notification No.SO/(CAB 11). 2-3/03(A) dated 15-3-2005 qua appointment of respondent/Advisor---0n Court's suo motu action Advocate-General submitted before the Court list of incumbent Advisors to Chief Minister whereafter notices were issued by Court to all such Advisors/respondents---Respondents contended that if the contitutional petition was to be a writ of quo warranto, the same was incompetent as respondents did not hold public office; that petitioner had no locus standi to file the petition; that notification of appointment of respondents as Advisors could not be questioned by way of constitutional petition; that respondent's appointments were purely on honorary basis; that High Court had no jurisdiction to issue writ in exercise of its suo motu powers; that respondents 'who had been convicted by Supreme Court had already served out their sentence---Respondents further submitted that Rules of Business, 1974 were validly framed by Governor in exercise of powers under Art.139(3) of the Constitution and Rule 6-A empowered Chief Minister Punjab to appoint any number of his Advisors and Special Asistants; that "service of Pakistan" as defined under Art.260 of the Constitution did not include- Special Assistant or Advisor to Chief• Minister; that Office of Advisor was not a "public office" which term meant an office which conferred certain powers to a particular person but respondents were appointed as Advisor to Government of Punjab to have his advice on certain special issues; that Art.260 of the Constitution and S.3 of Punjab Special Assistant (Salary, Allowances and Privileges) Ordinance, 2002 had justified appointment of one of the respondents who had introduced new concepts in concerned field; that under Arts.129, 130, 137 & 139(3) of the Constitution Cabinet Ministers act in aid and advice of Governor in exercise of his functions and it included Advisors; that all executive actions and administrative affairs were to be taken in the name of Governor and validity of such orders could not be called in question before any Court of law; that Rules of Business, 1974, were framed under Art.139(3) of the Constitution and High Court had no jurisdiction to entertain the constitutional petition; that appointments of Advisors to Chief Minister were made under Rule 6-A of Rules of Business, 1974, which authorised competent authority to appoint any number of Advisors and it was prerogative of competent authority; that Art.248 of the Constitution gave protection to acts of Chief Minister; that petitioner was not an "aggrieved person" as none of his fundamental rights was infringed rather the litigation was in violation of fundamental rights; that Art.139(2) of the Constitution was to be read with Art.129, that Rule 6-A of Rules of Business, 1974 authorized Chief Minister to appoint Special Assistants and that constitutional petition was not maintainable having been filed by an incompetent person as the present petition did not fulfil requirements and conditions necessary for a writ of quo warranto---Respondents further argued that appointments of Advisors was a matter of policy which could not be subjected to judicial review as it was within exclusive domain of executive and legislature; that Advisors to Government of Punjab were not Advisors to any particular department but particular functions had been assigned to them; that as there was no provision in the Constitution for appointment of Ambassadors yet they were appointed by Federal Govermnent because foreign affair was the subject on which Federal Government could legislate, hence, Executive Authority of a province had powers to appoint Advisors---Validity---Petitioner had not filed constitutional petition requiring original respondent to show under what authority of law he claimed to hold office of advisorship rather the prayer of petitioner was that Government might be directed to withdraw notification qua appointment of respondent as Advisor and remove him from post of advisorship---Constitutional petition did not fall within purview and scope of Art.199(1)(b)(ii) of the Constitution, thus, it was not in nature of quo warranto---Even if it be taken that present petition was in form of quo warranto, it could not be held that it was incompetent on ground that petitioner was not "an aggrieved person"-For issuing writ of quo warranto it was not necessary that a person should be aggrieved and no such restriction could be placed which was, in fact, contemplated under sub-clause (a) of clause 1 of Art.199 of the Constitution and accordingly any person, irrespective of the fact whether he was aggrieved or not, could invoke constitutional jurisdiction by way of writ of quo warranto against usurpation of public office by a person without having any lawful authority---Under Art.199(1)(b)(ii) of the Constitution any person and not necessarily an aggrieved person could seek redress from High Court against usurpation of public office by a person who was allegedly holding it without lawful authority---Combined reading of reliefs claimed by petitioner and Art. 199(1)(a)(i)(ii) showed that present petition fell under Art. 199(l)(a)(i)(ii) of the Constitution, hence, the same was competent and maintainable---Every citizen had a right to agitate before superior Courts that Government exchequer and public money was being spent on illegal appointments, in a reckless manner and in violation of existing law's---Petitioner being a respectable citizen who enjoyed all fundamental rights enshrined in the Constitution, and a conscientious person and law-abiding citizen was bound to be concerned and worried about working of Provincial Government and the manner in which Provincial Government was being run---Not only a practising Advocate but even a member of society was entitled to see that three limbs of the State did not act in violation of any provision of the Constitution which affected public at large---Citizens of the country and members of public were to be aggrieved by illegal and unconstitutional acts of the Punjab Government which had appointed Advisors to Government of Punjab without having any backing of law and was incurring millions of rupees on salaries and perks of respondents/Advisors---Contention of respondents that original petition was filed only against one respondent and Court could not decide questions of law of highest importance hence was barred from examining notifications for appointment of Advisors who were not arrayed as respondents in the petition was misconceived; firstly, because in response to proclamation published in newspapers and issuance of notices to respondents they entered appearance through their counsel and argued matter at length; secondly, under Order XXVII-A, Rule 1, C.P.C. there was no need to issue notice to Attorney General of Pakistan as questions of law. did not concern Federal Government and it was Advocate-General of the Province who was to have notice to proceedings before the Court involving an important question of law---Advocate General of Punjab had been taking part in proceedings from its very inception---High Court, in exercise of its constitutional jurisdiction, while examining provisions of the Constitution and other provisions of law in such-like matters, had power to declare that any act done by a person performing functions regarding affairs of Federation, Province or a Local Authority had been done or taken without lawful authority and was of no legal effect---Court was not barred from deciding important questions of law which was prerogative and duty of superior Courts and this sacred duty could not be allowed to be sacrificed at the altar of mere technical objections like "locus standi", "aggrieved person" or "incompetency of petition"---Constitution did not empower Chief Minister to appoint Advisors/Special Assistants to Chief Minister or Advisors to Government of Punjab---Under Art.139(3) of the Constitution, Governor had been empowered to make rules but he could make only those rules which were for allocation and transaction of business of Provincial Government---Under Rule 6-A of Rules of Business, 1974, Chief Minister had been given powers to appoint Advisors and Special Assistants to Chief Minister, however, he was not authorised even under Rule 6-A to appoint Advisors to Government of Punjab---Words "Advisors" and "Special Assistants" had not been defined in Rule 2 of Rules of Business, 1974---Provisions of the Constitution, Rule 6-A of Rules of Business, 1974, S.3 of Punjab Advisors (Salary, Allowances and Privileges) Ordinance, 2002 and S.3 of Punjab Special Assistants (Salary, Allowances and Privileges) Ordinance, 2002 did not empower either Chief Minister or the Governor to appoint Advisors to Government of Punjab---Rules of Business, 1974, initially did not contain any provision for appointment of Advisors/Special Assistants to Chief Minister and subsequently through insertion of Rule 6-A, the Chief Minister was conferred powers to appoint Advisors/Special Assistants to Chief Minister---Rule 6-A of Rules of Business, 1974 did not provide any number of Advisors/Special Assistants to Chief Minister due to which reason, that is, to contain powers of Chief Minister to appoint not more than five Advisors/Special Assistants, two Ordinances i.e. Punjab Advisors (Salary, Allowances and Privileges) Ordinance, 2002, and Punjab Special Assistants (Salary, Allowances and Privileges) Ordinance, 2002 were introduced, which limited powers of Chief Minister to appoint Advisors/Special Assistants---Objective behind the said two Ordinances appeared to be that powers of Chief Minister to appoint his Advisors/Special Assistants was to be in consonance with Art.93 of the Constitution which empowered President to appoint not more than five Advisors---Chief Minister could not exercise more and extra powers than President of Pakistan which if allowed were to be against letter and spirit of the Constitution---Meanings of words "Advisors to Government of Punjab" were different from term "Advisors and Special Assistants" to Chief Minister as used in Rule 6-A of Rules of Business, 1974---Term "Advisors to Government of Punjab" was alien to prevalent laws as none of the laws mentioned about appointment of advisors to Government of Punjab---Chief Minister being conscious of legal position that he had no jurisdiction to appoint more than five Advisors/Special Assistants to him under the Ordinances of 2002, evolved a new term as "Advisors to Government of Punjab", in order to accommodate and oblige certain influential persons---Chief Minister had powers to appoint his Special Assistants but not more than five---Appointments of five Advisors and five Special Assistants to Chief Minister were legal authority of Chief Minister and if any Advisors/Special Assistants were appointed beyond that number, that appointment was to be deemed to be illegal and without jurisdiction---No law including the Constitution empowered and authorised Chief Minister or Governor of Punjab to appoint Advisors to Government of Punjab, therefore, all appointments of Advisors to Government of Punjab were declared to be void ab initio, without legal jurisdiction having no legal effect---Notifications issued by Government of Punjab for appointment of Advisors to Government of Punjab were equally without jurisdiction, thus, cancelled, annulled and quashed---Advisors to Government of Punjab were to cease to hold offices of Advisorship forthwith and Chief Secretary of Punjab was directed to immediately withdraw all privileges and perks attached to their offices---Appointments of two Advisors who had been convicted by Supreme Court in contempt of Court case were held to be void, illegal, without jurisdiction on two grounds; firstly, because of their conviction by Supreme Court and secondly, on effect of findings of High Court in the present writ petition---Both the respondents who were convicted by Supreme Court in contempt of Court proceedings were not to be appointed in future, to any of the public office/Advisor/Special Assistant to Chief Minister and to any post directly or indirectly under Provincial or Federal Government under any nomenclature---Rule 6-A of Punjab Government Rules of Business, 1974 was validly made by Governor of Punjab in exercise of his powers conferred upon him under Art.139(3) of the Constitution---Chief Minister in exercise of his powers under Rule 6-A of Punjab Government Rules of Business,. 1974, read with S.3 of Punjab Advisors (Salary, Allowances, and Privileges) Ordinance, 2002 was competent to appoint Advisors to Chief Minister but not more than five Advisors, thus, appointment of Advisors, if any, over and above the said number was to be deemed void, illegal and without jurisdiction---Chief Minister in view of Rule 6-A of Rules of Business, 1974, read with S.3 of Punjab Special Assistants (Salary, Allowances and Privileges) Ordinance, 2002 was within his legal authority to appoint not more than five "Special Assistants", thus, appointment of Special Assistants over and above said number was to be deemed void, illegal and without jurisdiction.

Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh and another 2004 SCMR 1299; Dr. Kamal Hussian and 7 others v. Muhammad Sirajul Islam and others PLD 1969 SC 42; Munir Ahmad v. Returning Officer, Karachi and others PLD 1966 Kar. 1; Al-Jehand Trust through Raeesul Mujahideen Habib ul Wahab ul Khaki and others v. Federation of Pakistan and others PLD 1996 SC 324; Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) and 8 others 2000 SCMR 1969 and Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others PLD 1995 SC 530. rel.

Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) and 8 others 2000 SCMR 1969; State v. Tariq Aziz M.N.A. and 6 others 2000 SCMR 7$1.; Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others PLD 1995 SC 530; Secretary Education, N.-W.F.P. Peshawar and 2 others v. Mustamir Khan and another 2005 SCMR 17; Hakim Khan v. Nazeer Ahmed Lughmani and others 1990 MLD .89; Munir Ahmad v. Returning Officer, Karachi and others PLD 1966 Kar. 1; Dr. Bushra Ashiq Siddiqui v. Muhammad Aslam 1989 MLD 1351; Allah Ditta v. Muhammad Munir and others PLD 1966 Lah. 770; Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others PLD 1969 SC 42; Dr. Azeem-ur-F.ehman Khan Meo v. Government of Sindh and another 2004 SCMR 1299; Federation of Pakistan and others v. Haji Muhammad Saif Ullah Khan PLD 1989 SC 166; Akhtar Abbas and others v. Nayyar Hussain 1982 SCMR 549; Ali Muhammad through Legal Heirs and others v. Chief Settlement Commissioner and others 2001 SCMR 1822; A. Ramachandran v. A. Alagiri-Swami, Government Pleader High Court, Madras and another AIR 1961 Mad. 450; Amarendra Chandra v. Nareudra Kumar Basu and others AIR 1953 Cal. 114; Nazakat Abbas and 20 others v. Punjab Public Service Commission through Secretary and another 2006 PLC (C.S.) 221; Messrs Gadoon Textile Mills Ltd. and another v. Chairman, Area Electricity Board. WAPDA (PESCO), Peshawar and others PLD 2005 SC 430; Mirza Shaukat Baig and others v. Shahid Jamil and others PLD 2005 SC 530; Messrs Elahi Cotton Mills Ltd and others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others PLD 1997 SC 582 and Messrs V.N. Lakhani & Company m.v. Lakatoi. Express and 2 others PLD 1994 SC 894 ref.

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

----Arts. 57, 93 & 260---Appointment of Advisors by President--Expression "Service of Pakistan" not to include Advisors Special Assistants to Chief Minister---Scope---Article 93(1) of the Constitution envisaged that President might, on the advice of Prime Minister, appoint not more than five Advisors---Article 93(2) stated that provision of Art.57 of the Constitution were to apply to Advisors and Art.57 provided that Prime Minister, Federal Minister, Minister of State and Attorney General were to have the right to speak and otherwise take part in proceedings of either House but were not to be entitled to vote---President of the country, who enjoyed vast powers under the Constitution as compared with Chief Minister of the Province had no powers under the Constitution to appoint any Special Assistant or Advisor to Government of Pakistan except to appoint not more than five Advisors and that too on advice of the Prime Minister---Article 260 of the Constitution defined words "Service of Pakistan" which did not include Advisor and Special Assistant to Chief Minister---No other provision of the Constitution except Arts.93, 57 and 260 deal with Advisor appointed by President or Advisor/Special Assistant to Chief Minister of a Province.

(c) Bureaucracy---

----Functions and duty---Scope---Appointment of Advisors and Special Assistants to Provincial Government---Chief Secretary of the Province, before issuing notifications of appointment of these persons was duty-bound to apprise Chief Minister about legal complications as to their appointments---Tamed and subservient bureaucracy could neither be helpful to Government nor it was expected to inspire public confidence in administration---Good governance was largely dependent on an upright, honest and strong bureaucracy---Mere submission to the will of superior was not a commendable trial in bureaucrat---Duty of bureaucrat was to apprise elected representatives of nicety of administration and provide them correct guidance in discharge of their functions in accordance with law.

Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others PLD 1995 SC 530 rel.

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

----Art. 199--Constitutional petition---Illegal appointments of Advisors---Termination of---Appointments of Advisors to Government of Punjab were held to be illegal and unconstitutional and their appointments from very inception were without jurisdiction---Advisors had no right to receive salary and enjoy perks from Government exchequer and out of public money---High Court, however, refrained from passing any order for reimbursement of 'amounts so received by Advisors to the Government of Punjab.

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

---O.XXVII-A, R.1---Constitution of Pakistan (1973), Art.199--Constitutional petition---Appointments of Advisors/Special Assistants to Government of Punjab---Important question of law involved---Non ­issuance of notice to Attorney-General---Effect---Under Order XXVII-A, Rule.1, C.P.C. there was no need to issue notice to Attorney-General of Pakistan as question of law did not concern Federal Government; it was Advocate-General of the Province who was to have notice of proceedings before Court involving an important question of law.

(f) Punjab Special Assistants (Salary, Allowances and Privileges) Ordinance (LXXVI of 2002)---

---Ss. 2(g) & 3---"Special Assistant"---Meaning---Section 2(g) of Punjab Special Assistants (Salary, Allowances and Privileges) Ordinance, 2002, defined words "Special Assistant" as "a person appointed as Special Assistant to Chief Minister under the Ordinance---Section 3 of the Ordinance, provided, that Chief Minister might appoint not more than five Special Assistants.

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

----Art. 199---Constitutional petition---Locus standi to file---Scope---State act in violation of any provision of the Constitution---Filing of constitutional petition---Duty of citizens---Not only practising Advocates but even a member of public was entitled to see that three limb of the State did not act in violation of any provision of the Constitution which affected public at large---Every citizen and member of public, whether he was personally aggrieved or not, had the duty to highlight and raise voice qua illegal and unconstitutional acts of Provincial Government.

Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahab ul Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324 rel.

(h) Rules of Business (Punjab), 1974---

----Rr. 2, & 6-A---Appointment of "Advisors" and "Special Assistants" by the Chief Minister---Scope---Under Rule 6-A Chief Minister had been given powers to appoint Advisors and Special Assistants to Chief Minister himself but he was not authorised to appoint Advisors to Government of Punjab---Words "Advisors" and "Special Assistants" have not been defined in Rule 2 of Rules of Business (Punjab), 1974.

(i) Punjab Advisors (Salary, Allowances and Privileges) Ordinance (LXXVII of 2002)---

---S. 2(a) & (3)---'Advisor', meaning---Appointment of 'Advisor' by Chief Minister---Section 2(a) of Punjab Advisors Ordinance, 2002, had defined word Advisor to mean a person appointed as 'Advisor' to Chief Minister under the Ordinance---Section 3 of the Punjab Advisors Ordinance (Salary, Allowances and Privileges), Ordinance 2002 empowered Chief Minister to appoint not more than five Advisors who were to hold office during pleasure of Chief Minister.

(j) Rules of Business (Punjab), 1974---

---R. 6-A---Expressions "Advisors to Government of Punjab" and "Advisors and Special Assistants to Chief Minister"---Distinction---Meanings of term "Advisors to Government of Punjab" were different from advisors and Special Assistants to Chief Minister.

(k) Constitution of Pakistan (1973)----

----Art. 140(2)7-Advocate-General being Principal Law Officer of the Province under Art.140(2) of the Constitution, was obliged and duty bound under law to give advice to Provincial Government upon legal matters.

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

----Art. 199---Quo warranto, writ of---Locus Standi to file---Aggrieved person---Scope---For issuing writ of quo warranto it was not necessary that a person should be aggrieved and no such restriction could be placed which was, in fact, contemplated under sub-clause (a) of clause 1 of Art.199 of the Constitution and accordingly any person, irrespective of the fact whether he was aggrieved or not, could invoke constitutional jurisdiction by way of writ of quo warranto against usurpation of public office by a person without having any lawful authority---Under Art.199(1)(b)(ii) of the Constitution any person and not necessarily an aggrieved person could seek redress from High Court against usurpation of public office by a person who was allegedly holding it without lawful authority.

Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh and another 2004 SCMR 1299; Dr. Kainal Hussain and 7 others v. Muhammad Sirajul "Islam and others PLD 1969 SC 42 and Munir Ahmed v. Returning Officer, Karachi and others PLD 1966 Kar. 1 ref.

Shahid Maqbool along with Petitioner.

Rizwan Mushtaq Asstt. A.-G. for Respondent No. 1 along with Saghir Ahmed, S.O. (Cabinet) S&GAD.

Muhammad Shahzad Shaukat for Respondent No.2.

Munib Iqbal for Farrukh Mehmood Shah.

Taseen Gardezi for Makhdoom Ali Akbar and Makhdoom Iftikhar Hussain.

Alamgir for Sabah Sadiq, Kamil Ali Agha, Mian Abdul Sattar, Ch. Muhammad Siddiqui, Rahat Maqsood, Raja Muhammad Nasir, Malik Khalid Mehmood Waran, Hafiz Iqbal Ahmed Khan Khakwani.

Rana Muhammad Zahid for, Asghar Hayat Kalyar, Sadia Mobashar and Rana Ijaz Ahmed Khan.

Umer Zeshan for Dr. Javed Asghar and Dr. Faiza Asghar.

Kashif Nawaz Bajwa for Dr. Sohail Zafar Cheema.

Ahsan Boon for Shaukat Ali Laleeka.

Dates of hearing: 26th September, 5th, 9th, 16th and 18th October, 2006.

P L D 2007 Lahore 231

Before Asif Saeed Khan Khosa, Syed Shabbar Raza Rizvi and Tariq Shamim, JJ

ZAHOOR AHMAD and 5 others-Petitioners

Versus

THE STATE and 3 others-Respondents

Writ Petition No.11952 of 2006, decided on 19th January, 2007.

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

----Preamble---Object, intent, spirit, scope and extent of applicability of Illegal Dispossession Act, 2005 elaborated by High Court providing guidelines to all the Courts of Session in the Province of Punjab with regard thereto.

Disputes between individuals over title to or possession of immovable property and illegal or forcible dispossession of a rightful owner or occupier from some property possessed by him, are not unusual or extraordinary phenomena but of late a new phenomenon has emerged in Pakistan wherein a class of persons called "property grabbers", also commonly known in local parlance as "Qabza Groups" or "land mafia", has come to surface whose primary chore or errand is to illegally or forcibly take possession of immovable properties belonging to others. The sole aim of this class of persons is undue enrichment at the cost of others' rights and the tool employed by them for achieving such nefarious end, more often than not, is nothing but brute force. In cases of run of the mill dispossession of one person from some immovable property by another the law of the land already provides many remedies in both civil and criminal spheres, including a regular civil suit under the Code of Civil Procedure, 1908, a civil suit with summary procedure under section 9 of the Specific Relief Act, 1877, proceedings under section 145 of the Code of Criminal Procedure, 1898, criminal prosecution for offences relating to property, trespass and violence contained in the Pakistan Penal Code, 1860 and proceedings before the revenue courts and authorities under the Land Revenue Act, 1967, etc. However, faced with the new challenge posed by the menace of property grabbers/Qabza Groups/land mafia the Parliament rose to the occasion and the Illegal Dispossession Act, 2005 was passed and enacted in order to provide a speedy and effective remedy and relief to the innocent people deprived of possession of immovable properties by property grabbers/Qabza Groups/land mafia.

After enactment of the Illegal Dispossession Act, 2005 it has been noticed that although this Act was restricted in its scope and applicability to illegal dispossession from immovable properties only by a particular class of persons who could qualify as property grabbers/Qabza Groups/land mafia yet the said Act is now being invoked and utilized by all kinds of aggrieved person's in all kinds of cases of dispossession from immovable properties even by individuals who have no credentials or antecedents of being property grabbers or being members of a Qabza Group or land mafia. Such abuse and wrong utilization of the Illegal Dispossession Act, 2005 has been found to be completely nugatory to its contents as well as objectives. It has appeared that through a mistaken or deliberate misuse of the Illegal Dispossession Act, 2005 the legal remedies already occupying the field against run of the mill and ordinary dispossession from immovable properties have been dispossessed of the field and that surely was not the intent or spirit of the Illegal Dispossession Act, 2005.

The Short Title of the Illegal Dispossession Act, 2005 itself makes it quite, clear that the said Act is "An Act to curb the activities of the property grabbers" and the Preamble to the said Act further clarifies this position by proclaiming in no uncertain terms that "Whereas it is expedient to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession therefrom by the property grabbers". Although the term "property grabbers" has not been defined in the Illegal Dispossession Act, 2005 yet the intention of the legislature in this respect is quite evident from the Working Paper prepared by the Federal Ministry of Law, Justice and Human Rights and submitted before the Parliament with the draft of the proposed legislation as well as from the parliamentary debates on the proposed legislation. Both such sources are generally recognized as valid and useful sources which may be utilized by a court of law for the purpose of interpreting a piece of legislation by appreciating the spirit in which it was introduced, passed and enacted and for understanding the mischief which was sought to be suppressed.

The opening words of the Working Paper (captioned as `Brief on Illegal Dispossession Bill') prepared by the Federal Ministry of Law, Justice and Human Rights and submitted before the Parliament with the draft of the proposed legislation were that "The object of the proposed Bill is to, provide deterrent punishment to the land grabbers and Qabza Groups and to provide speedy justice and effective and adequate relief to the victims dispossessed of immovable property by unlawful means, as explained below ---". It was further observed in the Working Paper that "The above measures would go a long way in reducing the rate of crime of illegal dispossession in particular from the weaker segment of the society and many cases of land dispossession giving rise to lengthy civil litigation and serious crimes including murders could be avoided." The reference therein to "the weaker segment of the society" and to "serious crimes including murders" manifestly demonstrated that the mischief to be suppressed by the proposed legislation was the serious threat posed by the powerful, dangerous and organized land mafia/Qabza Groups to the lives and properties of innocent citizens. The words "many cases of land dispossession -----could be avoided" and "reducing the rate of crime of illegal dispossession" further showed that the proposed legislation was not intended to cater for all kinds of dispossession from immovable property by all kinds of persons but its scope was limited to some particular class of cases of illegal dispossession from immovable property.

A law has to be interpreted and applied in the spirit which had led to the enactment of the said law. The Report of the Standing Committee on Law, Justice and Human Rights and the Official Report pertaining to the debate in the National Assembly show that the expression "property grabbers" used in the Bill was accepted by the members of the National Assembly without a debate to mean and he synonymous with Qabza Groups. The Official Report pertaining to the debate in the Senate, however, clearly demonstrates that the expression "property grabbers" used in the Bill was expressly understood and accepted by the members of the Senate to denote and stand for "Qabza Mafia". All this leaves no doubt that the Illegal Dispossession Act, 2005 is restricted in its scope and applicability to only those cases where a dispossession from immovable property has allegedly come about through the hands of a class or group of persons who have the credentials or antecedents of being property grabbers/Qabza Groups/land mafia and the said Act does not apply to run of the mill cases of alleged dispossession from immovable properties by ordinary persons having no such credentials or antecedents, i.e. cases of disputes over possession of immovable properties between co-owners or co-sharers, between landlords and tenants, between persons claiming possession on the basis of inheritance, between persons vying for possession on the basis of competing title documents, contractual agreements or revenue record or cases with a background of an on-going private dispute over the relevant property. It is, thus, imperative that before entertaining a complaint under the Illegal Dispossession Act, 2005 a Court of Session must feel prima facie satisfied that the persons complained against have the credentials of being property grabbers or they have the antecedents of being members of' a Qabza Group or land mafia and h is only after such prima facie satisfaction that the complaint may be entertained by it. For the purpose of such prima facie satisfaction there must exist some material showing involvement of the persons complained against in some previous activity connected with illegal dispossession from immovable property or at the very least the complaint must demonstrate an organized or calculated effort by some persons operating individually or in groups to grab by force or deceit property to which they have no lawful or justifiable claim. The language of the Short Title and of the Preamble to the Illegal Dispossession Act, 2005 and the Working Paper and the parliamentary debates clearly show that a person has to be a property grabber or a member of a Qabza Group or land mafia before he can be proceeded against under the said Act. hi the case of an individual it must be the manner of execution of his design which may expose him as a property grabber and in the case of a Qabza Group or land mafia it is not the present allegation which should try to portray, depict or establish him as a property grabber but he must already be a known, acknowledged or established property grabber.

The expression "property grabbers" used in the Illegal Dispossession Act, 2005 stands for Qabza Groups and land mafia and for individuals who, without any lawful or justifiable claim to an immovable property, grab the same by force or deceitful means through an organized and calculated methodology or stratagem and also that the provisions of the Illegal Dispossession Act, 2005 do not apply to run of the mill and common place dispossession from immovable properties by ordinary persons having no such credentials or antecedents or employing no such organized and calculated strategy or using no force or deceit.

For the purpose of providing guidance to all the Courts of Session in the Province of the Punjab High Court declared as follows:

"(i) The Illegal Dispossession Act, 2005 applies to dispossession from immovable property only by property grabbers/Qabza Groups/land mafia. A complaint under the Illegal Dispossession Act, 2005 can be entertained by a Court of Session only if some material exists showing involvement of the persons complained against in some previous activity connected with illegal dispossession from immovable property or the complaint demonstrates an organized or calculated effort by some persons operating individually or in groups to grab by force or deceit property to which they have no lawful, ostensible or justifiable claim. In the case of an individual it must be the manner of execution of his design which may expose hint as a property grabber.

(ii) The Illegal Dispossession Act, 2005 does not apply to run of the mill cases of alleged dispossession from immovable properties .by ordinary persons having no credentials or antecedents of being property grabbers/Qabza Groups/land mafia, i.e. cases of disputes over possession of immovable properties between co-owners or co-sharers, between landlords and tenants, between persons claiming possession on the basis of inheritance, between persons vying for possession on the basis of competing title documents, contractual agreements or revenue record or cases with a background of an on-going private dispute over the relevant property.

(iii) A complaint under the Illegal Dispossession Act, 2005 cannot be entertained where the matter of possession of the relevant property is being regulated by a civil or revenue court.

All the Courts of Session in he Province of the Punjab are directed to examine all the complaints under the Illegal Dispossession Act, 2005 pending before them and to dismiss all those complaints forthwith which are found to be not maintainable in terms of the interpretation of the said law rendered by us through the present judgment."

Haughton v. Smith (1975 AC 476, 500); Rashad Ehsan and others v. Bashir Ahmad and another PLD 1989 SC 146; Mst. Aziz Begum v. Federation of Pakistan and others PLD 1990 SC 899; PLD 2005 Federal Statutes 202; Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Mughal Surgical (Pvt.) Ltd. v. Presiding Officer, Punjab Labour Court No.7 and others 2006 SCMR 590; Shah Muhammad v. Haq Nawaz and another PLD 1970 SC 470; Imamdad Khan and 7 others v. Syed Muhammad Ilyas and 2 others 1971 SCMR 581; Shah Muhammad v. The State and 5 others 1983 SCMR 1173; Mehr Muhammad Sarwar and others v. The State and others PLD 1985 SC 240; Muhammad Ameen v. Master Bashir Ahmed and others 2006 SCMR 969 and Muhammad Sadiq v. Muhammad Rafiq and others 2006 SCMR 1470 ref.

(b) Interpretation of statutes---

----Appreciation of spirit of law to be enacted---Recognized sources---Working paper prepared by Federal Ministry of Law, Justice and Human Rights and submitted before the Parliament with the draft of the proposed legislation as well as from the parliamentary debates on the proposed legislation both are generally recognized as valid and useful sources which may be utilized by a Court of law for the purpose of interpreting a piece of legislation by appreciating the spirit in which the law was introduced, passed and enacted and for understanding the mischief which was sought to be suppressed.

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

----S. 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Prevention of illegal possession of property---Respondents in their complaint under S.3, Illegal Dispossession Act, 2005 had failed to show as to how the isolated allegation levelled by them against the petitioners regarding illegal dispossession from immovable property was sufficient to brand the petitioners as property grabbers or as members of the Qabza Group or land mafia so as to attract the provisions of the Illegal Dispossession Act, 2005---Parties to the case were very closely related to each other and the dispute between them was purely a private dispute over possession of some part of family property---Respondents were real brother and sons of petitioners and nephews of respondents and were co-sharers in the relevant parcel of land and their dispute over possession of the same was already sub judice before a Civil Court since before filing of the complaint under S.3 of the Illegal Dispossession Act, 2005 by respondents---Respondents had resorted to filing a complaint under the Illegal Dispossession Act, 2005 against the petitioners only to circumvent the normal proceedings pending in the matter and to bring the weight of criminal law to bear upon the petitioners so as to short-circuit the issue---Validity---Held, proceedings under the Illegal Dispossession Act, 2005 were by and large akin to proceedings under S.145, Cr.P.C. and a criminal Court was not to interfere in the matter of possession of a property where. such matter was already being regulated by an order of a civil court---Impugned proceedings under the Illegal Dispossession Act, 2005 undertaken by the Additional Sessions Judge for an offence under S.3 of the Act, in circumstances, were coram non judice and non est and the same were therefore, declared to be without lawful authority and of no legal effect---High Court, in view of such declaration, declined to adjudicate upon the merits of the case---Constitutional petition was allowed and impugned judgment passed by the Additional Sessions Judge was set aside and the convictions and sentences of the petitioners recorded through said judgment were also declared to be nullity.

Mughal Surgical (Pvt.) Ltd. v. Presiding Officer Punjab Labour Court No.7 and others 2006 SCMR 590; Shah Muhammad v. Haq Nawaz and another PLD 1970 SC 470; Imamdad Khan and 7 others v. Syed Muhammad Ilyas and 2 others 1971 SCMR 581; Shah Muhammad v. The State and 5 others 1983 SCMR 1173; Mehr Muhammad Sarwar and others v. The State and others PLD 1985 SC 240; Muhammad Ameen v. Master Bashir Ahmed and others 2006 SCMR 969 and Muhammad Sadiq v. Muhammad Rafiq and others 2006 SCMR 1470 ref.

(d) Interpretation of statutes---

----Law has to be interpreted and applied in the spirit which had led to the enactment of the said law.

Pakistan through Ministry of Defence v. The General Public PLD 1989 SC 6 ref.

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

----Preamble, Ss.5, 6 & 7---High Court observed that Illegal Dispossession Act, 2005 was not finest example of legislative draftsmanship and made recommendation to the Federal Law Ministry to attend to the aspects pointed out in the present judgment of the High Court.

The Illegal Dispossession Act, 2005 is not finest example of legislative draftsmanship. To start with, there is no provision in the said Act conferring any right of appeal even against a final judgment of conviction and sentence! The said Act is a penal statute and in an appropriate case a person found guilty of an offence under the said law can be sentenced to a term of imprisonment and fine, etc. Absence of a right of appeal in such a case appears to be extremely unjust and oppressive. Apart from that the Illegal Dispossession Act, 2005 does not contain any provision for any challenge even against any interim order passed by a trial court. Some of the interim orders that can be passed by a trial court under the said law are quite drastic, like those under sections 6 and 7 of that Act, and absence of an immediate remedy against them has again appeared to be unfair and repressive. A recourse to writ jurisdiction of High Court under Article 199 of the Constitution in such matters may not be an adequate remedy in such respects due to the limited scope of the writ jurisdiction of High Court. Besides that, section 5 of the Illegal Dispossession Act, 2005 contemplates investigation into the matter by the local police but the same does not provide for any involvement of the relevant revenue authorities in such matters. Experience shows that in most of the cases under the said Act it is the revenue authorities which appear to be more relevant than the police authorities and, thus, there is a pressing need to allow the trial courts to seek reports from or involve the relevant revenue authorities in the matter if a need is felt by them in that regard. It goes without saying that the police are ill-equipped to assist the trial courts in matters pertaining to title of the parties to the relevant property or its extent or in matters of actual boundaries of properties or their demarcation. The stage at which a trial court may exercise its powers under section 7 of the Illegal Dispossession Act, 2005 is also not clear or readily discernible, especially when the interim relief permissible at an interlocutory stage may amount to the final and ultimate relief prayed for. High Court made recommendation to the Secretary, Federal Ministry of Law, Justice and Human Rights to attend to the above mentioned aspects of the Illegal Dispossession Act, 2005 and to suggest to the relevant quarters appropriate amendments in the said law. High Court further observed that through its private research it has been found that in the State of Andhra Pradesh in India there is a law called the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 (Act 12 of 1982) which deals with the issue somewhat identical to that dealt with by the Illegal Dispossession Act, 2005. The said Andhra Pradesh law is a comprehensive and exhaustive piece of legislation on the subject whereas the Illegal Dispossession Act, 2005 leaves much to be desired. High Court therefore suggested to the Federal Ministry of Law, Justice and Human Rights to examine the said Andhra Pradesh law and to suitably mould or recast the Illegal Dispossession Act, 2005 on the same pattern, if so advised. The Office of High Court was directed to send a copy of the judgment to the Secretary, Federal Ministry of Law, Justice and Human Rights for his information.

Pakistan through Ministry of Defence v. The General Public PLD 1989 SC 6 ref.

Chaudhry Muhammad Zafar Iqbal and Mr. Gulzar Ahmad Khan for the Petitioners.

Dr. Danishwar Malik, Deputy Attorney-General for Pakistan.

Ch. Khurshid Anwar Bhindar, Additional Advocate-General, Punjab on behalf of the Advocate-General, Punjab and Rizwan Mushtaq, Assistant Advocate-General, Punjab for Respondents Nos. 1 and 1-A.

Mian Shahid Iqbal for Respondents Nos. 2 and 3.

Dates of hearing: 1st and 15th December, 2006.

P L D 2007 Lahore 249

Before Syed Zahid Hussain, J

Mst. NAZEERAN BIBI---Petitioner

Versus

Mst. HAJJAN BIBI and others---Respondents

Civil Revision No.427 of 2003, decided on 30th October, 2006.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), S. 115---Suit for declaration of title---Mutation of Tamleek---Proof---Contradictions in evidence---Plaintiff and defendant were daughters of deceased owner of suit land from two different wives---Plaintiff assailed two mutations of Tamleek, one sanctioned in year, 1980 and the other in year, 1993, both in favour of defendant---Plaintiff asserted that both mutations were a result of fraud, just to deprive her from the legacy of her father---Deceased owner was an old man with weak and feeble health who remained bed ridden for long and was putting up with the defendant, in whose favour mutations were attested---Statements of defendant and one of her witnesses had stated that there were material contradictions with regard to the place where subsequent mutation was sanctioned, in year, 1993---Suit was dismissed by Trial Court but Appellate Court allowed the appeal and decreed the suit in favour of plaintiff---Validity---For sixteen long years, alienation of land in favour of defendant through earlier mutation, was not challenged by plaintiff, thus there remained no doubt as to the authenticity of alienation made by the deceased owner in favour of defendant, in year 1980---In view of untrustworthy stance of defendant, it was incumbent upon her to have produced Patwari and Revenue Officer to prove credibility and authenticity of subsequent mutation sanctioned in year, 1993---Defendant having not produced the two revenue officials, the same had given rise to adverse inference against her---Such evidence produced by defendant in support of her assertion about Tamleek and subsequent mutation was not convincing---Judgment and decree of Lower Appellate Court, to the extent of earlier mutation sanctioned in year, 1980, was set aside, while it was maintained

to the extent of subsequent mutation sanctioned in year, 1993, and suit of plaintiff was partially decreed---Revision was allowed accordingly.

Muhammad Ali and 25 others v. Hassan Muhammad and 6 others PLJ 1994 SC 265; Lal Shahadat Khan and another v. Mst. Gul Marjana 1989 CLC 803; Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688 and Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCMR 1832 ref.

Kh. Saeed-uz-Zafar for Petitioner.

Ch. Muhammad Shafique Babar for Respondent No.1.

Date of hearing: 30th October, 2006.

P L D 2007 Lahore 254

Before Mian Saqib Nisar, J

Mst. SAKINA BIBI and another---Petitioners

Versus

MUHAMMAD ANWAR alias MUJAHID and, others---Respondents

Civil Revision No.2017 of 2003, decided on 2nd October, 2006.

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

----Arts. 17(2)(a) & 79---Will executed before promulgation of Qanun-e-Shahadat, 1974---Proof---Arts. 17 and 79 of Qanun-e-Shahadat, 1984 having no retrospective effect, such Will was not required to be attested and proved by two attesting witnesses thereof---Principles.

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

---Arts. 117 & 118---Will---Burden of proof---Initial onus would lie on beneficiary of Will to prove its valid execution---Wrong placement of such initial onus on opposite party would not relieve beneficiary of Will to finally prove a valid Will in his favour.

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

---Arts. 17(2)(a), 79 & 129(g)---Scribe to qualify as an attesting witness---Essential conditions stated.

There is no bar in law that the statement of a scribe can never be considered as being that of a person witnessing the execution, but this is subject to two very basic conditions. Firstly, that the scribe should also have signed the document as an attesting witness, and if that was not done, it must be proved on the record that at the time, when the document was executed, he was present and not only witnessed the execution by the executants, but also the attestation by the required number of witnesses. Secondly, that the witnesses, whom the parties had chosen as the attesting witnesses with the obvious intention that in case of dispute about the execution, they shall testify in this behalf, but for inevitable and due to circumstances beyond the control of the parties same could not be examined. Except fulfilling the second condition, it shall be impermissible for a party to examine the scribe as a substitute for the attesting witness, who shall not be considered as an attesting witness in terms of Article 79, with the consequences to follow. Besides the principle of withholding the best evidence can also be attracted against the defaulting party.

On basis of general principles about the proof of a disputed document, a scribe cannot equate or partake as a marginal witness and his statement only remains to be in the nature of a corroborative piece of evidence.

Qasim Ali v. Khadim Hussain PLD 2005 Lah. 654 fol.

(d) Document---

----Execution of---Proof---Mere appendage of thumb marks or signatures would not mean due execution of document.

Taki Ahmad Khan for Petitioners.

Ustad Muhammad Iqbal for Respondents Nos. 1 and 2.

Mushtaq Ali Tahir Kheli for Respondent No.5F.

Zia-ud-Din Kasuri for Respondents Nos. 5B and 6.

Nemo for the Remaining Respondents.

Date of hearing: 2nd October, 2006.

P L D 2007 Lahore 261

Before Mian Saqib Nisar, J

HAKAM and others---Petitioners

Versus

TASSADAQ HUSSAIN SHAH---Respondent

Civil Revision No.676 of 2005, decided on 18th September, 2006.

(a) West Pakistan Land Reforms Regulation, 1959 [MLR No.64]---

----Paras. 27, 3, 22, 7, 8, 13, 17 & 19---Civil Procedure Code (V of 1908), S.9---Specific Relief Act (I of 1877), S.42---Suit for declaration and permanent injunction---Ownership on basis of Adna Malkiyat---Jurisdiction of Civil Court---Scope---Plaintiffs/petitioners filed suit for declaration and permanent injunction, claiming ownership of suit-land as 'Adna Malik'---Trial Court decreed the suit---On appeal filed thereagainst by defendants/respondents, Appellate Court dismissed suit on ground that under Para-27 of MLR No.64, Civil Court had no jurisdiction to try the matter---Plaintiffs contended that Civil Court had jurisdiction to decide question of title to suit property and Para-27 of MLR No.64 neither expressly nor impliedly barred jurisdiction of Civil Court---Defendants argued that it was "status" of plaintiffs which was in issue and not their title and under Paras No.3, 22 and 27 of MLR No.64 it were Land Reforms Authorities which had the jurisdiction to decide the matter---Validity---Under S.9 of C.P.C., Civil Courts were Courts of ultimate jurisdiction to try all suits of civil nature excepting the suits for which their cognizance was either expressly or impliedly barred---Under para. 27 of MLR No.64, Civil Court had no jurisdiction to take cognizance or to determine any of provisions of Para 27 of MLR No.64 or any of the rules or orders made thereunder were challenged as invalid---No rule or order of Para 27 of MLR No.64 was challenged in the present case---Under Para 27 of M.L.R. No.64, Civil Courts had no authority or jurisdiction in respect of any matter which the Commission or an officer acting under authority of Commission was empowered to determine---Paras 3, 7, 8, 13, 17 & 19 of M.L.R. No.64, related to empowerment of Commission for determination of certain questions but in none of the said Paras any jurisdiction had been conferred upon the Authority to decide issue about ownership inter se the parties---Para No.22 of MLR No.64 was not to be considered or extended to involve question or dispute between two parties about ownership of property on the basis of "Adna Malkiyat" or otherwise; neither the said Para nor any other clause of M.L.R. No. 64 could be said to oust jurisdiction of Civil Court---Only Civil Court had the power to decide dispute between parties involved in the matter---Plaintiffs were seeking declaration about their ownership which was equated to title---Legal status of a person was synonymous to legal character, therefore, plaintiff's case fell within purview of S.42 of Specific Relief Act, 1877 and for this purpose no power had been conferred upon Land Commission Authorities to determine the said matter---Paragraph 27 of M.L.R. No.64 was not attracted to the present case---Matter was' remanded to lower Appellate Court to decide the same on merits.

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

----S. 9---West Pakistan Land Revenue Act (XVII of 1967), S.172---Displaced Persons (Land Settlement) Act (XLVII of 1958), S.25---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Preamble---Jurisdiction of Civil Court---Express or implied bar of jurisdiction of Civil Court---Scope---Under S.9 of C.P.C., Civil Courts were Courts of ultimate jurisdiction to try all suits of civil nature, excepting suits for which their cognizance was either expressly or impliedly barred---Civil Courts were Courts of plenary and ultimate jurisdiction in dispute between parties pertaining to civil nature and ouster of their jurisdiction was not to be lightly inferred or assumed as a matter of course---Only express provision in any law/statute could debar and take away jurisdiction of Civil Court and such provision was to be strictly construed and applied leaving no room for doubt that jurisdiction of Civil Court had been ousted--Ouster of jurisdiction of Civil Court was applicable where claimed on basis of implication---Such implication was to be founded and adjudged on the touchstone that forum or tribunal created by special law had been conferred with exclusive jurisdiction to try matter of specific civil nature---Section 172 of West Pakistan Land Revenue Act, 1967 and S.25 of Displaced Persons (Land Settlement) Act, 1958, expressly and unambiguously commanded that jurisdiction of Civil Courts was barred to take cognizance of matters which under said special laws had been conferred upon special forums---Para 27 of M.L.R. No.64 also fell within category of express bar of jurisdiction of Civil Court---West Pakistan Urban Rent Restriction Ordinance, 1959, barred jurisdiction of Civil Courts on rule of "implication" which did not contain any express provision for ouster of jurisdiction but under the said special law exclusive jurisdiction had been conferred upon Rent Controller to decide matters referred to in law regarding landlord and tenant about properties falling within purview of the Ordinance, 1959--For application of rule of implied bar, it had to be seen that where a special tribunal or a public body was created by or under authority of an Act of Legislature for purpose of determining rights which were creation of Act, then jurisdiction of that tribunal or of that body was exclusive and jurisdiction of Civil Court was barred.

Dalil Khan and another v. Sardar Khan and 2 others 1979 CLC 104; Punjab Land Commissioner and another v. Mst. Kalsoom Bibi and another PLD 1988 Lah. 407; Sher Zaman v. Muhammad Ishaq and others PLD 1985 SC 144; Makhdoom Muhammad Ahsan v. Pathana and 21 others PLD 1975 SC 369; Hussaina and 5 others v. Fazal Rahim Khan and 67 others PLD 1975 SC 574; Unreported case in Civil Appeal No.1409 of 1997 dated 30-4-2006; Superintending Engineer, Highways Circle, Multan and others v. Muhammad Khurshid and others 2003 SCMR 1241; Muhammad Hussain Khan and others v. Muhammad Din and others NLR 1988 SCJ 397; Mst. Bibi Ayesha and others v. The Chief Land Commissioner, West Pakistan and others PLD 1966 SC 84; Nasir Ahmad Khan v. Mst. Ismat Jehan Begum 1968 SCMR 667; K.B. Mian Feroze Shah v. Nawabzada Muhammad Umar Khan and others PLD 1966 SC 340 and Mst. Hajiani and others v. West Pakistan Land Commission Lahore and others PLD 1966 SC 114 ref.

(c) Jurisdiction--

----Bar of jurisdiction of civil Court---Principles illustrated.

Dalil Khan and another v. Sardar Khan and 2 others 1979 CLC 104; Punjab Land Commissioner and another v. Mst. Kalsoom Bibi and another PLD 1988 Lah. 407; Sher Zaman v. Muhammad Ishaq and others PLD 1985 SC 144; Makhdoom Muhammad Ahsan v. Pathana and 21 others PLD 1975 SC 369; Hussaina and 5 others v. Fazal Rahim Khan and 67 others PLD 1975 SC 574; Unreported case in Civil Appeal No.1409 of 1997 dated 30-4-2006; Superintending Engineer, Highways Circle, Multan and others v. Muhammad Khurshid and others 2003 SCMR 1241; Muhammad Hussain Khan and others v. Muhammad Din and others NLR 1988 SCJ 397; Mst. Bibi Ayesha and others v. The Chief Land Commissioner, West Pakistan and others PLD 1966 SC 84; Nasir Ahmad Khan v. Mst. Ismat Jehan Begum 1968 SCMR 667; K.B. Mian Feroze Shah v. Nawabzada Muhammad Umar Khan and others PLD 1966 SC 340 and Mst. Hajiani and others v. West Pakistan Land Commission Lahore and others PLD 1966 SC 114 ref.

Malik Noor Muhammad Awan for Petitioners.

Malik Amir Muhammad Joya for Respondent.

Date of hearing: 18th September, 2006.

P L D 2007 Lahore 269

Before Hasnat Ahmad Khan, J

MUHAMMAD AKHTAR---Petitioner

Versus

ADDITIONAL DIRECTOR, ANTI-CORRUPTION ESTABLISHMENT, MULTAN and another ---Respondents

Writ Petitions Nos.6672 and 675 of 2006, decided on 30th November, 2006.

(a) Prevention of Corruption Act (II of 1947)---

----S.5---Punjab Anti-Corruption Establishment Rules, 1985, R.15(1)(a)-Penal Code (XLV of 1860), S.409---Criminal Procedure Code (V of 1898), Ss.173 & 265-K---Constitution of Pakistan (1973), Art.199---Constitutional petition---Inquiry conducted against accused/petitioners by Anti-Corruption Establishment---Order for submission of challan before Court of competent jurisdiction---Accused/petitioners/public servants were booked under S.409, P.P.C. read with S.5 of Prevention of Corruption Act, 1947 by Anti-Corruption Establishment on application of authorities alleging therein that the former had misappropriated certain amounts by awarding fake leases in favour of their own clerks and prayed for recovery of misappropriated amounts, from them (petitioners)---Petitioners contended that three officers of Anti-Corruption Establishment who conducted investigation recommended for dropping of inquiry against them but Additional Director Anti-Corruption directed the concerned quarter to prepare challan and submit the same in Court of competent jurisdiction---Petitioners contended that under Rule 15(1)(a) of Punjab Anti-Corruption Establishment Rules, 1985, on completion of investigation, if allegations were not established, the case was to be dropped and that order of Additional Director Anti-Corruption was illegal and unlawful---Validity---Additional Director Anti-Corruption had ultimate authority to accept reports of his subordinates or to do otherwise and on the basis of material he came to conclusion that recommendation of dropping of case was not justified and keeping in view the evidence on record he approved judicial action---Rule 15(1)(a) of Punjab Anti-Corruption Rules, 1985 was not mandatory as no consequence had been provided for non-compliance of said Rule---Statute, as a general rule, was understood to be directory when it contained matter merely of direction but not when those directions were followed up by express provision that in default of following them, the facts were to be null and void---Disobedience of Act, if it was directory, did not entail any invalidity---Punjab Anti-Corruption Establishment Rules, 1985 being not an Act of Legislature and having been made by Executive Authorities could not override parent law under which police was hound to submit challan under S.173, Cr.P.C, whatever result of investigation might be, the relevant Court would be authorized to agree or differ with the said report---Additional Director was under no circumstances bound to drop inquiry in any situation and it was in his discretion to decide the basis of evidence to drop proceedings or not---Additional Director had, vide his order, only given direction to submit challan and after its submission petitioners would be having remedy of filing application under S.265-K, Cr.P.C.---No occasion, at such a stage, was there to interfere with order of Additional Director Anti-Corruption---Constitutional petitions were dismissed.

(b) Punjab Anti-Corruption Establishment Rules, 1985---

----Rule, 15(1)(a)---Rule 15(1)(a) of Punjab Anti-Corruption Establishment Rules, 1985 not mandatory---Provisions of Rule 15(1)(a) were directory in nature and word "shall" used in said rule was to be treated as "may" as no consequence had been provided for non-compliance or the same.

Niaz Muhammad Khan v. Mian Fazal Raqib PLD 1974 SC 134 rel.

(c) Interpretation of statutes---

----Statute, as a general rule, was understood to be directory when it contained matter merely of direction but not where those directions were followed up by express provision that in default of following them, the facts, were to be null and void---Disobedience of Act, if it was directory, did not entail any invalidity.

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

---Art. 199---Constitutional jurisdiction---Scope---Investigation---Controversial facts, while exercising constitutional jurisdiction, could neither be looked into nor the orders/action of competent authority could be subjected to judicial scrutiny and reason for not exercising jurisdiction was that the purpose of investigation was only to collect evidence and place the same before Court---Investigating Officers were not final authority to decide guilt or innocence of accused which function exclusively lay with courts of law to decide cases on the basis of evidence collected during investigation---High Court could not intervene in matter of investigation which was exclusive function of investigating agency and quashing of F.I.Rs. and proceedings thereon was disapproved.

PLD 1971 SC 677; 2006 SCMR 276 and 2006 SCMR 1957 rel.

Pir Muhammad Asif Rail and Muhammad Latif Khokhar for Petitioner.

Qari Abdul Karim Shahab for the Complainant.

M. R. Khalid Malik, Addl. A.-G. with Kh. Mukhtar Ahmad, Dy. Director, Abdul Ghaffar Joya, Dy. Director (Legal) Anti-Corruption Multan and Jalil Imran Khan, Circle Officer Anti-Corruption Layyah for Respondents.

P L D 2007 Lahore 274

Before Syed Zahid Hussain, J

SHAH MUHAMMAD---Petitioner

Versus

MEMBER, BOARD OF REVENUE and others---Respondents

Writ Petition No.117-R of 2006, decided on 7th December, 2006.

Civil Procedure Code (V of 1908)---

----S.35-A---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Compensatory costs in respect of false or vexatious litigation---Material on record and files of previous litigation between the parties, manifested the classic example of stubbornness of a litigant who appeared to be determined to mock the process of law and the Court repeatedly, on one pretext or the other---Petitioner, even after his failure up to Supreme Court, continued dragging other side into litigation and filed number of petitions afterwards before High Court---There had to be an end to the litigation at some stage to rest all concerned in peace, but petitioner continued to abuse and misuse the process of the Court with impunity---Apart from the fact that petitioner had no case on merits, he was precluded by previous judgments to re-agitate the matter once again---Petitioner deserved no leniency and was liable to be burdened with costs due to his conduct, for filing frivolous petition over again.

Pir Bakhsh represented by his legal heirs and others v. The Chairman Allotment Committee and others PLD 1987 SC 145 rel.

Zafar Iqbal Chohan for Petitioner.

Aamir Rehman, Addl. A.-G., Punjab, (on Court's call).

P L D 2007 Lahore 276

Before Muhammad Jehangir Arshad, J

PIR BAKHSH alias PIRAN and 7 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.2062-B and 2568-B of 2006, decided on 7th September, 2006.

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

----S. 497---Penal Code (XLV of 1860), S.310-A---Bail, grant of---Custom of 'Kala-Kali'---Exchange marriage---Effect--Badle-Sulh---Meaning---Bail in non-bailable offence---Scope---Allegation against accused/petitioners was that being members of Punchayat they, on basis of custom of Kala Kali, gave two females of complainant's family in marriage with co-accused whose sister had been allegedly abducted by complainant's brother---Bail applications of accused were rejected by Trial Court---Accused contended; that two females of complainant's family were not given in marriage as Badl-e-Sulh for alleged abduction of female of accused family, rather it was an exchange marriage; that it was a contract entered into by father of alleged abductee and father of females whose brother allegedly abducted the lady; that offence under S.310-A, P.P.C. was not made out---Validity---Question whether in the light of contents of F.I.R. ingredients of S.310, P.P.C. were made out from its bare reading or the same required other material, could only be determined after recording of evidence---Word "Badl-e-Sulh" was though not defined in P.P.C. yet in the context of S.310-A, P.P.C. the same was to be construed as giving or accepting something in compensation of right of Qisas and right of Qisas always arose at time of commission of offence---No F.I.R. had been lodged regarding commission of alleged abduction therefore, decision made by said 'Punchayat' in the context of F.I.R. could be strictly construed as one in lieu of compensation for commission of offence of abduction---Such fact could tentatively be considered as one bringing case of prosecution within ambit of S.310-A, P.P.C. which could only be built up through evidence and for that matter most relevant witness was the alleged abductee who had not, so far, opted to come forward to support story of alleged abduction---Investigation of case was complete and accused could not be kept behind bars indefinitely as the same was to amount to punishing them without trial which was against law---Bail in non-bailable offence though could not be claimed as a right, yet the fact that offence did not fall within prohibitory clause of S.497, Cr.P.C. could be considered as a weighing factor for grant of post-arrest bail---Bail petitions were allowed.

Abdul Malik v. The State PLD 1968 SC 349 and Tariq Bashir and 7 others v. The State PLD 1995 SC 35 rel.

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

---S. 310-A---Word "Badl-e-Sulh"---Connotation---Word "Badl-e-Sulh" was though not defined in P.P.C. yet in the context of S.310-A, P.P.C. the same was to' be construed as giving or accepting something in compensation of right of Qisas and right of Qisas always arose at time of commission of offence.

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

----S. 497-Bail in non-bailable offence though could not be claimed as of right, yet the fact that offence did not fall within prohibitory clause of S.497, Cr.P.C. could be considered as a weighing factor for grant of post-arrest bail.

Tariq Bashir and 7 others v. The State PLD 1995 SC 35 rel.

Malik Muhammad Saleem for Petitioners (in Crl. Misc. No.2062-B of 2006).

Ch. Shoukat Ali Zahid for Petitioner (in Crl. Misc. No.2568 of 2006).

Rao Atif Nawaz for the State.

Muhammad Bilal, S.I. with record.

P L D 2007 Lahore 280

Before Mian Saqib Nisar, J

POINEER BUILDERS through Managing Partner---Petitioner

Versus

ADDITIONAL DEPUTY COMMISSIONER (G) and 2 others---Respondents

Civil Revision No.1361 of 2005, decided on 29th September, 2006.

Arbitration Act (X of 1940)---

----S. 20---Arbitration clause in contract---Rescission of contract---Application under S.20 of Arbitration Act, 1940, before Civil Court---Scope---Non-availing of departmental remedy---Petitioner's construction contract was rescinded by Authority---Petitioner, in terms of arbitration clause in contract moved an application under S.20 of Arbitration Act, 1940 before Civil Court for filing of arbitration agreement and for reference of dispute between the parties in terms thereof---Civil Court rejected petitioner's application on ground that he had failed to avail remedy of first approaching authority's official as envisaged by arbitration clause in contract, before invoking provisions of S.20 of Arbitration Act, 1940---Appeal filed thereagainst was also dismissed by Appellate Court---Petitioner contended that rescission order had been passed by the Official and, therefore, to re-approach him was a futile exercise---Validity---Government official had expressed his mind and view about work and conduct of petitioner, therefore, to re-approach him for simply fulfilling condition of availing departmental remedy was to be a superfluous and illusionary exercise and against object of stipulation---Petitioner could validly maintain application under S.20 of Arbitration Act, 1940 and he was not to be non-suited on account of reason given by both the Courts below---Petition was allowed.

Waqqas Limited v. Province of Punjab NLR 1988 Civil 181 distinguished.

Riaz Karim Qureshi for Petitioners.

Ms. Seema Munawar, A.A.-G. for Respondents.

Date of hearing: 29th September, 2006.

P L D 2007 Lahore 283

Before Mian Saqib Nisar, J

ASHIQ HUSSAIN and another---Appellants

Versus

JAMIA MASJID HANFIA GHOUSIA through President---Respondent

S.A.O. No.12 of 2005, decided on 12th October, 2006.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13(6)---Ejectment petition---Landlord-tenant, relationship denied---Order passed under S.13(6) of the Ordinance, 1959---Effect---Framing of issues where tenancy was denied by tenant---Scope---Landlord/respondent filed ejectment petition against tenant/appellant qua shop in dispute---Tenant denied tenancy relationship between the parties---Rent Controller passed an order under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959, on ground that tenant having no documentary proof, could not deny landlord-tenant relationship---Tenant did not challenge such order passed under S.13(6) of the Ordinance---Rent Controller struck off tenant's defence and passed eviction order against him---Appellate Court dismissed appeal filed by tenant on ground that order passed by Rent Controller under S.13(6) of the Ordinance had not been challenged by tenant and the same had attained finality, and, therefore, tenant was rightly ejected from premises---Validity---Order under S.13(6) of the Ordinance was to be passed only where either landlord-tenant relationship was admitted or it was established from record that denial by tenant was contumacious, illusionary frivolous, baseless and without substance---Cogent reasons were to be recorded by Rent Controller before discarding denial of relationship of tenancy and passing order under S.13(6) of West Pakistan Urban Rent. Restriction Ordinance, 1959---Once tenant denied such relationship and issue on this behalf was intended to be framed by Rent Controller, then it was not permissible for him to' pass an order under S.13(6) directing tenant to deposit rent---Default in payment of rent where set out as a ground for eviction, the tenant, while denying relationship, was to take grave risk of ejectment for the reason that if his tenancy was established then the same was to be forfeited followed by straightaway ejectment order against him---Where tenancy was denied, Rent Controller was not supposed to frame any other issue such as ground of personal requirement or wilful default in payment of rent---Case was remanded to Rent Controller for recording of evidence of parties on issue of tenancy relationship and decide eviction application on the basis of said issue---Appeal was allowed.

Muhammad Saleem Akhtar for Appellants.

Ghazanfar Ullah Janjua for Respondent.

Date of hearing: 12th October, 2006.

P L D 2007 Lahore 286

Before Syed Hamid Ali Shah, J

ANJUMAN ISLAMIA (REGISTERED), SIALKOT through General Secretary---Petitioner

Versus

JAWAAD and 4 others---Respondents

Civil Revision No.1558 of 2002, heard on 18th September, 2006.

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

----S. 54---Societies Registration Act (XXI of 1860), Ss.6 & 16---Civil Procedure Code (V of 1908), S.92---Suit for permanent injunction---Maintainability---Suit filed by unauthorized person on behalf of registered Society (Anjuman)---Suit property whether wakf or not---Determination---Scope---Objection not raised in written statement---Effect---Authority of any Muslim to safeguard property of Mosque or Eidgah---Scope---Plaintiff a registered Anjuman filed suit for permanent injunction seeking restraint from interfering with its possession and raising of construction on suit-land by defendants---Plaintiff asserted that as per Jamabandi for the year 1965-66, the ownership and possession of suit-land which was being used as "Eidgah" Ray with it---Defendants averred in their written statement that suit-land was in their ownership and plaintiff was in illegal occupation of land---Trial Court decreed the suit but in appeal 'filed thereagainst Appellate Court dismissed the suit---Plaintiff contended; that finding of Appellate Court were not in consonance with evidence on record; that property was being used for offering Eid prayers since 1965-66 and it had attained status of 'wakf' impliedly and that the plaintiff a registered Anjuman was also running various charitable and welfare projects---Defendants, on the other hand, argued that suit was not competent in view of provisions of Ss.6 & 16 of Societies Registration Act, 1860; that no authority had been given to any person to file the suit on behalf of plaintiff-Anjuman---Validity---Plaintiff-Anjuman had been registered under Societies Registration Act, 1860 with object to manage various religious and social bodies---No evidence was available on record to show whether suit property was dedicated by its owner to plaintiff-Anjuman nor there was any proof on record to show as to .how the property in question came under management of plaintiff-Anjuman---Defendants had not brought on record any evidence to. the effect that property in dispute formed part of Shamlat Deh and that defendants were its lawful claimants---In absence of necessary evidence or proof qua the land in dispute, its nature could only be determined by its use and purpose---Property held and utilized for a religious purpose, since time immemorial, had been treated as "wakf by user"---To determine that property was a wakf property, when express dedication was not available, the decision could be based on evidence showing how public regarded such property---Land in dispute, though not dedicated expressly for charitable purpose, could be treated as wakf property on the basis of its use since time immemorial for that purpose---Suit property was a wakf property having been used as Eidgah for a long period---Perusal of written statement revealed that objection regarding filing of suit through unauthorised person was not raised either in preliminary objection or in parawise reply on merit---Defendant witnesses had not stated a single word in this respect---Competence of person who represented plaintiff-Anjuman was not questioned before Trial Court---Such objection was, therefore, not entertainable before the Appellate Court---Appellate Court had decided objection without affording adequate opportunity to plaintiff---Finding of Appellate Court that plaintiff being a legal entity, under S.6 of Societies Registration Act, 1860, a suit on its behalf was required to be filed by a person authorized by resolution of governing body was not well-founded---Place of worship like Mosque or Eidgah if faced threat of illegal occupation or misuse, any member of the society who offered prayer or performed religious rites at such place could maintain suit---Non-suiting the plaintiff for want of resolution is legally not sustainable---Any Muslim was competent to sue to safeguard the property of Mosque or Eidgah in his individual capacity---Petition was accepted.

Makhdum Hassan Buksh 148 Punj. Rec. 83(1913); Miru and others v. Ram Gopal AIR 1935 Allah. 891; Munshi Abdur Rahim Khan and others v. Fakir Muhammad Shah and others AIR (33) 1946 Nag. 401; A.P. Kuruwa Sangham Society v. Mirza Anayatullah Baig AIR 1982 Andh. Par. 138; Anglo Mohammadan Law by Sir Ronald Knyvet Wilson revised by A. Yousaf Ali; Rain Chancier and others v. Khawaja Ali Muhammad and others 35 All. 197 (1913) and Jawahra v. Ibrar Hussain 7-A.178 AWN (1884) 324 rel.

(b) Islamic Law---

----Wakf---Property held and utilised for religious purpose since tune immemorial was to be treated as "wakf by user"---To determine that property was a wakf property when express dedication was not available, the decision could be based on evidence showing how public regarded such property.

Sh. Umar Draz for Petitioner.

Ch. Muhammad Din Ansari and Ch. Sadagat Ali for Respondents.

Date of hearing: 18th September, 2006.

P L D 2007 Lahore 293

Before Mian Saqib Nisar, J

Ms. LOUISE ANNE FAIRLEY through Special Attorney---Petitioner

Versus

SAJJAD AHMED RANA and 2 others---Respondents

Writ Petition No.9730 of 2006, decided on 29th November, 2006.

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

----Art. 199---Criminal Procedure Code (V of 1898), S.491---Constitutional petition--Maintainability---Habeas Corpus---Custody of minor---Removing custody of minor--Despite restraining order passed by a Court of foreign jurisdiction, father removed the minor to Pakistan---Mother of minor had sought custody of the minor by invoking habeas corpus petition---Plea raised by father was that he being legal and natural guardian of the minor, his custody was not illegal---Validity---Father having himself admitted the jurisdiction of foreign Court and submitted and surrendered thereto and having promised not to remove the child from care and control of mother and Court, was debarred to bring the child to Pakistan---Such was flagrantly illegal, deceitful and dishonest act on the part of father---If a Pakistani Court had passed an order directing not to remove child from custody of a parent by the other and order was violated, such act would fall within the ambit and scope of Art. 199 of the Constitution and S.491, Cr.P.C.; as such rule was applicable regarding the orders passed by Courts of Pakistan, same rule could be extended to the valid orders of foreign jurisdiction, especially to which jurisdiction the defaulting party (father) had surrendered---High Court in exercise of jurisdiction, under Art. 199 of the Constitution and S.491, Cr.P.C., declared that the petition was maintainable in circumstances.

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

----S. 3---Criminal Procedure Code (V of 1898), S.491---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Custody of minor---Welfare of minor---Determination---Parties were parents of minor girl aged about 12 years, who had divorced each other---Matter pertaining to custody of the minor was pending before a Court of foreign jurisdiction, as they were nationals of that foreign country---During proceedings, foreign Court directed the father not to remove minor from the care and control of mother---Father originally being Pakistani national, despite restraining order removed the minor to Pakistan---Mother invoked constitutional jurisdiction of High Court to seek custody of the minor---Plea raised by father was that as the child professed Islamic faith, therefore, it was not in her welfare to send her back to that foreign country, where the culture and norms were fundamentally in contradiction to Islamic injunctions---Validity---Question about welfare of the minor, could only be decided by a Court, where minor was habitually residing---Father having admitted in his defences before Court of foreign jurisdiction that the minor was habitually resident of that foreign country, therefore, High Court declined to interfere in the jurisdiction of that Court, regarding the determination of the issue of the welfare---High Court directed the father to hand over custody of minor to her mother and raise such pleas before the Court of foreign jurisdiction---Petition was allowed accordingly.

Mrs. Nahida Mahboob Elahi for Petitioner.

Dr. A. Basit for Respondents Nos. 1 and 2.

P L D 2007 Lahore 300

Before Mian Saqib Nisar, J

LOUISE ANNE FAIRLEY---Petitioner

Versus

SAJJAD AHMED RANA---Respondent

Writ Petition No.9730 of 2006, decided on 29th November, 2006.

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

---O. VIII, R. 5---Evasive denial---Effect---If statement of fact contained in plaint/petition is not specifically controverted in written statement and an evasive answer is given, it amounts to admission.

(b) Pleadings---

---Admission---Scope---No one can be allowed to retract from his admission made in pleadings, which stands on higher pedestal than ordinary admission made elsewhere-No one can plead his. case beyond the scope of his pleadings.

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

---S. 9---Place of residence of minor---Determination---During the period since May, 2005 till August, 2006, minor, in the present case, was in foreign country and was studying in school---Father admitted such fact in his defence before Court of foreign jurisdiction---Effect---Such length of time was good enough to mean that minor was ordinarily residing in that foreign country and not in Pakistan, within the meaning of S.9 of Guardians and Wards Act, 1890.

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

----Art. 199---Constitutional petition---Custody of minor---Ulteriorly motivated removal of minor---Despite restraining order passed by Court of foreign jurisdiction, father removed minor to Pakistan---Mother of minor sought custody of the minor by invoking constitutional jurisdiction of High Court---Plea raised by mother was that removal of minor was ulteriorly motivated and to defeat orders of Court of foreign jurisdiction---Validity---Having surrendered and submitted to jurisdiction of foreign Court and also making solemn promise that the child would not be removed, it was inconceivable as to how, father of minor could think about violating, disobeying and disregarding Court's order and breached his promise---Such action of father, bringing the child in Pakistan was oblique, dishonest, ulteriorly motivated and was tainted with fraud to circumvent orders of Court of foreign jurisdiction and deprive mother of her lawful custody---On account of pendency of proceedings before Court of foreign jurisdiction and orders passed in favour of mother and against father, which were binding upon him, he could not retain custody of the minor on the principles of law, justice, equity and good conscience.

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

----Art. 199(1)(b)(i)---Expressions "without lawful authority" and "in an unlawful manner"---Scope---Such expressions mean that such a custody should not be against or unauthorized by law; in defiance of law; in disregard or disobedience of law;. impermissible under law; without excuse and justification of law.

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

---S. 491---Habeas corpus order---Jurisdiction of High Court---Scope---If custody of a person held by another is "illegal" or "improper", order under S.491, Cr.P.C. can be issued by High Court.

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

---Art. 199---Criminal Procedure Code (V of 1898), S.491---Constitutional petition---Custody of minor---Despite restraining order passed by Court of foreign jurisdiction, father removed the minor to Pakistan---Plea raised by mother was that such custody of minor with father was illegal---Validity---If much sanctity was attached to order passed by Court in Pakistan, then same legal status and sanctity should be conferred and given to orders passed by Court of foreign jurisdiction, when such orders were passed in proper exercise of jurisdiction and especially in the circumstances when delinquent party had surrendered to the jurisdiction of that Court---There were interdictory and residence orders passed by Court of foreign jurisdiction and also an undertaking had been given by father, not to remove the minor from care and control of mother and also jurisdiction of that foreign Court---Bringing the child over to Pakistan and retaining its custody was "without lawful authority", "illegal" and "improper" in circumstances.

(h) Words and phrases---

----Improper---Meaning.

Black's Law Dictionary 6th Edn., p.757 rel.

(i) Fraud---

----No one can be allowed to have premium of his fraud.

(j) International law---

----Judicial comity, principle of---Applicability---Pakistan is not a pariah, rather a responsible State and is a part of civilized community of Nations---Judiciary of Pakistan is fully established and institutionalized and is one of the most important organs of the State---Interaction of a State as a whole with other Nations undoubtedly is based upon mutual respect and confidence and this stands true for the judicial organ as well---When world has squeezed into a global village, it has become expedient that principles of comity should be strictly applied, adhered and resorted to all levels of the State institutions---Upon such principle, Court of one jurisdiction, subject to condition that orders do not contravene any domestic law of country should give the effect to judicial decisions of Courts of another State, as a matter of deference and mutual respect, even if no obligation exists to do so---It should be based upon willingness on part of judiciary of one civilized State to grant privilege and respect to orders of foreign jurisdiction-It is the matter of mutual accommodation, shown to the orders of each other, especially which are passed in proper exercise of jurisdiction---Such respect is founded and structured upon rules of courtesy, civility, affability, amity, consideration, gesture of goodwill and good fellowship to the orders passed by the Court of other country.

(k) Convention on the Rights of the Child---

----Art. 12---Criminal Procedure Code (V of 1898), S.491---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Custody---Views of minor--Despite restraining order passed by Court of foreign jurisdiction (U.K.), father removed the minor to Pakistan---Mother of minor had sought custody of the minor by invoking habeas corpus petition---Plea raised by father was that he being legal and natural guardian of the minor, his custody was not illegal, and the minor wanted to live with her father in Pakistan---Validity---Orders were passed by Court of foreign jurisdiction, within proper exercise of jurisdiction and father had not been an upright, fair, honest man, rather in removing the child, was guilty of showing disrespect and violated Court's orders, besides breaching his own undertakings---Father had obtained custody in a wrongful manner, therefore, petition was competent within the ambit of Art. 199 of the Constitution and S.491, Cr.P.C.---Instead of relying upon the views of minor, High Court felt expedient to leave it to Court of foreign jurisdiction, which had already passed requisite order and inter alia on the basis of such report might like to finally decide whether the child should live with mother or with father---In the matter pertaining to custody of minor, paramount consideration was welfare of minor and such was also the rule in U.K.---Though Islamic principles were very much relevant for determination of such issue but other factors were also relevant---Pakistan Courts could exercise their jurisdiction only with regard to minors who were ordinarily residing in Pakistan---As the minor was not ordinary resident of Pakistan and her custody matter was pending adjudication before Court of foreign jurisdiction, therefore, High Court declined to interfere in the jurisdiction of competent Court---High Court directed father to hand over custody of the minor to petitioner, who was real mother of the minor---Constitutional petition was allowed in circumstances.

Uzma Wahid v. Muhammad Javed Umrao 1988 PCr.LJ 1883; Muhammad Javed Umrao v. Miss Uzma Wahid 1988 SCMR 1891; Miss Hina Jilani, Director of A.G.H.S. Legal Aid Cell v. Sohail Butt PLD 1995 Lahore 151 and Sara Palmer v. Muhammad Aslam 1992 KLR Crlo. Cases 417 ref.

Mrs. Nahida Mahboob Elahi for Petitioner.

Dr. A. Basit for Respondent.

Date of hearing: 29th November, 2006.

P L D 2007 Karachi 317

Before Nadeem Azhar Siddiqi, J

GHULAM SARWAR and others---Petitioners

Versus

PROVINCE OF SINDH, REVENUE DEPARTMENT through Deputy Commissioner, Shikarpur and 2 others---Respondents

Civil Revision No.136 of 1994, heard on 23rd August, 2006.

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

----O. VII, R.11---Rejection of plaint---Principles---Questions of fact and limitation---Court though has power to reject the plaint without any application under O.VII, R.11, C.P.C., however it is the duty of Court to examine the plaint and reject the same suo motu if the plaint comes within the mischief of O.VII, R.11, C.P.C.---While rejecting the plaint under O.VII, R.11, C.P.C. the controversial question of facts cannot be resolved and for that purpose the parties are entitled to lead evidence in support of their respective claims---Contents of the plaint are to be taken as true oh its face value while rejecting the plaint--Plaintiffs, in the present case, had claimed that they were the legal heirs of the deceased who expired issueless and was actual owner of the suit-land---Such being a factual controversy could not be decided summarily without allowing the parties to lead their evidence; question of limitation also being a mixed question of law and facts, issues could be framed in that regard and rejection of plaint was unwarranted---Judgments passed by the Trial Court as well as Appellate Court were set aside and the case was remanded by the High Court to the Trial Court for. deciding the same in accordance with law after framing the issues and after giving due opportunity to the parties to lead their evidence in support of their cases---Case pertained to the year 1991, Trial Court was directed to proceed with the suit expeditiously.

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

-- -O. VII, R.11---Rejection of plaint---Scope---Plaintiffs had clearly pleaded that cause of action had accrued to them on 8-10-1991 which had to be thrashed out after the evidence whether in fact the cause of action had accrued to the plaintiffs on that day or before that day---Trial Court was not justified in giving the findings that the knowledge of brother in a certain transaction of property definitely could be presumed to be the knowledge of his brother and his family members---Findings of Trial Court Bing based on presumption and not on the basis of material available on record were liable to be set aside.

A. M. Mobeen Khan for Applicants.

G.D. Shahani, Addl. A.G. for Respondent Nos. 2 and 3.

Abdul Fattah Malik for Respondent No.3.

Date of hearing: 23rd August, 2006.

P L D 2007 Lahore 318

Before Syed Zahid Hussain, J

MUHAMMAD AZHAR BUTT---Petitioner

Versus

Hafiz MUHAMMAD ANIS and 5 others---Respondents

Writ Petition No.19462 of 1999, heard on 14th December, 2006.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Constitutional petition by employee against employer---Competence---Denial of payment of share of reward under Reward Scheme---Petitioner asserted that being one of the members of Detecting Team as Inspector, Sales Tax, he was also entitled to share of reward which was denied to him due to alleged abuse of official position by Collector Customs who allegedly made an entry "Mr. ABC C/o Deputy Collector, Central Excise and Sales Tax (South) Lahore" and, thus, he himself became informer---Petitioner contended that since information was passed through Collector, therefore, reward had to be paid to informer through him; that appropriate order might be issued to the department to take immediate departmental action against Collector Customs on the basis of inquiry report; that Federal Investigation Agency might be directed to register a criminal case for misappropriation of a certain sum and that the Collector be directed to pay amount of reward to petitioner in accordance with Reward Scheme---Collector assailed locus standi of petitioner, for filing such petition and contended that prayer made by petitioner who had been removed from service, could not be granted as whole purpose was to deflect the course of disciplinary proceedings; and that Central Board of Revenue had examined the matter and it was found that allegations levelled by petitioner against him were baseless---Validity---Allegations levelled against Collector were probed on complaints/representations moved by petitioner and on consideration of the matter it was found that he (petitioner) was not entitled to any such reward---Assertion of petitioner, resting on a misplaced letter, that he had been ignored without assigning any reason lost its efficacy as the same was indeed cancelled/withdrawn for the reason that it had been found to have been "without lawful authority" and that it was based on misrepresentation of facts---Contention of Collector had substance that petitioner had no locus standi to maintain shelf petition, seeking direction for departmental action against him as it was a matter purely between employer arid employee---Central Board of Revenue being competent authority possessed of relevant record/dossier of Collector and if it had chosen not to take any action against him, then Court was not in a position to substitute its view on the basis of mere allegations of petitioner---Court, in constitutional jurisdiction, could neither hold roving inquiry nor act as an inquisitorial forum---Constitutional petition was dismissed.

Riyasat Ali Chaudhry for Petitioner.

Ahmer Bilal Soofi for Respondents.

Date of hearing: 14th December, 2006.

P L D 2007 Lahore 321

Before Syed Zahid Hussain and Jawwad S. Khawaja, JJ

MUHAMMAD KHAN and 3 others---Petitioners

Versus

DEPUTY LAND COMMISSIONER and another---Respondents

Writ Petition No.5483 of 1998, heard on 21st December, 2006.

Land Reforms Act (II of 1977)---

----S. 9-Constitution of Pakistan (1973), Art. 199---Constitutional petition---Resumption of excess land---Proceedings---Judgment passed by Supreme Court in case titled Qazalbash, Waqf and others v. Chief Settlement Commissioner, Punjab Lahore and others, reported as PLD 1990 SC 99---Applicability---Raising of new plea---Scope---Proceedings under Land Reforms Act, 1977, regarding land owned by petitioners, had commenced and concluded long before the judgment passed by Supreme Court in Qazalbash's Waqf case, as effective order had been passed by the authorities on 27-6-1987---Mere late entry of mutation would not denude legal efficacy of the order dated 27-6-1987---No benefit could be derived by petitioners from the judgment of Supreme Court passed in Qazalbash's Waqf case---Petitioners attempted to raise some new points which according to them were of relevance but no new case could be set up at such a stage in constitutional jurisdiction--Petition was dismissed in circumstances.

Qazalbash Waqf and others v. Chief Land Commissioner, Punjab Lahore and others PLD 1990 SC 99; Salah-ud-Din Qureshi v. Federal Land Commission and others 1992 CLC 2362; Munir Ahmed and 2 others v. Chairman Federal Land Commission, Pakistan and another 1994 CLC 20, Muhammad Yusuf Ali Shah v. Federal Land Commission, Government of Pakistan, Rawalpindi and 2 others 1995 CLC 369; Malik Mumtaz Ali Khan v. Additional Deputy Commissioner (Consolidation) Attock, and another 1997 CLC 1634; Shah Jehan Khan Abbasi v. Deputy Land Commissioner, Bahawalpur and another 2006 SCMR 771 and Chief Land Commissioner, Punjab and others v. Chief Administrator of Auqaf, Punjab and others PLD 1988 SC 132 ref.

Ali Akbar Qureshi for Petitioners.

Fawad Malik, Asstt. A.-G., Punjab for Respondents.

Date of hearing: 21st December, 2006.

P L D 2007 Karachi 322

Before Ali Sain Dino Metlo, J

UZAIR ZAKARIA---Applicant

Versus

THE STATE---Respondent

Special Criminal Bail Application No.23 of 2006, decided on 31st May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Sales Tax Act (VII of 1990), Ss.33(11)(a)(c), (13)(18), (19) & 37-C---Customs Act (IV of 1969), S.156(14)(77) & (84)---Bail, grant of---Accused had allegedly obtained inadmissible sales tax refund and customs rebate, both amounting to crores of Rupees, from the Collectorate of Sales Tax (Enforcement), and Collectorate of Customs (Export), during the period from April to June, 2005---Goods exported allegedly actually belonged to some other companies and the accused had simply managed fake, fabricated and bogus documents to claim the refund and rebate---No action admittedly had been taken against any officers sanctioning the refund or the rebate, nor any action for recovery of the amount had been initiated, because the bills of lading on the basis of which action was taken were yet to be verified---Except for the bills of lading none of the documents filed by the accused in support of the refund and the rebate claims were doubted---Entire prosecution case for the time being was of change of destination, as the goods were unloaded at Dubai instead of Germany---Change of destination apparently had no effect upon refund of sales tax as the amount of refund would be determined on the basis of amount mentioned in the input tax invoices and was admissible irrespective of whether the goods were exported to Germany or Dubai---Claim of rebate could not be rejected on the ground of change of destination---Accused was admitted to bail in circumstances.

C. P. Nos. 225/226/227 of 1987 and Civil Petition Nos.233-K/234-K/235-K of 1990 ref.

M. Ilyas Khan for Applicant.

Mahmood Alam Rizvi, Standing counsel for the State.

Dr. Saifuddin, Investigating Officer.

P L D 2007 Lahore 324

Before Mian Muhammad Najam-uz-Zaman and Sh. Javaid Sarfraz, JJ

Hafiz MUHAMMAD ARSHAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.890 and Capital Sentence No.18-T of 2006, heard on 18th December, 2006.

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

----S. 302---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Appreciation of evidence---Prosecution case rested only on circumstantial evidence, i.e., extra-judicial confession coupled with judicial confession of accused and recovery of blood-stained "Chhrri" at his instance---None of the witnesses before whom the accused had confessed his guilt had either apprehended him or immediately informed, the complainant or the police, but informed the police on the next day and offered no explanation for keeping the said confession as a secret for many hours---Said witnesses had no position to put pressure on the complainant to get pardon-for the accused and thus there was no occasion for him to appear before them for confession---Even otherwise, extra-judicial confession was a very weak type of evidence which could not be safely relied upon in the absence of any independent corroborative piece of evidence---No independent witnesses of the locality was joined in the proceedings of the recovery of the blood-stained "Chhuri"' at the instance of accused---Said blood-stained "Chhuri" was not even sent to Chemical Examiner for the report qua the origin of blood---Accused having been apprehended after more than one month of the occurrence, he had ample time to wash out the blood-stains from the "Chhuri" or to destroy the same---Said recovery at the instance of accused after such a long time from the bank of a canal was repellant to common sense---Retracted judicial confessional statement of accused was neither brought on the record after complying with all the legal formalities, nor the same had qualified the test of voluntariness---Magistrate before recoding the judicial confession of accused did not tell him that he was not bound to make such statement, nor did the Magistrate after recording the confessional statement give the necessary certificate/memorandum at the end of the statement---Magistrate admittedly did not record the statement of accused by herself and the same was recorded by her Reader under her direction---Accused was also not informed by the Magistrate that after making his statement he would be sent to judicial lock up and the possibility of his handing over to police after recording his confession could not be ruled out---Feelings in the mind of the accused that he would be handed over to the police once again must have interfered with the voluntary nature of his confession---Finally the Magistrate had recorded the confession of accused after administering him on oath whereas under S. 5 of the Oaths Act, 1873, the statement of an accused on oath had no legal value---Evidence relied upon by the Court below was not worth reliance---Accused was acquitted accordingly.

Majeet Singh: v. The State PLD 2006 SC 30; Asif Mehmood v. The State 2005 SCMR 515; Wazir Ali v. The State PLD 1960 (W.P.) Kar.674; Hakim Gul v. The State PLD 1964 (W.P.) Pesh. 1; Muhammad Bakhsh v. The State PLD 1956 SC (Pak).420 and Haq Nawaz and others v. The State and others 2000 SCMR 785 ref.

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

----S. 302-Anti-Terrorism Act (XXVII of 1997), S.7(a)---Confession---Dependability---Retracted confession either judicial or extra-judicial can be relied upon to convict the accused on the charge of capital sentence provided the same is truthful, confidence-inspiring and qualifies the test of voluntariness.

Manjeet Singh v. The State PLD 2006 SC 30 and Asif Mehmood v. The State 2005 SCMR 515 ref.

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

----S. 302---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Criminal Procedure Code (V of 1898), S.164--- Confession---Voluntary nature of confession being doubtful, it has no evidentiary value---Accused before recording his statement should be informed that whether he makes a confession or not he shall not be given back to police custody---Where the accused is sent back to police custody after making a confession, such a course seriously vitiates the voluntary nature of the confession and the same being doubtful has no evidentiary value at all.

Wazir Ali v. The State PLD 1960 (W.P.) Kar.674 and Hakim Gul v. The State PLD 1964 (W.P.) Pesh. 1 ref.

(d) Oaths Act (X of 1873)---

----S. 5---Criminal Procedure Code (V of 1898), S.164---Confession---Administration of oath to an accused is an incurable illegality---Administration to an accused of an oath or affirmation is opposed to public policy and any violation of the provision prohibiting the Court from putting him under oath amounts to an illegality which cannot be cured on any principle of consent, waiver or estoppel---Recording of confession of accused after administering him oath was not worth reliance.

Muhammad Bakhsh v. The State PLD 1956 SC (Pak).420 and Haq Nawaz and others v. The State and others 2000 SCMR 785 ref.

Sikandar Zulqarnain Saleem for Appellant.

M.A. Aziz, Special Public Prosecutor for Respondent.

Date of hearing: 18th December, 2006.

P L D 2007 Karachi 325

Before Ali Sain Dino Metlo, J

MUHAMMAD ASIF SAIGAL---Applicant

Versus

THE STATE---Respondent

Special Criminal Bail Application No.2 of 2007, decided on 8th February, 2007.

Criminal Procedure Code (V of 1898)---

---S. 497---Customs Act (IV of 1969), Ss.156(1)(9),(10A), (11), (14) & 14(A)---Bail, grant of---Goods exported, according to prosecution, were of substandard quality, which had been assumed mainly on the basis of declared value---Neither the reports of the Examining Officers had suggested substandard quality, nor representative samples were available to determine the standard and quality of the exported goods---No complaint regarding quality was received by Customs Department from any foreign importer---Alleged confession of the accused before Investigating Officer regarding exported goods being of substandard quality was inadmissible---Notification (S.R.O.) entitling the accused to claim duty drawback did not specify the ratio of the ingredients---Rate being quantity-wise and not value-wise, the value was not directly relevant for the purpose of determining the amount of duty drawback---Any mis-declaration about the value of the goods thus, would have no direct bearing upon the claims of accused of duty drawback---No direct evidence was available about the ratio of ingredients contained in the exported goods, so as to say that the same were not of standard quality---Investigating Agency had failed to collect sufficient evidence to establish reasonable grounds for believing the accused guilty of the offence and the matter required further inquiry---Accused was admitted to bail in circumstances.

Kamal Azfar assisted by Amir Raza Naqvi and Abdul Qayyum Abbasi for Applicant.

Mehmood Alam Rizvi, Standing Counsel, assisted by Raja Muhammad Iqbal, Naeem Akhtar, Deputy Collector (Export) and Zulfiqar Ahmad, Investigating Officer for the State.

P L D 2007 Karachi 328

Before Nadeem Azhar Siddiqi, J

DHOLAN---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No.S-96 of 2005, decided on 4th December, 2006.

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

----S. 13(d)---Appreciation of evidence---Prosecution witness had clearly stated that accused being armed with rifle was going near Jamia Mosque and complainant/prosecution witness arrested accused in his presence---Rifle was loaded with bullets, but complainant/police officer unloaded it from which three live bullets were secured---Accused, on inquiry disclosed that rifle in question was unlicensed---Evidence of prosecution witness had gone unchallenged and unrebutted in the cross-­examination---Complainant had stated that accused was arrested by him along with the rifle and defence could not controvert the evidence---Cross-examination of the witnesses confirmed the recovery of weapon---Every case was to be decided on the basis of evidence available on record and deposition recorded in other case could not be considered---No violation of S.103, Cr.P.C. was noticed as prosecution witness was a private witness whose evidence was inspiring confidence and Trial Court on the basis of said evidence had rightly convicted the accused---In absence of any illegality or irregularity in the orders of the courts below, there was no justification to interfere with the same.

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

----S. 439---Revision---Scope of revision was limited---Order could only be disturbed in revision, if it suffered from illegality or perversity and the revisional jurisdiction was to be exercised only in exceptional cases---Where the interest of justice required interference for the removal of illegality or perversity or gross miscarriage of justice, revisional jurisdiction could be invoked---Said jurisdiction could not be invoked, if from the reading of the evidence some other view was possible.

Muhammad Azeem v. The State 1977 PCr.LJ 671 ref.

A. R. Farooque Pirzada Malik for Applicant.

Habibur Rehman Shaikh, A.A.-G. for the State.

P L D 2007 Karachi 330

Before Zia Perwaz and Nadeem Azhar Siddiqi, JJ

DILSHAD and 2 others---Petitioners

Versus

SENIOR SUPERINTENDENT OF POLICE and 2 others---Respondents

C. P. No.D-1071 of 2001, heard on 13th December, 2006.

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

----Ss. 4 & 18---West Pakistan General Clauses Act (VI of 1956), S. 2---Constitution of Pakistan (1973), Art.199---Constitutional petition---Land acquisition---Award of compensation---Award given without publication of notification under S.4, Land Acquisition Act, 1894 in the official Gazette---Validity---Publication of notification under S.4, Land Acquisition Act, 1894 is mandatory and without publication of such notification, Land Acquisition Officer cannot assume jurisdiction---Simple copy of notification cannot be equated or termed as notification published in the official Gazette---Burden to prove that notification under S.4 was published in the official Gazette was upon the authorities who failed to produce the same and without such production the requisites of S.4(1) of the Act could not be said to have been complied with and further proceedings could not be taken without publication of notification under S.4---Record showed that statutory compliance of publication of notification had not been made before initiating proceedings under the Land Acquisition Act, 1894---Award in circumstances, was without jurisdiction and lawful authority.

Umer Farooque v. Acquisition Collector Bannu and 4 others PLD 1975 Pesh. 103; Assistant Commissioner Mianwali v. Muhammad Amin and others 1987 CLC 2095 and Mst. Sardar Begum v. Lahore Improvement Trust, Lahore PLD 1972 Lah. 458 ref.

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

---Ss. 18 & 4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Land acquisition proceedings had been challenged on the ground of jurisdiction and non-issuance of notification under S.4 of the Land Acquisition Act, 1894 without challenging the rate of compensation---Such challenge was not hit by provision of S.18, Land Acquisition Act, 1894 and constitutional petition under Art.199 of the Constitution was maintainable.

Abdul Rasheed Kalwar for Petitioners.

G.D. Shahani, Addl. A.-G. for Respondents.

Date of hearing: 13th December, 2006.

P L D 2007 Lahore 335

Before Syed Zahid Hussain, J

Messrs ABDUL RAUF MUHAMMAD HANIF (PVT.) LTD. through Chief Executive---Appellant

Versus

WAPDA through Chairman and another---Respondents

F.A.O. No.54 of 2004, decided on 12th January, 2007.

Arbitration Act (X of 1940)---

----S.20---Limitation Act (IX of 1908), Art.181---Civil Procedure Code (V of 1908), O.VII, R.11---Arbitration agreement, filing in Court---Limitation---Non-framing of issue---Plaintiff filed the suit in Court in 1997, later on in year, 2003, he filed application for placing on record, the arbitration agreement which existed between the parties---Trial Court rejected the application of plaintiff, being barred by limitation---Plea raised by plaintiff was that limitation should be reckoned from the issuance of last notice and Trial Court should have framed issue on the question of limitation---Validity---Appointment of arbitrator was sought pursuant to a clause of contract, which provided for precise steps to be taken specifying the stages and timing for reference and for settlement of dispute----Plaintiff failed to adhere to the conditions and steps specified in the contract---Plaintiff had taken up the matter in year, 1997, and after a long time in the year, 2003, rose up to invoke the jurisdiction of the Court under S.20 of Arbitration Act, 1940, which was clearly beyond time---Contention of plaintiff that the period should be reckoned from the issuance of last notice was untenable---There was no use of either framing of issue or keeping the matter pending for further proceedings before Court---Petition under S.20 of Arbitration Act, 1940, was barred by time, which was rightly rejected by Trial Court---Appeal was dismissed in circumstances.

Karachi Shipyard and Engineering Works Ltd v. Muhammad Aslam Khan PLD 1979 Kar. 635; Project Director, Balochistan Minor Irrigation and Agricultural Development Project, Quetta Cantt v. Messrs Murad Ali and Company 1999 SCMR 121; Mian Asif Islam v. Mian Muhammad Asif and others PLD 2001 SC 499; M. Imam-ud-Din Janjua v. The Thal Development Authority through the Chairman, TDA Jauharabad PLD 1972 SC 123; Muhammad Nazir v. The Secretary, Cooperative Department and another 1989 MLD 1156 and Messrs Progressive Engineering Associates v. Pakistan Steel Mills Corporation Ltd (1997 CLC 236 ref.

Riaz Karim Qureshi for Appellant.

Sh. Muhammad Ismail for Respondents.

Date of hearing: 12th January, 2007.

P L D 2007 Karachi 336

Before Sajjad Ali Shah, J

AMJAD JAWED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-718 and Criminal Miscellaneous Application No.S-238 of 2006, decided on 13th March, 2007.

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

----S. 497---Penal Code (XLV of 1860), S.324/337-F(vi)/504/34---Bail, refusal of---Delay of 18 hours in lodging the F.I.R. had been properly explained---Intention of the accused was obvious who had chosen to use a firearm against his enemy and caused the injury on the upper part of the body---Non-repeating of the fire shot by the accused at the most would show that he had no intention to brutally cause the murder, but he had the intention to murder, as in ordinary course a single shot was sufficient to cause the death of a person---Accused was fully aware that the injury caused by a firearm could cause the death of the injured---Specific role had been assigned to accused in the F.I.R. along with motive---Recovery of a .30 bore pistol was effected from the accused--Crime empties of .30 bore were secured from the place of incident---Four prosecution witnesses including the two injured had fully supported the prosecution case---Ingredients of S. 324, P.P.C. were fully attracted in the case---Even otherwise, S.337-F(vi), P.P.C. was non-bailable and bail could not be claimed as a matter of right---Bail was declined to accused in circumstances---[Saleem Khan v. The State 1999 P.Cr.LJ 140 dissented from].

Saleem Khan v. The State 1999 P.Cr.LJ 140 dissented from;

Akhtar Husasain v. The State 2000 PCr.LJ 315; Muhammad Nadeem v. The State 2006 PCr.LJ 1515; Waqas Ahmed v. The State 2005 SCMR 1496; Abbas and another v. State 2003 PCr.LJ 391; Dildar Baig v. The State 1998 SCMR 358; Saghir Ahmed v. Zulfiqar Ahmed 2005 PCr.LJ 1284; Liaquat Ali v. The Sttate 2004 PCr.LJ 962; Muhammad Nawaz v. The State 2004 SCMR 772; Abbas and another v. The State 2003 PCr.LJ 391; Muzafar Iqbal v. Muhammad Imran Aijaz 2004 SCMR 231; Abdul Haleem Lakhho v. Abdul Karim alias Karim Bux and others 2005 SCMR 1539 and Jan Muhammad v. Haji Noor Jamal and another 1998 SCMR 500 ref.

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

----S. 497(5)-Penal Code (XLV of 1860), Ss.324/337-F(vi)/504/34---Bail, cancellation of---Proper explanation for lodging the F.I.R. after a delay of 18 hours had been furnished---Non-repeating of fire shot by the accused did not mean that he had no intention of murder, but it' might be construed that he had no intention of causing a brutal murder---In ordinary course a single shot was sufficient to cause the death of a person---Accused fully knew that the Fire-arm injury caused by him could result in the death of the injured witness---Specific role of the accused in the occurrence and the motive for the same were mentioned in the F.I.R.---Pistol had been recovered from the accused---Crime empties had been collected from the spot-Prosecution version was fully supported by four prosecution witnesses including the two injured witnesses---Provisions of S.324, P.P.C. were attracted against the accused---Section 337-F(vi), P.P.C, being non-bailable offence, bail could not be claimed as a matter of right---Bail was not only granted to accused against the judicial norms, but appeared to be mala fide---Bail allowed to accused by Sessions Court was cancelled in circumstances.-[Saleem Khan v. The State 1999 P.Cr.LJ 140 dissented from].

Saleem Khan v. The State 1999 P.Cr.LJ 140 dissented from;

Akhtar Husasain v. The State 2000 PCr.LJ 315; Muhammad Nadeem v. The State 2006 PCr.LJ 1515; Waqas Ahmed v. The State 2005 SCMR 1496; Abbas and another v. State 2003 PCr.LJ 391; Dildar Baig v. The State 1998 SCMR 358; Saghir Ahmed v. Zulfiqar Ahmed 2005 PCr.LJ 1284, Liaquat Ali v. The Sttate 2004 PCr.LJ 962; Muhammad Nawaz v. The State 2004 SCMR 772; Abbas and another v. The State 2003 PCr.LJ 391; Muzafar Iqbal v. Muhammad Imran Aijaz 2004 SCMr 231; Abdul Haleem Lakhho v. Abdul Karim alias Karim Bux and others 2005 SCMR 1539 and Jan Muhammad v. Haji Noor Jamal and another 1998 SCMR 500 ref.

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

----S. 497---Bail in non-bailable case---Principles---In a non-bailable case bail cannot be claimed as a matter of right and can be declined even in respect of offences which do not fall under prohibitory clause of S.497(1), Cr.P.C.

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

----S. 497(5)---Bail, cancellation of---Principles---Considerations for cancellation of bail are different from those for grant of bail---Such discretion normally is not to be exercised to lightly interfere with the bail granting order.

Allah Bachayo Soomro for Applicant (in Bail Application No. S-718 of 2006).

Syed Madad Ali Shah for the Complainant (in Criminal Bail Application No. S-718 of 2006 and for Applicant (in Cr. Misc. A. No.S-238 of 2006).

Noorul Haque Qureshi for Respondent (in Cr. Misc. A. No.S-238 of 2006).

Mashooq Ali Samo, A.A.-G. for the State.

P L D 2007 Lahore 341

Before Mian Saqib Nisar, J

Haji KHUDA BUKHSH and 9 others---Petitioners

Versus

DEPUTY REGISTRAR, COOPERATIVE SOCIETIES, PUNJAB, LAHORE and 2 others---Respondents

Writ Petition No.1229 of 2006, heard on 20th December, 2006.

(a) Cooperative Societies Rules, 1927---

----Rr. 45-A & 48---Cooperative Societies Act (VII of 1925), S.43---Inquiry by Registrar into affairs of a society---Right of society to be heard before passing of any order by the Registrar---Scope---Such opportunity should not be illusory or an eyewash or just to fulfil requirements of law, rather same must be purposeful and satisfy criteria on touchstone of principles of natural justice.

(b) Cooperative Society Rules, 1927---

----R. 48(1)---Duty of Registrar to give reasons for passing order under R.48(1) of Cooperative Societies Rules, 1927---Scope---Giving of reasons would be sine qua non for validity of such order---Such duty was not purposeless but was meant to circumvent arbitrariness of the authority in taking such a drastic action under R.48 of Cooperative Societies Rules, 1927---Such action could not be taken on extraneous consideration and that too without giving opportunity of hearing to the society to meet the same---Registrar in the garb of such powers available to him under R.48 of the Cooperative Societies Rules, 1927, without giving reasons, could not assume allegations against society to be true---Such order, if lacked reasons and publication in official Gazette, would be liable to be struck down on such ground alone---Principles.

(c) Administrative decision---

----Administrative authority of the State has no power to pass an order affecting the rights of citizens in an arbitrary, whimsical, fanciful and subjective manner.

(d) Administration of justice--

----When law required an act to be done in a particular manner, then same would be performed in such manner alone and not otherwise, and any deviation would render such action as illegal and unlawful.

(e) Cooperative Societies Rules, 1927---

----R. 48---Cooperative Societies Act (VII of 1925), S.43---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Supersession of management of a society by Registrar through an order lacking reasons---Announcement of date for fresh election---If foundation of an action was void, then superstructure built thereon had to fall---Management of society had been superseded through an illegal order, and on its basis election had been called---Dismissal of constitutional petition on ground of announcement of fresh election would amount to endorse such an illegal order, which could not sustain---Present management of society had quite a lot of time as their term and their tenure to hold affairs of society would be unlawfully curtailed by dismissal of constitutional petition---High Court accepted constitutional petition and set aside impugned order in circumstances.

(f) Administration of justice---

----If foundation of an action was void, then superstructure built thereon had to fall.

A.K. Dogar for Petitioners.

Muhammad Ilyas Khan along with Muhammad Hussain Rana, Asstt. Registrar Cooperative Societies, Punjab for Respondents.

Date of hearing: 20th December, 2006.

P L D 2007 Karachi 344

Before Zia Perwaz, J

ABDUL REHMAN---Petitioner

Versus

Mst. HAKIM and another---Respondents

Constitutional Petition No.S-58 of 2007, decided on 9th March, 2007.

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

----Ss. 5 & 10 [as amended]---Object and scope of amendment of West Pakistan Family Court Act, 1964---Object of amendment in West Pakistan Family Courts Act, 1964, is to avoid delay in proceedings and to afford right and remedy available to wife seeking Khula' expeditiously.

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

----S. 10(4)---Framing of issues---Powers of Family Court---Scope---Family Court has power to amend, modify and even reframe issues at any stage of proceedings.

(c) Interpretation of statutes---

----Provisions of law are to be interpreted in a manner as not to defeat the very object of statute.

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

----Ss: 5 & 10(4)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Laches---Dissolution of marriage on the basis of Khula'---Deposit of dower money---Grievance of husband was that after framing of issues, Family Court should not have dissolved the marriage on the basis of Khula', after deposit of dower money by wife---Validity---Object of such dissolution of marriage was to provide specific remedy without any undue delay so as not to keep the wife in a state where she might be deprived of her right to remarry while she was of marriageable age, in addition to mental agony and tension which was the objective to meet the ends of justice in the light of enactment---Even if the husband disputed receipt of dower the wife seeking relief by way of Khula' might deposit the amount of alleged dower in Court and the Court under the circumstances was required to allow dissolution of marriage on the basis of Khula' pending decision regarding controversy of the amount of dower to be adjudicated upon at later stage---Even a frivolous claim for dower amount could become a tool to defeat the objective for which the remedy was provided and thus could defeat the purpose of statute---Judgment and decree passed by Family Court was assailed by husband after a period of 14 months, which suffered from laches---High Court declined to interfere with the judgment and decree passed by Family Court---Constitutional Petition was dismissed in limine.

Muhammad Saleh Bhutto for Petitioner.

P L D 2007 Lahore 346

Before Syed Zahid Hussain, J

MUHAMMAD AND AHMAD (CORPORATE AND TAX COUNSEL) through Muhammad Azhar---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary Home and 6 others---Respondents

Writ Petition No.774 of 2006, decided on 20 December, 2006.

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

----Art. 199-Constitutional petition---Locus standi to file petition---Precautionary measures proposed to curb/meet dangers of fire-crackers and disasters caused by them---Guidelines---Bus carrying a wedding party caught fire due to an explosion inside the same which resulted into loss of 26 persons including women and children and on a motion of petitioners/advocates for suo motu notice of the said tragic incident, Supreme Court treated the same as petition under Art.184(3) of the Constitution and observed that as incident had taken place at Lahore, petitioners could seek relief from Lahore High Court in accordance with law---Petitioners stated that due to carelessness and inefficiency of transport authorities, the bus, which was burnt, seemed to have never been checked by them; that it was criminal on the part of authorities to allow public bus on road with only one exit; that various concerned authorities showed negligence and carelessness in matter of manufacture, sale and use of fire-crackers and other hazardous material; that railway crossings were reportedly unmanned and carelessly watched; that fire-fighting system was very outdated and in the said incident fire brigade reached afflicted spot after damage had been done; that in emergencies the movement of ambulances, fire brigades and other rescue authorities had to be free and unrestricted while moving on roads---Validity---Locus standi of petitioner in view of conditionalities of Art.199 of the Constitution, stricto senso, could be questioned, however, in view of order passed by Supreme Court, notices were issued to respondents---High Court laid down the precautionary measures to be adopted by State functionaries for averting such incidents in future: (i) Gaseous glass be used for window panes as normal glass used for window fitted into iron/steel frames, could result in fatal injuries to victims in given situation: (ii) foam' be used to put out fire as water was not very effective on Chemical (sulphur) used in manufacture of fire-crackers; (iii) campaign through media should immediately begin to publicize and apprise disastrous effects of use of fire-crackers etc. on occasions such as marriages; (iv) registration law should be amended to make adequate provisions on the point of permission and user of fire-crackers; (v) local Nazims instead of police be employed to locate premises where fire-crackers were stored and (vi) ingredients and chemicals etc. used in manufacture in fire-crackers should also be studied and their composition and ratio ascertained and compared with other countries where fire-crackers etc. are manufactured for ceremonious occasions such as Guy Fox day in England---Constitutional petition was decided accordingly.

(b) Punjab Emergency Service Act (IV of 2006)---

----S. 5---Constitution of Pakistan (1973), Arts. 199 & 9---Constitutional petition---Emergency situations---Significance and preservation of human life---Scope---Duties and obligations of State functionaries---High Court recommended to the Government to prescribe appropriate guidelines laying down ways, means and measures so that everyone charged with administration performs his duty and functions aptly.

High Court recommended to the Government to prescribe appropriate guidelines laying down ways, means and measures so that every one charged with administration performs his duty and function, aptly:

"(i) It is a matter of common knowledge that even when there is extreme emergency very often, the emergency vehicles/ Ambulances do not find way to reach the destination due to the heavy load and rush of traffic on the road. The Government needs to pay heed to this evergrowing chaotic situation and traffic problem on the roads. The widening of roads, removal of encroachments and bottlenecks, construction of underpasses, strict observance of traffic rules and discipline may be of some help and relief in this regard;

During VVIP movement when traffic is stopped on certain roads and diverted to the others, it should be ensured that emergency service vehicles, fire brigade vehicles and ambulances are given way without any hindrance, Police force particularly Traffic Personnel should have clear instructions in this regard;

There is also a need to extend the fire brigade network/services keeping in view the expansion of the city/population. The authorities including the City Government and Town Administrations, the other Authorities like Development Authority while sanctioning new development schemes should ensure the provision of fire brigade sites and stations in such localities;

The relevant Departments of the Government should maintain record of stores/shops/premises where explosive material is housed or sold. Observance of safety regulations and arrangements should be ensured by strict vigilance and supervision;

Apart from use of crackers at the wedding parties/functions, firing has also become a common feature these days, notice of which can be taken even by the local police. Their little vigilance and supervision can bring about positive results and loss of lives can be avoided.

It has come on record that construction of overhead bridge at Mughalpura Railway Crossing (Lahore) is under consideration with the Government of Punjab and feasibility was being prepared for this purpose. The implementation of such project can be expedited to alleviate the suffering problem of public."

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

----Art. 9---Right to life---Under Art.9 of the Constitution, the word `life' was very significant as it covered all facets of human existence and a person was entitled to protection of life from being exposed to such hazards as might be A due to installations like Grid Stations, Power - Stations, Gas Stations etc.---State was not only to refrain from intentional and unlawful taking of life but also to take appropriate steps to safeguard lives of those within its jurisdiction---State obligation extended beyond its primary duty to secure right to life by putting in place effective criminal law provisions to deter commission of offences against persons backed up by law enforcement machinery for prevention, suppression and sanctioning of breaches of such provisions---State was to protect an individual whose life was at risk from criminal acts of another individual---Providing adequate medical facilities for people was an essential part of obligations undertaken by government in a welfare State---Government discharged this obligation by running hospitals and health centres which provided medical care to person seeking to avail those facilities---Preservation of human life was thus of paramount importance---Government hospitals run by State and medical officers employed therein were duty-bound to extend medical assistance for preserving human life---Failure on the part of government hospital to provide timely medical treatment to a person in need of such treatment would result in violation of his right to life guaranteed under the Constitution---Section 5 of Punjab Emergency Service Act, 2006, provided guideline to meet emergency situations and its proper management---High Court prescribed some other appropriate guidelines laying down ways, means and measures so that every one charged with administration performed his duty and function aptly---Constitutional petition was decided accordingly.

Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Judicial Review of Public Actions by Justice (R) Fazal Karim, Vol. 1, p.587; Pt. Parmanand Katara v. Union of India and others AIR 1989 SC 2039 and Paschim Banga Khet Mazdoor Samity and others v. State of West Bengal and another AIR 1996 SC 2426 rel.

(d) Words and phrases---

----`Emergency'---Meaning---Emergency means serious and potentially dangerous situation requiring immediate action such as an accident, hazardous material incident, fire, explosion, natural or man made disaster.

Muhammad Azhar for Petitioners.

Dr. Danishwar Malik, Deputy Attorney General for Pakistan, Aamir Rehman, Addl. A.-G. Punjab and Khawaja Muhammad Afzal, Legal Advisor City District Government, for Respondents.

Date of hearing: 20th December, 2006.

P L D 2007 Karachi 347

Before Nadeem Azhar Siddiqi, J

ALI NAWAZ---Applicant

Versus

AZIZULLAH through Legal Heirs---Respondents

Civil Revision No.38 of 2006, heard on 26th February, 2007.

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

---O. VII, R.11---Rejection of plaint---Scope---Factors essential to be considered or ignored stated.

A plaint under Order VII, Rule 11, C.P.C. can be rejected, if came within the mischief thereof and for rejecting the plaint, the whole contents of the plaint have to be treated as true on their face value. The factual inquiry cannot be undergone and the matter, which requires evidence, cannot be considered.

The plaint cannot be rejected for want of evidence or proof in support of claim in the plaint.

The plaint cannot be rejected on the basis of vagueness in pleadings or for want of better, particulars, and instead of rejecting the plaint; the Court should provide an opportunity to plaintiff to amend the plaint under Order VI, Rule 17, C.P.C.

The question as to whether the plaintiff will be able to prove the case at the trial is irrelevant and cannot be considered for rejecting the plaint.

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

---S. 20(c) & O.VII, R.11(1)---`Cause of action'---Meaning---Cause of action means giving rise for a claim or right of plaintiff against defendant to enable Court to give its decision thereon.

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

---S. 115---Concurrent finding of fact, if arrived at by courts below by committing an error of law causing grave injustice, then High Court could interfere in revisional jurisdiction---Principles.

Normally a concurrent finding of fact cannot be interfered in revisional jurisdiction. However, in arriving at a question of fact, if the Courts below have committed an error of law, which caused grave injustice, then High Court can interfere in revisional jurisdiction.

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

----O. VII, R.11---Rejection of plaint on a ground not covered by provisions of O.VII, R.11, C.P.C. would be an exercise of jurisdiction not vested in Court.

Zulfiqar Ali Sangi for Applicant.

Nemo for Respondents.

Date of hearing: 26th February, 2007.

P L D 2007 Karachi 350

Before Rahmat Hussain Jafferi and Muhammad Afzal Soomro, JJ

NAND LAL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.367 of 2004, decided on 12th March, 2007.

Drugs Act (XXXI of 1976)---

----S. 27(4)---Appreciation of evidence---Benefit of doubt---Best piece of evidence which was property in question, itself, was not produced by prosecution before the Trial Court---If the best piece of evidence available with the party was withheld from the court, then the party had some motive behind such action---Witnesses were not provided with opportunity to verify as to whether the property produced before the court was the same property which was secured from the godown so as to connect same with accused---Prosecution having withheld said piece of evidence, adverse inference could validly be drawn in the case, which would materially and adversely affect the prosecution story---Said property was not sent to Government Analyst to find out whether same was 'drug' within the meaning of Drugs Act, 1976---Such aspect of the case had also adversely affected the prosecution case---Prosecution did not produce property, which was the basis on which case was initiated---Prosecution also did not produce expert's report to show that alleged property was the drug within the meaning of Drugs Act, 1976---Without such evidence solitary statement of Drugs Inspector on the subject, could not be safely relied upon---Ocular testimony, in circumstances was insufficient to convict accused---Drug Court did not take cognizance on the challan submitted by the police, but took cognizance on the direct complaint filed by the Drug Inspector after obtaining required permission from the competent Authority---Prosecution having failed to prove case against accused beyond any reasonable doubt, he was entitled to the benefit of doubt, which was accordingly given to him.

1998 PCr.LJ 181; NLR 2000 Criminal 251 and NLR 2000 Criminal 454 rel.

Wazir Hussian Khoso for Appellant.

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

Date of hearing: 7th March, 2007.

P L D 2007 Karachi 353

Before Nadeem Azhar Siddiqi and Munib Ahmad Khan, JJ

IQBAL AHMAD and others---Petitioners

Versus

GOVERNMENT OF SINDH through Secretary, Home Department, Karachi and others---Respondents

Constitutional Petitions Nos. D-94, D-97, D-99, D-101, D-102 and D-103 of 2007, decided on 30th March, 2007.

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

----Art. 199---Constitutional petition---Laches---Applicability---Scope.

Laches alone is not sufficient to dismiss the petitions if the petitioners have otherwise a good case on merits. In absence of a bar of limitation, the period within which such remedy is to be sought is to be reasonable one and element of due diligence is to be kept in mind. The important fact is that delay should never be such as to generate a belief or situation of abandonment of the right because, then, vested rights come into operation which cannot be deviated from. Question of laches in petitions is always considered in the light of conduct of the person invoking the constitutional jurisdiction of High Court. The petitioners have to explain the reasons for not approaching the Court within reasonable time and in absence of any cogent explanation, the interference can be refused on the ground of laches.

Question of laches is to be examined on equitable principle for the reason that a discretionary relief in exercise of constitutional jurisdiction is always granted in the name of equitable relief, if equity leans in favour of petitioner the discretion is to be exercised in his favour.

If Courts come to the conclusion that equity leans in favour of petitioner, the Courts should exercise discretion in favour of such party. However, if the Courts find that party invoking writ jurisdiction of the High Court is guilty of contumacious lethargy, inaction, laxity or gross negligence in the prosecution of a cause for enforcement of right, the Court would be justified in non-suiting such person on the premise of laches.

The laches operate in equity and in case of laches, the dictates of justice and equity are to be weighed as the legitimate rights, cannot be denied on the ground of laches unless it is found that it will cause injustice to the opposite party but, a person can be non-suited on the basis of laches if due to his negligence, rights were created in favour of opposite party.

Government of Sindh v. Abdul Jabbar 2004 SCMR 639; S.A. Jameel v. Secretary Government of Punjab 2005 SCMR 126 and Masooda Begum v. Government of Punjab PLD 2003 SC 90 ref.

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

----Art. 199---Constitutional petition---Civil service---Appointment---Contention of the petitioners was that they had cleared all tests but had failed to produce any documents to show that they had cleared interview/viva voce and had been recommended for appointment---Effect---In absence of any proof in that regard petitioners were not entitled to appointment---Petitioners were guilty of contumacious lethargy, inaction, laxity and gross negligence in the prosecution of a cause for enforcement of their rights and had themselves created a situation of abondonment of their right---Petitioners were not diligent in safeguarding their interest and by their lapse a right had been created in favour of the respondents and the other persons who were- appointed in place of the petitioner and were not brought before the Court---Appointments, in the present case, were to be made in the year 1995 from amongst persons who were aged between 18 to 28 years---If the ages of petitioners were treated as 18 years in 1995 after lapse of 12 years all of them had crossed the upper limit of 28 years and were not eligible for appointment---Constitutional petition was dismissed in circumstances.

Ali Azhar Tunio for Petitioners (in C.Ps.Nos.D-94/2007, 99/2007 and 103/2007).

Aftab Ahmed Gorar for Petitioner (in C.Ps.Nos.D-97/2007 and 101/2007).

Muhammad Saleed Jassar for Petitioner (In. C.P. No.D-102/ 2007).

P L D 2007 Karachi 358

Before Nadeem Azhar Siddiqi, J

IMAM BUX and others---Applicants

Versus

DAIM and others---Respondents

Civil Revision No.108 of 1988, heard on 18th August, 2006.

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

----O. XIII, Rr. 1 & 4---Original postal receipts and acknowledgment, though available on record, but not produced in evidence and exhibited--Evidentiary value---Non-production of documents according to provisions of C.P.C. would be merely an irregularity---Certified copies of such receipts were also available on record---Nothing in law to prevent court from looking into such documents even if they were not exhibited, provided they have been placed on record by party concerned---Court not considering original documents available on record would commit an error.

Nathe Khan v. Mst. Rehmat Bibi and others PLD 1961 (W.P.) BJ 96 rel.

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

----S. 106---Notice under S.106 of Transfer of Property Act, 1882---Necessity---Such notice would be necessary, when other party claims himself to be tenant.

(c) Pakistan Administration of Evacuee Property Act (XII of 1957)---

----S. 16(a)-Decree of civil court would be necessary to seek protection under S.16(a) of Pakistan (Administration of Evacuee Property) Act, 1957.

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

----S. 54---Agreement of sale---Validity---Such agreement would not create any title or vested right in favour of vendee.

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

----O. VI, R.17 & O. VIII, R.9---Plea not raised in original written statement raised in amended written statement without leave of Court---Validity---Defendant could not change or alter plea raised in original written statement---New plea raised without permission of Court could not be considered and would be ignored.

Syed Bahadur Ali Shah for Applicants.

Nemo for Respondents.

P L D 2007 Lahore 359

Before Hasnat Ahmad Khan, J

THE STATE---Petitioner

Versus

MASKEEN ALI and others---Respondents

Criminal Original No. 1 of 2007 (Suo Motu), decided on 6th January, 2007.

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

----Art. 204---Contempt of Court Act (LXIV of 1976), Ss.3 & 4---Contempt of Court---Apology---Sincere apology is normally to be accepted---Apology if found to be sincere is normally accepted as High Court is never vindictive and it always takes due notice of sincere apology.

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

----Art. 204---Contempt of Court Act (LXIV of 1976), Ss. 3 & 4---Contempt of Court---Apology---Apology when not to purge the offence---Apology not tendered in written form and the accused simply seeking forgiveness, such type of apology cannot purge the offence and the same cannot be accepted.

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

----Art. 204---Contempt of Court Act (LXIV of 1976), S. 4---Contempt of Court---Punishment---Contemnor cannot claim acquittal as a matter of right---Leniency is shown by way of grace and concession only.

The State v. Rana Muhammad Akram 1983 PCr.LJ 188 rel.

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

----Art. 204---Contempt of Court Act (LXIV of 1976), Ss. 3, 4 & 7,-Contempt of Court---Proceedings, nature of---Proceedings in contempt matters are sui generous and are species of its own kind---Same are neither civil nor criminal in nature, but are quasi criminal proceedings---Allegation in the nature of contempt shall not be dealt with like a criminal charge as laid down in Criminal Procedure Code, 1898.

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

---Art. 204---Contempt of Court Act (LXIV of 1976), S. 4--Contempt of Court---Apology---Mitigating circumstance---Contemnor respondent had played the leading role while disobeying and disregarding the order of High Court and misbehaving with the Bailiff calling him as a Dacoit and also uttered innocuous remarks against High Court--Said contemnor had, thus, committed gross contempt of court amounting to impairing the dignity and authority of High Court and he was found to be guilty of interference with the administration of justice and process of law---Besides, the contemnor had caused fist below to the petitioner of the habeas corpus petition while he was under the umbrella of the Bailiff---Apology was neither tendered at the earliest nor the same was found to be sincere, which was mechanical and not sufficient to purge the contemnor from the wilful non-compliance and disobedience of the orders of High Court---Contemnor had tendered the apology in order to escape the punishment---Court had to uphold the dignity, decorum and authority of the Court to see that the process, direction and orders issued by it were enforced throughout the Province and in case of disobedience and disregard shown on the part of any person, High Court would not be reluctant to act in accordance with contempt law to punish wrong doers---Contemptuous act of the contemnor respondent demanded full dose of sentence, but he did not opt to contest the petition and threw himself at the mercy of the Court, his apology was treated as a mitigating circumstance and he was convicted under Article 204 of the Constitution read with S.4 of the Contempt of Court Act, 1976, and sentenced to two months simple imprisonment with a fine of Rs.4,000 or in default to suffer further simple imprisonment of fifteen days.

PLD 1999 Lah. 156; 2002 SCMR 1623; Raja Munawar v. The State 1990 SCMR 215; PLD 1964 SC 562 and PLD 1989 Kar. 264 ref.

The State v. Rana Muhammad Akram 1983 PCr.LJ 188 rel.

(f) Constitution of Pakistan (1973)---

----Art. 204---Contempt of Court Act (LXIV of 1976), S. 4---Contempt of Court---Apology---Mitigating circumstance---Respondents had misbehaved with the Bailiff of the Court and also failed to appear before High Court and despite having received notices did not cause appearance of the detenue on the first date and she was only produced in the Court after non-bailable warrants were issued against them---Respondents thus, were liable for the offence of Contempt of Court, but their role was of lesser degree than that of the principal co-accused, and the apology tendered by them was 'treated as a mitigating circumstance---Respondents were accordingly convicted under Art. 204 of the Constitution read with S.4 of the Contempt of Court. Act, 1976, and sentenced to fifteen days simple imprisonment with a fine of Rs.1,000 each or in default to undergo five days simple imprisonment further.

PLD 1999 Lah. 156; 2002 SCMR 1623; Raja Munawar v. The State 1990 SCMR 215; PLD 1964 SC 562 and PLD 1989 Kar. 264 ref.

The State v. Rana Muhammad Akram 1983 PCr.LJ 188 rel.

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

----Art. 204---Contempt of Court Act (LXIV of 1976), S. 4---Contempt of Court---Apology---Mitigating circumstance---Respondent Sub-Inspector of Police had confessed his guilt and though contempt of Court was being committed right in his presence, yet he remained as a silent spectator and failed to provide necessary assistance to the Bailiff and in this way he abetted the offence and became cause of lowering the authority of High Court and bringing the same into disrespect---Said police officer had become an instrument in prejudicing the process of law---Apology of the contemner being not sincere was not accepted, but the same was treated as a mitigating circumstance and he was convicted under Art.204 of the Constitution read with S.4 of the Contempt of Court Act, 1976, and sentenced to fifteen days simple imprisonment with a fine of Rs.1,000 in default whereof to suffer five days simple imprisonment---Respondents constables had also admitted their guilt, but they being under the command of their superior police officer their role was much lesser and they were convicted under the aforesaid provisions of law and sentenced to imprisonment till rising of the Court.

Ch. Aamir A. Rehman, Addl. A.G./Prosecutor for the State/Petitioner.

S. Hammad Raza for Private Respondents.

Saiful Malook for Police Officials.

P L D 2007 Karachi 362

Before Anwar Zaheer Jamali and Muhammad Athar Saeed, JJ

REX TALKIES (PVT.) LTD. and another---Appellants

Versus

SAMIR OOSMAN and 2 others ---Respondents

C.M.As. Nos. 1607, 1641, 1749 of 2006 in High Court Appeal No.122 of 1997, decided on 4th April, 2007.

(a) Civil Procedure Code (V of 1905)---

----O. XLI, R.19, O.IX, R.9, Ss.107 & 151-Dismissal of appeal for non-prosecution---Application for restoration of appeal---Appeal, in the present case, preferred against an interlocutory order remained pending for a period of almost nine years before its dismissal for non-prosecution and during such long period, on the basis of interim order passed in their favour, the execution/implementation of the action proposed in the impugned order was successfully avoided by the appellants-Proceedings of the case showed that all this was done by the appellants in a calculated manner to avail maximum benefit of the interim order, to the prejudice of the interest of the respondents, who were pursuing a cause of public interest viz. objecting to the raising of unauthorised construction--Chequered history and salient features of the case were sufficient to demonstrate that throughout its proceedings appellants were non-serious in seeking adjudication of the appeal on merits---No satisfactory explanation had been offered by the appellants or their counsel, about the compelling reasons due to which the counsel was unable to proceed with the appeal, causing delay in the proceedings of the appeal---Record was palpably clear to the effect that the absence of senior counsel (subsequently engaged by the appellants), pleaded by the appellants to seek recall of order of dismissal of appeal for non-prosecution, was just a pretext and misuse of senior counsel's name---Such fact further found support from the record, which showed that said senior counsel had not come forward to support the plea of appellants by filing his personal affidavit to the effect that it was he, who was to proceed with the appeal or that for this purpose he was contacted by the appellants to be present in the Court on the date when appeal was dismissed for non­-prosecution---Even when the senior counsel, was one of the counsel for the appellants the other counsel engaged by the appellants was bound to proceed with the appeal till such time he withdrew his power or it was revoked/cancelled by his client according to rules---When the appeal was dismissed for non-prosecution no plausible explanation was offered by the counsel for not proceeding With the appeal, and even after passing of such order till this date, he had not come forward to explain his position in this regard---Held, conduct of counsel for not proceeding with the appeal on the date of its dismissal for non-prosecution, was deliberate and without any sufficient cause, therefore, it disentitled the appellants for any indulgence or lenient view in the matter---In present case if the appellants had suffered any loss due to such conduct of the counsel, option was available to them to sue the counsel for the damages, which they might have suffered due to such conduct of their counsel---When the appellants had engaged more than one counsel, then each of his counsel was bound to represent him, and failure of one of the counsel to appear in Court, even if explained, would not justify an order of restoration---Mere engagement of counsel by a party would not absolve him of his personal obligation to pursue the case vigilantly---Satisfactory explanation was to be offered both by the appellants and their counsel for seeking restoration of appeal---Law favoured adjudication of cases on merits rather than on technicalities, thus as far as possible, of course looking to the facts and circumstances of each case, this should be the approach of all judicial forums---Nevertheless Court, in the exercise of discretion in this regard was required to be fair with the rival parties and to have rational balance in its approach in a way that no party should be allowed to misuse the indulgence or concession shown by the Court so as to make the whole system an abuse of process of law---Application for restoration of appeal was dismissed in circumstances.

Imtiaz Ali v. Ghulam Ali PLD 1963 SC 382; Ex-H.A.V. Mirza Mushtaq Baig v. Central Court Martial 1994 SCMR 1948; Hayat Khan and others v. Abdul Razzaq and others 2003 SCMR 1940, and Zulfiqar Ali v. Lal Din 1974 SCMR 162 fol.

PLD 1966 SC 467; PLD 1965 SC 669; 1985 SCMR 2064; PLD 1992 SC 577; 1989 SCMR 2056; PLD 1988 Kar. 154; PLD 1990 Kar. 227; AIR 1940 All. 248; 1976 SCMR 366; 1982 SCMR 1229; 1984 SCMR 910; 1985 SCMR 333; 1994 SCMR 1948; PLD 2001 SC 49; 2001 CLC 1559; PLD 2006 Kar. 252; 35 IC Pat. 429; 2003 SCMR 194; Imtiaz Ali v. Ghulam Ali PLD 1963 SC 382; Ex-H.A.V. Mirza Mushtaq Baig v. Central Court Martial 1994 SCMR 1948; Hayat Khan and others v. Abdul Razzaq and others 2003 SCMR 1940 and Zulfiqar Ali v. Lal Din 1974 SCMR 162 ref.

(b) Counsel and client---

----Even when the party had engaged a senior counsel, the other counsel engaged by the party was bound to proceed with the case till such time he withdrew his power of attorney or it was revoked/cancelled by his client according to rules---Mere engagement of a counsel by a party would not absolve him of his personal obligation to pursue the case vigilantly.

(c) Administration of justice---

----Law favours adjudication of cases on merits rather than on technicalities, thus as far as possible, of course looking to the facts and circumstances of each case, this should be the approach of all judicial forums---Nevertheless, in the exercise of discretion in this regard the Courts are required to be fair with the rival parties and keep a rational/balance in their approach in a way that no party should be allowed to misuse the indulgence or concession shown by the Courts so as to make the whole system an abuse of process of law.

Imtiaz Ali v. Ghulam Ali PLD 1963 SC 382; Ex-H.A.V. Mirza Mushtaq Baig v. Central Court Martial 1994 SCMR 1948; Hayat Khan and others v. Abdul Razzaq and others 2003 SCMR 1940 and Zulfiqar Ali v. Lal Din 1974 SCMR 162 ref.

Rasheed A. Razvi for Appellants.

Bilal Shoukat for Respondent No.1.

P L D 2007 Lahore 368

Before Sardar Muhammad Aslam, J

GHULAM NABI, SUB-INSPECTOR POLICE and 10 others---Petitioners

Versus

SHAUKAT ALI and another---Respondents

Criminal Revision No.895 of 2004, decided on 8th February, 2007.

Penal Code (XLV of 1860)---

----Ss.302, 148 & 149---Negligence in attending to murder cases by witnesses causing delay---Modes to be adopted by Courts started---Adjournment granted to accused---Subject to payment of diet money---Validity---Prosecution witnesses on the date fixed for evidence, were present, but counsel for accused was not in attendance---Adjournment was allowed to accused subject to imposition of diet money which was directed to be paid by accused to prosecution witnesses---In view of growing tendency of negligence in attending to murder cases which was the main cause of delay, three modes could be adopted (i) granting last opportunity to accused to produce his counsel (ii) recording examination-in-chief of the witnesses in absence of accused counsel and reserving right of cross-examination and if not conducted on the adjourned date and (iii) providing a defence counsel at State expense---Imposition of fine on accused for absence of counsel finds no place in Criminal Procedure Code, 1898---Trial Court, in circumstances had travelled beyond its jurisdiction in the case---Impugned order was set aside---Fine, if realized, was to be refunded to accused/petitioners.

Beedha-accused v. Emperor through Bhagirath AIR 1922 All. 184(1) rel.

Arshad Hussain Bhutta for Petitioners.

Rai Bashir Ahmad for the Complainant.

Ch. Muhammad Suleman, Addl. A.G. for the State.

Date of hearing: 1st February, 2007.

P L D 2007 Lahore 370

Before Iqbal Hameed-ur-Rehman, J

SABIN BIBI---Petitioner

Versus

STATION HOUSE OFFICER and others---Respondents

Writ Petition No.480 of 2007, decided on 15th February, 2007.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 154---Constitution of Pakistan (1973), Art.199---Constitutional petition--Powers of High Court to order the recording of second F.I.R.---Scope---Petitioner who claimed to be cousin of deceased owner of land in dispute, had alleged that deceased was issueless and respondent on the pretext of obtaining agricultural loan, in connivance of his brother got executed general power-of-attorney by deceased in his favour; that he with connivance of other respondents murdered deceased owner; that petitioner and her other two sisters who were legal heirs of deceased tried to lodge F.I.R. against respondents but S.H.O. refused to record statement of petitioner/complainant; that on filing petition by petitioner under S.22-A, Cr.P.C. before Justice of Peace for registration of second F.I.R. despite submission of comments by S.H.O. in compliance with direction of Justice of Peace, no order for registration of second F.I.R. was given by Justice of Peace---Validity---Court of law, though normally use restraint to exercise discretionary powers under Art.199 of Constitution to order registration of second F.I.R. in presence of alternate remedies such as filing of private complaint or recording of version of aggrieved party through statement during the course of investigation of existing F.I.R., but no hard and fast rule existed that a second F.I.R. could not be registered in respect of different version given by an aggrieved party of the same occurrence, if it was not merely an extension to the first version---High Court while exercising constitutional jurisdiction was not obliged to hold fact finding inquiry, but jurisdiction could be exercised in good faith, fairly, justly and reasonably having regard to all relevant circumstances---Justice of Peace though directed S.H.O. concerned to record statement of petitioner in the registered case and proceed strictly in accordance with law, but in given circumstances same was not sufficient to redress the grievance of petitioner---Petitioner having been able to make out a case for registration of second F.I.R., S.H.O. was directed by the High Court to perform his legal obligation and register second F.I.R. on the statement of petitioner and proceed strictly in accordance with law.

Mst. Anwar Begum v. Station House Officer, Police Station Kalri West, Karachi and 12 others PLD 2005 SC 297 and Mrs. Ghanwa Bhutto and another v. Government of Sindh and another PLD 1997 Kar. 119 ref.

Sh. Usman Hamood Khan for Petitioner.

Zafar Ullah Khan Khakwani, A.A.-G. with Zahoor Ahmad S.-I. with record.

Syed Mohtashamul Haq Pirzada for Respondent No.2.

P L D 2007 Lahore 374

Before Syed Zahid Hussain, J

MAKARWAL COLLIERIES LTD. Through Chairman---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary, Industries, Mines and Minerals Department, Lahore---Respondent

Writ Petition No.19018 of 2005, heard on 16th January, 2007.

Punjab Mining Concession Rules, 1986---

----R. 52(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Mining leases---Enhancement of rates of royalty---Imposition of penalty---Petitioner/lessee who was holding five mining leases was paying royalty---Subsequently rates of royalty were amended/enhanced and said enhancement though was notified and published in official Gazette of the Government, but Directorate did not duly inform lessee about the enhanced rates---Notices were issued to petitioner to clear outstanding dues and penalty was imposed on him for his failure to pay royalty on enhanced rates---Petitioner deposited royalty amount immediately, but protested the imposition of penalty and requested for waiver thereof---Request of petitioner was turned down---Validity---Petitioner had not only paid the difference of royalty, but also cleared the amount of penalty inflicted under protest---Penalty was chargeable under R.52(2) of Punjab Mining Concession Rules, 1986 for non-payment of rent and royalty dues---Case of petitioner was not of non-payment as he had been making payment, though at old rates---Contributory conduct of Department also assumed relevance as it had continued accepting payment at the old rates of royalty---Petitioner, in circumstances could not be saddled with element of obstinacy and default and he having acted in good faith and having paid the dues immediately on intimation, was not liable to penalty.

Messrs Pioneer Cement Ltd. v. Secretary, Industries and Mineral Development Department, Lahore and others 2004 SCMR 576 ref.

Nadeem Ahmad Sheikh for Petitioner.

Aamir Rehman, Addl. A.-G., Punjab with Abdul Majeed Khan, Superintendent for Respondent.

Date of hearing: 6th January, 2007.

P L D 2007 Lahore 377

Before Mian Saqib Nisar, J

MUHAMMAD ZAHID PERVAIZ---Petitioner

Versus

MUHAMMAD SHAFQAT IQBAL---Respondent

Civil Revision No.201 of 2007, decided on 6th February, 2007.

(a) Administration of justice---

----Wrong mentioning of the correct provision of law does not disentitle the litigant from the appropriate relief available to him, because it is the duty of the Court to apply the correct law to grant the proper relief.

(b) Punjab Pre-emption Act (IX of 1991)---

----Ss. 6 & 13---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Constitution of Pakistan (1973), Art. 23---Pre-emption suit---Temporary injunction, grant of---Injunctive order not to be lightly granted regarding the suit property which is a bare land and the claim of plaintiff/pre-emption is to simply restrain the vendee/defendant from the improvement of his property till the final decision of the case---Even if the pre-emptor has prima facie established his right of pre-emption on the record, still the owner of the property cannot be put, under restraint to use his property, which may tantamount to the breach of his fundamental right as enshrined by Art.23 of the Constitution---Where, however, a suit for the pre-emption has been filed with regard to any property having a superstructure, which is a part of the sale and the vendee intends to demolish the superstructure in order to defeat the right of substitution of the pre-emptor, Court may, on the basis of the facts of the case, grant injunction---Plaintiffs in the present case, wanted to prevent the vendee from improving his property by raising the construction, apprehending that in that manner, the access to the plaintiff's land shall be somewhat hindered---Plaintiff had neither been able to prove the said plea nor the existence of any right of easement from the suit-land nor had been able to show any obligation on the part of the vendee not to raise the construction over the property which he had validly purchased---High Court, in circumstances, declined to interfere in refusal of injunctive order to the plaintiff---Principles.

S.M. Masud for Petitioner.

P L D 2007 Lahore 380

Before Syed Zahid Hussain, J

ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Ministry of Kashmir Affairs--Appellant

Versus

FAKHAR-UD-DIN through Legal Represented and others---Respondents

Regular Second Appeal No.8 of 2002, heard on 8th January, 2007.

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

----S. 3---Limitation---Duty of Court---Scope---Court is to advert to question of limitation.

Dilmir v. Ghulam Muhammad PLD 2002 SC 403 and Province of the Punjab through Member Board of Revenue, (Residual Properties), Lahore and others v. Muhammad Hussain through Legal Heirs and others PLD 1993 SC 147 rel.

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

----S. 12---Limitation Act (IX of 1908), S.3---Civil Procedure Code (V of 1908), O.XLI, R.33 & S.100---Suit for specific performance of agreement to sell---Non-raising of plea of limitation---Effect---Powers of Appellate Court---Interlocutory application, decided by Trial Court---Authorities in year, 1967, called upon plaintiff to sign agreement regarding suit property but no such agreement was signed between parties---Suit for specific performance of agreement to sell filed by plaintiff in year, 1974, was decreed in favour of plaintiff in year, 1980 and first appeal was also decided in his favour---Plea raised by authorities was that suit was barred by limitation and Court itself should have taken notice of the same---Authorities also contended that amendment in written statement was sought wherein limitation of the case was highlighted but the application was dismissed---Validity---Held, it was incumbent upon Trial Court to have framed issue regarding question of limitation particularly when application was moved before it seeking amendment in written statement to such effect---Mere observation that matter would be considered at the time of decision of the suit was not enough to meet the ends of justice---Such amendment in written statement was fully justified in order to determine controversy between parties and delay itself in making application could not stand in the way of court to permit such amendment---Court could compensate other side by awarding reasonable costs---Though order, whereby amendment in written statement was declined by Trial Court was not assailed any further through revision etc. being not appealable order, yet Appellate Court was not bereft of power to examine correctness of the same while hearing appeal against final judgment/decree---When amendment in written statement was declined on erroneous premises and issue of limitation was not framed by Trial Court, general observations made by two courts below in their judgments were of no legal efficacy---Judgments of both the courts below were set aside and High Court allowed the authorities to carry out amendment in written statement subject to costs---Case was remanded to Trial Court for decision afresh---Second appeal was allowed accordingly.

Fazal-ur-Rehman v. Ahmed Saeed Mughal and others 2004 SCMR 436: Muhammad Akram alias Akan v. Mst. Pathani through Legal Heirs and 5 others 2001 MLD 1037; Miran alias Mir Muhammad v. Ghulam Hussin PLD 1985 Kar. 674; Eada Khan v. Mst. Ghanwar and others 2004 SCMR 1524 and Bashir Ahmed and others v. Akbar All and others 2005 MLD 283 ref.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345; Mst. Khurshid Begum and others v. Ahmad Bakhsh and others PLD 1985 SC 405 and Ch. Abdul Rashid v. Ch. Muhammad Tufail and others PLD 1992 SC 180 rel.

Muhammad Rafiq Shad for Appellant.

Rana Muzaffar Hussain for Respondents.

Date of hearing 8th January, 2007.

P L D 2007 Lahore 385

Before Mian Saqib Nisar, J

Messrs AKBAR BROTHERS through Managing Partner---Appellant

Versus

M. KHALIL DAR through Legal Heirs---Respondents

S.A.O. No.139 of 2003, heard on 14th December, 2006.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 2(c)(d), 13 & 15---Default in payment of rent---Denial of relationship of landlord and tenant-'Landlord'-Meaning-Power of attorney given by principal (owner of property) to agent/attorney---Death of principal---Effect---Second appeal in rent matter---Scope---Landlord filed ejectment petition against tenant on ground of default in payment of rent---Tenant denied relationship of tenancy and stated that property in question was owned by a lady not by applicant/landlord who had only rented out property to tenant as an agent/attorney for the lady and that relationship of landlord and tenant only existed between tenant and the lady and not with the agent---Rent Controller accepted ejectment petition and appeal filed thereagainst was dismissed by lower Appellate Court---Legal heirs/representatives of deceased landlord (principal), after his death, moved an application to be impleaded as party which was objected to by tenant contending that they were not legal representatives because property was owned by the landlady and legal heirs of attorney could not be so arrayed---Tenants argued that the present appeal was incompetent because property in question was residential bungalow and second appeal under law had only been provided for non-residential property---Validity---Property in question was rented out by attorney of the lady to tenant and physical possession was also handed over to the latter by the former---Tenant had been making payment of rent to attorney of the lady---No document had been produced by tenant to show that tenancy was in the name of the lady and it was she who was entitled to receive rent from him---Even cheque was issued in the name of son of deceased (attorney) which was dishonoured and a letter was also addressed by tenant to the attorney (son of deceased applicant)---Statements of applicant's witnesses as to factum of tenancy were not crossed by tenant in spite of availing opportunities to that effect---Deposition made in examination-in-chief, if not subjected to cross-examination, were to be deemed to have been admitted---Such statements once admitted by tenant, no stance could be maintained by him about lack of tenancy with attorney of the lady---Evidence of tenant was stereotype in nature and affidavits seemed to have been prepared by someone else and contained the same language---Affidavits were even beyond the scope of pleadings set out in written reply---Affidavits when read in conjunction with cross-examination, the plea of tenant stood defeated because in cross-examination it was admitted by tenant himself and his witnesses that property was procured on rent from attorney of the lady and rent was being paid to him---Facts were quite adequate to establish tenancy and its denial seemed to be contumacious and was propounded to take advantage of absence of actual owner of property from Pakistan---To be a landlord of property, it was not necessary that person should also be the owner, rather he should be entitled to receive rent for the time being---Word "landlord" was not limited to true owner but included an agent, trustee, guardian, receiver, executor and administrator receiving rent on behalf of owner and any person who might be entitled to receive rent for the time being on his own account---Contention of the tenant that on account of death of the lady, the general power of attorney formerly executed in favour of her son and special power of attorney in favour of applicant landlord stood revoked and therefore applicant landlord ceased to be agent of owner and could not sustain and pursue ejectment application, had no relevance because it was applicant who was landlord of property and irrespective of the question whether power of attorney given to him had lost its efficacy or stood annulled on account of death of principal, he continued to be landlord of property as far as present tenancy was concerned---Applicant when had been held to be landlord of tenant obviously his legal representatives would be legally entitled to be substituted after his death---Objection of landlord that present appeal was incompetent because property in question was a residential bungalow and second appeal under law had only been provided for non-residential property had no force because property was rented out to tenant for commercial purpose and in terms of S.2(d) of the West Pakistan Urban Rent Restriction Ordinance, 1959, it was non-residential building regarding which second appeal could be competently filed---Appeal was dismissed.?

Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064 and Nasim Khalid v. Ibrahim 1988 MLD 819 rel.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss.2(c), 13 & 15---"Landlord"---Definition---Definition of landlord being very wide, person, even if not owner of property could be deemed to be landlord in various capacities---Word "landlord" was not limited to the true owner but included an agent, trustee, guardian, receiver, executor and administrator receiving rent on behalf of owner and any person who might be entitled to receive rent for the time being on his own account---Attorney of landlady receiving rent from tenant who treated him as person to whom they were liable to pay rent, fell within definition of "landlord"---Non-proof of power of attorney would, in such case, be of no consequence.?

Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064 and Nasim Khalid v. Ibrahim 1988 MLD 819 rel.

Kh. Saeed-uz-Zafar for Appellant.

Dr. A. Basit for Respondents.

Date of hearing: 14th December, 2006.

P L D 2007 Karachi 387

Before Zia Perwaz, J

Messrs HOTEL METROPOLE (PRIVATE) LIMITED, KARACHI---Petitioner

Versus

Messrs TRAVEL ADVISOR, through Proprietor and 2 others---Respondents

Constitutional Petition No.S-286 of 2004, decided on 5th April, 2007.

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

----Ss. 2(h) & 15---Constitution of Pakistan, 1973, Art.199---Constitutional petition---Ejectment of tenant---Hotel'---Connotation---Purpose for which premises is let out that constitutes the criteria to define a premises as ahotel'---Fact of ownership of a premises by a hotel, unless the activities are those ancillary to the operation of a hotel as in the case of a shopping Malls etc., which make some part of the hotel---Mere fact that the property is owned by hotel who is landlord would not attract the bar for the tenement to be dealt with as a hotel for purpose of S.2(h) of the Sindh Rented Premises Ordinance, 1979---Principles.

The jurisdiction is barred if the premises is a hotel. The word `hotel', inter alia, means "an Inn; especially one of a superior kind", and the word "inn" inter alia, means "a dwelling place, habitation, lodging, a public house for the lodging and entertainment of travellers, wayfarers etc."

Hotel is a building held out to the public as a place where all transient persons who come will be received and entertained as guests for compensation and it opens its facilities to the public as a whole rather than limited accessibility to a well defined private group.

Hotel is a place where lodging are let and where provisions are, to some extent, supplied.

A hotel is an establishment held out by proprietor as offering foods, drinks and if so required sleeping accommodations, without special contract, to any traveller presenting himself who appears able and willing to pay a reasonable sum for the services and facilities provided and who is in a fit state to be received.

The concept of hotel imports the idea of providing accommodation to travellers and guests.

Hotel is a building held out to the public as place where all transient persons who come will be received and entertained as guests for compensation and it opens its facilities to the public as a whole rather than limited accessibility to a well defined private group.

The above meanings specifically convey that for purpose of the definition of hotel certain activities and functions associated with the operation of hotel should be involved in connection with the premises rented out.

Mere fact that the building is described as hotel or it happened to be a hotel does not mean that the application in respect of the eviction of a person who is the lessee in respect of a premises in the hotel cannot be maintained. The facts that the building was at one time a hotel or that it is described as hotel in the lease agreement does not take away the jurisdiction of the Rent Controller in so far there is a relationship of landlord and tenant between the parties. The agreement executed between the petitioner and respondent clearly created relation of landlord and tenant between the parties and as such the Rent Controller had the jurisdiction to decide the dispute raised before him.

It is therefore the purpose for which the premises was let out that constitutes the criteria to define a premises as a hotel. The fact of ownership of a premises by a hotel, unless the activities are those ancillary to the operation of a hotel as in the case of shopping malls etc. which makes some part of the hotel.

Mere fact that the property is owned by hotel who is landlord would not attract the bar for the tenement to be dealt with as a hotel for purpose of section 2(h) of the Sindh Rented Premises Ordinance, 1979.

For the foregoing reasons the petition was allowed. Case was remanded to learned Rent Controller for decision of the ejectment application on merits on the basis of evidence already recorded.

F.R.A. No.356 of 1982; Shorter Oxford English Dictionary; Black's Law Dictionary; Stroud's Judicial Dictionary; Hallsbury's Law of England;' Zafar Ali v. Allah Bachayo PLD 1989 SC 294; Dur Muhammad and others v. Muhammad Qasim PLD 1987 Kar. 273; Allah Ditta and 2 others v. Walayat and others 1983 CLC 723; Abdul Hameed Khan and others v. Karimji Ebrahimji and others 1990 MLD 840; Abdul Malid v. Muhammad Arshad and sons 2005 YLR 122; Shafiq-ur-Rehman v. Haji Agha Hassan 1995 SCMR 313 and Muhammad Anwar v. Janialuddin 1996 SCMR 771 ref.

Nemo for Respondents.

P L D 2007 Lahore 392

Before Abdul Shakoor Paracha and Sardar Muhammad Aslam, JJ

MUHAMMAD BASHARAT---Petitioner

Versus

THE STATE and 4 others---Respondents

Criminal Revision No.191 of 2005, decided on 29th November, 2006.

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

----S. 7---Constitution of Pakistan (1973), Art. 45---Juvenile offender---Determination of age---Commutation of death sentence to imprisonment for life---Notification dated 13-12-2001 issued by the President---Pre­requisite---Provincial Government prior to commutation of death sentence to imprisonment for life under the Notification dated 13-12-2001 'issued by the President shall ensure that the age of accused (condemned prisoner) as recorded by the Trial Court had entitled him to such a commutation.

Ziaullah v. Najeeb Ullah and others PLD 2003 SC 656 and Rehmat Ullah alias Raja v. Home Secretary, Punjab, Lahore and others 2004 SCMR 1861 ref.

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

----Ss. 7 & 2(b)---Refusal to commute death sentence of accused to imprisonment for life being juvenile below the age of 18 years at the time of commission of offence by virtue of Notification dated 13-12-2001 issued by the President---Validity---Determination of the age of accused was to be made in accordance with S.7 of the Juvenile Justice System Ordinance, 2000, on the basis of medical report, therefore, entries in the Birth Certificate issued by the Secretary Union Council and in Forms A and B of the Registration Department were of no value---Best evidence to prove the age of accused was of the Radiologist whose report was to be given preference to the School Leaving Certificate---Sessions Court had rightly concluded on the basis of medical report that the accused was above 18 years of age on the date of occurrence and was not a child within the meaning of S.2(b) of the Juvenile Justice System Ordinance, 2000, and that as such he was not entitled to the remission of sentence of death to imprisonment for life---Even otherwise, Trial Court had never recorded a finding regarding the age of accused and the question of his age was never agitated before the Trial Court, Appellate Court or even the Supreme Court; it was, therefore, too late to raise such a plea before the Sessions Court for remission of death sentence of accused to imprisonment for life on the basis of his being a minor at the time of occurrence by virtue of Notification dated 13-12-2001 issued by the President---Impugned order did not suffer from any illegality or irregularity---Petition was dismissed accordingly.

Ziaullah v. Najeeb Ullah and others PLD 2003 SC 656; Altaf Hussain v. The State 2003 PCr.LJ 1898; Rehmat Ullah alias Raja v. Home Secretary, Punjab, Lahore and others 2004 SCMR 1861; Muhammad Akram v. Muhammad Haleem 2002 PCr.LJ 633; Muhammad Hayat v. The State and another 2002 YLR 711; Hassan Zafar v. The State 2001 PCr.LJ 1939; Nazir Ahmad alias Kala v. District and Sessions Judge, Kasur and 2 others PLJ 2002 Cr.C. (Lahore) 195;. Noor Khan v. The State 1992 PCr.LJ 2459; Iftikahr v. The State PLD 1972 Pesh. 27 and Sheikh Hassan v. Bashir Ahmad and another PLD 1966 (W.P.) Pesh. 97 ref.

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

----S. 7---Determination of age---Evidence of Radiologist to be preferred to School Leaving Certificate---Best evidence to prove age is that of Radiologist and his report should be given preference to a School Leaving Certificate.

Noor Khan v. The State 1992 PCr.LJ 2459, Iftikahr v. The State PLD 1972 Pesh. 27 and Sheikh Hassan v. Bashir Ahmad and another PLD 1966 (W.P.) Pesh. 97 ref.

Raja Zahur Ahmad for Petitioner.

Tanvir Iqbal Khan, A.A.-G. for the State.

P L D 2007 Lahore 399

Before Asif Saeed Khan Khosa, J

MUHAMMAD---Petitioner

Versus

SUPERINTENDNET, CENTRAL JAIL, BAHAWALPUR and 2 others---Respondents

Writ Petition No.6870 of 2006, heard on 28th February, 2007.

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

----Arts. 45 & 199---Criminal Procedure Code (V of 1898), S.401---Constitutional petition---Remission of sentence, benefit of---Admissibility---Scope---Benefit of remission of sentence is admissible only to a convict who has already been sentenced and not to an under-trial prisoner who is yet to be convicted and sentenced---If the jail authorities had initially accredited the petitioner's history ticket with any such remission erroneously and in violation of the law then no vested right had accrued to the petitioner in that regard---No estoppel against the law and petitioner could not reclaim a benefit received earlier in contravention or infringement of law---Muhammad Arif v. Superintendent Central Jail, Lahore and 2 others PLD 2006 Lahore 561 and Inayat Bibi v. Amjad Hussain and others PLD 2006 Lah. 587, held, mutually contradictory and destructive of each other.

Haji Abdul Ali v. Haji Bismillah and 3 others PLD 2005 SC 163 and Amanullah v. Superintendent Jail (Criminal Miscellaneous Application No. 149-L of 2005) fol.

Muhammad Arif v. Superintendent Central Jail, Lahore and 2 others PLD 2006 Lahore 561 and Inayat Bibi v. Amjad Hussain and others PLD 2006 Lah. 587 dissented from

Chaudhry Aamir Ali v. The State 2002 YLR 1902; Inayat Bibi v. Amjad Ali and others 2001 PCr.LJ 1453; Inayat Bibi y. Amjad Hussain and others PLD 2006 Lah. 587; Haji Abdul Ali v. Haji Bismillah and 3 others PLD 2005 SC 163 and Lt.-Col. G. L. Bhattacharya v. The State PLD 1963 Dacca 422 ref.

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

----Art. 189---Law declared by Supreme Court binding upon High

Court---Full Bench of the High Court had expressed two views on the same day which views were mutually contradictory and destructive of each other---Effect---Article 189 of the Constitution mandated that an enunciation of the relevant law by the Supreme Court was binding upon the High Court---Binding mandate of the Constitution has a sway over any question of propriety coming in the way.

Sardar Tariq Sher Khan for Petitioner.

Malik Ramzan Khalid, Addl. A.-G., Punjab for Respondents with Ali Akbar, Asstt. Superintendent New Central Jail, Multan with record.

Date of hearing; 28th February, 2007.

P L D 2007 Lahore 403

Before Syed Hamid Ali Shah, J

Syed MANSOOR ALI SHAH and 4 others---Petitioners

Versus

GOVERNMENT OF PUNJAB, through Housing, Physical and Environmental Planning Department, and 3 others---Respondents

Writ Petitions Nos. 6927 of 1997 and 8491 of 2001, heard on 21st September, 2006.

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

----Arts. 9, 14 & 199---Provincial Motor Vehicles Ordinance (XIX of 1965), Preamble---Provincial Motor Vehicles Rules, 1969, R.163---Penal Code (XLV of 1860), Ss.268 & 278---Pakistan Environmental Protection Act (XXXIV of 1979), Arts.9 & 14---Constitutional petition---Air pollution caused by vehicular emission---Nuisance caused by air pollution---State functionaries were bound by contractual obligations under international treaties to take effective measures for elimination of vehicular pollution---Measures to be adopted for curbing vehicular pollution---Scope---Petitioners asserted that air pollution caused by vehicular emissions had severely affected human life, causing various diseases to citizens; that under Rule 163 of Provincial Motor Vehicles Rules, 1969, the owner of vehicle was required by law to properly maintain vehicle so that it did not cause damage or annoyance to any other person or property or endanger safety of any other user of road and was to he fitted with efficient appliance for the purpose of preventing emission of sparks or grit etc; that Regional Transport Authority was issuing Fitness Certificates to transport vehicles which did not meet required standards and that respondents were to be directed to act in accordance with law so as to arrest growing problem of air pollution---Validity---Court had constituted a Commission to study and analyse the increasing problem of vehicular air pollution and formulate a solution---Commission accomplished task assigned to it and its recommendations had thoroughly been examined, by Federal as well as Provincial Government besides other stake-holders---Pakistan had signed certain international treaties for protection of ozone layer and environment---Besides international treaties, perseverance and protection of dignity of man was fundamental right of citizens which was guaranteed under Art.14 of the Constitution---Article 9 of the Constitution protected life of citizens and where life of a citizen was degraded, quality of life was adversely affected and health hazards were created affecting large number of people, the same amounted to deprivation of life which was prohibited by Arts.9 & 14 of the Constitution---Nuisance caused through air pollution was punishable under Ss.268 & 278 of Penal Code---Pakistan Environmental Protection Act, 1979 had been enforced for protection, conservation, inhabitation and improvement of environment---Redressal of grievance, voiced through present petitions was covered under Arts.9 & 14 of the Constitution and provisions of Pakistan Environmental Protection Act, 1979---State functionaries were bound by contractual obligations under International Treaties to take effective measures for elimination of vehicular pollution---Appropriate writ for implementation of recommendations of commission was issued---Measures and recommendations for control and maintenance of vehicles, air quality and fuel standards, capacity building and monitoring/inspection stations were enumerated.

1996 SCMR 543 rel.

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

----Arts. 9 & 199---Right to life---Scope---Petition under Art.199 of the Constitution---Maintainability---Article 9 of the Constitution, provided that no person was to be deprived of life or liberty save in accordance with law---Word life' had not been defined in Constitution but it did not mean nor could be restricted only to vegetative or animal life or mere existence from conception to death---Life included all such amenities and facilities which a person born in free country was entitled to enjoy with dignity, legally and constitutionally---Person whose right of easement, property or health was adversely affected by any act of omission or commission of a third person in neighbourhood or at a far-off place, was entitled under Common law to seek injunction and also claim damages but constitutional rights were higher than legal rights conferred by law, be it municipal law or common law---Such a danger was depicted to affect a large number of people who might suffer from it unknowingly because such sufferance was silent and fatal and most of the people who would be residing under or at a dangerous distance of grid station or such installation and who did not know that they were facing any risk or were likely to suffer by such risk---Wordlife' in terms of Art.9 of the Constitution was so wide that danger and encroachment complained of would impinge fundamental right of a citizen---Petition under Art.199 of the Constitution was maintainable---Word `life' in the Constitution had not been used in a limited manner---Wide meaning was to be given to enable a man not only to sustain life but to enjoy it.

Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693 rel.

Syed Mansoor Ali Shah and Ms. Saima Amin Khawaja for Petitioners.

Malik Pervaiz Akhtar, D.A.-G. for Federal Government.

Shujaat Ali Khan, A.A.-G. for Respondents Nos.1 to 3.

Kamran Shuja for Transport Department, Government of the Punjab.

Malik Muhammad Naeem for Applicant (in C.M. 1949 of 2006).

Ijaz-ul-Hassan for Respondents Nos.5 to 7.

Javad Hassan on Court Call.

Date of hearing: 21st September, 2006.

P L D 2007 Lahore 423

Before Syed Zahid Hussain, J

IKRAM ULLAH KHAN---Petitioner

Versus

MALIHA KHAN and another---Respondents

Writ Petition No.922 of 2004, decided on 20th February, 2007.

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

---S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dissolution of marriage on ground of Khula'---Dower amount, return of as a benefit---Wife expressed extreme hatred, incompatibility and impossibility to live as husband and wife within the limits prescribed by Allah---Family Court dissolving marriage on basis of Khula' had directed wife to return dower amount which she had received from husband---Appellate Court finding that dower in its essence was not a benefit which could have been restored to husband in consideration for the grant of Khula' divorce, was of no legal effect---Validity---Dower was also a benefit which the wife was liable to return for the decree of Khula' if husband insists for the same---Such insistence of husband had been proved on record from his conduct---Family Court was, therefore, absolutely justified in granting the decree to wife for Khula' subject to return of dower amount.

Abdul Majid v. Razia Bibi and another PLD 1975 Lah. 766; Mukhtar Ahmad v. Mst. Ume Kalsoom and another PLD 1975 Lah. 805; Mst. Khurshid Bibi v. Bahoo Muhammad Amin PLD 1967 SC 97 and Abdul Rahim v. Mst. Shahida Khan PLD 1984 SC 329 ref.

Mian Tahir Iqbal for Petitioner.

Sardar Muhammad Ikhlaque Khan for Respondents.

Date of hearing: 15th February, 2007.

P L D 2007 Lahore 425

Before Muhammad Muzammal Khan, J

MUHAMMAD DIN---Petitioner

Versus

Mst. ALIYA BIBI and another---Respondents

Writ Petition No.12662 of 2006, heard on 12th February 2007.

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

----S. 10---General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dissolution of marriage by grant of Khula'---Procedure---Wife had filed suit for dissolution of her marriage and recovery of dower amount which was opposed by the petitioner/husband by filing his written statement and a suit for restitution of conjugal rights which was contested by the wife---Court framed issues arising out of controversial pleadings of the parties and fixed these cases for evidence of wife---Fresh statement of wife was recorded on the said date, on her request, wherein she stated that she could not live with the husband within the limits prescribed by Allah and prayed for grant of Khula'---Family Court decreed the suit of the wife to the extent of dissolution of marriage and granted her the relief Khula'---Petitioner/husband.. had contended that after framing issues arising out of pleadings of parties, Family Court was denuded of jurisdiction to review the same and to pass decree for dissolution of marriage on a date fixed for evidence, in absence of any provision regarding review in the West Pakistan Family Courts Act, 1964---Validity---Held, no doubt, there was no provision of review in the Act, but course adopted by the Family Court was permissible in the light of S.24-A, General Clauses Act, 1897 and the errors committed could have been rectified---Under proviso to S.10, West Pakistan Family Courts Act, 1964, Family Court, in a suit for dissolution of marriage, on failure of reconciliation, was bound to pass decree for dissolution of marriage forthwith---Order passed by Family Court granting relief of Khula' to the wife proved to the hilt that reconciliation efforts between the spouses could not succeed and as such suit for dissolution of marriage by wife on the basis of Khula' deserved to be decreed, to that extent, but due to inadvertence such exercise was not undertaken and was invoked later to remedy her grievance---Constitutional petition against such order was dismissed.

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

----Preamble, S.17 & Sched.---Powers and jurisdiction of Family Court---Scope---Procedure---Judge Family Court, while dealing with the suit mentioned in Schedule of West Pakistan Family Courts Act, 1964 has to adopt procedure as of his choice, in order to meet the situations not visualized in the Act applicable.

By virtue of preamble of the Family Courts Act, 1964, legislature intended to conclude the family suits expeditiously, excluding application of Civil Procedure Code, 1908 through its section 17. The Act of 1964 is not exhaustive and does not make provision to meet every conceivable eventuality and unforeseen circumstances/situations. Inspite of directly inapplicability of provisions of C.P.C. a Judge Family Court while dealing with the suit mentioned in schedule of the Family Courts Act, 1964 has to adopt procedure as of his choice, in order to meet the situations not visualized in the Act applicable.

Khalil-ur-Rehman Bhutta v. Razia Naz 1984 CLC 890; Shahzada Jawaid v. Mst. Sadia Ralf and another 2000 MLD 1301 and Mirza Shahid Baig v. Mst. Lubna Riaz and 2 others 2004 CLC 1545 ref.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Lawful decision within the ambit of conferred jurisdiction, cannot be substituted under constitutional jurisdiction by the High Court.

Mian Muhammad Mudassar Bodla for Petitioner.

Muhammad Tahir Chaudhry for Respondents.

Date of hearing: 12th February, 2007.

P L D 2007 Lahore 428

Before Hasnat Ahmad Khan, J

ALLAH DITTA---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.5 of 2007, decided on 15th February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 514---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(2), 13 & 14---Forfeiture of surety bond---Accused for whom petitioner stood surety by executing bond having failed to appear before the court, bail bonds were forfeited and notice under S.514, Cr.P.C. was issued to petitioner/surety---Petitioner denied execution of surety bonds, but surety bonds submitted and executed by him were duly thumb marked by him and same contained signatures of the person who had identified petitioner at the relevant time---Surety bonds were always accepted by concerned court after satisfying the identity of surety and witnesses---Presumption of correctness and regularity was attached to the judicial proceedings--After executing the bail bonds, petitioner/surety could not be allowed to turn volte-face by simply denying the very execution of the same---Such practice on the part of sureties could not be allowed---Petitioner having duly submitted and executed Surety bond, his plea that he had not executed surety bond, was repelled---Accused for whom petitioner stood surety having jumped the bail bonds and despite expiry of period of three years having failed to appear before the court to face the trial and having remained fugitive, petition against order forfeiting surety bonds, did not merit acceptance---Once accused jumped the bail bonds, entire surety amount would become liable to be forfeited in absence of any mitigating circumstances---No mitigating circumstances had been found in favour of petitioner---Conduct of petitioner, whereby he had opted to straightaway deny the execution of bail bonds instead of accepting his liability, did not entitle him to any relief.

Muhammad Safeer v. Faqir Khan 2000 SCMR 312 and Zeeshan Kazmi v. The State PLD 1997 SC 267 ref.

Mian Allah Ditta for Petitioner.

Ishaque Masih Naz, Deputy Prosecutor General for the State.

P L D 2007 Lahore 431

Before Maulvi Anwarul Haq, J

MUHAMMAD FAROOQ through Attorney---Petitioner

Versus

MUHAMMAD AMIN TRUST CHAKWAL through Chairman---Respondent

Civil Revision No.160 of 2000, heard on 16th January, 2007.

Punjab Pre-emption Act (IX of 1991)

-----Ss. 13 & 23(1)(a)---Right of pre-emption---Charitable trust---Suit land was purchased by charitable trust for construction of hospital thereon---Suit and appeal filed by pre-emptor were dismissed by Trial Court and Appellate Court, respectively---Validity---Record did not deny that vendee was a trust or Waqf and purchased the property as such---Deed of trust was produced which was a registered document---Purposes of trust were setting up of a hospital on modern lines and to serve people of locality around---Chairman of vendee Trust appeared as witness and stated that the land was purchased for constructing a hospital---Not a single question was put to him in cross-examination to challenge such statement of the Chairman---Evidence of witnesses of pre-emptor including him was also silent in such regard---Both the courts below had correctly concluded that the land had been purchased for such charitable purpose and was property of Charitable Trust---Plain reading of S.23(1)(a) of Punjab Pre-emption Act, 1991, showed that prohibition was regarding sale of waqf property or property used for charitable purposes---Intention of legislature, however, clearly appeared to save the property purchased for charitable user from rigours of exercise of right of pre-emption---Bar contained in S.23 of Punjab Pre-emption Act, 1991, was applicable in circumstances.

Sajid Ilyas Bhatti for Petitioner.

Muhammad Amir Butt for Respondents.

Date of hearing: 16th January, 2007.

P L D 2007 Lahore 434

Before Mian Hamid Farooq and Iqbal Hameedur Rehman, JJ

ALLAH DITTA and others-appellants

Versus

CHIEF ENGINEER and others---Respondents

Intra-Court Appeal No.58 of 2005, decided on 21st February, 2007.

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

----Ss. 4 & 10---Constitution of Pakistan (1973), Arts. 199 & 24---Law Reforms Ordinance (XII of 1972), S.3---Acquisition of land---Land had been acquired .for construction of a new Super Bund to control the flood water of river, without making compensation to landowners---Plea of authorities was that loan was obtained for the purpose of construction of said Bund from Asian Development Bank with the condition that no compensation would be allowed for the land coming under said new Super Bund---Validity---Any condition of loan advanced by the Asian Development Bank, which had been accepted by authorities, could not usurp the rights of landowners as they were entitled to compensation under Land Acquisition Act, 1894, which had fully safe-guarded their vested rights---Rights of the landowners were to be fully safeguarded under Fundamental Rights by the Constitution---Act of authorities by not adopting the procedure of acquisition of land, had resulted in a breach of Fundamental Rights, which High Court was bound to enforce under provisions of Art. 199(2) of the Constitution---Such rights could not also be justified on the touchstone of justice and equity as it was based on sheer arbitrariness, an abuse of the process of the authority without compliance to the legal provisions of law and against the principle of natural justice---Impugned order was set aside with direction to the authorities to pay compensation to the land-owners after adopting proper procedure.

Malik Muhammad Tariq Rajwana for Appellants.

Zafarullah Khakwani, A.A.G. for Respondents.

Date of hearing: 21st February, 2007.

P L D 2007 Lahore 437

Before Mian Saqib Nisar, J

Raja NAIB MUHAMMAD---Petitioner

Versus

Raja MUHAMMAD SAQLAIN and 3 others---Respondents

Civil Revisions Nos.486 and 487 of 2006, heard on 8th February, 2007.

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

----S. 12---Civil Procedure Code (V of 1908), O.I, R.10---Specific performance of agreement of sale---Execution of three successive agreements by vendor in favour of three different vendees---Pendency of three separate suits between vendor and such vendees---Agreement in favour of first vendee related to a share in bigger area without description of boundaries---Agreement in favour 'of second and third vendees related to a specific portion out of bigger area with specific boundaries---Application by second vendee for impleading him as defendant in suits filed by first and third vendees---Dismissal of applications by trial Court and passing of decrees in both other suits, which decrees were upheld by appellate Court---Validity---Decrees against vendor passed in suits of first and third vendees would affect rights of second vendee and his suit for specific 'performance filed against vendor---Trial Court should have joined second vendee as defendant in such other suits and allowed him to contest matter---Dismissal of application of second vendee under O.I, R.10, C.P.C. was untenable and unwarranted--Decrees passed after dismissal of such application, thus, could not sustain---High Court set aside impugned decrees and orders passed on such application and remanded cases to Trail Court to add second vendee as defendant, who would have a right to contest matter by filing written statement with further observations that in all three suits, if either of litigants wanted to move an application to be a party, he must also be added and all three suits must be tried by one Court.

Sh. Naveed Shahryar for Petitioner.

Syed Shamim Abbas Bokhari for Respondents.

Date of hearing 8th February, 2007.

P L D 2007 Lahore 440

Before Syed Zahid Hussain, Asif Saeed Khan Khosa, M.A. Shahid Siddiqui, Syed Shabbar Raza Rizvi and Sh. Azmat Saeed, JJ

REGISTRAR, LAHORE HIGH COURT, LAHORE---Petitioner

Versus

Messrs GEO T.V. through Chairman and 8 others---Respondents

Criminal Original No.10 of 2007, decided on 12th March, 2007.

Contempt of Court---

---Programme telecast by a Television Channel giving an impression that the Court/Court officials, were involved in malpractice, corruption, etc.---Notice for proceedings of contempt---Respondents deeply regretted the error and apologized for the same and prayed for the discharge of notices while undertaking to ensure that no such errors would be made in future and to clarify and correct these errors on air, if so directed by the High Court---High Court, directed the Channel to repeatedly show regret/apology .daily at appropriate timings till the next date in the matter and also publish a similar regret/apology in the daily newspapers on the front pages at some prominent spaces daily till the next date of hearing---All the respondents belonging to the Channel reiterated that they held High Court in highest esteem and once again assured the Court that they never intended or meant to lower the esteem of High Court in any manner---Chairman of the Channel, present in the Court, affirmed the contents of unconditional apology and undertook to show the apology on the Channel and to publish the same in their daily newspapers (News & Jang) repeatedly every day till the date of next hearing of the case--Held, unconditional apology having been tendered by respondents at the very initial stage of the proceedings and their sincerity having been demonstrated through their conduct by complying with the order of the Court, High Court observed that it was expected that respondents would remain conscious of their high responsibility as media men in future---High Court further observed that since the Channel and its concerned functionaries had tendered unconditional apology, which the Court had accepted, further action against other three respondents was unnecessary and uncalled for---Proceedings were disposed of accordingly and notice discharged.

Muhammad Hanif Khatana, Addl. A.G., Punjab.

P L D 2007 Lahore 444

Before Asif Saeed Khan Khosa and Hasnat Ahmad Khan, JJ

ABDUL SATTAR---Petitioner

Versus

AMIR MUHAMMAD KHAN and others---Respondents

Writ Petition No.3458 of 2006, heard on 8th February, 2007.

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

----S. 7---Penal Code (XLV of 1860), Ss.324/447/427/148/149---Criminal Procedure Code (V of 1898), Ss.497 & 498---Constitution of Pakistan (1973), Art.199---Constitutional petition---Judge Anti-Terrorism Court while acting as duty Judge in course of deciding question of granting physical remand had directed the Investigating Officer to delete S.7 of Anti-Terrorism Act, 1997--Validity---Duty Judge enjoyed the same powers as the incumbent Judge enjoyed---Court while deciding the question of grant of remand, was not expected to act blindly, rather was expected to pass such orders with due application of judicial mind---Impugned order could not be set aside simply on the ground that same was passed by the Duty Judge---Observations made by Court while deciding bail matters being of tentative nature, contrary observations made by the Judge Anti-Terrorism Court while deciding bail application of accused, were of no help to the complainant---Constitutional jurisdiction could not be exercised just on the basis of technical grounds losing sight of the facts of the case---For determining the question as to whether a particular act was an act of terrorism or not, the motivation, object, design or purpose behind the said act had to be seen---Alleged offence in the case had taken place between private parties because of enmity and private vendetta over the dispute of land---Incident had occurred inside the fields---No body had received even a single scratch during the occurrence at the hands of accused---Object of accused was not at all to create sense of insecurity or create terror in the public---Alleged offence had not even the tendency to create sense of fear and insecurity in the mind of people or any section of the society---Second occurrence was altogether a different and separate event, which by itself could not drag the first occurrence within the ambit of terrorism as defined in S.6 of the Anti-Terrorism Act, 1997---Impugned order did-not suffer from any jurisdictional error---Constitutional petition was dismissed accordingly.

Mohabat Ali and another v. The State and another 2007 SCMR 142 rel.

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

---Ss. 497/498---Bail---Observations made by Courts while deciding bail matters are always treated as tentative in nature.

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

---Art. 199---Constitutional jurisdiction---Not to be exercised on technicalities---Constitutional jurisdiction cannot be exercised just on the basis of technical grounds---While deciding constitutional petition facts of the case cannot be lost sight of.

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

---Ss. 6, 7 & 8---Jurisdiction of Anti-Terrorism Court, determination of---While deciding the question of jurisdiction it would be necessary to examine that the ingredients of the alleged occurrence have any nexus with the object of the Anti-Terrorism Act, 1997, as contemplated under Ss.6, 7 & 8 thereof---For determining whether a particular act is an act of terrorism or not, the motivation, object, design or purpose behind lane same has to be seen.

Mohabat Ali and another v. The State and another 2007 SCMR 142 ref.

Malik Fazal Karim and Javid Ahmed Khan for Petitioner.

Altaf Ibrahim Qureshi for Respondents Nos. 1 to 4.

Muhammad Aslam, A.S.I.

Date of hearing: 8th February, 2007.

P L D 2007 Lahore 449

Before Jawwad S. Khawaja, J

HUMAYUN MIRZA---Petitioner

Versus

Mrs. SHAHIDA A. RAJPUT and another---Respondents

Civil Revision No.2525 of 2006, heard on 8th March, 2007.

Specific Relief Act (I of 1877)---

----S.12---Transfer of Property Act (IV of 1882), S.54---Civil Procedure Code (V of 1908), O.I, R.10---Specific performance of agreement to sell---Second party agreement--Buyer on the basis of agreement to sell with owner of suit property, further entered into agreement to sell with respondent---Buyer filed suit for specific performance of agreement to sell, wherein respondent filed application under O.I, R.10, C.P.C. for becoming a party to the suit---Trial Court allowed the application and directed to implead the respondent as a party to the suit---Plea raised by owner of suit property was that there was no clause in the agreement whereby buyer could further enter into agreement to sell with any other party---Validity---In agreement where second party had specifically been granted authority to enter into agreement with a third party without intervention of original owner, such clause amounted to purchaser being authorized attorney of the original owner capable of executing agreement

as of right, in favour of third parties---No such clause was available in the agreement between the buyer and respondent---Mere agreement to sell did not, by itself, could create any interest in the property which was subject matter of such agreement---Agreement to sell between the owner and buyer did not confer any right or interest in favour of respondent---Buyer who herself did not have any interest in the suit property could not enter into any agreement for the sale of the same---High Court in exercise of revisional jurisdiction set aside the order passed by Trial Court and application of respondent filed under O.I, R.10, C.P.C. was dismissed---Revision was allowed in circumstances.

Sana Ullah v. Rashid Ahmad Khokhar and 3 others 2000 SCMR 937 distinguished.

Hamid Ali Mirza for Petitioner.

Muhammad Rashid Ch. for Respondent No.2.

Date of hearing: 8th March, 2007.

P L D 2007 Lahore 453

Before Syed Zahid Hussain and Syed Sajjad Hussain Shah, JJ

Malik MUHAMMAD FAISAL and another---Appellants

Versus

STATE LIFE INSURACNE CORPORATION through Chairman, Karachi and 2 others--Respondents

R.F.A. No.56 of 2001, decided on 28th February, 2007.

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

----O. XXXVII, Rr. 2 & 3---Contract Act (IX of 1872), S.19---Suit for recovery on basis of cheque issued by Insurance Company to legal heirs of deceased under his insurance policy---Stoppage of payment of cheque by bank at instruction of company---Plea of company that cheque was obtained by fraud as date of birth disclosed by deceased while obtaining insurance policy was found as incorrect---Proof and validity---Deceased while obtaining insurance policy had represented to have no other proof of his date of birth as 8-3-1945 except National Identity Card---Record of School/Board of Secondary Education showed the date of birth of deceased as 8-3-1940---Deceased had stated his date of birth as 8-3-1940 while filling up Secondary School Examination form in year 1957---National Identity Card containing a different date of birth had been issued long thereafter---Correct and true date of birth of deceased would be the one as recorded in School/Board record being earliest in time--Ordinarily, once insurance policy was issued, claim was processed and cheque was issued, then matter would become a fait accompli---Fraud had been committed by deceased at the time of getting insurance policy---Cheque had been issued on the basis of insurance policy obtained through fraud and misrepresentation---Suit was dismissed in circumstances.

State Life Insurance Corporation v. Mst. Begum Jan PLD 1983 SC 421; State Life Insurance Corporation v. Mamoor Khan 1993 CLC 790; Mithoolal Nayak v. Life Insurance Corporation of India AIR. 1962 SC 814; Smt. Rami Bai v. Life Insurance Corporation of India, Bhopal AIR 1981 Madhya Pradesh 69 and Smt. Saroj Agrawal v. Life Insurance Corporation of India and others AIR 2004 Jharkhand 134 rel.

(b) Insurance---

----Ordinarily once insurance policy was issued, claim was processed and cheque was issued, then matter would become a fait accompli.

(c) Age---

----Date ----Date of birth, proof of---National Identity Card and School/Board Record both containing different dates of birth of same person---Validity---Date of birth mentioned in National Identity Card would ordinarily be taken to correct unless proved to the contrary by cogent and convincing evidence---Date of birth recorded in School/Board record, though different, but earliest in time than National Identity Card, would be taken to be true---Principles.

Raja Muhammad Azam for Appellants.

Tahir Malik for Respondents.

Date of hearing: 15th February, 2007.

P L D 2007 Lahore 458

Before Syed Zahid Hussain, J

MUHAMMAD GULZAR AHMAD and others---Petitioners

Versus

CHIEF SECRETARY and others---Respondents

Writ Petition No.13415 of 2006, decided on 20th March, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Re-employment policy---Relaxation of rules---Petitioners were aggrieved of re-employment of respondent as Principal of the College in question made by Governor, after relaxing re-employment policy---Validity---Authority and power of Government to relax provisions of Re-employment Policy had not been questioned by petitioners rather they conceded the position that the competent authority had got the power to relax the policy/rules---Stance of Government and justification for its order of extension was contribution of respondent to the institution who undeniably was conferred distinction (Azaz-i-Fazilat) in the field of education by the President of Pakistan and a certificate of distinction for outstanding perf9rmance was awarded to him by City District Government---Prima facie there appeared a justification for availing the services of respondent in the institution in question---Extended term of respondent had not expired and High Court declined to interfere with the exercise of discretion and jurisdiction by the Governor who extended the period of contractual appointment of respondent---Petition was dismissed in circumstances.

Pakistan Tobacco Board and another v. Tahir Raza and others 2007 SCMR 97 distinguished.

Nazir Ahmed laved for Petitioners.

Aamir Rehman, Addl. A.-G. Punjab.

Masood A. Malik for Respondent No.5.

P L D 2007 Lahore 461

Before Syed Hamid Ali Shah, J

ZAHOOR AHMED and 309 others---Petitioners

Versus

MEMBER, (CONSOLIDATION) BOARD OF REVENUE, PUNJAB and 23 others---Respondents

Objection Case No.19471 of 2006, decided on 30th November, 2006.

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

----Art. 199---Constitutional petition---Joining of more than one petitioners---Principles--Several petitioners, having community of interest and common grievance, can file joint petition under Art. 199 of the Constitution---No restraint existed on several petitioners to file a joint petition, where right to relief arises from the same act or transaction; or when common question of law and fact is involved; or where petitioners are jointly interested in cause or causes of action; or when evidence/proof for determination of controversy is the same.

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

----Art. 199---Civil Procedure Code (V of 1908), Preamble---Constitutional petition---Provisions of Civil Procedure Code, 1908---Applicability---Provisions of Civil Procedure Code, 1908, govern the matters falling in constitutional jurisdiction, as far as they are not in conflict with High Court Rules and Orders---To conduct proceedings under constitutional jurisdiction, the procedure of Civil Procedure Code, 1908, is always resorted to, being general law of procedure.

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

----Art. 199---High Court (Lahore) Rules and Orders, Vol. V, Chap.4-F, R.10(i), Part III of Part. J---Constitutional petition---Joint petition---Scope---Office objection---Fixation of court-fee---Filing of joint petition by more than one petitioners---More than three hundred petitioners were aggrieved of some order passed by Board of Revenue---There being common question of law and one cause of action, therefore, all petitioners filed joint petition---Objection raised by office was that instead of fixing one Court-fee, every petitioner was supposed to fix court-fee separately---Validity---Each petitioner, in a joint petition had his/its own cause of action---Relief claimed by such petitioner was to his extent and grievance of each petitioner was individual---Petition by each one of the petitioners in a joint petition would be deemed independent and each of such persons was liable to pay court-fee separately---Object of allowing joint petitions was to avoid"conl1icting judgments or to allow litigants to conveniently and properly file one petition without going into a hassle of filing and documenting petition separately, as such the same could not absolve the petitioners from payment of court-fee separately---Single set of Court-fee was not legal---One set of court-fee, was payable by several petitioners only when inter se petitioners a jural relationship subsisted i.e. association of persons registered as a firm or incorporated company etc., or in the case of public injury leading to public interest litigation, or in case where series of complaints/impugned acts had arisen out of one action or order---High Court directed the petitioners who had filed joint petition, to pay separate court-fee---Office objection was sustained accordingly.

Ava A Cowasjee and 8 others v. Nasreen Nizam Shah and 4 others 1984 CLC 2705; Arbab Ghulam Ali Khan and 14 others v. Arbab Muhammad Hussain and 14 others PLD 1986 Pesh. 72; Grain International's case AIR 1981 AP 301; Matti Singh v. State of Haryana AIR 1984 SC 484 and Ainullah v. Abdul Rashid 1985 SCMR 1991 rel.

Haru Bepari and others v. Roy Kshitish Bhusan Roty Bahadur and others AIR 1935 Cal. 573; Hussain Bakhsh v. Settlement Commissioner and others PLD 1970 SC 1 and Abdul Malik v. Chief Settlement Commissioner and others PLD 1967 Lah. 520 ref.

Ch. Iqbal Ahmad Khan for Petitioners.

Hafiz Abdur Rehman Ansari and Ch. Azeem Sarwar for Respondents.

P L D 2007 Lahore 467

Before Mian Saqib Nisar and Syed Sakhi Hussain Bokhari, JJ

MUHAMMAD JALIL and 4 others---Appellants

Versus

MUHAMMAD SAMI and 8 others---Respondents

Regular First Appeals Nos.300 and 301 of 1998, heard on 1st March, 2007.

(a) Islamic Law--

----Gift through agent---Scope---Personal acts of principal-donor depending upon his own mental decision cannot be delegated to agent---Decision to whom gift should be made being sole prerogative of donor cannot be left at the choice and whim of agent---Only after making declaration of gift, donor can appoint agent for accomplishment of the object-Principles.

A Muslim 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 it is the sole prerogative of the donor, which cannot be delegated or deputized. However, once the decision is taken, and the donor makes a declaration, only thereafter an agent for the accomplishment of the object can be appointed. A Muslim 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 voluntary 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 consideration 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 himself, has to make the gift, whereafter he can confer the authority upon his agent to take necessary steps for the proper implementation/execution of the transaction.

Mst. Shumal Begun 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 and 149; Outlines of Islamic Jurisprudence by Nayazee, p.206; Muhammadan Jurisprudence by Abdul Rahim (1958), page 321 (Agency); Ameer Ali (Vol.2), p.455; Mullah (para.314), p.332; General Law of Agency (Contract Act) and Muhammad Aslam and another-v. Muhammad Azeem and others 2001 MLD 1893 ref.

(b) Islamic Law---

----Divorce---Conferring authority to agent---Scope.

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 and 149; Outlines of Islamic Jurisprudence by Nayazee, p.206; Muhammadan Jurisprudence by Abdul Rahim (1958), page 321 (Agency); Ameer Ali (Vol.2), p.455; Mullah (para.314), p.332; General Law of Agency (Contract Act) and Muhammad Aslam and another v. Muhammad Azeem and others 2001 MLD 1893 ref.

(c) Islamic Law---

---Divorce---Proof---Presumption---Onus to prove divorce would lie on the party alleging divorce to a wife by her deceased husband---In absence of such proof, presumption could validly be raised that marriage between spouses remained intact till death of her husband---Principles.

(d) Islamic Law---

----Gift by husband in favour of wife---Husband remained alive for 18 years after making gift and had never challenged same in his life time---Such gift was valid in circumstances.

Ch. Manzoor Hussain Basra for Appellants.

Abid Hassan Minto for Respondents.

Date of hearing: 1st March, 2006.

P L D 2007 Lahore 474

Before Hasnat Ahmad Khan, J

MUHAMMAD YAQOOB---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.635 of 2006, decided on 8th March, 2007.

(a) Prevention of Corruption Act (II of 1947)---

----S. 5(2)---Penal Code (XLV of 1860), S.161---Appreciation of evidence---Complainant Raiding Magistrate and the Inspector had supported the prosecution story---Said witnesses could not have been declared hostile simply on the ground of some contradiction in their statements, which were quite natural as their statements were recorded after 3-1/2 years of the occurrence, otherwise they had fully supported the prosecution version---Witnesses, therefore, were illegally declared hostile---Evidence of the said witnesses was consistent regarding the recovery of tainted currency note from the possession of accused and was corroborated by the evidence of Tehsildar/A.S.I.---Prosecution witnesses had no ill-will to falsely involve the accused in the case, nor even such enmity was suggested to them---Contention that neither the passing on of the tainted money to the accused was seen by the prosecution witnesses, nor did they hear the conversation between the complainant and the accused and thus the same could not be advantageously used by the accused who, while making his first statement at the time of raid had not raised a plausible and alternate plea explaining the receipt of the tainted money and had simply stated that the said amount was thrusted into his pocket by the complainant---Accused even during the trial did not put up any plausible version---Defence plea that the case was cooked up on the asking of a serving Colonel, could not be entertained whereby even the proceedings of raid had been denied, especially when the accused had failed to appear as his own witness to support such plea---Fact that physical remand of accused was not procured in time could not give any benefit to him, as such illegality could not over shadow the consistent, solid, well-established and proven prosecution version---Accused had also failed to dislodge the presumption as required under S.4 of the Prevention of Corruption Act, 1947---Conviction of accused was maintained in circumstances---Sentence of accused was, however, reduced to six months' R.I. on both the counts, as he was facing the agony of the trial for the last about seven years and was likely to lose his service.

Nazar Hussain v. The State 2003 YLR 512; Muhammad Abdullah v. The State 2003 MLD 1234; Fazal-ur-Rehman v. The State 2004 MLD 1368; Muhammad Ismail v. Summary Military Court 1982 PCr.LJ 557; Saif Ullah v. The State 2004 YLR 2429; Fazal alias Fajja v. The State 1971 PCr.LJ 602; Muhammad Boota v. The State 1984 SCMR 560; Zarid Khan v. Gulsher and another 1972 SCMR 597; Muhammad Sadiq v. Muhammad Sarwar 1979 SCMR 214; Islam v. The State PLD 1962 Lahore 1053; Kaloo and 2 others v. The State, 1973 PCr.LJ 334; Muhammad Luqman v. The State 1989 MLD 1708; Ehsanullah v. The state 2006 SCMR 304 and Muhammad Nosheen v. The State 2006 SCMR 351 ref.

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

----Art. 150---Hostile witness---Connotation---An unfavourable witness is not necessarily a hostile witness---Hostile witness from his manner of giving evidence shows his unwillingness of telling truth to the Court---Answer of a witness to certain question if is in direct conflict with evidence of other witnesses can never be a reason for allowing the witness to be treated as hostile and permitted to be cross-examined.

?

Muhammad Boota v. The State 1984 SCMR 560; ref.

(c) Criminal trial---

----Hostile witness---Credibility--Principles---Hostile witness may be a truthful witness and a witness does not lose credibility merely because he had turned hostile---Court should consider entire evidence of such witness to see whether any part of his evidence is worthy of belief in the light of the other evidence, and testimony of such witness cannot be discarded altogether and has to be considered like the evidence of any other witness, but with caution.?

Zarid Khan v. Gulsher and another 1972 SCMR 597; Muhammad Sadiq v. Muhammad Sarwar 1979 SCMR 214; Islam v. The State PLD 1962 Lahore 1053; Kaloo and 2 others v. The State, 1973 PCr.LJ 334 and Muhammad Luqman v. The State 1989 MLD 1708 ref.

Ch. Wali Muhammad Sabir for Appellant.

Ishaque Masih Naz, D.P.G. and Rao Aatif Nawaz for the State.

Date of hearing: 8th March, 2007.

P L D 2007 Lahore 482

Before Jawwad S. Khawaja, J

REHMAT ULLAH--- Appellant

Versus

MUHAMMAD SHAFI and others-Respondents

Regular Second Appeal No.26 of 2005, heard on 28th February, 2007.

(a) Pleadings---

----Evidence led by parties---Effect---General rule that evidence led by party cannot override its pleadings, has not to be applied mechanically as an inviolable mantra---Circumstances of each case determine propriety of applying such legal principle.

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

----O. VI, R.1, O.X, R.1 & S.100---Second appeal---Pleadings---Object and scope---Better statement---Effect---Subsequent to filing of suit, one of the plaintiffs changed his stance in better statement and stated before the court that out of total consideration amount a sum of Rs.200,000 was not to be paid by them---Stance taken by the plaintiff in his better statement remained unaltered during his evidence---Trial Court decreed the suit in favour of plaintiffs and held that amount of Rs.200,000 was not payable to defendant--Judgment and decree passed by Trial Court was maintained by Appellate Court---Validity---Primary purpose of pleadings was to put opposing parties on notice of the case they would be required to prove or answer---Controversy between parties was reduced into issues---Evidence was led, focused on the issues---Such procedure ensured that neither side in a case was caught unaware and thus prejudiced---On account of better statement, specific issue was framed in relation to disputed sum, parties were fully conscious of the claims respectively set up by them---Parties led evidence in support of their competing pleas relating to contentious amount of Rs.200,000---Only proper course available to the courts below was to determine whether or not plea of plaintiffs was believable---Both the Courts below had rightly come to the conclusion that plaintiffs had successfully proved their case---High Court in exercise of appellate jurisdiction declined to interfere with the judgments and decrees passed by the courts below---Second appeal was dismissed in circumstances.

Tahir Munir Malik for Appellant.

Malik Amjad Pervez for Respondents.

Date of hearing: 28th February, 2007.

P L D 2007 Lahore 485

Before Umar Ata Bandial, J

AMJAD IKRAM---Petitioner

Versus

LAHORE CANTONMENT COOPERATIVE HOUSING SOCIETY LTD. Through Secretary and 2 others---Respondents

Writ Petition No.2414 of 1995, heard on 23rd January, 2007.

(a) Defence Housing Authority Lahore Order (26 of 2002)---

----Art. 18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Using of residential premises for purpose of school for last 17 years---Conversion of Lahore Cantt. Cooperative Housing Society into Defence Housing Authority---Defence Housing Authority Lahore Order, 2002 prohibited use of residential property for any other purpose---Plea of allottee that Defence Housing Authority at relevant time had not objected to establishment of school thus, was estopped from removing school--Validity---Plea of promissory estoppel could not validate an illegal act for the future---Past commercial use by allottee of his house without authorization from the authority could be safeguarded against penal action---Such unauthorized user would constitute sufficient accommodation to allottee---Property would remain in ownership of allottee---Impugned action would not forfeit proprietary rights of allottee, rather was consistent with his proprietary rights and in furtherance of intent of By-laws of Defence Housing Authority-Estoppel pleaded by allottee would not create a legal bar---Relief claimed by allottee was against the statute and was illegal---High Court dismissed constitutional petition.

(b) Estoppel---

----Promissory estoppel, plea of---Such plea cannot validate an illegal act for the future.

Mubashir Latif Ahmad for Petitioner.

Ashtar Ausaf Ali for Respondent.

Date of hearing: 23rd January, 2007.

P L D 2007 Lahore 490

Before Nasim Sikandar, J

MUHAMMAD HAMEED---Petitioner

Versus

DISTRICT OFFICER (REVENUE), LAHORE and another ---Respondents

Writ Petition No.1359 of 2007, decided on 14th March, 2007.

Registration Act (XVI of 1908)---

----Ss. 17 & 60---Punjab Registration Rules, 1929, R.137---Punjab Finance Act (V of 1989), S.7 [as amended by S.15 of Punjab Finance Act (III of 2006)]---Transfer of Property Act (IV of 1882), S.54---Constitution of Pakistan (1973), Art.199---Constitutional petition---Levy of Capital Value Tax---Registration of document---Verification of ownership---Non-issuance of certificate of registration---Sale transaction---Scope---Petitioner purchased a property and Local Commissioner, after completing the sale-deed, presented it to Sub-Registrar on 23-6-2006, for registration---Sub-Registrar refused to accept the document on the ground that it was not supported with any documentary proof of ownership of seller, therefore, in view of R.137 of Punjab Registration Rules, 1929, the registration was deferred to make up the flaw, whereafter Capital Value Tax would be imposed upon petitioner---Validity---Registration Act, 1908, did not empower Sub-Registrar to probe into ownership of property which was subject matter of sale transaction---Even if probing or verification of ownership was to be made, it should have been made before asking the seller to put his signatures to authenticate transaction both directly or through a Local Commissioner---Sale transaction, in case it was brought into black and white was complete when it was confirmed by parties---Transaction was complete when seller put his signatures and thumb-impressions on the document in presence of witnesses and also Local Commissioner appointed by Sub-Registrar---Seller having accepted receipt of consideration, the purchase or acquisition of title by petitioner as purchaser was complete---Since amendment in S.7 of Finance Act, 1989, by way of S.15 of Finance Act, 2006, providing for levy on such like transaction came into effect on 1-7-2006, it was past and closed transaction as far the levy was concerned---Sale deed in, question could not be brought to levy merely for the reason that its registration, for any reason whatsoever took place or was to be made after 1-7-2006---Petitioner having presented the document well before the date of levy viz. 1-7-2006, he could not be held responsible for its non-registration, therefore, levy of Capital Value Tax could not fall upon him---Petition was allowed in circumstances.

Muhammad Akram Javed for Petitioner.

Rafey Ahmad Khan, A.A.-G.

Aamir Ali Chisty, Deputy District Officer (Revenue), Lahore.

P L D 2007 Lahore 495

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

FARMAN ALI and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeals Nos. 1675 to 1677 of 2001 and Murder Reference No.16 of 2002, heard on 26th April, 2007.

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

----Ss. 302(b) & 34---Appreciation of evidence---Occurrence had taken place in broad-daylight and F.I.R. in respect of the same had been lodged with reasonable promptitude wherein both the accused had specifically been named as the perpetrators of the alleged murder and an active participation in the occurrence had been attributed to them---Place of occurrence was a pacca road which was a thoroughfare frequented by inhabitants of the Chak and the same was situated within the area of the relevant Chak---Fire-arms had repeatedly been used in the occurrence and, thus, it was well nigh impossible to believe that the incident had remained unnoticed or un-witnessed and the culprits involved in the same had remained unknown and unidentified---Prosecution had produced two eye-witnesses before the trial Court, one of them, who was also complainant was the real father of the deceased and he had absolutely no reason to falsely implicate the accused persons in the brutal murder of his son; he had made a consistent statement before the trial Court regarding the main occurrence and had categorically put his accusing finger on both the accused persons---Any inconsistency in his statement regarding the place where the F.I.R. had been lodged by him did not detract from the overall veracity of his statement regarding the main incident---Other eye-witness was an independent witness and was not related to the deceased or to the complainant and no plausible reason was brought on record of the case to show as to why he had falsely incriminated the accused persons in the murder case; he too had made a consistent statement before the trial Court---Consistency and forthrightness of the statements made by both the eye-witnesses had not only inspired confidence of the trial Court but the same was found impressive by the High Court F.I.R., as well as the documents available on record and as admitted at all hands, the place of occurrence was pacca road situated in the relevant chak which road was frequented by the inhabitants of the said chak, thus a passerby on a thoroughfare could not be ipso facto branded and brushed aside in a criminal case as a chance witness---Ocular account furnished by the prosecution witnesses had received full support from the medical evidence as well as the site plan of the place of occurrence inasmuch as the date and time of occurrence, the distance between the assailants and the victim, the weapon used and the locale of the injuries stated by the eye-witnesses had all been confirmed by the medical evidence as well as by the site plan of the. place of occurrence---Post-mortem examination of the dead body had been conducted within five and a half hours of the occurrence and within three and a half hours of lodging of the F.I.R. which was possible only when the F.I.R. had already been registered and the necessary police papers were ready prior to conducting the postmortem examination---All such things go a long way in confirming prompt lodging of F.I.R. and availability of the eye-witnesses at the relevant time---Close range of the fires at the deceased had also been alluded to in the F.I.R. Which had subsequently been confirmed by the Post-mortem Examination Report and had further affirmed that the complainant and the other eye-witnesses relied upon by the prosecution had indeed witnessed the incident--Number of firearms injuries clearly highlighted that the assailants firing at the deceased were more than one in number and that the deceased had received many shots fired at him from different angles---Fullest support, in circumstances, to the ocular account had been provided by the medical evidence produced by the prosecution vis-a-vis both the accused---Undisputed matching of crime empties with the gun recovered from the possession of one accused had provided strong corroboration to the ocular account qua the said accused---Statement of witness and record revealed that other accused had remained a Proclaimed Offender in connection with the murder of deceased for a period of about a year and five months---Record further manifested that all the necessary steps had been duly taken by the police in connection with getting the said accused declared Proclaimed Offender and nothing had been brought out by the defence through the cross-examination of the witness in order to controvert the regularity and correctness of the procedure followed in that regard---Such protracted and unexplained absconsion of the accused in connection with the case had provided corroboration to the ocular account to his extent and had un-mistakenably hinted at his culpability qua the offence in issue---Motive set up by the prosecution in the F.I.R. .and deposed about by the eye-witnesses had remained unsubstantiated and unproved---Prosecution's case in that respect was quite vague and unspecific and admittedly no independent proof regarding the same had been produced by the complainant party either before the Investigating Officer or before the trial Court--Failure on the part of prosecution to prove the motive set up by it, however, would not adversely affect the overall strength of the prosecution case against the accused persons which had been fully proved and established through the consistent ocular account supported by the medical evidence and corroborated by the recovery of weapon from the one and abscondence of the other---Held, prosecution, in circumstances, had succeeded in establishing the guilt of accused persons to the hilt vis-a-vis the murder---Convictions and sentences recorded by the trial Court were upheld by the High Court.?

Muhammad Ahmad and another v. The State and others 1997 SCMR 89 ref.

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

---Ss. 302(b) & 34---Appreciation of evidence---Chance witness---Passerby on a thoroughfare cannot, ipso facto, be branded and brushed aside as a `chance witness'.?

Muhammad Ahmad and another v. The State and others 1997 SCMR 89 ref.

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

---Ss. 302(b) & 34---Appreciation of evidence---Motive---Failure on the part of the prosecution to prove the motive set up by it does not adversely affect the overall strength of the prosecution case which has been found by the Court to have been fully proved and established through the consistent ocular account supported by the medical evidence and corroborated by the recovery of crime weapon from the one accused and abscondence of the other.?

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

----Ss. 302(b) & 34-Appreciation of evidence---Capital punishment--Common intention---Prosecution had succeeded in establishing the guilt of both the accused to the hilt vis-a-vis the murder in issue---Contention that it was not clear as to which of the two accused had caused the fatal firearm injury to the deceased, and thus, it would be unsafe to uphold and maintain their capital sentences---Validity---Accused persons had ambushed and waylaid the deceased and had fired multiple shots from their fire-arms at different parts. of the deceased's body which clearly established that both the accused shared a common intention to commit his murder---Any question as to which of the culprits had caused the fatal injury to the deceased was irrelevant because by virtue of S.34, P.P.C. presumption was that each of the two accused had caused each one of the injuries sustained by the deceased---No significance thus could be attached to the plea that it could not be established as to whose shot had proved fatal to the deceased---Deceased, in the present case, was a young man who had been brutally gunned down by the accused persons through multiple shots fired by them at him on different parts of his body---Such brutality perpetrated by the accused persons upon the deceased called for no sympathy in the matter of their sentences---Appeals by the accused persons against their sentences were dismissed and their convictions and sentences recorded by the trial Court were upheld and maintained by the High Court---Murder Reference was answered in the affirmative accordingly.?

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

----Ss. 302(b) & 34---Appreciation of evidence---Allegation of abetment in conspiracy---Benefit of doubt---Co-accused, admittedly was not present at the scene of the crime at the relevant time and the allegation levelled against him by the prosecution was in respect of providing behind the scene abetment to the main accused persons---Similar allegation had also been levelled by the prosecution against two others co-accused who had been acquitted by the trial Court---Allegation qua abetment levelled against the co-accused had stemmed from the motive set up by the prosecution, and if the said motive had remained unproved then the allegation regarding abetment had no legs to stand upon and the same had collapsed---Witness deposing about the alleged abetment had failed to attribute any particular utterance to one of the main accused during the alleged meeting between the said accused and the co?-accused---Said witness had claimed to have peeped through a window pane of the `Baithak' of main accused and had thereby seen and heard the said accused and the co-accused hatching a conspiracy to murder the deceased---Validity---Held, a conspiracy to commit a murder was generally not hatched at open places or within the view or hearing of outsiders and statements made by peeping toms or cave$ droppers in support of such an allegation was to be looked at with suspicion and caution---Prosecution, in circumstances, had failed to prove its case against the co-accused beyond reasonable doubt---Appeal of the co-accused was allowed, his conviction and sentence recorded by the trial Court were set aside and he was acquitted of the charge by extending him benefit of doubt by the High Court.?

Fakku Mia alias Motahar v. The State 1969 SCMR 620 ref.

Syed Zahid Hussain Bukhari for Appellant (in Criminal Appeal No.1675 of 2001).

Ahmad Awais for Appellants (in Criminal Appeals Nos.1676 and 1677 of 2001).

Naeem Tariq Sanghaira, Deputy Prosecutor-General for the State.

Asghar Ali Gill for the Complainant.

Date of hearing: 26th April, 2007.

P L D 2007 Lahore 507

Before Nasim Sikandar, J

OKARA TEXTILES LIMITED and another---Petitioners

Versus

DEPUTY DISTRICT OFFICER (REGISTRATION) OKARA and another---respondents

Writ Petition No.17807 of 2005, decided on 17th April, 2007.

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

----S. 33---Constitution of Pakistan (1973), Art.199---Constitutional petition---Expressions produced' andin the performance of functions' used in S.33, Stamp Act, 1899---Interpretation---Registrar, requiring production of document under S.33, Stamp Act, 1899 on the ground that it was not duly stamped after the document had been registered and delivered to the party concerned, could not be said to be acting in performance of his functions'---Reference by Registrar to the Collector under S.33 of the Act was also ultra vires as was the order of the Collector raising demand of extra duty and penalty---Party could not be compelled to produce the document after its registration; Registering Authority became functus officio to impound the document as contemplated in S.33(1) of Stamp Act, 1899---Impounding of document after the same had been registered was liable to be set aside---Plea that the sale-deed in question wasunder valued' and that it was a fraudulent transaction, had to be supported by material on record---Principles.

Thakar Das and others v. The Crown AIR 1932 Lah. 495; Lala Uttam Chand v. Perman Nand and others AIR 1942 IC Vol. 203, p.7; Komal Chand and another v. The State of Madhya Pradesh AIR 1966 Mad. Pra. 20 and Khurshid Begum v. Sub-Registrar and 2 others 2001 CLR 337 rel.

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

----Ss. 33 & 27-A [as added by Punjab Finance Act (IV of 1986)]---Valuation of property---Allegation of deficiency in the Stamp duty---Registrar, at the relevant time (1981), had no jurisdiction to dispute the value of a property as disclosed by parties to the transaction; his competence to proceed to require making up deficiency in the Stamp, was relatable only to the declared value and not a value assessed by him and his competence to insist upon a minimum value notified under S.27-A of the Stamp Act, 1899 only came into being in the year 1986---Computation of the value of the property transacted in the year 1981 on the basis of the table notified under S.27-A, Stamp Act, 1899 for the year 2005/2007 was fallacious.

(c) Jurisdiction---

---Conferring/vesting of---Scope---Consent of parties---Effect---Except where provided by law itself, the consent of the parties cannot confer jurisdiction on any Court, Tribunal or Authority which is otherwise not available to it---Consent or undertaking of parties cannot deprive a forum, Court, Tribunal or Authority of the jurisdiction which is vested in it by law.

(d) Fraud---

---Allegation of fraud has to be in every detail.

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

---Ss. 33 & 27-A---Sale-deed executed directly by a Senior functionary being a representative of the Federal Government at a particular value has a better case under the Stamp Act, 1899.

Messrs Shan Traders v. The Assistant Commissioner of Income and others 2007 PTD 512 ref.

(f) Constitution of Pakistan (1973)---

---Art. 199---Constitutional jurisdiction---Scope---Constitutional petition is maintainable where impugned order is without jurisdiction.

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

---S. 3, proviso (1)---Instrument of sale-deed having been executed on behalf of government, no duty was chargeable to it in view of proviso (1), to S.3 of Stamp Act, 1899.

Syed Mansoor Ali Shah for Petitioners.

Rafey Ahmed Khan, A.A.-G. for Respondent No.1.

Mian Subah Sadiq Klassan for Respondent No.2.

Date of hearing: 27th March, 2007.

P L D 2007 Lahore 515

Before Mian Saqib Nisar, J

MUHAMMAD AKRAM---Petitioner

Versus

Mst. HAJRA BIBI and 2 others---Respondents

Writ Petition No.10626 of 2006, decided on 11th April, 2007.

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

----S. 5 & Sched.---Transfer of Property Act (IV of 1882), Ss.130 & 3--- Constitution of Pakistan, 1973, Art. 199---Constitutional petition---Column No.17 of the Nikahnama contained the stipulation that in case of sour relations between the spouses or divorce by the husband, a sum of Rs.1,00,000 shall be paid to the wife---Suit of wife for dissolution of marriage was decreed, whereafter she brought the suit for recovery of Rs.1,00,000 which was dismissed by the Family Court holding that her suit was not maintainable before the Family Court and she was liable to file ordinary civil suit for the recovery of the said amount---Appellate Court, however, found that matter fell within the purview of Entry No.9 of the Schedule to S.5, 'West Pakistan Family Courts Act, 1964 and suit was competent---Validity---Held, Entry No.9 of the Schedule to S.5, West Pakistan Family Courts Act, 1964 did not cover any amount which was not yet the property of the wife' and she only had a claim to recover the amount from the husband on the basis of any special condition incorporated in the Nikahnama---Such claim could not be equated as apersonal property belonging to wife'---Amount in question was also not covered under the rule of `actionable claims' as envisaged by S.130, Transfer of Property Act, 1882---Family Court in circumstances, had no jurisdiction in the matter and the suit in that behalf before the said Court was not competent---Principles.

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

----Ss. 130 & 3---Term `actionable claim' in general means, a claim for which an action will lie, furnishing a legal ground for an action and according to S.3, Transfer of Property Act, 1882, a claim towards a debt.

Muhammad Khan Ranjha for Petitioner.

Mehmood-ul-Hassan Bhatti for Respondents.

Date of hearing: 11th April, 2007.

P L D 2007 Lahore 518

Before Mian Saqib Nisar and Fazal-e-Miran Chauhan, JJ

M. KHURRAM MUGGO---Appellant

Versus

Mst. PERVEEN HAMEED MUGGO and 3 others---Respondents

R.F.A. No.392 of 2006, heard on 10th April, 2007.

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

----O. VI, R. 11---Rejection of plaint---Broad principles to be kept in view by the court for rejection of plaint on account of non-disclosure of cause of action---Term `cause of action'---Meanings.

The expression "cause of action" has been compendiously defined to mean every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence, which; is necessary to prove each fact but every fact which is necessary to be proved. It means .action for which the defendant is answerable to the Court; everything which, if not proved, would give the defendant a right to an immediate judgment, must be part of cause of action.

The term "cause of action" refers to every fact which if traversed, was necessary for the plaintiff to prove in order to support his right to judgment and if not proved, gives the defendant a right to judgment.

"Cause of action" means the whole of the material facts which it is necessary for the plaintiff to allege and prove in order to succeed.

It means the totality of essential facts, which it is necessary for the plaintiff to prove before he can succeed.

Plaint can only be' rejected when the averments made therein if accepted in mode and form, do not entitle plaintiff to a relief. Provisions of Order VII, Rule 11, C.P.C. could be invoked if there was no room for any other possible approach to the case and no triable issue was made out in case or suit was clearly hit by any mandatory provisions of law justifying rejection of plaint.

For the purpose of determination whether plaint discloses a cause of action or not, Court has to presume that every averment made in the plaint is true, 'therefore, power to reject the plaint under Order VII, rule 11 must be exercised only if the Court comes to the conclusion that even if all the allegations are proved, the plaintiff would not be entitled to any relief whatsoever.

The Court may also take into consideration certain admitted or uncontroverted material placed on the record by the defendant, the genuineness and the veracity of which is beyond doubt and by looking whereupon, the Court comes to the conclusion that to continue with the suit shall be a futile exercise and/or the case has been filed by the plaintiff with manifest dishonesty of purpose, oblique object, to retain or claim the benefit of such gain which the plaintiff is not entitled to, and to simply cause prejudice and harassment to the defendant of the case.

The settled statement of law, is (1) that the parties to a lis cannot prove their case beyond the scope of their pleadings, (2) it is essential and mandatory that the foundation of the facts whereupon the structure of proof has to be built must be laid down in the pleadings, (3) and this is specifically required from the plaintiff of the case who has brought the machinery of the court into motion to do so, (4) if the necessary foundation of the facts is lacking in the pleadings, the structure beyond it, even if attempted to be raised and the evidence in this behalf is brought on the record, it shall be ignored by the Court.

Muhammad Khalil Khan and others v. Mahbub Ali Mian and others PLD 1948 PC 131; Abdul Hakim and 2 others v. Saadullah Khan and 2 others PLD 1970 SC 63; Haji Mitha Khan v. Muhammad Younus and 2 others 1991 SCMR 2030; Said and others v. Fazal Hussain and others PLD 1959 SC 356 and Abdul Waheed v. Mst. Ramzanu and others 2006 SCMR 489 ref.

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

----S. 42---Suit for declaration---Concept of custody cannot be equated with the entitlement and right to any property, which is a condition for the grant of the declaration within the purview of S.42, Specific Relief Act, 1877---Custody also has nothing to do with the legal character of a person.

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

----O. VII, R. 2---Suit for rendition of account---Essentials---Defendant in such suit must be an `accounting party' and on account of their legal relationship, the defendant is obliged to render the accounts---Where neither such relationship has been asserted in the plaint nor established on the record, the plaintiff had failed to show that the defendant, in any way, was accountable to him.

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

----S. 42---Suit for declaration---Plaintiff was not even shareholder of the Company and it was not established if the shares transferred in favour of the defendants were illegal and unlawful, therefore simply asserting on the baseless grounds his right to the shareholding, the plaintiff could not claim any right to the profits, dividends or any benefits, which had been gained by the defendants from the said shareholding---Plaintiff could not assert that he had any entitlement to any movable or immovable properties created by the defendants on the basis of any profits occurring from such shareholding, therefore, he could not seek declaration of the ownership of any such property vaguely mentioned in the plaint.

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

----O. VII, R.11---Specific Relief Act (I of 1877), S.42---Limitation Act (IX of 1908), Art.120---Suit for declaration---Rejection of plaint for non-disclosure of cause of action---Limitation---Agreement for the transfer of shareholding, admittedly was executed in the year 1992; plaintiff had failed to challenge the agreement within time even if maximum period was provided to him under residuary Article 120 of the Limitation Act, 1908, which envisaged six years from the date of the accrual of the cause of action---Plaint did not show, if the defendants ever accepted the plaintiff's right to the shares, and therefore, he got the cause of action from the date of denial, which fell within the requisite period---Alleged cause of action by the plaintiff was not recurring one and had not accrued to him as averred in the plaint---Suit being barred by time, plaint was liable to be rejected for such reason as well.

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

----O. VII, R.11---Specific Relief Act (I of 1877), S.42---Limitation Act (IX of 1908), Art.127---Suit for declaration---Limitation---Plaintiff had not been able to even establish on the basis of the averments of the plaint that he had any right in the shares of the company or any other assets referred to in the plaint, which could be said to be a joint family property, from which he had been excluded---Article 127, Limitation Act, 1908 had no application to the case, in circumstances---Period of 12 years was to be reckoned from the date when the exclusion became known to the plaintiff---Agreement of the transfer of the shares in question in the present case, was executed on 21-5-1992 and it was not the case of the plaintiff that he was unaware of the same, thus the present suit brought by the plaintiff on 6-2-2006 was beyond the time provided by Art.127 of the Limitation Act, 1908.

Bhuru Mal v. Jagannath and others AIR 1942 PC 13 distinguished.

Ali Sibtain Fazli for Appellant.

Zaeem-ul-Farooq Malik for Respondents Nos. 1 and 2.

Agha Abu-ul-Hassan Arif for Respondents Nos. 3(i) & (ii).

Salman Akram Raja and Kh. Nasir Maqsood for Respondent No.4.

Date of hearing: 10th April, 2007.

P L D 2007 Lahore 529

Before Umar Ata Bandial, J

Ch. WARIS ALI and others---Petitioners

Versus

E.D.O.(R) and others---Respondent

Writ Petition No. 9518 of 2006, decided on 5th April, 2007.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S.2---Constitution of Pakistan (1973), Art.199---Constitutional petition---Cancellation of allotment of evacuee property---Property purchased by petitioners under registered sale-deed and duly mutated in the revenue record, had been ex-propriated on the ground that it belonged to the Forest Department under the law declared by Supreme. Court in its judgment reported as 1991 SCMR 1426 which had provided that allotment of evacuee property in the possession of the Forest Department made by orders of the Settlement Authorities passed on or before 27-2-1965 had been protected and allotments made or alleged to have been made after said date had been declared illegal---Counsel for petitioners had alleged that impugned order was also passed without hearing the petitioners---Impugned order was alleged to be mechanical by failing to advert to the crucial criterion of date of allotment, whereby fate of title in the disputed land was to be determined---Petitioners were granted an opportunity to appear and establish before authorities through documentary material that date of allotment of disputed land was prior in time to the target date given in the judgment of Supreme Court, if that was accomplished the underlying premise of impugned order would disappear and authorities would have to pass a fresh order in accordance with law in the proceedings---Petitioners were given six weeks time to present such material before authorities---If petitioners failed to produce documentary material proving a qualifying data of allotment of disputed land by the Settlement Authorities within the time allowed, impugned order would stand.

Ch. Muhammad Nawaz Sulehria for Petitioners.

Sh. Abdul Aziz for the Petitioner other connected writ petitions.

Fawad Malik, A.A.-G., with Rehan Ahmad Khan, D.F.O. Sialkot and Imtiaz ul Hassan, Incharge Litigation.

P L D 2007 Lahore 531

Before Hasnat Ahmed Khan, J

Mst. NASREEN BIBI---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1 of 2007 in Criminal Appeal No.7 of 2007, decided on 27th March, 2007.

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

----S. 426---Penal Code (XLV of 1860), S.302(b)/34---Suspension of sentence---Accused had only facilitated the main accused who had caused the death of the deceased by choking his breath---Role attributed to accused of catching hold of the legs of the deceased needed reappraisal and reconsideration as to whether the same was necessary when two male accused had already overpowered the deceased---Accused was a lady and she had a suckling baby with her in jail---Principles embodied in S.497, Cr.P.C. could be considered while deciding the application for suspension of sentence---Sentence of imprisonment for life awarded to accused by Trial Court was suspended in circumstances and she was allowed bail accordingly.

Sughran and others v. The State 1992 MLD 2373 and Mst. Shafqat Tahira v. The State 2000 PCr.LJ 912 ref.

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

---Ss. 426 & 497---Suspension of sentence---Principles embodied in S.497, Cr.P.C. can be considered while deciding the application for suspension of sentence.

Sahibzada Farooq Ali Khan for Petitioner.

Ch. Anwar-ul-Haq for the Complainant.

Rao Atif Nawaz for the State.

P L D 2007 Lahore 534

Before Syed Shabbar Raza Rizvi, J

AKBAR ALI---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, FAISALABAD and 7 others---Respondents

Writ Petition No.4140 of 2007, decided on 3rd May, 2007.

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

----Ss. 420/468/471---Criminal Procedure Code (V of 1898), S.156---Constitution of Pakistan (1973), Art.199---Constitutional petition---Stay of investigation due to pendency of civil suit on the same subject-matter---Validity---D.I.G. on the legal advice of DSP had stopped the investigation in the F.I.R. on the basis that regarding the same property civil suit was pending before a Civil Court and criminal proceedings could not continue---Application of the petitioner against the said action of D.I.G. had been dismissed by the Sessions Court through the impugned order---Validity---Investigation of a case was not synonymous or interchangeable with the "proceedings" before a competent Criminal Court---Term `proceedings' was very comprehensive and meant a prescribed course of action for enforcing the legal right and necessarily embraced the requisite steps invoking judicial action---"Proceeding" would include every step taken towards the further progress of a cause in Court or before a Tribunal pending there---No proceedings in the present case were pending before a Criminal Court and the matter was still at investigation stage with regard to forgery of the sale-deed, which issue was also pending in the Civil Court---D.I.-G. had wrongly treated investigation before the Investigating Officer as "proceedings" before the Court of law and therefore had stayed the same and Sessions Court had also passed the erroneous order---Impugned order was consequently set aside with the direction to D.I.-G. and Investigating Officer to complete the investigation in accordance with law and submit the final report before the competent Court within the stipulated period---Whether proceedings before the Criminal Court would be legal or desirable before the completion of proceedings before the Civil Court, would be decided by the Criminal Court only at that stage---Constitutional petition was allowed accordingly.

PLD 2006 SC 771; 1982 SCMR 988; Muhammad Dildar Hussain v. Civil Judge/Judicial Magistrate 2000 PCr.LJ 43; PLD 2003 Kar. 309 and PLD 2005 Kar. 125 distinguished.

Nawaz-ul-Haq Chohan v. The State 2003 SCMR 1597; Ch. Zahoor Elahi v. The State PLD 1977 SC 273 and Mst. Karim Bibi v. Hussain Bakhsh PLD 1984 SC 344 ref.

(b) Bail---

----Proceedings---Meaning---Term "proceedings" includes all matters connected with and ancillary to the trial of a person charged before a special Tribunal, including the matter relating to grant of bail.

Ch. Zahoor Elahi v. The State PLD 1977 SC 273 ref.

(c) Proceedings---

----Connotation---Term "proceedings" is a very comprehensive term and generally speaking means a prescribed course of action for enforcing the legal right, and hence it necessarily embraces the requisite steps by which judicial action is invoked---"Proceeding" would include every step taken towards the further progress of a cause in Court or before a Tribunal, where it may be pending.

Mst. Karim Bibi v. Hussain Bakhsh PLD 1984 SC 344 ref.

(d) Words and phrases---

----"Proceedings"---Connotation.

Ch. Zahoor Elahi v. The State PLD 1977 SC 273 and Mst. Karim Bibi v. Hussain Bakhsh PLD 1984 SC 344 ref.

Hafiz Khalil Ahmad for Petitioner.

P L D 2007 Lahore 538

Before Umar Ata Bandial, J

IDREES TARIQ---Petitioner

Versus

WAPDA and others---Respondents

Writ Petition No.4653 of 2006, decided on 10th January, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Wrongful act---Cancellation of membership of society---Compensation---Petitioner was member of respondent society and deposited cost of land and development charges---Subsequently petitioner deposited further dues against his own name but under wrong membership number---Society cancelled the membership on account of such default of petitioner---Plea raised by petitioner was that due to wrongful cancellation of membership, he was deprived of a plot---Validity---Petitioner deposited amount with the society which was utilized for development work carried out by the society---On account of established wrongful acts by the society, petitioner was prevented from maturing his entitlement to allotment of a plot for which he managed to pay about 45% of the price---Loss suffered by petitioner by denial of opportunity to make full payment of price of plot formed fair and reasonable basis for awarding compensation to him---Such approach would compensate the petitioner with corresponding benefit accruing on his investment towards the allotment of a plot and would likewise impose on the society a burden corresponding to the advantage derived by the society from the petitioner's investment---Compensation awarded by authorities, based upon mark-up on the amount deposited, was neither relevant nor justified---Order passed by authorities was set aside---Right of petitioner to receive compensation was duly established on record and was not challenged by the society--High Court directed the society to expeditiously take steps to quantify the benefit that was due to the petitioner and to award the same to him as compensation---Petition was allowed accordingly.

Muhammad Hussain Awan for Petitioner.

Waqar A. Sheikh for Respondent-Society.

P L D 2007 Lahore 541

Before Umar Ata Bandial, J

Ch. ABDUL MAJEED---Petitioner

Versus

ELECTION TRIBUNAL and others---Respondents

Writ Petition No.3372 of 2006, decided on 25th April, 2006.

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

---Rr.60(1) & 67---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Recounting of ballot papers---Election Tribunal, jurisdiction of---Contention of petitioner was that Election Tribunal passed order for recounting of votes on the ground which was not mentioned by respondents in their application---Validity---Jurisdiction to grant recounting was available with Election Tribunal which had the power to grant relief ancillary to the main relief enumerated in R.67 of Punjab Local Government Elections Rules, 2005---General power had also been conferred upon the Tribunal contained in R.60 (1) of Punjab Local Government Elections Rules, 2005, wherein opening of packets containing ballot papers and inspection of ballot papers was permissible to the Tribunal at any stage---Such a wide power could be exercised in order to carry out recount of votes cast---Order for recount of votes passed by Election Tribunal was not without jurisdiction and illegal---Contention of petitioner that ground taken by Election Tribunal in its orders should also have been mentioned by respondents in their application for recounting was a technical point---Petitioner was granted opportunity to rebut the operative ground which had not been done because it was self-evident from result sheet prepared by Returning Officer---High Court in exercise of constitutional jurisdiction, declined to interfere with the approach adopted by Election Tribunal in its order of recount, which order was passed in exercise of lawful jurisdiction and there was no illegality about it---Petition was dismissed in circumstances.

Muhammad Naeem Kasi and another v. Abdul Latif and 7 others 2005 SCMR 1699; Sh. Iftikhar ud Din and another v. District Judge, Bahawalpur 2002 SCMR 1523; Muhammad Iftikhar and another v. District and Sessions Judge, Faisalabad 2003 CLC 254; Malik Irshad Hussain v. Muhammad Ashraf Nagra 2003 YLR 812; Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another PLD 1986 SC 542 and Liaquat Ali and another v. Election Tribunal, Sialkot and others 2003 SCMR 1313 rel.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court, under constitutional jurisdiction, is concerned with legality of impugned order and propriety in exercise of jurisdiction by Tribunal subordinate to it---High Court ensures that no injustice is done to a party as a result of a decision made in lawful exercise of jurisdiction by a statutory Tribunal and that substantial justice is done between the parties.

Tahir Munir Malik for Petitioner.

Zafar Iqbal Chohan for Respondent No.2.

Iqbal Hameed ur Rehman for Respondent No.3.

P L D 2007 Lahore 544

Before Syed Zahid Hussain, J

NADEEM ASGHAR KAIRA---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary, Local Government and Community Development Department---Respondent

Writ Petition No.4709 of 2007, decided on 8th June, 2007.

Punjab Local Government Ordinance (XIII of 2001)---

----S. 112---Constitution of Pakistan (1973), Arts. 19 & 32---Constitutional petition---Approval of budget presented by Nazim---Initially the Council and then the government, in the present case, had failed to prepare, approve and authenticate the budget as envisaged by S.112, Punjab Local Government Ordinance, 2001-7-Council had remained dormant due to such failure, resulting in deprivation of local population of the developmental activities and programmes---Financial year was about to be over but the budget had not yet been prepared or approved upon which the whole developmental work was dependent---If the Council had failed in preparation of the budget the Provincial Government was obliged to act under S.112(7), Punjab Local Government Ordinance, 2001, which had also failed to perform its legal obligation and duty---One of the principles of Policy contained in Art.32 of the Constitution was that "the State shall encourage Local Government Institutions composed of elected representatives of the area concerned" and it was the responsibility of the State-to observe and implement such principles of Policy---Alternate remedy for the petitioner to approach the Provincial Local Government Commission, appointed by the Government pursuant to the provisions of Ss.131 & 132 of the Punjab Local Government Ordinance, 2001 could not be countenanced, particularly when only few days were left in the expiry of financial year---Such a remedy even if regarded as alternative could not be considered as efficacious or speedy in the peculiar circumstances of the present case---Article 199 of the Constitution conferred jurisdiction upon the High Court to make an order directing a person to do something he was required by law to do; this was comparable to writ or order of mandamus and present was an appropriate case for direction to the Government to perform its legal duty and obligations as envisaged by the Punjab Local Government Ordinance, 2001, to prepare, approve and authenticate the budget and also to approve such development schemes as may be in accordance with law and the rules within a fortnight---Order accordingly.

Judicial Review of Public Actions, Vol. 2, p.1071 by Justice (R.) Fazal Karim; Shifa Laboratories, Lahore v. Government of Pakistan through Secretary, Health, Ministry of Health and Population, Planning and Health Division, Islamabad and another PLD 1978 Lah. 1040 and Makhdoom Muhammad Mukhtar, Member Provincial Assembly, Punjab v. Province of Punjab through Principal Secretary to Chief Minister, Punjab, Lahore and 2 others PLD 2007 Lah. 61 ref.

Ghazanfar Ali Gul for Petitioner.

Aamir Rehman, Addl. A.-G., Punjab for Respondent.

Date of hearing: 8th June; 2007.

P L D 2007 Lahore 550

Before Sh. Azmat Saeed and Umar Ata Bandial, JJ

Messrs GOLDEN FALCON TRAVEL SERVICES (PVT.) LTD. through Director-Appellant

Versus

MINISTRY OF RELIGIOUS AFFAIRS, HAJJ, ZAKAT, USHER, GOVERNMENT OF PAKISTAN through Secretary, Islamabad and 2 others---Respondents

Intra-Court Appeal No.357 in Writ Petition No.11035 of 2006, decided on 15th May, 2007.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Judicial review---Executive discretion---Petitioners were aggrieved of the decision of authorities whereby no criteria was laid down for the grant of licence to operate as Hajj Group Organizers---Validity---High Court was not to assess stringency or scope of criteria of selection of Hajj Group Organizers as it was established by authorities; however it remained a fundamental concern of the law that executive discretion in the hands of public authorities was duly structured on the basis of lawful criteria having nexus with the object of applicable law or policy; and that government agency and licence were awarded on the basis of such criteria through a transparent process---To appreciate, the impact of and compliance with such principle, High Court could consider the nature, purpose and relevance of the criteria of selection adopted by a public authority.

Government of N.-W.F.P. through Secretary and 3 others v. Mejee Flour and General Mills (Pvt.) Ltd. Mardan and others 1997 SCMR 1804 rel.

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

----S. 3---Intra-Court appeal---Executive discretion---Petitioners were aggrieved of the decision of authorities whereby no criteria was laid down for the grant of licence to operate as Hajj Group Organizers---Constitutional petitions filed by petitioners were dismissed by Single Bench of High Court---Validity---Action of authorities showed that very simple considerations were applied to renew existing Hajj Groups Organizers and likewise to induct new Hajj Groups Organizers without open competition; thereafter such Hajj Groups Organizers were granted an automatic renewal for Hajj 2007 which tantamount to a government policy that conferred exclusive rights akin to monopolies upon such Organizers which ran counter to the constitutional principle and which otherwise lacked transparency and fairness that was derived from criteria specified to structure and regulate discretion---Selection of Hajj Groups Organizers seemed unsatisfactory insofar as selection of the Organizers was primarily subjective due to lax conditions of eligibility---Effectively only objective test was lack of complaints received from past users/Hajis---Such criterion favoured past Organizers and discriminated against new applicants for failing to test the capacity and capability of all applicants objectively---In order to bring fairness into the selection process and efficiency in its outcome, transparency and competition were its essential attributes as mandated by settled legal rules---Division Bench of High Court declared that so far superstructural rights were concerned, the selection of Hajj Groups Organizers suffered from non-transparency and non-competition and therefore were illegal---Such selection was accordingly declared to be void and of no legal effect for the purposes of allocating to parties new rights and liabilities that were extraneous to the appointments for and obligations rendered at Hajj 2006---Division Bench of High Court further declared that authorities were under a duty to select their Hajj Groups Organizers through a- process that was fair, transparent and based on free and open competition for appointment strictly on merits---Authorizations having been given by the authorities for Hajj 2007 were provisional, therefore, no vested right of nominees could arise with respect thereto; in any event such provisional nominees could conveniently compete in a selection process of the Organizers for Hajj 2007 that was framed by authorities strictly in accordance with law---Intra-Court Appeal was allowed accordingly.

Arshad Mehmood and others v. Government of Punjab PLD 2005 SC 193 rel.

Malik Abdul Majeed Khan for Appellant.

Asad Munir, D.A.G. and Dr. Danishwar Malik, DAG.

Talib H. Rizvi and Afzil H. Razvi Ch. Muhammad Saleem and Muzafar Hussian Mian for Respondents.

Dates of hearing: 9th and 10th May, 2007.

P L D 2007 Lahore 560

Before Khawaja Muhammad Sharif, J

THE STATE---Petitioner

Versus

Ch. SHAHID HUSSAIN, ADVOCATE---Respondent

Criminal Original No.13 of 2005, decided on 29th March, 2007.

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

----Ss. 3 & 4---Contempt of Court---On a reference received from District and Sessions Judge, submitted by complainant Judicial Magistrate, proceedings for contempt of court were initiated against an Advocate/alleged contemnor---Complainant/judicial Magistrate had alleged that on the date and time of occurrence when a bail petition submitted by the Advocate was dismissed, he came in her court in an angry mood and used indecent language against complainant in relation to the dismissal of his said bail petition---Complainant explained that accused insisted for the grant of bail on a ground of compromise, but since offence against his client was non-compoundable, bail was refused by complainant which was strictly in accordance with law---Witness produced by complainant was not eye-witness to the incident alleged against accused Advocate qua his behaviour towards complainant---Said witness almost talked about general misbehaviour of accused towards Judicial officers, but did not adduce anything to prove the allegation---Counsel for accused/contemnor while concluding his arguments; had tendered apology on behalf of accused with an undertaking that accused had utmost respect and regard for judiciary and its all organs---High Court during course of proceedings, spread over about two years, minutely kept on an eye on the attitude of accused Advocate and noted that he acted like a man of normal prudence---Proceedings initiated against accused Advocate were dropped requiring no penal action---Some crucial aspects of the case having come into the notice of the High Court and since without cordial relations between Bar and Bench, peaceful atmosphere could not be created, accused Advocate was directed to further improve his behaviour towards Presiding Officers of the courts of law so that mutual harmony could prevail and no body should suffer.

Ch. Muhammad Hanif Khatana, Addl. A.-G., Punjab/Public Prosecutor for the State.

Dr. Muhammad Akmal Saleemi for Respondent with Respondent in person.

Date of hearing: 16th March, 2007.

P L D 2007 Lahore 566

Before Umar Ata Bandial, J

ZAIN ULLAH KHAN---Petitioner

Versus

ADDITIONAL DIRECTOR and others--Respondents

Writ Petition No.17034 of 2005, decided on 8th December, 2006.

Penal Code (XLV of 1860)---

----S. 409---Prevention of Corruption Act (II of 1947), S.5---West Pakistan Anti-Corruption Establishment Ordinance (XX of 1961), S.3---Constitution of Pakistan (1973), Art.199--Constitutional petition-- Petitioner, a public servant, was an accused person in an F.I.R. registered under S.409, P.P.C., but during investigation another F.I.R. was registered against the accused with Police Station Anti-Corruption Establishment and challan had been submitted before the Special Judge, Anti-Corruption---Validity---F.I.R. registered with Anti-Corruption Establishment had restated the factual contents of the first F.I.R. and had merely added the additional offence under S.5 of the Prevention of Corruption Act, 1947---Accused could have no justifiable grievance against the second FIR., because scheduled offences against public servants could only be inquired and investigated by the Anti-Corruption Establishment, being a statutory mandate under S.3 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 read with the Punjab Anti-Corruption Establishment Rules, 1985---Neither investigation by the police in the first F.I.R. was ever completed, nor any challan was submitted in the Court---Since the accused was a public servant, the matter stood transferred to Anti-Corruption Establishment according to mandate of law---Constitutional petition was dismissed accordingly.

Ghulam Siddique v. S.H.O., D.G. Khan and 8 others PLD 1979 Lah. 263 distinguished.

Inayat Ullah Khan Niazi for Petitioner.

Fawad Malik, A.A.-G.

Ijaz Hussain Inspector, I.O./ACE.

P L D 2007 Lahore 568

Before Mian Saqib Nisar, J

ANOOSHA SHAIGAN---Petitioner

Versus

LAHORE UNIVERSITY OF MANAGEMENT SCIENCES through Chancellor and others---Respondents

Writ Petition No. 9071 of 2006, decided on 13th December, 2006.

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

----Art. 199---Writ in the nature of mandamus, issuance of---Scope--­Writ in the nature of mandamus can be issued to a "Person" performing functions in connection with the affairs of the Federation, a Province or Local Authority and cannot be issued to one, who does not fall within the purview of the "Person" as defined in Article 199(5) of the Constitution---Word "control" appearing in Art.199(5) of the Constitution is quite significant and it is not restricted to the financial control of the government over a body, but the executive control as well; it does not necessarily mean the financial control over the bodies that are under the dominative control of the Federal or Provincial Governments, which are amenable to the jurisdiction of High Court under Art.199 of the Constitution---Absolute control over the management of a body/an organization by the Federation etc., is a condition most important for declaring it to be a "Person" performing its functions in connection with the affairs of the Federation etc.; the Federation etc. should have a complete domination to do and undo whatever it decides in running the affairs of such a body and should have the exclusive, complete and final authority to take the vital policy decisions---Such control must be absolute, unfettered, unbridled and exclusive; besides, the State must also have the financial control of the organization, the power of hiring and firing the employees thereof, appointing and removing the management body, meant for running the routine affairs of the organization---When both "administrative" and the "Financial" control of the Federation over the organization is lacking, the organization is not a "Person" within the meaning of Art. 199 of the Constitution, which could be held to be performing the affairs of the Federation or the Province---Writ against such an organization/body is not competent---Principles.

Maqsood Ahmed Toor and 4 others v. Federation of Pakistan through the Secretary to the Government of Pakistan, Ministry of Housing and Works, Islamabad and others 2000 SCMR 928; Tanvir Iqbal Siddiqi v. The Principal, Overseas Pakistanis' Foundation (OPF), Girls College, Islamabad 1994 SCMR 958; Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Tokht Bhai and 10 others PLD 1975 SC 244; Muhammad Shard 3/. The Secretary to the Government of the Punjab, Basic Democracies Social Welfare and Local Government Department, Lahore and 3 others PLD 1973 SC 497; Zainul Abidin v. Multan Central Cooperative Bank Limited, Multan PLD 1966 SC 445; I\ioor Jehan Shah v. Pakistan Defence Officers Housing Authority through its Administrator 1997 MLD 2261 and Qamar-ul-Islam v. The Institute of Chartered Accountants of Pakistan 1993 MLD 1362 fol.

Arif Majeed Malik and others v. Board of Governors Karachi, Grammer School 2004 CLC 1029; Judicial Review of Public Actions by Mr. Justice (R) Fazal Karim Vol. II Page 1036; Mst. Asma Nadeem v. International Islamic University and others 2002 MLD 290; Messrs Huffaz Seamless Pipe Industries Ltd. v. Sui Northern Gas Pipelines Ltd. and others 1998 CLC 1890 and Aitchison College, Lahore through Principal v. Muhammad Zubair and another PLD 2002 SC 326 distinguished.

(b) Lahore University of Management Sciences Order [25 of 1985]-

----Preamble-Constitution of Pakistan (1973), Arts.199, 8, 4 & 25---Constitutional petition---Maintainability---Petitioner had challenged refusal of her admission in University on the ground of being illegal, arbitrary, whimsical, unlawful, unreasonable etc. and violative of provisions of Arts.8, 4 and 25 of the Constitution and sought issuance of writ of mandamus to the University to grant admission to her--­Validity---Held, when both the "administrative" and the "financial" control of the. Federation etc. over the University was lacking, University was not a "Person" within meaning of Art.199 of the Constitution which could be held to be performing the affairs of the Federation or the Province---Constitutional petition was dismissed being not maintainable.

Maqsood Ahmed Toor and 4 others v. Federation of Pakistan through the Secretary to the Government of Pakistan, Ministry of Housing and Works, Islamabad and others 2000 SCMR 928; Tanvir Iqbal Siddiqi v. The Principal, Overseas Pakistanis' Foundation (OPF), Girls College, Islamabad 1994 SCMR 958; Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Tokht Bhai and 10 others PLD 1975 SC 244; Muhammad Sharif V. The Secretary to the Government of the Punjab, Basic Democracies Social Welfare and Local Government Department, Lahore and 3 others PLD 1973 SC 497; Zainul Abidin v. Multan Central Cooperative Bank Limited, Multan PLD 1966 SC 445; Noor Jehan Shah v. Pakistan Defence Officers Housing Authority through its Administrator 1997 MLD 2261 and Qamar-ul-Islam v. The Institute of Chartered Accountants of Pakistan 1993 MLD 1362 fol.

Arif Majeed Malik and others v. Board of Governors Karachi, Grammer School 2004 CLC 1029; Judicial Review of Public Actions by Mr. Justice (R) Fazal Karim Vol. II Page 1036; Mst. Asma Nadeem v. International Islamic University and others 2002 MLD 290; Messrs Huffaz Seamless Pipe Industries Ltd. v. Sui Northern Gas Pipelines Ltd. and others 1998 CLC 1890 and Aitchison College, Lahore through Principal v. Muhammad Subair and another PLD. 2002 SC 326 distinguished.

Ahmad Rauf for Petitioner.

Jawad Hassan for Respondents

P L D 2007 Lahore 576

Before Muhammad Jehangir Arshad, J

Mst. NASREEN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE WITH POWER OF GUARDIAN JUDGE, ALIPUR and others---Respondents

Writ Petition No.20 of 2007, decided on 30th April, 2007.

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

----S. 5, Sched. & S.14---Guardians and Wards Act (VIII of 1890), Ss.12 & 25---Custody, of minor and appointment of guardian of minor's property---Matter of custody of minor would be governed by West Pakistan Family Courts Act, 1964 and not under Guardians and Wards Act, 1890---Matter of appointment of guardian of minor's property would be entertained and decided by nominated Civil Judges as Guardian Judges---No revision would be competent under West Pakistan Family Courts Act, 1964---Final judgment or decree passed in matter of custody of minor would be subject to appeal in terms of S.14 of the Act---Principles.

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

----Ss. 9 & 14---Guardians and Wards Act (VIII of 1890), Ss.12 & 25---Application for setting aside of ex parte order or decree---Order of Family Court dismissing such application---Appeal against---Scope--- Such order, though not covered by terms "final judgment or decree" would be appealable as of right for being decision of Family Court within meaning of S.14 of West Pakistan Family Courts Act, 1964---Principles.

Mst. Mubin Khanam v. Javed Ahmad Khan 1991 MLD 1039 rel.

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

----Ss. 5, 7(2)(3), 8(c), 9(5) & Sched.---Guardians and Wards Act (VIII of 1890), S. 25---Custody of minor---Order of ex parte proceedings against defendant---Application for setting aside of such order--- Dismissal of application for being time-barred---Validity---Defendant was not served in person---Ex parte proceedings were initiated against defendant on basis of proclamation in newspaper and report of Process Server regarding refusal to receive notice---No notice was issued to defendant by registered post A/D or courier service or by both with copies of plaint, schedule of witnesses and documents referred to in S.7(2)(3) of West Pakistan Family Courts Act, 1964---No notice was issued to chairman of Union Council where defendant resided---Record did not establish as to whether on receipt of notice, Chairman of Union Council ever displayed same on Notice Board of Union Council for a period of seven days and informed the Family Court after expiry of 'such period that notice had been so displayed per requirement of S.8(3) of West Pakistan Family Courts Act, 1964---Held, impugned service of defendant either through such refusal or by proclamation in newspaper could not be considered to be due service being violative of provision of S.8 of West Pakistan Family Courts Act, 1964.

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

----S. 9(5)---Ex parte proceedings, setting aside of---Plea of defendant was that her address given in plaint was incorrect, thus, report of Process Server regarding her refusal to receive notice was invalid-- Effect---Such fact could not be decided in a summary manner, but same could be decided after framing of issues and recording of evidence.

(e) Administration of justice---

----Court should always lean in favour of adjudication of causes on merits and nobody to be non-suited on technical grounds.

Mst. Bundi Begum v. Munshi Khan and others PLD 2004 SC 154 rel.

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

----S. 5 & Sched.---Custody of minor---Welfare of minor would be the supreme and paramount consideration---Principles.

Mst. Razia Bibi v. Riaz Ahmad and another 2004 SCMR 821 and Sardar Hussain and others v. Mst. Parveen Umeer and others PLD 2004 SC 357 rel.

Akhtar Hussain Khawaja for Petitioner.

Mehmood Ashraf Khan for Respondent No.3.

P L D 2007 Lahore 581

Before Syed Zahid Hussain, J

Messrs ALSTOM POWER GENERATION through Ashfaq Ahmad---Petitioner

Versus

PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY through Chairman and another---Respondents

Writ Petition No.1115 of 2007, decided on 11th June, 2007.

Civil Procedure Code (V of 1908)---

----S. 89-A & O.X, R.1(1-A)---Alternate Dispute Resolution---Preference of the parties to resort to amicable means for dispute resolution in corporate matters---Clauses as to negotiations etc. for amicable, resolution of disputes find place in almost all commercial contracts---Courts are also expected to encourage the parties to adopt such modes in view of provisions of S.89-A and O.X, R.1(1-A), C.P.C.---Such is now a universally accepted method being followed as a less expensive, less time consuming, less encumbersome and ultimately a fruitful and beneficial mode, commonly known as A.D.R. (Alternative Dispute Resolution).

Cable and Wireless PLC ("C&W") and IBM United Kingdom Ltd. ("IBM") (2002) EWHC 2059 (Comm. Ct.); Channel Tunnel Group Ltd. and another v. Balfour Beatty Construction Ltd. and others (1993) 1 All ER; Waqqas Limited v. Province of Punjab 1988 CLC 1865; Board of Intermediate and Secondary Education, Multan through Secretary v. Fine Star and Company, Engineers and Contractors 1993 SCMR 530 and. Writ Petition No.7791 of 2006 ref.

Muhammad Akram Sheikh assisted by Sharjeel Adnan Sheikh, Khawaja Mohsin Abbas and Ahsan Farooqi for Petitioner.

Mian Ashiq Hussain for Respondents.

Date of hearing: 11th June, 2007.

P L D 2007 Lahore 583

Before Syed Asghar Haider, J

MUEEN-UD-DIN and 8 others---Appellants

Versus

ADMINISTRATOR GENERAL OF AUQAF, PAKISTAN, ISLAMABAD and another-Respondents

F.A.O. No.185 of 1991, heard on 17th April, 2007.

(a) Punjab Waqf Properties Ordinance (IV of 1979)---

----S. 2(e)---Waqf property---Determination---Ingredients, which determine status of property as waqf are a permanent dedication and that too for a religious, pious or charitable purpose---If such ingredients are missing or not proved, property cannot be declared as a waqf property.

(b) Punjab Waqf Properties Ordinance (IV of 1979)---

----S. 2, Explanation 2---Waqf property left in India-Exchange­ Property, which was waqf property in India and is exchanged in Pakistan would be treated as waqf property.

(c) Words and phrases---

----Malkan-i-Qabza---Meaning.

Malkan-i-Qabza defined in Law; Lexicon; Douie's Settlement Manual 6th Edn., para.142; Land Revenue Act by Mian Muhammad Siddique Kamyana and Land Revenue Act by Sardar Muhammad Iqbal Khan Mokal ref.

(d) Auqaf (Federal Control) Act (LVI of 1976)---

----S. 11-Punjab Waqf Properties Ordinance (IV of 1979), S.2(e)--- Displaced Persons (Land Settlement) Act (XXVII of 1958), S.29---Waqf property---Status---Control of Auqaf Department---Special Jamabandi--- Authorities assumed administration, control, management and maintenance of property and shrine in question---Appellants under S.11 of Auqaf (Federal Control) Act, 1976, assailed the notification on the ground that the property and shrine was not a dedicated Waqf---Trial Court dismissed the petition---Plea raised by appellants was that the trial Court misread the evidence in shape of Fard Haqeeat according to which it was not a Waqf property---Validity---Fard Haqeeat reflected that property was a Khankah managed by owners in possession, thus status of property was private and not Waqf---Disputed land was allotted in exchange of property left in India---Allotment in exchange of properties left in India, under S.29 of Displaced Persons (Land Settlement) Act, 1958, was required to be given in accordance with the entries in special Jamabandies---Trial Court was persuaded to determine status in accordance with Jamabandi of year 1972-73, which document had to be read with Fard Haqeeat and could not be read in isolation---If both the documents were read together, status of property 'emerged as private and not Waqf, thus Fard Haqeeat was misread---Most important document to determine status of property as Waqf, was deed of dedication, by virtue of which, permanent dedication had been made for a religious or pious purpose---No such document was available on record, as such on the touchstone of definition of S.2(e) of Punjab Waqf Properties Ordinance, 1979, the property could not be termed as Waqf because disputed property was not permanently dedicated for a religious or pious purpose---Judgment and decree passed by Trial Court as well the notification issued by the authorities were set aside---Petition was allowed in circumstances.

Ali Muhammad Khan v. Ali Akbar Khan and others AIR 1924 Lah. 382; Chief Administrator of Atiqaf, Punjab v. Muhammad Anwar and others 1984 CLC 3419 and The Chief Administrator of Auqaf West Pakistan, Lahore v. Ilam Din PLD 1973 Lah. 675 ref.

Chief Administrator of Auqaf, Punjab, Lahore v. Koura alias Karam Ilahi and another PLD 1991 SC 596 rel.

Syed Zafar Ali Shah for Appellants

Naghman Haider Zaidi for Respondents.

Date of hearing: 17th April, 2007.

P L D 2007 Lahore 588

Before Maulvi Anwarul Haq, J

BATA PAKISTAN LIMITED through Company Secretary and General Attorney---Appellant

Versus

MUHAMMAD ANWAR and another---Respondents

S.A.O. No.88 of 2002, heard on 7th May, 2007.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Eejctment of tenant---Bona fide personal need of one of the landlords---Premises was jointly owned by more than one person---One of the owners tiled ejectment application on the ground of bona fide personal need, which was allowed by Rent Controller---Eviction order passed by Rent Controller was maintained by Appellate Court---Plea raised by tenant was that he had not defaulted in payment of rent, therefore, principle that, one of the co-owners could seek ejectment of tenant was not applicable---Validity---Eejctment could be sought for bona fide personal use of one of the co-owners, particularly when other co-owner who had admittedly delivered possession to tenant had no objection to the same and was fully supporting the co-owner---High Court in exercise of appellate jurisdiction declined to interfere with the eviction order passed by two Courts below---Second appeal was dismissed in circumstances.

Abdul Ghani v. Abrar Hussain 1999 SCMR 348 distinguished.

Anwar Khan v. Abdul Manaf 2004 SCMR 126 rel.

Faisal Zaman Khan for Appellant.

Muhammad Asghar Khan for Respondents.

Date of hearing: 7th May, 2007.

PLD 2007 Lahore 593

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD ABDULLAH---Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Home Secretary, Lahore and 3others---Respondents

Writ Petition No.2662 of 2007, decided on 28th May, 2007.

Criminal Procedure Code (V of 1898)---

---S. 86-A---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction---Scope---Procedure for removal in custody to Tribal Areas---Magistrate, who was seized with the matter, was fully competent under S. 86-A, Cr. P. C. to record evidence and hear the parties on the matter, in the manner he would have done, if the original complaint had been filed before him---Magistrate would direct removal of the arrested person in custody only if he was satisfied with the evidence produced before him would give rise to a strong and powerful presumption that person arrested had committed the offence mentioned in the warrant---During the proceedings pending before the Magistrate he could even decide, whether the penal provisions mentioned in the warrant were rightly applied or not---Competent court being already seized with the matter, interference by High Court in constitutional jurisdiction was neither permissible nor warranted.

PLD 1958 (W.P.) Lah. 1039; PLD 1958 (W.P.) Lah. 853; PLD 1957 (W.P.) Lah. 100; PLD 1975 SC 66 and PLD 1957 (W.P.) Quetta 1 rel.

1994 PCr.LJ 1984; PLD 1995 Pesh. 118; PLJ 1997 Pesh. 22 and Khizar Hayat v. I.G.P. PLD 2005 Lah. 470 ref.

Mushtaq Ali Tahir Kheli for Petitioner.

Ch. Khrushid Anwar Binder, Addl. A.-G.

Sardar Safdar Hussain for Respondent.

PLD 2007 Lahore 598

Before Muhammad Sayeed Akhtar, J

MUHAMMAD AJLAL KHAN---Petitioner

Versus

DIRECTOR, PROGRAMME, CIVIL SERVICES ACADEMY, LAHORE and others---Respondents

Writ Petition No.18092 of 2005, heard on 25th May, 2007.

Competitive Examination Regulations, 2004---

----Reglns. 9 & 24---Constitution of Pakistan (1973), Art.199---Constitutional petition---Medical examination of candidate---Report of Central Medical Board showing petitioner overweight by 25 Kgs.---Public Service Commission declared petitioner unfit due to gaining weight and severe obesity---Validity---Nothing on record to show that overweight was a physical defect likely to interfere with discharge of duties of petitioner or whether or not such defect was likely to interfere with efficient performance of his duties---Nothing on record to show that such defect was remediable or not---High Court directed Board to examine petitioner and record its opinion in terms of Regln. No.24 of Competitive Examination Regulation, 2004.

2003 PLC (C.S.) 1161 rel.

Sh. Shahid Waheed for Petitioner.

M. Asad Munir, D.A.G. with Asim Akram for Respondent No.4.

Date of hearing: 25th May, 2007.

P L D 2007 Lahore 602

Before Syed Shabbar Raza Rizvi, J

NASRULLAH KHAN---Petitioner

Versus

KARIM DAD KHAN and another---Respondents

Criminal Miscellaneous No.1046-CB of 2007, decided on 19th June, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.337-D/337-A(i)/337-F(ii)/337-F(i)---Pakistan Army Act (XXXIX of 1952), Ss.94 & 95---Pakistan Army Act Rules, 1954, R.168---Pre-arrest bail, cancellation of---Bail granted to accused (an Army Personnel) on the ground that he would be tried by Army Authorities; and that Investigating Officer instead of conducing investigation himself should have handed over custody of accused to army Authorities---Validity---Medico Legal Report supported injuries received by petitioner---Commanding Officer had not responded letter of District Police Officer seeking custody of accused for investigation---Accused had remained absconder as he tailed to join investigation---Under S.94 of Pakistan Army Act; 1952, competent Army Officer could investigate a case of an Army Personnel, if he was implicated in a civil offence; provided such Army Officer made such demand from police authorities---No such demand or intimation had been made by concerned Army Authorities or Commanding Officer expressing such intention to investigate or court martial the accused---Bail granted to accused was cancelled in circumstances.

Malik Zafar Iqbal for Petitioner.

Imtiaz Russian Khan Baloch for Respondents.

Ijaz Ahmad Bajwa, DPG. for the State.

Abdul Ghaffar Khan, A.S.I.

PLD 2007 Lahore 604

Before Muhammad Muzammal Khan and Syed Shabbar Raza Rizvi, JJ

SHAMSHAD HUSSAIN---Petitioner

Versus

SPECIAL JUDGE, ANTI-TERRORISM COURT, GUJRANWALA and 2others---Respondents

Writ Petition No.6007 of 2007, decided on 14th June, 2007.

Anti-terrorism Act (XVII of 1997)---

----Ss. 6 & 7---Penal Code (XLV of 1860), Ss.302/324/34---Constitution of Pakistan (1973), Art.199---Constitutional petition---Attack in day time by twenty six (26) accused persons after making announcement from mosque to attack complainant party---Direct firing by accused from four sides on complainant party resulted into death of one person and injuries to three (3) persons---Constitutional petition for transfer of case from Anti-Terrorism Court to Court of general jurisdiction---Plea that occurrence was based on enmity between parties and accused never intended to strike terror or fear to public at large---Validity---If accused wanted to confine effect or fear of their attack to complainant party, then they would not have gone to mosque to snake their intention known to public at large----Purpose of going of accused to mosque (House of the God) before such attack would not be other than to terrorize the people of the vicinity---Purpose of accused to commit occurrence in such manner was to cause fear and create panic, terror and traumatic effect in whole vicinity---Mosque was a public place to which public or Ummah had free access---Provision of S.6 of Anti-Terrorism Act, 1997 would apply to such case---High Court dismissed constitutional petition in circumstances.

2005 PCr.LJ 957; PLD 2004 Lah. 199; PLD 2004 Lah. 267; PLD 2UU5 SC 530 and 2007 SCMR 142 distinguished.

Muhammad Farooq v. Ibrar PLD 2004 SC 917 rel.

Abid Saqi for Petitioner.

PLD 2007 Lahore 606

Before Khawaja Muhammad Sharif and Hasnat Ahmad Khan, JJ

RIAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.1911 of 2002; 2037 of 2001, Criminal Revision No.923 of 2001 and Murder Reference No.878 of 2001,' heard on 3rd July, 2007.

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

----Ss. 302(b), 337-A(i), 337-F(i) & 452---Appreciation of evidence---Benefit of doubt---Recoveries of fire-arms at the instance of accused were not helpful to prosecution as no crime empty was recovered from the spot and the same. were not sent to Fire-arm Expert---Motive had rightly been disbelieved by Trial Court---Medical evidence did not fully support the prosecution version---One injury received by deceased on his thigh was not explained by prosecution---Injuries sustained by the prosecution witnesses during the occurrence could not guarantee as to their being truthful witnesses---F.I.R. had been registered with a delay of more than nine hours after due consultation and deliberation---Defence version that the deceased had been killed during an attempt of robbery and .the prosecution witnesses had received pallet injuries while chasing the unknown bandits, rang true---Although according to prosecution deceased as well as the injured witnesses were sitting on cots at the time of occurrence, yet neither the said cots were found to be blood-stained nor the same were taken into possession---Identification of accused in the light of a bulb was not supported by Investigating Officer---Enmity of accused party with the complainant party on account of political rivalry was apparent on the record---Uncorroborated ocular evidence of interested eye-witnesses was not trustworthy---Benefit of doubt, howsoever slight, had to go to the accused--Even otherwise to err in acquittal was .better than to err in conviction---Accused were acquitted on benefit of doubt in circumstances.

Mehmood Ahmad and 2 others v. State 1995 SCMR 127; Ghulam Shabir v. Bachal and another 1980 SCMR 708; Said Ahmad v. Zammured Hussain and 4 others 1981 SCMR 795; Naseer Ahmad and 5 others w. State 1984 MLD 1461; The State v. Fateh Muhammad and 5 others 1980 PCr. LJ 1245 and Tahir Khan alias Niazi v. State 2005 YLR 2220 ref.

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

----Ss. 302(b), 337-A(i), 337-F(i) & 452---Appreciation of evidence---Medical evidence---Extent and scope---Medical evidence can only prove the time of occurrence, nature of injuries and the weapons used for 'causing the injuries, but the same does not provide a guarantee that the witnesses are speaking truth.

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

----Ss. 302(b), 337-A(i), 337-F(i) & 452---Appreciation of evidence---Injured witnesses, credibility of---Duty of Court---Mere presence of injuries on the person of witnesses would not raise any presumption that whatever they are telling is whole truth---Fact that prosecution witnesses had sustained injuries during the occurrence would not guarantee as to their being truthful witnesses and the said fact does not absolve the Court from critically analyzing the evidence and moreso when it involves awarding of major penalty.

Mehmood Ahmad and 2 others v. State 1995 SCMR 127; Ghulam Shabir v. Bachal and another 1980 SCMR 708; Said Ahmad v. Zammured Hussain and 4 others 1981 SCMR 795; Naseer Ahmad and 5 'others v. State 1984 MLD 1461 and The State v. Fateh Muhammad and 5 others 1980 PCr.LJ 1245 ref.

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

----Ss.302(b), 337-A(i), 337-F(i) & 452---Appreciation of evidence---Benefit of doubt---Principles---Benefit of doubt, howsoever slight it may be, has to go to the accused---Even otherwise, it is better to err in acquittal rather than in conviction.

Tahir Khan alias Niazi v. State 2005 YLR 2220 ref.

Muhammad Asghar Khan Rokhari for Appellant.

Mian Muhammad Sikandar Hayat for the Complainant.

Naseer-ud-Din Khan Nayyar Addl. P.-G. for the State.

Date of hearing: 3rd July, 2007.

P L D 2007 Lahore 618

Before M. Bilal Khan and Tariq Shamim, JJ

MUHAMMAD SARWAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.62-J of 2007, heard on 9th July, 2007.

Penal Code (XLV of 1860)---

---S. 302(b)---Anti-Terrorism Act (XVII of 1997), S.7(a)---West Pakistan Arms Ordinance (XX of 1965), S.13---Appreciation of evidence---Occurrence in the case had taken place in broaddaylight and F.I.R. had been lodged promptly in which accused had been specifically nominated as the sole assailant who had committed the murder of deceased which had excluded the possibility of substitution or misidentification of accused, who had been apprehended at the spot alone with the weapon of offence---Evidence of the driver of the car of the deceased and incharge of police escort, could not be brushed aside as said witnesses were natural witnesses, whose presence at the spot at the relevant time could not be doubted---Said witnesses were independent witnesses who had absolutely no reason to falsely implicate accused in the crime---Nothing- was on record to even remotely suggest that witnesses had any previous emnity with accused or had nursed a grudge against him in order to falsely involve him in the case---Ocular account furnished by eye-witnesses was consistent as to the date, time and place of occurrence and presence of accused at the spot and his involvement in the murder of the deceased---Testimony furnished by the eye-witnesses was worthy of implicit reliance---Testimony of the witnesses had revealed that previously six criminal cases of similar nature had been registered against accused---Occurrence resulting in the murder of deceased, was in line with the crimes committed by accused in the past, which had suggested a behavioural pattern---Medical evidence was consistent with the eye-witness account inasmuch as the date, time of occurrence, weapon used in the occurrence and locale of injury caused by accused as stated by the eye-witnesses, had been confirmed by the medical evidence---Accused was apprehended at the spot red-handed with the weapon of offence---Defence had failed to produce any evidence in support of plea that weapon of offence was planted by the police on accused---Testimony of recovery witnesses was creditworthy and fully supported the eye-witness account in all details---Blood-stained earth collected from the place of occurrence and sealed into parcel, was sent to the office of Chemical Examiner--Positive report received from Chemical Examiner as well as Serologist, had established the place where occurrence had taken place---Absence of motive or failure of prosecution to prove same, would not affect the testimony of the witnesses which was worthy of reliance---All the four eye-witnesses of the. occurrence were consistent in their statements---Accused had committed the murder of a sitting provincial minister in broad-daylight, at a public place and in presence of a number of persons from the public who had gathered at the place of occurrence to attend open kutchehry---Cold-blooded murder of deceased had without any doubt, created a sense of fear and insecurity as defined in S.6 and punishable under S.7 of Anti-Terrorism Act, 1997---Prosecution having succeeded in proving its case to the hilt against accused, the trial court was justified an convicting .and sentencing accused under S.302(b), P.P.C. and S.7(a) of Anti-Terrorism Act, 1997 as well as under S. 13 of West Pakistan Arms Ordinance, 1965---Conviction and sentence awarded to accused by the trial Court were upheld and maintained.

Khan Ali alias Khani and another v. The State 2006 SCMR 1944 and Moaz Shah v. Mohsin Shah and another PLD 2001 SG 458 ref.

Qari Muhammad Latif, Defence Counsel for Appellant.

Ch. Muhammad Hussain Chacher, Addl. P.-G. and Zafar Ahmed Gondal, Advocate for the State.

Date of hearing: 9th July, 2007.

P L D 2007 Lahore 626

Before Syed Hamid Ali Shah, J

KHALID MAHMOOD---Petitioner

Versus

ANEES BIBI and 2others---Respondents

Writ Petition No.1888 of 2005, decided on 20th July, 2007.

(a) Islamic Law---

----Dissolution of marriage on basis of `Khula'---Scope---Khula' is provided to woman as against right of divorce vested in roan---'Trouble, if arises from the side of woman, the man is given power to divorce her and if injury is from the man's side, the woman is given right to obtain Khula', which she exercises subject to restoration of dower.

(b) Islamic Law---

----Dissolution of Marriage on basis of `Khula'---Consideration amount---Power of Court---Scope---Court has the power to fix any amount of compensation being consideration of Khula', if it is found alter recording of evidence that Khula' is not claimed merely on the desire of wife but fault of husband is also the reason for her recourse to Khula'---In other cases, consideration of Khula' cannot be any consideration except the amount of dower.

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

----S.2(2)---Decree---Modifications---Scope---Decree, which has attained finality, any modification by reverting to another decree cannot be made therein, nor another suit can find fault in the decree, which has attained finality.

Shahid Hameed Janjua v. Addl. District Judge, Rawalpindi anal another 2002 YLR 2601 rel.

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

----S.10(4), proviso---Khula'---Summary disposal---Provision of proviso to S.10(4) of West Pakistan Family Courts Act, 1964, is only meant to apply to suits in which dissolution of marriage is prayed for only on the basis of Khula'---In such like situation decree is passed straightaway on failure of reconciliation, as such proviso to S.10(4), West Pakistan Family Courts Act, 1964 is not applicable, where decree is not passed forthwith on failure of reconciliation proceedings and where dispute cannot be resolved without recording of evidence.

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

----Ss.5 & 10 (4), proviso---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Dower amount, recovery of---Consideration of Khula'---Determination---Power of Family Court---Marriage was earlier dissolved on the basis of Khula' vide judgment and decree dated 15-5-2003 and recovery of dower amount was sought subsequently---Suit for recovery of dower amount was dismissed by Family Court but Appellate Court decreed the same in favour of wife---Plea raised by husband was that is marriage was dissolved on the basis of Khula', therefore, wire was not entitled to claim any amount of dower---Contention of wife was that Family Court could grant decree of Khula' even without any compensation---Validity---Power of Family Court to fix any consideration for dissolution of marriage could not be curtailed---Court could dissolve marriage on the basis of Khula' even without any compensation, when it found that Khula' was being claimed due to fault on the part of husband---Decree of dissolution of marriage had attained finality, the terms whereof' could neither be altered nor modified in subsequent suit---Wife had not foregone her claim of dower and as such she could not be deprived of the same---Judgment and decree passed by Appellate Court did not call for interference being devoid of any legal infirmity---Petition was dismissed in circumstances.

Mst. Saleha Babar v. Basit Saleem 2005 YLR 1648; Ali Muhammad v. Hussain Bakhsh and others PLD 1976 SC 37; Digest of Mohummadan Law by Neil B.E. Bauilie, Chap. VIII, p.306; The Hedaya by Charles Hamilton, p.113; Majmooa-e-Qawaneeen-e-Islam by Dr. Tanzeel-ur-Rehman; Shahid Hameed Janjua v. Addl. District Judge, Rawalpindi and another 2002 YLR 2601; Mst. Saiqa v. Addl. District Judge, Rawalpindi and 2 others 2.003 YLR 70 and Qamar Alam Sheikh v. Mst. Robina and others 1997 CLC 985 ref.

Rafaqat Ali Kahloon for Petitioner.

Rana Muhammad Anwar for respondent No.1.

Date of hearing; 16th May, 2007.

P L D 2007 Lahore 633

Before Asif Saeed Khan Khosa, J

MUHAMMAD SHAHID and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5571-B of 2007, decided on 6th September, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-A(i), 337-A(ii) & 34---Bail, grant of---Four culprits had been saddled with the responsibility of causing three injuries to the prosecution witness and it was not decipherable as to which of the culprits, including the present petitioners, had not caused any injury to the said victim---One of the offences allegedly committed by the petitioner and their co-accused i.e. an offence under S.337-A(i), P.P.C., was bailable whereas the other offence under S.337-A(ii), P.P.C. was non-bailable and it was not possible" in the present case, to specify as to which one-of the culprits, including the present petitioners, was responsible for commission of the bailable offence and. which one of them was responsible for commission of non-bailable offence---Allegation against the petitioners and their co-accused had been levelled in generalized and collective terms in the F.I.R. and no particular injury had been attributed to any of the culprits and it was impossible to determine with any degree of certainty as to whether the present petitioners were responsible for commission of the bailable offence or-the non-bailable offence---Section 34, P.P.C. had not so tar been invoked in the F.I.R. registered in the case---Benefit of such circumstances had to be extended to the petitioners for the purpose of grant of bail---High Court accepted the petition of petitioners and ad interim pre-arrest bail already allowed to the petitioner was confirmed subject to furnishing fresh security and fresh bail bonds.

Ch. Muhammad Anwar Samma and others v. The State 1976 SCMR 768 fol.

Ghulam Murtaza Chaudhry for Petitioners.

Mrs. Farzana Shehzad Khan, Asstt. Prosecutor-General for the State with Riasat Cheema, S.I. with record.

Rana Muhammad Anwar Khan for the Complainant.

P L D 2007 Lahore 636

Before Syed Hamid Ali Shah, J

AMER BAKHT AZAM and 3 others---Petitioners

Versus

COOPERATIVE MODEL TOWN SOCIETY (1962), LTD. LAHORE and 6others---Respondents

Writ Petitions Nos. 5245 and 4792 of 2007, decided on 13th August, 2007.

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

----Ss. 70-A & 54---Constitution of Pakistan (1973), Art.199---Constitutional petition---High Court, in an earlier constitutional petition on the subject, had observed that dispute between the Society and members came within purview of S.70-A, Cooperative Societies Act, 1925, which provided alternative remedy and refused to enter into such controversy and left the field open for the petitioners to invoke jurisdiction under the Cooperative Societies Act, 1925---Matter in .question was already pending before the Registrar, Cooperative Societies in a petition under provisions of S.54, Cooperative Societies Act, 1925---Petitioners in the present constitutional petition having not availed the remedy under the Act, could not re-open the same issue once again, by making repetitive petitions on the subject---Constitutional petition was not maintainable in circumstances.

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

----Art. 199---Constitutional petition---Contention of petitioners was that present petition had been moved to seek implementation of direction of decision in an earlier constitutional petition---Validity---Reference to a process in the judgment did not amount to imposition of condition, nor it amounted to a direction to act or not to act in a particular manner---Reading of the judgment in earlier constitutional petition conjunctively with the order of the Appellate Bench, reelected that there was no specific direction to the respondents to proceed in a particular manner---Petitioners' stance that present- petition had been filed to seek the implementation of direction in the earlier judgment had no substance.

(c) Punjab Private Site Development Schemes (Regulation) Rules, 2005---

----Punjab Local Government Ordinance (XIII of 2001), S.54-A(d)---Cooperative Societies Act (VII of 1925), Ss.70-A & 54---Constitution of Pakistan (1973), Art.199---Constitutional petition---Members of Cooperative Housing Society had assailed the lease agreement as well as approval of the plan for an alleged amenity plot by the Society for establishment of a project, for marketing fresh farm produce and other ancillary food items---Validity---Question whether the disputed open plot was an amenity plot as defined in the Bye-laws of the Society or an open space reserved for fruit gardens, being a factual controversy its resolution lay with appropriate forums constituted under the relevant law---High Court declined to enter into the said issue observing that constitutional jurisdiction which provided summary procedure, was not meant to resolve such issues.

(d) Punjab Private Site Development Schemes (Regulation) Rules, 2005---

----Rr. 3, 12 & 14---Lahore Development Authority Act (XXX of 1975), Ss.13(5), 14, 38 & 46---Punjab Local Government Ordinance (XIII of 2001), Preamble---Cooperative Societies Act (VII of 1925), Ss.70-A & 54---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Approval or modification of Master Plan of a Cooperative Housing Scheme by the Lahore Development Authority---Validity---Held, approval and sanction of a Scheme, which fell within the area of City District Government, Lahore vested with Lahore Development Authority, according to R.3, Punjab Private Site Development Schemes (Regulation) Rules, 2005---Modification in the sanctioned scheme had to be made by observing the procedure prescribed for the sanction of new scheme---Planning of a scheme within the City District Government of Lahore, required concurrence/approval of the Lahore Development Authority and power of any modification in an existing scheme vested with the said Authority which was the proper forum---Conversion of property to a different use or purpose other than provided under a scheme also required approval of the Lahore Development Authority and provisions of Lahore Development Authority Act, 1975 prevailed over other laws and had overriding impact in respect of any inconsistent provision in Punjab Local Government Ordinance, 2001---Principles.

(e) Punjab Private Site Development Schemes (Regulation) Rules, 2005---

----Rr. 3, 12 & 14---Lahore Development Authority Act (XXX of 19751, Ss. 13(5), 14, 38 & 46---Cooperative Societies Act (VII of 1925), Ss.70-A & 54---Constitution of Pakistan (1973), Art.199---Constitutional petition---Alternative statutory remedy---Approval or °modification/ conversion of Master Plan of a Cooperative Housing Scheme was assailed by the petitioners (members of Society)---Petitioners had not approached the forum of appeal against the approval of conversion by Lahore Development Authority and no appeal challenging the approval of agenda on the subject by the general meeting of the Society by the Registrar of Cooperative Societies had been filed---Effect---Such actions by the Lahore Development Authority could only be challenged before, High Court in its extraordinary constitutional jurisdiction, when remedy in the hierarchy of respective departments was exhausted which had not been done in the present case---Held, constitutional jurisdiction could not be stretched, on the ground that assailing the matters in different fora was inconvenient---Mere inconvenience was no ground to deprive a forum of its jurisdiction, which the relevant statute had provided---Remedy of constitutional petition was available, when the remedy in the hierarchy of the department, was exhausted.

(f) Punjab Private Site Development Schemes (Regulation) Rules, 2005---

----Constitution of Pakistan (1973), Art.199---Constitutional petition--- Vires of Punjab Private Site Development Schemes (Regulation) Rules, 2005 were assailed with an application praying to implead the Government of Punjab---Petitioners had filed objections before the Development Authority in response to public notice being conscious and aware of the fact that impugned approval by the Development. Authority had been sought and Authority was approached by invoking Punjab Private Sites Development Schemes (Regulation) Rules, 2005---Petitioners had not challenged said rules in the main constitutional petition and vires and validity of the rules had been questioned in reply to the application for vacation of an injunctive order---Application was tiled for impleadment of Government of Punjab, without resorting to seek amendment in the main petition---Effect---Legality of rules, could not be assailed in ancillary collateral proceedings, more so when the Rules in question were on statute book, duly notified and published in the official Gazette, at the time when the petitioners invoked the constitutional jurisdiction of High Court---Constitutional petition was dismissed in circumstances.

Khawaja Ahmed Hassan v. Government of Punjab and others PLD 2004 SC 694; Haji Mushtaq Ahmad Khan and 2 others v. Government of N.-W.F.P and 2 others .PI.D 2000 Pesh. 73; Moulvi Iqbal Haider v. Capital Development Authority and others PLD 2006 SC 394; Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC). Karachi and 4 others 1999 SCMR 2883; Muhammad Yousaf and others v. Mst. Najma Bibi and others PLD 2006 SC 512; Ardeshir Cowasjee and 9 others v. Karachi Development Authority through Director-General and 3 others 2007 CLC 668; Shamsuddin v. Ghulam Farid and others 1994 SCMR 2006; Muhammad Yousaf and 15 others v. Province of Punjab through Secretary, Local Government and 6 others 2003 CLC 576; Malik Mir Hassan and another v. The State PLD 1969 Lah.786; Muhammad Arif v. Muhammad Kawshar Ali PLD 1969 SC 435; Mumtaz Ali Khan Rajban and another v. Federation of Pakistan and .others PLD 2001 SC 169; Muhammad Ismail and others v. Province of Punjab through Secretary Irrigation and 2 others PLD 1977 Lah. 226 and Khan Khan Faizullah Khan v. Government of Pakistan through the Establishment Secretary, Cabinet Secretariat and another PLD 1974 SC 291 ref.

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

----Art. 199---Constitutional .jurisdiction of High Court---Scope---Alternative statutory remedy available---Effect---Constitutional jurisdiction could not be stretched, on the ground that assailing the matters in different fora was inconvenient---Mere convenience was no ground to deprive a forum from its jurisdiction, which the relevant statute had provided---Remedy of constitutional petition was available, when the remedy in the hierarchy of the department, was exhausted.

Bilal Hassan Minto for Petitioners.

Munir Ahmed Bhatti and Ch. Imtiaz Elahi for Respondent No.1.

Iftikhar Ahmad Mian for Respondent No.2.

Wasim Sajjad for Respondent No.3.

Date of hearing: 20th July, 2007.

PLD 2007 Lahore 678

Before Syed Zahid Hussain, J

PAKISTAN TELECOMMUNICATION CORPORATION LTD. through Chairman/CEO

and 2 others---Appellants

Versus

Dr. WAQAR HUSSAIN CHUDHARY---Respondent

F.A.O. No.80 of 2006, heard on 6th September, 2007.

Arbitration Act (X of 1940)---

----S. 34---Suit for damages---Stay of proceedings---Hiring contract between parties containing an arbitration clause regarding "any dispute arising" in respect thereof or "in any way relating thereto"---Defendant's plea was that plaintiff's claim for damages was not covered by such clause---Validity---Such clause was quite extensive and wide----Plaintiff's claim necessarily stemmed and arose from, and related to hiring contract---Plaintiff's claim had direct nexus with hiring contract and was covered by such. clause---Where there was admittedly an arbitration clause having wide scope of referring disputes for decision to an arbitration, then provision of S.34 of Arbitration Act, 1940 would be attracted calling for stay of proceedings in suit---Proceedings in plaintiff's suit for damages were stayed in circumstances.

Messrs Pakistan Associates Construction Ltd. v. WAPDA and another 1989 MLD 203; Ram Chandra Ram Nag Ram Rice and Oil Mills Ltd. v. Howrah Oil Mills Ltd. and another AIR 1958 Cal. 620; The Universal Life and General Insurance Co. Ltd., Lahore v. Ejaz Mahmood PLD 1978 Lah. 475 and Government of N.-W.F.P. v. Moheebullah 1990 CLC 1703 ref.

Director Housing A.G's Branch Rawalpindi v. Messrs Makhdum Consultants Engineers and Architects 1997 SCMR 988; Rungta Sons Private Ltd. v. Jugometal Trg. Republike and others AIR 1959 Cal. 423 and Lalchand Dharamchand v. Alliance Jute Mills Co. Ltd. AIR 1973 Cal. 243 rel.

Muhammad Shah Nawaz Khan for Appellants.

Javaid Iqbal for Respondent.

Date of hearing: 6th September, 2007.

P L D 2007 Lahore 681

Before Muhammad Muzzamal Khan and Syed Hamid Ali Shah, JJ

Messrs MUSHTAQ & CO. through Managing Partner---Appellant

Versus

CITY DISTRICT GOVERNMENT, LAHORE through Administrator and 4 others---Respondents

I.-C.As. Nos.202 of 2006 and 609 of 2002 in Writ Petition No.13486 of 2005, decided on 28th August, 2007.

(a) West Pakistan Bus Stand and Traffic Control (Lahore) Ordinance (XIX of 1963)---

----Ss. 6 & 8---Provincial Motor Vehicles Ordinance (XIX of 1965), S.122 & XII Sched.---Punjab District Government Rules of Business, 2001, Sched. I, Item No.12(iv) & R.2---General Bus Stand Badami Bagh (Lahore)---Notification of enhancement of Parking/Adda Fee---Issuance of such notification on 28-6-2005 by District Coordination Officer under Ss.6 & 8 of West Pakistan Bus Stand and Traffic Control (Lahore) Ordinance, 1963---Plea that such enhancement was illegal as West Pakistan Bus Stand and Traffic Control (Lahore) Ordinance, 1963 stood repealed impliedly with effect from 8-6-1965 on promulgation of Provincial Motor Vehicles Ordinance, 1965---Validity---West Pakistan Bus Stand and Traffic Control (Lahore) Ordinance, 1963 was promulgated to remove and prevent traffic congestion and regulate vehicular traffic within limits of Lahore---Said Ordinance being a special law was promulgated for Lahore, while Provincial Motor Vehicles Ordinance, 1965 extended to whole Punjab Province---Framing of Rules in year 1972 under Ordinance, 1963 after promulgation of Ordinance, 1965 was indicative of fact that Ordinance, 1963 was not repealed, but was still in tract and operative---Provincial Motor Vehicles Ordinance, 1965 expressly repealed certain enactments as contemplated in its S.122 and finding mentioned in its XII Sched., wherein Ordinance, 1963 was not mentioned---Both such Ordinances were not in conflict with each other---In case of conflict between the provisions of both Ordinances, conflicting provisions of Provincial -Motor Vehicles Ordinance, 1965 relating to traffic of City of Lahore would become inapplicable---Such notification was validly issued under the West Pakistan Bus Stand and Traffic Control (Lahore) Ordinance, 1963.

Syed Matloob Hassan v. Brooke Bond Pakistan Ltd. Lahore 1992 SCMR 227 and Muhammad Hanif and another v. The State 2006 SCMR 249 ref.

Mumtaz Ali Khan Rajban and another v. Federation of Pakistan and others PLD 2001 SC 169; Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others PLD 1997 SC 528; Muhammad Aslam v. Liaqat Ali Khan and another 1997 SCMR 563 and Messrs Noorani Traders, Karachi through Managing Partner v. Pakistan Civil Aviation Authority through Airport Manager Karachi PLD 2002 Kar. 83 rel.

(b) Interpretation of statutes---

----Law should be saved rather than to be destroyed---Courts must lean in favour of constitutionality of legislative enactment.

Messrs Elahi Cotton Mills Ltd. and. others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others PLD 1997 SC 528; Muhammad Aslam v. Liaqat Ali Khan and another 1997 SCMR 563 and Messrs Noorani Traders, Karachi through Managing Partner v. Pakistan Civil Aviation Authority, through Airport Manager Karachi PLD 2002 Kar. 83 rel.

(c) West Pakistan Bus Stand and Traffic Control (Lahore) Ordinance (XIX of 1963)---

----Ss. 6 & 8---Punjab District Government Rules of Business, 2001, Sched. I, Item No.12(iv) & R.2---Constitution of Pakistan (1973), Art.199---Law Reforms Ordinance (XII of 1972), S.3---Intra -Court Appeal---General Bus Stand Badami Bagh (Lahore)---Order of enhancement of Parking/Adda Fee---Issuance of such order by District Coordination Officer (D.C.O.)---Constitutional petition challenging order of D.C.O. was dismissed by High Court as incompetent for not availing alternate remedy---Validity---Functions assigned to defunct Lahore Municipal Corporation under provisions of West Pakistan Bus Stand and Traffic Control (Lahore) Ordinance, 1963 now vested with City District Government---Order of D.C.O. was appealable to Secretary, Government of Punjab, which. remedy had not been availed by appellant---In view of availability of such remedy of appeal, decision of Single Judge of High Court could not be assailed in Intra-Court Appeal in view of bar contained in S.3(2) of Law Reforms Ordinance, 1972---Intra-Court Appeal was dismissed in circumstances.

Irfan Masood Sheikh for Appellant.

Khadim Hussain Qaiser Addl. A.-G. for Respondents Nos. 2, 4 and 5.

Kh. Muhammad Afzal and Shahid Azeem for Respondents Nos. 1 and 3.

Date of hearing: 2nd April, 2007.

PLD 2007 Lahore 687

Before Syed Zahid Hussain, J

ALLAH BAKHSH and another---Petitioners

Versus

ZIA ULLAH and another---Respondents

Civil Revision No.573 of 2000, heard on 25th September, 2007.

Punjab Pre-emption Act (IX of 1991)---

----S. 13---Pre-emption suit---Plaint and notice of Talb-i-Ishhad was silent regarding date, place and time of performance of Talb-i-Muwathibat---Effect---Plaintiff in plaint .asserted that when he came to know about sale, he performed Talb-i-Muwathibat and sent notice of Talb-i-Ishhad in presence of named witnesses---Validity---Such assertion for being vague, uncertain and lacking precision, would not fulfil statutory requirements--Plaintiff, in order to maintain and succeed in pre-emption suit, must have mentioned such particulars in plaint---Due to non-performance of Talbs, plaintiff's superior right to pre-empt suit land, if any, stood extinguished in terms of S.13 of Punjab Pre-emption Act, 1991---Suit was dismissed' in circumstances---Principles.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302; Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315; Fazal Subhan and 11 others v. Mst. Sahib Jamala and others, PLD 2005 SC 977; Fazal Din through L.Rs. v. Muhammad Anayat through L.Rs. 2007 SCMR 1; Nawab Din through L. Rs. v. Faqir Sain 2007 SCMR 401; Mst. Kharia Bibi v. Mst. Zakia Begum and 2 others 2007 SCMR 515; Mst Lalan Bibi and others v. Muhammad Khan and others 2007 SCMR 1193 and Abdul Rehman v. Haji Ghazan Khan 2007 SCMR 1491 rel.

Zulfiqar Ali Khan Saifi for Petitioners.

Ihsan-ul-Haq Bhalli for Respondents.

Date of hearing: 25th September, 2007.

PLD 2007 Lahore 689

Before Maulvi Anwarul Haq and Syed Asghar Haider, JJ

GHULAM YASIN---Appellant

Versus

DISTRICT OFFICER (R), JHANG and 2 others---Respondents

Intra-Court Appeal No.175 of 2097 in Writ Petition No.5122 of 2007, heard on 26th September, 2007.

(a) Registration Act. (XVI of 1908)---

----Ss. 51, 52(c), 58, 59, 60, 61 & 68(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registered general power-of-­attorney---Correction of description (boundaries) of land given in power­-of-attorney, application for---Sub-Registrar finding boundaries not correctly given in power-of-attorney recorded thereon a note restraining attorney from alienating property till same was got corrected---Validity--Registrar/Sub-Registrar under Registration Act, 1908 did not have any power to take impugned action or pass impugned order---Registering Officer would be bound to register a document, if execution thereof was admitted by its executants---Registering Officer while registering or refusing to register document would not conduct an inquiry into title, possession or correctness of contents thereof---Registering Officer could rectify any error while copying documents in the Books to be kept under S.51 of Registration Act, 1908, but could not amend document itself and that too after its registration---High Court set aside impugned order/endorsement on such Power of Attorney while declaring same to be illegal, void and without lawful authority---Principles.

(b) Registration Act (XVI of 1908)---

----Ss. 58, 59 & 60---Registration of document---Registering Officer, powers of---Scope---While registering or refusing to register a document, Registering Officer would not conduct an inquiry into title, possession or even correctness of contents of such document---Principles.

Upon the presentation of a .document for registration, upon the appearance of the person or persons executing the document and on his satisfaction that they are persons they represent themselves to be and if they admit the execution of the document, the Registering Officer is bound to register a document in accordance with sections 58 to 61 of the Registration Act, 1908. On the other hand, if a person denies the execution or appears to be a minor, an idiot or a lunatic or the execution is denied by the legal. representatives of the deceased executant, the Registering Officer shall refuse to register the document. The conditions for exercise of jurisdiction by the .Registering Officer while registering a .document or refusing to register a document are clearly mentioned in the statute. This does not at all involve an inquiry into title, possession or even correctness of the contents of a document sought to be registered.

Mian Sarfraz-ul-Hassan for Appellant.

Shahbaz Ahmad Dhillon, A. A.-G. for Respondents.

Sh. Umar Draz for Respondent No.3.

Date of hearing: 26th September, 2007.

P L D 2007 Peshawar 1

Before Tariq Parvez Khan, C.J, and Muhammad Qaim Jan Khan, J

AHMAD HASSAN KHAN---Petitioner

Versus

MUHAMMAD RASOOL KHAN and 3 others---Respondents

Writ Petitions Nos.1783 and 1737 of 2005, decided on 20th June, 2006.

(a) North-West Frontier Province Local Government (Conduct of Elections) Rules, 2005---

---Rr. 29, 30(2)(iii), 35(4)(iii)(b), proviso & 67(4)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ballot paper---Rubber stamp both in column of name and in column of symbol---Stamp in column of name instead of column of symbol---Effect---"Official mark"---Connotation---Secrecy of ballot---Intention of voter---Philosophy and object---Petitioners secured equal votes in election to the office of Nazim and Naib Nazim---One petitioner who was aggrieved by opinion of Provincial Election Commissioner whereby his one vote was excluded from counting on ground that rubber stamp was affixed not in column of symbol but in column of name, called in question the finding of Election Commissioner through constitutional petition---Other petitioner challenged another vote cast and counted in favour of first petitioner on ground that rubber stamp was affixed in column of symbol as well as in column of name of said petitioner---Validity---Question of validity or invalidity of ballot papers was only to be determined by ascertaining the intention of voters and in that respect the manner of affixing mark/stamp was material---Mark or stamp, if affixed upon the name of candidate instead of his symbol, meant that voter had in fact shown his consent to cast vote in favour of the candidate---Mark or stamp where affixed upon column of symbol as well upon column bearing. name of candidate manifested the intention of electors in an ambiguous but in clear terms---Under R.35, N.-W.F.P. Local Government (Conduct of Elections) Rules, 2005, Presiding Officer was to exclude such ballot papers which contained any writing or any mark other than official mark and the mark of marking aid rubber stamp or to which a piece of paper or any other object of any kind had been attached---Wisdom behind R.35(4)(iii)(b) of the Rules was that identity of the voter was not to be disclosed and secrecy of election was maintained---Ballot paper in question though carried two stamps one in column of name and other in column of symbol, yet this ballot paper did not contain any writing nor any mark other than "Official mark"; and it also did not have any piece of paper attached or any other object of any kind---Expression "Official mark" was though not defined in the Rules but this expression appeared in Rule 35(4)(iii)(b) which under Rule 30(2)(iii) required a Presiding Officer that before issuing a ballot paper, it was to be stamped on the back with "official mark" and signed by Presiding Officer---No exception could be taken where voter had affixed two stamps though it was required to be affixed only in one space---Ballot paper was to be accepted as valid unless and until it disclosed identity of voter and violated secrecy of balloting---Object of Rules was not to disfranchise a voter of a very valuable right on mere technicalities which were not visited by any consequential penalties---Ballot paper where stamp was affixed in column of name or where two stamps were affixed, one in column of symbol and other in column of name, was not to be excluded from count---Rule 30 though required that voter was to put stamp in space meant for symbol but it did not say that the same could not be affixed elsewhere---Intention of voter/elector where not disputed and when he clearly and unambiguously affixed rubber stamp showing his exercise of right of franchise in favour of a particular candidate, then his choice was to be respected and accepted---Rule of caution, however, required that voter was to exercise his right in such manner that his identity remained undisclosed---Both the ballot papers, one containing two stamps, that is, in column of symbol as well as in column of name; and other where stamp was affixed on name instead of in Column of symbol were valid ballot papers---Constitutional petition filed by one. petitioner was allowed and one filed by the other petitioner was dismissed.

Salahuddin and another v. Abdul Khaliq and others 2004 SCMR 1899 rel.

1994 SCMR 1637; 1994 SCMR 2240; 1993 SCMR 573; 1993 SCMR 2289; PLD 2002 SC 184; 1996 SCMR 1496; 1987 SCMR 1987 and 1983 SCMR 125 ref.

(b) North-West Frontier Province Local Government (Conduct of Elections) Rules, 2005----

----R. 67(4)---Civil Procedure Code (V of 1908), O.VI, R.17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Amendment in constitutional petition, application for---New ground/plea---Scope---Three votes cast in favour of petitioner were challenged and excluded from his counting---In constitutional petition, originally filed by petitioner, he did not raise plea that three challenged votes were wrongly excluded from his counting---Petitioner subsequently filed application for amendment in petition to include plea that three challenged votes were wrongly excluded from his counting---Constitutional petition was withdrawn by permission of Court to file application for amendment in the petition---Petitioner argued; that he had been allowed to amend the petition to add plea as to challenge votes which were excluded from his counting and that such proposed amendment was within purview of O.VI, R.17, C.P.C. and also in consonance with R.67(4) of N.-W.F.P. Local Government (Conduct of Elections) Rules, 2005---Validity---Challenge to votes was to be made at time when voter/elector got ballot paper to which Presiding Officer recorded the challenge and it was in the knowledge of petitioner that he had three challenged votes at the time of poll---In constitutional petition originally filed, petitioner had not raised plea that three challenged votes were wrongly excluded from his count and the same being independent and totally new ground could not be permitted to be included in amended petition under C.P.C. and R.67(4) of N.-W.F.P. Local Government (Conduct of Election) Rules, 2005---Provisions of C.P.C., moreover, were not applicable to proceedings, rather there was an independent R.67(4) of the Rules which empowered Election Tribunal that at any time, upon such terms and on payment of costs it was to direct and allow a petition to be amended in such a manner which in Tribunal's opinion was necessary for fair and effective trial and for determining real question in controversy---Tribunal, however, was debarred from allowing amendment by raising new ground of challenge to election---High Court had granted permission to petitioner to file application for amendment and allowed him to withdraw petition which fact did not mean that amendment in pending petition was allowed---Application filed for amendment in constitutional petition as to new ground was dismissed.

PLD 1995 SC 345; PLD 1992 SC 30 and PLD 1991 Pesh. 117 ref.

(c) North-West Frontier Province Local Government (Conduct of Elections) Rules, 2005----

----Rr. 35(4)(iii)(b) & 30(2)(iii)---"Official mark"---Connotation---Expression "Official mark" was though not defined in N.-W.F.P. Local Government (Conduct of Elections) Rules, 2005, but said expression appeared in R.35(4)(iii)(b) which under R.30(2)(iii) required a Presiding Officer that before issuing a ballot paper, it was to be stamped on the back with "Official mark" and signed by "Presiding Officer".

Aamir Javed for Petitioner.

Muzammil Khan and Gul Akbar Khan, Provincial Deputy Election Commissioner, N.-W.F.P. for Respondents.

Date of hearing: 20th June, 2006.

P L D 2007 Peshawar 11

Before Hamid Farooq Durrani, J

NORTH-WEST FRONTIER PROVICNE FOREST DEVELOPMENT CORPORATION through Managing Director and another---Appellants

Versus

MUHAMMAD YOUSAF and another---Respondents

F.A.O. No.21 of 2005, decided on 19th September, 2006.

Land Acquisition Act (I of 1894)---

----Ss. 10, 12, 26(2) & 54---Civil Procedure Code (V of 1908), Ss.2(2)(9) & 47---Acquisition of land---Making of award---Execution proceedings---Award made under Part--III of Land Acquisition Act, 1894, would be deemed to be a decree and the statement of grounds of every such award would be a `judgment' within the meaning of S.2(2)(9) of C.P.C.---Provisions of Civil Procedure Code, 1908 pertaining to execution of decree including those contained in S.47, C.P.C., would be applicable in the matter pertaining to execution of decree and matters ancillary thereto in the case of acquisition of land under Land Acquisition Act, 1894---Questions arising between the parties or their representatives and relating to execution, discharge or satisfaction of decree would be required to be determined by the Court executing such decree.

Abdur Rehman Qadir for Appellants.

M. Salim Akram for Respondents.

Date of hearing: 19th September, 2006.

P L D 2007 Peshawar 14

Before Ijaz-ul-Hassan Khan, J

GHULAM SAMDANI and others---Petitioners

Versus

FAQIR KHAN---Respondent

Civil Revision No.1324 of 2005, decided on 19th May, 2006.

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

----O. XX, R.5, O.XLI, Rr. 25, 31 & S.115---Specific Relief Act (I )of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Requirements of O.XLI, R.31, C.P.C.---Applicability of provisions of O.XX, R.5, C.P.C.---Characteristic of valid judgment---Scope---Plaintiff/respondent filed suit for declaration and permanent injunction against defendants/petitioners which was dismissed by Trial Court---Appellate Court set aside the finding of Trial Court and decreed the suit---Petitioners/defendants contended; that judgment of lower Appellate Court was laconic and suffered from vice of misreading and non-reading of evidence; that Appellate Court exceeded its lawful jurisdiction and that it failed to give its issue-wise findings and requirements of O.XLI, R.31, C.P.C. had not been complied with---Validity---Order XX, R.5, C..P.C. was applicable to Trial Court which heard the suit; it was not mandatory for Appellate Court to record issue-wise finding and it was' sufficient for Appellate Court to deal with all issues which were material for disposal of controversy excepting those abandoned by defendant/respondent---Appellate Court, recording its finding on points raised before it without discussing issues separately, could not be said to have committed any illegality or error---Characteristic of good judgment was that it was to be self-evident and self-explanatory, containing reasons to justify conclusions arrived at and these reasons were to be such that a disinterested reader could find them convincing and reasonable---Appellate Court had recorded judgment, keeping in view provisions of O.XLI, R.31, C.P.C.---Petitioners failed to explain as to which portion of evidence had been misread or non-read by Appellate Court---No material irregularity or any jurisdictional defect was pointed out to justify interference in judgment given by Appellate Court--Civil revision was dismissed.

Naimat Khan and others v. Mamzullah Khan and others 2006 CLC 125 ref.

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

---O. XLI, R.31---Judgment---Characteristic of good judgment was that it was to be self-evident and self-explanatory, containing reasons to justify conclusions arrived at and these reasons were to be such that a disinterested reader could find them convincing and reasonable.

Muhammad Jehangir for Petitioners.

Hussainuddin Khattak for Respondents.

Date of hearing: 5th May, 2006.

P L D 2007 Peshawar 17

Before Ijaz-ul-Hassan Khan, J

ASAR ALI---Appellant

Versus

MUHAMMAD ZADA and another---Respondents

Criminal Appeal No.808 and Criminal Revision No.189 of 2005, decided on 7th July, 2006.

Penal Code (XLV of 1860)---

----Ss. 324 & 337(d)/34---Appreciation of evidence---Ocular account corroborated by medical evidence---Effect---Quality and not quantity of evidence to be taken into account---Principles---Allegation against accused/appellant was that he along with co-accused attempted at the life of complainant by firing---Trial Court while acquitting co-accused convicted and sentenced accused to imprisonment for 5 years under S.324, P.P.C. and payment of Arsh to complainant under S.337(d), P.P.C.---Accused/appellant contended that Trial Court had not appreciated evidence in its true perspective; that ocular account was in conflict with medical evidence; that delay in lodging F.I.R. showed that it was a concocted case and that appellant had no motive of his own to commit crime---Validity---Ocular testimony of complainant and other eye-witness was found to be trustworthy by Trial Court and their appearance at the site had been established beyond any shadow of doubt---Court had to see quality, not quantity of evidence and if ocular account was confidence inspiring then the same was to be relied upon to sustain conviction---F.I.R. was lodged by complainant within two hours of occurrence and such promptitude in lodging F.I.R. had ruled out any possibility of consultation and deliberation---Specific role assigned to accused was corroborated by medical evidence---Positive reports of Experts, recoveries, motive, medical evidence and abscondence of accused fully proved prosecution case---Each criminal case stood on its own footing; and facts and circumstances in one case might not be quite similar on all fours to the other---Prosecution had successfully proved its case against accused and no exception was to be taken to judgment of' Trial Court---Appeal was dismissed.

Habibullah and others v. The State PLD 1969 SC 127; Malik Din and another v. Muhammad Aslam PLD 1969 SC 136; Muhammad Jehangir alias Badshah and another v. The State 1995 SCMR 1715; Muhammad Shafqat Baig v. Ch. Mazhar Hussian Minhas, Additional District Judge, Rawalpindi and others 1995 SCMR 1720 and Mst. Jallan v. Muhammad Riaz and others PLD 2003 SC 644 ref.

Jalaluddin Akbar Azam for Appellant.

Sajid Ali for Respondents.

Shad Muhammad Khan for the Complainant.

Date of hearing: 19th June, 2006.

P L D 2007 Peshawar 22

Before Tariq Parvez Khan, C. J. and Muhammad Raza Khan, J

IMDAD KHAN---Petitioner

Versus

POLITICAL AGENT DISTRICT MAGISTRATE, KHYBER AGENCY, PESHAWAR and 3 others---Respondents

Writ Petition No.818 of 2006, decided on 29th June, 2006.

(a) Frontier Crimes Regulation (III of 1901)---

----S. 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Acting in hostile or unfriendly manner towards government---Attachment of property by Political Agent---Scope---Certain properties of petitioner were ordered to be attached by Political Agent which action was challenged by the petitioner---Political Agent contended that under S.21 of Frontier Crimes Regulation, 1901, political authorities could attach properties of persons belonging to tribal areas, acting in hostile or unfriendly manner towards government, despite the fact that properties might be situated in settled areas---Validity---Penal action under S.21 of Frontier Crimes Regulation, 1901, was qualified by the phrase, "acting in hostile or unfriendly manner toward the government"---Political authorities were not to exercise absolute or unconditional discretion while taking action against a tribe or its member---"Acting in hostile manner" was a serious charge which was not applicable to the present case---Term "unfriendly manner" was, however, a diluted but a wide term---Creating unrest might or might not amount to "acting in unfriendly manner"---Principles of natural justice demanded that under S.21 of the Regulation concerned person was to be informed of the proposed action to be taken against him---Principles of natural justice were to be read as part and parcel of every statute despite the fact that they were not specifically stated in the statute---Notice issued to father was not to be presumed to be a valid notice to son and any illegal activity of father was not to justify penal action against personal property of his son who was not proved to be involved in any such activity---Orders issued by Political Agent for attachment of petitioner's properties were set aside---Petition was accepted.

H.M. Saya and Company v. Wazir All Industries Ltd. PLD 1969 SC 65 and NAB v. Mst. Zahida Sattar PLD 2001 Kar. 256 rel.

(b) Frontier Crimes Regulation (III of 1901)---

----S. 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Attachment of company's property---Penal action against Director not to justify coercive action against property belonging to corporate body---Scope---Corporate body was a juristic person having an independent right to own and possess property and Directors merely managed its property---Directors were owners of their respective shares which could be transferred to others---Property of company was not the exclusive property of Directors nor of shareholders---Penal action against one or more Directors was not to justify coercive action against property belonging to corporate body---Service of notice on one Director was not to be presumed a notice on owners, directors and shareholders of company---Action taken against company without service of notice and without providing opportunity of hearing was an irreversible illegality---If action was to be taken against property owned by company, under S.21 of Frontier Crimes Regulation, 1901, then, at the most, shares of person responsible for penalty under S.21 were to be attached---Order of attachment of premises belonging to a private limited company, though also partly owned by some of tribesmen, was patently illegal.

Ms. Frankson & Company v. Mian M. Hussain 1983 CLC 1042 rel.

Abdul Latif Afridi for Petitioner.

Muhammad Nizar Mayor, D.A.-G. for Respondents.

Date of hearing: 29th June, 2006.

P L D 2007 Peshawar 27

Before Ijaz-ul-Hassan Khan, J

AZIM KHAN---Appellant

Versus

THE STATE and others---Respondents

Criminal Appeal No.879 of 2004, decided on 23rd June, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(c), 324, 337(A)(F) & 34---Prohibition (Enforcement of Hadd) Order (4 of 1979), 5.11---Provincial Motor Vehicle Ordinance (XIX of 1965), S.3---Rash and negligent driving---Absence of enmity or motive for false implication of accused---Effect---Allegation against accused/appellant was that, while driving negligently and carelessly under effect of alcohol and without driving licence, he killed deceased and injured three other persons, one of whom was deprived of his leg---Trial Court while convicting accused on three different counts, sentenced him to imprisonments of various descriptions, fine, Arsh and Daman--Accused mainly contended that there was no evidence to show that accused was responsible for driving rashly and negligently and that medical evidence did not support ocular account---Validity---No reason appeared for eye-witnesses and the injured to suppress true facts and, therefore, testimony of eye-witnesses and injured being free from any exaggeration and doubt was to be believed without looking for corroboration---In absence of enmity or motive for false implication of accused, the question of false-charge did not arise---Defence failed to extract any material discrepan:ies or contradictions from statements of prosecution witnesses who faced lengthy and searching cross-examination successfully---Report of Motor Vehicle Examiner revealed that vehicle in question was in a perfect condition and accident was not result of any mechanical fault---Report of Chemical Examiner confirmed that alcohol was present in samples i.e. stomach wash, blood and urine of accused---Ample evidence including direct and circumstantial evidence was on record to show that accused was responsible for driving negligently and rashly which resulted in road accident---Act of causing death of young man of 21/22 years of age and depriving another of his leg by negligent and rash driving, under spell of alcohol and without driving licence could not be taken leniently in the matter of sentence---Appeal was dismissed.

Asadullah Chamkani for Appellant.

Naqeebullah Takar for Respondents.

Qazi Muhammad Anwar for the Complainant.

Date of hearing; 19th May, 2006.

P L D 2007 Peshawar 31

Before Tariq Parvez Khan, C.J. and Fazlur Rehman Khan, J

IBRAHIM---Appellant

Versus

THE STATE and 2 others---Respondents

Criminal Appeal No.953 of 2004, heard on 27th July, 2006.

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

----Ss. 302 & 324---Appreciation of evidence---If evidence of one prosecution witness who was brother of injured prosecution witness, and of the other who was brother of deceased, was excluded from consideration, even then there was other sufficient evidence on record in the shape of oral evidence of other two witnesses and the F.I.R.---Name of one of said witnesses though was not mentioned in the F.I.R., but he was co-villager of the parties and appeared to be an impartial witness and his evidence inspired confidence---Such witness had given a consistent and confidence-inspiring evidence---F.I.R. was lodged by deceased, who at relevant time was in full senses---Deceased having received grievous injury, he was under eminent apprehension of death and, could not be expected to tell a lie F.I.R. lodged by him could be safely considered as dying-declaration and by taking into consideration the ocular version furnished by prosecution witnesses coupled with dying-declaration, no doubt was left that accused had committed the offences---Contradiction pointed out by accused, was not only a minor one, but was also plausible---Death of deceased was the indirect result of the injury caused to him by accused with fire-arm and accused could be convicted for Qatl­e-Amd---Accused had committed murder of deceased against whom there was a clear motive of criminal litigation.

1984 SCMR 545 and 782; 1999 SCMR 172 and 1995 PCr.LJ 765 ref.

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

----Ss. 301, 302 & 338-F---Law of Qisas and Diyat---Interpretation---Principles---Provisions of Ss.301 & 302, P.P.C. were to be interpreted, in view of provisions of S.338-F, P.P.C. in the light of Injunctions of Islam as laid down in Holy Qur'an and Sunna of Holy Prophet (PBUH) and as interpreted by Muslim Jurists.

Abdul Latif Afridi for Appellant.

Pir Liaqat Ali Shah, A.-G. for the State.

Astaghferullah for the Complainant.

Date of hearing: 27th July, 2006.

P L D 2007 Peshawar 39

Before Shah Jehan Khan and Ejaz-ul-Hassan Khan, JJ

Messrs GUL COOKING OIL AND VEGETABLE GHEE (PVT.) LTD. through Chief Executive---Petitioner

Versus

PAKISTAN through Chairman Revenue Division, Central Board of Revenue, Islamabad and 6 others---Respondents

Writ Petitions Nos.841, 869, 936, 1134, 1168, 1169, 1180, 1191, 1195, 1208, 1212, 1239, 1246, 1247, 1260, 1283 of 2004, 5, 6, 157, 158 of 2005, 222, 223, 50, 51, 844, 854 and 1845 of 2006, decided on 19th October, 2006.

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

----Arts. 247(3) & 199---Customs Act (IV of 1969), S.18---Constitutional petition---Imposition of customs duty and regulatory duty---Grievance of petitioner was that department demanded from them customs duty and regulatory duty at the rate specified through subsequent amendments, which were not applicable to the Tribal Areas as required, under Sub-clause (3) of Art.247 of the Constitution---Controversy agitated by parties was to the effect; that whether petitioners were legally required to .pay customs duty and regulatory duty calculated on the basis of amendment of Acts of the Parliament in the principal statute i.e. Customs Act, 1969, despite the fact that amending Acts of the Parliament or Provincial Assembly, were not extended to the Tribal Areas in terms of Art.247(3) of the Constitution---Validity---Amendment made by the Parliament or Provincial Assembly, would not apply to the Tribal Areas automatically, but with the process as envisaged in Art.247 of the Constitution, whereunder, it was the President and not the Parliament to decide which Act was to be applied in the Tribal Areas---Contention that amending Act merged into original or principal Act and if the principal Act was duly applied to Tribal Areas after the amendment, it would be in force in amended form, was repelled---Act of Parliament amending or repealing the principal statute, could not be extended to Tribal Area without approval of the President and in accordance with prescribed procedure under clause (3) of Art.247 of the Constitution---Department could not demand excessive customs duty and excessive regulatory duty imposed through Amending Acts which were not enforced in Tribal Areas---Demand of department for excessive customs and regulatory duty specified through un-extended amending Acts, in the Tribal Area was unconstitutional, arbitrary, mala fide and unjust---Department was directed to refrain from such illegal demand, accordingly.

AIR 1986 SC 513; Sharbat Khan and others v. Haji Lal Gul and others 1984 PCr.LJ 411; Hazrat Muhammad v. The State PLD 1988 Pesh. 11 and Sadbar Khan v. Amir Hussain and others PLD 1995 Pesh. 14 ref

(b) Interpretation of statutes---

----Court was empowered to look at the intent and purpose behind the Legislative device---Thing which could not be done directly, could not be allowed to be done indirectly---While extending a law, it was required to specifically refer to the amendments already made or at least some language to that effect was to be used.

PLD 1975 SC 397-433; 1993 SCMR 1905-1923 and 1993 SCMR 1342 ref.

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

----Arts. 247, 89 & 128---Powers of the President and Governor to make applicable the law enacted by the Parliament---President or Governor of the Province had been empowered to make applicable the law enacted by Parliament for the settled areas of the country and for extending an Act of Parliament or Ordinance promulgated under Art.89 or 128 of the Constitution to the Tribal Areas---Constitution had imposed certain duties upon the President and the Governor; he would satisfy himself about the interest of the people and necessity of extension of the Act to the Tribunal Areas and he would also consider as to whether the Act of Parliament or Provincial Assembly or Ordinance, which was to be extended to Federally Administered Tribal Areas or Provincially Administered Tribal Areas would be in the same form or with modifications therein or exceptions thereto---Powers of the President under S.247 of the Constitution was not to be exercised as prerogative powers which was not supported by the Constitution---Said powers were co-relative duties and obligations conferred upon the President---Being special status of Tribal Areas, Parliament or Provincial Assembly could not directly legislate for the Tribal Areas and Legislation enacted by the Parliament or Provincial Assembly, would be extended to those areas after examining the same by President or Governor---If an Act of Parliament or Provincial Assembly could not legislate directly for the Tribal Areas then it could not be done even indirectly---When a law was amended, it would be presumed to be altered---If principal Act was amended by amending Act of the Parliament, it would be presumed that the former had been changed/altered---Amendment made by the Parliament or Provincial Assembly, in circumstances, would not apply to the Tribal Area automatically, but with due process as envisaged in Art.247 of the Constitution---Act of Parliament amending or repealing the principal statute could not be extended to Tribal Areas without approval of the President and in accordance with the prescribed procedure under Cl. (3) of Art. 247 of the Constitution.

Controller of Patents and Designs, Karachi v. Muhammad Quadir Hussain 1995 SCMR 529 ref.

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

----Arts. 89, 246 & 247---Powers of President to promulgate ordinance---Legislative powers of the State always vested in the Parliament, but in view of Arts.89, 246 & 247 of the Constitution, Parliament was not exclusively empowered---Under Art.89 of the Constitution, President could pass an ordinance which would have the same force and effect as an Act of Parliament---President also enjoyed limited legislative powers to promulgate an ordinance obviously for a specified period and when Parliament was not in the session and circumstances so demanded---President had also got powers either to enforce the Act passed by the Parliament wholly or partly with or without modification or exceptions in the Tribal Areas---President could also make law in the shape of regulation for peace and good governance in the Tribal Areas---Those provisions made the Parliament not exclusively empowered to legislate as those provisions of, Constitution also empowered the President in certain circumstances and enforcement of laws of the country to Tribal Areas---Since that was legislative powers of the President to extend an existing law in the Tribal Areas, there was co-relative constitutional duty of President to apply his mind and then to decide the form and shape of legislation, either to extend an existing law and it was or without modifications and exceptions---Once the President after applying his mind and keeping in view the best interest of the people and the State decide to extend an Act of Parliament to the Tribal Areas, it could not be withdrawn/repealed through a subsequent Act of Parliament named as Amendment in the principal statute already extended to Tribunal Areas.

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

----Art. 247---Powers of the President in Tribal Area---Delegation of legislative powers of the President to Parliament or Provincial Assembly---Legislative powers of the President under Art.247 of the Constitution could not be delegated to the Parliament or Provincial Assembly---President possessed two-fold powers in the Tribal Areas i.e. power to apply Act of Parliament or an Ordinance and the power to make regulation for peace and good governance of the Tribal Areas---Said powers could not be delegated to the Parliament or Provincial Assembly---Contention that amending Act of the Parliament or Provincial Assembly would stand automatically extended to the Tribal Areas, if the principal Act had already applied to that area, would amount to delegation of legislative powers of the President under Art.247 of the Constitution---Powers to frame rules under the statute could be delegated, but it would not be derogatory to or in conflict with the principal Statute and if rules were found violative of any provision of the statute those were always struck down by the Courts under its constitutional obligations---Holding automatic extension of amending Acts of the Parliament to Tribal Areas, was certainly in conflict with the basic statute which was extended to Tribunal Areas---Under Art.247 of the Constitution, constitutional duty was cast on the President to determine whether concerned Act of Parliament (whether original or amending) was to be applied as it was or with certain modifications and exceptions, which he deemed appropriate.

M. Sardar Khan for Petitioner.

Salahuddin Khan D.A.-G. and Abdul Latif Yousafzai for Respondents.

Date of hearing: 19th October, 2006.

P L D 2007 Peshawar 63

Before Said Maroof Khan, J

Mst. NAWABZADI---Petitioner

Versus

Mst. TANVEER KAUSAR alias TANVEER BEGUM---Respondent

Civil Revision Nos.188 of 2003, 94, 95, 103 and 111 of 2004, decided on 18th May, 2006.

Tort---

----False and malicious allegations---Suit for damages---Dispute regarding common wall of parties' houses---Plaintiffs filed civil suit which was dismissed---Defendant, during pendency of suit submitted an application to Commissioner, complaining that plaintiffs had raised construction without sanction of Municipal Authorities---Defendant, in said application having made certain allegations about plaintiffs, she along with her brothers filed suits against defendant for recovery of damages on the ground that allegations levelled were false and malicious, which had damaged their reputation in the society and also caused mental torture to them---Trial Court decreed suit, but Appellate Court partly accepted appeal of defendant and reduced amount of damages---Validity---Plea of plaintiffs that words used in application by defendant, had damaged their reputation in the society, was ill-founded because said application had not gained wide circulation---Except Commissioner to whom said application was marked and concerned staff, no other person had seen the application before its institution;--General public/society before whom plaintiffs felt themselves degraded on account of the application, never knew about application or its contents---No question of damage to their reputation in the society on account of said application did arise---Mere use of indecent words against a person would not entitle him to claim damages from the person having used indecent language; in such-like situation the allegations had to be looked into in the context of society, time, place and the circumstances in which allegations were made---Alleged derogatory words were used in anger, the cause of which was civil litigation launched by plaintiffs and. their alleged interference with the common wall of the houses of the parties---No evidence was available to show that defendant had maliciously defamed plaintiffs and caused any incalculable damages to their reputation---Allegation in the application of petitioner neither were defamatory nor malicious and same had not exposed plaintiffs to any hatred, contempt, ridicule nor same had injured them in their profession---Plaintiffs, in circumstances, were not entitled to claim damages from defendant---Impugned judgments and decrees were set aside and suits filed by plaintiffs were dismissed.

Mr. Muhammad Ayaz Khan Qasuria for Petitioner.

Gauhar Zaman Khan Kundi for Respondent.

Date of hearing: 27th April, 2006.

P L D 2007 Quetta 66

Before Mehta Kailash Nath Kohli, J

FARIDA ZAFAR ZEHRI and 2 others---Petitioners

Versus

FEROZA KHANUM and 17 others---Respondents

Civil Revision No.96 of 2006, decided on 6th October, 2006.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Challenging validity of order on plea of fraud and misrepresentation---Order made by same Court can be challenged and re-called under S.12(2), C.P.C. in the same Court provided question of fraud etc., is alleged-Separate suit is clearly barred to be filed before any other court of civil jurisdiction.

Iftikhar ul Haq for Petitioners, Ch. Mumtaz Yousaf for, Respondent Nos. 1 to 13.

Aminuddin Bazai, Addl. A.-G. for Respondents Nos. 14 to 17.

P L D 2007 Peshawar 68

Before Tariq Parvez Khan, C.J. and Muhammad Qaim Jan Khan, J

TANDLIANWALA SUGAR MILLS LIMITED---Petitioner

Versus

NORTH-WEST FRONTIER PROVINCE through Secretary, Industries, Commerce, Mineral Development, Labour and Technical Education and 4 others---Respondents

Writ Petition No.1510 of 2005 with C.M. Nos. 522, 536 and 686 of 2006, decided on 21st December, 2006.

West Pakistan Industries (Control on Establishment and Enlargement) Ordinance (IV of 1963)---

----Ss. 1, 2 & 3 [as amended by North-West Frontier Province Amendment of Laws Act (IV of 1976)]---North-West Frontier Province Adaptation of Laws Order, 1975, Ss, 1 & 2---Establishment of new Sugar Mills or its extended plant within limits of' D.I. Khan District---Notification No.SOII/IND)10-355/Vol. IX, dated 14-5-2005 and Notification No.SAOII(AD)4(21)/KC/2005, dated 24-5-2005 issued under S.3 of West Pakistan Industries (Control on Establishment and Enlargement) Ordinance, 1963 by Government of North-West Frontier Province making essential obtaining of No objection Certificate from Government prior to establishment of such Mills---Validity---Notification No.II-1-35/59, dated 19-11-1963 issued by Government of West Pakistan under S.3(1) of the Ordinance specifically excluded D.I. Khan District from application of' the Ordinance---During subsistence of Province of' West Pakistan or after establishment of North-West Frontier Province, such Notification dated 19-11-1963 had not been repealed, withdrawn, changed, altered or amended---Provisions of West Pakistan Industries (Control on Establishment and Enlargement) Ordinance, 1963 including S.3 thereof were not applicable to area of D.I. Khan, thus, no permission would be required from Provincial Government for establishment of Sugar Mills in said District---Provincial Government had general powers to allow any number of Sugar Mills subject to reasonable discretion considering feasibility of number of Sugar Mills in the area subject to availability of sugarcane and considering environmental hazards---Such notifications dated 14-5-2005 and 24-5-2005 issued by Provincial Government had become redundant---Principles.

PLD 1957 Lah. 914; PLD 1963 SC 564; PLD 1969 SC 223; PLD 1971 SC 252; PLD 1960 SC 31; 1981 SCMR 916; PLD 1964 SC 829; 2004 YLR 521 and 2005 SCMR 678 ref.

Yahya Khan Afridi for Petitioner.

Pir Liaqat Ali Shah, A.A.G. for Respondents Nos. 1 to 3.

Qazi Muhammad Anwar for Respondent No.4.

Qazi Muhammad Jamil and Jawad Hassan for Respondent No.5.

Date of hearing; 7th December, 2006.

P L D 2007 Peshawar 83

Before Talaat Qayum Qureshi and Dost Muhammad Khan, JJ

ABDUL AHAD---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.581 of 2006, decided on 14th December, 2006.

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

----Ss. 295-B & 188---Appreciation of evidence---Complainant at bail stage in his statement on Oath had exonerated accused from the charge, but while appearing at the trial as prosecution witness he resiled from his earlier statement giving unfounded explanation that he had given same under the pressure of elders of the area---Complainant, who was the star witness, had come out for a noble cause, but his subsequent vacillating and wavering conduct, jumping from one stance to another, had reduced his credibility almost to naught---Complainant, who made statements mutually inconsistent, was neither reliable nor was entitled to be listened to as credibility-wise the probative value of his testimony, was drastically reduced---Complainant had not brought on record his religious qualification to prove the level of his knowledge with regard to Islamic "Fiqah ---Court witness at the trial had given indescriptive, inconclusive and variant rather inconsistent opinions on the issue, which under no circumstances could be made safe or valid basis for conviction on capital charge, but Trial Court had acted blind foldedly while placing reliance on it---Accused on available evidence, in no manner could be tagged with the alleged offence as prosecution had miserably failed to establish a direct nexus between accused and alleged objectionable booklets---Investigations were choked in half way without taking it to ultimate and logical conclusion as the person responsible for authoring the text, printing and publishing the same had not been discovered---Evidence led at trial left behind much to be debated upon---Same was of very little evidentiary value entirely insufficient to convict accused to suffer capital punishment---Religious scholar appeared as witness had neither brought on record his qualification nor had told the court about his competency in delivering "Fatwa" against accused; he could not quote anything from "Sharia" that any addition which was not derogatory in nature to the original text of a "Surah"; would come within the mischief of desecration or distortion of Holy Qur'an or part of it---In absence of any quotation to support his view, opinion expressed by the witness, was neither legally admissible nor relevant as it was an opinion of the witness who had not established his competency in relevant field---Added text in the booklet in question, did not carry any word which could be held a deliberate distortion of the text of said two "Surahs" with intention to bring it into disrespect nor it changed its meaning and the message of Allah the Almighty---Trial Court had committed glaring illegality in ignoring the evidence and the legal position emerging therefrom and did not observe a little care and caution as to whether offence under S.295-B, P.P.C. was constituted or not---Such a careless dispensation of justice, would never be conducive to the system of criminal justice---Evidence led by prosecution was highly incredible, unreliable and absolutely insufficient for recording conviction on a capital charge---Conviction and sentence awarded to accused by the Trial Court, were set aside and accused was ordered to be set free.

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

----Art. 59---Opinion of expert---Most essential requirement of law was that an expert on a particular subject, whether science, art or law including Islamic Law, must be a master in the relevant field because of special study, training, experience and extensive research work carried out by him---Opinion of such an expert alone would be relevant and admissible---Such religious scholar/expert, had to be duly notified by the Government to provide legal sanction to his opinion.

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

----S. 295-B---"Wilfully", connotation of---Legal word "wilfully" in S.295-B, P.P.C., would essentially connote that act of defiling, damaging or desecrating the Holy Qur'an must be wilful---Term `wilful' in law would mean an intentional and deliberate act---Default or negligence could amount to wilful act, if the doer of the wrongful act when under the ordinary circumstances, while committing the default or guilt or negligence, knew that what he was doing and intended to do as a free agent was forbidden or. injurious in view of the concept of penal law---Dictionary meaning of "wilful" means "wantonly", deliberate, intentional and consciously and not accidentially"---"Wilfully", in the context of the provisions of S.295-B, P.P.C. would mean that act of defiling, damaging, desecrating or distorting the original text of the Holy Qur'an or part of it must be with intention to achieve a nefarious objective contemptuously and showing disrespect to Holy Qur'an which he was forbidding by law to do---Act of wilfully defiling, damaging and desecrating of Holy Qur'an or part of it, would constitute the offence committed intentionally, knowingly, purposely for achieving the detestable objectives while in the absence of such intention, necessary "mens rea" would be absolutely lacking and in that eventuality the person accused for such an offence could not be held guilty except in very rare and exceptional circumstances.

(d) `Mens rea---

----"Mens rea" means the intent or mental condition which must concur with the act done and the consequences achieved---Combination of these acts would tag the wrong doer with the "mens rea".-In criminal law, particularly under the Penal Code, no man could be tried or imprisoned for an act which was committed due to any delusions or misconception of mind, however, culpable and criminal it might be---In offence of negligence or negligent driving, it was not mandatory for the prosecution to prove "mens rea" (intention) of accused while to the contrary in offences when mens rea was made an essential element to constitute same, then prosecution have to establish the crime adducing evidence to prove all the elements constituting the crime i.e. mens rea etc.

(e) Evidence---

----Criminal justice---Kinds of evidence---Rock-bed and elementary principle of criminal justice was that no one would be construed into a crime unless his guilt was proved beyond reasonable doubt by the prosecution through reliable and legally admissible evidence---Evidence, in legal parlance, means confirmation, attestation, authentication, corroboration, demonstration, proof, substantiation, validation and verification to make a disputed fact manifest or apparent enabling a Judge to act upon it, for delivering a judicial verdict---Evidence, in judicial system of Pakistan was given by witnesses in the court testifying to the disputed fact to establish same---Evidence was of various kinds which included; direct evidence; indirect evidence; corroboratory evidence; and circumstantial evidence---Level of expert in criminal trials in Pakistan was not at par with the countries equipped with advanced technology.

(f) Administration of justice---

----Crime and punishment---Duties and function of Judge---Judge/Qazi was alone to decide about the guilt or innocence of an accused on the basis of evidence brought before him and no one could be allowed to forejudge and condemn any person accused of such an offence without facing proper and fair trial---Judge, in no circumstances would be carried sway due to element of sensationalism and excessive publicity of a crime, lest the detestable and shocking nature of crime, might induce him to lose judicial temperament and approach; and might indulge in passionate scrutiny of facts and law far from fair judicial scrutiny.

Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 rel.

M. Zahurul Haq Barrister-at-Law for Appellant.

Sher Bahader Khan for the State.

Wiqar Ahmad Khan for the Complainant.

Dates of hearing: 13th and 14th December, 2006.

P L D 2007 Peshawar 93

Before Talaat Qayum Qureshi, J

MANZOOR HUSSAIN---Petitioner

Versus

IFTIKHAR AHMED and another---Respondents

C.R. No.1 of 2005, decided on 5th March, 2007.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Trial Court and Appellate Court below had concurrently dismissed suit---Plaintiff had asserted that he had made Talb-i-Muwathibat in the presence of witnesses, but witnesses examined by him did not fully support his case---Statements of witnesses though were recorded after lapse of 8 years, but contradictions in the statements of said witnesses, could not be termed as minor contradictions-Such contradictions were major which clearly proved that witnesses of Talb-i-Muwathibat were not truthful and they were avoiding to make correct/true statement about persons who were present at the time of making of Talb-i-Muwathibat---Party producing a witness was bound by his statement---Talb-i-Muwathibat, was to be proved through oral evidence and no number of witnesses was required by law to prove said Talb---Proof of Talb-i-Muwathibat was not merely a technicality, but in fact the very right of pre-emption was not activated, unless Talb-i-Muwathibat was performed in accordance with law---Plaintiff having failed to prove making of Talbs in accordance with law, courts below had rightly dismissed suit after properly appreciating evidence on record and applying law applicable to the case---In absence of any misreading or non-reading of evidence or illegality or any material irregularity or any jurisdictional error or defect in the concurrent findings of the courts of competent jurisdiction, revision was dismissed.

Abdul Qayyum v. Mushk-e-Alam and others 2001 SCMR 798; Mst. Gohar Sultan v. Gul Waris Khan PLD 2003 Pesh. 189 and Muhammad Khan v. Bashir Ahmad PLD 2003 Pesh. 179 rel.

Malik Muhammad Asif for Petitioner.

Muhammad Naeem Anwar for Respondents.

Date of hearing: 5th March, 2007.

P L D 2007 Peshawar 98

Before Muhammad Raza Khan and Hamid Farooq Durrani, JJ

GOVERNMENT OF N.-W.F.P., through Secretary W & S Department N.-W.F.P., Peshawar and 2 others---Petitioners

Versus

MUHAMMAD IQBAL KHAN and others---Respondents

Civil Revisions Nos.173 and 177 of 2003, decided on 28th February, 2007.

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

----Ss. 12(2) & 115---Limitation Act (IX of 1908), Ss.3, 5, 12 & 29---Land Acquisition Act (I of 1894), S.18---Application challenging decree on plea of fraud and misrepresentation---Limitation---Decree passed by Referee Court, was challenged under S.12(2), C.P.C.---Said application having been dismissed by Referee Court; petitioners filed revision against said dismissal order beyond a period of 90 days from the date of impugned judgment---Petitioners applied for issuance of certified copy of impugned order two days after passing of impugned order and requisite copy was provided to petitioners after three months and ten days, but revision was filed against impugned order after about three months of receiving certified copy, which was to be outrightly dismissed by invoking provisions of S.3 of Limitation Act, 1908---First Schedule to Limitation Act, 1908 having not provided a period of limitation for filing a revision under S.115, C.P.C., it could be safely concluded that while computing the period of 90 days as provided in S.115, C.P.C. for filing revision petition, provisions contained in Ss.4, 9 to 18 and S.20 of Limitation Act, 1908 could be resorted to---Revision petition having been filed beyond period of 90 days as provided in S.115, C.P.C. from date of judgment/decree impugned therein, operation of provision of S.3 of Limitation Act, 1908 would leave the High Court with no option, but to dismiss revision petition being barred by time---Concession allowable under S.12(2), C.P.C. would not be available to petitioners, and in their case period of limitation would have to be computed from the date of impugned judgment up to filing of revision petition before High Court, without excluding time consumed in obtaining certified copies required for the purpose---Petitioners despite receipt of requisite certified copies of documents, filed revision petition with considerable delay without any excuse for such carelessness---Revision petition being barred by time, was dismissed, in circumstances.

Abdul Waheed Khan PLD 2006 Pesh. 156; City District Government v. Muhammad Saeed Amin 2006 SCMR 676 and 2000 SCMR 1305 ref.

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

----S. 115---Revisional jurisdiction---Exercise of---Revisional jurisdiction as bestowed upon the Courts through S.115, C.P.C., could not be invoked only through a petition by a person, but also the revisional Court could take suo motu cognizance of a matter, where it was apparent on the face of record that; through impugned judgment/decree, the Court subordinate to the revisional Court, had exercised a jurisdiction not vested in it by law; or had failed to exercise jurisdiction so vested; or had acted in exercise of its jurisdictional illegally; or with material irregularity---For exercise of said supervisory jurisdiction, limitation period of 90 days, would not operate as bar because of the fact that conditionality was attached only to the setting in motion, the process of law, by a person through a petition under S.115, C.P.C. and not by the revisional Court itself.

Khan Afzal Khan for Petitioners.

M. A. Tahir Bhali and D.A.-G for Official Respondents.

Date of hearing: 28th February, 2007.

P L D 2007 Peshawar 103

Before Muhammad Raza Khan, J

DILBAD SHAH---Petitioner

Versus

S. REHMAT SHAH and others---Respondents

C.Rs. Nos.452, 405, 109, 491, 169, 425 of 2006; 55, 66 of 2007; 89 of 2004; 96 of 2002; 39, 151 152 of 2003, decided on 27th February, 2007.

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

----S. 115---Limitation Act (IX of 1908), Ss.5 & 29(2)---Revision---Limitation---Delay, condonation of---Condonation of delay, could be allowed only by invoking powers under S.5 of Limitation Act, 1908, but in view of availability of a clear provision of statute, possibility of exercising the inherent powers of the court, was excluded---Since the period of limitation had been prescribed in S.115, C.P.C. for filing of revision petition, which was 90 days, same being a special law, provisions of S.29(2) of Limitation Act, 1908, would be applicable and for the determination of period of limitation, all the provisions (except Ss.4, 9 to 18 & S.22), would not apply---Section 5 of Limitation Act, 1908, in circumstances would not apply to civil revisions---Delay in filing revision petition, beyond the period of 90 days prescribed under S.115, C.P.C., could not be condoned under S.5 of Limitation Act, 1908 as the operation of said section was expressly excluded by S.29(2) of Limitation Act, 1908.

Allah Dino v. Muhammad Shah 2001 SCMR 286; Rehana Kausar and others v. Faqir Muhammad 2004 CLC 1202; Haji Ahmad v. Noor Muhammad 2004 SCMR 1630 and City District Government v. Muhammad Saeed Amin 2006 SCMR 676 ref.

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

----S. 12(2)---Civil Procedure Code (V of 1908), S.115---Revision---Limitation---Exclusion of time consumed in legal proceedings---Exclusion of time consumed for getting the certified copies, was regulated under S.12(2) of Limitation Act, 1908, which was the only provision whereby period required for getting the copies of impugned judgment etc., could be excluded from computing the period of limitation---Subsection (2) of S.12 of Limitation Act, 1908, was attracted only to three kinds of proceedings; firstly, the appeal; secondly the application for leave to appeal and thirdly; application for review of judgment---Application for revision being not included in any of said three categories, it could be concluded that said provision of law could not be applied to revision petitions---Contention was raised that scope of said facility could be extended to the revision petitions as well on the ground that when the law extended a benefit to a citizen for availing a remedy against a judgment, it should not be restricted to certain categories, but it should be extended generally to every type of remedial process---Such contention was negated by the fact that nobody should be wiser than the law and the law givers---If the Legislature had excluded a particular proceeding from the operation of a particular provision, same could not be read between the lines, because thereby the clear provisions of law would be violated---Restriction of the facility contained in subsection (2) of S.12 of Limitation Act, 1908 to three categories only, was by design and not by default---Legislature, in its wisdom, did not intend to extend benefit of exclusion of the time required for getting the certified copies to the categories of revision petitions, said facility could not be extended to civil revisions by implication.

Tahir Ali and others v. Chief Judge Small Causes Courts and others PLD 1960 Kar. 796; Said Muhammad v. Sher Muhammad 2001 MLD 1546; Muhammad Islam v. Amir Sher Bahadur 2004 MLD 1029 and Abdul Waheed Khan and another v. Mst. Ruqia Bibi and 17 others PLD 2006 Pesh. 156 ref.

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

----S. 115---Limitation Act (IX of 1908), Ss.3, 5, 12(2) & 29(2)---Revision---Limitation--Condonation of delay---When the law prescribed a specific period of 90 days for an application for revision, the time would start running from the. impugned judgment or order---Aggrieved person could submit application for certified copies, but, on the delivery thereof, he should not wait for another period of 90 days, but must file revision within the original period of 90 days from the impugned order/judgment---Law provided that the court would supply the copy of impugned order/judgment within a period of three days---Such was a direction from the Legislature to the court that in case an aggrieved person intended to file a revision petition, the delivery of certified copies, should not be delayed---Said provision, however did not vest the petitioner with an indefinite period to delay the submission of revision petition, if the copies were not furnished within the said period of three days---Since the consequential provision of failure to comply with the direction of three days was not stated in the statute, said phrase would be treated as directory and not mandatory; whereas the failure to file revision petition within prescribed period of 90 days, would attract the dismissal thereof under S.3 of Limitation Act, 1908, read with S.29(2) thereof---Said provision being penal in nature, period of 90 days would be mandatory and not directory in nature.

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

----S. 115---Limitation Act (IX of 1908), Ss.3, 5, 12(2) & 29(2)--Revision---Limitation---Filing revision petition when certified copy of judgment/order, was not furnished by copying agency---Procedure---If detailed judgment was not available or the certified copy of the impugned judgment/order or any other document could not be furnished by the Copying Agency expeditiously, petitioner should file revision within the stated period of 90 days by annexing uncertified copies of the available documents; and by furnishing affidavits regarding non-supply of certified copies by the Copying Agency/court; and by annexing the copy of receipts issued by the Copying Agency on the application for getting the certified copies of the documents---Office of the revisional court would accept the revision petition without such certified copies and could direct petitioner to furnish the copies as and when available---Such procedure on the one hand would ensure the compliance of law regarding the period of 90 days and on the other hand, it would help the revisional court to effectively exercise the supervisory jurisdiction over the court by inquiring into the causes of delayed delivery of certified copies---Not only the law would thus be followed in letter and spirit, but the system of administration of justice would be gradually rectified.

Abdul Waheed Khan and another v. Mst. Ruqia Bibi and 17 others PLD 2006 Pesh. 156; 1992 CLC 1394; Musharraf Sultana v. Fazal Hussain 1992 CLC 1394; Riasat Ali v. Muhammad Jaffar Khan 1991 SCMR 496; Mohammad Swaleh v. Messrs United Grain and others PLD 1964 SC 97; Sultan Khan and 3 others v. Sultan Khan 2004 MLD 918 ref.

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

----S. 115---Suo motu revisional powers---Limitation---No time restriction was provided for the purpose of suo motu revisional powers.

Muhammad Wajid Khan for Petitioner.

Shujat Ali Khan, Abdul Latif Khan and Malik Manzoor Hussain for Respondents.

Date of hearing: 6th February, 2007.

P L D 2007 Peshawar 116

Before Salim Khan and Hamid Farooq Durrani, JJ

SARDAR MALIK JAN---Petitioner

Versus

THE STATE and 3 others---Respondents

Writ Petition No.303 of 2004, decided on 30th April, 2007.

(a) Police Rules, 1934---

----Rr.23.8 & 23.9---Constitution of Pakistan, 1973, Art.199---Constitutional petition---History sheet of petitioner was opened on the allegation that he was hardened criminal and was reasonably believed to be edicted to crimes or had aided and abetted crimes in the past---Authorities, in that regard had referred to various F.I.Rs. available on record wherein petitioner had a role in one capacity or the other---Validity---Petitioner was not given any notice of the proceedings undertaken against him under Rr.23.8 & 23.9 of the Police Rules, 1934 as a consequence whereof history sheet was opened---Proceedings against petitioner were taken in haste and without application of independent mind---Action of authorities against petitioner smacked of mala fide--Verdict of conviction was not pronounced against petitioner in any of such cases rather he was acquitted of the charges honourably---Opening of history sheet against a person and entry of his name in the Surveillance Register, was an act which could not be kept as a guarded secret by the police---Consequences of such act were that same became known to the headmen of the village and other prominent persons of the locality which in turn would tend to form an adverse opinion against a person to be kept under surveillance---Petitioner, on account of such action by the authorities, was belittled in the eyes of people of the locality to which he belonged---Initiation of an action in that regard would be to the detriment of reputation of the person so subjected to the exercise---Preparation of history sheet of petitioner, without notice to him and without providing opportunity of hearing to him and the entry of his name in the surveillance Register, was against the principles of natural justice, thus was without lawful authority, void and inviolative of the rights of the petitioner.

Government of Pakistan v. Muhammad Akhtar Mir PLD 1971 SC 55; PLJ 1971 Cr. Cases Kar. 19 and PLD 1974 SC 31 rel.

(b) Words and phrases---

----"Reasonable"---Meaning and scope.

Yasir Zahoor for Petitioners.

Qari Abdul Rashid, D.A.-G. along with Noor Ahmad Shah, S.H.O. for Respondents.

Date of hearing: 12th April, 2007.

P L D 2007 Peshawar 123

Before Muhammad Raza Khan, J

YAFAS---Appellant

Versus

THE STATE and others---Respondents

Criminal Appeal No.130 of 2006, decided on 12th March, 2007.

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

----Ss. 3, 4, 5 & 9---Criminal Procedure Code (V of 1898), S.410---Conviction---Appeal---Maintainability---Accused having been convicted by the Trial Court under S.3 of Illegal Dispossession Act, 2005, had filed appeal against his conviction and sentence---Maintainability of appeal was objected to on the ground that as accused having been convicted under a special statute, which did not provide for a right of appeal, his appeal was not maintainable---Validity---Illegal Dispossession Act, 2005 did not contain any provision with regard to the right of appeal; in view of S.9 of Illegal Dispossession Act, 2005, remedy would be available under Criminal Procedure Code, 1898---Right of, at least, one appeal against any order (particularly against the order of conviction) was an undoubted established principle and practice of criminal justice---Objection with regard to the maintainability of appeal was without force because anything for which there was no contrary provision in Illegal Dispossession Act, 2005, Criminal Procedure Code, 1898 would be applicable and since no provision of appeal existed in the Act, appeal under S.410, Cr.P.C. was the appropriate remedy.

Zahoor Ahmad and 5 others v. The State PLD 2007 Lah. 231 ref.

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

----Preamble & S.5---Object and applicability of Illegal Dispossession Act, 2005---Illegal Dispossession Act, 2005, was promulgated to curb the increasing tendency of the use of force in dispossessing the owners from their valuable properties, however, a nice distinction could be made between Illegal Dispossession Act, 2005 and the earlier law in the field---Immovable property could bring the disputes and controversies along with title and a person could be dispossessed by a contiguous owner, a co-owner or by a stranger---Several provisions in the revenue, civil and criminal law were already in existence to meet such situation---Need of new legislation was felt when organized groups of people tried to dispossess the owners of valuable property by the use of force---Menace of land grabbing or "Qabza Group" was spreading with fast speed---Legislature, in circumstances felt the need to curb the tendency of land grabbing---illegal Dispossession Act, 2005 was promulgated with a view to "curb the activities of the property grabbers" and in view of the desire of Government to nip the evil in the bud, the statute with special provisions was enforced, where not only the level of the Trial Court was specified to be the Court of Session, but the harsh punishment of imprisonment extendable to 10 years with fine was also provided with an additional provision of compensation to the complainant under S.544-A, Cr.P.C.---Law had further provided for the eviction of the illegal occupation as an interim relief for the restoration of possession to the original occupant on the conclusion of trial---Speedy mechanism for the investigation and trial was also provided and in S.5(2) of Illegal Dispossession Act, 2005, it was provided that "the court taking cognizance of a case would proceed with the trial on day to day basis and would decide case within 60 days"---Such an expeditious and strict procedure was laid down with a purpose to discourage the attempts of illegal dispossession and to restore the proprietary confidence and possession to the owners within the minimum possible time and to discourage the grabbers by deterrent punishment---Such a special statute with special mechanism, however, could neither be applied to all the cases of trespass and dispossession nor the power of the civil court and Revenue Court had been withdrawn through the said legislation--Particular phrase like "property grabbers" used in the Preamble and the title of Illegal Dispossession Act, 2005 and the use of the term in plural was of specific importance---Purpose of legislation was "to curb the activities of the property grabbers" and not to provide for a mechanism for the resolution of controversy of encroachment, dispossession etc. between the contiguous owners and the co-owners.

(c) Words and phrases---

----"Grab", "grabber", "land grabber" or "property grabber"---Meaning and connotation.

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

----Preamble, Ss.3 & 5---Appreciation of evidence---Applicability of Illegal Dispossession Act, 2005---Points to be established---For application of Illegal Dispossession Act, 2005, it had to be established; firstly that person who had taken the possession, was not having a title thereto; secondly, that he had taken the possession by the use of force; thirdly, that he had taken over the property without due process of law; and fourthly, that such person or persons belonged to the group of land grabbers---Complainant, in the present case, undoubtedly was a lawful owner of an immovable property and he was an occupier of a part of it, but no evidence was available to the effect that accused had used the force on the complainant or his tenant, lessee or servant for the purpose of dispossession---No proof existed to the effect that any of the building structures, crops, trees etc., were damaged or demolished by accused during alleged act of dispossession and there was no proof at all either that accused was a land grabber or he belonged to the group of land grabbers, property grabbers or the land mafia---Even if it was presumed that accused had dispossessed the complainant illegally, but no proof was available that such dispossession was forcible and there was no proof at all that dispossession of complainant was committed by the property grabbers---Provision of Illegal Dispossession Act, 2005 would not be applicable in circumstances and conviction of accused under said law was legally not proper---Complainant could still resort to appropriate legal remedy---Conviction and sentence awarded to accused by the Trial Court, were set aside and accused was acquitted of the charge and was released.

Kh. Azhar Rashid for Appellant.

Qari Abdul Rashid, D.A.-G. for the State.

Complainant in person (present).

Date of hearing 27th February, 2007.

P L D 2007 Peshawar 131

Before Salim Khan, J

THE STATE through Advocate-General, N.-W.F.P. Peshawar---Appellant

Versus

Haji NASIB KHAN---Respondent

Criminal Appeal No.249 of 2003, decided on 15th May, 2007.

Criminal Procedure Code (V of 1898)---

----S. 417---Penal Code. (XLV of 1860), S.188---Hazara Forest Act (III of 1936), S.26(3)---Appeal against acquittal---Respondent/accused was previously acquitted in two cases based on same facts, and order of his acquittal had attained finality---Same accused had been acquitted for the third time in that case after taking into consideration the evidence in that case---No defect was found in the conclusion. arrived at by Zila Qazi--­Complainant having not come forward for proceedings under S.417(2), Cr.P.C., provisions of S.417(4), Cr.P.C. were not applicable in that' case---Fact in issue in the previous litigation whether proved or unproved, could not be allowed to be reopened for further evidence as issue of fact regarding same stood finally decided---Accused could be tried by two different judicial fora for two different sets of offences under two different laws on the basis of the same facts, but once accused was tried by a certain judicial forum for one or more offences, based on certain facts, same court could not try same accused on the basis of same facts; for some other offences arising out of same facts-Such court could frame a charge for all of such offences initially or could alter the charge at any stage of the proceedings to include all or most of such offences in the charge---When court would take cognizance of the facts of a case, it was presumed that such court had applied its mind to all the facts of the case---Once no further action was taken by the prosecution after acquittal of respondent/accused in two different cases for different offences on the basis of the same facts, after dismissal of appeal and revision, prosecution would lose the chance to further contest acquittal of respondent/accused, under S.249-A, Cr.P.C.---Decision in the case had become final, order of Zila Qazi in the case was legally correct and there remained no ground for the complainant party/prosecution to bring instant appeal against acquittal.

PLD 2002 SC 687 and PLD 1990 Kar. 286 ref.

Miss Raheela Mughal for Appellant.

Qazi Muhammad Arshad, for Respondent.

Date of hearing: 15th May, 2007.

P L D 2007 Peshawar 135

Before Ijaz-ul-Hassan Khan and Shah Jahan Khan, JJ

AAMIR KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.126 of 2005, decided on 23rd April, 2007.

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

---Ss. 9(c), 25 & 29---Appreciation of evidence---Prosecution witnesses who were marginal witnesses of memo. of recovery through which contraband charas was taken into possession and Investigating Officer, were subjected to lengthy and searching cross-examination, but nothing favourable could be gained by accused---Said witnesses were consistent on all material particulars and their statements were worthy of credence---Contention of accused that he was innocent and falsely charged in the case, had no substance as he could not show that statements of prosecution witnesses were motivated by or enmity towards accused---Testimony of said witnesses inspired confidence and had been rightly relied upon by the Trial Court---Accused had not been able to point out any discrepancy or flaw creating dent in the prosecution story---Discrepancies highlighted by the counsel in the statements of prosecution witnesses, were minor in nature and could not be considered sufficient to vitiate the trial---Section 25 of Control of Narcotic Substances Act, 1997, having excluded application of 5.103, Cr.P.C., recovery having not been witnessed by person from public, had no substance---Non-production of destruction certificate at the trial had not prejudiced the case of accused in any manner, which at the most could be considered as an irregularity curable under S. 537, Cr.P.C. and could not affect the factum of recovery from the motor car in question---When accused had taken a specific plea, onus would shift on him to prove such plea---Mere assertion of accused that real culprit i.e. driver of the car was allowed to slip away by the customs staff and accused was involved in the case, was without a positive attempt on the part of accused to substantiate his plea of innocence and false implication, which was of no consequence---Provision of S.29 of Control of Narcotic Substances Act, 1997, raised a legal presumption against accused found in possession of narcotic until the contrary was proved---Prosecution had proved the guilt of accused beyond all reasonable doubt and had successfully discharged its burden through consistent and confidence-inspiring evidence---Accused, in circumstances had rightly been found guilty of the commission of the offence and impugned judgment passed by the Trial Court, being unexceptionable, would admit no interference by the High Curt in appeal---Impugned judgment was maintained, in circumstances.?

Johar Ali and another v. The State 2003 PCr.LJ 680; Muhammad Uzair Siddiqui v. The State PLD 2005 Pesh. 81; Fida Muhammad v. The State 2006 PCr.LJ 316; Sardar Khan v. The State PLD 2005 Pesh. 167; Wajid Ali Shah v. State 2002 MLD 1982 and Ibrahim Hussain v. The State 2005 SCMR 1487 rel.

Noor Alam Khan for Appellant.

Salahuddin Khan, D.A.-G. for the State.

Date of hearing: 29th March, 2007.????????????

P L D 2007 Peshawar 141

Before Salim Khan and Muhammad Raza Khan, JJ

KHALIL UR REHMAN through Legal Heirs and others---Appellants

Versus

GOVERNMENT OF N.-W.F.P. through Secretary Education Department, Peshawar and 2 others---Respondents

R.F. As. Nos.30 to 33 of 2004 and R.F.A. No.28 of 2005, decided on 31st May, 2007.

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

----Ss. 4, 12, 18, 23 & 54---Acquisition of land-Determination of amount of compensation---Reference to referee Court---Potential value of land---Appeal---Land sought to be acquired consisted of Bahir Di Abi' and "Ghair Mazrua"---Vide award, value ofBahir Di Abi' was fixed at Rs.1,02,855 per Kanal while value of "Ghair Mazrua" kind of land was fixed as Rs.998/60 per Kanal---Landowners being dissatisfied with such fixation, filed application under section 18 of Land Acquisition Act, 1894 and case was referred to referee Court---Referee Court had dismissed objection petitions of landowners---Validity---Record showed that land in question was surrounded by other commercial and residential lands and it was situated near the Main Road at a distance of 2 kilometres from the limits of Cantonment Board---Potential value of the land and not its value according to one year average or five year average, was to be taken into consideration while assessing the compensation of such land---Word "Potential" means the power or strength of something, its possibility and capacity and its worth in latent or undeveloped state---Site, situation, strata, status, suitability and surroundings of a land were to be kept in view while assessing its compensation---Land could be of no worth for one purpose, but it could be the most worthy for another purpose and it was not the kind of the land but the use of the land for a specific purpose which was to be kept in mind for the purpose of such assessment of compensation---Land in question was to be used for construction of building of Board 'of Intermediate and Secondary Education and for its other necessities-Was not always necessary that the value of the surrounding land should be high for higher assessment---Land may or may not be suitable for a specific purpose in its undeveloped form, and that suitability or otherwise would fix its potential value---Kinds of the different portions of land, in such circumstances, would become immaterial, because the total chunk of land, irrespective of its kinds, was used for certain purpose for which it was found suitable---Lands in question had been assessed by the Local Commissioner at Rs.5,00,000 per Kanal for about five Kanals, and value of remaining area was fixed at Rs.3,50,000 per Kanal---Impugned order of referee Court was with regard to report of Local Commissioner appointed by it and it was satisfied with the report of Local Commission which was accepted by the High Court with modification that value -of all types of land out of suit property was Rs.5,00,000 per Kanal for the purposes of compensation to the landowners with 15% compulsory acquisition, charges and 6% interest. ?

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

----Ss.4, 12, 18 & 23---Land acquisition proceedings---Determination of amount of compensation---Land acquisition proceedings were not a direct transaction between a willing vendor and a willing vendee; it was the will, choice and selection of the Government/Authority or Company with regard to a land which stood paramount, and the landowners had no right to hinder such will, choice and selection, except to demand the reasonable compensation---Landowners could accept high value of their lands in the near future due to the location of the land; and due to the development of the areas not far away from their property---Land in question, if not acquired for the purpose of Board of Intermediate and Secondary Education, could be expected to fetch high price in market due to changing environments in the surrounding areas and rapid structural developments.?

(c) Words and phrases---

---"Potential"---Connotation.

Abdul Shakoor Khan for Appellants.

Abdul Rashid D.A.-G. and Muhammad Aslam Khan for Respondents.

Date of hearing: 23rd May, 2007.

P L D 2007 Peshawar 147

Before Ijaz-ul-Hassan Khan and Dost Muhammad Khan, JJ

ZAHIR SHAH and 11 others---Petitioners

Versus

AGENCY EDUCATION OFFICER, MOHMAND AGENCY GHALLANAI and 3 others---Respondents

Writ Petition No.254 of 2006, decided on 11th October, 2006.

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

----Art. 199-Constitutional petition---Civil service---Appointment--­Withdrawal of appointment-Petitioners were appointed as P.T.C. teachers on the recommendation of Departmental Selection Committee in the laid down manner on merits---Petitioners were allowed to assume charge of their posts at the respective places after initial verification of testimonials, including domicile certificates from concerned quarters---During the course of performing duties, Authority without any show-cause notice to petitioners or giving them an opportunity of hearing, withdrew their appointment orders on the pretext that they were holding domiciles of category "B"---Validity---Petitioners, right from their forefathers and by birth, were the permanent residents of "Mohmand Agency" having permanent abode there and that fact could not be refuted by the Authorities in any manner---Petitioners along with their applications for the post of P.T.C. teachers had also submitted their original domiciles of category "A" issued by the relevant office---No objection was raised about the authenticity and genuineness of said certificates, which were accepted as valid holding petitioners permanently domiciled in "Mohmand Agency" right from the time of their forefathers---Tribal domicile certificates were to be issued only to eligible tribesmen who were permanently residents of that area, no reference was found to category "A" or category "B" in the domicile certificate---Political Agents at their whim, in addition without any lawful authority had imposed further conditions categorizing the domicile certificate into "A", "B", "C"---Such additional conditions were in disregard of law and rules on the subject---Once such certificate was issued, in due course to' tribesman permanently settled in any Tribal Agency, it would remain intact, unless its holder decided to settle in another place with clear intention not to return to the place of his birth or origin---Impugned action taken by Authorities cancelling/recalling the domicile certificates of petitioners on fallacious ground and then recalling their appointment orders, without giving them opportunity of hearing, were without jurisdiction, without lawful authority, arbitrary, unjustified and against principles of natural justice---Both impugned orders of Authorities with regard to cancellation of domicile certificates of petitioners and recalling/cancelling their appointment orders on P.T.C. posts, were set aside and Authorities were directed to reinstate petitioners on the post they were holding at the time of passing of impugned orders.

Government of Balochistan and others v. Rifat Parveen 1981 SCMR 1002 ref.

(b) Pakistan Citizenship Act (II of 1951)----

-----S. 17-Pakistan Citizenship Rules, 1952, R.23---Domicile and citizenship---Domicile and citizenship would represent two different conceptions having mutually overlapping effects---Citizenship would confer rights along with corresponding liabilities on the citizen towards " the State/society, while a domicile or permanent residence certificate had reference to civil rights and privileges acquired thereunder---Generally, domiciles were of two main categories i.e. domicile of country which was called citizenship and of a particular area/District or Tribal Agency---In Province of N.-W.F.P., Government vide notification had issued instructions to the District Magistrate/Political Agents and other authorized officers laying down certain conditions to be fulfilled by the applicant before getting domicile of Tribal Area---No mention of category "A" or "B" domicile was there in those instructions---Sole object behind said instructions was that Tribal Domicile Certificates were to be issued only to eligible Tribesmen who were permanent residents of that area---Domicile of any person was the place which was. considered by law to be his permanent home---Two essential conditions would confer indefeasible right of domicile on a person i.e. that he must dwell ' permanently within a particular area with no express intention of giving up both of them-In law, the term "abode" denoted the place a man's residence or his business that he could reside elsewhere---Such term was quite distinct from "domicile" which denoted more than a place of residence---Word "domicile" had been derived from the word "domus" meaning a home or a dwelling place and it was the relationship which the law indicated between an individual and a particular locality or a country---Under the laws and rules on the subject, every person had. a right to get domicile certificate, provided he had a permanent abode in that area or was born of parents permanently domiciled in that place---Same was called domicile acquired by birth and his status would remain intact unless he would choose to settle in another place, District or Tribal Agency permanently, with no intention to return to the place of his birth/domicile/origin.

Joshni v. M.B. State AIR 1955 SC 234 ref.

Khalid Rehman Khan for Petitioners.

Nizar Muhammad Khan, Dy.A.-G. for Respondents.

Date of hearing: 11th October, 2006.

P L D 2007 Peshawar 158

Before Tariq Parvez Khan, C.J., and Muhammad Qaim Jan Khan, J

ABDUL ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.632 of 2005, decided on 23rd January, 2007.

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

----S.9(c)---Appreciation of evidence---Benefit of doubt---Arrest of accused was proved on record on 13-11-1997, but same was shown on 14-11-1997---Since both the agencies i.e. police and Frontier Constabulary Staff were suppressing the facts which were borne out from their own record, they and their witnesses were held dishonest and it would be hard to rely on their statements---Said dishonesty apparent in the investigation accused appeared as his own witness for defence on oath, supported by their defence witnesses with plausible theory that he himself was not riding the bicycle in question, but somebody struck him with the bicycle and ran away on seeing the F.C. personnel--- Such plea would also create doubts in the case of prosecution---Extending benefit of doubt to accused, conviction and sentence recorded against him by the Trial Court, were set aside and he was acquitted of the charges.

Noor Alam Khan for Appellant.

Salahuddin Khan, Public Prosecutor for the State.

Date of hearing: 23rd January, 2007.

P L D 2007 Peshawar 160

Before Muhammad Qaim Jan, Khan, J

MUHAMMAD RAMZAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.633 of 2004, decided on 15th June, 2007.

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

----Ss.9(c) & 25---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Sentence, reduction in---Prosecution had proved its cast against accused beyond any shadow of doubt---Marginal witnesses were put to the test of cross-examination, but nothing favourable to the defence could be extracted from their mouth---As far as non-production of Investigating Officer was concerned, order sheet had clearly shown that on 2/3 occasions, he, was present, but due to the absence of case property or other reasons, his statement was not recorded---In no way best evidence had been curtailed by the prosecution---Provisions of S.103, Cr. P. C. had been excluded by S.25 of Control of Narcotic Substances Act, 1997---Huge quantity of contraband had been recovered from the secret cavities of the truck driven by accused and his co-accused---Accused in their statement under S.342, Cr.P.C. had admitted their presence at the relevant time on the truck and they failed to prove that they were not aware of the narcotics which were wrapped in 17 bags---Prosecution having proved its case against accused beyond any shadow of doubt, Trial Court had rightly recorded conviction of accused---Accused was a driver belonging to the other Province, while co-accused was a cleaner who belonged to other city---Narcotic was smuggled by the big birds, who went scot-free and person plying the trucks or any other vehicles were caught in the clutches of law---Sentence of accused was reduced from life imprisonment to ten years and fine was also reduced from Rs.500,000 to Rs.2,00,000.

Noor Alam for Appellant.

Salahuddin, D.A.-G. for the State.

Date of hearing; 30th April, 2007.

P L D 2007 Peshawar 164

Before Tariq Parvez Khan C.J. and Hamid Farooq Durrani, J

GULZAR and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.48, 70 and Criminal Revisions Nos.20 and 21 of 2005, decided on 3rd July, 2007.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 337-A(ii)(iv)(v)---Appreciation of evidence---Sentence, reduction in---Three injured eye-witnesses having no previous enmity against accused, presence of said eye-witness at the spot could not be doubted---Daily diary though was recorded on the report of complainant, but same was duly thumb impressed by deceased who, at that time being injured, was alive---Dying declaration in the foot note contained that it was read over to the deponent and the injured who accepted same to be correct---Said document could betaken as dying declaration---In view of the daily diary duly thumb impressed by the then injured deceased, and due to fact that no previous enmity existed between them, no room was left for false charge---Site plan showed that co-accused were also charged for causing serious stout injuries on complainant party---Liability of accused to have caused death of deceased, had become doubtful---Participation of acquitted accused in the crime being also open to doubt, his acquittal was maintained---Another co-accused, who was charged for causing injuries to one of the eye-witnesses, was juvenile and had been awarded three years' R.I. which was maintained---Only the accused was found responsible for causing death of deceased, but because of absence of previous enmity and for the reason that occurrence had taken place at the spur of moment and keeping in view the weapon used, sentence of 14 years' R.I. was reduced to 10 years' R.I. and for the Same reason conviction recorded under S.324, P.P.C. from seven years was reduced to three years' R.I.---Conviction and sentence of accused under S.337-A(ii), P.P.C., however were left intact---Sentence of co-accused was also reduced accordingly.

Ghulam Mustafa Khan for Appellants.

Sardar Ali Raza, D.A.-G. for the State.

Muhammad Nasim Khan Swati for the Complainant.

Date of hearing: 3rd July, 2007.

P L D 2007 Peshawar 169

Before Raj Muhammad Khan and Said Maroof Khan, JJ

Sardar FATEH ULLAH KHAN, MIAN KHEL---Petitioner

Versus

CHIEF MINISTER, N.-W-. F. P. and others---Respondents

Writ Petitions Nos. 141, 148 and 149 of 2007 and C.M. No.117 of 2007, decided on 4th July, 2007.

North-West Frontier Province Local Government Ordinance (XIV of 2001)---

----Ss.128, 129 & 132---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suspension of Tehsil Nazim---Petitioner/Tehsil Nazim had assailed his suspension by Chief Executive for ninety days in view of recommendations made by Provincial Local Government Commission---Suspension of Nazim, inter alia, required reasons to be recorded and conveyed to the Nazim---Section 132(3) of North-West Frontier Province Local Government Ordinance, 2001, provided simply for opinion of Commission that suspension of Nazim was necessary for the fair conduct of inquiry under clause (b) of subsection (1) of 5.132 of the Ordinance; or preventing Nazim from continuing with any unlawful activity during pendency of inquiry---Commission could recommend to the Chief Executive of the Province for making appropriate order for. suspension of Nazim and for a maximum period of ninety days---Section 132(1) of North-West Frontier Province Local Government Ordinance, 2001, did not elaborate or reproduce all those requirements for suspension laid down in S.129 of the Ordinance, but still, when an appropriate order for suspension was to be made by the Chief Executive under S.132(3) of the Ordinance, Chief Executive had to fulfil the requirements of S.129---Fresh Inquiry Committee was constituted the case---North-West Frontier Province Local Government Ordinance, 2001 did not provide for reconstitution of Inquiry Committee, if once an inquiry was initiated in a case---Reconstitution of Inquiry Committee by the Commission, also required a show cause notice to Nazim particularly when he had objected to certain Members of substituted Committee vide his application, which did not appear to have been considered at all---Chief Executive was not empowered to suspend a Nazim for more than ninety days, but in the present case he had ordered suspension for said maximum period which amounted to a final action against Nazim---Appropriate order would require application of mind, recording of reasons as well as observance of principles of natural justice enshrined in the maxim `audi alteram partem'---Chief Executive having not acted in accordance with law, his action, in suspending Nazim was in an unlawful manner and without proper application of mind, which had to be struck down---High Court accepting constitutional petition declared impugned notification 'to the extent of suspension of Nazim, to be illegal, unjust and unfair.

2002 PLC (C.S.) 816; 1970 SCMR 103; PLD 1978 Lah. 1108; PLD 1964 Dacca 671 and 2005 PLC (C.S.) 1207 rel.

2002 CLC 147; PLD 1973 SC 49; 2001 SCMR 103; PLD 1969 SC 14; 2007 SCMR 300 and PLD 1987 SC 304 ref.

Qazim Anwar, Sanaullah Khan Gandapur, Ch. M. Sharif and Daud Khan for Petitioner.

Abdul Aziz Khan Kundi; D.A.-G. for Respondents.

Date of hearing: 26th June, 2007.

P L D 2007 Peshawar 179

Before Dost Muhammad Khan, J

JAN PERVEZ---Petitioner

Versus

Haji FAZAL HUSSAIN and 6 others---Respondents

Criminal Miscellaneous/Quashment Petition No.70 of 2006, decided on 20th July, 2007.

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

----S.3 (2)---Penal Code (XLV of 1860), S.447---Constitution of Pakistan (1973), Art.12 (1)---Criminal trespass---Punishment---Retrospective effect---Scope---If offence of criminal trespass under S.447 P.P.C. is considered to be the law relating to punishment of such offence/offences which are in vogue since long, the enhanced punishment provided under S.3 of Illegal Dispossession Act, 2005, is squarely hit by the prohibitory command of Art.12 (1) of the Constitution.

Abdul Rehman v. The State 1978 SCMR 292 ref.

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

----Art.12---Protection against---Retrospective punishment---Scope---Legislature has unfettered powers to make laws with retrospective effect which include substantive law and law of procedure---Restriction under Art.12 of the Constitution has been imposed on the powers of legislature to the effect that it cannot make laws to punish acts or omissions of the past which by then were neither declared offences by law nor any punishment was provided therefore---Only exception created under. Art.12(2) of the Constitution, covers the offence of high treason---Giving retrospective effect to any new enactment which enhanced punishment for offence from one which was provided for the same offence under law prevailing at the time when the offence was committed, has been prohibited under Art.12 of the Constitution.

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

----S. 5---Specific Relief Act (I of 1877), Ss.9 & 54---Civil Procedure Code (V of 1908), O.XIV, R.2---Constitution of Pakistan (1973), Art.12---Criminal .Procedure Code (V of 1898), Ss.145 & 561-A---Quashing of proceedings---Illegal dispossession---Pendency of civil litigation---Remedy---During pendency of suit for mandatory injunction before civil court, respondents; filed complaint under S.5 of Illegal Dispossession Act, 2005, alleging that petitioner intended to dispossess them by force---Grievance of petitioner was that cognizance taken under S.5 of Illegal Dispossession Act, 2005 by Trial Court was without lawful authority---Validity---When complaint was drafted and filed in Trial Court, the act complained of had not yet taken place---If at all the offence had taken place, that must be earlier to the date of commencement of Illegal Dispossession Act, 2005, because civil suit on the subject was already pending ,before civil court concerned---Respondents could, seek remedy from civil court by amending their plaint---Respondents could also apply for appointment of local commission for demarcation/measurement of suit-land to ascertain actual position as to whether the land which respondents claimed to be in their ownership with possession had been encroached upon by petitioner or not---On such preliminary issue, keeping in view the provision of O.XIV, R.2, C.P.C. the entire case-could be disposed of by civil-court, if so approached---Cognizance taken and jurisdiction exercised by Trial Court under Illegal Dispossession Act, 2005, was ab initio void because it was hit by prohibitory command contained in Art.12 of the Constitution---Jurisdiction exercised by Trial Court was coram non judice and was liable to be set at naught---High Court observed that if respondents wanted they might get speedy remedy from civil court---Proceedings were quashed by High Court .and complaint filed by respondents was dismissed---Petition was allowed in circumstances.

Rahim Tahir v. Ahmad Jan PLD 2007 SC 423 and Abdul Rehman v. The State 1978 SCMR 292 ref.

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

----Ss.3, 5 & Preamble---Specific Relief Act (I of 1877), Ss.8 & 9---Expressions "to grab, to control or to occupy"---Scope---Illegal dispossession---Pendency of civil litigation---Remedy---Court, duty of---Guidelines---Remedy provided to aggrieved person for redressal of his grievance under S.9 of Specific Relief Act, 1877, is more appropriate and equally efficacious---At the whims of certain individuals, effective provision of law which is century old one cannot be circumvented in a' manner unwarranted by law and it is the foremost obligation of Trial Court to apply its judicial mind to facts of each individual case and to judicially determine as to whether allegation made in complaint constitutes an offence under Illegal Dispossession Act, 2005, or the matter must be tried by civil courts under Ss.8 and 9 of Specific Relief Act, 1877---Not only the preamble of Illegal Dispossession Act, 2005, but also S.3 thereof has provided expressions " to grab, to control or to occupy" which is a clear manifestation of the intent of law-makers in curbing illegal activities of land grabbing mafia, which has assumed a monstrous character in the last more than two decades---New law should not be pressed into service by Courts in ordinary cases of dispossession or recovery of possession which squarely falls within the ambit of civil disputes and can be effectively regulated and grievance can be redressed under S.9 or 8 of Specific Relief Act, 1877.

Mian Kausar Ali Shah for Petitioners.

Amjid Zia for Respondents.

Muhammad Adil for the State.

Date of hearing: 20th July, 2007.

P L D 2007 Quetta 1

Before Amanullah Khan Yasinzai, C.J. and Akhtar Zaman Malghani, J

NATIONAL BANK OF PAKISTAN through Attorney/Officer/Original Operation Chief---Appellant

Versus

JALIB SAEED---Respondent

R.F.A. No.40 of 2003, decided on 28th August, 2006.

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

----Arts. 90, 88, 89, 120 & 135---Civil Procedure Code (V of 1908), O.VII, R.11 & O.VI, R.2---Suit for recovery of amount misappropriated by Bank employee---Date of knowledge of fraud---Suit barred by limitation---Effect---Dismissal of plaint without recording evidence---Scope---Plaintiff-Bank/appellant filed suit for recovery of amount against defendant/ accused on ground that the latter had misappropriated said amount during his service with the-Bank---Plaintiff had previously filed suit on same subject before Banking Court which was returned on 21-11-1998---Fraud came to the knowledge of the Bank on 8-10-1997 whereupon F.I.R. was registered against defendant---Suit was filed against defendant on 4-4-2003 who in response thereof submitted application under O.VII, R.11, C.P.C. for rejection of plaint---Trial Court dismissed suit on point of limitation under Art.90 of Limitation Act, 1908---Plaintiff (Bank) contended that suit was not barred by time as Arts.120 & 135 of Limitation Act, 1908, were attracted to facts and circumstances of suit; that Art.90 of Limitation Act, 1908 as relied upon by Trial Court was not attracted to suit; that point of limitation being mixed question of law and fact was not to be decided without recording evidence---Validity---Time for institution of suit was to be reckoned from the date of knowledge of fraud which was 8-d0-1997---Art.135, Limitation Act, 1908 was applicable to suits filed by mortgagors for possession of immovable property mortgaged, in a Court other than High Court; but present suit had been filed for recovery of money allegedly misappropriated by defendant---Art.120 was applicable to suits which were not covered by specific Article of Limitation Act, 1908---Article 90 of the Limitation Act, 1908 was applicable to suit filed by principal against agent for neglect or misconduct and the same was not governed by Arts.88 & 89 of the Act---Article 90 of the Act was applicable to the present suit as defendant was agent of the Bank---Article 90 bf Limitation Act, 1908 had provided limitation of three years which was to be reckoned from date when neglect or misconduct became known to plaintiff---Suit was to be filed by Bank on or before 7-10-2000---Previous suit filed by Bank on same subject-matter had been returned on 21-11-1998 by Banking Court and if period of limitation was to be computed from that date; the suit having been filed after 20-11-2001 was not within time provided by Art.90 of Limitation Act, 1908---As for contention with regard to non-providing opportunity to plaintiff for leading evidence, before dismissal of plaint, O.VII, R.11 of C.P.C. provided ample powers to Trial Court to reject plaint where suit appeared from statement in plaint and documents appended therewith, to be barred by any law---Trial Court had rightly dismissed suit as being barred by time---Appeal was dismissed.

1987 MLD 594; Benaras Bank v. Ram Prashad 124 IC 180; 1991 MLD 1312; Shah Noor Studios v. W.Z. Studios 1980 CLC 433; Abdul Jabbar v. Muhammad Latif 1986 CLC 603; PLD 1985 SC 153 and Sitharama v. Krishnaswami (ILR 38 Mad. 374) rel.

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

----Ss. 3, 4 to 25---Civil Procedure Code (V of 1908), O.VII, R.11---Suit barred by limitation---Waiver of limitation by party to suit--Effect and scope---Words of S.3 of Limitation Act, 1908 are mandatory in nature, for every suit filed after period of limitation was to be dismissed subject to provision of Ss.4 to 25 of Limitation Act, 1908 although limitation had not been set up as defence---Suit if appeared to be barred by limitation, the plaint also was to be rejected under O.VII, R.11, C.P.C.---Law did not leave the matter of limitation to pleadings of parties, rather it imposed duty in this regard upon Court itself---Limitation being a matter of statute and provisions being mandatory, it could not be waived and even if waived, it could be taken up by party waiving it and by Courts themselves.

PLD 1985 SC 153 and Sitharama v. Krishnaswami (ILR 38 Mad. 374) rel.

Khalid Dogar for Appellant.

H. Shakeel Ahmad for Respondent.

Date of hearing: 7th August, 2006.

P L D 2007 Quetta 7

Before Ahmad Khan Lashari and Akhtar Zaman Malghani, JJ

BABA CHARIA and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.64 of 2004, decided on 5th January, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 302(c)---Appreciation of evidence---According to confessional statements of accused, deceased during dark hours of the night entered into the tent where young daughter of accused was sleeping and deceased attempted to outrage her modesty, whereupon; she raised hue and cry which attracted accused; who under sudden provocation committed his murder---Fact that no weapon of offence was used in the commission of offence and he was murdered by strangulation also supported such conclusion---Accused under circumstances at the best, had committed offence under S.302(c), P.P.C. and sentences awarded to accused, was liable to be reduced---Conviction of accused was altered from S.302(b), P.P.C. to that of S.302(c), P.P.C. and they were sentenced to seven years' R.I.---Benefit of S.382-B, Cr.P.C. was also extended to accused.

PLD 1988 SC 25 and PLD 1996 SC 274 rel.

Kamran Murtaza for Appellants.

Aminullah Bazai, Addl. A.-G. for the State.

Date of hearing: 29th December, 2005.

P L D 2007 Quetta 12

Before Amanullah Khan, C.J. and Akhtar Zaman Malghani, J

THE STATE and others---Appellants

Versus

ASMATULLAH and others---Respondents

Murder Reference No.6 of 2006 and Criminal Appeal No.129 of 2006, decided on 13th November, 2006.

Penal Code (XLV of 1869)---

----Ss. 302(b) & 364-A/34---Anti-Terrorism Act (XXV of 1997), Ss.7(A), 21-I---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Appreciation of evidence---Father and mother of deceased girl had submitted compromise supported by their affidavit that they had compromised with accused---Prosecution mainly had relied upon confessional statement of accused recorded by Judicial Magistrate---Alleged confessional statement which had been made before the police, had no evidentiary value because any confession made by accused before the police, was not admissible in evidence---No new fact or circumstance having been discovered on the disclosure and pointation of accused, confession made by accused before the police or pointation of places which were already in the knowledge of police, could not be used as evidence against him---Even otherwise accused who allegedly made confessional statement being in custody of police, possibility could not be ruled out that confessional statement was tutored one and result of torture as claimed by accused---Judicial Magistrate also did not satisfy 'himself as to whether confessional statement was voluntary or a result of torture---Prosecution witness who identified bag in question of accused was brother of complainant and according to him on one occasion said bag was handed over to him by accused for repair--Said story was neither plausible nor natural and appeared to have been concocted in order to connect accused with commission of offence---Even at the best same could be used as corroboratory piece of evidence and no conviction could independently be based on such evidence---Motive relied upon by prosecution, would not alone be sufficient to sustain conviction being double edged---Judgment rendered by Special Judge Anti-Terrorism Court, was set aside and accused was acquitted of the charge---Murder reference was answered in negative.

PLD 1976 SC 404 rel.

Bashir Ahmed Qazi Special Prosecutor A.T.A. for Appellants (in M.R.No.6 of 2006).

Basharatullah for Respondents (in M.R. No.6 of 2006).

Bashir Ahmed Qazi Special Prosecutor A.T.A. for Appellants (in Criminal Appeal No.129 of 2006).

Basharatullah with Adnan Basharat for Respondents (in Criminal Appeal No.129 of 2006).

Date of hearing: 9th October, 2006.

P L D 2007 Quetta 19

Before Raja Fayyaz Ahmad, C. J. and Akhtar Zaman Malghani, J

DIL MURAD and others---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Home Department and others---Respondents

Constitutional Petitions Nos.587 and 614 of 2001 and Suo Motu Reference No. 1 of 2003, decided on 20th November, 2003.

Criminal Law (Special Provisions) Ordinance (II of 1968)---

----Preamble & S.12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Repeal of Criminal Law (Special Provisions) Ordinance, 1968---Effect---Under provisions of Criminal Law (Special Provisions) Ordinance, 1968, the Tribunal was to be presided over by Assistant Commissioner or Extra Assistant Commissioner or Tehsildar as Chairman and Deputy Commissioner. was the Authority to give final verdict---After repeal of Criminal Law (Special Provisions) Ordinance, 1968 posts of Deputy Commissioner and Assistant Commissioner etc. were abolished and after that no forum was available to try cases---Repealed Criminal Law (Special Provisions) Ordinance, 1968, in its nature was a procedural law excepting a few provisions, such as S.12 under which maximum punishment which could have been awarded by the Deputy Commissioner, was 14 years---No person had vested rights in a procedural law and he could not claim as of right to be dealt with in accordance with the procedure of a repealed law---So far the procedure of trial envisaged in the repealed Ordinance, was concerned, same could not be pressed into service as of right and. persons who were being tried under said Ordinance, could be competently tried by the Courts set up under Criminal Procedure Code---However, so far the imposition of sentence and punishment was concerned, under General Clauses Act, 1897 the repeal would not affect any right, privilege, obligation or liability acquired, accrued or incurred under the statute so repealed---Notwithstanding the repeal of Criminal Law (Special Provisions) Ordinance, 1968 and abolishment of office of Deputy Commissioner and Assistant Commissioner/Extra Assistant Commissioner, accused who were being tried under said Ordinance, would be liable to sentences on being found guilty, which were provided under said repealed Ordinance---Under new situation, cases which were pending before the Tribunal or Deputy Commissioner, would be triable under the normal law by the Courts functioning under the Criminal Procedure Code.

PLD 1991 Quetta 7 ref.

Nemo for Appellants (in C.P.No.587 of 2001).

Salahuddin Mengal, A.-G. for Respondents (in C.P.No.587 of 2001).

Khushnood Ahmad and Gulla Khan for Petitioners (in C.P.No.614 of 2001).

Respondent No.4 (present) (in C.P.No.614 of 2001).

Syed Ayaz Zahoor for Respondents Nos. 4 to 10 (in C.P. No.614 of 2001).

Research Institution D.I.Khan

Salahuddin Mengal A.-G. (in C.P.No.614 of 2001)

Amanullah Tareen for accused Agha Muhammad (present) (in Suo Motu Reference No. 1 of 2003).

Sher Zaman Surety is present (in Suo Motu Reference No. 1 of 2003).

Miss Saima Jibrail for Changez Kurd and Haji Ghulaw Mustafa Mengal Addl. A.-G. (in Suo Motu Reference No. 1 of 2003).

Date of hearing: 22nd October, 2003.

P L D 2007 Quetta 25

Before Amanullah Khan, C.J. and Akhtar Zaman Malghani, J

AGHA SHAHID HASSAN BUGTI---Petitioner

Versus

FEDERATION OF PAKISTAN through Ministry of Interior, Government of Pakistan, Islamabad and 4 others---Respondents

Constitutional Petition No.563 of 2006, decided on 13th November, 2006.

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

----S. 11-B, E, H, O & Q---Constitution of Pakistan (1973), Art.199---Constitutional petition---Freezing of Bank accounts---Petitioner had challenged validity of office memorandum issued by Ministry of Interior, whereby his Bank Accounts were freezed---Allegations against petitioner was that he allegedly was member of a proscribed organization---Validity---Federal Government or competent Authority had been authorized under S.11-E of Anti-Terrorism Act, 1997 to freeze accounts of proscribed organizations and not of individuals who were suspected to be affiliated or associated with such proscribed organization---For individuals separate procedure had been laid down in Ss.11-0 & 11-Q of Anti-Terrorism Act, 1997, wherein only Anti-Terrorism Court had been authorized to forfeit the money or other property of individuals upon their conviction under S.11-H of Anti-Terrorism Act, 1997---Bank accounts of the petitioner, in the present case were not forfeited by Anti-Terrorism Court nor he was tried or convicted by the Court, but under impugned notification issued by Ministry of Finance on the request of Interior Ministry of exercising the powers purportedly under S.11-E of Anti-Terrorism Act, 1997 which did not confer powers on Federal Government or any other Authority to freeze account of an individual---Allowing petition, it was declared by the High Court that directions to freeze Accounts of petitioner were without lawful authority and of no legal effect---Banks were directed to honour the cheques of petitioner and make payment.

PLD 1952 FC 19 and PLJ 1995 SC 396 ref.

Amanullah Kanrani for Petitioner.

H. Shakil Ahmed for Respondent No.3.

Ch. Mumtaz Yousaf Standing Counsel Syed Pervaiz Akhtar for Respondent No.4.

P L D 2007 Quetta 30

Before Amanullah Khan, C.J., and Akhtar Zaman Malghani, J

Sheikh ABDUL SATTAR LASI---Petitioner

Versus

SUPERINTENDENT, DISTRICT JAIL, QUETTA and another---Respondents

Constitutional Petition No.490 of 2006, decided on 4th October, 2006.

Criminal Procedure Code (V of 1898)---

----S. 401---Prisons Act (III of 1900), Ss.3 & 4---National Accountability Ordinance (XVIII of 1999), S.10---Constitution of Pakistan (1973), Art.199---Constitutional petition--Remission of sentence---Entitlement to---Petitioner was sentenced to twelve years' R.I. under S.10 of National Accountability Ordinance, 1999, but Supreme Court reduced' substantive sentence from twelve years to ten years---At the time of conviction of petitioner 1661 days remissions were incorporated in the history ticket which were granted by the Government, and Jail Authorities prior to date of his conviction---After pronouncement of judgment by Supreme Court in case Haji Abdul Ali v. Haji Bismillah and 3 others PLD 2005 SC 163 and Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907 said remissions were deleted from history ticket of the petitioner---Petitioner had claimed that the judgment of the Supreme Court could not be implemented with retrospective effect as remission granted to petitioner and entered in his history ticket had become past and closed transaction and that once remissions were included in history ticket and acted upon same had become vested right and authority could not retrace steps on principle of locus poenitentiae---Validity---Remission, which were entered in history ticket of petitioner were granted to all prisoners and not specifically to the petitioner, who were undergoing sentences at the time of grant of remission; whereas at that time petitioner was under trial prisoner---Same were neither communicated to petitioner nor were recorded in his history ticket, but on his conviction (on 26th July, 2001), whereas his history ticket was prepared and remission was granted prior to said date and were recorded in favour of petitioner by the Superintendent Jail on his own without being directed so by the concerned authority to do so---Petitioner was not legally entitled to remissions, which were granted prior to date of recording his conviction and were illegally entered in his history ticket, which could be omitted/deleted at any time before his release.

Muhammad Aslam Chishti and Talat Waheed for Petitioner.

Salahuddin Mengal, A.-G. and Murtaza Kasi Superintendent Jail and Mustafa Assistant Jail for Respondents.

Date of hearing: 23rd August, 2006.

P L D 2007 Quetta 38

Before Ahmed Khan Lashari and Muhammad Nadir Khan, JJ

ABDUL HADI---Petitioner

Versus

FAREEDA KHANUM---Respondent

Constitutional Petition No.50 of 2005, decided on 20th December, 2006.

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

----S. 5 & Sched.---Limitation Act (IX of 1908), Art.120---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dowry articles---Limitation---Jurisdiction of Family Court---Respondent within three years of death of her husband filed suit in Family Court for recovery of dowry articles---Petitioner, father of deceased husband of respondent filed application seeking dismissal/rejection of suit filed by respondent being barred by time and for want of jurisdiction---Said application was dismissed and suit filed by respondent having been decreed by the Family Court, petitioner had filed constitutional petition against judgment of Family Court---Validity---Where no period of limitation was prescribed in filing suit for recovery of dowry articles; provisions of Art.120, Limitation Act, 1908, providing six years period for filing suit in that respect, would be applicable, but when claim was for a specific moveable property or for compensation for wrongful taking, period of limitation was three years from the day, when demand for return of articles was refused; and possession over said articles became unlawful---Suit filed by respondent within three years, was not barred by time---Before amendment in West Pakistan Family Court Act, 1964 suits for recovery of dowry articles, no doubt were to be instituted in civil court, but after amendment in the Act vide Family Courts (Amendment) Act (VII of 1997), such cases either pending or instituted were made exclusively triable by Family Court---Suit, in circumstances, was rightly filed by respondent before Family Court, which was competent forum for recovery of dowry articles---Suit filed by respondent in circumstances fell within exclusive jurisdiction of Family Court---Family Court on proper interpretation of law, had rightly decided to proceed with the case and rejected application of petitioner---Petitioner having failed to make out a case for interference of High Court in exercise of its constitutional jurisdiction, constitutional petition was dismissed.

1996 MLD 1997; 2003 YLR 365 and PLD 1978 Lah. 711 ref.

Petitioner in person.

Anwar-ul-Haq for Respondent.

Date of hearing: 19th October, 2006.

P L D 2007 Quetta 41

Before Amanullah Khan Yasinzai, C.J. and Akhtar Zaman Malghani, J

MIR KHALID LANGOV---Petitioner

Versus

SECRETARY, MINISTRY OF INTERIOR, GOVERNMENT OF PAKISTAN, ISLAMABAD---Respondent

Constitutional Petition No.479 of 2006, decided on 27th November, 2006.

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

---Ss. 2 & 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Placing name on Exit Control List---Petitioner had challenged in constitutional petition validity of notification whereby his name was placed on Exit Control List---No reasons, whatsoever had been mentioned in the said notification---Validity---Under subsection (3) of S.2 of Exit from Pakistan (Control) Ordinance, 1981, it was not necessary for Federal Government to specify grounds, if it would not be in the public interest, but as liberty of a citizen guaranteed by the Constitution was being curtailed, Federal Government was under legal obligation to have at least shown the basis of its intention of exercising power under subsection (3) of S.2 of Exit from Pakistan (Control) Ordinance, 1981---Federal Government on demand of court was legally bound to place on record the material which prompted it to place name on Exit Control List in order to satisfy conscience of the court and to show that such exercise was not colourful one---Contention of Standing Counsel of Federal Government regarding non-maintainability of constitutional petition without availing remedy of review available under S.3 of Exit from Pakistan (Control) Ordinance, 1981, was repelled, in view of the fact that reasons for placing name of petitioner on Exit Control List had neither been communicated to petitioner nor were disclosed in the impugned notification; which was necessary to enable the petitioner to avail remedy of review and in absence thereof, it was neither appropriate nor possible for petitioner to have availed such remedy of review---Constitutional petition, was maintainable, in circumstances---Impugned Notification whereby name of petitioner had been placed on Exit Control List, was declared to be bad in law, invalid and without lawful authority and same was struck down by the High Court.

PLD 2003 Kar. 705; PLD 1997 Lah. 61; 2003 CLC 246 and PLD 1999 Lah. 459 ref.

Muhammad Wasey Tareen for Petitioner.

Mumtaz Yousaf, Standing Counsel for Respondent.

Date of hearing: 10th October, 2006.

P L D 2006 Quetta 44

Before Ahmed Khan Lashari, J

PANDOK and 20 others---Petitioners

Versus

KHODA IQBAL and 34 others---Respondents

Civil Revision No.176 of 2002, decided on 1st December, 2006.

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

----Art. 100---Thirty years old documents---Presumption of truth---Presumption of truth of thirty years old document, was not imperative, but it was satisfaction of the court to assume the contents thereof and signatures appearing thereon were of a particular person or persons---Article 100 of Qanun-e-Shahadat, 1984 provided that 30 years old document if produced from the proper custody and was free from any suspicion; court could presume signature on it and any part thereof' which purported to be in handwriting of the particular person---Such principle would equally apply to certified copies of documents of 30 years old.

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

----Art. 76---Secondary evidence---Production of---Mere production of copy of original document would not be enough to entitle party to suit to produce secondary evidence, unless condition laid down in Art.76 of Qanun-e-Shahadat, 1984 for production of secondary evidence stood satisfied suggesting that original document was either lost or was not traceable.

PLD 1983 Quetta 52 ref.

(c) Balochistan Tenancy Act (XXIV of 1978)---

----Ss. 63 & 64---Specific Relief Act (I of 1877), Ss.42 & 54---Civil Procedure Code (V of 1908), S. 115---Suit for declaration and perl31anent injunction---Trial Court, though after having gone through the pleadings of the parties, framed issues but no issue was framed regarding maintainability of the suit inview of S.63 of Balochistan Tenancy Act, 1978---Courts below also fell in error before proceeding with the case to consider the relevant law dealing with the dispute---Contents of the plaint clearly indicated that respondents filed suit on the ground that tenants were not paying them Haq-e-Malkana and sought their eviction from the land on that ground, which exclusively fell within the jurisdiction of Revenue Court constituted under Balochistan Tenancy Act, 1978---Courts below, without considering legal proposition of law, having illegally proceeded with the case, judgments/decrees impugned therein, were without jurisdiction High Court while exercising its revisional jurisdiction, interfered in concurrent findings of Courts below, based on erroneous assumption of facts, patent error of law and arbitrary exercise of powers and set aside Impugned judgments/decrees; with direction to Qazi to return plaint to respondents for presentation of the same before the Revenue Court having jurisdiction over the matter.

PLD 1968 SC 140; PLD 1969 SC 136; PLD 1983 Quetta 52; 1990 SCMR 694; 1990 SCMR 441; 1999 CLC 200; 1994 SCMR 291 and 1988 CLC 2388 ref.

Muhammad Aslam Chishti for Petitioners.

Basharatullah for respondents.

Date of hearing: 10th November, 2006.

P L D 2007 Quetta 50

Before Amanullah Khan Yasinzai, C.J. and Akhtar Zaman Malghani, J

Haji ARIF and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.333 and Murder reference No.19 of 2005, decided on 23rd November, 2006.

Penal, Code (XLV of 1860)---

----Ss. 302(b), 324 & 34---Anti-Terrorism Act (XXVII of 1997), S.6(2)(a)(b)---Appreciation of evidence---Benefit of doubt---Both prosecution witnesses had stated that accused attacked with dandas and thereafter absconding accused started firing---Statement of both said prosecution witnesses to the extent of dandas, was not supported by medical evidence---None of the deceased and injured had received any injury with. blunt or sharp weapon---Both witnesses had not given details of injuries caused with blunt or sharp weapon and had not attributed any specific role or injury to any accused---Vague and general allegations had been alleged against accused and both witnesses had contradicted each other---Statements of both prosecution witnesses, were negated by medical evidence to the extent of accused---F.I.R. was lodged after a delay of 4/5 hours and possibility could not be ruled out that F.I.R. was lodged after due deliberation, which had created doubt on the prosecution case---Deep rooted enmity existed between the parties and complainant had motive to falsely implicate accused in the case by spreading the net wider by involving all the male members of accused side---Place where incident took place, was a thoroughfare and soon after the incident many people gathered over there, but despite that no independent witness was examined in the case and no reason had been .given for not producing independent witness---Both prosecution witnesses being inimical towards accused due to old enmity, their evidence could not be relied upon qua accused without any strong corroborative evidence---Presence of accused at the place of incident was highly doubtful---Case as set up by prosecution was highly improbable and did not appeal to prudent mind---Eye-witnesses account was unreasonable and improbable qua the case of accused and it could be safely held that due to previous enmity false implication of accused, could not be ruled out---Prosecution, in circumstances having failed to prove case against accused they were acquitted of the charge by giving them benefit of doubt and were released---Prosecution, however, having proved its case against absconding co-accused beyond any shadow of doubt, judgment passed against them by Special Court, was uphold and murder reference to their extent, was answered in affirmative.

Muhammad Mumtaz v. The State 2003 PCr.LJ 1548; Muhammad Arshad and 2 others v. The State PLD 1996 SC 122; Mushtaq Ali and 2 others v. The State 1999 MLD 506; Khushi Muhammad and others v. The Crown 1969 SCMR 599 and Bahar v. Crown PLD1954 FC 77 ref.

Jamal Khan Mandokhel and Muhammad Hashim Kakar for Appellants.

Bashir Ahmed Qazi, Addl. Public Prosecutor ATA and Nasrullah Khan Tareen for Absconding Convict.

Date of hearing: 27th September, 2006.

P L D 2007 Quetta 59

Before Amanullah Khan Yasinzai, C.J. and Akhtar Zaman Malghani, J

Mst. BIBI ZAHRA and 5 others---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary, Civil Secretariat, Quetta

and 2 others---Respondents

Constitutional Petition No.262 of 2006, decided on 18th July, 2006.

Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 10(2)---Land Lease Policy, 2000---Constitution of Pakistan (1973), Art.199---Constitutional petition---Allotment of State land---Transferring of ownership rights of land to the petitioners could not be made under the Land Lease Policy, 2000 and Chief Minister of the Province had no power to grant ownership by bypassing the Policy under which the ban on allotment of State land was lifted---Constitutional jurisdiction was meant to foster justice and could not be used to perpetuate wrong---Constitutional petition was dismissed, in circumstances.

Fakharuddin G. Ibrahim and Syed Ayaz Zahoor for Petitioners.

Aminuddin Bazai, A.A.-G., Muhammad Iqbal D.C. Forest Department (Adam.) Quetta on behalf of EDO Forest Gwadar and Khawaja Muhammad Naeem Senior MBR for Respondents.

Date of hearing: 27th June, 2006.

P L D 2007 Quetta 68

Before Akktar Zaman Malghani, J

Malik MUHAMMAD ANWAR---Petitioner

Versus

Mst. SALEEMA and another---Respondents

Criminal Revision No.73 of 2005, decided on 22nd September, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 307-O & 308---Diyat amount---Entitlement of grandfather of deceased to share of Diyat amount---Father had committed murder of his Minor daughter aged about four years and was found guilty under S.302(b), P.P.C.---Conviction of accused was altered to S.308, P.P.C. and he was sentenced to twelve years' R.I. and was also directed to pay Diyat amount to heirs of deceased, excluding accused who had murdered deceased---Diyat amount having been deposited by brother of accused, father of accused filed application before the Trial Court for payment of Diyat amount to extent of 2/3rd share to him as according to him he was entitled to the same---At the time of direction to accused/father of deceased to pay Diyat amount to legal heirs of deceased, accused was specifically excluded to receive share from Diyat amount, which would mean that Diyat amount was to be paid to other existing legal heirs and as mother of deceased remained the only legal heir in absence of accused father of deceased, she was entitled to receive whole amount of Diyat---Father of accused, otherwise was not entitled to legacy of deceased in ordinary course as father of deceased being alive, would have excluded grandfather of deceased from inheritance---Murderer or any person claiming through him would not be entitled or succeed to the estate of victim in view of principles of justice, equity and good conscience---Section 307-O, P.P.C., was applicable only in the cases of hurt and not for Qatl-e-Amd---Grandfather of deceased having claimed inheritance through his murderer son, would not be entitled to the Diyat amount, because he could succeed to 2/3rd share in Diyat in absence of his son, whereas his murderer son was alive as he was not awarded death sentence, but was awarded twelve years' R.I. imprisonment of Tazir---Application of grandfather of deceased for grant of 2/3rd share of Diyat amount, was rightly dismissed by the Trial Court, in circumstances.

AIR 1924 PC 209; AIR 1940 Lah. 172 and PLD 1964 (W.P.) Lah. 451 ref.

Waseem Khan Jadoon for Petitioner.

Miss Iram Mehmood for Respondent No.1.

Amanullah Tareen Addl. A.-G. for the State.

Date of hearing: 17th August, 2006.

P L D 2007 Quetta 72

Before Muhammad Nadir Khan and Mehta Kailash Nath Kohli, JJ

SAMANDER KHAN and another---Petitioners

Versus

Haji ABDUL REHMAN and 23 others---Respondents

Constitutional Petitions Nos.(S)40 and (S) 41 of 2005, decided on 10th March, 2006.

Illegal Dispossession Act (XI of 2005)---

----Ss. 2, 3, 4, 5 & 9---Criminal Procedure Code (V of 1898), S.200---Constitution of Pakistan (1973), Art.199---Constitutional petition---Direct complaint under S.3, Illegal Dispossession Act, 2005---Jurisdiction of Sessions Judge to entertain such complaint---Scope---Cognizance of offence---Procedure---Questions, as to whether dispossession in the case had taken place, and whether the title in the property in dispute vested in petitioners, were the questions of facts, which could have been dealt with only after taking evidence and allowing the parties opportunity to lead evidence with liberty of being heard, which had not been done in the case by the District and Sessions Judge---Proceedings (civil/criminal) could also run parallel, provided question of title had been determined---Impugned order of the District and Sessions Judge was set aside by the High Court with direction to decide the matter in accordance with relevant provisions of law.

Habib Bank Limited v. The State and 6 others 1993 SCMR 1853 ref.

Narain Dass D. Kapoor for Petitioners.

H. Shakeel Ahmed for Respondents Nos. 1 to 5.

Abdul Raheem Mengal, Asstt. A.-G. for Respondents Nos. 23 and 24.

Abdul Jalil Lehri for Respondents Nos. 1 to 4 (in Constitutional Petition No. S(41) of 2005).

Abdul Raheem Mengal, Asstt.A.-G. for Respondents Nos. 9 and 10 (in Petition Constitutional No.(S)41 of 2005).

P L D 2007 Quetta 80

Before Muhammad Nadir Khan, J

THE STATE and another---Appellants

Versus

ABDUL GHAYAS and another---Respondents

Criminal Jail Appeal No.89 of 2003 and Murder Reference No.19 of 2003, decided on 12th March, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Both accused and deceased were real brothers while one prosecution witness was their mother---Statements of prosecution witnesses with regard to accused leaving the scene of occurrence, armed with Kalashnikov, could not be made doubtful---Accused, in his confessional statement, had pleaded that on account of dispute of property between him and his deceased brother, deceased threatened him that he would not spare him alive, whereupon he picked the Kalashnikov and intended to make aerial firing to attract people of the village who would make settlement between them; that meanwhile accidentally said Kalashnikov went off and the bullet hit the deceased---Confessional statement of accused did not explain the circumstances in which Kalashnikov went off accidentally and bullet fired by the same hit the deceased---Accused who, as per his plea, had no intention to murder his brother, was expected to make efforts to save his life but he left his brother at the scene of occurrence and went to his house---Such conduct of accused was found to be not consistent with his plea---Conduct of accused soon after the incident adversely reflected on his intention which negated his plea about accidental firing of Kalashnikov---Deceased was neither stated to be armed nor the circumstances reflected that there was any immediate threat to the life of accused to justify his act of firing with Kalashnikov---Mother of accused had also not supported plea of accused and had further involved accused in the intentional murder of her other son/deceased and her such plea could not be taken lightly---No room was available to doubt that accused had intentionally committed murder of his brother, however, there was no evidence to attract provisions of S.302(a), P.P.C.---Accused, in circumstance, was found to have committed offence under S.302(b), P.P.C.---Record did not reflect any mitigating circumstances entitling accused for lesser punishment---Death sentence awarded to accused was upheld and Murder Reference was answered in affirmative.

PLD 1983 SC(AJ&K) 199; 1994 PCr.LJ 490; PLD 1999 Kar. 151; 2004 SCMR 1808; 1989 SCMR 611 and PLD 1958 Pesh. 147 rel.

Naeem Akhtar for Appellants.

Amanullah Tareen, A.A.-G. for the State.

Date of hearing: 7th March, 2007.

P L D 2007 Quetta 87

Before Muhammad Nadir Khan, J

ABDUL MAJEED---Petitioner

Versus

DISTRICT AND SESSIONS JUDGE, LASBELA AT HUB and another---Respondents

Constitutional Petition No.412 of 2003, decided on 11th September, 2006.

West Pakistan Government Lands and Buildings (Recovery of Possession) Ordinance (IX of 1966)---

----Ss. 5 & 6---Constitution of Pakistan (1973), Art.199---Constitutional petition---Getting' official accommodation vacated from possession of retired civil servant---Petitioner, during his posting as Sub-Registrar was provided official accommodation, on retirement of petitioner notice was issued to him to vacate the said house, but he did not vacate the same---Claim of petitioner was that before his retirement he made application for allotment of house in question and that Chief Minister as well as Tehsil Nazim had recommended his request for allotment of house in question to him on ownership basis---District and Sessions Judge, on application of respondent ordered vacation of house from petitioner--- Validity---No dispute existed between the parties about petitioner having been retired from service and house in question was property of Government and petitioner after his retirement had no locus standi to retain possession of said house---Mere submission of application for allotment of said house on ownership basis could not create any right/title in favour of petitioner or to retain its possession---Petitioner could not be said to be having any legal right to challenge proceedings initiated against him for his dispossession from the house---Under West Pakistan Government Lands and Buildings (Recovery of Possession) Ordinance, 1966 no order from any court was required for dispossession of an unauthorized occupant---District and Sessions Judge had no jurisdiction to make any order on, an application for dispossession of illegal occupation; it was for the Department to take action for dispossession of petitioner, which it failed to take which reflected maladministration of concerned Authority---Order passed by District and Sessions Judge was set aside---Competent Authority was to take action for dispossession of petitioner as per provisions of West Pakistan Government Lands and Buildings (Recovery of Possession) Ordinance, 1966---Constitutional petition was accepted to the extent of setting aside order of District and Sessions Judge, whereas prayer of petitioner restraining his dispossession was rejected.

Hadi Shakil Ahmed for Petitioner.

Addl. A.-G. for Respondents.

Date of hearing: 4th September, 2006.

P L D 2007 Quetta 91

Before Ahmed Khan Lashari and Akhtar Zaman Malghani, JJ

Mst. SHAH BAKHT and 4 others---Petitioners

Versus

RODIN and 4 others---Respondents

Constitutional Petition No.239 of 2006, decided on 3rd May, 2007.

Civil Procedure Code (V of 1908)---

----O. XXXII, R.1---Guardians and Wards Act (VIII of 1890), S.7, Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment of next friend of minor children---Husband of petitioner having died leaving behind a house and other immovable property in possession of respondents who were father and brothers of deceased---Petitioner filed suit against respondents for declaration, partition and recovery of articles---Petitioner being mother of minor children sought permission of the court to appoint her as next friend of her minor children---Petitioner's application in that respect was dismissal and instead Steno of the court was appointed as guardian of the minor children---Revision by petitioner against said order was also dismissed--­Validity---Trial Court declined appointment of petitioner as next friend of minors on the ground that earlier an application of petitioner under S.7 of Guardians and Wards Act, 1890, District Judge had declined relief to petitioner and Civil Judge was appointed as guardian of the property of minors---Non-appointing of a guardian ad litem to defend minor was technical in nature and court was to see whether interest of minor was properly safeguarded---Petitioner being mother of minors on instituting the suit, would automatically become the next friend of minors and permission of the court was not necessary in the case, unless it was shown that she was disqualified to act on account of her interest being in conflict with the interest of minors---No reason existed for appointment of Steno as next friend of the minors bypassing the natural guardian---Conclusion drawn by the courts below for not appointing petitioner/mother of minors as next friend of the minors on the ground that Civil Judge was appointed as guardian of property of the minors, was erroneous---Impugned orders were set aside by the High Court---Petitioner could act as next friend of her minor sons and daughters in the suit filed by her.

Badiazzaman and others v. Habibullah PLD 1968 Dacca 919 ref.

Muhammad Qahir Shah for Petitioners.

Respondent No.2 present for himself as well as Attorney for Respondents Nos. 1 and 3.

Date of hearing: 19th April, 2007.

PLD 2007 Quetta 94

Before Mehta Kailash Nath Kohli and Muhammad Nadir Khan, JJ

WAZIR KHAN---Petitioner

Versus

SPECIAL JUDGE ANTI-TERRORISM COURT, SIBI and others---Respondents

Constitutional Petition No.(s) 23 of 2007, decided on 5th June, 2007.

Criminal Procedure Code (V of 1898)---

----S. 494---Explosive Substances Act (VI of 1908), Ss.3, 4 & 5---Anti-Terrorism Act (XXVII of 1997), S.7---Constitution of Pakistan (1973), Art.199---Constitutional petition---Object of S.494, Cr.P.C.---Withdrawal of case---District Attorney/Special Prosecutor, Anti-Terrorism Court filed application under S.494, Cr.P.C. for withdrawal of case registered against petitioner/accused and other co-accused, but Anti-Terrorism Court refused to allow the withdrawal of case---Validity---No ground had been mentioned nor any reason had been shown for. withdrawal of the case---Simply allowing petitioner to withdraw from the case, would amount to throttling the process of law and thus was not legally permissible---Case related to Explosive Substances Act, 1908 entire evidence had been recorded by the Trial Court---Government had not given any cogent or plausible reason for withdrawal of the case---Court was bound to see as to whether the withdrawal of the case was based on cogent grounds---Discretion vesting with the Trial Court should be exercised in such a manner that justice should not be hampered and real culprits should not take undue advantage of S.494, Cr.P.C. and go to scot-free.

PLD 1981 SC 617; PLD 1980 Lah. 201; Mir Hassan v. Tariq Saeed and 2 others PLD 1977 SC 451; PLD 2006 Kar. 678 and Ali Muhammad through Legal Heirs and others v. Chief Settlement Commissioner and others 2001 SCMR 1822 ref.

Muhammad Aslam Chishti for Petitioner.

Respondent No.1: Special Judge Anti-Terrorism Court, Sibi Nasirabad Division at Sibi.

Respondent No.2: The State.

Date of hearing: 31st May, 2007.

PLD 2007 Quetta 101

Before Ahmed Khan Lashari, J

Syed AZIZULLAH---Petitioner

Versus

Haji MUHAMMAD AKBAR and 9others---Respondents

Criminal Miscellaneous Quashment No.43 of 2006, decided on 15th June, 2007.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 182---Penal Code (XLV of 1860), Ss.302, 365, 147, 148 & 149---Quashing of order, petition for---Petitioner/complainant originally got registered case against respondents under Ss.365, 147, 148, & 149, P.P.C. at place "Q" alleging that they had abducted his daughter in a vehicle from his house---Alleged abductee and abductor/accused subsequently were murdered in another city `P' and case under S.302, P.P.C. was registered there against complainant party---On completion of investigation in said case, nominated accused of complainant party absconded and they were declared proclaimed offenders---When challan of abduction case was filed in the Court of Judicial Magistrate, at place "Q" for trial, complainant filed application seeking for insertion of S.302, P.P.C. in challan, and requested that case be sent to Sessions Court for trial which application having been rejected by impugned order, petitioner had Piled petition under S.561-A, Cr.P.C.---Contention of petitioner was that F.I.R. in respect of abduction case having been registered at place "Q", subsequent act in continuation of first offence was to be tried together at "Q"---Validity---Two acts would not amount to one offence, but were two different offences---Murder was not in consequence of first offence as it was the re-action of abduction---Both offences were to be tried separately by the Courts having territorial jurisdiction---Challan of murder case had already been filed in the Sessions Court at "P", wherein nominated accused of complainant party had been declared as proclaimed offenders---No case, in circumstances had been made out falling within the ambit at S.182, Cr.P.C.---Trial Court after proper appraisal and interpretation of law, had rightly rejected application and said order was upheld by the High Court---Petition for quashing the order being devoid of any merits, was dismissed.

AIR 1931 All. 55; PLD 1962 W.P. (Kar.) 748; PLD 1967 Pesh. 314 and Muhammad Aslam and others v. the State PLD 1982 W.P. (Kar.) 499 ref.

Kamran Murtaza for Petitioner.

Ayaz Zahoor and Muhammad Qahir Shah for Respondents.

Date of hearing: 5th June, 2007.

PLD 2007 Quetta 104

Before Akhtar Zaman Malghani, J

Sardar IFTIKHAR AHMED KHAN---Appellant

Versus

SABIR AHMED (Yousaf and Sons) and others---Respondents

F.A.Os. Nos.20, to 26 of 2006, announced on 18th June, 2007.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 2(c)(j), 13(2)(i), (3)(c)(ii), 13-A & 15---Appeal---Applications for ejectment of tenant on grounds of default in payment of rent and for bona fide personal use---Landlord and tenant, relationship of---Tenants denied existence of relationship of landlord and tenants between them---Rent Controller, in the light of pleadings of the parties, framed issues with regard to existence of relationship 'of landlord and tenant between the parties and dismissed ejectment applications holding that no relationship of landlord and tenants existed between the parties---Validity---Landlord claimed to have acquired ownership of property in dispute from its original owner/landlord and issued notice under S.13-A of West Pakistan Urban Rent Restriction Ordinance, 1959 to tenants about changed landlord and demanding rent from them---Tenants, despite receipt of such notice failed to tender. rent to landlord, which denial appeared to be contumacious as they had no right to deny title of landlord who had become the landlord by operation of law---Tenants continued to deposit rent in the name of dead original owner/landlord, and it was nobody's case that after death of original landlord/owner any other person came forward and claimed to be landlord by operation of law or having stepped into the shoes of original owner---Tenants were under legal obligation to have tendered rent to landlord, instead of disputing his title---Relationship of landlord and tenants having been established between the parties, denial of same by tenants was a malicious act---Judgment of Rent Controller, was set aside and tenants were directed to hand over vacant possession of shops in their respective possession to the landlord.

1991 SCMR 1376; 1994 SCMR 572; 1991 SCMR 215; 1991 CLC 1688; 2002 YLR 2772; 2002 CLC 143; 1980 CLC 1189 and Master Chiragh Din v. Abdul Hakim and another PLD 1974 Lah. 370 ref.

Shakil Ahmed and Abdul Rasheed for Appellants (in R.F.A.Os: Nos.20 to 26 of 2006).

Sunday Dass for Respondents (in F.A.Os.Nos.20 to 26 of 2006).

Date of hearing: 1st June, 2007.

P L D 2007 Quetta 111

Before Akhtar Zaman Malghani and Amanullah Khan Yasinzai, JJ

Haji ABDUL WAHID---Appellant.

Versus

ABDULLAH and 5 others---Respondents

R.F.A. No.33 of 2006, decided on 25th June, 2007.

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

----S. 96 & O.XLI, R.1---Appeal, form of---Provisions of S.96 are to be read with O.XLI, R.1, C.P.C. which provides that Memo. of Appeal shall accompany with a copy of judgment and if copy of judgment or decree is not filed along with appeal, the same will not be presumed to have been validly presented/filed.

1991 CLC 1288 ref.

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

----S. 12---Computation of period of limitation prescribed- for any appeal---Principles.

Under section 12 of Limitation Act, 1908 in computing the period of limitation prescribed for any appeal the time requisite for obtaining both, a copy of the judgment as well as a copy of decree, shall be excluded except where these two periods overlap each other. There is no obligation imposed upon an appellant to file application for copies of judgment and decree at one and the same time. He can make his application for copies at different times. In such case, if the time requisite for obtaining copy of one of these documents extends the time of limitation, then the application made for obtaining the copy of the other document, after the time originally fixed for filing an appeal under .the law of limitation but before the extension of time allowed by reason of the time required for. obtaining copy of one of these documents expires, will entitle the appellant to extension of time required for obtaining copy of other document, because; section ,12(2) of the Limitation Act, 1908 provides a .relaxation by way of exclusion of time requisite for obtaining copy of decree while subsection (3) relates to copy of judgment. Subsections (2) and (3) of section 12 of the Limitation Act allow the appellant to avail exclusion of aggregate period occupied in obtaining copies of both the judgment and decree as of right. However; when applications for copy of decree and judgment are made separately but within due dates, an appellant while claiming aggregate period will not be allowed the overlapping period to be excluded twice which is to be computed only once.

Issue of limitation is mixed question of fact and law which could not be decided without affording opportunity of leading evidence to the parties.

AIR 1924 Patna 113; Abdul Ghafoor v. Sher Muhammad PLD 1961 Lah. 366 and 2002 MLD 1995 ref.

Muhammad Qahir Shah far Appellant.

Kamran Murtaza for Respondents.

Date of hearing: 4th June, 2007.

PLD 2007 Quetta 118

Before Amanullah Khan, C.J. and Akhtar Zaman Malghani, J

Maulana ABDUL HAQ BALOCH, and 2 others---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Industries and Mineral Development, Quetta and 6 others---Respondents

Constitutional Petition No.892 of 2006, decided on 26th June, 2007.

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

----Art. 199---Constitutional petition---Public interest litigation---Locus standi of petitioner---Condition precedent---Principles.

If petitions under Article 199 of the Constitution, claimed to have been filed in the larger interest of public and questions of public .importance are involved bringing it within the purview of public interest litigation' ; then the petitioners invoking .the jurisdiction of the court in such like petitions need not show their locus standi in the strict juristic sense, though question oflocus standi' may be a hurdle, but not in a strict legal sense, and to overcome such a hurdle, the person has to show that the matter pertains to public interest litigation and he has an interest in the performance of a public duty, which if not performed accordingly, the public at large would suffer. Thus, in such a case, the question of locus standi would be interpreted liberally. But .the condition precedent for forming such a view is that; petitioner has to show that the case falls within the ambit of public interest litigation' and thereafter only the other legal aspects will be given a liberal interpretation. Whether or not a petition falls under the ambit ofpublic interest litigation' the courts have to see that a person approaching the court is acting bona fide .and not for any personal gain or private motive or political motivation or other oblique consideration, or to earn cheap popularity and to maintain the petition, one has to show the genuine and visible public wrong/injury.

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

----Arts. 142, 137, 173 & 199---Balochistan Mineral Rules, 2002---Balochistan Mining Concession Rules, 1970---Regulation of Mines and Oilfields and Mineral Development (Government Control) Act (XXIV of 1948), Preamble---Government of Balochistan No. S.O.(MR)5-9/94.254-60, dated 20-6-1994---Constitutional petition---Public interest litigation---Chagai Hills Exploration. Joint Venture Agreement between Provincial' Government and Foreign Companies---Validity---Article 142(c) read with Art.137 of the Constitution empowers the Provincial Government to deal with and govern all matters relating to exploration .and exploitation of minerals---Article 173 of the Constitution empowers and authorises the Provincial Government to acquire any property and to make contracts and relax the relevant Rules---Provincial Government can also declare the relevant area as Export Promotion Zone---Chagai Hills Exploration Joint Venture Agreement between Provincial Government and Foreign Companies, in .circumstances was executed legally and the interest of people of the Province had been very well taken care of---Constitutional petition being not maintainable was dismissed---Principles.

Mian Fazal Din v. Lahore Improvement Trust, Lahore -and another PLD 1969 SC 223; Dr. A.N.M. Mahmood v. The Syndicate of the University of Dacca and others PLD 1970 Dacca 85; Sultan Mawjee and others v. Federation of Pakistan Chamber of Commerce and Industry, Karachi and 3 others PLD. 1982 Karachi 889; Ardeshir Cowasjee and 11 others v. Sindh Province and others 2004 CLC 1353; Philips: Electrical Industries of Pakistan Ltd. v. Pakistan and others 2000 YLR 2724; Moulvi Iqbal Haider v. Capital Development Authority and others PLD 2006 SC 394; Wattan Party through President.. v. Federation of Pakistan through Cabinet Committee of Privatization Islamabad. and others -PLD 2006 SC 697; Province of Punjab through Collector Faisalabad and 8 others v. Muhammad Yaqoob 1992 CLC 2065; Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2883; Sardar Sawal Khan v. Gul Bdran Coal Company Quetta and another PLD 1980 Quetta 5.5; Islamic Republic of Pakistan v. Muhammad Saeed PLD 1.961 SC 192; Muhammad Ismail v. Mirza Gul Chiragh and others PLD 1967 Lah. 184; Muntizma Committee, Al-Mustafa Colony (Regd.) Karachi and 3 others v. Director Katchl Abadies, Sindh and 5 others PLD 1992 Kar. 54; Pervez Iqbal Rana v. Pakistan Agricultural Storage and Services Corporation through Managing Director and 3 others 1995 MLD 966; Muhammad Nawaz Sharif v. Federation of Pakistan through Secretary., Ministry of Defence, Government of Pakistan, Islamabad and 8 others 1994 CLC 2318; Messrs Ittehad Cement Industries Ltd. v, Government of Balochistan through Secretary Industry, Quetta .and 4 others 1997 CLC 562; Secretary to the Government of Punjab; Forest Department, Punjab Lahore through Divisional Forest Officers v. Ghulam Nabi and 3 others PLD 2001 SC 415; Mst. Musharofa Begum v. Syed Nayyar Hussain and others 1984 SCMR 377; Messrs Bakhsh Textile Mills Ltd. v. Pakistan and others 1982 SCMR 497; Farzand Raza Naqvi and. 5 others v. Muhammad Din through Legal Heirs and others 2004 SCMR 400; Chief Administrator of Auqaf v. Muhammad Ramzan and others PLD 1991 SC 102 Haji Mojakkir Ali v. Regional Transport Authority, Sylhet and others. PLD 1967 Dacca 6; Fouji Foundation and another v. Shamimur Rehman PLD 1983 SC 457; Ashok Kumar Pandey v. State West Bengal and others AIR 2004 SC 280; PLD 1969 SC 223; PLD 1961 SC 192; 994 CLC 2322 and D.P. Edalji & Co. (Pvt.) Ltd. v. Government, of Punjab 1995 MLD 1016 ref.

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

----Art. 199---Constitutional petition---Public interest litigation---Scope---General and untrammelled rights cannot be given to the people to file frivolous cases in the name of public interest litigation.

Ashok Kumar Pandey v. State of West Bengal and others AIR 2004 SC 280 and Muntizma Committee, AI-Mustafa Colony (Regd.) Karachi and 3 others v. Director Katchi Abadies, Sindh and 5 others PLD 1992 Kar. 54 ref.

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

----Art.199---Constitutional petition---Public interest litigation---Scope---When interest of the people of the area had been very well taken care of, which could not be rebutted even by the petitioners, such a case would not fall within the purview of `public interest litigation'.

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

----Art. 199---Balochistan Mineral Rules, 2002---Balochistan Mining Concession Rules, 1970---Constitutional petition---Maintainability---Chagai Hills Exploration Joint Venture Agreement between Provincial Government and Foreign Companies---Validity---Aggrieved person'---Petitioners, in the present case, had not applied for mining licence of the concerned area but had only agitated the matter on the ground that Agreement in question and exploration licences were issued in violation of the rules, and in the larger interest of public, they had filed the constitutional petition---Petitioners, in circumstances, would not come within the definition in of anaggrieved person' as laid down in Art. 199 of Constitution and thus had no locus standi to file constitutional petition---Petition thus was not maintainable.

Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223; Sardar Sawal Khan v Gul Baran Coal Company Quetta and another PLD 1980 Quetta 55; Islamic Republic of Pakistan v. Muhammad Saeed PLD 1961 SC 192; Muhammad Ismail v. Mirza Gul Chiragh and others PLD 1967 Lah. 184; Pervez Iqbal Rana v. Pakistan Agricultural Storage and Services Corporation through Managing Director and 3 others 1995 MLD 966 and 1994 CLC 2322 ref.

(f) Balochistan Mineral Rules, 2002---

----Balochistan Mining Concession Rules, 1970---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Chagai Hills Exploration Joint Venture Agreement between Provincial Government and Foreign Companies---Validity---Laches---Conduct of petitioners in filing the petition after lapse of 13 years was not understandable, as to why they waited for such a long period and it was their case that they had been trying to get information,. which they could not get---Even during the proceedings none of the petitioners appeared on a single day and further it was noteworthy that if the petitioners had concern regarding the loot and plunder of the wealth, lying in the concerned area, they had never visited the site to ascertain the actual work done on the site---Conduct of the petitioners, in circumstances, and delay in filing the constitutional petition in the case proved that petition was barred by laches.

Farzand Raza Naqvi and 5 others v. Muhammad Din through Legal Hears and others 2004 SCMR 400 ref

(g) Balochistan Mineral Rules, 2002---

----Balochistan Mining Concession Rules, 1970---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Chagai Hills Exploration Joint Venture Agreement. between Provincial Government and Foreign Companies---Validity---Past and closed transaction'---Agreement in question was executed in the year 1973 and further addendum was incorporated in the same with the approval of the Governor of the Province, under Balochistan Mining Concession Rules, 1970---No objection whatsoever was ever raised by anyone from the public, moreso no one appeared from the concerned District in the present proceedings and it was very well within the knowledge of local people of the area regarding execution of the agreement and the work was started there and local people had also been employed---Everything was carried out in a lawful and legal manner and after 13 years, the petitioners had, prayed to strike down the agreement and to let everything be washed away---Vested rights having been created and no illegality or irregularity in the execution of agreement having been pointed out and agreement in question having been executed under the Balochistan Mining Concession Rules, 1970 and licences having been issued after the promulgation of Baclochistan Mineral Rules, 2002 which were in accordance with law, relief sought for at this stage could not be granted after 13 year, in respect of apast and closed transaction'---Constitutional jurisdiction under Art.199 of the Constitution being discretionary in nature, could not be exercised in favour of indolent nor it .could be exercised to perpetuate an illegality---Past and closed transaction could not be reopened in circumstances and constitutional petition was not maintainable.

D.P. Edulji & Co. (Putt) Ltd. v. Government of Punjab 1995 MLD 1016 ref.

(h) Balochistan Mineral Rules, 2002---

----Constitution of Pakistan (1973), Art. 199--- Constitutional petition---Maintainability---Alternate remedy---Chagai Hills Exploration Join Venture Agreement between Provincial Government and Foreign Companies---Validity---Petitioners having not availed alternate statutory remedy, constitutional petition was not maintainable in circumstances.

(i) Balochistan Mineral Rules, 2002---

----Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Factual controversy---High Court while dealing with the case under Art.199 of the Constitution would refrain from going into factual controversies---Court does not act as a `court of facts' and could not substitute its own findings.

Mst. Musharofa Begum v. Syed Nayyar Hussain and othersl984 SCMR 377; Messrs- Bakhsh Textile Mills Ltd. v. Pakistan and others 1982 SCMR 497; Messrs Ittehad Cement Industries Ltd. v. Government of Balochistan through Secretary Industry, Qhetta and 4 others 1997 CLC 562 and Secretary to the Government of Punjab, Forest Department, Punjab Lahore through Divisional Forest Officers v. Ghulam Nabi and 3 others PLD 2001 SC 415 ref.

(j) Balochistan Mineral Rules, 2002---

----Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Chagai Hills Exploration Joint Venture Agreement between Provincial Government and Foreign .Companies---Validity---Petition was based merely on a news item, which was soon rebutted by the same newspaper---Counter-affidavits filed by respondents had not been disputed by the other side---Inference, in circumstances, could be that same had been admitted.

Abid Hussain Minto and Anwar ul Haq for Petitioners.

Salahuddin Mengal, A.-G. for Respondents.

Shakil Ahmad for Respondent No.2.

Muhammad Riaz Ahmed and Ch. Mumtaz Yousaf Standing Counsel for Respondent No.3.

Qazi Faez Isa for Respondent No.4.

Sajid Zahid Muhammad Chinoy and Abdul Rehman Jamali for Respondents Nos. 5 and 7.

Muhammad Zafar for Respondent No.6.

Abdul Hafeez Pirzada and Sikandar Bashir Mohmand for Respondent No.8.

Date of hearing: 8th May, 2007.

P L D 2007 Quetta 155

Before Ahmad Khan Lashari, Akhtar Zaman Malghani and Muhammad Nadir Khan, JJ

THE STATE through Regional Director and others---Appellants

Versus

FAZAL MUHAMMAD and others---Respondents

Criminal Acquittal Appeal No.54 of 2003, Criminal Appeals Nos.301, 332, 334 of 2003, 250 of 2005, Criminal Jail Appeals Nos.102 of 2004 and (S)39 of 2005, , C.P. No.207 of 2004 and Criminal Revision No.80 of 2005, decided on 7th August, 2007.

(a) Interpretation of statutes---

----Intent, meanings. and general purpose of statute---Determination---Principles---Each and every clause in a statute having been inserted for some useful purpose, the instrument must be read as a whole to ascertain both its intent and general purpose and also the meaning of each part---Court while construing the terms of any provision found in a statute should not confine its attention only to the particular provision which falls for consideration, but it should also consider other parts of the statute, which throw light on the intention of Legislature and serve to show that the particular provision ought not to be construed as if it stood alone and apart from the rest of the statute---Court, in construing a statute as a whole seeks to achieve two principal results, to clear up absurdity and ambiguities in the law and to make the whole of the law and every part of it harmonious and effective---Meaning of the words used in any portion of the statute must depend upon the context in which they are placed.

(b) Interpretation of statutes---

----Meanings of a word used in statute---Determination---Principles---Meaning of an ordinary word is to be found not as much in strict etymological propriety of language, nor even in popular use, as in the subject or occasion on which it is used and the object which is intended to be attained---If, however, two constructions are possible then the Court must adopt that which will ensure smooth and harmonious working of the enactment and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well-established provisions of existing law nugatory---Additional words to a context could only be supplied when examination discloses that certain words have been inadvertently omitted from a statute and such words are necessary to complete the sense, but should be supplied in a statute only when the omission is palpable and the word omitted is clearly indicated by the context---For the purpose of giving a meaning to the clear and definite intention to the legislature some words may in suitable cases be read in the provisions to avoid reducing the provisions to an absurdity---Power to add words should not be exercised unless there is almost a necessity in order to give the section workable meaning much less when the language of the section does not justify the addition---Notwithstanding the general rule that full effect must be given to every word, if no sensible meaning can be given to a word or phrase or it would defeat the real object of the enactment, it may, rather it should be eliminated.

Khan Chand Tiloke Ram v. State of Punjab AIR 1966 Punjab 423 ref.

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

----S. 2(t)---Opium Act (I of 1878), Preamble---Dangerous Drugs Act (II of 1930, Preamble---Opium---Definition assigned to opium in the Control of Narcotic Substances Act, 1997, is a complete definition in itself and omission of the words "from which narcotic can be extracted" does not render it incomplete in sense, therefore, it would be unsatisfactory and unsafe to seek meaning of the words used in it by referring to definition clause of Opium Act, 1878 and Dangerous Drugs Act, 1930---If the meaning put on the said words does not do violence to the object and purpose of the Act and the language is plain and unambiguous, the Court will not be justified in putting different meaning on the' words merely because a sister Legislature has in its own wisdom thought to enlarge the scope on those words.

AIR 1962 Punjab 256 ref.

(d) Interpretation of statutes---

----Rule of drafting---Same word or term is used in an Act in the same meaning throughout, and where in a particular place it is necessary to use the same term in a different sense from that which it bears in the rest of the Act, a special definition is added.

AIR 1958 All. 679 ref.

(e) Interpretation of statutes---

----"Casus omissus"---Casus omissus cannot be readily inferred not can it be supplied unless it is clearly necessary to do so, because presumption and legal intention is that each and every clause in a statute has been inserted for some useful purpose.

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

----Ss. 6, 9 & 2(t)---Control of Narcotic Substances (Regulation of Drugs of Abuse, Controlled Chemical, Equipment and Materials) Rules; 2001---Percentage of morphine present in poppy capsules or poppy straw not to be necessarily proved by prosecution---Control of Narcotic Substances (Regulation of Drugs of Abuse, Controlled Chemical, Equipment and Materials) Rules, 2001, had been framed to regulate cultivation, acquisition and supply under a licence---If any person had acquired possession of poppy straw or poppy capsules after mowing without a licence issued, by -the competent Authority; his possession would be culpable under S. 6 of the Control of Narcotic Substances Act, 1997, punishable under the clauses (a), (b) and (c) of S.9 in accordance with weight of such stuff in respective of percentage of morphine, because sub-clause (iii) of S.2(t) of the said .Act related to the mixture proposed, with or without natural, material; of any of the form of opium defined in sub-clauses (i) and (ii) which is an independent clause not affecting definition of `opium' as contained in clauses (i) and (ii) therefore it is not essential for the prosecution to prove percentage of morphine present in poppy capsules or poppy straw.

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

----Ss. 2(t) & 9---Opium---Poppy capsules---Poppy capsule of any species of papaver is included in the definition of `opium' as assigned under S.2(t) of the Control of Narcotic Substances Act, 1997 and possession thereof is punishable under 5.9 of the said Act.

PLD 2005 Lah. 440; 2003 SCMR 54; 2003 MLD 1475; PLD 2006 SC 61; Khan Chand Tiloke Ram v. State of Punjab AIR 1966 Punjab 423; AIR 1962 Punjab-256 and AIR 1958 All. 679 ref.

Gohar Yaqoob Khan Yousafzai for ANF (Special Prosecutor) for Appellant (in Criminal Acquittal Appeal No.54 of 2003).

Abdul Rauf for Respondent (present in person) (in Criminal Acquittal Appeal No.54 of 2003).

Kamran Murtaza, Muhammad Qahir Shah and Muhammad Aslam Chishti for Appellants (in Criminal Appeal No.301 of 2003).

Gohar Yaqoob Khan Yousafzai as (Special Prosecutor) ANF and Aminuddin Bazai, Addl. A.-G. for the State (in Criminal Appeal No.301 of 2003).

Muhammad Aslam Chishti for Appellant ((in Criminal Appeal No.332 of 2003).

Gohar Yaqoob Yousafzai as (Special Prosecutor) ANF and Aminuddin Bazai, Addl. A.-G. for the State (in Criminal Appeal No.332 of 2003).

Muhammad Aslam Chishti for Appellant (in Criminal Appeal No.334 of 2003).

Gohar Yaqoob Yousafzai as (Special Prosecutor) ANF and Aminuddin Bazai, Addl. A.-G. for the State (in Criminal Appeal No.334 of 2003).

Miss Shabana Azeem P/C and Muhammad Qahir Shah for Appellant (in Criminal Jail Appeal No.102 of 2004).

Gohar Yaqoob Yousafzai as (Special Prosecutor) ANF and Aminuddin Bazai, Addl. A.-G. for the State (in Criminal Jail Appeal No.102 of 2003).

Kamran Murtaza for Petitioner (in C.P. No.207 of 2004):

Gohar Yaqoob Yousafzai as (Special Prosecutor) ANF and Aminuddin Bazai, Addl. A.-G. for Respondents (in C.P No.207 of 2004).

Miss Shabana Azeem, PJC for Appellant (in Criminal Jail Appeal No.(S)39 of 2005).

Gohar Yaqoob Yousafzai as (Special Prosecutor) ANF and Aminuddin Bazai, Addl. A.-G. for the State. (Criminal Jail Appeal No. (S) 39 of 2005).

Gohar Yaqob Khan Yousafzai Advocate for ANF. (Special Prosecutor) for the State (in Criminal Revision No.80 of 2005).

W.N. Kohli for Respondents (in Criminal Revision No.80 of 2005).

W.N. Kohli for Appellant (in Criminal Appeal No.250 of 2005).

Gohar Yaqob Khan Yousafzai for ANF (Special Prosecutor) for the State (in Criminal Appeal No.250 of 2005).

W.N. Kohli for Respondents (in Criminal Appeal No.250 of 2005).

Date of hearing: 16th July, 2007.

P L D 2007 Supreme Court 1

Present: Iftikhar Muhammad Chaudhry, C.J., Faqir Muhammad Khokhar and Mian Shakirullah Jan, JJ

DHAN FIBRES LTD.---Appellant

Versus

CENTRAL BOARD OF REVENUE, ISLAMABAD and others---Respondents

Civil Appeal No.2721 of 2001, decided on 21st August, 2006.

(On appeal from the judgment/order dated 3-6-1999 passed by Peshawar High Court Peshawar in Writ Petition No.1442 of 1997).

Sales Tax Act (VII of 1990)---

----Ss. 2(9) & (43), 6(2), 26 & 34---Constitution of Pakistan (1973), Art.185(3)---Filing of Monthly Return Rules, 1996, Rule 5(4)---Tax not deposited on or before stipulated date under Rule 5(4) of Filing of Monthly Returns Rules, 1996---Payment of additional tax---Vires of Rule 5(4) of Monthly Return Rules, 1996 in relation to S.6 of Sales Tax Act, 1990---Company-appellant filed tax returns and pay orders in respect of tax period on 20th of four different months along with bank instruments---Returns were accepted by Revenue Department on 22nd and 23rd of the relevant months beyond the due date of 20th of each month---Company was informed by Department that as the former did not deposit tax on or before stipulated date, therefore, it was liable to pay additional tax under S.34 of Sales Tax Act 1996---Company filed constitutional petition challenging therein vires of Rule 5(4) of filing of Monthly Returns Rules, 1996 but petition was dismissed---Company contended that time consumed by the bank in clearance of instruments was not to constitute delay on its part---Validity---Under S.6(2) of Sales Tax Act, 1990, tax was to be paid along with return on or before 20th of each month being a cut out date, in the way/mode/manner and at the time specified which meant that tax was required to be deposited and received by Government treasury on or before 20th of the month and if bank instrument had not been cleared on said date then it was to be deemed that return had been filed and accepted on the date when tax was actually received---Admittedly, in the present case, the bank instrument for payment of tax was cleared after 20th of month when return was submitted---Company in view of the violation, was liable to pay additional tax in accordance with S.34 of Sales Tax Act, 1990---Imposition of penalty or additional tax under S.34 of Sales Tax Act, 1990 was mandatory and there was no discretion left with Revenue Department to allow any exception---Case was to be decided on its merits as to whether the evasion or non-payment of tax was wilful or mala fide, decision on which was to depend on the question of recovery of additional tax---No impediment or hurdle existed for company to ensure deposit of sales tax by submitting tax return before 20th of the month instead of filing the same on last cut out date---Tax was to be deemed to have been received when bank instrument was cleared---Section 2(26) of Sales Tax Act, 1990, clearly mandated that tax was to be paid by registered person at the time of filing of return in respect of relevant period---"Making payment" meant that bank instrument was to be cleared by bank before 20th of month, otherwise, it was to be deemed that tax was paid subsequently---Word "paid" used in S.2(26) of Sales Tax Act, 1990 meant that money had been given---Rule 5(4) of the filing of Monthly Returns Rules, 1996, was not ultra vires of S.6 of Sales Tax Act, 1990---Department had rightly imposed additional tax upon Company in terms of S.34 of Sales Tax Act, 1990---Leave to appeal was disallowed.?

D.G. Khan Cement v. Federation of Pakistan 2004 SCMR 456 rel.

Imtiaz Rashid Siddiqui, Advocate Supreme Court and Mahmud?ul-Islam, Advocate-on-Record for Appellant.

M. Bilal, Senior Advocate Supreme Court, Mumtaz Ahmed, Member (Legal), C.B.R. for Respondents.

Date of hearing: 24th February, 2006.

P L D 2007 Supreme Court 5

Present: Khalil-ur-Rehman Ramday and Raja Fayyaz Ahmad, JJ

MUHAMMAD KHAN---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No.610-L of 2006, decided on 28th July, 2006.

(On appeal from the judgment dated 23-6-2006 of the Lahore High Court, Lahore passed in Criminal Appeal No.1675 of 2004).

(a) Surrender of Illicit Arms Act (XXI of 1991)---

----S. 7---Illicit arms---Offence---Scope---Keeping of illicit arms or being in possession thereof is not an offence under Surrender of Illicit Arms Act, 1991, but in fact offence is to be in possession of illicit arms on the commencing date and not surrendering the same to such authority within such time as has been specified by Federal Government by a notification in official Gazette.

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

----S. 7---Offence---Necessary ingredients to constitute an offence under S.7 enumerated.

To constitute an offence under S.7 of Surrender of Illicit Arms Act, 1991, prosecution is required to prove the following facts:-

(a) that the accused was in possession of illicit arms on the commencing date of Surrender of Illicit Arms Act, 1991;

(b) that a notification had been issued by Federal Government which stood published in official Gazette, specifying time within which such illicit arms were to be surrendered to the named authority or to such other authority as may be specified through such notification; and

(c) that despite such notification and despite being in possession of illicit arms on the commencing date of Surrender of Illicit Arms Act, 1991, accused had not surrendered the same within the specified time to the specified authority.

(c) Surrender of Illicit Arms Act (XXI of 1991)---

----Ss. 4 (1) & 7---Criminal Procedure Code (V of 1898), S.250---Constitution of Pakistan (1973), Art.187---Reappraisal of evidence---Offence, proof of---Onus to prove---Awarding of compensation---Non-­issuance of notification under S.4(1) of Surrender of Illicit Arms Act, 1991---Effect---Accused was convicted and sentenced, under S.7 of Surrender of Illicit Arms Act, 1991, by Trial Court, for being in possession of illicit arms, which conviction and sentence was maintained by High Court---Validity---Prosecution failed to prove necessary ingredients of offences punishable under S.7 of Surrender of Illicit Arms Act, 1991, thus conviction and sentence recorded against accused could not be sustained---Supreme Court converted petition for leave to appeal into appeal and set aside the conviction and sentence awarded by Trial Court, resultantly accused was acquitted---Federal Government never issued the requisite notification under S.4(1) of Surrender of Illicit Arms Act, 1991, nor Home Department in Provincial Government issued any such notification and despite the same, people were being punished under Surrender of Illicit Arms Act, 1991---On account of such negligent act on the part of those responsible for prosecuting the accused, Supreme Court directed Home Department in the Provincial Government to pay compensation of Rs.100,000/- to him in terms of S.250 Cr.P.C. read with Art.187 of the Constitution---Appeal was allowed.

Syed Muhammad Kaleem Ahmed Khurshid, Advocate Supreme Court with Haji Muhammad Rafi Siddiqiui, Advocate-on-Record for Petitioner.

Muhammad Hanif Khatana, Addl. A.-G. with Mehr Zafar Hayat, Additional Secretary and Shahid Saleem, Section Officer, Home Department, Lahore for the State.

Date of hearing: 28th July, 2006.

P L D 2007 Supreme Court 9

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan and Syed Jamshed Ali, JJ

NOOR MUHAMMAD---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No.323 of 2005, decided on 5th April, 2006.

(On appeal from the judgment dated 12-7-2005 passed by Lahore High Court, Lahore in Crl. R. No.407 of 2005).

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

----Ss. 203 & 204---Private complaint---Prima facie case---Meaning---Issuance or non-issuance of process---Principles---Proceedings under S.204 or 203 Cr.P.C. depend upon existence or non-existence of sufficient ground which had been taken by Courts as the existence of prima facie case---Two expressions i.e. existence of sufficient ground and prima facie case have been construed by Courts interchangeably---If a complaint is made before Court, it is only to see existence of a prima facie case either on the basis of averments made in complaint and statement of complainant on oath or on the basis of inquiry, if the Court thinks fit to hold inquiry in order to ascertain truth or falsehood of the complaint.

Sher Singh v. Jatendranath Sen AIR 1931 Cal. 607 rel.

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

----S. 204---Private complaint---Issuance of process---Examination of material---Principles---Burden of proof---Court is not expected to examine material minutely at the stage of issuance of process; whereas at the stage of trial, Court appraises evidence thoroughly and records its findings on the basis of such appraisal and any benefit of doubt arising out of such inquiry should be given to accused---Preliminary inquiry is not the stage where a material available on record is assessed in depth but a prima facie case has to be made out to proceed further with the matter for issuance of the process---Burden of proof in preliminary inquiry for issuance of process is much lighter on the complainant as compared to the burden of proof on prosecution at trial of offence---Prosecution, during trial, is to prove case beyond reasonable doubt and at preliminary stage complainant is not required to discharge heavy burden of proof---Court cannot overstretch the proceedings as to convert preliminary inquiry or averments made in complaint to a stage of full-fledged trial of the case.

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

----S. 204---Issuance of process---Infringement of rights---Validity---Mere summoning of accused by Court to answer charges levelled against him was not tantamount to any infringement of ally right of a person, rather it was opportunity afforded to him to explain his position.

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

----Ss. 200 & 204---Private complaint---Possibility of acquittal---Effect---Possibility of accusation turning out to be false or frivolous at trial should not forbear the Court from issuing process, if material available, prima facie discloses case against accused.

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

----Ss. 200, 204 & 250---Private complaint---Frivolous accusations---Safeguards---Scope---Sufficient safeguard is provided under S.250 Cr.P.C., to accused against a false and frivolous accusation by complainant, which envisages that Court while acquitting accused at trial stage, holding charge brought against him, as false, frivolous or vexatious, has sufficient power to award adequate compensation.

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

----Ss. 200, 202, 203, 204 & 439---Penal Code (XLV of 1860), Ss.302/109---Private complaint---Issuance of process to accused---Revisional jurisdiction of High Court----Scope---On tentative assessment of the material placed before Trial Court, process was issued against accused persons---Such order of Trial Court was assailed before High Court---After detailed scrutiny of evidence, High Court in exercise of revisional jurisdiction, set aside the order passed by Trial Court---Plea raised by complainant was that High Court in exercise of revisional jurisdiction, could not enter into detailed scrutiny of evidence---Validity---High Court for arriving at conclusion had taken note of detailed reasoning advanced by parties touching merits of the case on the basis of appreciation of material on record very minutely---Such evidence was construed by High Court as evidence duly recorded in a trial of a case and also the reasoning advanced by Court itself for reaching such a conclusion by discussing the material in depth conveying an impression as deciding a case which was at its final stages determining guilt or innocence of accused on the criteria of evaluating evidence as to whether prosecution was able to prove its case beyond reasonable doubt or not and while giving such a benefit accused ought to be acquitted---Such an evaluation of evidence was beyond the scope of proceedings at the stage of issuance of process after making a complaint visualizing under Ss.200, 202, 203 and 204, Cr.P.C.---High Court, instead of correcting any illegality or irregularity committed by the Courts below, while exercising revisional jurisdiction had rather committed illegality itself by going beyond the scope of proceedings---Such stage was that of only summoning of accused and interference in the order of Trial Court while issuing process against accused was tantamount to stifling of proceedings/trial of the case, depriving the Court to adjudge the evidence to be produced by complainant and the right of accused to cross-examine the witnesses and to explain any incriminating evidence against him and enable the Court to arrive at a conclusion determining truth of the matter---Order of Trial Court, interfered with by High Court, was neither perverse nor arbitrary nor suffered from any illegality or irregularity but was quite in consonance with law and the principles laid down by Supreme Court---High Court had wrongly interfered with the order of Trial Court and the same was not maintainable and required reversal---Supreme Court converted petition for leave to appeal into appeal, set aside the order passed by High Court and remanded the case to Trial Court for proceeding afresh in accordance with law---Appeal was allowed.

Nazir Ahmed Bhutta, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioner.

Ch. Inayat Ahmed, Advocate Supreme Court for Respondents.

Date of hearing: 5th April, 2006.

P L D 2007 Supreme Court 16

Present Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan and Syed Jamshed Ali, JJ

Mirza MUHAMMAD TUFAIL---Petitioner

Versus

DISTRICT RETURNING OFFICER, and others---Respondents

Civil Petition No.1534-L of 2005, decided on 12th April, 2006.

(On appeal from the judgment dated 5-8-2005 passed by the Lahore High Court, Lahore in Writ Petition No.14233 of 2005).

(a) Punjab Local Government Ordinance (XIII of 2001)----

----S.152(1)(g)---Constitution of Pakistan (1973), Art. 63---Candidate for election not to be in service of Government---Object and scope---True representation of people is essence of democracy---Elected representative should not be open to any influence or temptation, which may be a stumbling block in their way to serve people of their constituency truly and freely---Possibility of existence of such influence or interest or temptation is sufficient disqualification unless law provides otherwise and that is the ruling concept---Conflict of duty and interest in elected representative should be avoided---All possible traces of influence be removed which may stand in the way of elected representatives from discharging their duty to people---If persons in the service of Government were allowed to participate in election process, then there is danger that elected bodies would lose their independence, objectivity, capacity to execute duties and functions entrusted to them by law or by the Constitution---Idea is to keep democracy free from and independent of executive control and influence---Executive through introduction, in elected institutions of its officer or on whom it can exert its influence or control will be able to check freedom and independence of elected institutions---Inclusion of such officers in elected institution may result in lessening control and superintendence of executive berefting of its authority over its employees, in public interest office smooth running of its functions.

(b) Punjab Local Government Ordinance (XIII of 2001)---

----S. 152 (1)(g)---Expression "in the service"---Meaning---Word service in S.152 (1)(g) of Punjab Local Government Ordinance, 2001, would not be taken in strict restricted and narrow technical sense as defined in Civil Servants Act, 1973, or in other service laws or in the Constitution but would be construed in the general, plain and liberal sense.

Muhammad Naseem Turyali v. Ghulam Sarwar Khan and others (unreported Civil Appeal No.1374 of 2003) rel.

(c) Punjab Local Government Ordinance (XIII of 2001)---

----S. 152(1)(g)---`Service'---Connotation---Service means being employed to serve another, it implies submission to the will of another as to direction and control, to do work for another---Determining factor to hold a person to be in service of a body or authority, implies subordination to that body---Five tests for such subordination, namely (i) the power of authority of appointment to the office (ii) the power of removal or dismissal of the holder from the office (iii) the payment of remuneration (iv) the nature of functions of the holder of the office, he 'performs (v) the nature and strength of control and supervision of the authority---Decisive test is that of appointment and removal from service while remuneration is neutral factor and not decisive---Tests should not be cumulated and not necessarily must co-exist and what has to be considered is the substance of the matter which must be determined by a consideration of all the factors present in a case---Whether stress has to be laid on one factor or the other depends on each particular case.

79 CJS.P.1139 rel.

(d) Words and phrases---

----Honorarium---Meaning---Word honorarium, in common understanding means a voluntary reward for that for which no remuneration could be collected by law, hence a voluntary payment for a service rendered, an expression of gratitude for which an action cannot be maintained, a voluntary donation, in consideration of services which admit of no compensation in money---While honorarium has been said to denote a compensation, it may be construed as a gift.

Corpus Juris Secondem Vol. 44 at page 325 rel.

(e) Punjab Local Government Ordinance (XIII of 2001)---

----S. 152(1)(g)---Punjab Agricultural Produce Markets Ordinance (XXIII of 1978), Ss. 28-A & 33---Constitution of Pakistan (1973), Art. 185(3)---Election dispute---Disqualification of candidate---Receiving honorarium---Administrator Market Committee---Returning Officer and District Returning Officer rejected nomination papers of petitioner for his being Administrator of Market Committee---Order passed by Returning Officer was maintained by High Court in exercise of Constitutional jurisdiction---Plea raised by petitioner was that being Administrator Market Committee he was not debarred under S.152 (1)(g) of Punjab Local Government Ordinance, 2001, to contest the elections---Validity---Government had power to hire and fire an Administrator and to pay compensation to him for services rendered by him, might be described as honorarium and having over all control and supervision of functions performed by him---To all intents and purposes, petitioner was in the service of statutory body under the control/supervision and with power of appointment and removal with the payment of remuneration/compensation by Government and it would neither be in the interest of elected body and public at large to have an elected representative, who would be under the influence of Government, nor it would be in the interest of Government as it would be having no effective control in superintendence over the employees in its department, so elected for an elected body---Important factor added by S.28-A of Punjab Agricultural Produce Markets Ordinance, 1978, was that when general election to National or Provincial Assembly or both would be announced and Government was satisfied that it was in public interest to prevent Market Committee from using their funds and influence for political purpose, the Government might dissolve the Market Committee, as such the same testified the fact that the Market Committee represented by Administrator could influence even the general elections, so necessarily he might influence local bodies elections and particularly when he himself was a candidate---Petitioner was rightly disqualified to be elected on account of being appointed as Administrator Market Committee---Leave to appeal was refused.

Muhammad Ramzan Chaudhry, Advocate Supreme Court and Mehmood A. Qureshi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 10th April, 2006.

P L D 2007 Supreme Court 26

Present: Sardar Muhammad Raza Khan and Falak Sher, JJ

MUHAMMAD TUFAIL and 2 others---Appellants

Versus

GHAUS MUHAMMAD through Legal Representatives---Respondent

Civil Appeals Nos.69 and 70 of 2001, decided on 12th September, 2006.

(On appeal from the judgment dated 21-11-2000 passed by the Lahore High Court, Lahore in Regular Second Appeals Nos. 148 and 149 of 1985).

(a) Punjab Pre-emption Act (I of 1913)---

----S. 15---Civil Procedure Code (V of 1908), Ss.100 & 101---Constitution of Pakistan (1973), Art.185(3)---Pre-emption suit---Waiver of right of pre-emption---Overt and positive acts necessary for participation in sale transaction---Power of High Court to appreciate evidence in second appeal---Defendants/appellants purchased land vide mutations attested in their favour on 24-1-1973---Plaintiffs/respondents filed two separate suits for pre-emption on ground of being co-sharers as well as owners in the estate which right allegedly did not vest in vendees/defendants---Trial Court decreed both suits on ground of superior right of pre-emption---Lower Appellate Court, while accepting appeals, non-suited pre-emptors on ground that one of the plaintiffs/pre­emptors had waived his superior right during proceeding of transaction between vendor and vendees/defendants---High Court set aside finding of lower Appellate Court and restored that of Trial Court by holding that point of waiver raised by vendees against one of the pre-emptors was not proved through evidence---Defendants/appellants contended that question of waiver was a question of fact which was determined against one of the plaintiffs/pre-emptors by lower Appellate Court as being the last Court of facts, hence High Court while exercising jurisdiction under Ss.100 & 101 of C.P.C. was not to have interfered with appreciation of evidence conducted by lower Appellate Court; and High Court was to have confined itself to question of law as prescribed by S.100, C.P.C. and should have avoided deeper appreciation of evidence---Validity---Finding of lower Appellate Court was to be immune from interference in second appeal only if it was found to be substantiated by evidence on record and was supported by logical reasons---Witnesses of vendees with regard to assertion of waiver by one of the plaintiffs/pre-emptors did not go beyond bald allegation through repeated single sentence "that bargains were struck through plaintiffs or one of the plaintiffs"---Such solitary sentence was not at all to be considered sufficient to hold that someone had participated in a transaction in such a manner that it gave strong indication of relinquishment of right of pre-emption---Some positive and overt act, by pre-emptor towards completion of sale transaction was to be brought on record in material particulars---Participation in transaction consisted of numerous positive acts; like playing an intermediary role between vendor and vendee; like contacting vendor to persuade him to sell land; like negotiating between parties regarding amount of transaction etc; but not a single incident of such nature was brought on record by defendants/vendees---Lower Appellate Court was not competent to hold bald allegations as sufficient evidence towards the act of waiver---Statement of Patwari Halqa was considered as another piece of evidence qua waiver but when he was confronted with Roznamcha (daily diary) he admitted that he had not entered the name of anyone in Roznamcha excepting the Lamberdar---Evidence of Patwari regarding waiver of right by plaintiff/pre-emptor was, therefore, not worth credence---Even if it was proved that any of pre-emptors/plaintiffs was present at the time of transaction, it did not by itself constitute waiver---Mere presence of somebody during transaction did not at all mean positive participation in sale transaction and positive relinquishment of right of pre-emption---Even if one of pre-emptors was found connected with act of waiver then he was most likely to lose his individual right and was not to damage right of other pre-emptors who were to succeed in Pre-empting entire suit-land to the exclusion of pre-emptor who waived his right---High Court was justified in appreciating evidence in second appeal in order to determine as to which of two decisions of the Courts below were in accordance with evidence on record and it rightly interfered with judgment of lower Appellate Court---Appeal was dismissed by Supreme Court.

Allah Din v. Habib PLD 1982 SC 645 and Alloo v. Sher Khan PLD 1985 SC 382 rel.

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

----Ss. 100 & 101---Jurisdiction of High Court to appreciate evidence in second appeal---Scope and extent---High Court was to appreciate evidence in second appeal in order to determine as to which of the two decisions of Courts below were in accord with evidence on record--Findings of lower Appellate Court was to be immune from interference in second appeal only if it was found to be substantiated by evidence on record and was supported by logical reasons.

Allah Din v. Habibn PLD 1982 SC 645 and Alloo v. Sher Khan PLD 1985 SC 382 rel.

Ch. Imdad Ali Khan, Advocate Supreme Court for Appellants.

Gul Zarin Kiani, Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 12th September, 2006.

P L D 2007 Supreme Court 31

Present: Khalil-ur-Rehman Ramday and Raja Fayyaz Ahmed, JJ

MUHAMMAD NASIR CHEEMA---Petitioner

Versus

MAZHAR JAVAID and others---Respondents

Civil Petition No.1202-L of 2006, decided on 25th July, 2006.

(On appeal from the order dated 29-5-2006 of the Lahore High Court, Lahore passed in Writ Petition No.17961/Q of 2005).

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

----Ss. 173 & 190---Constitution of Pakistan (1973), Art. 199---Investigation report (challan)---Direction to police---Jurisdiction of High Court---Investigation report (challan) against accused had been filed in Trial Court, when accused sought quashing of F.I.R. from High Court under its constitutional jurisdiction---High Court disposed of the petition with a direction to Station House Officer, to file final report only against one accused and under only one offence---Validity---Only provision relating to the subject which was available in Criminal Procedure Code, 1898, was S.173, which commanded expeditious conclusion of investigations and further ordained that on conclusion of every investigation, the concerned Station House Officer would submit a report of the result thereof in the prescribed manner to Magistrate competent to take cognizance under S.190, Cr.P.C.---No power vested with any Court, including High Court to override the legal command and to direct Station House Officer either not to submit investigation report (challan) or to submit the report in a particular manner i.e. against only such persons as the Court desired or only with respect to such offences as the Court wished---Order passed by High Court could not be sustained as investigation report (challan) had already been submitted in Trial Court and was thus beyond the reach of concerned Station House Officer---Supreme Court converted petition for leave to appeal into appeal and set aside the order passed under constitutional jurisdiction by High Court---Appeal was allowed.

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

----S. 173---Investigation report (challan)---Further investigation---Investigation report (challan) already filed in Trial Court---Validity---As investigation report (challan) had already reached Trial Court, where trial had already commenced, changing of investigation or ordering further investigation in the matter thereafter was an exercise un­sustainable in law.

Sh. Najam-ul-Hassan, Advocate Supreme Court with Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Petitioner.

Ch. Arshad Mahmood, Advocate Supreme Court for Respondent No.1 (with respondent in person).

Shahram Sarwar, Advocate Supreme Court with Mehmudul Islam, Advocate-on-Record for Respondents Nos. 4 to 6 (with respondent in person).

M. Akbar Tarar, Addl. A.-G. with Muhammad Ramzan, S.H.O. Civil Lines, Gujranwala for the State.

P L D 2007 Supreme Court 35

Present: Iftikhar Muhammad Chaudhry, C. J., Abdul Hameed Dogar and Saiyed Saeed Ashhad, JJ

Haji MUHAMMAD ISMAIL MEMON, ADVOCATE Complainant: In the matter of

Criminal Miscellaneous Application No.226 of 2006, decided on 18th May, 2006.

Civil servant---

----Pensionary benefits, delay in---Good governance---Incident of death of an old retired civil servant and his wife was brought in the notice of Supreme Court directly---Contention of petitioner was that the death was due to starvation as the deceased civil servant could not get his pensionary benefits---Effect---Such was a pathetic condition that Government servants after having served for a considerable long period during which they gave their blood and sweat to the department had to die in a miserable condition on account of non-payment of pension / pensionary benefits etc.---Responsibility could be fixed upon the persons who were directly responsible for the same but at the same time it was an overall problem almost in every department, where public functionaries failed to play their due role in accordance with law---Resultantly good governance was suffering badly---Every one who was responsible in any manner in delaying the case of such retired officers/officials or widows or orphans for recovery of pension/gratuity and G.P. Fund had to be penalized---Such lethargic action of responsible officials was in violation of Arts. 9 and 14 of the Constitution and was against dignity of human being that the old couple had to die in a miserable condition and for about three years no action was taken by concerned quarters in finalizing the pension case---When matter had come to Supreme Court, for the first time, officials concerned started moving in different directions just to show their efficiency and to clear their position before Supreme Court---Such conduct of officials was highly condemnable and could not be encouraged in any manner---Supreme Court directed all Government departments, agencies and officers deployed to serve general public within the limit by the Constitution as well as by the law, would not cause unnecessary hurdle or delay in finalizing payment of pensionary/retirement benefit cases---Violation of directions of Supreme Court would amount to criminal negligence and dereliction of duty assigned to them---Having noticed such miserable condition prevailing in departments particularly relating to payment of pension to retired Government servants or widows or orphans, Supreme Court directed all Provincial Governments as well as Accountant Generals and Accountant General of Pakistan Revenue to ensure in future strict adherence of pension rules and to clear such cases within a period not more than two weeks without fail---Petition was disposed of.

Muhammad Sarwar Khan, Addl. A.-G., Sindh Ghulam Ali Shah Pasha, Secretary Education, Zulfikar Ali Kadri, Accountant-General, Sindh, Fateh Muhammad Qureshi, Dy. Accountant General, Abdul Aziz Sheikh, Deputy Secretary, S&GAD (on behalf of Chief Secretary, Sindh).

Prof. Muhammad Raees Alvi, Registrar, University of Sindh.

Prof. M.S.K, Lodhi, Ex-Principal, Jamia Millia Government Degree College, Malir Karachi (all are on Court Notice).

P L D 2007 Supreme Court 45

Present: Khalil-ur-Rehman Ramday and Muhammad Nawaz Abbasi, JJ

SHAJAR ISLAM---Petitioner

Versus

MUHAMMAD SIDDIQUE and 2 others---Respondents

Civil Petition No.1336-L of 2002, decided on 25th September, 2006.

(On appeal from the judgment dated 18-2-2002 of the Lahore High Court, Lahore passed in Writ Petition No.5410 of 1994).

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Ejectment of tenant---Landlord and tenant, relationship of---Determination---Question related to legal status of parties vis-a-vis premises and nature of their relationship inter se, is a mixed question of law and fact to be decided in the light of evidence---In absence of any evidence in rebuttal of title of landlord, there would be a strong presumption of existence of tenancy between the parties.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss.2(c) & 13---Constitution of Pakistan (1973), Art.199---Landlord---Determination of---Presumption---Creation of tenancy---Principles---Constitutional jurisdiction of High Court---Scope---Concurrent findings of fact by the Courts below---Rent Controller as well as Lower Appellate Court, concurrently passed eviction order against tenant---High Court in exercise of Constitutional jurisdiction, set aside concurrent findings of .both the Courts below and dismissed ejectment application on the ground that there was no written agreement of tenancy between the parties---Validity---Landlord might not be essentially owner of the property and ownership might not always be a determining factor to establish relationship of landlord and tenant between the parties---In normal circumstances, in absence of any evidence to the contrary, owner of property by virtue of his title would be presumed to be landlord and person in possession of premises would be considered as tenant under the law---Tenancy would not be necessarily created by a written instrument in express terms, rather might also be oral and implied---High Court in exercise of its Constitutional jurisdiction was not supposed to interfere in findings on controversial question of facts based on evidence, even if such finding was erroneous---Scope of judicial review of High Court under Art. 199 of the Constitution in such cases was limited to the extent of misreading or non-reading of evidence or if finding was based on no evidence, which might cause miscarriage of justice: it was not proper for High Court to disturb finding of fact through reappraisal of evidence in Constitutional jurisdiction or to exercise such jurisdiction as a substitute of revision or appeal---Interference of High Court in concurrent findings of fact by the Courts regarding existence of relationship of landlord and tenant between the parties was beyond the scope of its jurisdiction under Art. 199 of the Constitution---Supreme Court converted petition for leave to appeal into appeal and set aside judgment passed by High Court---Appeal was allowed.

Rana Nasullah Khan, Advocate Supreme Court and Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Petitioner.

M.D. Tahir, Advocate Supreme Court and Ch. M. Anwar Khan, Advocate-on-Record for Respondents.

Date of hearing: 25th September, 2006.

P L D 2007 Supreme Court 48

Present: Khalil-ur-Rehman Ramday and Raja Fayyaz Ahmed, JJ

THE STATE through Prosecutor General, Punjab, Lahore---Petitioner

Versus

SULTAN AHMED and others---Respondents

Civil Petition No.1138 of 2006, decided on 19th July, 2006.

(On appeal from the order dated 26-6-2006 of the Lahore High Court, Lahore, passed in Writ Petition No.4529 of 2006).

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

----Ss. 310 & 310-A---Badl-i-Sulah---Giving female in marriage---Retrospective effect---Amendment was brought in S.310 P.P.C. prohibiting giving of a female in marriage or otherwise as Badl-i-Sulah and consequent addition of S.310-A in Penal Code, 1860, making the same an offence, had been enacted and enforced with effect from 11-1-2005---Such Badl-i-Sulah could not be allowed to act retrospectively to cover the occurrence which had taken place much earlier.

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

----S. 310-A---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16---Badl-i-Sulah---Giving female in marriage---Scope---In an offence of abduction/enticing, registered under Offence of Zina (Enforcement of Hudood) Ordinance, 1979, a compromise was effected on the basis of Badl-i-Sulah, when a minor girl eight years of age was married to one of the relatives of abductee---On receiving information of such incident, police registered F.I.R. under S.310-A, P.P.C. Validity---Offence of giving female in marriage or otherwise, as Badl-i-Sulah was a concept confined only to the offences affecting human body i.e. offences mentioned in Chapter XVI P.P.C.---Such offences had since been made compoundable, which admitted of "Sulah"---Giving away of minor girl in marriage on account of compromise in a case of enticement/abduction of female which offence was not. compoundable and thus did not admit of "Sulah"---There was no question of giving female as Badl-i-Sulah in terms of Penal Code, 1860, which could not bring the matter within the ambit of S.310-A, P.P.C.

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

----Art. 199---Constitutional petition before High Court---Quashing of F.I.R.---Principles---F.I.R. cannot be quashed or the same cannot be cancelled only because a section of law creating an offence mentioned in F.I.R. is not made out---F.I.R. can only be quashed if it can be declared that no offence whatsoever has been disclosed by the facts alleged through such F.I.R. or complaint etc.

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

----Ss. 310-A & 372---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.13 & 16---Constitution of Pakistan (1973), Art. 199---Constitutional petition before High Court---Quashing of F.I.R.---Abduction/enticing---Giving female in marriage as Badl-i-Sulah---Offence of abduction was compromised by complainant party by getting a minor girl eight years of age in marriage, as Badl-i-Sulah---Police registered F.I.R. under S.310-A, P.P.C. which F.I.R. was quashed by High Court in exercise of Constitutional jurisdiction---Validity---If it was presumed that offence under S.310-A, P.P.C. was not attracted, even then the provisions of S.13 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, at least prima facie, stood attracted, which had escaped notice of High Court, as it was a re-enactment of repealed provision of S.372 P.P.C.---Quashing of F.I.R. within two months of lodging of the same, without permitting investigating agency to collect evidence in the matter, enabling competent Court to determine whether some offence was or was not made out or attracted, was not justified---Supreme Court converted petition for leave to appeal into appeal and set aside the order passed by High Court, whereby F.I.R. was quashed---Appeal was allowed.

Ch. Mushtaq Ahmed Khan, Prosecutor General Punjab for Petitioner.

Ghulam Farid Sanotra, Advocate Supreme Court with Syed Fayyaz Ahmed Sherazi, Advocate-on-Record for Respondents Nos. 1, 4 and 9 and other Respondents in person.

Respondent No.5 (in person).

Other Respondents (not represented).

Date of hearing: 19th July, 2006.

P L D 2007 Supreme Court 52

Present: Iftikhar Muhammad Chaudhry, C. J., Abdul Hameed Dogar and Saiyed Saeed Ashhad, JJ

Hafiz HAMDULLAH---Appellant

Versus

SAIFULLAH KHAN and others---Respondents

Civil Appeal No.961 of 2005, decided on 25th May, 2006.

(On appeal from the judgment dated 27-7-2005, passed by Balochistan High Court, Quetta in C.P. No.46 of 2004).

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

----Art. 199(1)(a)---Constitutional jurisdiction of High Court---Scope---"Aggrieved person"---Connotation---Constitutional jurisdiction of High Court, under Art. 199(1)(a) of the Constitution, can be invoked by an aggrieved person, which denotes a person who has suffered a legal grievance, against whom a decision has been pronounced which has wrongfully deprived him or wrongfully refused to him something which he was legally entitled to---Further requirement is that the person invoking Constitutional jurisdiction under Art.199 of the Constitution has to establish that any of his legal or fundamental rights guaranteed under the Constitution has been violated resulting in legal loss.

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

----Art. 199(1)(b)(ii)---Writ of quo warranto---Scope---Aggrieved person---Person seeking writ of quo warranto---Locus standi---Writ of quo warranto is in the nature of laying an information before a Court, against a person who claimed and usurped an office, franchise or liberty, requesting for holding an enquiry to enable him to show the authority under which he supported his claim of right to the office, franchise or liberty---Object of writ of quo warranto is to determine legality of the holder of a statutory or Constitutional office and decide whether he was holding such office in accordance with law or was unauthorizedly occupying a public office---Where a person prays for a writ of quo warranto, the Court would be under an obligation to inquire whether the incumbent is holding the office under the orders of a competent authority and also to examine whether he would be legally qualified to hold the office or to remain in the office---For issuance of a writ of quo warranto, the person invoking the jurisdiction of High Court under Art.199 of the Constitution is not required to fulfil the stringent conditions required for bringing himself within the meaning of an aggrieved person---Any person can move High Court to challenge the usurpation or unauthorized occupation of a public office by the incumbent of that office and he is not required to establish his locus standi to invoke Constitutional jurisdiction under Art.199 of the Constitution in the manner as generally required by this Article---Writ of quo warranto can be instituted by a person though he may not come within the meaning of word aggrieved person.

M.U.A. Khan v. Rana Muhammad Sultan and another PLD 1974 SC 228; Al-Jahad Trust through Raees-ul-Mujahidin Habibul Wahabul Khairi v. Federation of Pakistan and others PLD 1996 SC 324; Malik Asad Ali and others v. Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs Islamabad and others PLD 1998 SC 161 and Captain retired Muhammad Naseem Ejazi v. Province of Punjab 2000 SCMR 1720 rel.

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

----Ss. 14, 52 & 99(1)(a)(k)---Conduct of General Elections Order (7 of 2002), Arts. 8-D (2)(a) & 8-E---Constitution of Pakistan (1973), Arts. 63 (2), 199(1)(b)(ii) & 225---Petition for writ of quo warranto---Maintainability---Member of Provincial Assembly---Disqualification---High Court disqualified the returned candidate on a petition filed by a person who himself was not a candidate in election---Plea raised by appellant was that in view of the bar contained in Art.225 of the Constitution, High Court could not set aside the election---Validity---Appellant was not qualified to contest for the seat of Provincial Assembly in view of the provisions contained in Art.8-D(2)(a) of Conduct of General Elections Order, 2002, read with S.99(l)(a)(k) of Representation of People Act, 1976, thus he was suffering from pre-election disqualification---Petitioner before High Court was not a candidate in general election held for electing members of Provincial Assembly, as such could not have recourse to Ss.14 and 52 of Representation of People Act, 1976, nor any other remedy made available to him by any law, rules or regulations to challenge the election of appellant as member of Provincial Assembly, which emphatically claimed/described to be absolutely illegal and void---Only remedy available to the petitioner before High Court was by way of institution of a Constitutional petition praying for writ of quo warranto, requesting High Court to inquire from the appellant to show that under what authority or law he was entitled to hold the office of member of Provincial Assembly---Constitutional petition was maintainable before High Court.

Khuda Bakhsh v. Mir Zafarullah Khan Jamali 1997 SCMR 561; Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416 and PLD 2003 Quetta 94; Farzand Ali v. Province of Pakistan PLD 1970 SC 98; Masoodul Hasan v. Khadim Hussain and another PLD 1963 SC 203; Rex v. Spever 1916 IKB 595 rel.

(d) Civil service---

----Resignation---Continuation in service---Principles---On mere tendering/submitting of resignation, services of government/civil servant would not come to an end and the same has to be accepted for its effectiveness by competent authority---Till such time as the resignation is accepted by competent authority, the civil/government servant would continue to be in government service and would be under obligation to perform his duties---If he fails or omits to perform his duties without prior authorization or leave, he would be deemed to be an absentee rendering himself liable for disciplinary proceedings under appropriate law and rules.

Chairman Pakistan Space and Upper Atmosphere Research Commission (SPARCO), Karachi and another v. Ahmad Mumtaz Mustehsan and another 2000 SCMR 890; Moti Ram v. Param Dev and another 1993 SCMR 2137 and Province of West Pakistan and others v. Ch. Din Muhammad and others PLD 1964 SC 29 ref.

(e) Representation of People Act (LXXXV of 1976)---

----Ss. 14, 52 & 99(1)(a)(k)---Conduct of General Elections Order (7 of 2002), Arts.8-D (2)(a) & 8-E---Constitution of Pakistan (1973), Arts.63(2), 199(1)(b)(ii) & 225---Writ of quo warranto---Member of Provincial Assembly---Disqualification---Tendering of resignation from civil service---Effect---Relevant dates for filing of nomination papers---Appellant tendered his resignation on 3-11-1999 from service, which was accepted on 13-11-2003, and was elected as member Provincial Assembly---Election of appellant was set aside by High Court in exercise of jurisdiction under Art. 199(1)(b)(ii) of the Constitution, on the ground that he did not cease to be a government servant two years before the elections---Plea raised by appellant was that his resignation would be deemed to have been accepted immediately on its tender, which would have removed his disability---Validity---Appointments of government/civil servants were made and governed by the provisions of Civil Servants Act, 1973, the Rules made thereunder and the terms and conditions agreed by the parties incorporated in the appointment letter/ notification---Service of government/civil servant was a result of mutual agreement between him and the government---Employment/service being result of a bilateral agreement between him and the government, unilateral action of government/civil servant to relinquish his right in relation to an office/post would be operative or effective unless accepted by the competent authority---Resignation tendered by appellant and communicated to competent Authority on 3-11-1999 was accepted on 13-11-2003, therefore, he continued to be a government/civil servant till 13-11-2003---Acceptance of resignation, tendered by a civil servant, by competent authority was an essential requirement for its effectiveness and till such time as it was accepted or approved, civil servant would continue to be in service---Resignation would be effective from the date of its acceptance and not from back date---Requirement for contesting election to a seat in Assembly for government servant was that period of two years should lapse after his retirement/resignation for becoming eligible to contest the election---Relevant dates for completion of two years were the dates of retirement/resignation and filing of nomination papers---Appellant's resignation having been accepted on 13-11-2003, he was a government servant at the time of filing of nomination papers and on the date of polling, thus was disqualified from contesting the election and his election was rightly declared void by High Court---Supreme Court declined to interfere in the judgment passed by High Court---Appeal was dismissed.

Civil Appeals Nos.1374, 1375 & 1672 of 2003; Muhammad Ayub v. Abdullah Khan PLD 2004 SC 479 rel.

(f) Order---

----Executive order---Retrospective effect---Executive/departmental authority has no power to pass orders with retrospective effect.

Noor Muhammad v. The Member Election Commission, Punjab and others 1985 SCMR 1178 and Noor Muhammad v. Muhammad Abdullah and 7 others 1984 SCMR 1578 rel.

Kamran Murtaza, Advocate Supreme Court for Appellant.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondent No.1.

Nemo for Respondents Nos. 2 to 5.

Mrs. Naheeda Mehboob Ellahi, D.A.-G. (on Court Notice).

Date of hearing: 25th May, 2006.

P L D 2007 Supreme Court 71

Present: Rana Bhagwandas, Saiyed Saeed Ashhad and Hamid Ali Mirza, JJ

GHULAM HUSAIN SOOMRO---Petitioner

Versus

THE STATE---Respondent

Crl. P.L.A. No.57-K of 2005, decided on 20th December, 2005.

(On appeal from judgment of Sindh High Court, Karachi dated 3-6-2005 passed in Crl. ATA Appeal No.57 of 2003).

Penal Code (XLV of 1860)---

----S. 365-A/34---Anti-Terrorism Act (XXVII of 1997), Ss.6(2)(e) & 7(e)---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Delay in lodging of F.I.R.---Minor discrepancies and deviations in prosecution evidence---Allegation against accused/petitioner was that he along with co-accused kidnapped the son of complainant---Captive was recovered at pointing out of accused; chains and cloth used at time of confinement of captive were recovered from possession of accused and co-accused---Trial Court while convicting accused and a co-accused sentenced accused/petitioner to imprisonment for life and forfeiture of his movable and immovable properties---Appeal filed against conviction was dismissed by High Court---Accused contended that F.I.R. was belated by 36 hours and that accused was falsely implicated on account of his business relations with father of captive---Validity---Mere delay in lodging of F.I.R. was not always fatal to prosecution cases, though in some cases it might militate against bona, fides of prosecution---In cases involving kidnapping of young persons for ransom, parents as well as police invariably try their best to locate the victim rather than promptly lodging F.I.R. for fear of death of victim---No adverse inference was to be drawn against prosecution on ground of delay alone in lodging of F.I.R.---Cases of kidnapping for ransom were to be dealt with iron hands and even if there were minor discrepancies and deviations in evidence or shortfalls on part of investigating agency, the Courts were always to be dynamic and pragmatic in approaching true facts of the case and drawing correct and rational inferences and conclusions arising out of facts and circumstances of each case---Where innocent persons were wrongly roped in by prosecution or falsely involved by unscrupulous investigating officers, Courts were to maintain balance while arriving at truth or falsehood of the matter by sifting grain from chaff---Accused in the present case was directly involved in commission of offence and he was rightly convicted by Trial Court---Judgments passed by Trial Court and High Court did not suffer from misreading of record or misconstruction of evidence---Leave to appeal was refused.

Muhammad Ashraf Kazi, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 20th December, 2005.

P L D 2007 Supreme Court 75

Present: Iftikhar Muhammad Chaudhry, C.J., Abdul Hameed Dogar and Saiyed Saeed Ashhad, JJ

SHAHVEER JHP BRYAMJI---Appellant

Versus

THE STATE through Secretary, Ministry of Interior, Government of Pakistan, Islamabad and another---Respondents

Criminal Appeal No.149 of 2006, decided on 18th May, 2006.

(On appeal from the judgment dated 2-11-2005 of the High Court of Sindh, Karachi, in Criminal Revision No.30 of 2004).

Criminal Procedure Code (V of 1898)---

----Ss. 188, 196-A, 435, 436, 439 & 561-A---Penal Code (XLV of 1860), Ss.120-B, 231, 468 & 471---Constitution of Pakistan (1973), Art.185(3)---Compulsory winding up of Bank---Involvement in fraudulent bank transactions---Complaint---Filing of---Sanction from Government mandatory for filing of complaint under S.188, Cr.P.C.---Scope---Cognizance taken under S.120, P.P.C. by ignoring provisions of S.196-A, Cr.P.C.---Validity---Charge---Challenge to---Bank in question was subjected to compulsory winding up as it was allegedly carrying on business detrimental to public interest and was not able to meet its obligations to creditors due to its dwindling financial position---Liquidators authorized complainant/respondent to initiate criminal proceedings against all persons involved in crime---Complainant filed complaint under Ss.231, 468, 471 read with S.120-B, P.P.C. before Sessions Court, nominating accused/appellant who along with other 24 accused persons was involved in fraudulent bank transactions---Accused/ appellant, after framing of charge, challenged the same by filing criminal revision under S.435, 436 & 439, Cr.P.C. before High Court for quashment of proceedings---Accused contended that at time of filing of complaint, sanction from Government had not been obtained in that behalf as required under S.188, Cr.P.C. which was mandatory in nature as offence was allegedly committed outside Pakistan and that charge was not maintainable, for cognizance had been taken under S.120, P.P.C. which provision of law was also hit by S.196-A, Cr.P.C. according to which complaint was to be made by order or under authority from Central Government or Provincial Government concerned or some officer empowered in this behalf by either of the two governments---Criminal Revision was partly allowed in respect of charge and was dismissed on the question of sanction, by High Court---Validity---Record showed that complainant, prior to filing of complaint, had obtained sanction from Ministry of Interior for prosecution---As to the charge, High Court had rightly directed Trial Court to frame charge according to law keeping in view of provisions of Ss.221 and 222, Cr.P.C.---Appeal was dismissed by the Supreme Court.

Iqtidar Ali Hashmi, Advocate Supreme Court for Appellant.

Raza Kazim, Advocate Supreme Court and Raja Sher Muhammad Khan, Advocate-on-Record for Respondent No.2.

Date of hearing: 18th May, 2006.

P L D 2007 Supreme Court 79

Present: Iftikhar Muhammad Chaudhry, C.J., Abdul Hameed Dogar and Saiyed Saeed Ashhad, JJ

Messrs AL-MAHMUDIA (PVT.) LTD.---Petitioner

Versus

PAKISTAN through Secretary, Ministry of Housing and Works, Islamabad and others---Respondents

Civil Petition No.788 of 2006, decided on 14th September, 2006.

Constitution of Pakistan (1973)---

----Art. 185(3)---Precedent---Judgments of Supreme Court---While deciding controversy between the parties, High Court relied upon an earlier judgment passed by larger Bench of Supreme Court---Petitioner assailed judgment of High Court and had, relied upon another judgment of Supreme Court passed by a smaller Bench of Supreme Court which was later in time---Validity---Supreme Court agreed with the judgment delivered by larger Bench and by comparing with the judgment relied upon by the petitioner, approved the earlier view---High Court had rightly declined to interfere in the order by following the law laid down in the earlier judgment delivered by a larger Bench of the Supreme Court---Leave to appeal was refused.

Federation of Pakistan through Secretary Education v. Pr. Dr. Anwar and 2 others 2006 SCMR 382 ref.

Federation of Pakistan v. Muhammad Tariq Pirzada and 2 others 1999 SCMR 2744 approved.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioner.

Nemo for Respondents.

P L D 2007 Supreme Court 80

Present: Rana Bhagwandas, Nasir-ul-Mulk and Syed Jamshed Ali, JJ

INAYAT ALI---Appellant

Versus

IFTIKHAR AHMAD alias KALI and another---Respondents

Criminal Appeal No.581 of 2000, decided on 26th September, 2006.

(On appeal from order of Lahore High Court, Lahore dated 7-12-1999 passed in Criminal Appeal No.272 and Murder Reference No.113 of 1993).

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

----S. 302(b)---Constitution of Pakistan (1973), Art. 185 (3)---Leave to appeal was granted by Supreme Court to consider; whether High Court

was justified in altering death sentence of accused to imprisonment for life on the premise that possibility of accused and co-accused having caused injuries to deceased after sudden flare-up could not be ruled out and the order of High Court was based on conjectures rather than any substantial evidence on record.

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

----S. 302 (b)---Reappraisal of evidence---Mitigating circumstances---Proof---Sentence, reduction in---Restoration of capital punishment---Accused was convicted and sentenced to death by Trial Court for inflicting three successive blows of Churri on the chest of deceased---High Court in exercise of appellate jurisdiction maintained the conviction of accused but altered his death sentence to imprisonment for life -Plea raised by complainant was that the sentence was altered on the basis of conjectures and surmises---Validity-Evidence of eye-witnesses on the issue of active role of accused in commission of crime leading to fatal injuries on vital parts of body of deceased being natural, straightforward and consistent with medical evidence as well as in accord with facts and circumstances of the case, was rightly believed by Trial Court and endorsed by High Court in appeal with justification---Evidence on record clearly proved beyond doubt the act of participation of accused in commission of crime---Strong basis were available for finding of guilty against accused without there being any mitigating circumstance for alteration of sentence as done by High Court---Supreme Court on deeper examination of evidence and analysis of judgment passed by High Court observed that reasons assigned for mitigation of sentence were not supported by material on record and were based on conjectures, surmises and speculations which could hardly be upheld in the facts and circumstances of the case---Supreme Court being legally entitled to interfere with the exercise of discretion by High Court, which otherwise was sparingly disturbed, in the larger interest of justice and supremacy of law, set aside the view taken by High Court and restored capital punishment awarded by Trial Court --Appeal was allowed.

Munir Ahmad Bhatti, Advocate Supreme Court for Appellant.

Rana Muhammad Arshad, Advocate Supreme Court for Respondent No.1.

G.N. Gohar, Advocate Supreme Court for the State.

Date of hearing: 26th September, 2006.

P L D 2007 Supreme Court 85

Present: Khalil-ur-Rehman Ramday, Faqir Muhammad Khokhar and Ch. Ijaz Ahmad, JJ

THE STATE---Petitioner

Versus

AMJAD ALI---Respondent

Criminal Petition No.115-L of 2006, decided on 13th October, 2006.

(On appeal from the order dated 24-1-2006 of the Lahore High Court, Lahore passed in Criminal Appeal No.396 of 2005).

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

----Ss. 32, 33 & 36---Police Rules 1934, Vol. III, Chapter XXII, Rule 22.16---Constitution of Pakistan (1973), Art.185(3)---Case property---Re-examination of confiscated goods---Scope---High Court, in the present case, had ordered for drawing fresh samples from parcels lying in Malkhana for their examination afresh without any reason being disclosed for such examination except that accused had submitted that if said narcotic substance was re-tested then it would be found that the same did not contain Charas---Validity---Unscrupulous litigants manoeuvr replacement of substances and articles deposited in Malkhana and then make prayer for re-examination of substance with result that narcotic substance which had already been examined/tested as narcotic substance was found to be something else---Such immoral practice was gaining momentum as a result whereof criminals were securing their acquittal through dishonest means---Courts were to curb such clandestine modus operandi adopted to screen offenders and make sure that once a substance had been tested then extraordinary reasons were to exist before directing fresh examination of such substance---No such reason having been disclosed by High Court in its order for re-examination of narcotic substance, such could not be sustained---Appeal was allowed.

Ehtisham Qadir Shah, Advocate Supreme Court with Faiz-ur-Rehman, Advocate-on-Record for Petitioner.

M.A. Qureshi, Advocate-on-Record for Respondent.

Date of hearing: 13th October, 2006.

P L D 2006 Supreme Court 87

Present: Javed Iqbal, Muhammad Nawaz Abbasi, and Hamid Ali Mirza, JJ

ALI IMRAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.483 of 2002, decided on 25th May, 2006.

(On appeal from the judgment dated 3-4-2002 passed by Lahore High Court, Lahore in Criminal Appeal No.650/99 and Murder Reference No.288/T/99).

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

----S. 7---Penal Code (XLV of 1860), S.302(b)/34---Constitution of Pakistan (1973), Art.185 (3)---Leave to appeal was granted by Supreme Court to consider; whether evidence of single police official was sufficient to convict and sentence the accused to capital punishment when there was a counter allegation against police party for killing one of the accused in counter-firing; and whether in the facts and circumstances of the case, death penalty awarded to accused was justifiable or he was entitled to lesser punishment.

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

----S. 7---Penal Code (XLV of 1860), Ss.302 (b) / 34---Reappraisal of evidence---Mitigating circumstances---Awarding of lesser punishment---Accused was convicted and sentenced to death for committing murder of a police constable---Conviction and sentence awarded by Trial Court was maintained by High Court---Plea raised by accused was that except the sole statement of complainant constable, no other witness was brought on record to connect the accused with commission of offence---Accused also raised the plea that it being not known that who out of the two accused 'was individually responsible for firing at the deceased police constable, extreme penalty of death to accused was not justified---Validity---Complainant, who along with deceased constable, on a motorcycle, chased rickshaw in which accused in the company of deceased co-accused was. boarded, was the most natural witness, who had identified the accused at the spot as well as in Trial Court---Similarly the rickshaw driver also identified the accused in Trial Court and stated that the accused and his deceased co-accused while boarded in his rickshaw, were chased by two police officials on motorcycle whereupon accused started firing at them from rickshaw and in consequence thereof police. constable was hit and died at the spot---Joint liability .of accused was clearly established in the light of such factual position explained by two eye-witnesses, and he being equally responsible for the murder was rightly convicted under S.302(b) P.P.C.---Since charge against accused stood proved beyond reasonable doubt, therefore, no exception could be taken to the finding of Trial Court as well as High Court regarding the guilt---It being not known that who of the two accused was individually responsible for the murder of deceased constable, extreme penalty of death to accused might not be justified---While maintaining conviction of accused, Supreme Court converted the sentence of death awarded to him into imprisonment for life---Appeal was allowed.

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

----S. 34---Common intention---Proof---Intention to commit crime can be gathered from the circumstances, which may prevail at the spur of moment in re-action to happening of some incident---Except in a premeditated occurrence, it is difficult to procure direct evidence to prove intention of a person for committing crime rather intention is to be inferred from his act and conduct---Common intention within the meaning of S.34 P.P.C. can be proved through direct or circumstantial evidence or may also depend upon the nature of an act done or motive possessed and a joint action of more than one person itself, is an evidence of common intention.

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

--S. 34---Common' intention---Pre-conditions---Common intention generally involves element of common motive, pre-plan preparation and action pursuant to such plan---Sometimes common intention may develop at the spur of the moment or during commission of offence.

Mazhar Ali Akbar Naqvi, Advocate Supreme Court for Appellant.

Ch. Munir Sadiq, Advocate Supreme Court for the State.

Date of hearing: 25th May, 2006.

P L D 2007 Supreme Court 93

Present: Javed Iqbal, Muhammad Nawaz Abbasi, Raja Fayyaz Ahmed, Dr. Allama Khalid Mehmood, and Allama Rashid Ahmed Jullundhari, JJ

SHOUKAT ALI---Appellant

Versus

THE STATE---Respondent

Criminal Shariat Appeal No.23 of 2003, decided on 28th September, 2006.

(On appeal from the judgment dated 1-10-2001 of the Federal Shariat Court passed in Criminal Appeal No.101-L of 2000).

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

----Ss. 302/34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14---Constitution of Pakistan (1973), Art.203-F---Reappraisal of evidence---Proverbial Lalkara---Common intention---Friendship or relationship of witnesses with deceased---Effect---Natural witnesses---Scope---Object of section 34, P.P.C.---Allegation against accused appellant was that he along with two accused persons committed murder of deceased---Motive setup in F.I.R. was that as deceased took charge of agricultural farm from accused, therefore, out of grudge he committed murder of deceased---Accused was acquitted of charge under S.14 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and was convicted and sentenced to life imprisomnent by Trial Court under section 302/34, P.P.C.---One co-accused was sentenced to death by Trial Court but Federal Shariat Court altered death to life imprisonment---Second co-accused was acquitted by Trial Court---Accused contended that no overt act except proverbial Lalkara, was attributed to him in F.I.R. and at trial; that motive was notestablished on record; that prosecution evidence was furnished by interested and related witnesses; that prosecution evidence was self-contradictory and uncorroborated by independent evidence and that F.I.R. was lodged with delay benefit of which was to go to accused---Validity---Prosecution had alleged that murder of deceased was committed by all accused with common intention---Prosecution witnesses were subjected to lengthy cross-examination but nothing beneficial to accused could be elicited from them who supported each other on material points---Few minor contradictions having no substantial bearing on merits of case could be ignored safely---Prosecution witnesses had no enmity to get accused/appellant involved in heinous offence like murder, abetment and instigation as no grudge had been alleged against them---Friendship or relationship with deceased was not sufficient to discredit a witness particularly when there was no motive to falsely involve accused---In assessing value of evidence of eye-witnesses, it was necessary to examine whether in facts and circumstances of the case their presence at the scene was to make it possible for them to witness occurrence and whether there was anything inherently improbable or unreliable in their evidence---Prosecution witnesses in the present case were not interested witnesses and their version had been rightly believed by courts below---Prosecution witnesses furnished plausible justification for their presence at the place of occurrence as such they could not be labelled as chance witnesses---Object of S.34, P.P.C., which was incorporated along with S.302, P.P.C. in the present case, was to meet a case in which it might be difficult to distinguish between acts of individual members of party or to prove exactly what part was taken by each of them in the occurrence---Reason why all were deemed guilty in such cases was, that presence of accomplices gave encouragement, support and protection to person actually committing the act---Appellant, in the present case, had nourished grudge against deceased and it was he who emerged at the scene along with co-accused duly armed with deadly weapons which depicted common intention and prior concert of mind and being facilitator and abettor he remained present at. place of occurrence till murder of deceased was accomplished---Role of accused/appellant could not be confined to that of proverbialLalkara' but it was more than that and he had been rightly convicted and sentenced to life imprisonment by Courts below---Appeal was dismissed.

Iqbal alias Bala v. The State 1994 SCMR 1; Nazir v. The State PLD 1962 SC 269; Khalil Ahmed v. the State 1976 SCMR 161; Allah Ditta and others v. The State 1970 SCMR 734; Muhammad Akbar v. Muhammad Khan and others PLD 1988 SC 274; Shehruddin v. Allah Rakhia 1989 SCMR 1461; Din Muhammad v. Crown 1969 SCMR 777; Riasat Ali and another v. The State PLD 1991 SC 397; 1935 Cr.LJ 1393, 1953 All. 214; In re: Basappa (Vol. 51 Cr.LJ 1950; Sitaram v. State Vol. 59 1958 Cr.LJ 1380; Panduranq Tukia and Bhillia v. The State of Hyderabad 1955 SCR 1083; NGA Tun Baw and another v. Emperor 1907 UBR (PC) Crl.LJ 205; Muklesur Rahman and another v. The King Vol. 51 1950 Cr.LJ 945; Queen v. Gorachand Gopee, p.456by Sir Barnes Peacock; In re: Thipperudrappa Vol. 55 1954 Cr.LJ 481; Panduranq v. State of Hyderabad 1955 Cr.LJ 572; Hidayatullah v. State 1976 P.Cr.LJ 1067; Athar Khan v. State PLD 1972 Lah. 19; Hasan Din v. Muhammad Mushtaq 1978 SCMR 49; Chutta v. State 1995 P.Cr.LJ 755; Shahadat Khan v. Home Secretary PLD 1969 SC 158 and Muhammad Nawaz v. State PLD 1967 Lah. 952 ref.

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

----Ss. 34 & 302---"Common intention" and "furtherance of common intention of all"---Common intention and similar intention---Distinction, scope and object---Section 34, P.P.C. was not a punitive section and it did not enact a rule of evidence but enacted a common law principle of substantive law---Section 34, P.P.C. embodied common sense principle that if two or more persons intentionally did a thing jointly, it was just the same as if each of them had done it individually---Two or more persons where jointly caused injury to another in such a manner that each person engaged in causing the injury was to know that result of such injury might be the death of injured person, it was no answer on the part of anyone of them to allege and perhaps prove that his individual act did not cause death and that by his individual act he could not be held to have intended death---Everyone was to be taken to have intended probable and natural results of combination of acts in which he joined---Person not cognizant of intention of his companion to commit murder was not liable, though his companion indulged in unlawful act---Common intention implied acting in concert in pursuance of pre-arranged plan which was to be proved either from conduct or from circumstances or from incriminating facts---Words "in furtherance of common intention of all" had introduced as an essential part of S.34, P.P.C. the element of common intention prescribing conditions under which each person might be criminally liable when there were several actors---Common intention was an intention to commit crime actually committed and each accused person could be convicted of that crime, only if he had participated in that common intention---Similar intention was not to be confused with common intention and partition which divided "their bounds" was often very thin; nevertheless distinction was real and substantial and, if overlooked, the same was to result in miscarriage of justice---Common intention did not mean similar intention of several persons---To constitute common intention, it was necessary that intention of each one of the accused persons was known to the rest of them and shared by them.

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

----Ss. 33, 34, 35, 37 & 38----Act' andcriminal act'---Meaning---Term act' contemplated a series of acts done by several persons, some perhaps by one of those persons and some by another but all in pursuance of a common intention---Criminal act' meant unity of criminal behaviour which resulted in something for which an individual was to be punishable, if it were all done by himself alone in a criminal offence.

Dr. Babar Awan, Advocate Supreme Court for Appellant.

Ch. Munir Sadiq, Advocate Supreme Court for Respondent.

Date of hearing: 2nd January, 2006.

P L D 2007 Supreme Court 104

Present: Rana Bhagwandas, Nasir-ul-Mulk and Syed Jamshed Ali, JJ

ZAIGHAM-UR-REHMAN alias ZAIGI- Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.147 of 2001, decided on 13th September, 2006.

(On appeal against the judgment dated 18-10-2000 passed by Lahore High Court, Lahore in Murder Reference No.219 of 1994 and Criminal Appeal No.462 of 1994).

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

----Art. 185---Jurisdiction of Supreme Court under Art. 185 of the Constitution---Scope---Substituting concurrent findings---When two Courts, after due appraisal of evidence, came to concurrent conclusion as to guilt of accused, Supreme Court is not expected to substitute such findings of fact in proceedings under Art. 185 of the Constitution.

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

----S. 302(b)---Constitution of Pakistan (1973), Art. 185---Reappraisal of evidence---Mitigating circumstances---Confinement in death cell for six years---Delay in registration of F.I.R.---Sufficient cause---Sentence of death awarded by Trial Court was maintained by High Court---Plea raised by accused was that delay in registration of F.I.R. was unexplained and there were mitigating circumstances for reducing quantum of sentence, as accused had been confined in death cell for about six years---Validity---Lodging of F.I.R. could not be said to be delayed because attempt to save life of a person was rightly considered to be more important than to rush to police station particularly when real brother of deceased, who was complainant of the case, had to arrange 12 pints of blood, which must have consumed time and effort---Supreme Court did not see any mitigating circumstances as it was not a case of single injury or that the motive remained shrouded in mystery---Plea for mitigation was confinement of accused in death cell for about six years by itself did not constitute sufficient mitigating circumstances to overturn the normal penalty of death---Supreme Court declined to interfere in the conviction and sentence concurrently awarded by Trial Court and High Court---Appeal was dismissed.

Mehmood Rashid and others v. The State 2003 SCMR 581; Muhammad Ahsan alias Aksan v. The State PLD 2006 SC 163; Jawed Malik v. The State 2005 SCMR 49; Iftikhar Ahrnad v. The State 2005 SCMR 272 and Syed Hamid Mukhtar Shah v. Muhammad Azarn and 2 others 2005 SCMR 427 distinguished.

Muhammad Yar alias Kukoo v. The State 2004 SCMR 937; Maqbool Ahmad and others v. The State 1987 SCMR 1059; Sultan and others v. The State 1987 SCMR 1177 and State of U.P. v. Dharmendra Singh and others AIR 1999 SC 3789 rel.

Mian Aftab Farrukh, Senior Advocate Supreme Court for Appellant.

Sardar M. Latif Khan Khosa, Advocate-on-Record for the Complainant.

Dil M. Tarar, Advocate Supreme Court for the State.

Date of hearing: 13th September, 2006.

P L D 2007 Supreme Court 111

Present: Javed Iqbal, Muhammad Nawaz Abbasi and Hamid Ali Mirza, JJ

IFTIKHAR-UL-HASSAN---Appellant

Versus

ISRAR BASHIR and another---Respondents

Criminal Appeal No.130 of 2002, decided on 24th May, 2006.

(On appeal from the judgment dated 19-11-2001 passed by Lahore High Court Lahore in Criminal Appeal No.138 of 1997 and Murder Reference No.80 of 1997).

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

---Ss. 299, 203(b) & 308---Constitution of Pakistan (1973), Art.185(3)--Leave to appeal was granted by Supreme Court to consider and determine limited question as to quantum of sentence reduced by High Court from death penalty to imprisonment for 14 years.

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

---Ss. 302(b), 306, 307(c) & 308---Murder not liable to Qisas---Punishment---Principles---Cases in which offender is not liable to Qisas for the reasons given in S.306, P.P.C. or punishment of Qisas cannot be enforced under S.307, P.P.C., provision of S.308, P.P.C. is attracted but in cases in which punishment of death is awarded under S.302(b), P.P.C. as Tazir, the provision of S. 308, P.P.C. is not attracted.

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

----Ss. 299(k), 302(a), 302(b) & 304---Murder---Punishment of Qisas---Applicability---Right of Qisas means right of causing similar hurt on the same part of body and in case of death, the offender has to be done to death in the manner he committed death to his fellow person---Punishment of death as Qisas provided under S.302(a), P.P.C. cannot be awarded unless evidence in terms of S.304, P.P.C. is available---In case of Qatl-i-Amd in which punishment of Qisas cannot be awarded, the Court may on proving charge against offender, having regard to the facts and circumstances of the case, award him the punishment of death or life imprisonment as Tazir under S.302(b), P.P.C.

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

----S. 302(b) & 308---Qatl-i-Amd---Minor offender---Punishment as Tazir---Scope---Minor offender of Qatl-i-Amd may in case of punishment of Tazir, avail the benefit of minority in the matter of sentence under S.302(b) P.P.C. but cannot claim the benefit of S.308, P.P.C.

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

----Ss. 302(a), 302(b), 306, 307 & 308---Qatl-i-Amd---Punishment as Tazir and Qisas---Distinction---Only in cases of Qatl-i-Amd liable to Qisas under S.302 (a) P.P.C., provisions of Ss.306 and 308, P.P.C. are attracted and not in the cases in which sentence of Qatl-i-Amd has been awarded as Tazir under S.302(b), P.P.C.---Difference of punishment for Qatl-i-Amd as Qisas and Tazir provided under Ss. 302(a) and 302(b), P.P.C. respectively is that in a case of Qisas, Court has no discretion in the matter of sentence, whereas in case of Tazir, Court may award either of the sentence provided under S.302(b), P.P.C.---Exercise of such discretion in the case of sentence as Tazir depends upon the facts and circumstances of the case---Offender is absolved from sentence of death by way of Qisas if he was minor at the time of occurrence but in case in which Qisas is not enforceable, the Court in a case of Qatl-i-Amd, keeping in view the circumstances of the case may award the offender, the punishment of death or imprisonment for life by way of Tazir.

Ghulam Murtaza v. State 2004 SCMR 4; Faqir Ullah v. Khalil?uz-Zaman 1999 SCMR 2203; Muhammad Akram v. State 2003 SCMR 855 and Abdus Salam v. State 2000 SCMR 338 rel.

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

----Ss.302(b), 304, 306, 307 & 308---Qatl-i-Amd liable to Tazir---Minor age of accused---Misconception of law---Benefit of S.308 P.P.C.---Scope---Accused, in the present case, was convicted and awarded death sentence by Trial Court for committing Qatl-i-Amd---High Court applying benefit of S.308, P.P.C. converted death sentence into imprisonment for fourteen years, as accused was of less than eighteen years of age at the time of commission of offence---Validity---Accused did not bring on record any legal evidence to the satisfaction of law that at the time of occurrence, he was minor---In absence of evidence in terms of S.304, P.P.C. to bring the case within the ambit of S.302(a), P.P.C. for the purpose of punishment of Qisas, accused was awarded sentence of death by Trial Court under S.302(b), P.P.C. as Tazir---There was misconception of law that provision of S.308, P.P.C. was also applicable in cases in which punishment of death was awarded as Tazir---Correct legal position was that special provision of S.308, P.P.C. was invocable only in cases in which either offender was not liable to Qisas or Qisas was not enforceable, as such it was against spirit of law that in all cases of Qatl-i-Arvid, in which sentence of death was awarded either as Qisas under S.302(a), P.P.C. or as Tazir under S.302(b), P.P.C., offender who, at the time of committing of offence, was less than eighteen years of age would be liable to punishment provided under S.308 P.P.C., rather -true concept was that S.308 P.P.C. would operate only in cases which fall within the ambit of Ss.306 and 307 P.P.C., in which either offender was not liable to Qisas or Qisas was not enforceable---Supreme Court while maintaining conviction of accused awarded to accused by Trial Court under S.302 (b) P.P.C., and setting aside the judgment of High Court, awarded him sentence of life imprisonment under S.302(b), P.P.C:

1995 SCMR 1668; 1993 SCMR 219 and Sarfraz v. State 2000 SCMR 1758 ref.

Syed Ehtesham Qadir Shah, Advocate Supreme Court for Appellant.

Rana Mahmood Arif, Advocate Supreme Court for Respondent No.1.

Ch. Munir Sadiq, Advocate Supreme Court for Respondent No.2.

Date of hearing: 24th May, 2006.

P L D 2007 Supreme Court 121

Present: Javed Iqbal and Nasir-ul-Mulk, JJ

CAPITAL DEVELOPMENT AUTHORITY through Chairman---Appellant

Versus

Raja MUHAMMAD ZAMAN KHAN and another---Respondents

Civil Appeal No.1858 of 2003, decided on 2nd March, 2006.

(On appeal from order 27-2-2002 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Writ Petition No.2259 of 1997).

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

----Art. 32---Constitution of Pakistan (1973), Arts. 4 & 25---Contractual obligation---Complaint before Wafaqi Mohtasib for refund of security and escalation claim---Review of order passed by Wafaqi Mohtasib---Scope---Respondent-Contractor entered into a contact with petitioner (Capital Development Authority) for construction of flats which was rescinded by the latter on ground that the former had failed to execute contract within prescribed time---Petitioner-authority forfeited security amount deposited by respondent---Respondent filed complaint before Wafaqi Mohtasib for refund of security deposit and also for escalation claim---Wafaqi Mohtasib while partly accepting complaint on 7-9-1988 asked petitioner to consider respondent's claim as to refund of security claim but rejected prayer for escalation claim---Petitioner filed review petition against this finding before Wafaqi Mohtasib on 31-10-1988 which was dismissed---Second review petition filed by respondent was,- however, accepted by Wafaqi Mohtasib on 14-9-1994 and escalation claim was granted to respondent---Upon turning down of petitioner's representation by President of Pakistan, Wafaqi Mohtasib directed petitioner-Authority to implement his order dated 14-9-1994---Legality of order dated 14-9-1994 was assailed in Constitutional petition filed by petitioner before High Court, which was dismissed on technical ground as neither President of Pakistan nor Federation had been impleaded as party in the same---Petitioner called in question the finding of High Court on grounds; that High Court failed to appreciate questions of law agitated before it; that escalation claim of respondent had been rejected by Wafaqi Mohtasib which could not be granted subsequently as Wafaqi Mohtasib had no jurisdiction to entertain any review of the review; that Wafaqi Mohtasib had no jurisdiction to review his order as no such jurisdiction had been conferred upon him under Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983; that review order dated 14-9-1994 was void order and that no decision of the President was available on record of petitioner-Authority regarding order dated 14-9-1994---Petitioner-Authority further contended that it was not bound by order passed by Wafaqi Mohtasib as controversy between parties did not fall within jurisdictional domain of Wafaqi Mohtasib and that question decided by former Wafaqi Mohtasib was not to be reopened by succeeding Wafaqi Mohtasib---Respondent contended that it was petitioner-Authority who had invoked review jurisdiction of Wafaqi Mohtasib and since its review petition was rejected, only then the question of objection against review jurisdiction was raised by petitioner-Authority and that representation filed by petitioner-Authority before the President of Pakistan had been dismissed---Validity---Lawful course for petitioner was to have challenged original order dated 7-9-1988 passed by Wafaqi Mohtasib, instead of filing review---Representation made by petitioner to the President under Art.32 of Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 had been rejected as being barred by time---Representation under Art.32 of the said Order was to have been filed within prescribed time and after its rejection further action could have been initiated for redressal of petitioner's grievance---Petitioner had given categoric undertaking that order dated 14-9-1994 passed by Wafaqi' Mohtasib was to be implemented in letter and spirit---Respondent was meted out discrimination as in similar cases escalation had been granted to some other contractors---Different yardsticks could not have been used to award compensation and petitioner-Authority had no power to pass discriminatory orders in an arbitrary manner which aspect of the matter squarely fell within maladministration---Articles 4 & 25 of the Constitution, guaranteed equal protection and equal treatment of citizens similarly placed; it was to be mockery of law to direct either petitioner-Authority or respondent contractor to approach civil Court after expiry of about two decades---Petitioner was not to be allowed to take complete somersault in view of its undertaking given to contractor---Appeal was dismissed by the Supreme Court.

Ihsanullah Bajwa v. Chairman C & R 1991 MLD 1688 rel.

(b) Review---

----Scope---Right of review was a substantive right and was always a creation of relevant statute on the subject---Review jurisdiction could not have been conferred with consent of party as it was always conferred by statute---Assumption that review in appeal was a continuation of appeal was not correct and corollary drawn therefrom in favour of existence of a right of review on that score was also to fail---Theory of continuation of trial or proceedings was not conclusive of existence of a right to make previous judgment open for scrutiny whether by higher court in form of appeal or by same court in form of review---Theory of continuation of proceeding was to be of no avail if there was no statutory conferment of jurisdiction of review, like jurisdiction of appeals.

Hussain Bakhsh v. Settlement Commissioner Rawalpindi and others PLD 1970 SC 1 and Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94 rel.

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

----Art. 9---Contract Act (IX of 1872), S. 3(c)---Jurisdiction of Ombudsman---Scope and object---Maladministration---Rescission of contract---Obligation of Wafaqi Mohtasib was to undertake investigation into an allegation of maladministration on the part of any agency or any of its officers or employees---Under Art.2(2) of Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, maladministration included an act which was contrary to law, rules and regulations---Article 11 of the Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 enjoined upon Mohtasib to find out whether act complained against did or did not amount to maladministration and then to communicate his findings to concerned agency---No provision of the Order or any other law for the time being in force took a matter out of jurisdiction of Mohtasib only because the same related to contractual obligation---Even the President could not set aside findings and recommendations of Mohtasib on ground that same related to contractual dispute---Purpose of office of Mohtasib was to undo administrative excesses from within administration so that justice could be made available to wronged persons without knocking at the doors of Courts of law---Under Art.9 of the Order, wide powers had been conferred on Mohtasib and only matters which were kept out of his jurisdiction were matters which were sub judice before some Court or Tribunal of competent jurisdiction, or which related to external affairs of Pakistan or which were connected with defence of Pakistan---All other matters irrespective of fact whether they arose from contractual obligations or otherwise were well within powers of Ombudsman and complaint consequently was not to be thrown out only because a complained matter had emanated from contractual dispute.

C.D.A. v. Zahid Iqbal PLD 2004 SC 99 rel.

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

----Art. 185---Appeal to Supreme Court---Scope and extent---Supreme Court was to have full power to do full justice without fettering itself with any self-imposed restrictions which were no longer necessary in the context of changed circumstances.

Noora v. The State PLJ 1973 SC 150 rel.

M. Arif Chaudhry, Advocate Supreme Court for Appellant.

Abdul Rashid Awan, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondent No.1.

Date of hearing: 2nd March, 2006.

P L D 2007 Supreme Court 133

Present: Iftikhar Muhammad Chaudhry, C. J., Faqir Muhammad Khokhar and Mian Shakirullah Jan, JJ

Civil Appeals Nos. 2296 to 2412 of 2001

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance and others---Appellant

Versus

Haji MUHAMMAD SADIQ and others---Respondents

(On appeal from the judgment and order of High Court of Sindh, Karachi dated 22-12-2000 passed in C.Ps. Nos. 1216, 1452, 2287, 1454, 1471, 1969, 1795, 774, 1064, 693, 1517, 463, 1521/1993, 1545/92, 1092, 1514, 1841, 204, 3430, 932, 762, 3163, 1038, 3146, 775, 1541, 1290, 3186, 1160, 1735, 1468, 140, 2616, 1470, 805, 2818, 1456, 2136, 3514, 3147, 1063, 748, 1036, 506, 3167, 1518/93, 3164/92, 1513, 694, 2872, 224, 691/93, 225/94, 1379, 2471, 704, 1031/93, 186, 1342, 1371, 2873, 692, 1736, 3389, 1453, 1472, 2874, 1159/93, 3185/92, 804-D/93, 3165/92,. 275-D/93, 2617/93, 3166-D/92, 1457l'- , 1794-D/93, 690/93, 1116-D/93, 1281/93, 1694, 1333/93. D-22.6193, D-1098/94, D-1405/98, D-1372/94, D-1449/93, D-1494153, D 1519/93, D-1532/94, D-1951/93, D-1971/93, D-1796/93, D-3137/92, D-151/93, D-255/93, D-734/93, D-735/93, D-769/93, 934/93, 1099/94, 1143/93, 1189/95, 1217/93, 1372/94, 1386/93, 1794/93, 1970/93, 2193/93, 2194/93, 3098/93 and 3146/92).

Civil Appeals Nos.2707-2717 of 2001

INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN---Appellant

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance and others---Respondents

(On appeal from the judgment and order of High Court of Sindh, Karachi dated 22-12-2000 passed in C.Ps. Nos.D-148, 152, 727, 729, 736, 775, 1064, 1099, 1468, 1521 and 1541/1993).

Civil Appeal No.516 of 2002

INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN---Appellant

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance and others---Respondents

(On appeal from the judgment and order of High Court of Sindh at Karachi dated 30-10-2001 in C.P. No.D-2342/93).

Civil Appeal No.934 of 2002

ICC TEXTILE MILLS, LTD.---Appellant

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance and others---Respondents

(On appeal from the judgment and order of Lahore High Court Lahore dated 4-4-2002 passed in W.P. No. 9705).

Civil Appeals Nos.1087-1091 of 2004

Messrs PAK ELECTRON LTD. and others---Appellants

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance and others---Respondents

(On appeal from the judgment and order of the Lahore High Court, Lahore dated 4-4-2002 passed in W.Ps. Nos. 23072/96, 316-317/97 and dated 27-5-2004 in W.Ps. Nos. 21760 and 20642/1996).

Civil Appeals Nos.2254-2403 of 2005

Messrs FAISAL ASAD TEXTILE MILLS LTD and others---Appellants

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance and others---Respondents

(On appeal from the judgment and order of Lahore High Court, Lahore dated 4-4-2002 in W.Ps. Nos. 151/94, 1082/93, 3895/92, 12059/97, 743/93, 744/93, 795/93, 742/93, 918/96, 2512/97, 10691/95, 5686/96, 4915/95, 4919/95, 4917/95, 4918/95, 776/93, 4916/95, 121010/92, 12011/92, 685/93,'22007/92, 12139/92, 101/93, 11060/92, 102/93, 12091/92, 12014/92, 12092/92, 11059/92, 12013/92, 11061/92, 12008/92, 12012-92, 3730/96, 2063/96, 12143/92, 12141/02, 12142/02, 4599/94, 16565/96, 2293/97, 16567/96, 7601/97, 704/97, 703/97, 1851/93, 12445/92, 12450/92, 1770/98, 1357/93, 1580/93, 16520/95, 216522/95, 2918/93, 1046/93, 12665/96, 12768/96, 11238/97, 1267/96, 1263/96, 12674/96, 12676/96, 12695/96, 12696/96, 19120/01, 20059/96, 20060/96, 2901/93, 3309/93, 3513/97, 4073/97, 7039 to 7041/93, 2454/93, 2523/93, 2526-2530/93, 3995/93, 14284/93, 14285/93, 243/93, 436/93, 492/93, 2525/93, 2531/93, 5317/93, 11294/95, 1407/92, 13775/96, 3543/93, 509/93, 1083/93, 2524/93, 322/94, 989/93, 3000/94, 3001/94, 3004-3005/94, 13894/94, 8113/95, 8115/95, 8116/95, 8117/95, 987/93, 17214/96, 17215/96, 17218/96, 10057/97, 10045/97, 10061/97, 10063/97, 13179/96, 613/96, 12333/92, 10054/97, 2593/96, 611/96, 2594/96, 2592/96, 609/96, 2595/96, 606/96, 610/96, 605/96, 607/96, 4099/93, 10055/97, 12334/92, 10056/97, 612/97, 608/96, dated 20-8-2002 in W.P. No.3896/1992, dated 4-4-2002 in W. P. No. 2596/96, 1408/93, 5412/93, dated 24-9-2002 in W.P. No. 18702/2001, dated 4-4-2002 in W.Ps. Nos.1884/96, 20753/96, dated 18-6-2002 in W.P. No.319/93 and dated 4-4-2002 in W.P.No.7078/1993).

Civil Appeals Nos.2410-2423 of 2005

FEDERATION OF PAKISTAN and others---Appellants

Versus

GUL AHMAD TEXTILE MILLS LTD. and others---Respondents

(On appeal from the judgment and order of High Court of Sindh, Karachi passed in C.Ps. Nos. 462, 780, 2289/93, 2136/94, 841/93, 3139/92, 147/03, D-54/94, D-2190/93, D-254/93, D-2202/93, D-933/93, D-1331/93 and 1606-D/1993).

Civil Appeals Nos.2433-2436 of 2005

THE PAK PUNJAB MANUFACTURING COMPANY (PVT.) LTD. and others---Appellants

Versus

FEDERATION OF PAKISTAN and others---Respondents

(On appeal from the judgment and order of Lahore High Court, Lahore dated 4-4-2002 in W.Ps. Nos.17307, 17309, 17310 and 17314 of '1993).

Civil Appeals Nos. 2296 to 2412, 2707-2717 of 2001, 516, 934 of 2002, 1087-1091 of 2004, 2254-2403, 2410-2423, 2433--2436 of 2005, decided on 22nd February, 2006.

(a) Central Excise Act (I of 1944)---

----Ss. 2(20), 3 & First Sched. Part-II, Item 14.14---Excisable

Services---History stated.

(b) Central Excise Act (I of 1944)---

----Ss. 2(20), 3, 3-C(1)(b), 4(3), 7(1) & First Sched. Part-II, Item 14.14 [as inserted by S.5 of Finance Act (XII of 1991) and then replaced with Item No.9813.0000 by Finance Act (XII of 1994)]---Constitution of Pakistan (1973), Arts, 144, 163 & Fourth Sched.---Levy of excise duty on services provided or rendered to its customers by Institutions named in Item 14.14 of Part-II of First Sched. of Central Excise Act, 1944---Validity---Legislature was competent to levy excise duty on excisable services by inserting Item 14.14 in First Sched. of Central Excise Act, 1944---Such Item was part of the Central Excise Act, 1944 for purposes of charging duty on services in respect of advances made to any person---First Sched. was appended with Central Excise Act, 1944 to cater requirement of S.3 thereof being a charging section---Constitutionality of such Item, thus, could not be testified on touchstone of S.3 of Central Excise Act, 1944 for being constitutional---In case of irreconcilable inconsistency between such Item and S,3 of Central Excise Act, 1944, such Item would yield to section 3 thereof---Legal nexus between such Item and S.3 of the Act, existed for both being part of a statute---Word "services" used in plural sense in Column II of such Item would cover all services provided to its customers by Institutions named therein---Criteria or measure to calculate duty provided in Column II of such Item was neither vague nor ambiguous---Excise duty would be calculated on the volume of loan/advance at the rate specified in Column III of such Item---Such Institutions would have a recurring cause of action for purpose of effecting recovery of excise duty on services being provided on monthly basis on volume of advance/loan, which would be calculated on last working day of each calendar month---Expressions/ words used in S. 2(20) of Central Excise Act, 1944 and such item would be interpreted keeping in view their popular meanings---Words "facilities", "loans", "utilities" and "advances" would be considered in popular sense---Such Item did not speak in respect of Modaraba or Musharka etc., but after its replacement with Item No.9813.0000 by Finance Act, 1994, excise duty became chargeable on services provided or rendered by Banking Companies, Insurance Companies, Cooperative Financing Society, Modaraba, Musharka, Licensing Companies, Non-Banking Companies and other person dealing in such services---Levy of excise duty would depend upon services being provided in respect of advances to a person, but no sooner when there was no advance outstanding, Bank would not be deemed to be providing or rendering any service as transaction between Bank and customer came to an end---Financing Company would enjoy recurring cause of action till adjustment of loan---Day on which excisable service was rendered/provided would be the date for determination of excise duty---Rate of excise duty mentioned in Item 14.4 of First Schedule, Part II of the Central Excise Act, 1944 was just, proper and not arbitrary---Levy of excise duty at such rate being an indirect tax would not burden such Institutions, but would be passed oh to its customers---Principles.

South Behar Sugar Mills Ltd. v. Union of India AIR 1968 SC 922; Hirjina & Co. v. Islamic Republic of Pakistan 1993 SCMR 1342; Elahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582; Pakistan Industrial Development Corporation v. Pakistan 1992 SCMR 891; United Provinces v. Atiqa Begum AIR 1941 FC 16; Navinchaandra Mafatlal v. Commissioner of Income Tax [1954] (XVI) ITR 758; Bisvil Spinners v. Superintendent Central Excise PLD 1988 SC 370; Ghularn Hyder Shah v. Chief Land Commissioner 1983 CLC 1585; Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66; A&B Food Industries Ltd. v. Commissioner of Income/Sales Tax Karachi 1992 SCMR 663; Commissioner of Agricultural Income Tax East Bengal v. B.W.M. Abdul Rehman PLD 1973 SC 445; Excise and Taxation Officer Karachi v. Burma Shell Storage and Distribution Company of Pakistan 1993 SCMR 338; Mondi's Refreshment Room & Bar, Karachi v. Islamic Republic of Pakistan PLD 1983 Kar. 214; Sohail Jute Mills Ltd. and others v. Federation of Pakistan PLD 1991 SC 329; ICC Textiles Ltd. v. Federation of Pakistan 2003 PTD 1017; P. Kunhammad Kutty Haji v. Union of India [1989] 176 ITR 481; Ocean Industries Ltd. v. Industrial Development Bank PLD 1966 SC 738; Jamat-i-Islami Pakistan v. Federation of Pakistan PLD 2000 SC 111; Buxa Dooars Tea Company Ltd. v. State of West Bengal AIR 1989 SC 2015; Govind Saran Ganga Saran v. Commissioner of the Sales Tax (1985) 155 ITR 144; Commissioner of Sales Tax v. Hunza Central Asian Textile and Woolen Mills Ltd. 1999 PTD 1135; Reference No.2 of 2005 PLD 2005 SC 873; 2002 CLC 1714; Messrs Central Insurance Co. v. The Central Board of Revenue 1993 SCMR 1232; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Pakistan v. Public at large PLD 1987 SC 304 and Mrs. Zehra Begum v. Pakistan Burmah-shell Ltd. PLD 1984 SC 38 ref.

Abdul Rahim v. UBL PLD 1997 Kar. 62; Excise and Taxation Officer Karachi v. Burma Shell Storage and Distribution Company of Pakistan 1993 SCMR 338; Messrs Army Welfare Sugar Mills Ltd. v. Federation of Pakistan 1992 SCMR 1652; Chambers Concise Dictionary (pg. 53); Habib Bank Limited v. Messrs Farooq Compost Fertilizer Corporation Ltd. 1993 MLD 1571; Habib Bank Limited v. Messrs Qayyum Spinning Ltd. 2001 MLD 1351; Muhammad Shafi v. Wealth Tax Officer 1992 PTD 726 and Messrs ICC Textile Ltd. and others v. Federation of Pakistan and others 2001 SCMR 1208 rel.

(c) Islamic Banking---

----Islamic modes of financing, adoption of---Expressions "loan", "interest" etc., would be alien to Islamic Banking system.

(d) Words and phrases---

----"Service"---Meaning.

Advanced Law Lexicon 3rd Edition Volume 4 (2005) ref.

(e) Interpretation of statutes---

----Fiscal statute---Language used in fiscal statute would be interpreted in its literal and ordinary meanings in favour of taxpayer.

Government of Pakistan v. Messrs Haswani Hotel Ltd. PLD 1990 SC 68; Messrs Army Welfare Sugar Mills Ltd. v. Federation of Pakistan 1992 SCMR 1652; Messrs Bisvil Spinners Ltd. v. Superintendent Central Excise and Land Customs PLD 1988 SC 370 and Abdul Rahim v. United Bank Ltd. PLD 1997 Kar. 62 fol.

(f) Interpretation of statutes---

----Not safe to compare language in one statute with that employed in another, even though subject covered by the two may involve similarities.

Abdul Rahim v. UBL PLD 1997 Kar. 62 ref.

(g) Words and phrases----

---"Advances"---Meaning.

Words and Phrases Vo. 2-A (pg. 117) and Corpus Juris Secundum Vol. 2 page 496-97 ref.

(h) Interpretation of statutes---

----Law should be interpreted in such a manner, that same should be saved rather than destroyed.

Elahi Cotton Mills PLD 1997 SC 582 and Corpus Juris Secundum Vol. 2 pg. 496-97 rel.

(i) Interpretation of statutes---

----Schedule appended with statute---Legal status---Schedule placed/appended with an enactment is an extension of the section for the purpose of which same has been inserted.

(j) Interpretation of statutes---

----Act and Schedule, conflict between---Schedule being an enjoinder equal status of an enacment; in case of such conflict, Act would prevail and Schedule would yield to the Act---Principles.

Excise and Taxation Officer Karachi v. Burma Shell Storage and Distribution Company of Pakistan 1993 SCMR 338; Craies on Statute Law Seventh Edition 1971 ,p. 225; N.S. Bindra's The Interpretation of Statutes Seventh Edition at pg. 92 and Understanding Statutes S.M. Zafar rel.

(k) Interpretation of statutes---

----Fiscal statute, constitutional validity of---Determination---Principles stated.

The Court is bound while examining whether particular matter falls within a fiscal statute is required to examine the letter of the law, and if it comes to the conclusion that all the expressions used by the legislature are to be taken into consideration its popular meaning, then there should not be hesitation in maintaining the constitutionality of particular law.

?

Corpus Juris Secundum Vol. 84 page 246; Commissioner of Agricultural Income Tax East Bengal v. B.W.M. Abdul Rehman 1973 SCMR 445; Tenant v. Smith 1892 AC 150; Interpretation of Statutes Fourth Edition at page 977; Sohail Jute Mills Ltd. v. Federation of Pakistan PLD 1991 SC 329 and Mian Ejaz Shafi v. Federation of Pakistan and others PLD 1997 Kar. 604 ref.

(l) Interpretation of statutes---

----Laws relating to economical activities, interpretation of---Principles stated.

The Court while interpreting laws relating to economical activities view the same with greater latitude than the law relating to civil rights such as freedom of speech, religion etc., keeping in view the complexity of economic problems, which do not admit of solution through any doctrinaire or strait jacket formula.

Elahi Cotton Mills PLD 1997 SC 582 fol.

(m) Interpretation of statutes---

---Fiscal statute---Taxing measure---Ultra vires to the Constitution---Determination---Reasonableness or otherwise of such measure would be a matter of legislative policy and not for the Courts for adjudication.

Anoud Power Generation Ltd. v. Federation of Pakistan PLD 2001 SC 340 rel.

(n) Constitution of Pakistan (1973)----

---Arts. 25, 184, 185(3) & 199---Pakistan Citizenship Act (II of 1951), S.2---Constitutional petition by a Company challenging constitutionality of a statute on touchstone of Art. 25 of the Constitution---Not maintainable without joining its shareholder/director---Principles.

Undoubtedly, the companies have got fundamental rights to carry on business through its representatives, who are the citizens of Pakistan, but for the purpose of challenging the constitutionality of a statute, it would be a condition precedent to satisfy that challenge is by a citizen at the touchstone of Article 25 of the Constitution, which provides that all citizens are equal before the law and are entitled to protection of law. Expression "citizen" means a citizen of Pakistan as defined by law under Article 260 of the Constitution.

A company incorporated under the Companies Act, 1913 or the Companies Ordinance, 1984, does not fall within the definition of a citizen. However, the constitutionality of a legislation, which has impaired the rights of a company, can be challenged through a shareholder.

An incorporated company does not fall within the definition of citizen. However, constitutionality of a statute can be examined for violation of Article 25 of the Constitution, if the vires of the statute have been questioned by a shareholder, director along with the company itself and the company independently cannot question the constitutionality of legislation at the touchstone of Article 25 of the Constitution. The Courts are not debarred to examine the case of the company on the point other than the alleged violation of Article 25 of the Constitution.

The incorporated bodies/companies do not fall within the definition of a citizen for the purpose of Article 25 of the Constitution; therefore, without joining the share/account holders, the impugned legislation cannot be examined within the parameters of Article 25 of the Constitution.

It would be incorrect to contend that while examining the availability of the question of discrimination under Article 25 to an incorporated body, but so far as the petition under Article 199 of the Constitution is concerned, it would be maintainable on behalf of the companies/banking institutions, if they fall within the definition of a person as it has been used in Article 199 of the Constitution. It would not be out of context to lay down a distinction between the expression of a person and a citizen. As far as the expression "person" is concerned, it also includes a juristic person i.e. incorporated bodies, and so far as expression "citizen" is concerned as it has been employed in Article 25 of the Constitution, which means as defined under the law. Essentially the law on the subject is Pakistan Citizenship Act, 1951, which by its implication excludes a juristic person from the definition of citizen.

Divisional Forest Officer v. Bishwanath Tea Co. Ltd. AIR 1981 SC 1368; Excell Wear v. Union of India AIR 1979 SC 25; U.P.S.E. Board v. Hari Shanker AIR 1979 SC 65; I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041 and Inaam ur Rehman v. Federation of Pakistan 1992 SCMR 563 ref.

The Progress of Pakistan Co. Ltd. v. Registrar Joint Stock Companies Karachi PLD 1958 Lah. 887; Shelat v. Bhargava, G.K. Mitter AIR 1970 SC 564; Godhra Electric Company v. State of Gujarat AIR 1975 SC 32 and DC & GM Company v. Union of India AIR 1983 SC 937 rel.

(o) Administration of justice---

----Power of Court to maintain judgment other than on the grounds on which same was founded---Scope stated.

Courts can maintain the judgments other than on the grounds on which the same were founded. But if the plea is not available under the law to defend the judgment, then argument raised by him would not help him at all.

(p) Central Excise Act (1 of 1944)---

----S. 2(20), 3 & First Sched. Part-II, Item, 14.14 [as inserted by S. 5 of Finance Act (XII of 1991) and then replaced with Item No.9813.0000 by Finance Act (XII of 1994)]---Excise duty on excisable services---Status---Such tax being an indirect tax recoverable from a person to whom excisable services were provided or rendered---Duty of Financial Institution, Insurance Company, Cooperative Financial Society, other Lending Bank or Institution and other person dealing in advancing of loans to realize excise duty at prescribed rate from amount of advances outstanding against each borrower.

Messrs Central Insurance Co. v. The Central Board of Revenue 1993 SCMR 1232 ref.

(q) Interpretation of statutes---

---Retrospective effect---Scope---In absence of clear intention of legislature to apply provision of a statute with retrospective effect, same would be deemed applicable prospectively.

(r) Taxation---

---Rate of tax, fixation of---Acceptable consensus of taxpayers ordinarily preferred by Lawmakers---Principles.

The Lawgivers before imposing the tax ordinarily undertake an exercise during the process whereof the taxpayers are also examined and keeping in view their acceptable consensus the rate of tax is fixed. Besides at the same time, it becomes very difficult to quantify the excise tax, therefore, a reasonable/moderate rate of tax is fixed keeping in view the suggestion of the taxpayers and other persons who matter in this behalf.

Elahi Cotton Mills PLb 1997 SC 582 rel.

(s) Central Excise Act (I of 1944)---

----Ss. 2(20), 3, 3-C(1)(b), 4(3), 7(1) & First Sched. Part-II Item 14.14 [as inserted by S. 5 of Finance Act (XII of 1991)]---Excise duty on excisable services, imposition of---Estoppel against legislature---Scope---Legislature could not be estopped from promulgating a law to impose tax with a view to generate revenue---Principles.

Neither Banking Companies nor C.B.R. has imposed excise levy on excisable services, as it is evident from the contents of Finance Act, 1991. Similarly the Federation of Pakistan, who had legislated Item 14.14 of First Schedule Part-II is not a party to the agreement between .the persons dealing in advances of loans and the Bank. Therefore, the legislature cannot be estopped from promulgating a law for the purpose of imposing of the tax with a view to generate revenue keeping in view its growing requirement to generate funds to address burning problems of the day and the complex issues facing the people, which the legislature in its wisdom through legislation seeks to solve, therefore, there is no estoppel against the Federation to levy excise on the excisable services notwithstanding the contents of the agreement. The powers of the legislature to promulgate the law imposing excise duty or other duties cannot be curtailed.

Molasses Trading and Export (Pvt.) Ltd. v. Federation of Pakistan 1993 SCMR 1905 and Government of Pakistan v. Muhammad Ashraf PLD 1993 SC 176 rel.

Waseem Sajjad, Senior Advocate Supreme Court, and Mumtaz Sheikh, Member (Legal) C.B.R. for Appellants (in Civil Appeals Nos.2296 to 2412 of 2001).

Khalid Anwar, Senior Advocate Supreme Court with M.A. Zaidi and M.S. Khattak, Advocates-on-Record for Respondents (in C. As. Nes.2312, 2317, 2321, 2355, 2356, 2359, 2373, 2375, 2376, 2383, 2402 and 2406 of 2001).

Syed Ali Zafar, Advocate Supreme Court for Respondents (in C.A. No.2318 of 2001).

Fazal-e-Ghani, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondents (in C.As. Nos. 2325, 2331, 2376, 2402 and 2410 of 2001).

Muhammad Afzal Sandhu, Advocate Supreme Court for Respondents (in C.As. Nos. 2330 and 2366 of 2001).

Raja Haq Nawaz, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Respondents (in C.As. Nos. 2345, 2357, 2363, 2386 and 2405 of 2001).

Muhammad Farid, Advocate Supreme Court for Respondents (in C.A. No.2401 of 2001).

A.I. Chundrigarh, Advocate Supreme Court with A.S.K. Ghori, Advocate Supreme Court for Appellant (in C.As. Nos. 2707-2717 of 2001).

Waseem Sajjad, Senior Advocate Supreme Court with Raja Abdul Ghafoor, Advocate-on-Record (in Civil Appeals Nos. 2707 to 2717 of 2001) and Farogh Naseem, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Respondents (in C.A.2717 of 2001).

A.I. Chundrigarh, Advocate Supreme Court with A.S.K. Ghori, Advocate-on-Record for Appellant (in C.A. No. 516 of 2002).

Nemo for Respondents (in C.As. Nos. 516 of 2002).

Imtiaz Rasheed Siddiqui, Advocate Supreme Court with Sh. Salahuddin, Advocate-on-Record for Appellant (in C.A. No.934 of 2002).

A. Karim Malik, Senior Advocate Supreme Court and Ahmer Bilal Sufi, Advocate Supreme Court for Respondents (in C.A. No.934 of 2002).

Nemo for Appellant (in C.As. Nos. 1087-1091 of 2004)

Raja Muhammad Irshad, D.A.-G. with Raja Abdul Ghafoor, Advocate-on-Record for Respondents (in C.As. Nos. 1087 to 1091 of 2004).

Izhar-ul-Haq Advocate-Supreme-Court (in C. A No. 1091 of 2004).

Imtiaz Rasheed Siddiqui, Advocate Supreme Court with Sh. Salahuddin, Advocate-on-Record for Appellants (in C.As. Nos.2254-2256, 2260-2261, 2262, 227, 2287, 2290-2292,2297-2300, 2301, 2303, 2318-2322, 2327-2329, 2349, 2350 and 2395 of 2005).

Syed Ali Zafar, Advocate Supreme Court with Ch. Arshad Ali, Advocate-on-Record for Appellants (in C.As. Nos. 2257, 2288, 2289 and 2304-2308 of 2005).

Syed Najmul Hassan Kazmi, Advocate Supreme Court for Appellants (in C.As. Nos. 2258 and 2259 of 2005).

Ashtar Ausaf Ali, Advocate Supreme Court with Sh. Salahuddin, Advocate-on-Record for Appellants (in C.As. Nos. 2262, 2290-2292 and 2327-2329 of 2005).

Shahid Hamid, Senior Advocate Supreme Court for Appellants (in C.As. Nos. 2263-2265 of 2005).

Khawaja Muhammad Akram, Advocate Supreme Court for Appellants (in C.As. Nos. 2293-2296 and 2323 of 2005).

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Appellants (in C.As. Nos.2310-2317 and 2325-2326 of 2005).

Raja Muhammad Akram, Senior Advocate Supreme Court for Appellants (in C.As.Nos.2259, 2311, 2330-2338, 2340-2347, 2349, 2352, 2353, 2365, 2367-2369, 2375, 2376 and 2385-2388 of 2005).

Sh. Shahid Waheed, Advocate Supreme Court for Appellants (in C.As. Nos.2337-2339 of 2005).

Mian Abdul Rauf, Advocate Supreme Court for Appellants (in C.As. Nos. 2344 and 2352 of 2005).

Ch. Muhammad Anwar, Advocate Supreme Court for Appellants (in C.As. Nos. 2348, 2354 and 2364 of 2005).

Tariq Mehmood Khokhar, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Respondents (in C.A. No.2332 of 2005).

Waseem Sajjad, Senior Advocate Supreme Court and Mumtaz Sheikh, Member (Legal) C.B.R. for Appellants (C.As. Nos.2410-2423 of 2005).

Khalid Anwar, Senior Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Respondents (in C.As. Nos.2410 and 2412 of 2005).

Muhammad Azeem Malik, Advocate Supreme Court for Appellants (in C.As. Nos.2433 and 2434 of 2005).

Ch. Muhammad Anwar Khan, Advocate-on-Record for Appellants (in C.As. Nos. 2435-2436 of 2005).

M.S. Khattak, Advocate-on-Record for Respondents (in C.A. No.2433 of 2005).

Dates of hearing: 20th, 21st and 22nd February, 2006.

P L D 2007 Supreme Court 183

[Shariat Appellate Jurisdiction]

Present: Javed Iqbal, Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed, Dr. Allama Khalid Mehmud and Allama Rashid Ahmed Jullundhari, JJ

GUL NOOR and another---Petitioners

Versus

THE STATE---Respondent

Jail Petitions Nos.15(S) and 16(S) of 2003, decided on 30th October, 2006.

(On appeal from the order dated 27-11-2002) passed by the Federal Shariat Court, Islamabad, in Jail Criminal Appeals Nos. 26-Q and 27-Q of 2002).

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

----S. 11---Constitution of Pakistan (1973), Art. 203-F(2-B)---Reappraisal of evidence---Statement of prosecutrix---Corroboration---On the charge of abduction, Trial Court convicted and sentenced both the accused for life imprisonment---Federal Shariat Court maintained the conviction awarded by Trial Court but reduced the sentence to ten years--Plea raised by accused was that they could not be convicted on the basis of uncorroborated statement of prosecutrix---Validity---Held, there was no rule or practice that there must be corroboration in every case of the statement of prosecutrix in rape cases---Conviction of the accused for abduction and unnatural offence, was based on straightforward depositions of victim, her mother and her sister as also on medical evidence---Statement of abductee was in consonance with the confessional statements of accused persons---Accused failed to point out that the Courts below had not followed any principle of law while appreciating evidence on record and Supreme Court did not find any infirmity or illegality committed by the Courts below---Supreme Court, in circumstances, declined to interfere in the concurrent conclusions arrived at by the Courts below, while exercising powers under Art. 203-F(2-B) of the Constitution---Leave to appeal was refused.

Muhammad Abdul Khaliq's case PLD 1960 SC (Pak.) 325; Fazle Razaq v. Jan Sadiq and others 1985 SCMR 128; Abdul Khaliq v. The State 1986 SCMR 35; Mujahid Hussain v. The State 1984 SCMR 54 and Noora and another v. The State PLD 1973 SC 469 rel.

Fazal Karim Butt, Advocate Supreme Court for Petitioners.

Nemo for Respondent.

P L D 2007 Supreme Court 186

Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi, and Falak Sher, JJ

MUHAMMAD ZUBAIR and 12 others---Petitioners

Versus

MUHAMMAD SHARIF---Respondent

Civil Review Petition No. 105 of 2005, decided on 15th September, 2006.

(On appeal from the judgment dated 18-4-2005 passed by this Court in C.A.No.987 of 2002).

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

----Art. 72---Document---Proof---Satisfaction of a counsel---Validity---Satisfaction of counsel regarding authenticity or genuineness of a document is not sufficient to satisfy the requirement of law---Court must determine the factual position on the basis of legal evidence.

(b) Supreme Court Rules, 1980---

---O. XXVI---Constitution of Pakistan (1973), Art.188---Review of Supreme Court judgment---Scope of review is very limited and without pointing out a patent error of law or fact apparent on the record affecting the result, it is difficult to succeed in review.

(c) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----S. 2-A---Supreme Court Rules, 1980, O.XXVI---Constitution of Pakistan (1973), Art. 188---Review of Supreme Court judgment---Legal evidence---Unattested documents---Contention of petitioners was that proof of relationship was established through unattested copies of documents placed on file but were not the part of judicial record---Validity--- Existence of relationship between the parties was not proved through any reliable evidence to establish on record that petitioners fell in the line of succession of last male owner and widow was holding the status of limited owner---In absence of any evidence, no presumption could be raised regarding status of the widow as limited owner for the purpose of S.2-A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962---Female owner might or might not have a limited interest under custom, therefore, all female owners ipso facto could not be treated as limited owners---No exception could be taken to the verdicts given by civil court that the claim of petitioners was unfounded and the widow was a full owner---Petitioners without pointing out any substantial error in the judgment had tried to re-open the case on merits to convince Supreme Court that the concurrent findings of all the three Courts on a question of fact were suffering from inherent defects---Supreme Court declined to review the judgment---Petition was dismissed.

Gulzarin Kiani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.

Ibadur Rehman Lodhi, Advocate Supreme Court for Respondent.

Date of hearing: 15th September, 2006.

P L D 2007 Supreme Court 189

Present: Javed Iqbal, Nasir-ul-Mulk and Hamid Ali Mirza, JJ

Chaudhary MUNIR---Petitioner

Versus

Mst. SURRIYA and others---Respondents

Criminal Petition No.338 of 2005, decided on 18th May, 2006.

(On appeal from the order dated 25-7-2005 of the High Court of Sindh, Karachi, passed in Crl. M. No.94 of 2001).

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

---S. 561-A---Inherent jurisdiction of High Court---Scope---Power as conferred upon High Court under S.561-A, Cr.P.C. is required to be exercised in exceptional cases, where it is satisfied that continuation of proceedings complained of would amount to gross abuse of process of Court or that it is absolutely necessary to exercise inherent powers to secure the ends of justice---Such power being extraordinary in nature must be exercised sparingly with utmost care and caution and it should not be exercised in casual and cursory manner---Inherent jurisdiction as conferred upon High Court pursuant to the provisions as enumerated in S.561-A, Cr.P.C. is neither "alternative" nor "additional" in its character and is to be rarely invoked only in the interest of justice so as to seek redress of grievance for which no other procedure is available---Provision under S.561-A, Cr.P.C. should not be used to obstruct or divert the ordinary course of criminal procedure.

Jawaid Iqbal v. Muhammad Din 1990 SCMR 1309; Muhammad Hanif Pathan v. State PLD 1999 Kar. 121; Shoaib Ahmed Bokhari v. The State PLD 2001 Kar. 279; Muhammad Samiullah Khan v. State PLD 1963 SC 237; Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317; Niaz Ahmad v. Nisar Ahmad 1997 PCr.LJ 1588, Habibullah Qureshi v. Farooque 1996 MLD 92, Sher Hassan Khan v. Hidayatullah 1996 SCMR 1476; Muhammad Anwar v. Addl. Sessions Judge Okara 2002 YLR 43; Atta Muhammad v. Aziz Gul PLD 1990 Kar. 236; Khalida Rehman v. Muhammad Aqil PLD 1988 Kar. 85; Muhammad Ahsan v. State 1987 PCr.LJ 2434; Sardar Ali v. State PLD 1987 Lah. 633; Maqbool Rehman v. State 2002 SCMR 1076; Din Muhammad v. Muhammad Sharif PLD 1979 BJ 12; Raju v Emperor AIR 1928 Lah. 462; Emperor v. Sukh Dev AIR 1930 Lah. 465; Liaquat Ali v. Muhammad Aslam 1996 PCr.LJ 2036; Shamsul Qamar alias Sepoy v. State 1984 PCr.LJ 504; Mahmood Saeed v. Muir Nawaz Khan 1996 SCMR 839; Fazal Karim v. State 1986 SCMR 483 and Muhammad Sharif v. Muhammad Javed PLD 1976 SC 461 rel.

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

----S. 145---Prevention of breach of peace---Powers---Object and scope---Prime object of proceedings under S.145, Cr.P.C. is to prevent breach of peace and to maintain status quo till the controversy is decided by civil Court of competent jurisdiction---Purpose of proceedings under S.145, Cr.P.C. is to meet an emergent situation in order to maintain peace and further to enable parties to set the controversy at naught through civil Court regarding title or claim of property in dispute---It is mandatory requirement of S.145, Cr.P.C. that there must not only be a dispute but it is essential that a dispute is likely to cause breach of peace.

Fazal Haq v. Muhammad Latif PLD 1985 SC 294 rel.

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

----Ss. 145 & 561-A---Constitution of Pakistan (1973), Art. 185 (3)---Prevention of breach of peace---Pendency of civil suit---Inherent jurisdiction of High Court, invoking of---Petitioner invoked provisions of S.145, Cr.P.C. and recovered possession of property in question, from respondents---Lower Appellate Court, in exercise of revisional jurisdiction set aside the order passed by Trial Court and restored the possession to respondents---High Court, in exercise of its jurisdiction under S.561-A, Cr.P.C., maintained the order passed by Lower Appellate Court---Validity---There was no immediate apprehension of breach of peace---Had it been so no civil suit would have been filed a decade ago---Filing of civil suit was indicative of the fact that question of title was involved and there was no possibility of apprehension of breach of peace as no untoward incidents had taken place between the parties--Proceedings under S.145, Cr.P.C. were got initiated to pressurize respondents to hand over possession of premises in question to petitioner---Civil litigation being also pending and dispute related to title of property in question, the conclusion arrived at by High Court being well based did not warrant interference---Leave to appeal was refused.

Mahadeo Prasad v. Rain Saran AIR (32) 1945 Oudh 12; Muhammad Aril' v. Satramdas Sakhimal AIR 1936 Sind 143; Wazir Chand v. Rawel Chand AIR (34) 1947 Lahore 227; Gurditta v. Taja (AIR 1939 Lahore 108) and Saudi Mahto v. Sukhlal Mahto AIR 1934 Pat.33 distinguished.

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

----S. 145 (1)---Preliminary order under S.145(1), Cr.P.C., non-passing of---Effect---Ordinarily the provisions as contained in S.145, Cr.P.C. must be followed in letter and spirit but entire proceedings cannot be vitiated merely on the ground that there was some deviation from the procedure.

Dhaniram v. Kaliram AIR 1927 Lah. 805; Emperor v. Hira Lal AIR 1933 All. 96; Emperor v. Sis Rain AIR 1930 Lah. 895) and Muhammad Ishaq v. Nur Mahal Begum (PLD 1961 SC 426) rel.

Wasim Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioner.

S.M. Zafar, Senior Advocate Supreme Court for Respondents Nos. 1 to 6.

Ch. Muhammad Akram, Advocate-on-Record for the Complainant.

Date of heating: 18th May, 2006.

P L D 2007 Supreme Court 202

[Shariat Appellate Jurisdiction]

Present: Abdul Hameed Dogar, Muhammad Nawaz Abbasi, Mian Shakirullah Jan, Dr. Allama Khalid Mahmood and Dr. Rashid Ahmed Jullundhari, JJ

NAZEER alias WAZEER---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.53(S) of 2001, decided on 18th October, 2006.

(On appeal from the judgment of Federal Shariat Court, dated 8-2-2001 passed in Criminal Appeal No.128/I of 2000 with M.R.41/I of 2000).

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

----S.10(3)---Penal Code (XLV of 1860), Ss.302(b) & 201---Juvenile Justice System Ordinance (XXII of 2000), S.12---Oaths Act (X of 1873), S.5---Constitution of Pakistan (1973), Art. 203-F(2-B)---Leave to appeal was granted by Supreme Court to consider; whether Juvenile Justice System Ordinance, 2000 was applicable to the case; whether judicial confession made on oath could be used against the accused for sustaining death sentence; and whether such confession made on oath was admissible in evidence and could have been acted upon.

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

--Ss. 164 & 364---Oaths Act (X of 1873), S.5---Judicial confession---Administering of oath to accused---Scope---Contention that confessional statement recorded on oath, if causes no prejudice or injustice to accused is admissible in evidence---Validity---Provisions of Ss.164 and 364, Cr.P.C. invariably apply to all sorts of statements---Confessional statement recorded under S.164, Cr.P.C. on oath is violative of S.5 of Oaths Act, 1873, which prohibits administration of oath to accused person---Rule enacted in S.5 of Oaths Act, 1873, is based on the concept that law does not compel accused to make confession and he is under no obligation to speak the truth---If accused willingly and voluntarily makes a judicial confession, his statement is an evidence---Administration of oath or affirmation to accused is considered not based on public policy and is an illegality in law---Recording of judicial confession on oath is certainly prohibited under Oaths Act, 1873---If a Magistrate records statement of accused in the manner which is prohibited under the law, he may have committed illegality in exercise of jurisdiction but if confessional statement contained true statement of facts, it may not lose the status of evidence merely because of adopting of procedure for recording confession by Magistrate which is prohibited under law, unless it is shown that accused was misled and injustice was caused to him by adopting such procedure---Such procedural illegality would assume the character of irregularity which may not render the confession inadmissible.

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

----Art.17---Offences punishable as Hadd and Tazir---Proof---Clear distinction of standard of evidence exist for proof of offences punishable as Hadd and of offences punishable as of Tazir---Evidence to prove offence punishable, as Hadd must be in terms of Injunctions of Islam and for offence punishable as Tazir, proof can be in either form provided in Art.17 of Qanun-e-Shahadat, 1984.

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

----S. 164---Confessional statement---Islamic Law and English Law---Distinction---Concept of English Law that accused is not bound to speak truth, appears to be in conflict with the concept of truth in Islam that a person must speak truth and must not tell a lie---According to rule of evidence in Islamic Law, a confession made by accused before Court is presumed to be based .on truth and principle of English Law that a retracted judicial confession, if found confidence inspiring can be made basis of conviction, is based on the rule of evidence of Islamic Law that a judicial confession if is not retracted by maker, is sufficient evidence for punishment of offence as Hadd and if a person after making confession of his guilt before a competent Court, retracts from his confession at any subsequent stage, punishment of Hadd on the basis of such confession cannot be enforced but it is valid and legal evidence to sustain conviction of a person for such offence as Tazir---Rule of evidence of Islamic Law, envisages 'that real test to believe or disbelieve a confessional statement is not the method in which confession is recorded rather it is to be seen that what is stated in confessional statement is true and confession was made voluntary---Principle of English Law that accused while appearing before Court is not bound to speak truth, is not in consonance with the concept of criminal administration of justice in Islam, according to which a Muslim whether accused or witness, must speak truth and must not tell a lie in his statement recorded by judicial officer on oath or without oath.

Al-Jami-ul-Saghir by Imam Muhammad Bin Hassan Al-Sheebani Kitabul Quda p.318 ref.

(e) Criminal trial---

----Procedure---Object of procedure for conducting criminal proceedings is to enable Court to ensure fair trial and to do justice---If in a particular case, despite departure from the rule of procedure, justice has been done and order is found just and proper, which caused no prejudice and injustice to accused, there is no necessity to undo such order and set it aside for the mere reason that a wrong procedure has been adopted.

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

----S. 164---Confessional statement of accused on oath---Validity---Mere defect of recording such statement on oath and bare denial of accused in his statement under S.342, Cr.P.C. that confession was not voluntary, without raising specific objection that accused was not prepared to make confessional statement on oath or he did not like to confess his guilt if his statement would not have been recorded on oath, would not make the statement inadmissible.

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

----S. 164---Retracted judicial confession---Recording of such confession on oath---Effect---Notwithstanding procedural violation of recording confessional statement on oath, if Court finds that confession is true and voluntary and is satisfied that by such a procedural defect no prejudice was caused to accused and there was also no failure of justice, may on the basis of such retracted judicial confession, convict an accused.

Anwara Chowdhury v. M. Majid PLD 1964 SC 813 rel.

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

----Ss. 302(a) & 302(b)---Criminal Procedure Code (V of 1898), S.164---Qatl-e-Amd---Sentence---Retracted judicial confession---Accused, in a murder case, can be awarded sentence of death under S.302(a), P.P.C. as Qisas on the basis of judicial confession, if it is not subsequently retracted---In a case in which judicial confession is retracted, if the same is found true, voluntary and confidence-inspiring such confession can be considered sufficient evidence for conviction and sentence for murder as Tazir.

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

----S. 302(b)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)---Juvenile Justice System Ordinance (XXII of 2000), Ss.7 & 12---Reappraisal of evidence---Juvenile offender---Determination---Retracted judicial confession---Conviction on the basis of such confession---Accused after committing Zina bil Jabr with deceased girl caused her death by strangulation---On arrest, when accused was produced before Magistrate, he confessed his guilt but during trial he retracted from confession---Despite the fact that confession was retracted, Trial Court found it true, voluntary and confidence-inspiring thus convicted the accused and awarded him death penalty---Conviction and sentence awarded by Trial Court was maintained by Federal Shariat Court---Plea raised by accused was that he was a juvenile at the time of commission of offence thus capital punishment of death could not be awarded to him---Validity---Making of confession by accused, soon after his arrest would strongly suggest that confession was free and voluntary and was not obtained through inducement or coercion---Analysis of judicial confession of accused, in the light of medical evidence led to the conclusion that no other person, except accused was responsible for murder of deceased---Supreme Court declined to take any exception to concurrent findings of Trial Court and Federal Shariat Court, vis-a-vis guilt of accused---For the purpose of determination of age, birth certificate was considered authentic evidence and more reliable as compared to school leaving certificate---Prosecution did not bring on record any evidence in rebuttal challenging correctness of date of birth of accused given in his school certificate and Trial Court on the basis of oral assertion of prosecution that accused was major at the time of occurrence, raised presumption that accused was adult and disbelieved school leaving certificate on the ground that it was not a substantive evidence to determine the age---Trial Court also did not give any credence to the opinion of doctor and further Federal Shariat Court had not properly attended to the matter---Section 7 of Juvenile Justice System Ordinance, 2000 provided that for determination of age, medical report regarding age could also be considered---Supreme Court in the light of school leaving certificate of accused and medical evidence, according to which he was less than 18 years at the time of commission 'of offence, held that at the relevant time accused was a juvenile---Accused was sentenced to death under S.302 (b) P.P.C. as Tazir and as at the time of commission of offence, he was a juvenile, would get the benefit of Presidential Order dated 13-12-2001---Supreme Court maintained the conviction but converted death sentence into imprisonment for life.

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

----Ss. 2 & 12---Constitution of Pakistan (1973), Art.45---Presidential Order dated, 13-12-2001---Retrospective effect of Juvenile Justice System Ordinance, 2000---Occurrence had taken place before enactment of Juvenile Justice System Ordinance, 2000 and accused was also convicted and sentenced before the enactment---Plea raised by prosecution was that Juvenile Justice System Ordinance, 2000, having no retrospective effect, would not be applicable to the case of accused---Validity---President, in exercise of his powers under Art.45 of the Constitution, vide order dated 13-12-2001, commuted death sentence of condemned prisoners into life imprisonment, in the case decided prior to the enforcement of Juvenile Justice System Ordinance, 2000---Accused was entitled to such benefit extended under Presidential Order, dated 13-12-2001.

Muhammad Munir Peracha, Advocate Supreme Court for Appellant.

Ms. Nahida Mehboob Ellahi, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for the Complainant.

Ms. Afshan Ghazanfar, A.A.-G., Punjab for the State.

Date of hearing: 18th October, 2004.

P L D 2007 Supreme Court 217

Present: Javed Iqbal, Muhammad Nawaz Abbasi and Hamid Ali Mirza, JJ

MUHAMMAD YOUNIS and others---Appellants

Versus

ASHIQ HUSSAIN and others---Respondents

Criminal Appeals Nos. 158 of 2002 and 374 of 2003, decided on 3rd November, 2006.

(On appeal from the judgment dated 27-2-2002 passed by Lahore High Court, Lahore in Criminal Appeal No.155 of 1997 and M. Ref: No.290 of 1997).

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

----S. 302(b)/34---Constitution of Pakistan (1973), Art. 185 (3)---Leave to appeal was granted by Supreme Court to consider; whether High Court was justified to alter death sentences of accused into imprisonment for life on the ground when accused had committed preplanned murder at odd hours of night after trespassing into the house of deceased.

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

----Ss. 302(b)/34, 315 & 316---Reappraisal of evidence---Qatl Shibh-i-Amd and Qatl-i-Amd---Weapon of offence---Nature---Accused trespassed into the house of deceased at odd hours of night and caused lathi blows which resulted into his death---Trial Court convicted and awarded death sentence to accused but High Court converted the sentence into imprisonment for life---Plea raised by accused was that it was a case of Qatl Shibh-i-Amd and not Qatl-i-Amd --Validity---Supreme Court, in view of the factual position of scene of occurrence, declined to take any exception to concurrent findings of two Courts regarding guilt or accused---Case was not that of Qatl Shibh-i-Amd as accused trespassed into the house of deceased during night, caused him blows with lathis on sensitive parts of body knowing that the injuries might be fatal and cause death---Such act of accused squarely fell within the ambit of S.302(b), P.P.C. as Tazir---Intention to commit crime could be gathered from attending circumstances and all essential elements of committing intentional murder were traceable on record to bring the case within the purview of Qatl-i-Amd---Prosecution had been successful in proving charge against accused and they were rightly convicted under S.302(b), P.P.C.---Sentence of death was penalty in murder case and unless there had been a strong mitigating or extenuating circumstance, the Court was not supposed to withhold the normal penalty in its discretion---Accused who were real brothers, had been assigned collective role of causing injuries to deceased with Solis, which was an ordinary weapon---Deceased died in hospital after seven days or occurrence and it was also not ascertainable that which injury was individually fatal and who was responsible for causing such injury---Sentence of imprisonment for life awarded to accused called for no interference by Supreme Court---Leave to appeal was refused.

Sardar Muhammad Ishaq Khan, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Appellant (in Cr.A.No.158 of 2002).

Malik Rab Nawaz Noon, Advocate Supreme Court and Mahmood Ahmed Sheikh, Advocate Supreme Court for Respondents (in Cr. A. No.158 of 2002).

Malik Rab Nawaz Noon, Advocate Supreme Court and Muhammad Akram, Advocate-on-Record for Appellants (in Cr.A. No.374 of 2003).

Sardar Muhammad Ishaq Khan, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondents Nos. 1 and 2 (in Cr.A.No.374 of 2003).

Mahmood Ahmed Sheikh, Advocate Supreme Court for the State (in Cr.A.No.374 of 2003)

Date of hearing: 28th June, 2006.

P L D 2007 Supreme Court 223

Present: Abdul Hamid Dogar, Muhammad Nawaz Abbasi and Saiyed Saeed Ashhad, JJ

MUHAMMAD SULEMAN and 4 others---Petitioners

Versus

THE STATE---Respondent

Jail Petitions Nos. 48 and 85 of 2004, decided on 1st November, 2006.

(On appeal from the judgment of Lahore High Court, Lahore dated 18-10-2002 passed in Criminal Appeal No.1030 of 1998)

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

----Art. 150---Hostile/won over witness, evidence of---Rule of independent corroboration---Applicability---Testimony of hostile witness or a witness, who was not examined being won over was either produced by defence or was examined as Court witness, must not be left out of consideration for mere reason that he did not support prosecution rather evidence of such witness must be considered with utmost care and caution---Testimony of witness who speaks in different tune at different times is certainly not reliable unless strong confirmatory evidence of independent, character is available on record---Sole testimony of interested witness without independent corroboration may not be confidence inspiring to be relied upon for conviction---Rule of independent corroboration is a rule of abundant caution which is followed in the interest of safe criminal administration of justice and is not a mandatory rule of law to be necessarily applied in each case.

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

----Ss. 302(b)/324/109/392/34---Suppression of Terrorist Activities (Special Courts) Act (XV or 1975), S. 7---Reappraisal of evidence---Concurrent finding of guilt by two Courts---Double murder---Specific role of each accused---Minor discrepancies in evidence---Six accused were charged for causing murder of two persons---After conclusion of trial, all six accused were convicted and were awarded death sentence by Trial Court on two counts---Conviction and sentence awarded by Trial Court was maintained by High Court---Plea raised by accused was that different roles were attributed to different accused and there were discrepancies in statements of prosecution witnesses---Validity---Concurrent findings regarding guilt of accused arrived at by two Courts were based on sound principles of criminal administration of justice---Reliability of ocular account furnished by quite natural and truthful witnesses seeking corroboration from independent source was above board---Supreme Court did not find any lacuna in prosecution evidence to create a slight doubt regarding guilt of accused persons---Minor discrepancies and contradictions in statements of witnesses had no importance because guilt or innocence of a person was judged on the basis of overall circumstances of case and conclusion of evidence---Case of four accused was distinguishable from that of two accused who had been attributed specific role of causing fire arm injuries to two deceased which proved fatal to their lives---Supreme Court converted petition for leave to appeal into appeal and sentence of death awarded under S.302(b), P.P.C., to both the accused was maintained, whereas the sentence of remaining four accused was reduced from death to imprisonment for life---Appeal was allowed accordingly.

Sardar M. Latif Khan Khosa, Sh. Muhammad Siddique Khan, Advocates Supreme Court and Tanvir Ahmed, Advocate-on-Record (absent) for Petitioners (in both cases).

Aftab Farrukh, Senior Advocate Supreme Court for the Complainant (in both cases).

Dil Muhammad Tarar, Advocate Supreme Court for the State (in both cases).

Date of hearing: 16th February, 2006.

P L D 2007 Supreme Court 232

Present: Iftikhar Muhammad Chaudhry, C.J., and Muhammad Nawaz Abbasi, J

HUMAN RIGHTS CASE NO.5091 OF 2006:

(Complaint by Fazal Hussain): In the matter of

H.R.C. No.5091 of 2006, decided on 20th October, 2006.

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

----Ss. 5, 9 & Preamble---Constitution of Pakistan (1973), Art.184 (3)---Direct complaint to Supreme Court---Detenu, recovery of---Complainant filed direct complaint to Supreme Court for recovery of his relatives who were alleged to be detained by brick kiln owners, as bonded labour---On the direction of Supreme Court detenues were recovered by police and were produced before Supreme Court---Effect---Bonded Labour System (Abolition) Act, 1992, was promulgated on account of a judgment passed by the Supreme Court for the purpose of taking care of such class of labour who were detained some times along with their families for forcible labour, particularly at brick kilns---Culprits made an attempt to save their skin from criminal liability on different pretexts including the one that labourers were working voluntarily at brick kiln---Supreme Court had made breakthrough to effect the recovery of such class of labourers, who were detained by brick kiln owners on the pretext that they had entered into an agreement to work at brick kiln---Although Bonded Labour System (Abolition) Act, 1992, had been promulgated, yet in its terms it was not sufficient to cater the requirement---Supreme Court observed that to ensure application of fundamental rights of such class of labourers guaranteed by the Constitution, law must be more stringent, otherwise it would become difficult for law enforcing agencies as well as courts to effect recovery of detained persons and to punish delinquents adequately---Supreme Court recommended that law givers should review the provisions of law by incorporating provisions to cater for such requirements and directed the Provincial Governments to lodge campaign through agencies mentioned in S.9 of Bonded Labour System (Abolition) Act, 1992, keeping in view the observations noted by Supreme Court for ensuring implementation of law on the subject in letter and spirit to control the bonded labour in their respective Provinces---Detenues were set at liberty.

Darshan Masih alias Rehmatay and others v. The State PLD 1990 SC 513 ref.

Complainant in person.

Ch. Muhammad Hussain, Addl. A.G.(Pb.), Muhammad Tahir Ray, D.P.O. Muzaffargarh and Eighteen abducted persons (On Court Notice).

Abdul Sadiq, Advocate Supreme Court for Respondent.

P L D 2007 Supreme Court 237

[Shariat Appellate Jurisdiction]

Present; Justices Javed Iqbal, Chairman, Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed, Allama Khalid Mehmood and Dr. Rashid Ahmed Jullundhari, Members

INAYATULLAH---Petitioner

Versus

THE STATE---Respondent

Jail Petition No.37(S) of 2002, decided on 31st October, 2006.

(On appeal from the order dated 5-8-2002, passed by the Federal Shariat Court, Islamabad, in Cr.A.No.7-Q/2001, Criminal Revision No.3-Q/2001 and Cr.A.No.12-Q/2001).

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

----Ss. 302(b) & 396---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss.17(4) & 20---Constitution of Pakistan (1973), Art. 203-F(2-B)-Reappraisal, of evidence---Awarding of capital punishment as Tazir---Circumstantial evidence---Double murder---Accused entered into the house of deceased and opened fire, whereby deceased was murdered and his wife sustained injuries, who also died subsequently---On the basis of evidence collected during investigation, Trial Court convicted the accused and sentenced him to 10 years' imprisonment under S.396, P.P.C.--Federal Shariat Court set aside the conviction awarded by Trial Court under S.396, P.P.C. and awarded him death penalty as Tazir on two counts under S.302(b), P.P.C. read with S.20 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979---Plea raised by accused was that capital punishment could not be awarded on the basis of circumstantial evidence---Validity---Generally capital punishment could not be awarded to accused persons on the basis of circumstantial evidence, however, in the present case, if the pieces of circumstantial evidence collected during investigation were put in a juxtaposition, then they would bring the case in the area where accused was connected with the commission of offence coupled with the fact that prosecution witnesses were dis­interested---On the basis of such type of strong circumstantial evidence, accused was convicted by Trial Court under S.396, P.P.C. without adverting to the circumstances emerging on the basis of evidence on record and Federal Shariat Court was justified to set aside the conviction of accused under S.396, P.P.C. and was also justified to convict and sentence him under S.302(b), P.P.C. read with S.20 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979---Supreme Court did not find any illegality or infirmity in the conviction and sentence awarded by Federal Shariat Court---Leave to appeal was refused.

Jaffar Ali's case 1998 SCMR 2669 rel.

(b) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)---

----S. 24---Constitution of Pakistan (1973), Art.203-DD---Federal Shariat Court---Powers---In respect of cases arising under the provisions of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, in view of S.24 of the Ordinance, the provisions of Cr.P.C. are applicable mutatis mutandis---Federal Shariat Court can examine question of fact and law and can quash, confirm, modify or enhance sentence.

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

---Ss. 236, 237, 238 & 423---Disposal of appeal---Power of Appellate Court---Scope---Powers of Appellate Court to alter a conviction are very wide under S.423, Cr.P.C. but they are subject to the condition that altered conviction should not be such, which could not have been recorded by Trial Court---Appellate Court has all the powers to convict accused not charged in the Trial Court in view of Ss.236, 237, 238, Cr.P.C. read with S.423, Cr.P.C.

Begu's case 1925 ILR 6 Lahore 226 (PC); Wallu's case 1923 ILR 4 Lahore 373; Gauns's case 1926 ILR 7 Lahore 561; Nur Muhammad's case AIR 1945 PC 151; Amanat Ali's case (PLD 1950 Lahore 364 and Rama Swamy Nader's case PLD 1958 SC (India) 247 rel.

Arshad Ali Chaudhry, Advocate Supreme Court for Petitioner.

Mahmood Raza, Additional A.-G. Balochistan for the State.

P L D 2007 Supreme Court 243

Present: Iftikhar Muhammad Chaudhary, C.J., Abdul Hamid Dogar and Muhammad Nawaz Abbasi, JJ

NATIONAL ACCOUNTABILITY BUREAU and others---Petitioners

Versus

RAHEEL RASHID and others---Respondents

Civil Petition Nos. 2361 and 2450 of 2005, decided on 21st August, 2006.

(On appeal from the order dated 21-7-2005 of the Lahore High Court, Lahore passed in W.P. No.11855 of 2005).

National Accountability Ordinance (XVIII of 1999)---

----Ss. 18 & 31-D---Reference from Governor State Bank---Beneficiary of defaulted loan---National Accountability Bureau and Accountability Court---Jurisdiction---Initial reference from Governor State Bank was against four accused who obtained loan and wilfully defaulted---After investigation, National Accountability Bureau included two more accused in the reference being the beneficiaries or the defaulted amount, whose names were not included in the reference from Governor State Bank---Proceedings before Accountability Court, were assailed by one of the beneficiary accused, before High Court, on the ground that as his name was not included in the Reference of Governor State Bank, therefore, National Accountability Bureau as well as the Court did not have any jurisdiction to proceed against him---High Court, in exercise of constitutional jurisdiction allowed the. petition and released the beneficiary accused---Validity---Provision of S.31-D of National Accountability Ordinance, 1999, only related to imprudent loans, defaulted loans or rescheduled loans---Nothing was available on record from which it could be inferred that beneficiary accused conspired with loanee accused at the time of obtaining loan or alleged wilful default or that he acquired assets from the money received from defaulted company or its directors---High Court erred in law while holding that National Accountability Bureau or Accountability Court had no authority or power to proceed against the beneficiary accused without reference from Governor State Bank---Sanction under S.31-D of National Accountability Ordinance, 1999, was necessary only against loanee accused but beneficiary accused was not a direct loanee, therefore, sanction of Governor State Bank was not required---High Court also erred in holding that Accountability Court could not proceed against beneficiary accused unless a reference was made by Governor State Bank---Judgment of High Court to the extent of its jurisdiction was not sustainable in the eyes of law---Supreme Court converted petition for leave to appeal into appeal and set aside the judgment of High Court---Supreme Court directed Accountability Court to proceed with the matter against beneficiary accused, in accordance with law---Appeal was allowed.

Raja Muhammad Ibrahim Satti, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioner (in C.P.No.2361 of 2005).

Aitzaz Ahsan, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondent No.1 (in C.P.No.2361 of 2005).

Aitzaz Ahsan, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioner (in C.P.No.2450 of 2005).

Raja Muhammad Ibrahim Satti, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondent No.1 (in C.P. No.2450 of 2005).

P L D 2007 Supreme Court 249

[Shariat Appellate Jurisdiction]

Present: Javed Iqbal, Chairman, Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullandhari, Members

Dr. JAVAID AKHTAR---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.62(S) of 2005, decided on 2nd November, 2006.

(On appeal from the order dated 31-10-2005 passed by the Federal Shariat Court, Islamabad, in Criminal Appeal No.107/I of 2005).

(a) Criminal trial---

----Fact not cross-examined---Effect---When witness was not cross-examined by accused regarding a portion of examination-in-chief, such portion was admitted by the accused.

(b) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)---

----S. 17---Penal Code (XLV of 1860), S.392---Qanun-e-Shahadat (10 of 1984), Art. 22--Constitution of Pakistan (1973), Arts. 185(3) & 203-F(2-B)---Constitutional jurisdiction of Supreme Court---Scope---Re­appraisal of evidence---Identification parade---Administration of justice---Accused was convicted and sentenced to 8 years of imprisonment under S.392, P.P.C., which was maintained by Federal. Shariat Court---Instead of seeking leave under Art.203-F(2-B) of the Constitution, accused filed petition under Art. 185(3) of the Constitution---Contention of accused was that complainant did not identify him during identification parade---Validity---Identification parade was not a legal requirement---If eye-witnesses could identify the accused before Trial Court that was enough for conviction---Identification parade was immaterial if identification of accused was proved by other convincing evidence---Complainant and injured witnesses had no enmity with accused to involve him in a criminal case---Complainant being an educated lady did not exonerate real culprits and had not nominated innocent person just at the behest of police---Both the Courts below had reached concurrent conclusion after proper appreciation of evidence on record regarding the guilt of accused--Accused filed petition under Art. 185(3) of the Constitution, against judgment of Federal Shariat Court, which was not maintainable, as he had to file petition under Art.203-F(2-B) of the Constitution---Supreme Court re-examined the evidence on record, in the interest of justice and fair-play but did not find any illegality or infirmity in the judgment passed by Federal Shariat Court---Petition was dismissed.

Mst. Nur Jehan Begum v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300; Muhammad Afzal's case 1982 SCMR 129; Muhammad Khan v. Dost Muhammad PLD 1975 SC 607; Noor's case PLD 1973 SC 469; Mujahid Hussain's case 1984 SCMR 54; Abdul Kahlid's case 1986 SCMR 35 and Fazle Razaq's case 1985 SCMR 128 rel.

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

---S. 154---F.I.R. is not substantive piece of evidence.

Mokhas's case PLD 1958 SC 10 and Karam Ali's case 1968 SCMR 1025 rel.

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

---Art. 150---Evidence---Hostile witness---Court would be justified to ignore the statement of hostile witness.

Parit's case 47 Cr.LJ 232 and Habibullah's case PLD 1969 SC 127 rel.

Sanaullah Zahid, Advocate Supreme Court for Petitioner.

Nemo for the State.

P L D 2007 Supreme Court 255

Present: Rana Bhagwandas, Nasir-ul-Mulk and Syed Jamshed Ali, JJ

KARAM ELLAHI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.444 of 2001, decided on 28th September, 2006.

(On appeal from the judgment of Lahore High Court, Lahore dated 23-11-2000 passed in Criminal Appeal No.712 of 1990).

Per Rana Bhagwandas, J.; Nasirul Mulk, J. agreeing. [Majority view]--

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

----Art. 185 (2)---Supreme Court Rules, 1980, O.XXIII, R.8---Criminal appeal---Maintainability---Absence of accused---Fugitive from law---Accused was acquitted by Trial Court but High Court in exercise of appellate jurisdiction convicted and sentenced him to imprisonment for life---Accused did not surrender before High Court and filed direct appeal against conviction awarded by High Court---Validity---Held, it was a condition precedent for hearing of appeal by a convict against his conviction that he must surrender before the Court, unless his attendance had been dispensed with by the Court seized of the appeal---In absence of accused, without any legal justification or permission of Supreme Court, question of dispensing with attendance of accused would not arise---Accused being a convict by a competent Court of law becoming fugitive, even after filing of memo. of appeal through a counsel, had lost a right of hearing though his appeal might be maintainable before the Court, in view of the express command of Art. 185 (2) of the Constitution---Appeal was dismissed.

Hayat Balchsh v. State PLD 1981 SC 265; Chan Shah v. The Crown PLD 1956 FC 43; Gul Hassan v. State PLD 1969 SC 89; Mairaj Begum v. Ejaz Anwar PLD 1982 SC 294; Ali Ahmad Sabri v. State 1982 SCMR 818; Nazar Hussain v. State 1985 SCMR 614; Amir v. State PLD 2004 Quetta 16 and Slate v. Naseemur Rehman PLD 2005 SC 270 rel.

Per Syed Jamshed Ali, J. [Minority view]

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

---Art. 185(2)---Criminal appeal---Surrender of convict---Scope---When acquittal is overturned by High Court, appeal lies as of right under Art.185(2) of the Constitution---Such right of appeal is un-qualified and absolute, not conditioned with surrender of convict---When appeal lies as of right, there is a corresponding obligation for its decision and in-built therein is the right of hearing otherwise appeal as of right becomes perfunctory ritual.

(c) Supreme Court Rules, 1980---

---O. XXII & XXIII, R.8---Criminal appeal---Surrender of convict---Validity---According to O.XXIII, R.8 of Supreme Court Rules, 1980, convict has to surrender before his petition can be entertained but O.XXII of Supreme Court Rules, 1980, which deals with criminal appeals, does not contain any such provision which is an eloquent expression of the intention of rule making authority not to insist on the surrender of convict in case of appeal as of right.

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

---Art. 185(2)---Criminal appeal---Maintainability---Principle that fugitive from justice loses right of hearing appeal filed on his behalf through a counsel---Scope---Only basis of such principle is found in equity and is not role of law laid down in ease of appeal under Art.185(2) of the Constitution---Right guaranteed by Constitution cannot possibly be diluted by any subordinate principle of equity or even of law---Right conferred by the Constitution can only be taken away by the Constitution---In case the acquitted accused is convicted, the law should have its course, he should be arrested and sent to prison for undergoing sentence---Condition of personal attendance can be imposed while hearing a bail matter because that lies in the discretion of the Court.

Sheikh Zamir Hussain, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate Supreme Court for Appellant.

Chaudhry Munir Sadiq, Advocate Supreme Court for the State.

Date of hearing: 28th September, 2006.

P L D 2007 Supreme Court 262

Present: Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal, Abdul Hameed Dogar, Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi, Mian Shakirullah Jan, Tassaduq Hussain Jillani, Saiyed Saeed Arshad, Nasir-ul-Mulk, Ch. Ijaz Ahmed and Syed Jamshed Ali, JJ

MUNIR A. MALIK---Petitioner

Versus

Malik MUHAMMAD QAYYUM and others---Respondents

Civil Petition No.1003 of 2006, decided on 21st November, 2006.

On appeal from the order dated 8-11-2006 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in C.M.A. No.1 of 2006 in W.P. No.2801 of 2006).

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

----S. 13---Candidates for the Office of President, Supreme Court Bar Association Pakistan, did not accept election results---High Court in exercise of Constitutional jurisdiction suspended the interim order passed by Executive Committee of Pakistan Bar Council---Validity---Supreme Court after hearing both the sides and also taking into consideration the material available on record, was of the view that questions raised by both the sides were questions of fact and law which required adjudication in the first instance by a Tribunal of plenary jurisdiction---Supreme Court declared that both the orders i.e. order passed by Executive Committee of Pakistan Bar Council and order passed by the High Court were passed ex parte, whereas under the circumstances issuance of notice was necessary---No reasons tenable in law had been given which persuaded the two forums to pass such orders---Reliefs claimed in appeal before Pakistan Bar Council and in main petition before High Court, were granted vide interim orders, which was violative of the law regarding grant of interim injunctions---Appellant did not have any objection to setting aside order passed by Executive Committee, provided order passed by High Court was also annulled---Supreme Court converted petition for leave to appeal into appeal and set aside the orders passed by Executive Committee of Pakistan Bar Council and High Court---Supreme Court directed the Executive Committee of Pakistan Bar Council to dispose of the appeal expeditiously as far as possible within a period of two weeks and in the meantime both the candidates were restrained from claiming themselves to be the President of Supreme Court Bar Association of Pakistan---Appeal was allowed accordingly.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court assisted by Muhammad Afzal Siddiqui, Mian Gul Hassan Aurangzeb, Sikandar, Bashir Muhammad and Hamid Ahmad, Advocates and Mehr Khan Malik, Advocate-on-Record for Petitioner.

Raja Muhammad Ibrahim Satti, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondent No.1.

Muhammad Akram Sheikh, Senior Advocate Supreme Court assisted by M. Raheel Kamran Sheikh, Raza Muqsit Nawaz Khan, Advocates, A. Karim Malik, Senior Advocate Supreme Court, Hashmat Ali Habib, Advocate Supreme Court, Ch. Afrasiab Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.4.

Ch. Aitezaz Ahsan, Senior Advocate Supreme Court assisted by Barrister Gohar Ali Khan, Advocate and M.S. Khattak, Advocate-on-Record for Respondents Nos. 6 and 7.

Sahibzada Anwar Hameed, Advocate Supreme Court, Ahmad Awais, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record (absent) for Respondent No.8.

Nemo for Respondents Nos. 2, 3, 5 and 9.

P L D 2007 Supreme Court 266

Present: Rana Bhagwandas, Sardar Muhammad Raza Khan and Falak Sher, JJ

MUHAMMAD YOUSAF and others---Petitioners

Versus

THE STATE and others---Respondents

Criminal Petitions Nos. 433-L and 455-L of 2005, decided on 12th December, 2006.

(On appeal from a common judgment dated 7-7-2005 passed by the Lahore High Court, Lahore in Criminal Appeals Nos.219 and 222 of 2000 with Murder Reference No.91 of 2000).

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

----Ss. 302/148/149---Reappraisal of evidence---Case of two versions---Principles---Mere giving of a version by accused does not make a case of two versions unless that given by accused is also supported by evidence on record; for a case to be of two versions, it is necessary that prosecution evidence should be susceptible of being put to two parallel interpretations and it is only then, that court should prefer the version furnished by accused provided it rings plausible and fits in one of the interpretations.

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

----Ss. 302/148/149--Constitution of Pakistan (1973), Art. 185 (3)---Re­appraisal of evidence---Double murder---Aggressor party---Determination---Site plan---Accused committed murder of two real brothers over a dispute of a piece of land---Conviction and sentence of death awarded by Trial Court was maintained by High Court---Plea raised by accused was that they were not aggressors, rather it was complainant party who were the aggressors---Validity---One of the deceased was killed by spear blow inflicted by accused, which blow could not be caused unless assailant was close to the victim---Point where deceased was killed was located almost in the middle of the interior of house, which meant that he was killed by accused inside his own house---Other deceased who was also inside the house, wherefrom he rushed towards the former deceased to give him support but was fired at by other accused hitting him at a point which again was almost the centre of residential house of deceased---One could not have two opinions about who could be the aggressor in such circumstances---Prosecution had proved its case through ocular testimony duly supported by motive, post-mortem reports as well as recoveries---Accused, instead of resorting to civil court or initiating proceedings under S.145 Cr.P.C., took law into their own hands and committed two murders for the only reason that deceased party had made an opening in their own wall towards disputed Ihata---Evidence was rightly appreciated by two courts in succession, for which Supreme Court had no plausible reasons to differ with---No mitigating circumstances either were available to take lenient view of murder of two brothers---Leave to appeal was refused.

Nasim Sabir Ch. Advocate Supreme Court with Tanveer Ahmad, Advocate-on-Record for Petitioners (in Cr.P.No.433-L of 2005).

Noor Muhammad Khan Chandia, Advocate Supreme Court with Mehmood-ul-Islam, Advocate-on-Record for the Complainant (in Cr.P.No.433-L of 2005).

Shabbir Ahmed Lali, Deputy Prosecutor General, Punjab for the State (in Cr.P.No.431-L of 2005).

Noor Muhammad Khan Chandia, Advocate Supreme Court with Mehmood-ul-Islam, Advocate-on-Record for Petitioners (in Cr.P.No.455-L of 2005).

Nemo for Respondent Nos. 1-4 (in Cr.P.No.455-L of 2005).

Shabbir Ahmed Lali, Deputy Prosecutor General, Punjab for the State (in Cr.P.No.455-L of 2005).

Date of hearing: 12th December, 2006.

P L D 2007 Supreme Court 271

Present: Rana Rhagwandas, Nasir-ul-Mulk and Syed Jamshed Ali, JJ

HABIB ULLAH---Appellant/Petitioner

Versus

AZMAT ULLAH---Respondent

Civil Appeal No.58 of 2000 and Civil Petition No.167/L or 2000 decided on 8th November, 2006.

(On appeal from the judgment dated 11-11-1999 passed by Lahore High Court, Lahore in R.F.As. Nos. 188 and 562 of 1999).

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

----Ss. 12 & 39---Civil Procedure Code (V of 1908), O.XLI, Rr.23 & 25---Remand of case---Scope---Suit for cancellation of agreement to sell filed by appellant and suit for specific performance of agreement to sell filed by respondent were consolidated by Trial Court---Suit filed by appellant was dismissed while that of the respondent was decreed by Trial Court---High Court in exercise of appellate jurisdiction remanded the suit filed by respondent to Trial Court for decision on three issues---Validity---Remand of a case under O.XLI, R.23 C.P.C. could only be ordered, when Court from whose decree an appeal was preferred had disposed of the suit upon a preliminary point and the decree was reversed---Remand of case, under O.XLI, R.23, C.P.C. was justified, when Court considered re-trial of suit necessary---Appellate Court, under O.XLI, R.25 C.P.C., could retain file on its record and might remit the case to Trial Court for decision of issues not determined and returned the findings to Appellate Court---Remand of case should not be lightly ordered and if evidence on record was sufficient then Appellate Court should have decided the case itself---Courts administering justice had to bear in mind that an order of remand could re-open another chain of litigation, which not only entailed wastage of public time but also delayed disposal of cases, involved unnecessary expense of parties and such vices were seriously detrimental to the justice system---Judgment passed by High Court was set aside and case was remanded to High Court for recording findings on those three issues---Appeal was allowed.

Muhammad Dervaish Al-Gilani and 14 others v. Muhammad Sharif and others 1997 SCMR 524 rel.

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

----O. XLI, R.23---Remand order---Appeal against---Post remand decision---Effect---If in pursuance of order of remand, subordinate Court decides the case, appeal against order of remand does not become infructuous, which has to be decided on its own merits---Post remand decision is subject to final decision of pre-remand proceedings.

Radha Charam Sardar v. Haribor Mondal and others PLD 1962 Dacca 564 rel.

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

----S. 152 & O.XX, R.5---Judgment---Issue-wise finding---Principles---Judgment of a Court is to be in accord with the findings and in case of conflict, the same or Appellate Court has jurisdiction under S.152 C.P.C. and even under inherent powers to bring the operative directions of the judgment in accordance with the findings therein.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for appellant (in C.A.No.58 of 2000).

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for appellant (in C.A.No.167-L of 2000).

Nemo for Respondent (in both cases).

Date of hearing: 8th November, 2006.

P L D 2007 Supreme Court 277

Present; Iftikhar Muhammad Chaudhry, C.J., Abdul Hameed Dogar and Saiyed Saeed Ashhad, II

Rana MUHAMMAD TAJAMMAL HUSSAIN---Appellant

Versus

Rana SHAUKAT MAHMOOD---Respondent

Civil Appeals Nos.1417, 1418 and 1475 of 2006, decided on 14th September, 2006.

(On appeal from the judgment dated 4-8-2006 passed by Election Tribunal Punjab in E.Ps. Nos. 28 and 221 of 2002).

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

----S.12 (1)---Nomination for election-Object and scope---Theme of providing representation to electors of a constituency seems to be that they may choose their representatives to voice their rights and obligations in Parliament and Provincial Assemblies to achieve the object.

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

----S. 12(1)-Word "may" as used in Representation of the People Act, 1976---Connotation---Although law givers have used word "may" in S.12(1) of Representation of the People Act, 1976 but it does not mean that any other person who is not elector of the constituency would be qualified to propose or second a candidate for contesting election from that constituency---Word "may" employed in S.12(1) of Representation of the People Act, 1976, would not empower a candidate to put up himself as candidate in a constituency from where he could not procure two electors to propose and second him from contesting election from that constituency---Word "may" used in S.12(1) of Representation of the People Act, 1976, to achieve the object of law, is to be used as "shall" or "must".

Understanding Statutes by S.M. Zafar rel.

(c) Interpretation of statutes---

----Doctrine of telescoping or pragmatic construction---Applicability---Specific provision provided in an enactment has to be followed---When legislation is unambiguous, the doctrine of telescoping and doctrine of pragmatic construction and contemporaneous construction has to be avoided.

(d) Words and phrases---

----May---Connotation---Word "may" ordinarily denotes permission and not command---Where use of word "may" concerns public interest or affects rights of third persons, it is construed to mean, "must".

Crawford's Statutory Construction, Interpretation of law; Muhammad Saleh v. The Chief Settlement Commissioner, Lahore PLD 1972 SC 326; Fida Jan v. State 2001 SCMR 36 and Nasiruddin and others v. Sita Ram Agarwal AIR 2003 SC 1543 rel.

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

----Ss.12(1) & 14(1)(2)---Nomination for election---Proposing or seconding a candidate by an elector from different constituency---Validation of nomination papers subsequently---Appellant was a returned candidate, whose nomination was rejected by Election Tribunal for the reason that persons who proposed and seconded his nomination papers were not from the constituency concerned---Election Tribunal, while setting aside the election, directed the authorities to hold fresh elections---Plea raised by appellant was that as no such objection was raised at the time of filing of nomination papers, therefore, he could replace his proposer and seconder---Validity---Keeping in view the intention of Legislature the word "may" used in S.12 (1) of Representation of the People Act, 1976, had to be read as "shall"---As the word "may" could be interchanged with the word "shall", to enhance intention of the Legislature, candidate was bound and under mandatory obligation to ensure filing of nomination papers from the constituency duly proposed and seconded by the electors therefrom---Provision of S.12(1) of Representation of the People Act, 1976, being mandatory by its implication, the same was bound to be strictly followed and would have substantial effect on the election, for which schedule was to be announced---Any nomination paper found invalid could not be allowed to be validated afterwards, even in exercise of powers either by Returning Officer or Election Tribunal or for that matter High Court or Supreme Court, in terms of S.14(1) and (2) of Representation of the People Act, 1976---Powers of Returning Officer had been controlled for not rejecting nomination papers on any defect which was not of substantial nature, whereas defect in any submitted nomination papers, duly proposed and seconded by a candidate. was of substantial nature and provisions of Ss.12 and 14 of Representation of the People Act, 1976, were mandatory in nature---Conclusion drawn by Election Tribunal was unexceptionable, therefore, no interference was called for-Appeal was dismissed.

Re: Presidential Election 1974 AIR 1974 SC 1682; Lachmi Narain v. Union of India AIR 1976 SC 714; Ahmed Hassan v. Government of Punjab PLD 2004 SC 694; Dalchand v. Municipal Corporation Bhopal AIR 1983 SC 303; Muhammad Abbas v. Returning Officer 1993 MLD 2509; Qasir Iqbal v. Ch. Asad Raza 2002 YLR 2401; Asif Khan v. Returning Officer 2003 MLD 230; Mudassar Qayyum Nahra v. Election Tribunal 2003 MLD 1089; Amjad Aziz v. Har000n Akhtar Khan 2004 SCMR 1484 and Shaukat Ali v. District Returning Officer PLD 2006 SC 78 rel.

Ishaq Dar v. The Election Tribunal Punjab KLR 1998 Civil Cases 374 not approved.

Aitezaz Ahsan, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Appellant (in Civil Appeals Nos.1417, 1418 of 2006).

Ch. Bashir Ahmad, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record (absent) for Appellant (in Civil Appeal No.1475 of 2006).

Nemo for Respondents.

Date of hearing: 14th September, 2006.

P L D 2007 Supreme Court 287

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

ABDUL RASHEED through L.Rs. and others---Petitioners

Versus

MANZOOR AHMAD and others---Respondents

C.P.L.A. No. 1670 of 2005, decided on 15th January, 2007.

(On appeal from judgment of Lahore High Court, Bahawalpur Bench, Bahawalpur dated 21-2-2005 passed in Civil Revision No.270-D/ 1991 /BW P).

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

----Art. 185(3)---Petition for leave to appeal---Limitation---Office objection, removal of---Extension of time---Principle---Appeal was filed in office within a period of sixty days of impugned judgment---Merely because it was returned with objection for substitution by legible pages within a week's time and the same was filed in office within the given time, would not render the petition out of time---Office objection was rejected.

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

----Ss. 12 & 42---West Pakistan Land Revenue Act (XVII of 1967), S.39---Constitution of Pakistan (1973), Art. 185 (3)---Record of rights---Mutation---Proof of ownership---Correctness of mutation---Onus to prove---Plaintiffs claimed to be owners in possession of suit property on the basis of oral sale and relied upon longstanding entries in record of rights in their favour---Suit was decreed in favour of plaintiffs by Trial Court as well as by Lower Appellate Court but High Court in exercise of revisional jurisdiction set aside the judgments and decrees passed by two Courts below and dismissed the suit---Validity---Presumption of correctness attached to entries in record of rights by way of mutation was always rebuttable and open to correction---Mutation per se, was not a deed of title and was merely indicative of some previous oral sale between the parties---Whenever any mutation was challenged burden squarely lay upon beneficiaries of the mutation to prove not only the mutation but also the original transaction, which he was required to fall back upon---Plaintiffs having failed to independently prove transaction of sale of suit-land in their favour, High Court was perfectly justified in non-suiting them and upholding cancellation order recorded by Revenue Officer---Mutation entries in favour of plaintiffs by themselves did not confer any right or title upon them; in fact such entries were entered and sanctioned not for the purpose of record of title in the property and any entry founded on wrong mutation did not have any legal effect on the title to the property---Supreme Court declined to interfere with the judgment and decree passed by High Court---Leave to appeal was refused.

Ghulam Qadir v. Ahmad Yar PLD 1990 SC 1049; Mst. Walayat Jan v. Habibullah Khan 1992 MLD 751; Ghulam Rasool v. Chief Administrator of Auqaf PLD 1971 SC 376 and Abdul Ahad v. Roshan Din PLD 1979 SC 890 ref.

Muhammad Akram v. Altaf Ahmad PLD 2003 SC 688; Fida Hussain v. Murid Sakina 2004 SCMR 1043; Muhammad Hussain v. Wahid Bakhsh 2004 SCMR 1137; Muhammad Munir v. Muhammad Saleem 2004 SCMR 1530; Fida Hussain v. Abdul Aziz PLD 2005 SC 343; Arshad Khan v. Resham Jan 2005 SCMR 1859 and Muhammad Afzal v. Matloob Hussain PLD 2006 SC 84 rel.

Muhammad Jaffar Hashmi, Advocate Supreme Court and Mehr Khan Malik Advocate-on-Record for Petitioners.

Nemo for Respondents

Date of hearing: 15th January, 2007.

P L D 2007 Supreme Court 292

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan and Saiyed Saeed Ashhad, JJ

SAJJAD AHMAD RANA and others---Petitioners

Versus

Ms. LOUISE ANNE FAIRLEY and others---Respondents

Civil Petition No.1079 of 2006, decided on 18th January, 2007.

(On appeal from the judgment of the Lahore High Court Lahore dated 29-11-2006 passed in Writ Petition No.9730 of 2006).

Constitution of Pakistan (1973)---

----Art. 185(3)---Guardians and Wards Act (VIII of 1890), S.25---Petition for leave to appeal---Custody of minor---Welfare of minor---Partys' counsel, during course of arguments had agreed to dispose of the matter in terms of a compromise which they had reduced into writing under instructions of the parties---Supreme Court, in circumstances, converted the petition for leave to appeal into appeal and observed that Court would not like to enter into factual controversy and legal questions raised by both the counsel, which were essentially of very substantial nature, however, in some other appropriate case, the Court would pronounce an authoritative judgment thereupon and that Court had heard the case at length and could have disposed of on merits but it was considered in the interest of welfare of minor that matter should be settled between the parties amicably instead of encouraging litigation between the parties in respect of custody of the minor---Supreme Court, therefore, disposed of the case in the terms that the contents of the compromise/agreement shall be read as integral part of the judgment of Supreme Court; that as a consequence of compromise between the parties, the impugned judgment of High Court was set aside; resultantly, Constitutional petition filed by the mother of the minor before the High Court, was dismissed holding that any observation made therein in respect of the factual controversy or on the law point shall cease to have any effect and will not be quoted as precedent; that the mother shall be free to visit the minor and before travelling to Pakistan, she would intimate to the Registrar of Supreme Court about her travelling plan and stay in Lahore; that on receipt of such request, the Registrar shall work out the travelling expenditures in the Pound Sterling and father of the minor shall be directed to deposit the same with the Registrar within a period of ten days of the intimation by mother and on deposit of the amount, mother shall be duly intimated at the cost of the father; that the cost incurred by her in purchasing the tickets and staying in the Hotel shall be reimbursed to her against a valid receipt in Pakistan; that the father however, shall have no excuse for not depositing the amount or causing delay failing which he shall be dealt with for contempt of the order of Supreme Court and that as the mother is a foreigner, therefore, the Registrar shall also send a letter to the Provincial Inspector-General of Police for providing her full protection/security during her arrival, departure and stay in Pakistan and the I.-G.P. shall send a report of the measures so taken for her security to the Registrar of Supreme Court.

Malik Muhammad Qayyum, Dr. Rana M. Shamim, Shaukat Ali Mehr, Advocates Supreme Court, Arsand Ali, Chaudhry, Advocate-on-Record for Petitioners.

Ms. Naheeda Mehboob Elahi, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondent No.1.

Ch. Khadim Hussain Qaiser, Addl. A.-G. for Respondent No.2.

Nemo for Respondent No.3.

P L D 2007 Supreme Court 298

Present: Javed Iqbal and Abdul Hameed Dogar, JJ

ZONAL MANAGER, U.B.L. and another---Petitioners

Versus

Mst. PERVEEN AKHTAR---Respondent

Civil Petition No.3216-L of 2003, decided on 8th January, 2007.

(On appeal from the order dated 9-10-2003 of the Lahore High Court, Lahore passed in Writ Petition No.14095 of 2003).

Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Contractual obligations---Principles---Respondent being aggrieved of violation of terms and conditions of contract by bank, filed Constitutional petition before High Court, which was allowed---Plea raised by Bank was that High Court could not have exercised its jurisdiction under Art.199 of the Constitution, as the matter pertained to contractual obligations---Validity---Contractual rights and obligations had to be enforced through courts of ordinary jurisdiction---High Court in exercising its constitutional jurisdiction was loath to interfere in matters arising out of contractual obligations--Normal remedy at law was a suit for enforcement of contractual rights and obligations, High Court could not grant relief under Art.199 of the Constitution, merely for the purpose of enforcing contractual obligations, notwithstanding the very extensive nature of the power of High Court under Art.199 of the Constitution--Constitutional jurisdiction could be attracted, where rights have based on statute, law or rules framed thereunder or when obligation or duty vested in a public functionary or a statutory body, performing functions in relation to the affairs of Federation or a Province or a local authority---In such situations even contractual rights and obligations might be enforced in Constitutional jurisdiction, which was, however, subject to the important rider of corresponding absence of an adequate remedy---Supreme Court converted petition for leave to appeal into appeal, set aside the judgment passed by High Court and, remanded the case to High Court for decision afresh---Appeal was allowed.

Muzafaruddin v. Chief Settlement Commissioner 1968 SCMR 1136; Momin Motor Co. v. R.T.A. Dacca PLD 1962 SC 108; Muhammad Ramzan v. Secretary Local Government, Government of Punjab PLD 1987 Lah.262; Pakistan Mineral Development Corporation Ltd v. Pak. WAPDA PLD 1986 Quetta 181; Chandpur Mills Ltd. v. District Magistrate Tippera PLD 1958 SC 267; Chattar Singh v. State of Punjab AIR 1953 Punjab 239 and Raghavendra Singh v. State of Vindhya Pradesh (AIR (39) 1952 Vindhya Pradesh 13 rel.

Syed Sharif-ud-Din Pirzada, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 8th January, 2007.

P L D 2007 Supreme Court 302

Present: Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal, Abdul Hameed Dogar, Mian Shakirullah Jan and Saiyed Saeed Ashhad, JJ

Mian PIR MUHAMMAD and another---Appellants

Versus

FAQIR MUHAMMAD through L. Rs. and others---Respondents

Civil Appeals Nos. 1951 of 2000 and 1178 of 2005, decided on 12th December, 2006.

(On appeal from the judgments dated 13-5-1999 in C.R. No.342 of 1996 and dated 9-9-2003 in 324-D of 1997 of the Lahore High Court, Rawalpindi Bench, Rawalpindi).

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider; whether it was mandatory to disclose particulars and details of date, time and place of receiving information about sale and making Talb-i-Muwathibat and also names of witnesses in whose presence such Talb was made, in plaint, in a suit for possession by way of pre-emption; and whether High Court was legally competent and justified to set aside concurrent findings of fact recorded by trial Court and Lower Appellate Court to the effect that requirements of Talb-I-Muwathibat had been duly filfilled before the suit was instituted.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Right of pre-emption, exercise of---Procedure---Talb-i-Muwathibat and Talb-i-Ishhad---Proof---Non-mentioning of date, time and place of knowledge of sale and date of issue to notice of Talb-i-Ishhad in plaint---Effect---Held, it was necessary that as soon as pre-emptor acquired knowledge of sale of pre-empted property, he should make immediate demand for his desire and intention to assert his right of pre-emption without slightest loss of time---After making Talb-i-Muwathibat, in terms of S.13(2) of Punjab Pre-emption Act, 1991, pre-emptor had another legal obligation to perform i.e. making of Talb-i-Ishhad, as soon as possible after making Talb-i-Muwathibat but not later than two weeks from the date of knowledge of performing Talb-i-Muwathibat---To give full effect to the provisions of S.13(2) and (3) of Punjab Pre-emption Act, 1991, it would be mandatory to mention in plaint the date, place, and time of performance of Talb-i-Muwathibat because from such date the time provided by statute i.e. 14 days, could be calculated---If there was no mention of date, place and time of Talb-i-Muwathibat, then it would be very difficult to give effect fully to S.13(3) of Punjab Pre-emption Act, 1991, and there could be every possibility that instead of allowing letter of law to remain in force fully, pre-emptor might attempt to get a latitude by claiming any date of performance of Talb-i-Muwathibat in his statement in Court and then on the basis of the same try to justify the delay it any, occurring in performance of Talb-i-Ishhad---Performance of both Talbs successfully is sine qua non for getting a decree in pre-emption suit---Supreme Court approved the view that a plaint wherein date, place and time of Talb-i-Muwathibat and date of issuing notice of performance of Talb-i-Ishhad in terms of S.13 of Punjab Pre-emption Act, 1991, was not provided, it would be fatal for the pre-emption suit---Supreme Court remanded the case to High Court for decision afresh---Appeal was allowed---Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 and Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another 2000 SCMR 314 dissented from.

Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 and Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another 2000 SCMR 314 dissented from.

Haji Muhammad Salem v. Khuda Bakhsh PLD 2003 SC 315 and Fazal Subhan and 11 others v. Mst. Sahib'Jamala and others PLD 2005 SC 977 approved.

(c) Punjab Pre-emption Act (IX of 1991)---

----S. 13(2)---Talb-i-Muwathibat---Connotation---Talb-i-Muwathibat is a demand, which is known as jumping demand and is to performed immediately on coming to know of sale.

Black's Law Dictionary, 8th Edn. p.764; Webster Compre­hensive Dictionary Encyclopaedic Edn, p.631; Noor Khan v. Ghulam Qasim 2003 YLR 570; Muhammad Ali v. Allah Bakhsh 2004 CLC 1949; Rana Muhammad Tufail v. Munir Ahmed and another PLD 2001 SC 13; Mst. Sundri Bai v. Ghulam Hussain 1983 CLC 2441 and Mst. Kharia Bibi v. Mst. Zakia Begum and 2 others C.A.1618 of 2003) rel.

(d) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Civil Procedure Code (V of 1908), O.VI, R.5---Pre-emption suit---Pleadings---Mentioning of names of witnesses in plaint---Principles---Not necessary to mention names of witnesses in plaint because then it would be a departure from ordinary law of pleadings as Provided in O.VI, R.5, C.P.C.---Evidence is not required to be noted in Pleadings and only necessary details are to be furnished for the purpose of making out a prima facie case to establish that a cause of action has accrued for invoking jurisdiction of court for redressal of grievance.

Haji Nobr Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 and Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another 2000 SCMR 314 rel.

Ch. Afrasiab Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants (in Civil Appeal No.1951 of 2000).

Hafiz S.A. Rehman, Advocate Supreme Court for Respondents (in Civil Appeal No.1951 of 2000).

Abdul Rashid Awan, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Appellants (in Civil Appeal No.1178 of 2005).

Muhammad Munir Paracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondents (in Civil Appeal No.1178 of 2005).

Date of hearing: 12th December, 2006.

P L D 2007 Supreme Court 308

Present: Iftikhar Muhammad Chaudhry, C.J., Abdul Hameed Dogar and Saiyed Saeed Ashhad, JJ

COMMISSIONER OF INCOME TAX, KARACHI---Appellant

Versus

ABDUL GHANI---Respondent

Civil Appeals Nos. 991 and 992 of 2002, decided on 23rd May, 2006.

(On appeal from the judgment/order dated 24-10-2001 passed by High Court of Sindh in I.T.As. Nos.226 and 227 of 1999).

(a) Income Tax Ordinance (XXXI of 1979)---

----Ss. 56 & 65---Re-opening of assessment of previous years---Applying wrong provision of law---Effect---Assessing Officer had power to re-open assessment for previous assessment years, under S.65 of Income Tax Ordinance, 1979---Fact that Assessing officer, instead of issuing notice under S.65 issued notice under S.56 of Income Tax Ordinance, 1979, would neither invalidate the notice issued under S.56 of Income Tax Ordinance, 1979, nor would render assessments framed in pursuance of such notice as illegal and without jurisdiction.

(1998) 77 Tax 91 and Pakistan Fishries Ltd. v. United Bank Ltd. PLD 1993 SC 109 rel.

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

---Ss. 156---Rectification---Principles---Rectification under S.156 of Income Tax Ordinance, 1979, is permissible if error is apparent, obvious and floating on the surface of judgment and can be rectified without long drawn arguments and proceedings for appreciating facts and interpretation or application of any provision of law.

(c) Income Tax Ordinance (XXXI of 1979)---

---Ss. 56, 65 & 156---Re-opening of assessment---Applying wrong provision of law---Rectification of judgment---Assessing Officer re-opened assessment of previous assessment years and matter was finally decided by Income Tax Appellate Tribunal---After the judgment was announced by Tribunal, assessees sought rectification of the judgment on the ground that Assessing Officer issued notice under S.56 of Income Tax Ordinance, 1979, instead of S.65 thereof---Income Tax Appellate Tribunal, in exercise of powers under S.156 of Income Tax Ordinance, 1979 annulled the assessment and order of rectification was maintained by High Court---Validity---No error on the fact of judgment was identified in initial order of Tribunal, therefore, in absence of any error apparent on the record with regard to the judgment, Tribunal ought to have refused to exercise jurisdiction under S.156 of Income Tax Ordinance, 1979---In exercise of such jurisdiction only a mistake apparent on record could be rectified by Income Tax Appellate Tribunal but in fact Tribunal acted as appellate forum against its own order, which was not sustainable in law---High Court failed to apply correct law and dismissed the appeal without providing any legal justification---High Court also failed to appreciate that assessee by filing application under S.156 of Income Tax Ordinance, 1979, tried to circumvent law by avoiding to file appeal/reference before High Court against earlier order/judgment---High Court also lost sight of the fact that Tribunal under the law could not sit on its own judgment/order unless error apparent or floating on the surface of record could be pointed out---High Court while holding that no prejudice would be caused and in view of earlier judgments of Courts/Tribunals. assessees were entitled to benefit, had committed grave and serious error/mistake, which could not be sustained---Income Tax Appellate Tribunal exceeded its jurisdiction by rectifying its judgment being free from any error in terms of S.156 of Income Tax Ordinance, 1979---If at all assessees were aggrieved, they could have approached relevant forum, in accordance with law, Judgments passed by High Court and Income Tax Appellate Tribunal were set aside---Appeal was allowed.

Commissioner of Income Tax v. National Food Lab. 1992 SCMR 687 and Islamuddin v. Income Tax Officer 2000 PTD 306 and Baqar v, Muhammad Rafique 2003 SCMR 1401 fol.

Akhtar Ali Mehmood, Advocate Supreme Court and A.R. Akhtar, Advocate-on-Record for Appellant.

Nasrullah Awan, Advocate Supreme Court for Respondents.

Date of hearing: 23rd May, 2006.

P L D 2007 Supreme Court 315

Present: Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal, Abdul Hameed Dogar, Mian Shakirullah Jan and Saiyed Saeed Ashhad, JJ

GOVERNMENT OF PUNJAB, LAHORE---Petitioner

Versus

ABID HUSSAIN and others---Respondents

Civil Appeals Nos.66, 67 and 91 of 2003, along with Criminal Petitions Nos. 433-L/2002, 292-L/2003 and Criminal Appeal No.223 of 2003, decided on 14th December, 2006.

(On appeal from the judgment/order of Lahore High Court Lahore dated 13-8-2002 passed in Writ Petitions Nos.11242/2001, 6370/2002, dated 22-11-2002 in W.P. No.20432/2002, dated 25-5-2001 in Cr.Misc. 96-M/2001 in Cr.A. 737/96, dated 30-4-2003 in Cr.A. No.707/2003 and judgment/order of Peshawar High Court Peshawar dated 15-1-2002 passed in Jail Cr.A. 5 of 2001.)

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

----Ss. 331, 337-X & 337-Y---Constitution of Pakistan (1973), Art.184(3)---Vires of Ss.331, 337-X & 337-Y, P.P.C.---Sections 331, 337-X & 337-Y, P.P.C. are intra vires to the Constitution.

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

----Ss. 331, 337-X, 337-Y & 338-G---Constitution of Pakistan (1973), Art.184(3)---Constitutional petition under Art.184(3) of the Constitution---Supreme Court directed the Federal Government to frame Rules under S.338-G, P.P.C. to give effect to Ss.331, 337-X & 337-Y, P.P.C. providing mechanism for creating the funds for the purpose of making payment of Diyat, Arsh and Daman of the convicts, who, on account of their weak financial position were languishing in Jails for want of snaking the said payment, within a period of three months; possibility while framing the rules may also be examined as to whether out of the created funds, soft loans could be extended to the convicts enabling them to satisfy the claim of the legal heirs of the deceased or the victim: Government would also examine the possibility to provide jobs to the convicts, in other than the Government Departments through social organization or philanthropist, enabling them to disburse the amount of loan, if extended to them, rules should also provide that in appropriate cases trial Court may examine the question of release of such prisoners on parole, who after having served out the substantive sentence of imprisonment, if any, were confined in jails on account of non-payment of Diyat, Arsh and Daman; convicts who had already undergone substantive imprisonment but were in Jails all over the country due to non-payment of Diyat or Arsh, shall be released forthwith under Ss. 331(1) and 337-X, P.P.C. as an interim arrangement, subject to furnishing security to the satisfaction of the District and Sessions Judge concerned for a period of three years, enabling them to make the payment of Diyal and Arsh at their own resources in lump sum or in equal instalments, or taking loans from the funds created by the Government; similarly convicts who were in Jail only on account of non-payment of Diyat or Arsh, as no substantive imprisonment was awarded to them in accordance with law, shall also be released forthwith in the same manner, as noted herein above; in case a convict fails to pay the amount of Diyat and Arsh within the stipulated period, he shall be dealt with under Ss.331(2) and 337-X(2), P.P.C.; Federal Government shall also evolve a mechanism to ensure that the rights of the victims i.e., heirs of the deceased and the injured, for the purpose of Diyat, Arsh and Daman were equally protected by making specific provision in the rules; Federal Government shall also examine whether the period of three years under Ss.331 and 337-X, P.P.C. could be enlarged up to seven years and similarly in S.337-Y, P.P.C. relating to payment of daman, same provision will be incorporated as previously no such period was provided, perhaps on account of same omission---Such arrangement shall continue till the framing of the Rules by the Federal Government and thereafter the cases of such convicts shall be dealt with accordingly under the said Rules.

M. Hanif Khattana, Addl. A.-G. Punjab and Ms. Afshan Ghazanfar, A.A.-G. for Appellant/Petitioner (in Cr.As. Nos. 66-67 and Cr.P. No.433-L/2002).

Ms. Hafza Aziz, Advocate Supreme Court for Appellant (in C.A. No.91 of 2003).

M.D. Tahir, Advocate Supreme Court for Appellant (in Cr.P.No.292-L of 2003).

Syed Ali Hasan Gillani, Advocate Supreme Court for Appellant (in Cr.A.223 of 2003).

Nasir Saeed Sheikh, Deputy Attorney-General and Mansoor Ahmed, Secretary, LJ&PA for Respondents (in C.A. 91 of 2003).

Dr. Muhammad Aslam Khaki, Advocate Supreme Court: Amicus Curaie.

M. Bilal, Senior Advocate Supreme Court on behalf of A.G. (N.-W.F.P.).

Mehmood Raza, Addl. A.G., Balochistan for Government of Balochistan.

Ch. Muhammad Rafique Rajoorvi, Addl. A.-G. Sindh for the Government of Sindh.

Sheikh Riazul Haq, Advocate Supreme Court/Legal Advisor, Pakistan Baitul Mall.

Syed Mansoor Gardezi, Dy. Director (Legal) Pakistan Bailtul Mall.

P L D 2007 Supreme Court 319

Present: Faqir Muhammad Khokhar, Syed Jamshed Ali and Ghulam Rabbani, JJ

Haji MUHAMMAD ALI---Petitioner

Versus

MUHAMMAD AKRAM and others---Respondents

Civil Petitions Nos.2221-L & 2222-L of 2002, decided on 12th January, 2007.

(On appeal from order dated 9-4-2002 passed by the Lahore High Court, Lahore in C.R.Nos.137 and 121/1995).

Islamic Law---

----Gift---Doctrine of Mushaa---Applicability---Exceptions to rule of Mushaa---Scope---Deceased owner, during her life time, gifted suit land in favour of her daughter vide registered gift deed and mutation was also sanctioned---After the death of donee, a son of deceased donor from her second husband assailed the gift deed being illegal---Trial Court as well as Lower Appellate Court decreed the suit of the son of donor but High Court in exercise of revisional jurisdiction set aside the judgments and decrees passed by both the courts below---Plea raised by the son of deceased donor was that gift was invalid as the land was agricultural in nature and was divisible thus doctrine of Mushaa was not applicable---Validity---Gift of undivided share (Mushaa) in a property capable of division was irregular but not void---Such gift could be perfected and rendered valid by subsequent partition and delivery to donee of the share given to him and once possession was taken, gift become valid---Exceptions were there to the rule of Mushaa, firstly, where the gift was made by one co-heir to another and the other where gift was of a share in a Zamindari or Taluka---It was a gift by mother to a daughter, who was a legal heir and was entitled to inherit property of mother---Gift in joint holdings/Khata of agricultural land being divisible was of the share in a Zamindari and in a Taluka, therefore, gift was valid---High Court had rightly set aside the judgments and decrees passed by the Courts below and decreed the suit instituted by legal heirs of deceased donee---Judgment and decree passed by High Court was unexceptional warranting no interference of Supreme Court---Leave to appeal was refused.

Muhammadan Law by D.F. Mulla rel.

Mian Israr-ul-Haq, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record for Petitioner (in both petitions).

Saif-ul-Maluk, Advocate Supreme Court for Respondents (in both petitions).

P L D 2007 Supreme Court 323

Present: Mian Shakirullah Jan, Tassaduq Hussain Jillani, Nasir-ul-Mulk and Syed Jamshed Ali, JJ

Civil Appeal No.2206 of 2005 & 721 of 2006

PAKISTAN MEDICAL AND DENTAL COUNCIL---Appellant

Versus

ZIAUDDIN MEDICAL UNIVERSITY and others---Respondents

(On appeal from the orders dated 7-9-2006, 10-3-2006 of the High Court of Sindh, Karachi passed in C.P.D. No.371 of 2005 and C.P. D No.1664 of 2005, respectively.)

Criminal Appeal No.304 of 2003

Dr. SOHAIL KARIM HASHMI and others---Appellants

Versus

HEALERS EDUCATION SOCIETY and others---Respondents

(On appeal from the order dated 3-7-2003 of the Lahore High Court, Rawalpindi Bench, passed in Crl. Org. No.107-W of 2003).

Civil Petition No.459 of 2006

PAKISTAN MEDCIAL AND DENTAL COUNCIL---Appellant

Versus

FEDERATION OF PAKISTAN and others---Respondents

(On appeal from the order dated 25-5-2006 of the High Court of Sindh, Karachi, passed in C.P. D-619 of 2006).

Suo Motu Case No.8 of 2006

FRAUD BY A FAKE MEDICAL COLLEGE i.e. INDEPENDENT MEDCIAL AND DENTAL COLLEGE, FAISALABAD

Civil Appeal No.2206/2005, Civil Appeal No.721/2006, Criminal Appeal No.304/2003, Civil Petition No.459 of 2006 and Suo Motu Case No.8 of 2006, decided on 15th December, 2006).

(a) Medical Council Ordinance (XXXII of 1962)---

----Preamble---Medical Council---Object and scope---Objectives of Medical Council, under Medical Council Ordinance, 1962, are maintenance of uniform standard of Medical and Dental education (at graduate and postgraduate level); recommendations for recognition, de-recognition of medical qualifications, registration of doctors with recognized medical qualifications within the country or outside the country; registration of doctors possessing recognized medical qualification from within the country or from foreign countries and making arrangements with foreign countries for according reciprocal recognition to medical qualifications.?

(b) Medical Council Ordinance (XXXII of 1962)---

----Ss. 11, 20, 21, 22 & Preamble---Expression "recognition"---Scope---Although Medical Council Ordinance, 1962, does not expressly use expression of "recognition" of a training institution but a combined reading of Preamble, Ss.11, 20, 21 and 22 of Medical Council Ordinance, 1962, indicates that recognition accorded to a medical qualification in terms of S.11 of Medical Council Ordinance, 1962, entails recognition of the institution which is imparting training and granting medical qualification.?

Shafique Ahmed and others v. Government of Punjab and others PLD 2004 SC 168 and Ahmad Abdullah and 62 others v. Government of the Punjab and 3 others PLD 2003 Lah. 752 rel.

(c) Medical Council Ordinance (XXXII of 1962)---

----S. 11(2)-Expression "consultation"---Applicability---Consultation envisaged in S.11 (2) of Medical Council Ordinance, 1962, is not the "consultation" of a senior with junior in administrative hierarchy nor it is a "consultation" with a consultant of choice, rather it is "consultation" with a statutory body mandated under the law to carry out prescribed functions to achieve certain objectives---Statutory phraseology of consultation has to be understood and expounded in accord and consistent with law and to promote the objectives given in the context---Council being a body of medical and dental professionals, the "consultation", has to be purposive and meaningful---Opinion or advice rendered by the Council during consultative process may not be binding but Federal Government has to consider and give it a due weight; if it chooses to disagree or bypass the advice rendered, it has to give reasons in writing---Reasons should reflect an objective understanding of the issue and should be germane to the objectives enshrined in law---Consultation with the Council by Federal Government before an order under the provision of S.11(2) of Medical Council Ordinance, 1962, is passed, is reflective of the legislative intent which is twofold i.e. firstly that it is the Federal Government which has to pass an order conferring certain legal status to a medical qualification granted by an institution within or outside Pakistan and secondly an order by Federal Government should be preceded by consultation with the Council.?

(d) Medical Council Ordinance (XXXII of 1962)---

----Ss. 3(1) & 11---Right of representation---Principles---Pakistan Medical and Dental Council was aggrieved of the judgment passed by High Court wherein right of representation of private medical colleges in the Council was recognized---Plea raised by Pakistan Medical and Dental Council was that only those institutions and faculties of such medical Universities were entitled to be represented in the Council, which were imparting education and training for the grant of medial qualifications and had been accorded recognition by Federal Government in consultation with the Council---Further plea raised by the Council was that elections for the membership of the Council from amongst the medical faculties of universities and medical institutions had to be conducted by the Council---Validity---Only those universities were qualified for representation in the Council, whose degrees fell within the ambit of S.11 of Medical Council Ordinance, 1962---Universities established by law in Pakistan having medical faculties and medical institutions required prior recognition of their respective medical qualifications for getting representation in the Council---Supreme Court was seized of the affairs of a professional regulatory institution---Such institutions stood on a set of rules prescribing objective to be pursued, courses to be followed and a code of ethics to be honoured---Medical graduates would deliver, would be worthy of their noble calling and would be respected within and outside the country, only if they had passed through the rigorous course of study, abided by the parameters of academic discipline and code of professional ethics, which the Council had laid down---Above all the Council itself had an onerous duty to perform and a responsibility to shoulder---Institution would be made or marred partly by what it did to itself, to its mandate, to it's oath of its calling and to the law of which it was a creature---Supreme Court converted petition for leave to appeal into appeal, set aside the judgment passed by High Court and issued several directions.?

(e) Good governance---

----Society in transition witnesses two .parallel strains i.e. a process of institutional erosion and attempt by reformers/idealists to build institutions---Effort should be to strengthen the latter, because institutions play a vital role in civilizing people and in their onward march towards socio-economic and political progress---In the comity of nations the credibility and progress of a country is measured by the strength of its institutions---Nation which fails to respect the institutions falls in grace, decays, splits and is condemned in history---Society bereft of stable institutions would be at odds with itself.?

Seminal Wark "Institutional Change and Economic Performance by Prof. Dr. Douglass C. North rel.

M. Akram Sheikh, Senior Advocate Supreme Court assisted by Barrister Rahil Kamran Sh. and M.A. Zaidi, Advocate-on-Record for Appellants (in Civil Appeal No.2206 of 2005 and 721 of 2006).

Anwar Mansoor Khan, Advocate Supreme Court for Respondent No.1 (in Civil Appeal No.2206 of 2005 and 721 of 2006).

Tariq Mehmood, Senior Advocate Supreme Court for Respondent No.2 (in Civil Appeal No.2206 of 2005 and 721 of 2006).

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court assisted by Barrister Gohar Ali Khan for Respondent No.3 (in Civil Appeal No.2206 of 2005 and 721 of 2006).

Ms. Nahida Mehboob Elahi, D.A.G. and Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.4 (in Civil Appeal No.2206 of 2005 and 721 of 2006).

Anwar Mansoor Khan, Advocate Supreme Court, Tariq Mehmood, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondent Nos. 1 and 2 (In C.A.No.721 of 2006).

?

Ms. Nahida Mehboob Elahi, D.A.G. and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.3 (in Civil Appeal No.721 of 2006).

Mehr Khan Malik, Advocate-on-Record for Applicant (in Civil Appeal No.721 of 2006).

M. Bilal, Senior Advocate Supreme Court for Appellant (in Criminal Appeal No.304 of 2003)

M. Munir Peracha, Advocate Supreme Court, Mehr Khan Malik, and Ch. Akhtar Ali, Advocates-on-Record for Respondents (in Criminal Appeal No.304 of 2003)

M. Akram Sheikh, Senior Advocate Supreme Court assisted by Barrister Rahil Kamran Sh. M. A. Zaidi, Advocate-on-Record for Petitioner (in Civil Petition No.459 of 2006).

Anwar Mansoor Khan, Advocate Supreme Court, Raja Abdul Ghafoor and Ch. Akhtar Ali, Advocates-on-Record for Respondents No. l (in Civil Petition No.459 of 2006).

Malik Qamar Afzal, Advocate Supreme Court and Barrister Ch. M. Jameel, Advocate Supreme Court for Applicant (in Suo Motu Case No.8 of 2006).

Sohail Karim Hashmi (Secy. PMDC), Fazal Ahmed, President PMDC, Ms. Nahida Mehboob Elahi, DAG, Raja "Sneed Akram, Asstt. A.G., Punjab, Raja Abdul Ghafoor, Ch. Akhtar Ali and Ejaz Muhammad Khan, Advocates-on-record (On Court's call) (in Suo Motu Case No.8 of 2006).

Date of hearing: 28th November, 2006.

P L D 2007 Supreme Court 343

[Appellate Jurisdiction]

Present; Falak Sher and Raja Fayyaz Ahmad, JJ

FAZAL MEHDI and others---Appellants

Versus

ALLAH DITTA---Respondent

Civil Appeal No.1783 of 2001, decided on 27th September, 2006.

(On appeal from the judgment dated 1-6-2001 of the Lahore High Court, Lahore passed in C.R.No.3378 of 1994).

(a) Punjab Pre-emption Act (I of 1913)---

---S. 21---Civil Procedure Code (V of 1908), S.96(3), O.XXIII, R.3 & O.XLIII, R.1(m)---Consent decree---Effect---Trial Court allegedly recorded a consenting statement of vendee and decreed the suit in favour of pre-emptor---Judgment and decree passed by Trial Court was maintained by Lower Appellate Court as well as by High Court on the ground that appeal against consent decree was not maintainable, under S.96(3), C.P.C.---Plea raised by vendee was that consenting statement recorded by Trial Court was fake---Validity---Record was clear to the effect that no consent for passing of decree was made/given by vendee before Trial Court on any terms or as contained in the order sheet of Trial Court---Judgment and decree on the basis of fake consent was illegal and of no legal effect---Consent expressed and recorded by Trial Court was questioned and thus its validity made challengeable, therefore, the same was appealable, which appeal thus, to have been treated as an appeal under O.XLIII, R.1(m), C.P.C. and not a regular appeal filed under S.96, C.P.C.---High Court in exercise of revisional jurisdiction did not attend to the grounds urged in memo of appeal germane to the matter whereby the very consent was challenged---High Court also failed to take notice of the provisions of O.XLIII, R.1, C.P.C., by treating the same as a regular appeal against a consent decree and consequently found the same to have been hit under S.96(3), C.P.C., hence non-suited vendee, which conclusion and consequent dismissal of revision petition could not be sustained---Consent purportedly given by vendee on the basis of which the decree was passed on the same date by Trial Court was found to have not open given by vendee and his appointed counsel---Decree passed on such basis was therefore set aside---Appeal was allowed.

Government of N.-W.F.P. through Secretary, Law Department v. Malik Said Kamat Shah PLD 1986 SC 360; Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287; Major Abdul Lateef and another v. Land Acquisition Collector-IV, Terbela Dam and 2 others PLD 1990 SC 849; Umer Din and another v. Muhammad Sadiq Hussain and 15 others 1993 SCMR 1089 and Sarfraz v. Muhammad Aslam Khan and another 2001 SCMR 1062 ref.

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

----S. 2(2) & O.XXIII, R.3---Consent decree---Scope---Consent decree is not essentially a `decree' passed with the consent of parties given or expressed at the time the decree is passed but also includes a decree passed on the basis of an agreement/settlement/compromise recorded under O.XXIII, R.3, C.P.C.

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

----S. 96(3), O.XXIII, R.3 & O.XLIII, R.1(m)---Appeal from consent decree---Principles---Where a decree is passed under the provisions of O.XXIII, R.3, C.P.C., it should be essentially recorded as a consent decree and therefore, not appealable in view of the provision of S.96(3), C.P.C., being a consent decree---When recording of agreement, compromise or satisfaction has been questioned for being invalid or on ground that no such agreement, compromise or satisfaction was made or given, the same would be appealable under O.XLIII, R.1(m), C.P.C. and not an appeal against a decree passed on the basis of agreement, compromise or satisfaction.

Raja Muhammad Ibrahim Satti, Advocate Supreme Court, Dil Muhammad Tarrar, Advocate Supreme Court and Arshad Ali Ch. Advocate-on-Record for Appellants.

Muhammad Munir Paracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondent.

Dates of hearing: 26th and 27th September, 2006.

P L D 2007 Supreme Court 352

[Appellate Jurisdiction]

Present: Tassaduq Hussain Jillani and Syed Jamshed Ali, JJ

Civil Petition No.1229-L of 2005

ANJUMAN HIMAYAT-E-ISLAM, LAHORE---Petitioner

Versus

Dr. SYED FAROOQ HASSAN---Respondent

(Against the order/judgment dated 27-4-2005 of the Lahore High Court, Lahore passed in Civil Revision No.686 of 2000).

Civil Petition No.1017-L of 2005

Dr. SYED FAROOQ HASSAN---Petitioner

Versus

ANJUMAN HIMAYAT-E-ISLAM, LAHORE---Respondent

(Against the order/judgment dated 27-4-2005 of the Lahore High Court, Lahore passed in Civil Revision No.686 of 2000).

Civil Petitions Nos.1229-L and 1017-L of 2005, decided on 26th January, 2007.

(a) Mussalman Wakf Validating Act (VI of 1913)---

----S. 3---Muslim Wakf---Purport---Words "which in all other respects is in accordance with the provisions of Mussalman law" occurring in S.3, Mussalman Wakf Validating Act, 1913 do not refer to the law of inheritance but the law of wakfs as governed by Islamic law---Section 3(a), Mussalman Wakf Validating Act, 1913 allows a wakf by a Muslim for the maintenance and support wholly or partially of his family, children or descendants, and expression "family children and descendants" appearing in S.3(a) of the Act, does not mean the family or children or descendants as a class but means only some persons of a particular class---Under Islamic law a valid wakf can be created in favour only of some members of the family or some of the children or descendants, whether males or females and to the exclusion of others.

Keramat Ali v. Muhammad Yunus Haji PLD 1963 SC 191; Mst. Ghulam Bibi v. Sarsa Khan PLD 1985 SC 345; Mst. Zudeda Begum v. Wali Muhammad Khan 1974 SCMR 181; Syed Ali Asghar v. Creators (Builders) 2001 SCMR 279; Ghulam Nabi v. Sardar Nazir Ahmad 1985 SCMR 824; Abdul Hameed v. Muhammad Mohiyuuddin Siddique Raja PLD 1997 SC 730; Mst. Mubarak Jan v. Taj Begum's case AIR 1938 Lah. 452; 125 IC 33 and AIR 1928 All. 516 ref.

(b) Mussalman Wakf Validating Act (VI of 1913)---

----Ss. 2, 3 & 4---Wakf---Wakf-ul-aulad---"Aulad" in its meaning and import is not limited to the immediate offspring i.e. the children but can, with reference to its context, extend to descendants---Provisions of Mussalman Wakf Validating Act, 1913, more particularly sections 2, 3 and 4 of the Act are permissive in nature and permit a Muslim to create a waqf wherein the benefit and management of the property vests in the family/children and descendants of the Wakf till the extinction of the line of descendant, whereafter, the Wakf property may be used for charitable purposes, such is clear from the tenor of S.4 of the Act---When clear wording of the Wakf deed leads to an irresistible conclusion that upon the demise of the last mutawalli of the Wakf property,, the management of the said property would vest in a specified charitable institute and the benefits therefrom are to be used for the upkeep of Muslim orphans, the management and related benefits would vest in the said charitable institute on the demise of said last mutawali accordingly.?

Mst. Mubarak Jan v. Taj Begum's case AIR 1938 Lah. 452; 125 IC 33 and AIR 1928 All. 516 ref.

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

----S. 42---Mussalman Wakf Validating Act (VI of 1913), Ss.2, 3 & 4---Suit for declaration---Wakf property under tenancy---Suit for possession qua a building under tenancy need not have been filed---Suit for declaration that property in suit is wakf without relief for possession is not barred under S.42, Specific Relief Act, 1877---When it is found against the defendant that the property in suit is wakf, the person entitled to act as a mutawalli can obtain possession from the defendant and in case of any obstruction he can institute a suit for possession.

Gian Chand v. Bhagwan Singh AIR 1932 Lah. 97 and Mt. Khurshed Jahabn Begum v. Qamqam Ali AIR (34) 1947 Oudh 17 ref.

Shahid Hamid, Senior Advocate Supreme Court and Khawaja Ijaz Feroze, Advocate Supreme Court for Petitioner (in Civil Petition No.1229-L of 2005).

Nemo for Respondent (in Civil Petition No.1229-L of 2005).

Dr. Riaz-ul-Hassan Gilani, Senior Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Petitioner (in Civil Petition No.1017-L of 2005).

Shahid Hamid, Senior Advocate Supreme Court and Khawaja Ijaz Feroze, Advocate Supreme Court for Petitioner (in Civil Petition No.1017-L of 2005).

P L D 2007 Supreme Court 362

[Appellate Jurisdiction]

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan and Saiyed Saeed Ashhad, JJ

Malik UMAR ASLAM---Appellant

Versus

SUMERA MALIK and another---Respondents

Civil Appeal No.1716 of 2003, decided on 19th December, 2006.

(On appeal from the judgment/order dated 2-10-2003 passed by the Election Tribunal/Lahore High Court, Lahore in E.P. 101/2002).

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

----Ss. 63, 52(2), 54 & 55(3)---Civil Procedure Code (V of 1908), S.139, O.VI, Rr.15(1)(a) & 17---Oaths Act (X of 1873), S.6--Non-verification of election petition and its annexures on oath or solemn affirmation before person authorized to administer oath--Effect---Application seeking amendment to remove such defect in verification---Validity and scope---Ignorance of law would be no excuse---Such petition would be deemed not duly verified' on oath---While approaching Election Tribunal, petitioner would be bound to fulfil requirement of law including verification of petition in terms of S.55(3) of Representation of the People Act, 1976---Provision of S.55(3) of the Act for having prescribed a penalty of dismissal of petition for its non-compliance had become mandatory---Such defect in verification, whether pointed out by respondent or not, Tribunal would be bound to ensure compliance of such mandatory provisions---Where such amendment was sought during period of limitation prescribed for filing of election petition, then Election Tribunal could consider same according to settled principle relating to amendment in pleadings---Where such limitation period for its expiry had created a hurdle, then such amendment would not be allowed on condoning delay, particularly in absence of request to enlarge such period---Such amendment could not be regarded as an amendment essential to determine on merits real issues between parties---Principles.

Zafar Abbas v. Hassan Murtaza PLD 2005 SC 600; Iqbal Zafar Jhagra v. Khalil-ur-Rehman 2000 SCMR 250; S.M. Ayub v. Yousaf Shah PLD .1967 SC 486; Bhagwanji v. Alembic Chemical Works AIR 1948 PC 100 and Saeed Sehgal v. Khurshid Hasan PLD 1964 SC 598 rel.

Ghulam Bibi v.Sarsa Khan PLD 1985 SC 345 and Barkat Bibi v. Khushi Muhammad 1994 SCMR 2240 distinguished.

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

----S. 139, O.VI, R.15 & O.IX, R.6(1)(a)---Oaths Act (X of 1873), S.6---Non-verification of pleadings on oath or solemn affirmation before person authorized to administer oath---Effect---Such pleadings would be deemed not duly verified on oath---Court in such case could not proceed ex parte against opponent and pass decree without recording evidence---Principles.

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

----Ss. 62 & 63---Sections 62 & 63 of Representation of the People Act, 1976 are independent of each other.

(d) Administration of justice---

----Ignorance of law is-no excuse.

(e) Interpretation of statutes---

----Mandatory provision---Duty of Court---To ensure compliance of provisions of law, particularly where non-compliance of mandatory provisions prescribes a penalty---Principles.

Notwithstanding the fact that the defect has been pointed out by the respondent or not, the Court is always empowered to ensure that the law under which proceedings have been initiated before it stands fully complied with particularly in the cases where non-compliance of mandatory provision prescribes a penalty.

Malik Muhammad Qayyum, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellant.

Aftab Gul, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for Respondents.

Date of hearing: 8th December, 2006.

P L D 2007 Supreme Court 369

[Appellate Jurisdiction]

Present: Iftikhar Muhammad Chaudhry, C J, Muhammad Nawaz Abbasi and Saiyeed Saeed Ashhad, JJ

IMTIAZ AHMED LALI---Appellant

Versus

GHULAM MUHAMMAD LALI---Respondent

Civil Appeals Nos.1037 and 1097 of 2006, decided on 31st October, 2006.

(On appeal from the judgment/order dated 23-6-2006 passed by Election Tribunal Lahore High Court, Lahore in Election Petition No.107 of 2002).

(a) Interpretation of statutes---

----Intention of legislature---Scope---Courts, while interpreting a statute, are bound to follow intention of legislature and are prohibited to interpret law in the manner contrary to the intention of legislature.

Khadim. Hussain v. Additional District Judge, Faisalabad PLD 1990 SC 632; Abdur Rauf Khan v. Land Acquisition Collector/D.C. Abbottabad 1991 SCMR 2164 and Understanding Statute (Canons of Construction 2nd Edn. by S.M. Zafar rel.

(b) Conduct of General Elections Order (7 of 2002)---

----Art.8 D(2)(i)---Representation of the People Act (LXXXV of 1976), S.99(1a)(i) [as amended by Representation of the People (Amendment) Ordinance (XXXVI of 2002)]---Constitution of Pakistan (1973), Art.63 [as amended by Legal Framework Order, 2002 (Chief Executive's Order No.XXIV of 2002)]---Holding of elections---Candidates involved in misconduct and moral turpitude---Amendment in statute---Retrospectivity---Scope---Intention of legislature was abundantly clear that by amending the instrument meant for holding elections, object was to block passage for those candidates who were involved in misconduct or moral turpitude, as such to make the law in consonance with the Constitution---Amendment in Art.8D(2)(i) of Conduct of General Elections Order, 2002 was notified with effect from 6-11-2002, with retrospective effect---Intention of promulgating Art. 8 D(2)(i) of Conduct of General Elections Order, 2002, as amended, was not discriminatory as it would be applicable to all those candidates who were guilty of misconduct or moral turpitude, therefore, intention of legislature seemed to be to make it effective retrospectively with the object to produce such representatives, who were not guilty of misconduct or moral turpitude--Vide amendment on 6-11-2002, the provisions of Art. 8 D(2)(i) of Conduct of General Elections Order, 2002, had been made in consonance with the provisions of the Constitution.

Pakistan Muslim League (Q) v. Chief executive of Islamic Republic of Pakistan PLD 2002 SC 994 rel.

(c) Interpretation of statutes---

----Retrospective effect---Principle---Legislature is empowered to promulgate law with retrospective effect---To give retrospective effect to a particular law is a phenomena, which is not alien to the power of legislation.

Amin Ullah v. Pannu Ram PLD 1967 SC 289 and Muhammad Hussain v. Muhammad 2000 SCMR 367 rel.

(d) Legislation---

----Subordinate legislation cannot go contrary to the constitutional provisions.

(e) Conduct of General Elections Order (7 of 2002)---

----Art.8 D(2)(i)---Representation of the People Act (LXXXV of 1976), Ss.67(3) & 99 (1a)(i) [as amended by Representation of the People (Amendment) Ordinance (XXXVI of 2002)]---Punjab Police (Efficiency and Discipline) Rules, 1975, Rr.2 (iii) & 4(2)(a)---Constitution of Pakistan (1973), Art.63 [as amended by Legal Framework Order, 2002 (Chief Executive's Order No.24 of 2002)]---Holding of elections---Candidate involved in misconduct and moral turpitude---Lifetime disqualification---Appellant contested election for Member of Provincial Assembly and was declared successful---Election petition was filed against appellant on the ground that he was dismissed from police on the allegation of misconduct/moral turpitude---Election Tribunal allowed the petition, set aside the election and directed to hold fresh elections---Plea raised by appellant was that habitual absence from duty would not constitute misconduct involving moral turpitude and he could not be disqualified for lifetime---Validity---Appellant being employee of Police Department was subject to disciplinary action under Punjab Police (Efficiency and Discipline) Rules, 1975, therefore, definition of `misconduct' under the Rules would be applied---Appellant himself had earned permanent disqualification because he was disqualified even for a petty government service according to law, therefore, for such permanent disqualification, he could not be allowed to become member of a sovereign body of Parliament or Provincial Assembly---With such intention Art. 63 of the Constitution, S.99 of Representation of the People Act, 1976, as well as Art.8D of Conduct of General Elections Order, 2002, were amended in order to block passage of persons, who were guilty of misconduct or involved in moral turpitude---Appellant could not be considered or deemed to be qualified to contest elections in view of his dismissal from service on the ground of misconduct:-Disqualification attached to candidature of appellant was self acquired because his conduct as member of the force was prejudicial to good order or discipline of the force---Dismissal from service under R.4 (2)(a) of Punjab Police (Efficiency and Discipline) Rules, 1975, disqualified him for future employment and such lifetime disqualification could not be removed by afflux of time---Supreme Court declined to interfere with the judgment passed by Election Tribunal---Appeal was dismissed.

Arsalan Hafeez v. Election Tribunal PLD 2003 SC 355; Samiullah Khan Marwat v. Government of Pakistan 2003 SCMR 1140 and Muhammad Farooq v. I.-G. Police 1998 SCMR 477 ref.

(f) Conduct of General Elections Order (7 of 2002)----

---Art.8D(2)(i)---Representation of People Act (LXXXV of 1976), Ss.67(3) & 99(1a)(i) 'as amended by Representation of the People (Amendment) Ordinance (XXXVI of 2002)]---Constitution of Pakistan 200n (1973), Art.63 [as amended by Legal Framework Order, (Chief Executive's Order No.24 of 2002)]---Election dispute-Re­election-Principle of throw away vote---Applicability---Notorious disqualification---Nomination papers of appellant were rejected by Returning Officer on the ground that he was dismissed from service on the allegation of misconduct/moral turpitude---Order of Returning Officer was set aside by High Court in exercise of constitutional jurisdiction---Appellant contested election for Member of Provincial Assembly and was declared. successful but Election Tribunal set aside the election and directed to hold fresh elections---Plea raised by respondent was that on account of notorious disqualification of appellant and without applying doctrine of throw away votes, he be notified as successful candidate---Validity---Before amendment in Art. 8D(2)(i) of Conduct of General Elections Order, 2002, disqualification of appellant was not notorious particularly in view of the judgment of High Court pronounced in his favour, declaring him to be a qualified candidate---Supreme Court declined the plea raised by respondent and directed to hold fresh elections.

Imtiaz Ahmed Lali v. Salahuddin Siddiqui 2003 YLR 2437; Amjad Aziz v. Haroon Akhtar Khan 2004 SCMR 1484 and Shaukat Ali v. District Returning Officer PLD 2006 SC 78 rel.

Shahid Hamid, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Appellant (in C.A. No.1037/2006).

Wasim Sajjad, Advocate Supreme Court, Idrees Ashraf Advocate and Mehr Khan Malik, Advocate-on-Record for Respondent (in C.A. 1037/2006).

Aftab Iqbal Chaudhry, A.-G., Punjab (On Court Notice).

Date of hearing: 31st October, 2006.

P L D 2007 Supreme Court 381

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan and Saiyed Saeed Ashhad, JJ

MUHAMMAD SHAKOOR AND REHAN SAFDAR---Appellant

Versus

FEDERAL PUBLIC SERVICE COMMISSION and others---Respondents

Civil Appeals Nos.2227 of 2005 and 1629 of 2006, decided on 23rd January, 2007.

(On appeal from the judgment dated 19-4-2002 and 10-6-2002 passed by Lahore High Court, Lahore in W.Ps. Nos.19477 of 2000 and 24015 of 2000).

(a) Competitive Examination Rules, 1996---

----R. 6(iii)(i)---Constitution of Pakistan (1973), Art. 185 (3)---Leave to appeal was granted by Supreme Court to consider as to which of the clauses of R. 6 of Competitive Examination Rules, 1996, were attracted to the facts and circumstances of the case.

(b) Competitive Examination Rules, 1996---

----R. 6(iii)(i)---Domicile certificate, use of---Change of domicile---Appellants earlier joined Provincial service on the basis of Punjab domicile but subsequently they applied for Central Superior Services against domicile of Azad Jammu and Kashmir---Federal Public Service Commission informed the appellants that their domiciles for the Province of Punjab were accepted---Order passed by the Commission was assailed before High Court in Constitutional jurisdiction but of no avail---Validity---High Court had rightly observed that Government service did not mean only service of Federation of Pakistan but it also included service of Provinces which had been accepted/joined by appellants on the basis of domicile certificates of that area---Once a person had expressed his intention to be a domicile of a particular area, under the provision of R.6(iii)(i) of Competitive Examination Rules, 1996, such person could not change his place of domicile certificate subsequently for the purpose of getting better benefits--High Court was justified in not issuing writ in favour of appellants---Appeal was dismissed.

Muhammad Yar Khan v. Deputy Commissioner Political Agent, Loralai 1980 SCMR 456 ref.

Muhammad Arif Raja and Farooq Amjad Meer, Advocate Supreme Courts for Appellants (in C.A. No.2227 of 2006).

Nasir Saved Sheikh, D.A.-G. for Respondents.

Date of hearing: 23rd January, 2007.

P L D 2007 Supreme Court 386

Present: Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal, Abdul Hameed Dogar, Mian Shakirullah Jan and Saiyed Saeed Ashhad, JJ

PROVINCE OF BALOCHISTAN through Secretary Excise and Taxation Department, Civil Secretariat, Quetta and 2 others---Appellants

Versus

MURREE BREWERY COMPANY LTD. through Secretary- --Respondent

Civil Appeal No.210 of 2004 out of Civil Petition No.94-Q of 2003, decided on 15th December, 2006.

(On appeal from the judgment dated 7-4-2003 passed by the High Court of Balochistan at Quetta in Civil Petition No.471 of 2000).

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

---Art. 199(1)---Constitutional jurisdiction of High Court, invoking of---Principles---Held, it is sine qua non for invoking jurisdiction of High Court through Constitutional petition that petitioner must be an aggrieved person and he must have a locus standi for availing such jurisdiction.

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

----Art. 199 (1)(a)---"Aggrieved party"---Defined.

Messrs Associated Cement Companies Ltd. v. Pakistan, through the Commissioner of Income Tax, Lahore Range, Lahore and 7 others PLD 1978 SC 151; Nisar Ahmed and 2 others v. Additional Secretary, Food and Agriculture, Government of Pakistan and 3 others 1979 SCMR 299; Anjuman Araian Bhera v. Abdul Rashid and others 1982 PSC 888; Mst. Noor Jehan Begum v. Dr. Abdus Samad and others 1987 SCMR 1577; Mian Muhammad Nawaz Sharif v. Federation of Pakistan through Secretary, Ministry of Defence, Government of Pakistan, Islamabad and 8 others 1994 CLC 2318 and Dalmia Cement Ltd. v. District Local Board, Karachi and 2 others PLD 1958 (W.P.) Karachi 211 rel.

(c) Balochistan Excise Regulations (I of 1915)---

----S. 62---British Balochistan Foreign Liquor and Country Spirit Rules, 1947, R.4 (4) [as amended by Notification No. SO (E&T) 234-Tax/99/769-78, dated 20-8-1999]---Supreme Court Rules, 1980, O.XXVIII, R.3----Constitution of Pakistan (1973), Art. 199 (1)---Constitutional petition before High Court----Maintainability---Locus standi---Imposing special costs---Provincial Government imposed import fee on all supplies of liquor to Balochistan from other Provinces---Respondent company based in another Province was aggrieved of' the notification on the ground that Notification No. SO (E&T)234-Tax/99/769-78, dated 20-8-1999, issued by Balochistan Government had placed the respondent at disadvantageous position as compared to companies situated in Balochistan---High Court, in exercise of Constitutional jurisdiction allowed the petition filed by respondent and declared the notification as without lawful authority--.-Plea raised by authorities was that respondent was not an aggrieved person under Art. 199 (1) of the Constitution hence had no locus standi to file the petition---Validity---Respondent failed to show that it was an aggrieved party as no fee had been imposed on it and it had never paid the same---Respondent company's case was not that any of the licensees had ever complained of depreciation of sale of its products in market because of imposition and consequential increase in prices or any of them had ever refused to take supply of its products---Respondent could not be allowed to plead case of third party (the licensee) which was liable to pay duty/fee and which party was not before the court---Only contention of respondent that its products would not be competitive with local products was a far-fetched idea to consider it as an aggrieved party on such a speculative, and imaginary consideration-Respondent company dragged the authorities unnecessarily into frivolous and vexatious litigation and such stand was still asserted on behalf of respondent even before Supreme Court---By defending such baseless proceedings, respondent company had wasted precious time of courts meant for grant of relief to genuine litigants and public---Respondent was liable to pay special costs for such frivolous litigation as either had been awarded by Supreme Court under its inherent powers while exercising Constitutional jurisdiction and also under O.XXVIII, R.3 of Supreme Court Rules, 1980, or had approved it (special costs) awarded by High Court under similar inherent powers, while exercising Constitutional jurisdiction---Supreme Court set aside the judgment passed by High Court with special costs in a sum of Rs.500,000 awarded to respondent---Appeal was allowed.

Muhammad Rafiq v. Ataullah and others 1985 SCMR 1226; Inayatullah v. Sh. Muhammad Yousaf and 19 others 1997 SCMR 1020; The Postmaster General Northern Punjab and AJ&K), Rawalpindi v. Muhammad Bashir and 2 others 1998 SCMR 2386; Muhammad Naseer v. Mir Azhar All Talpur 2001 SCMR 4; Khurshid Ahmad Naz Faridi v. Bashir Ahmed 1993 SCMR 639; Arwinder Singh Bagga v. State of U.P. and others AIR 1995 SC 117; Rueful Shah v. State of Bihar AIR 1983 SC 1086, Bhim Singh Mill v. State of Jammu and Kashmir AIR 1986 SC 494; M.C. Mehta v. Union of India AIR 1987 SC 1086 and Akhtar Iqbal v. Muhammad Ali Bilal and others 2006 SCMR 1834 rel.

Salahuddin Mengal, A.-G. and Mehmood Raza, Addl. A.-G. for Appellants.

Shahid Hamid, Senior Advocate Supreme Court for Respondent.

Date of hearing: 15th December, 2306.

P L D 2007 Supreme Court 394

Present: Tassaduq Hussain Jillani, Nasir-ul-Mulk and Syed Jamshed Ali, JJ

PAKISTAN BAR COUNCIL---Petitioner

Versus

FEDERAL GOVERNMENT and others---Respondents

Constitutional Petition No.9 of 2005, decided on 10th January, 2007.

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

----Ss. 13(j) & 55(q)---Constitution of Pakistan (1973), Art.184(3)---Constitutional petition under Art.184(3) of the Constitution---Petitioner, the Pakistan Bar Council, had sought a direction that the respondents, Federal Government, the Higher Education Commission, all the Provincial Governments and the Universities be directed to adopt and implement the "Affiliation of Law Colleges Rules" framed by the Pakistan Bar Council and further that no Charter or `No Objection Certificate' be issued to any institution, college or individual to establish law college without compliance of the said Rules---Respondents had taken fair stand and had assured compliance of the Rules---Supreme Court analyzed the situation prevailing with regard to the legal education in the country, accepted the constitutional petition and issued directions accordingly.

The Employees of the Pakistan Law Commission Islamabad v. Ministry of Works 1994 SCMR 1548; Ms. Shehla Zia v. WAPDA PLD 1994 SC 693; Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504; Watan Party v. Federation of Pakistan PLD 2006 SC 697 and Pakistan Medical and Dental Council v. Ziauddin Medical University and others Civil Appeal No.2206 of 2005 ref.

Rasheed A. Rizvi, Advocate Supreme Court, Muhammad Arshad, Secretary Pakistan Bar Council and M.A. Zaidi, Advocate-on-Record for Petitioner.

Ms. Nahida Mehboob Elahi, D.A.-G. for. Respondent No.1.

Muhammad Javed Khan, D.G. Higher Education Commission for Respondent No.2.

Aftab Iqbal Ch. Advocate-General, Punjab, Ch. Muhammad Hussain, Addl. A.-G. Punjab and Raja Saeed Akram, A.A.-G. Punjab for Respondent No.3.

Abbas Ali, Addl. A.G. Sindh for Respondent No.4.

Sardar Shoukat Hayat. Addl. A.-G. N.-W.F.F. for Respondent No.5.

Mehmood Raza, A.A.-G. Baluchistan for Respondent No.6.

M. Farooq Qureshi Chishti, Advocate Supreme Court for Respondent No.7.

Muhammad Rafique Rajwara, Advocate Supreme Court for Respondent No.8.

Wasim ud Din Khattak, Advocate Supreme Court for Respondent No.9.

Nemo for Respondents Nos.10 and 11.

Hashmat Ali Habib, Advocate Supreme Court for Supreme Court Bar Association.

Date of hearing: 16th November, 2006.

P L D 2007 Supreme Court 405

[Appellate Jurisdiction]

Present: Iftikhar Muhammad Chaudhry, C.J. Abdul Hameed Dogar and Saiyed Saeed Ashhad, JJ

MUSHTAQ AHMED and others---Appellants

Versus

SECRETARY, MINISTRY OF DEFENCE through Chief of Air and Army Staff and others---Respondents

Civil Appeals Nos. 613, 614, 782, 802 and 825 of 2006, decided on 25th September, 2006.

(On appeal against the judgments dated 14-3-2006, 28-3-2006, 13-4-2006 and 17-4-2006 passed by the Lahore High Court, Rawalpindi Bench in W.Ps. Nos. 585 of 2006, 2876/06, 897/06, D.Nos.3086/06 and 906/06).

(a) Pakistan Air Force Act (VI of 1953)---

----S. 2(dd) [as added by Defence Services Laws (Amendment) Ordinance (III of 1967), Ss.37(e) & 71(3) [as added by Defence Services Laws (Amendment) Ordinance (IV of 1967)]---Pakistan Army Act (XXXIX of 1952), Ss.2(1)(d) [as added by Defence Services Laws (Amendment) Ordinance (III of 1967), 31(d), 58(4) & 59(4) [as added by Defence Services Laws (Amendment) Ordinance (IV of 1967)]-Penal Code (XLV of 1860), S.131---Constitution of Pakistan (1973), Art.199(3)---Offence of seducing or attempting to seduce any person in Military Force of Pakistan from his duty or allegiance to Government---Conviction and sentence awarded for such offence by Field General Court Martial to civilian person (i.e. non-uniformed person connected with such force)---Constitutional petition before High Court challenging such conviction and sentence---Maintainability---Mala fides pleaded against applying wrong provisions of law, but not against prosecution or complainant/victim---Effect---Civilian person subject to Pakistan Air Force Act, 1953 and Pakistan Army Act, 1952, if committed such offence, would be deemed to be an accused and would be liable to be punished thereunder in the manner as an uniformed accused, but not under S.131, P.P.C.---In absence of mala fides on the part of prosecution, conviction of civilian accused by General Court Martial could not be stamped to be coram non judice---High Court rightly declined to exercise jurisdiction under Art.199(3) of the Constitution--Principles.

The perusal of section 2(a)(b)(c)(d)(dd) and (c) demonstrates that all the personnel in uniform have been made subject to the Pakistan Air Force Act, and with a view to include all those persons, who were not otherwise subject to the Pakistan Air Force Act, section 2(dd) was added therein by Defence Services Laws (Amendment) Ordinance, 1967 (III of 1967). Under section 2(d), the person not otherwise subject to Pakistan Air Force Act, who on active service, in camp, on the march, or at any frontier post specified by the Federal Government by notification in this behalf arc employed by or are in the service of or arc followers of or accompany portion of the Air Force has been made subject to this Act, but under clause (dd) of section 2, those persons have been included, who are neither in uniform nor they are acting in any manner with the force, but have been found involved being an accused of seducing or attempting to seduce any person subject to Pakistan Air Force Act from his duty or allegiance to Government etc. It seems that to establish connection between two types of the accused, firstly those who are in uniform or otherwise connected with the force or secondly those who are non-uniformed person, but also connected with the force and have been found involved in the commission of offence of seducing the person, who is subject to this Act, have been declared to be such person, who can be tried under the Pakistan Air. Force Act or Pakistan Army Act.?

Subsection (3) to section 71 of the Pakistan Air Force Act and subsection (4) to section 59(4) of the Pakistan Army Act were incorporated in the above two Acts by Defence Services Laws (Amendment) Ordinance (IV of 1967). Accordingly to the language employed in both these subsections, which contains non obstente clause, a person who becomes subject to Pakistan Air Force Act and Pakistan Army Act by reasons of his being accused of an offence mentioned in clause (d) of subsection (1) of section 2 of the Pakistan Army Act and clause (dd) of section 2 of the Pakistan Air Force Act, shall be liable to be tried or otherwise dealt with under the aforestated two Acts for such offences as if the offence were an offence against the Pakistan Air Force Act or the Pakistan Army Act committed at a time when such person subject to these Acts and the provision of these sections shall have effect accordingly.?

Comparative study of these provisions of law clearly demonstrates that any person who has been subjected to the above Acts, shall be deemed to be an accused if he committed an offence of seducing or attempting to seduce any person from his duty or allegiance to Government and shall be dealt with under the provisions of Pakistan Air Force Act and the Pakistan Army Act.?

The argument that a civilian person is not to be convicted under section 37(e) and section 31(d) of Pakistan Air Force Act and Pakistan Army Act respectively, seems to be misplaced, because once a civilian accused has been found involved in the commission of offence, which falls within the purview of Pakistan Air Force Act or Pakistan Army Act, shall be punished accordingly under the said Acts. If the argument that accused would be tried by General Court Martial under any of the above Acts, but shall be convicted under P.P.C., are allowed to prevail, then it would create an anomalous situation. Such departure could have been possible only if the punishment for the offence of seducing or attempting to seduce any person from his allegiance to the Government, had not been provided by the above Acts or if they would have not been charged for an offence, which is not covered under the above Act, then for the purpose of punishment, reference to the provisions outside the above Acts' could have been made, that too subject to framing of the charge against the accused under the provisions other than the Pakistan Air Force Act and the Pakistan Army Act. Otherwise, as per the normal course, on the culmination of the trial, a civilian accused shall be convicted/'sentenced in similar manner as an accused, who is in uniform, because the former has been brought within the folds of the above Acts by subjecting him to the same.?

If intention of the legislature would have been to record sentence against a person, who has been made subject to Pakistan Air Force Act or Pakistan Army Act, under section 131, P.P.C. and not under section 37(e) of the Pakistan Air Force Act or section 31(d) of the Pakistan Army Act, then the legislature quite conveniently would have added the same in section 2(dd)(i) to the Pakistan Army Act as the addition of some of the laws in section 2(d)(ii) of the Pakistan Army Act has been made; namely an offence under the Official Secrets Act, 1923 having been committed in relation to any work of defence, arsenal, naval, military or air force establishment or station, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Pakistan, etc. So the intention of the legislature can safely be gathered by making reference to clause (ii) of section 2(dd) of the Pakistan Air Force Act that non-uniformed personnel were not to be convicted under section 131, P.P.C. by the General Court Martial on the completion of the trial and they would be convicted in the same manner as uniformed personnel on having been found guilty for the offences they are charged with.

There are two types of offences namely civil offences and military offences. Uniformed persons under the above Acts are amenable to both type of the offences, but when a person who has been subjected to the Pakistan Air Force Act or the Pakistan Army Act under section 71(3) or section 59(4) respectively, he would be liable to be punished for the military offences, punishment for which has been provided in both the Acts independently, otherwise, if a non-uniformed person or civilian accused had to be tried by the Civil Court, then there was no necessity at all to introduce amendment in section 71(3) of the Pakistan Air Force Act and section 59(4) of the Pakistan Army Act.?

If a civilian person is tried on the charge of seducing or attempting to seduce any person in the Military Force of Pakistan from his allegiance to the Government, he shall not be punished under section 131, P.P.C. but would be punished under the provision of Pakistan Army Act or the Pakistan Air Force Act i.e. sections 31(d) or 37(e) respectively in view of the provisions of section 69(4) of the Pakistan Army Act and 71(3) of the Pakistan Air Force Act.?

In the present case, mala fide has not been pleaded either against the prosecution or the victims/complainant, but against applying wrong provisions of law. Conviction of civilian accused in the trial on the charge of seducing or attempting to seduce any person in the Military Force of Pakistan from his allegiance to the Government is not to be made under section 131, P.P.C. but under section 37(e). There was no mala fide on the part of the prosecution and the trial of the civilian accused, and then his conviction by. General Court Martial was in exercise of the jurisdiction vesting in it, thus, its proceedings cannot be stamped to be coram non judice.?

The accused in the present case has accepted jurisdiction of General Court Martial, and conviction awarded to him is not based on mala fides nor was coram non judice or without jurisdiction, therefore, High Court rightly declined to exercise jurisdiction under Article 199(3) of the Constitution.?

Shahida Zahir Abbasi v. President of Pakistan PLD 1996 SC 632; Farooq Ahmed Khan Leghari v. Federation of Pakistan PLD 1999 SC 57; Gul Akbar v. Deputy Chief of Air Staff PLD 1968 Pesh. 114; Begum Shamim Afridi v. Province of Punjab PLD 1974 Lah. 120; State -v. Zia-ur-Rehman PLD 1973 SC 49; Saifuddin Saif v. Federation of Pakistan PLD 1977 Lah. 1174; and Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26 ref.

Anwar Aziz v. Federation of Pakistan PLD 2001 SC 549 rel.

(b) Interpretation of statutes---

----Words employed in a statute would be read and interpreted in its ordinary meanings.?

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

----Art. 199(3)---Constitutional bar upon jurisdiction of High Court---Effect---Duty of High Court in such case would be to determine first of all its jurisdiction and then to proceed ahead.?

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

----Ss. 423 & 439---Enhancement of sentence---Powers of Appellate Court and Revisional Court---Scope---Not Appellate Court, but only Revisional Court could enhance sentence---Principles.?

(e) Pakistan Army Act (XXXIX of 1952)---

----S. 133(b)---Appellate Authority could enhance sentence awarded to accused by Field General Court Martial.

(f) Pakistan Army Act (XXXIX of 1952)---

----S. 133(b)---Appeal and Jail Appeal against conviction and sentence of accused by General Court Martial---Presence of counsel in support of appeal as well as Jail Appeal---Enhancement of sentence by Appellate Authority---Validity---Convicts through their counsel and Jail appeal had represented against their conviction, which would be deemed that opportunity of hearing was given to them---No sooner appeal was filed, it would be presumed that while disposing of appeal, opportunity of hearing had been given to accused through his counsel.?

Khuda Bux v. Emperor AIR 1934 Cal. 105 and Javed Ahmad v. State 1978 SCMR 114 rel.

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

----S. 439---Enhancement of sentence of accused---Providing opportunity of hearing to accused---Scope---No specific mode provided under Cr.P.C. or precedent law for issuing notice to accused prior to such enhancement---Requirement would be only to extent of providing accused opportunity of being heard before such enhancement.?

Khuda Bux v. Emperor AIR 1934 Cal. 105 and Javed Ahmad v. State 1978 SCMR 114 ref.

Co. (R) Muhammad Akram, Advocate Supreme Court for Appellants (in C.As.Nos.613, 614, 782 and 825/2006).

Hashmat Ali Habeeb, Advocate Supreme Court and M.S. Khattak, Advocate on Record for Appellant (in C.A.No.802 of 2006).

Mujeeb-ur-Rehman, Advocate Supreme Court and Col. Jehangiri, JAG Dept. Army Group Capt. Aziz for Respondents.

Nasir Saeed Sheikh, D.A.G. (on behalf of Attorney-General) (On Court Notice).

Date of hearing: 25th September, 2006.

P L D 2007 Supreme Court 423

[Appellate Jurisdiction]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

RAHIM TAHIR---Petitioner

Versus

AHMED JAN and 2 others---Respondents

Criminal Petition No.54-K of 2006, decided on 14th November, 2006.

(On appeal from the judgment of High Court of Sindh dated 16-6-2006 passed in Criminal RevisionNo.70 of 2006).

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

----Preamble---Extent and scope of Illegal Dispossession Act, 2005---Illegal Dispossession Act, 2005, having no retrospective effect, may not be applicable to the cases of unauthorized occupants pending before any other forum on the date of promulgation of the said Act, but if the case of an illegal occupant was not already pending before any other forum on the date of enforcement of the Act, the same would squarely fall within the ambit of the Act.

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

----S. 3---Prevention of illegal possession of property etc.---Expressions "Grab, control or occupy" used in S.3 of the Illegal Dispossession Act, 2005, cannot be restricted to the illegal occupants who entered in the premises subsequent to the promulgation of the Act, rather all cases of illegal and unauthorized occupants would be subject to the Illegal Dispossession Act, 2005, except the cases which were pending adjudication before other forums.

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

----S. 3---Prevention of illegal possession of property, etc.---Nature and scope---Illegal Dispossession Act, 2005, is a special enactment promulgated to discourage the land grabbers and to protect the right of owner and the lawful occupant of the property as against the, unauthorized and illegal occupants---All cases of illegal occupants without any distinction would be covered by the Act, except the cases which were already pending before any other forum.

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

----S. 3---Constitution of Pakistan (1973), Art.185(3)---Respondent admittedly had been inducted into the premises by a person, who was neither owner nor a lawfully constituted attorney of the owner to have any authority to enter into an agreement of sale on behalf of the owner or deliver the possession of the property to the respondent---Apparently, respondent was an illegal and unauthorized occupant of the premises---Contention that Illegal Dispossession Act, 2005, was not applicable to an illegal occupant who was in occupation of the premises prior to the date of promulgation of the Act, had no substance---Mere filing of the suit subsequent to the filing of the complaint on the basis of a document having no legal foundation, was of no consequence and significance to protect the illegal and unauthorized possession---Purpose of the said Act was to protect the right of possession of lawful owner or occupier and not to perpetuate the possession of illegal occupants---Impugned judgment of High Court was consequently set aside and the case was remanded to the Sessions Court for decision of the complaint on merits in accordance with law.

Anwar Hussain, Advocate Supreme Court for Petitioner.

Suleman Habibullah, Advocate-on-Record, for Respondent No.1.

Aslam Shah, S.I., P.S. Manghopir for Respondent No.2.

Muhammad Sarwar Khan, Addl. A.-G. Sindh for Respondent No.3.

Date of hearing: 14th November, 2006.

P L D 2007 Supreme Court 428

[Appellate Jurisdiction]

Present: Rana Bhagwandas, Nasir-ul-Mulk and Syed Jamshed Ali, JJ

Civil Appeal No.1381 of 2005

ICI PAKISTAN LTD.---Appellant

Versus

TEHSIL COUNCIL, PIND DADAN KHAN and others---Respondents

(On appeal from the judgment dated 15-10-2003 passed by the Lahore High Court, Rawalpindi Bench Rawalpindi in W.P. No.3766 of 2001).

Civil Appeal No.1382 of 2005

TEHSIL COUNCIL, PIND DADAN KHAN---Appellant

Versus

ICI PAKISTAN LTD. and others---Respondents

(On appeal from the judgment dated 15-10-2003 passed by the Lahore High Court, Rawalpindi Bench Rawalpindi in W.P. No.3766 of 2001)

Civil Appeal No.1902 of 2002

ICI PAKISTAN LTD.---Appellant

Versus

MUNICIPAL COMMITTEE KHEWRA and others---Respondents

(On appeal from the judgment dated 22-8-2001 passed by the Lahore High Court, Rawalpindi Bench Rawalpindi in W.P. No.997 of 1991)

Civil Appeals Nos.1381, 1382 of 2005 and 1902 of 2002, decided on 8th February, 2007.

Professional Tax Limitation Act (XX of 1941)---

----S. 2---Punjab Finance Act (XV of 1977), S.3---Punjab Local Government Ordinance (VI of 1979), Ss.137, 138 & Sched. III, Item No.16---Punjab Local Government Ordinance (XIII of 2001), Second Sched. Parts III & IV---Constitution of Pakistan (1973), Art.163---Imposition of professional/trade tax by Local Council through notification---Validity---Power to impose such tax vested only in Provincial Assembly and that too by an Act---Article 163 of the Constitution neither empowered Provincial Assembly to delegate its authority to impose such tax in favour of Punjab Government or Local Council nor permitted its imposition by subordinate legislation i.e. notification---Provision to the contrary in any statute would have to yield in favour of Art. 163 of the Constitution---Limitations on the powers of Local Government to impose tax was inbuilt in S.137 of Punjab Local Government Ordinance, 1979---Provincial Government in accordance with Art.163 of the Constitution had already imposed such tax by way of Punjab Finance Act, 1977---Item No.16 of Sched. III of Punjab Local Government Ordinance, 1979 authorizing Local Council to impose such tax had not been retained in Punjab Local Government Ordinance, 2001---Local Council was, thus, not empowered to impose any professional/trade tax.

Province of Punjab through Secretary, Excise and Taxation, Government of Punjab and others v. Sargodha Textile Mills Ltd. Sargodha and others PLD 2005 SC 988 ref.

Shahid Hamid, Senior Advocate Supreme Court for Appellants (in Civil Appeal No.1381 of 2005).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondent No.1 (in Civil Appeal No.1381 of 2005).

Ms. Afshan Ghazanfar, A.A.-G. Punjab for Respondent No.2 (in Civil Appeal No.1381 of 2005).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Appellant (in Civil Appeal No.1382 of 2005).

Shahid Hamid, Senior Advocate Supreme Court for Respondent No.1 (in Civil Appeal No.1382 of 2005).

Ms. Afshan Ghazanfar, A.A.-G. Punjab for Respondent No.2 (in Civil Appeal No.1382 of 2005).

Shahid Hamid, Senior Advocate Supreme Court for Appellants (in Civil Appeal No.1902 of 2002).

Muhammad Munir Peracha, Advocate Supreme Court for Respondent No.1 (in Civil Appeal No.1902 of 2002).

Ms. Afshan Ghazanfar, A.A.-G. Punjab for Respondent No.2 (in Civil Appeal No.1902 of 2002).

Date of hearing: 8th February, 2007.

P L D 2007 Supreme Court 433

Present: Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday, Nasir-ul-Mulk, Syed Jamshed Ali and Hamid Ali Mirza, JJ

Haji ABDUL GHAFOOR KHAN through Legal Heirs---Petitioners

Versus

GHULAM SADIQ through Legal Heirs---Respondents

Civil Petition No.2703 of 2005, decided on 14th March, 2007.

(On appeal from the judgment dated 12-9-2005 passed by the Lahore High Court, Multan Bench, Multan in R.S.A. No.72 of 1986).

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

----O.VIII, R.5---Evasive denial would not amount to an admission---Principles.

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

----S. 54---Registration Act (XVI of 1908), Ss.33, 34 & 60---Registered agreement of sale executed by General Attorney of vendor---Non-­production of General Power of Attorney in Court---Effect---Agreement contained complete details of Power of Attorney including its number, date and book number---Due execution of agreement was proved by examining Registering Officer son of dead Scribe and two marginal witnesses---Endorsement on agreement would show that same was presented for registration by General Attorney---Non-production of General Power of Attorney in court would not affect validity of such agreement.

Syed Phul Shah v. Muhammad Hussain and 10 others PLD 1991 SC 1051; Zar Wali Shah v. Yousaf Ali Shah and others 1992 SCMR 1778; Alloo v. Sher Khan and others PLD 1985 SC 382; Abdul Rehman through L.Rs. v. Haji Muhammad Yousaf through L.Rs. 2007 SCMR 61; Sinaullah and others v. Muhammad Rafique and others 2005 SCMR 1408; Wali and others v. Manak Ali and others PLD 1965 SC 651; The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others PLD 1971 SC 82; Muhammad Akram alias Raja V. Muhammad Ishaque 2004 SCMR 1130 and Administrator-General Punjab v. M. Stanley Charles William Roas PLD 1986 Lah. 333 ref.

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

----S. 54---Registered agreement of sale---Proof---Admission of vendor before Sub-Registrar to have received part of sale consideration---Patwari, who entered mutation on basis of such agreement and presented same before Tehsildar, deposed that balance amount was paid to vendor---Lambardar was witness to mutation, who testified that after recording statements of parties, Tehsildar announced order orally that mutation was sanctioned---Payment of District Council fee represented total sale consideration---Possession of considerable land was delivered to vendee after execution of agreement---Held: cumulative effect of such evidence would be that oral sale in favour of vendee stood established beyond any doubt.

Jangi v. Jhanda and others PLD 1961 BJ 34 ref.

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

----S. 41---Specific Relief Act (I of 1877), S.27(b)---Bona fide purchaser for value---Protection to such purchaser, availability of---Scope---Protection under S.27(b) of Specific Relief Act, 1877 could be claimed by a person basing his claim on a perfected sale as against a person claiming on basis of a prior agreement.

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

----S. 41---Protection under S.41 of Transfer of Property Act, 1882---Essential conditions for claiming such protection stated.

Protection under S.41 of Transfer of Property Act, 1882 can only be claimed, when the following conditions are satisfied:

(a) the transferor is the ostensible owner;

(b) he is so by the consent, express or implied, of the real owner;

(c) transfers for consideration; and

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

Muhammad Jamil and others v. Lahore Development Authority and 3 others 1999 SCMR 2015 rel.

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

----S. 41---Defendant's claim as bona fide purchaser of land for value---Proof---Sale-deed in favour of defendant was not registered at the place, where land was situated---Son of defendant stated that land was in cultivating possession of plaintiff, who on being asked did not object to sale in favour of his father---Such no objection attributed to plaintiff for sale in favour of defendant could not be believed for being a patent lie---Reasonable and prudent man would, in normal course of human conduct, contact person in actual physical possession to ascertain relevant facts---Held: protection of S.41 of Transfer of Property Act, 1882 would not be available to defendant in circumstances.

Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53 ref.

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

---Ss. 43 & 54---Agreement of sale by son in absence of Power of Attorney in his favour by vendor-father---Son on demise of vendor inherited land more than sold by vendor---Effect---If son was not duly constituted attorney, then certainly basis of sale agreement was erroneous representation---Court could enforce a contract made by parties and make contract on behalf of parties, but in exceptional cases and to avoid fraud---Section 43 of Transfer of Property Act, 1882, thus, would squarely become applicable to land inherited by son.

Gujerat Ginning and Manufacturing Col Ltd. v. Motilal Hirabhai Spinning and Weaving Co. Ltd. AIR 1930 Bom. 84 rel.

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

----S. 1---Transfer of Property Act, 1882 not applicable in Punjab---Effect---Equitable principles contained in Transfer of Property Act, 1882 have always been applied by the courts in the sub-continent.

(i) West Pakistan Land Revenue Act, (XVII of 1967)---

----S.42---Sale mutation only records a concluded transaction.

Gulzarin Kiani, Advocate Supreme Court for Petitioners.

Ch. Imdad Ali Khan, Advocate Supreme Court and Arshad Ali Choudhry, Advocate-on-Record for Respondents.

Date of hearing: 14th March, 2007.

P L D 2007 Supreme Court 447

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan and Saiyed Saeed Ashhad, JJ

MUHAMMAD AKHTAR alias HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Civil Petition No.2367-L of 2006, decided on 27th February, 2007.

(On appeal from the judgment dated 2-10-2006 passed by Lahore High Court, Lahore in W.P. No.1047 of 2006).

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

----S. 302/34---Anti-Terrorism Act (XXVII of 1997), S.7---Criminal Procedure Code (V of 1898), S.345---Constitution of Pakistan (1973), Art.185(3)---Compounding a non-compoundable offence on the basis of compromise---Trial Court while allowing the compromise to the extent of charge under S.302(b), P.P.C. acquitted the accused from the said charge, whereas his application to the extent of conviction and sentence on the charge under S. 7 of the Anti-Terrorism Act, 1997 was dismissed---Plea of accused that his conviction and sentence under S.7 of the Anti-Terrorism Act, 1997, was the outcome of the main charge under S.302(b), P.P.C. from which he had already been acquitted, he was also entitled to be acquitted from the charge under S.7 of the Anti-Terrorism Act, 1997, was not accepted by High Court and his constitutional petition was dismissed vide impugned order---Validity---Whatever be the nature and status of an offence but for the purpose of the compromise it would be seen as to whether the offence of the section of law for which the compromise was requested was compoundable under the law or not---Compoundable offences had been mentioned in S.345(1), Cr.P.C.---Offence under S.7 of the Anti-Terrorism Act, 1997, which was punishable with death, was not mentioned in S.345(1), Cr.P.C. in the category of compoundable offences---Both the Courts below, therefore, had rightly disallowed the compromise---Question of reduction of sentence of accused in view of the compromise arrived at between the parties was also considered---Present matter before Supreme Court was not in the regular proceedings---Convictions and sentences of accused under S.302/34, P.P.C. and S.7 of the Anti-Terrorism Act, 1997, had already been kept intact up to the level of Supreme Court---When once the findings had been given on merits by Supreme Court, then it would not be appropriate to enter the merits of the case against to consider the reduction of sentence in an offence which was not compoundable---Findings of the Courts below by not granting permission to compound the offence under S.7 of the Anti-Terrorism Act, 1997, were in accordance with law particularly in view of the bar as contained in subsection (7) of section 345, Cr.P.C.---Impugned order having no illegality did not deserve any interference---Leave to appeal was declined accordingly.

Muhammad Rawab v. The State 2004 SCMR 1170 and Ghulam Farid alias Farida v. The State PLD 2006 SC 53 ref.

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

----S. 345---Compounding of offences---Scheme and scope---Tabulation of offences as made under S.345, Cr.P.C. being unambiguous removes all doubts, uncertainty and must be taken as a complete and comprehensive guide for compounding of offences---Legislature has laid down in S.345, Cr.B.C. the test for determining the classes of offences which concern individuals only as distinguished from those which have reference to the interest of the State and Courts of law cannot go beyond that test and substitute for it one of their own---Against public policy to compound a non-compoundable offence, 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 in the section.

Muhammad Rawab v. The State 2004 SCMR 1170 ref.

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

----S. 345---Penal Code (XLV of 1860), S.302/34---Compromise as a mitigating circumstance---Scope---Guidelines stated---Courts, no doubt, at all levels without any legal impediment, while deciding 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 question of 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.

Ghulam Farid alias Farida v. The State PLD 2006 SC 53 ref.

(d) Interpretation of statutes--

----Courts can interpret the provisions of law, but cannot change or substitute such provisions and also cannot go beyond the wisdom of law.

Ghulam Farid alias Farida v. The State PLD 2006 SC 53 ref.

Mian Ata-ur-Rehman, Advocate-on-Record for Petitioner.

Ch. Munir Sadiq, D.P.G. (Punjab) for the State.

Date of hearing: 7th February, 2007.

P L D 2007 Supreme Court 453

[Appellate Jurisdiction]

Present: Abdul Hameed Dogar, Falak Sher and Tassaduq Hussain Jillani, JJ

Mst. NAZAKAT---Appellant

Versus

HAZRAT JAMAL and another---Respondents

Criminal Appeals Nos.195 of 2000 and M.R.No.16 of 1997, decided on 13th February, 2007.

(On appeal from the judgment dated 5-5-1999 of the Peshawar High Court, Peshawar passed in Criminal Appeal No.286 of 1997).

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

----S. 302---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to complainant to scrutinize in detail the points: Whether when prosecution had proved the guilt of accused and normal penalty provided for murder was death, then the accused was not legally obliged at least to have narrated the circumstances justifying the imprisonment of lesser penalty; that whether in view of the evidence of prosecution witnesses High Court was justified to hold that the motive had not been established and whether it was the -rule of universal application to award lesser penalty whenever the prosecution failed to prove motive or the motive appeared to be insufficient.

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

----S. 302---Sentence, enhancement of---High Court had reduced the sentence of death of accused to imprisonment for life on the ground that neither the motive was established by the prosecution nor it was known as to what had happened just before the incident which remained shrouded in mystery---Such being the old plea had been discarded by Supreme Court as a mitigating circumstance to reduce the normal penalty of death to imprisonment for life, particularly when the prosecution had proved its case beyond any shadow of doubt---Accused had committed the murder of Cashier inside the Bank in broad-daylight and caused serious injuries to the prosecution witnesses with repeated "Chhuri" blows---Accused had injured the deceased only on his refusal to hand over the keys of cash box and he was apprehended at the spot just outside the Bank by the people and was handed over to police---Ocular account was corroborated by medical evidence and was further supported by circumstantial evidence such as confessional statement, recovery of blood-stained "Chhuri" and blood-stained pistol---Accused had acted in a callous, ruthless and cruel manner while taking the life of the deceased and injuring the prosecution witnesses intentionally and sentence of death awarded to him by Trial Court was proportionate to the gravity of the offence---Impugned judgment of High Court was consequently set aside and death sentence was awarded to accused in circumstances.

Muhammad Akbar and another v. The State PLD 2004 SC 44; Muhammad Amin alias Irfan and another v. The State 2004 SCMR 1676; Abdullah v. Muhammad Ali PLD 1971 SC 541 .and Abdul Subhan v. Raheem Bakhsh and another PLD 1994 SC 178 ref.

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

----S. 302---Sentence---Mitigating circumstance---"Motive shrouded in mystery" by itself is not a mitigating circumstance for awarding lesser sentence and this theory has been discarded.

Muhammad Akbar and another v. The State PLD 2004 SC 44 ref.

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

----S. 302---Sentence---Absence of motive---Effect---Lack of motive or weakness thereof is immaterial to withhold the normal penalty of death in murder cases, when trustworthy evidence had squarely brought home the guilt against the accused beyond any doubt.

Muhammad Akbar and another v. The State PLD 2004 SC 44; Muhammad Amin alias Irfan and another v. The State 2004 SCMR 1676 ref.

Syed Safdar Hussian, Advocate Supreme Court/Advocate-on-Record for Appellant.

M. Zaman Bhatti, Advocate Supreme Court and Arshad Ali Ch. Advocate-on-Record for Respondent No.1.

M. Bilal, Senior Advocate Supreme Court for the State.

Date of hearing: 13th February, 2007.

P L D 2007 Supreme Court 460

[Appellate Jurisdiction]

Present: Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed and Hamid Ali Mirza, JJ

Sh. FATEH MUHAMMAD---Appellant

Versus

MUHAMMAD ADIL and others---Respondents

Civil Appeal No.93 of 2003, decided on 10th April, 2007.

(On appeal from the judgment dated 5-7-2002 of the Lahore High Court, Lahore passed in R.S.A. No.58 of 1991).

(a) Punjab Pre-emption Act (I of 1913)---

----S. 21---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider, whether High Court had correctly found that case did not suffer from vice of partial pre-emption; whether suit brought by minor son of vendor having no independent source of income was not collusive and whether pre-emptors could be denied decree on the ground not withstanding the plea to such effect.

(b) Administration of justice---

----Each and every case is to be decided on its own peculiar circumstances and facts.

Muhammad Saleem's case 1994 SCMR 2213; Muhammad Mal Khan's case 2002 SCMR 235 and Ghulam Sadiq's case 2002 SCMR 677 rel.

(c) Pleadings---

----Parties are bound by their pleadings, which must be proved through evidence.

Kanwal Nain's case PLD 1983 SC 53; Hashmand's case 1985 SCMR 1438; Mst. Janat Bibi's case 1988 SCMR 1696; Basit Sibtain's case 2004 SCMR 578; Mst. Murad Begum's case PLD 1974 SC 322; Messrs State Engineering Corporation Ltd.'s case 2006 SCMR 619; Shafi Muhammad's case 2007 SCMR 368 and Faqir Muhammad's case PLD 2003 SC 594 rel.

(d) Punjab Pre-emption Act (I of 1913)---

----S. 21---Qanun-e-Shahadat (10 of 1984), Art. 114---Partial pre-emption---Plea not raised---Principle of estoppel---Applicability---Administration of justice---Non-framing of issue---Effect---All the courts below decreed the suit in favour of pre-emptors---Plea raised by vendee was .that issue with regard to partial pre-emption was not framed,. therefore, case might be remanded after framing fresh issue---Validity---Plea of Benami suit was raised by vendee in his written statement but he neither proved the same before Trial Court nor the trial Court had framed any issue with regard to such controversy---Even if Trial Court did 'not frame the issue, vendee should have adduced evidence in that regard, then Supreme Court might have considered such aspect of the case---Vendee did not press other issues, therefore, he was not entitled to challenge the findings on the issues as the findings regarding the remaining issues had become final between the parties---When the ground was not raised before the court below, vendee was estopped to raise the same before Supreme Court---Controversy had been pending adjudication between the parties for the last 33 years, therefore, Supreme Court did not remand the case after framing fresh issue---Supreme Court declined to interfere with the judgment and decree passed by High Court---Appeal was dismissed.

Naseer Ahmed's case PLD 1984 SC 403; Abdul Hameed's case 2005 SCMR 895; Zar Wali Shah's case 1992 SCMR 1778; Khurshid Ali's case PLD 1992 SC 822; Ghulam Muhammad's case PLD 1973 SC 444; Ghulam Abbas's case 1993 SCMR 2289 and Hashmat Ali's case PLD 1956 BJ 33 distinguished.

Baqa Muhammad's case PLD 1985 Lah. 476; Jalal-ud-Din's case (69 Punjab Record 1914); Ms. Ghulam Bibi's case PLD 1985 SC 345; Bahadar Shah's case PLD 1973 Lah. 513; Qamar ud Din's case PLD 2001 SC 518; Allah Dad's case PLD 1960 Lah. 900; Muhammad Amin's case 1993 SCMR 498; Jam Pari's case 1992 SCMR 786 and Basudev Hazra's case AIR 1971 SC 722 ref.

Muhammad Feroz's case 2006 SCMR 1304; Aurangzeb's case 2007 SCMR 236; Rana Muhammad Arshad's case 1998 SCMR 1462 and Muhammad Saifullah Khan's case PLD 1989 SC 166 rel.

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

----Art. 185---Appeal to Supreme Court---Concurrent findings of fact by the courts below---Misreading and non-reading of facts on record and law---Effect---Onus to prove---Principles---Supreme Court does not normally go behind concurrent findings of fact recorded by the courts below unless it can be shown that the finding is on the face of it against evidence or so patently improbable or perverse that to accept it would amount to perpetuating a grave miscarriage of justice or if there has been any misapplication of principle relating to appreciation of evidence, or finally, if the findings could be demonstrated to be physically impossible---Such being the practice and rule of Supreme Court in civil appeal, the burden lies heavily on appellant to show that concurrent findings recorded by High Court are not sustainable on the record and should be interfered with by Supreme Court---Supreme Court does not meddle with findings of fact reached by primary courts or High Court when it is satisfied that the findings of the courts below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning appreciation of evidence---Such principle would be notwithstanding that a different view might also be possible.

Amir Alam Khan, Advocate Supreme Court for Appellant.

Gulzarin Kiani, Advocate Supreme Court for Respondents.

Date of hearing 10th April, 2007.

P L D 2007 Supreme Court 467

[Shariat Appellate Jurisdiction]

Present: Javed Iqbal, Chairman, Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhari, Members

ABDUL GHAFFAR---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.18(S) of 2005, decided on 15th November, 2006.

(On appeal from the judgment dated 1-2-2005 of the Federal Shariat Court, Islamabad passed in Criminal Appeal No.32-L of 2004).

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

----S. 10---Constitution of Pakistan (1973), Art.203-F(2B)---Victim had narrated the details of occurrence in her statement without any ambiguity in an unequivocal manner that accused had committed Zina-bil-Jabr with her on different occasions---Statement of the victim was fully corroborated by medical evidence---Viginal swabs of the victim were found to be stained with semen---Minor contradiction in prosecution evidence had rightly been ignored by the Courts below---Appreciation of evidence by Trial Court and Appellate Court did not suffer from any irregularity or infirmity and reappraisal of evidence by Supreme Court was not called for---Federal Shariat Court had already taken a lenient view in the matter of sentence by reducing 25 years' R.I. to 15 years' R.I. and no more indulgence was required on humanitarian grounds---Leave to appeal was refused to accused in circumstances.

Sohni v. Bahaduri PLD 1965 SC 111; Abdul Majid v. State 1971 SCMR 31; British India N. Co. v. Abdur Razzak 19 DLR (SC) 177; Shamshad Ali Shah v. Hassan Shah 16 DLR (SC) 330; PLD 1961 SC 609; Bashir Ahmad v. Yaqub Shah 1962(1)PSCR 243; Muhammad Bachhal v. Crown PLD 1951 FC 140; Badri Rai v. State of Bihar AIR 1958 SC 953; Mathew v. T.C. State AIR 1956 SC 241; Ram Narain v. State of Punjab AIR 1955 SC 322; Sarfaraz Ali Khan v. Crown PLD 1951 FC 41; Sarfaraz Ali v. Crown 1951 FCR 78; Muhammad Sarfraz Khan v. Crown PLD 1953 FC 317; Khuda Bakhsh v. Crown PLD 1955 FC 378 and Gul Amir Khan v. Crown PLD 1951 FC 1 ref.

(b) Witness---

----Interested witness --Connotation- Interested witness is undoubtedly a competent witness under Qanun-e-Shahadat, 1984---Proposition that testimony of an interested witness should be corroborated by independent evidence is not of universal application---Question of reliability of such witness must depend upon the circumstances of each case and the quality of his evidence---Court may accept the testimony of an interested witness without any corroboration, if the same is found reliable, but as a matter of prudence Court insists on corroboration of his evidence when he is inimically disposed towards the accused and it will, therefore, be unsafe to base a conviction on his testimony alone.

Sohni v. Bahaduri PLD 1965 SC 111 ref.

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

----Art. 185---Appeal to Supreme Court---Reappraisal of evidence---Practice and procedure---Supreme Court ordinarily would refuse to reappraise evidence because it does not undertake his task unless a substantial departure from some rule or principle relating to the appreciation of evidence has occurred---When the Court of first instance and the Court of appeal arrive at concurrent findings of fact after believing the evidence of a witness, Supreme Court as the final Court does not disturb such findings save in most exceptional cases---In the absence of a statutory bar this practice could have been and was occasionally relaxed or deviated from the special cases which were found td have been of a very unusual nature and of public and general importance, but never, unless justice was found to have miscarried as a result of either there not being a proper trial at all or on account of admission or reception of evidence which was not legally admissible or for something so shocking, so outrageous, or so .gross as to shock the very basis of justice---Such will be the case where there is such a disregard of the forms of legal process, or such a violation of principles as amounts to a denial or perversion of justice---Such disregard or violation should not be merely technical in character, but it should be both, grievous as well as substantial.

Abdul Majid v. State 1971 SCMR 31; British India; N. Co. v. Abdur Razzak 19 DLR (SC) 177; Shamshad Ali Shah v. Hassan Shah 16 DLR (SC) 330; PLD 1961 SC 609; Bashir Ahmad v. Yaqub Shah 1962(1) PSCR 243; Muhammad Bachhal v. Crown PLD 1951 FC 140; Badri Rai v. State of Bihar AIR 1958 SC 953; Mathew v. T.C. State AIR 1956 SC 241; Ram Narain v. State of Punjab AIR 1955 SC 322 Sarfaraz Ali Khan v. Crown PLD 1951 FC 41; Sarfaraz Ali v. Crown 1951 FCR 78; Muhammad Sarfraz Khan v. Crown PLD 1953 FC 317; Khuda Bakhsh v. Crown PLD 1955 FC 378; Gul Amir Kan v. Crown PLD 1951 FC 1 ref.

Arshad Ali Chaudhry, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 15th November, 2006.

P L D 2007 Supreme Court 472

Present; Iftikhar Muhammad Chaudhry, C.J, Javed Iqbal, Abdul Hameed Dogar, Mian

Shakirullah Jan and Saiyed Saeed Ashhad, JJ

JAWAD MIR MUHAMMADI and others---Appellants

Versus

HAROON MIRZA and others---Respondents

Civil Appeal No.1436 of 1996, decided on 7th March, 2007.

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

----Arts.40(3)(4) (5) (6) & 52-A (2)(3)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider and reconcile two conflicting judgments of Supreme Court delivered by Benches of equal strength in almost similar facts and circumstances in cases titled Abdul Razak v. Karachi Building Control Authority and others, reported as PLD 1994 SC 512 and Multi Lines Associates v. Ardeshir Cowajee and others, reported as PLD 1995 SC 423.

Haji Abdul Razak v. Karachi Building Control Authority and others, PLD 1994 SC 512 and Multi Lines Associates v. Ardeshir Cowajee PLD 1995 SC 423 ref.

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

----Arts.40(4) (5) (6) & 52-A (2)(3)---Conversion of plot---Mandatory requirement---Conversion of user/nature of plot can be ordered by the authorities only after issuance of public notice calling upon the residents of locality to submit their objections to such conversion and deciding the same after providing them opportunity of hearing---Such is a mandatory requirement and order passed in violation of mandatory requirement would not be in consonance with law.

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

----Arts.40(3) (4) (5) (6) & 52-A (2)(3)---Sindh Buildings Control Ordinance (V of 1979), Preamble---Karachi Town Planning and Building Regulations, 1979, Preamble---Conversion of residential plot into commercial plot---Appellants were aggrieved of the conversion of plot in dispute from residential to commercial---Validity---Provisions of Sindh Buildings Control Ordinance, 1979 and Karachi Town Planning and Building Regulations, 1979 did not bar conversion of the nature of a residential plot to commercial or commercial-cum-residential---Such conversion of plot in dispute neither violated any provision of law nor pronouncements of Supreme Court.

(d) Administration of justice---

---Relief, grant of---Plea of hardship---Effect---Ground of hardship has always been given due consideration and importance by the Courts of law while granting relief---Courts have even refused to grant a relief prayed for if the same would cause unnecessary hardship to either of the parties or to a third party.

Patel v. Ali (1984) 1000 L.Q.R. 337 rel.

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

----S.4---Rights to light, fresh air and clean environment---Proof---Infringement of such rights can be established only by producing satisfactory evidence and not merely on the statements in pleadings of affected party.

Haji Fazal-i-Raziq v. Syed Zaman Shah and others PLD 1980 SC 193 ref.

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

----Arts.40 (3) (4) (5) (6) & 52-A (2)(3)---Conversion of residential plot into 'commercial-Rights to light, fresh air and' clean environment---Infringement of---Third party interests---Multistoreyed building was constructed over plot which was converted from residential to commercial after completion of all legal formalities---Appellants being residents of the locality assailed the conversion of plot on the ground that construction of multistoreyed building would disturb their rights to light, fresh air and clean environment---Respondents were the purchasers of flats in the building in question---High Court in exercise of constitutional jurisdiction dismissed the petition filed by appellants---Validity---Hardships, inconvenience, or discomfort likely to result by building in question must be more than mere delicacy of fastidiousness and more than producing sensitive personal discomfort or annoyance---Annoyance or discomfort or inconvenience must be such which law considered as substantial or material---Appellants failed to prove infringement of their rights of privacy, light, fresh air and pollution free environment as there was no material to substantiate their infringement---Concerned authorities were duty bound to provide adequate relief by providing necessary infrastructure for increasing water supply, electricity, gas and laying down sewerage lines of bigger dimensions to meet the demand of extra burden and they could be activated to perform their duties---Such was appropriate and viable solution rather than demolition of alleged unauthorized/illegal floor, which had been regularized in accordance with law---High Court did not commit any illegality or irregularity in dismissing the constitutional petition---Appeal was dismissed.

Abdul Razak v. Karachi Building Control Authority and others, PLD 1994 SC 512 and Multi Lines Associates v. Ardeshir Cowajee PLD 1995 SC 423 ref.

Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority and others 1999 SCMR 2883 distinguished.

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

----Art. 199-Constitutional petition---Laches---Principles---Laches per se is not a bar to the constitutional jurisdiction and question of delay in filing would have to be examined with reference to the facts of each case---Question of delay/laches in filing constitutional petition has to be given serious consideration and unless a satisfactory and plausible explanation is forthcoming for delay in filing constitutional petition, the same cannot be overlooked' or ignored subject to facts and circumstances of each case.

Smith v. Clay (1767) 3 Bro. C.C. 639n. at 640n and Snell's Equity by John Mcghee 13th Edn, p. 35 rel.

(h) Administration of justice---

----No party should be made to suffer on account of the act of public functionaries or of a Court.

Shireen v. Fazal Muhammad 1995 SCMR 584 and Fateh Khan v. Boze Mir PLD 1991 SC 782 rel.

M. Naeemur Rehman, Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Appellants.

Ex Parte for respondents Nos. 1, 2, 3, 6, 7, 8, 12 & 14.

Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.4.

Nemo for Respondent No.5.

Muhammad Sharif, Advocate Supreme Court for Respondents Nos.9, 10, 11 and 13.

Shaffaat Hussain, Advocate Supreme Court for Intervenors.

Dates of hearing: 11th and 12th December, 2006.

P L D 2007 Supreme Court 494

[Appellate Jurisdiction]

Present: Javed Iqbal, Abdul Hameed Dogar and Nasir-ul-Mulk, JJ

GOVERNMENT OF PUNJAB through Secretary Housing and Physical Planning and

Environmental Planning Lahore and others---Appellants

Versus

MUHAMMAD ISMAIL KHAN BHATTI---Respondent

Civil Appeal No.1879 of 2001, decided on 2nd February, 2007.

(On appeal from the order dated 19-1-2001 of the Lahore High Court, Lahore passed in Writ Petition No.7572 of 1998).

(a) Disposal of Land by Development Authorities (Regulation) Ordinance (VI of 1998)---

----S. 4---Constitution of Pakistan (1973), Art. 185 (3)---Leave to appeal was granted by Supreme Court to consider; whether by moving application for allotment of plot reserved against quota of journalists in the scheme would entitle them to claim allotment essentially; and whether provisions of Disposal of Land Development Authorities (Regulation) Ordinance, 1998, whereby no quota was reserved for any journalist and advocate etc. would be applicable to the case.

(b) Disposal of Land by Development Authorities (Regulation) Ordinance (VI of 1998)---

----S. 4---Allotment against reserved quota---Deposit of dues---Non­-issuance of allotment letter---Subsequent change in policy---Vested right, accrual of---Respondent being a journalist applied for a residential plot, he was found eligible for allotment and thus deposited 20% of the total price of plot but authorities denied issuance of allotment letter---High Court in exercise of Constitutional jurisdiction directed the authorities to issue allotment letter---Validity---Subsequent change in policy could not take away the vested right of allotment of plot in favour of respondent---High Court, while relying upon an earlier order passed by Supreme Court, directed the authorities to allot plot to respondent out of the quota reserved for journalists---Respondent applied for allotment of plot prior to amendment in the policy as such vested right stood already accrued in his favour---Respondent was found eligible for allotment of plot after completing formalities as such authorities could not go back on their commitment on the pretext of change in policy---Authorities failed to point out any illegality or misreading in the judgment passed by High Court warranting interference by Supreme Court---Leave to appeal was refused.

Secretary to Government of Punjab, Housing Physical and Environmental Planning Department, Lahore v. Muhammad Ismail Khan Bhatti C.P. No.1266-L of 2001 ref.

Ms. Afshan Ghazanfar, A.A.-G. Punjab for Appellants.

Muhammad Riaz Lone, Advocate Supreme Court for Respondent.

Date of hearing: 2nd February, 2007.

P L D 2007 Supreme Court 498

Before Falak Sher and Raja Fayyaz Ahmad, JJ

FEDERATION OF PAKISTAN and others---Appellants

Versus

Raja MUHAMMAD ISHAQUE QAMAR and another---Respondents

Civil Appeals Nos. 1274 and 1275 of 2005, decided on 23rd January, 2007.

(On appeal from the judgment dated 40-5-2004 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Writ Petitions Nos.2632/2000 and 2808/2000).

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

----Art. 199 (3)---Constitutional jurisdiction of High Court---Ouster clause---Members of Armed Forces---Principles---Presumption against provisions regarding ouster of jurisdiction is to be strictly construed and ouster of jurisdiction of superior courts and any law which has the effect of denying access to them is to be narrowly construed for the reason that such are the fora created by people for obtaining relief from oppression and redress for infringement of their rights---Where ouster clause is clear and unequivocal admitting of no other interpretation, the courts unhesitatingly should give effect to it, notwithstanding the bar contained in Art. 199(3) of the Constitution, where any action has been found to be without jurisdiction or coram non judice or mala fide--Extraordinary jurisdiction of High Court under Art.199(3) of the Constitution can competently be invoked by an aggrieved person.

Ex. Lt. Col. Anwar Aziz (PA-7122) v. Federation of Pakistan through Secretary, Ministry of Defence, Rawalpindi and 2 others PLD 2001 SC 549; Sheikh Maqbool Elahi and others v. Khan Abdul Rehman Khan and others PLD 1960 SC (Pak) 266; Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan as Supreme Commander of the Armed Forces, Islamabad and others PLD 1996 SC 632; Brig. (Retd.)

F.B., Ali and another v. The State PLD 1975 SC 506 and Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 ref.

(b) Pakistan Air Force Act (VI of 1953)---

----S.20(1)---Pakistan Air Force Rules, 1957, R.31-A---Constitution of Pakistan (1973), Art. 199(3)---Constitutional jurisdiction of High Court---Members of Armed Forces---Removal from service---Mala fide act---Ouster clause under Art.199(3) of the Constitution---Applicability--Respondents being members of Armed Forces were charged with offences under Ss.420, 468, 469 and 471, P.P.C. but during trial, compromise was effected between them and complainant therefore, they were acquitted by Trial Court---Authorities removed the respondents from service without any benefit of service---Respondents assailed the order of their removal before High Court under Constitutional jurisdiction, which petition was allowed in their favour---Plea raised by authorities was that in view of ouster clause of Art. 199(3) of the Constitution, petition before High Court could not have been entertained---Validity---Order passed by the authorities was found by High Court to be unfair and unjust in view of the notified policy, which amounted to have suffered with mala fide---Authorities failed to satisfy Supreme Court that alternate and efficacious remedy by way of appeal against the order was provided in Pakistan Air Force Act, 1953, or the Rules made thereunder---Respondents having earned acquittal in criminal case, therefore, High Court rightly concluded that respondents could not be retained in service and they should be discharged administratively with benefits to which no exception could be taken for having not been dealt with in view of the object and spirit of the circular / notification dated 13-12-1992---Appeal was dismissed.

Ex.Lt.Col. Anwar Aziz (PA-7122) v. Federation of Pakistan through Secretary, Ministry of Defence, Rawalpindi and 2 others PLD 2001 SC 549; Sheikh Maqbool Elahi and others v. Khan Abdul Rehman Khan and others PLD 1960 SC (Pak) 266; Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan as Supreme Commander of the Armed Forces, Islamabad and others PLD 1996 SC 632; Brig. (Retd.) F.B., Ali and another v. The State PLD 1975 SC 506 and Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 rel.

Raja M. Irshad, D.A.G. with Ch. Akhtar Ali, Advocate-on-Record for Appellants (in both Appeals).

Ch. Afrasiab Khan, Advocate Supreme Court with Arshad Ali Ch., Advocate-on-Record for Respondents (in both Appeals).

Date of hearing: 23rd January, 2007.

P L D 2007 Supreme Court 504

Present: Iftikhar Muhammad Chaudhry, C.J. Mian Shakirullah Jan and Saiyed Saeed Ashhad, JJ

SAFEER TRAVELS (PVT.) LTD.---Appellant

Versus

MUHAMMAD KHALID SHAFI through Legal Heirs---Respondents

Civil Appeal No.985 of 2006, decided on 23rd January, 2007.

(On appeal from the judgment dated 29-4-2006 passed by high Court of Sindh, Karachi, in C.P. No.S-15/2006).

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

---S. 16(2)---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13(6)---Cantonments Rent Restriction Ordinance (XI of 1963), S.17(9)---Failure of tenant to comply with tentative rent order of Rent Controller---Effect---Use of word "shall" had made obligatory for Rent Controller that in case of default, defence of tenant would have to be struck off---Once default was committed, then Rent Controller would have no jurisdiction and option, but to struck off defence of tenant---Exceptions stated.

Ghulam Muhammad Khan Lundhkhor v. Safdar Ali PLD 1967 SC 530; Muhammad Jan v. Khadim Hussain 1973 SCMR 243; Ghulam Ahmad Pirzada v. Additional District Judge, Lahore and 2 others 1982 SCMR 616; Abdul Qayyum Paracha v. Ghulam Hussain and others 1985 SCMR 580; Fazalur Rahman v. Mst. Sarwari Begum and others 1986 SCMR 1156; Province of Punjab and others v. Muhammad Jalil-ur-Rehman 1986 SCMR 1705; Muhammad Yousaf v. Muhammad Bashir and others 1990 SCMR 557; Muhammad Amin v. Ghulam Nabi and 2 others PLD 1990 SC 1201; Syed Muhammad Zaman v. Abdul Khaliq 1991. SCMR 1982; Misbahullah Khan v. Mst. Memoona Taskinuddin 1995 SCMR 287; Asif Chughtai v. Mrs. Zile Huma and others 1995 SCMR 741; Zikar Muhammad v. Mrs. Arifa Sabir and another 2000 SCMR 1328; The State Life Insurance Corporation of Pakistan v. Kotri Textiles Mills (Pvt.) Ltd. 2001 SCMR 605; Khawaja Muhammad Mughees v. Mrs. Sughra Dadi 2001 SCMR 2020 and M.H. Mussadaq v. Muhammad Zafar Iqbal and another 2004 SCMR 1453 rel.

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

----Ss. 15(2)(ii) & 16(2)---Civil Procedure Code (V of 1908), S.12(2)---Ejectment petition---Default in payment of rent, ground of---Striking off defence of tenant for non-depositing rent in time---Filing of application under S.12(2), C.P.C., by tenant against order of striking off his defence instead of filing appeal against same---Order of Rent Controller dismissing such application for not establishing requirement of S.12(2), C.P.C. was upheld by Appellate Court, but order of striking off defence of tenant was set aside---High Court in constitutional petition set aside order of Appellate Court and restored that of Rent Controller---Validity---Order passed by Rent Controller was in consonance with law and its setting aside was not proper and legal---Supreme Court dismissed appeal of tenant while maintaining impugned judgment of High Court.

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

----S. 15---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13---Cantonments Rent Restriction Ordinance (XI of 1963), S.17---Decision in a similar case with a different conclusion by same Rent Controller could not be made basis for arriving at a similar conclusion in another case---Decision of each case would be made keeping in view facts and circumstances thereof.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Judgment/order of Appellate Court---High Court could interfere with such judgment/order, if view taken by Appellate Court was not only contrary to establish principles of law, but was also contrary to evidence on record or had flouted provisions of statutes or failed to follow law relating thereto.

Lal Din Masih v. Mst. Sakina Jan and another 1985 SCMR 1972; Rahim Shah v. The Chief Election Commissioner of Pakistan and another PLD 1973 SC 24; Messrs A.C.E. Enterprises through Khalid Pervers v. Additional District Judge, Lahore and others 1987 SCMR 1174; Muhammad Sharif v. Muhammad Afzal Sohail PLD 1981 SC 246; Muhammad Hayat v. Sh. Bashir Ahmed and others 1988 SCMR 193; Abdul Hamid v. Ghulam Rasul and others 1988 SCMR 401 and Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others 2001 SCMR 338 rel.

Fazle Ghani Khan, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant.

Nasrullah Awan, Advocate Supreme Court for Respondents.

Date of hearing: 23rd January, 2007.

P L D 2007 Supreme Court 517

Present: Iftikhar Muhammad Chaudhry, C.J., Faqir Muhammad Khokhar and Mian Shakirullah Jan, JJ

COLLECTOR OF CUSTOMS, SALES TAX AND CENTRAL EXCISE and others--Appellants

Versus

Messrs SANGHAR SUGAR MILLS LTD. KARACHI and others ---Respondents

Civil Petitions Nos.2687 to 2696 of 2001, Civil Appeals Nos.551 and 552 of 2002, Civil Appeals Nos. 2087 to 2094 of 2004, Civil Appeal Nos.791 of 2005, C.As. Nos.152 and 43 of 2005, C.M.As. Nos.2627, 2628 of 2005 in C.A. Nos. 43 and 152 of 2005, decided on 5th March, 2007.

(On appeal from the judgment and orders dated 25-9-2001 passed by the High Court of Sindh at Karachi in S.T. Appeals Nos.52 to 63 of 2001, dated 24-8-2004 passed by the High Court of Sindh at Karachi in S.T.A. No.47 of 2003, dated 12-8-2004 in S.T.A. No.196 of 2003, 24-8-2004 in STAs Nos.42 to 44 of 2004, 46 of 2004, 48 of 2004, 45 of 2004 and dated 18-5-2004 passed by the High Court of Sindh at Karachi in STA No.104 of 2002 and 28-10-2002 passed by the Lahore High Court, Rawalpindi Bench in STA No.89 of 2002 and 26-11-2002 passed by the Lahore High Court, Rawalpindi Bench in Customs Appeal No.45 of 2002).

(a) Sales Tax Act (VII of 1990)---

----S.2(12), (33) & (15)---Constitution of Pakistan (1973), Art. 185 (3)---Leave to appeal was granted by Supreme Court to consider; whether with reference to facts and circumstances of the matters, definitions of "goods", "supply" and "taxable activity" as provided under S.2(12), (33) and (35) of Sales Tax Act, 1990, was correctly interpreted and applied by High Court in the matter; whether fixed assets being movable property fell within the scope of "goods", as defined in Sales Tax Act, 1990 and were taxable; and whether disposal of fixed assets/goods through sale, lease or through any other means of disposition carried out for consideration was taxable supply and was covered by definition of "taxable activity".

(b) Sales Tax Act (VII of 1990)---

----S. 3(1)(a)---Words "in the course or furtherance of" occurring in S.13(1)(a), Sales Tax Act, 1990---Scope---Words "in the course or furtherance of" have prefixed words business or taxable activity---Meaning of "in the course of" can be taken to mean as connected with, related to and having some nexus with business/taxable activity and similarly "in furtherance of" is indicative of the fact that taxable supply has been made for enhancement/further development of business/taxable activity.

(c) Words and phrases---

----Furtherance---Meaning.

Advanced Law Lexicon, Third Edn. 2005, p.1953 and Oxford English Dictionary, Vol. IV, p.619 rel.

(d) Sales Tax Act (VII of 1990)---

----Ss. 2(28), 2(41) [as amended by Finance Act (IX of 1996)] & 3(1)(a)---Term "taxable supply"---Meaning---Taxable supply has not been confined or limited to the one which is the product or the goods manufactured but also includes those goods which involve in some way with the progress, promotion, advancement of business activity / taxable activity.

(e) Sales Tax Act (VII of 1990)---

----S. 3(1)---Sales tax---Applicability---Sales tax would be applicable in respect of taxable supply made during the course of a business activity; it is immaterial whether supplier is in the business of relevant goods or not so involved but sale of such items and utilization of such sale consideration in business activity is definitely to be considered in the course of or in furtherance of business/taxable activity.

(f) Precedent---

----Judgment from foreign jurisdiction---Scope---Such judgment does not have binding effect, may be persuasive in nature, if setting up a rule of law, while interpreting statutory provisions, if those are identical with the cases which are being dealt with.

(g) Sales Tax Act (VII of 1990)---

----Ss. 3, 7, 8, 13 & Sixth Sched.---Sales tax, recovery of---Fixed assets, old and used machinery and equipment---Input tax, non-availing of---Authorities issued notices to assessees for recovery of sales tax on sale of their fixed assets, plant, machinery, electrical and mechanical equipment, furniture, fittings and fixtures---Order in Original passed by the authorities was set aside by High Court---Contention of assessees was that no input tax was availed by them as the same was not allowed, therefore, they were not liable to pay tax on such items---Validity---Provision of S.7 of Sales Tax Act, 1990, which was a beneficial section, entitled a registered person to deduct input tax from output tax, however S.8 of Sales Tax Act, 1990, provided certain eventualities and powers to Federal Government through notification in official Gazette to specify the goods under which input tax was not available---Federal Government, while exercising such power under S.8 of Sales Tax Act, 1990, issued notifications prescribing goods on which adjustment of input tax was disallowed---Such might be in order to forestall the possible misuse of input adjustment against procurement of such goods which were not direct constituent/ingredients of finished goods or which had multiple usage as well and also in line with provisions of S.8 of Sales Tax Act, 1990 that the goods were used not for the purpose of manufacture or production of taxable goods or taxable supplies---Refusal of input tax adjustment within the purview of legal provision or legally competent notifications did not absolve the assets from settled/due liability---Disposal of fixed assets, scrap by a registered person being not exempted under S.13 or being not specified in sixth schedule to Sales Tax Act, 1990, were chargeable to sales tax and supply thereof was taxable supply---Consideration/sale proceeds received against disposal of fixed assets as well as scrap/waste were the income of respondents and therefore, it had been taken as income and accounted for as such in their financial accounts---Such income being a part of business and investing activity done during the course of business was an act of furtherance of business---Fixed assets were goods or taxable goods and were within the ambit of taxable supply and liable to levy of sales tax---High Court proceeded on wrong premises and had wrongly interpreted the legal provisions and drawn a wrong conclusion therefrom---Judgment passed by High Court was set aside and assessees were held liable to pay sales tax on the assets in question---Appeal was allowed.

Black's Law Dictionary Revised 4th Edn., p. 270 and Words and Phrases, Vol. 6, published by St. Paul, Minn. West Publishing Co. ref.

Board of Revenue and others v. A.M. Ansari and others AIR 1976 SC 1813; The State of Tamil Nadu v. Thiru Murugan Brothers AIR 1988 SC 336; Director of Supplies and Disposals, Calcutta, v. Member, Board of Revenue, West Bengal, Calcutta AIR 1967 SC 1826 and State of Gujarat v. Messrs Rajpur Manufacturing Co. Ltd. AIR 1967 SC 1066 distinguished.

Syed Iftikhar Gillani, Senior Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Appellants (in C.As. Nos.551 and 552 of 2002).

Dr. Sohail Akhtar, Advocate Supreme Court with Nazir Ahmed Lughmani, Advocate-on-Record for Appellants (in C.M.A.No.2628/2005 in C.A.No.43 and C.M.A. No.2627/2005 in C.A. No.152 of 2005).

A.S.K, Ghori, Advocate Supreme Court/Advocate-on-Record for Appellants (in C.As.Nos.2687-2696 of 2001 and 2087 to 2094 of 2004).

Nemo for Appellant (in C.A. No.791 of 2005).

Raja Muhammad Akram, Senior Advocate Supreme Court for Respondents (in CMA No.2628 in C.A.No.152 of 2005)

Muhammad Akram Sheikh, Senior Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Respondents (in C.A.No.2092 of 2004).

Dr. Muhammad Farooq Nasim, Advocate Supreme Court for Respondents (in C.As.Nos.2687-2691 of 2001 and C.As. Nos. 551 and 552 of 2002).

Munir A. Malik, Advocate Supreme Court for Respondents (in C.A. No.2693 of 2001).

Muhammad Farid, Advocate Supreme Court for Respondents (in C.A.No.2694 of 2001).

Sohail Muzaffar, Advocate Supreme Court for Respondents (in C.A.No.2090 of 2004).

Anwar-ul-Haq, Advocate Supreme Court with Mehr Khan Malik, Advocate on Record for Respondents (in C.A. No.2093 of 2004).

Zulfiqar Naqvi, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Respondents (in C.A. No.2094 of 2004).

Farrukh Jawad Panni, Advocate Supreme Court with M.S. Khattak, Advocate on Record for Respondents (in CMA No.2627/2005 in C.A.No.43 of 2005).

Muhammad Munir Peracha, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Respondents (in C.A.No.791 of 2005).

Dates of hearing: 1st and 2nd March, 2006.

P L D 2007 Supreme Court 535

Present: Javed Iqbal, M. Javed Buttar and Hamid Ali Mirza, JJ

JAN MUHAMMAD and others---Appellants

Versus

KUNDAN MAI and 14 others---Respondents

Civil Appeal No.1254 of 2004, decided on 7th February, 2007.

(On appeal from the judgment dated 14-5-2001 of the Lahore High Court Bahawalpur Bench passed in R.S.A. No.36 of 1985/BWP).

(a) Punjab Pre-emption Act (I of 1913)---

----S. 15---Superior right of pre-emption---Collaterals---Scope---Pre­emptor howsoever remotely connected with common ancestor of vendors can come forward and claim superior right of pre-emption.

Jalal Din v. Saeed Ahmad and others PLD 1979 SC 879 ref.

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

----Ss. 15 & 21---Superior right of pre-emption---Collaterals---Pedigree­-table---Proof---Oral evidence---Pre-emptors claimed to be collaterals of vendor through common ancestor in the fifth degree and were also owners in the estate by way of mutation of inheritance attested in favour of their father who inherited a piece of land from one relative who died issueless---Trial Court dismissed the suit but Lower Appellate Court decreed the same on the ground of pre-emptors being collaterals---Judgment and decree passed by Lower Appellate Court was maintained by High Court---Validity---Documentary evidence produced by both the parties established relationship of vendors and pre-emptors---Contents of Pedigree table were proved by oral evidence---Lower Appellate Court as well as High Court correctly read oral as well as documentary evidence and correctly found that pre-emptors as well as vendors were connected with one another through same ancestor---Vendees failed to point out any misreading or non-reading of evidence in the judgment passed by High Court---Supreme Court declined to interfere with the judgment and decree passed by High Court---Appeal was dismissed.

Muhammad Naeem and others v. Ghulam Muhammad and others 1994 SCMR 559; Rehman v. Noora through his Legal Heirs 1996 SCMR 300; Muhammad Bakhsh v. Zia Ullah and others PLD 1971 BJ 42 and Muhammad Hussain and others v. Muhammad Khan 1989 SCMR 1026; distinguished. Mst. Farrukh Jabin v. Maqbool Hussain through Legal Heirs and others 2001 SCMR 820 rel.

Noor Salam and others v. Gul Badshah and others PLD 2002 SC 622; Jalal Din v. Saeed Ahmad and others PLD 1979 SC 879 and Udai Chand v. Shankar Lal and others AIR 1978 SC 765 ref.

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

----Art. 185(3)---Petition for leave to appeal---Question of law---Principle---Supreme Court in petty cases can refuse to decide a question of law even if leave to appeal is granted and can revoke the leave which has been obtained by making false and misleading assertions in petition.

Management of D.T.C. v. B.B.L. Majalay and others AIR 1978 SC 764 rel.

Syed Afzal Hadier Senior Advocate Supreme Court and Tanvir Ahmad Advocate-on-Record (absent) for Appellants.

Gulzarin Kiani, Advocate Supreme Court and Arshad All Chaudhry, Advocate -on-Record for Respondents Nos. 1 to 12.

Ex parte: For Respondents Nos. 13 and 14.

Date of hearing: 7th February, 2007.

P L D 2007 Supreme Court 539

Present: Khalil-ur-Rehman Ramday and Raja Fayyaz Ahmad, JJ

MUHAMMAD BASHIR---Petitioner

Versus

STATION HOUSE OFFICER, OKARA CANTT. and others---Respondents

Civil Petition No.512-L of 2006, decided on 20th April, 2006.

(On appeal from the order dated 22-3-2006 of the Lahore High Court, Lahore passed in writ Petition No.2279 of 2006.)

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

----Ss. 154, 155, 157 & 162---Recording of F.I.R.---Enquiry as to correctness or otherwise of information received by an Officer Incharge of Police Station for the purpose of being reduced in writing as F.I.R. and powers of Officer Incharge of Police Station to refuse to record F.I.R. only because, in his opinion, the allegations conveyed to him were false--Scope---No authority vested with an Officer Incharge of a Police Station or with anyone else to refuse to record an F.I.R. where the information conveyed, disclosed the commission of a cognizable offence---No authority vested with an Officer Incharge of a Police Station or with anyone else to hold any inquiry into the correctness or otherwise of the information which was conveyed to the S.H.O. for the purposes of recording of an F.I.R. Any F.I.R. registered after such an exercise i.e. determination of the truth or falsity of the information conveyed to the S.H.O., would get hit by the provisions of section 162, Cr.P.C.---Existence of an F.I.R. was no condition precedent for holding of an investigation nor was the same a prerequisite for the arrest of a person concerned with the commission of a cognizable offence; nor does the recording of an F.I.R. mean that the S.H.O. or a police officer deputed by him was obliged to investigate the case or to go through the whole length of investigation of the case mentioned therein or that any accused person nominated therein must be arrested---Check against lodging of false F.I.Rs. was not refusal to record such F.I.Rs, but punishment of such informants under S.182, P.P.C. etc. which should be, if enforced, a fairly deterrent against misuse of the provisions of S.154, Cr.P.C.---Principles.

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

----S. 22-A(6)---Powers conferred under S.22-A(6), Cr.P.C. on Ex-officio Justice of the Peace---Scope and extent---Only jurisdiction which could be exercised by an Ex-officio Justice of the Peace under S.22-A(6), Cr.P.C. was to examine whether the information disclosed by the applicant did or did not constitute a cognizable offence and if it did then to direct the concerned S.H.O. to record an F.I.R. without going into the veracity of the information in question, and no more---Offering any other interpretation to S.22-A(6), Cr.P.C. would be doing violence to the entire scheme of Criminal Procedure Code, 1898 which could not be permitted---Principles---Legislative history of Institution of Ex-officio Justice of the Peace and powers conferred on them, traced.

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

----S.22-A(6)---Constitution of Pakistan (1973), Art.199---Powers of Ex-officio Justice of the Peace under S.22-A(6), Cr.P.C.---Nature---Exercise of discretion under Art.199 of the Constitution was not dependent only, on illegality committed by a competent authority but was also controlled by some other important considerations such as the seeker of a writ being an aggrieved person; availability of alternative remedies such as filing of a complaint etc. in criminal matters and the applicant being qualified, in equity, for the grant of the relief sought---Powers of an Ex-officio Justice of the Peace under S.22-A(6), Cr.P.C. could, therefore, not be equated with the constitutional jurisdiction vesting in a High Court.

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

-----S. 22-A(6)---Powers of Ex-officio Justice of the Peace---Scope---Refusal to record, in the register of F.I.Rs. the information conveyed to him by complainant which information did disclose the commission of a cognizable offence, was illegal and equally invalid was the exercise undertaken by Ex-officio Justice of the Peace wherein the application of complainant was rejected.

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

----S. 22-A(6)---Constitution of Pakistan (1973), Arts. 199 & 185(3)---High Court, under its constitutional jurisdiction had quashed the F.I.R. only on the ground that while securing compliance, from the concerned S.H.O. of one of his legal obligations, complainant had not disclosed the dismissal by an Ex-officio Justice of the Peace, of his application moved for the purpose---Validity---Discretion so exercised by the High Court, could not be sustained for more than one reasons, firstly, because recording of an F.I.R. was not a discretionary relief to be granted by an S.H.O. which could be refused if the one seeking registration of a criminal case had suffered certain acts which disentitled him to a relief in equity; Secondly, it appeared to have escaped the notice of the High Court that a crime was an offence committed against the State; that the position of the one bringing the commission of such a crime to the notice of the competent authorities was never more than a witness and that an offender could never be permitted to escape punishment only because of some error suffered by an informant while putting the machinery of law into motion---Remedy may well lie in punishing the informer for his fault but not in sparing a criminal---Judgment of High Court resulting in the quashment of the F.I.R. was not, therefore, maintainable---Supreme Court, in circumstances, converted petition for leave to appeal into an appeal which was 'allowed as a result whereof the order of the Ex-officio Justice of the Peace refusing the application and impugned judgment of the High Court to the extent of F.I.R. in question were set aside, consequently said F.I.R. stood revived and the concerned S.H.O. shall be free to deal with-the same in accordance with law---High Court shall however, be at liberty to proceed with the notice issued to complainant under S.193, Cr.P.C.

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

----S. 22-A(6)(ii)---Police Order (22 of 2002), Art.18---Powers of transfer of investigation from one Police Officer to another by Ex-officio Justice of the Peace---Supreme Court, on examination of the provision of S.22-A(6)(ii), Cr.P.C. summarized some of the questions which were likely to confront the competent Courts in due course and which would demand resolution.

Following are the questions which were likely to confront the Courts which would demand resolution:

(a) Has this laboured innovation of transfer of investigations introduced by the police, yielded any advantageous benefits to the courts of law in the administration and dispensation of justice in the field of crimes or was it just a source of nuisance for them only complicating the already complicated issues and deserved to be discouraged?

(b) Could a power be conferred on an Ex-officio Justice of the Peace to do that which was not recognized by the Cr.P.C. and was un­known to it?

(c) While deciding the fate of a complaint about transfer of an investigation, the Ex-officio Justice of the Peace, who also happened to be a Sessions or at least an Additional Sessions Judge, will have to pronounce upon the quality of investigation conducted in a given case and t :is having been so done, what would be its effects on the appreciation of the evidence collected through the said exercise when a trial Court was to undertake the said exercise which trial court could well take even it be a Magistrate and thus a court subordinate to such an Ex-officio Justice of the Peace?

(d) Section 18 and some other provisions of the Police Order of 2002 being the Chief Executive's Order No.22 of 2002, carries certain provisions regarding investigation of criminal cases which are, at least prima facie, not reconcilable with the special and the parent provisions on the subject i.e. the provisions of the Code of Criminal Procedure and if it be so then what would be the effect of such-like illegal investigations on the trials that followed?

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

----Ss. 22-A & 25 [as amended by Code of Criminal Procedure (Third Amendment) Ordinance (CXXXI of 2002)]---Ex-officio Justice of the Peace, powers of---Amendments introduced in Ss.22-A & 25, Cr.P.C. had been so made to lessen the excessive burden of the High Courts which was got created through tiling of writ petitions seeking registration of criminal cases and transfer of investigation---Supreme Court observed that if this be so, then Supreme Court would not be sure about the questionable wisdom leading to these amendments which sought to relieve an elder brother of his burden by adding the same on to the back of an already over-loaded younger brother---Copies of the present judgment were directed to be sent to Registrars of all the four High Courts in the country who shall, in turn, send the same to all the Sessions Judges in their respective provinces for their guidance and compliance---Law Secretaries of the Federation and the Provinces will also be sent the copy of the judgment for re-examining the matter of the amendments in question in the light of observations made in the judgment.

Muhammad Tahir Chaudhry, Advocate Supreme Court with Mahmudul Islam, Advocate-on-Record for Petitioner.

Ejaz Ahmed Khan, Advocate Supreme Court with Ch. M. Anwar Khan, Advocate-on-Record and Respondents Nos. 2 and 3 (in person).

Ch. Aamir Rehman, Addl. A.-G. with M. Ashraf, Inspector/SHO with Ghulam Qadir Khan, Incharge Investigation, Police Station Cantt. Okara.

P L D 2007 Lahore 544

Before Syed Zahid Hussain, J

NADEEM ASGHAR KAIRA---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary, Local Government and Community Development Department---Respondent

Writ Petition No.4709 of 2007, decided on 8th June, 2007.

Punjab Local Government Ordinance (XIII of 2001)---

----S. 112---Constitution of Pakistan (1973), Arts. 19 & 32---Constitutional petition---Approval of budget presented by Nazim---Initially the Council and then the government, in the present case, had failed to prepare, approve and authenticate the budget as envisaged by S.112, Punjab Local Government Ordinance, 2001-7-Council had remained dormant due to such failure, resulting in deprivation of local population of the developmental activities and programmes---Financial year was about to be over but the budget had not yet been prepared or approved upon which the whole developmental work was dependent---If the Council had failed in preparation of the budget the Provincial Government was obliged to act under S.112(7), Punjab Local Government Ordinance, 2001, which had also failed to perform its legal obligation and duty---One of the principles of Policy contained in Art.32 of the Constitution was that "the State shall encourage Local Government Institutions composed of elected representatives of the area concerned" and it was the responsibility of the State-to observe and implement such principles of Policy---Alternate remedy for the petitioner to approach the Provincial Local Government Commission, appointed by the Government pursuant to the provisions of Ss.131 & 132 of the Punjab Local Government Ordinance, 2001 could not be countenanced, particularly when only few days were left in the expiry of financial year---Such a remedy even if regarded as alternative could not be considered as efficacious or speedy in the peculiar circumstances of the present case---Article 199 of the Constitution conferred jurisdiction upon the High Court to make an order directing a person to do something he was required by law to do; this was comparable to writ or order of mandamus and present was an appropriate case for direction to the Government to perform its legal duty and obligations as envisaged by the Punjab Local Government Ordinance, 2001, to prepare, approve and authenticate the budget and also to approve such development schemes as may be in accordance with law and the rules within a fortnight---Order accordingly.

Judicial Review of Public Actions, Vol. 2, p.1071 by Justice (R.) Fazal Karim; Shifa Laboratories, Lahore v. Government of Pakistan through Secretary, Health, Ministry of Health and Population, Planning and Health Division, Islamabad and another PLD 1978 Lah. 1040 and Makhdoom Muhammad Mukhtar, Member Provincial Assembly, Punjab v. Province of Punjab through Principal Secretary to Chief Minister, Punjab, Lahore and 2 others PLD 2007 Lah. 61 ref.

Ghazanfar Ali Gul for Petitioner.

Aamir Rehman, Addl. A.-G., Punjab for Respondent.

Date of hearing: 8th June; 2007.

P L D 2007 Supreme Court 560

Present: Muhammad Nawaz Abbasi, Saiyed Saeed Ashhad and Raja Fayyaz, Ahmad, JJ

Br. JEHANZAIB RAHIML-Petitioner

Versus

Dr. SHAUKAT PERVEZ, Dr. HAMIDA RAHIM and others---Respondents

Civil Review Petition No.46 of 2007 in Civil Appeal No.241 of 2005, decided on 4th April, 2007.

(On review from the judgment dated 21-12-2006 passed by Supreme Court of Pakistan in C.A. No.241 of 2005).

(a) Supreme Court Rules, 1980---

----O. XXVI, Rr. 6 & 8---Review---Petition drawn by associate of the counsel who appeared in appeal---Validity---Supreme Court entertained review petition and allowed advocate who assisted senior counsel in the main case as his associate to argue the review petition.

Sh. Anwar-ul-Haq v. Miss Surraya Perveen and 2 others 1971 SCMR 171 fol.

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

----Art. 188---Supreme Court Rules, 1980, O.XXVI---Review of Supreme Court judgment---Limitation---Condonation of delay---Petition was filed with a delay of 51 days---Plea raised by petitioner was that Supreme Court in its discretionary jurisdiction had ample power to condone the delay for the purpose of decision of a case on merits---Validity---Delay of each day must be satisfactorily explained and ground on the basis of which condonation was sought must be recognizesd in law as a valid ground and sufficient cause for condonation of delay---Petitioner, due to his own negligence and choice, did not file review petition within time and after expiry of limitation on the basis of self-created ground of bias of Supreme Court Bench, had sought interference of Supreme Court in the consent judgment in review jurisdiction---Scope of review being limited and unless very strong ground was shown for interference, the review was not to be entertained and delay of even one day could not be condoned without sufficient cause---Supreme Court did not find any valid ground or sufficient cause for condonation of delay of 51 days in filing review petition against consent judgment---Petition was dismissed.

(c) Supreme Court Rules, 1980---

---O. XXVI---Review of Supreme Court judgment---Principles---Petitioner's right to address the court---Validity---Case cannot be reopened on merits---Review petitioner. cannot himself address the court., if he was being represented by the counsel.

S. Zafar Abbas Zaidi, Advocate Supreme Court for Petitioner (with Petitioner in person).

Nemo for Respondents.

P L D 2007 Supreme Court 564

Present: Javed Iqbal, Abdul Hameed Dogar, and Mian Shakirullah Jan, JJ

Criminal Petition No.199 of 2006

Raja SHAMSHAD HUSSAIN---Petitioner

Versus

GULRAIZ AKHTAR and others---Respondents

(On appeal from the judgment dated 27-7-2006 passed by Lahore High Court, Lahore in Crl. A. No.316 of 2003).

Criminal Petition No.652-L of 2006

THE STATE through Advocate-General, Punjab, Lahore ---Petitioner

Versus

GULRAIZ AKHTAR---Respondent

(On appeal from the judgment dated 27-7-2006 passed by Lahore High Court, Lahore in Crl.A.No.316 of 2003)

Criminal Petitions Nos.199 and 652-L of 2006, decided on 29th March, 2007.

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

----S. 426(1) & (1-A)---Suspension of sentence---Scope---Two provisions, one under S.426(1) and the other under S.426(1-A), Cr.P.C. are unlike and in contrast to each other; in the former it is the discretion of Court and in case of grant of bail reasons have to be recorded, while in the later it has been matte obligatory that sentence should be suspended with a further provision that in case of refusal the reasons should be recorded.

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

----Ss. 426(1) & 497---Suspension of sentence and grant of bail---Principles---Provisions under S.426(1), Cr.P.C. are analogous to the one contained in S.497, Cr.P.C.; in both the cases the sentence or detention is to be suspended pending hearing of appeal/trial and the convict or the detenuc is be released on bail with only difference that in the former case the person is a convict who has been already found guilty while in the latte case he has been charged only to face trial and is still to be proved guilty---In absence of any guideline, it would be appropriate to follow the one provided under S.497, Cr.P.C. on the principle that where a statute lays down certain principles for doing some acts they may be taken as a guideline for doing something of the same nature which is in the discretion of the court---Existence and non-existence of reasonable grounds for believing that person is guilty of the offence and the scope of further inquiry in S.497, Cr.P.C. are the criteria/hallmarks and for arriving at such conclusion tentative assessment and not minute or detailed assessment of evidence has been made permissible---In case of suspension of sentence, only tentative assessment of available evidence and of judgment is permissible and detailed appraisal of evidence is to be avoided.

Farhat Azeem v. Waheed Rasul and others PLD 2000 SC 18; Allah Ditta Khan v. The State PLD' 2002 SC 845; The State v. Shah Sawar 1969 SCMR 151 and Bahar Khan v. The State 1969 SCMR 81 rel.

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

----Ss. 302/34/109-Criminal Procedure Code (V of 1898), S.426---Constitution of Pakistan (1973), Art.185(3)---Suspension of sentence---Observation by Appellate Court--Sentence of accused was suspended and he was released on bail---Contention of complainant was that observation given by High Court during suspension of sentence might affect decision of appeal on merits---Validity---Appellate Court was not to be influenced by such observations as those were to be taken as tentative and only for limited purpose of deciding questions at the time pending before the court for suspension of sentence---There might be every possibility that sometimes because of lack of proper assistance both on factual side as well as on legal plane, as the matter might not be taken so serious because of its interim nature---Court at the time of deciding the appeal might ignore such observations or even may not at all advert to them---View taken by High Court was found on proper exercise of court's discretion under S.426, Cr.P.C. which did not deserve interference---Supreme Court had been declining to interfere in the cases of bail unless circumstances were altogether of exceptional character and refusal might entail risk of grave illegality or clear abuse of process or some gross act of injustice---Order of grant of bail ought not to be interfere with lightly---Supreme Court refused to interfere with the order of suspension of sentence passed by High Court---Leave to appeal was refused.

Muhammad Nawaz v. Muhammad Nawaz alias Naji and 4 others 1997 SCMR 1521; Muhammad Saleem and another v. The State PLD 2006 SC 483; Maqsood v. Ali Muhammad 1971 SCMR 657 and Peer Mukaram-ul-Haq v. National Accountability Bureau NAB through Chairman and others 2006 SCMR 1225 ref.

Abdul Ghaffar v. Anwarul Hassan and others 1978 SCMR 149 and Faqir Muhammad v. Akbar and others 1979 SCMR 270 rel.

Dr. Babar Awan, Advocate Supreme Court for Petitioner (in Crl.P.No.199 of 2006).

Sardar M. Latif Khan Khosa, Advocate Supreme Court and Ch. Akthar Ali, Advocate-on-Record for Respondent No.1 (in Crl.P.No.199 of 2006).

Ms. Yasmeen Sehgal, D.P.G., Punjab for Petitioner No.2 (in Crl.P.No.199 of 2006).

Ms. Yasmeen Sehgal, D.P.G., Punjab for Respondent No.2 (in CrI.P.No.652-L of 2006).

Sardar M. Latif Khan Khosa, Advocate Supreme Court and Ch. Akthar Ali, Advocate-on-Record for Respondent (in Crl. P.No.652-L of 2006).

P L D 2007 Supreme Court 571

Present: Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed and Hamid Ali Mirza, JJ

FAZAL DAD---Appellant

Versus

Col.(Rtd.) GHULAM MUHAMMAD MALIK and others---Respondents

Civil Appeal No.276 of 2001, decided on 23rd April, 2007.

(On appeal from the judgment/order dated 21-2-2000 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in Writ Petition No.296 of 2000).

(a) Interpretation of statutes---

----Preamble---Scope---Preamble is always a key to interpret the statute.

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

---S. 6 & Preamble---Acts of terrorism---Trial---Object of promulgation of Anti-Terrorism Act, 1997, was to control acts of terrorism, sectarian violence and other heinous offences as defined in S.6 of Anti-Terrorism Act, 1997, and their speedy trial---To bring the offence within the ambit of Anti-Terrorism Act, 1997, it is essential to examine that offence should have nexus with the object of the Act and is covered by its relevant provisions.

(c) Interpretation of statutes---

----Provisions of law must be read as a whole in order to determine its true nature, import and scope.

Mian Muhammad Nawaz Sharif's case PLD 1993 SC 473 rel.

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

----Ss. 435/447/427---Anti-Terrorism Act (XXVII of 1997), Ss.6, 7-A & 7-B---Act of terrorism---Determination---Transfer of case to Special Court---Case registered against accused was transferred to Special Court but High Court, in exercise of Constitutional jurisdiction, set aside the transfer order---Validity---Ingredients of offences mentioned in S.6 of Anti-Terrorism Act, 1997, had' no nexus with the contents of the F.I.R.---Nothing was brought on record to show that occurrence created terror, panic or sense of insecurity among people by securing possession of land in question by accused---Case against accused did not qualify to be a `terrorist act' within contemplation of S.6 of Anti-Terrorism Act, 1997, or its Schedule---High Court was justified to transfer the case to ordinary Court---Appeal was dismissed.

Jamat-e-Islami Pakistan's case PLD 2000 SC 111 ref.

(e) Interpretation of statutes---

----Legislative intent---Statutory provisions ought not to be construed in isolation---Courts always lean towards reasonable interpretation of statute---Legislative intent as a guide to interpretation of statute should be gathered primarily from words used in statute.

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

----Preamble---Special law and general law---Provisions of Criminal Procedure Code, 1898---Applicability---Promulgation of special law by itself is not sufficient to supersede provisions of law contained in Criminal Procedure Code, 1898---In case, offence has no nexus with the parameters of special law, then general law applies.

Mehram Ali's case PLD 1998 SC 1445 and Jamat-e-Islamic Pakistan's case PLD 2000 SC 111 rel.

Muhammad Munir Peracha, Advocate Supreme Court for Appellant.

M. Ilyas Siddiqui, Advocate Supreme Court for Respondents.

Date of hearing: 23rd April, 2007.

P L D 2007 Supreme Court 578

Present: Khalil-ur-Rehman Ramday, Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar, Mian Shakirullah Jan, M. Javed Buttar, Tassaduq Hussain Jillani, Saiyed Saeed Ashhad, Nasir-ul-Mulk, Raja Fayyaz Ahmad, Ch. Ijaz Ahmed, Syed

Jamshed Ali, Hamid Ali Mirza and Ghulam Rabbani, JJ

MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CHIEF JUSTICE OF PAKISTAN---Petitioner

Versus

THE PRESIDENT OF PAKISTAN dents through the Secretary and others-Respondents

Constitutional Petition No. 21 of 2007, decided on 20th July, 2007.

Constitution of Pakistan (1973)---

----Arts. 209(5), 184(3) & 187---Judges (Compulsory Leave) Order [President's Order 27 of 19701, Preamble---Constitutional petition under Art.184(3) of the Constitution before Supreme Court---Vires of Judges (Compulsory Leave) Order, 1970---Reference under. Art.209(5) of the Constitution by the President of Pakistan dated 9-3-2007 against Chief Justice of Pakistan and order of the Supreme Judicial Council restraining the Chief Justice of Pakistan from acting as a Judge of the Supreme Court and/or Chief Justice of Pakistan and order dated 15-3-2007 passed by the President directing that the Chief Justice of Pakistan should be on leave and appointment of Acting Chief Justices of Pakistan (9-3-2007 and 22-3-2007)---Validity---Supreme Court, unanimously declared the petition under Art.184(3) of the Constitution to be maintainable, and by majority of 10 to 3 (Faqir Muhammad Khokhar, J, M. Javed Buttar, J and Saiyed Saeed Ashhad, J dissenting) set aside the Reference/direction by the President dated 9-3-2007---Judges (Compulsory Leave) Order, 1970 was unanimously declared as ultra vires of the Constitution and consequently the order of the President dated 15-3-2007 directing that Chief Justice of Pakistan shall be on leave was also unanimously declared to have been passed without lawful authority---Such invalidity, however, shall not affect the ordinary working of the Supreme Court or its discharging of any other Constitutional order/or legal obligations by the Acting Chief Justices of Pakistan during the period in question---Present declaration by the Supreme Court was so made by applying the de facto doctrine---Order of the President dated 9-3-2007 and order of the Supreme Judicial Council of the same date restraining the Chief Justice of Pakistan from acting as a Judge of the Supreme Court and/or the Chief Justice of Pakistan were also unanimously set aside as being illegal---However, since according to minority view on the question of validity of the direction (the Reference), in question, the said Reference had been competently filed by the President, therefore, the Supreme Court could pass a restraining order under Art. 184(3) read with Art.187 of the Constitution---Matter of accountability of the Chief Justice of Pakistan and issue that Chief Justice was not accountable, having not been raised before the Supreme Court, same did not require any adjudication---Held, Chief Justice of Pakistan (petitioner) shall be deemed to be holding the said office and shall always be deemed to have been so holding the same.

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court, Hamid Khan, Senior Advocate Supreme Court, M.S. Khattak, Advocate-on-Record assisted by Barrister Gohar Ali Khan, Nadeem Ahmed and Shahid Saeed, Advocates (under special permission granted by Supreme Court) for Petitioner.

Makhdoom Ali Khan, Attorney General for Pakistan, Raja Abdul Ghafoor, Advocate-on-Record assisted by Khurram Hashmi and Umair Majeed Malik, Advocates (under special permission granted by Supreme Court) (on Court's notice).

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, Raja Muhammad Ibrahim Satti, Advocate Supreme Court assisted by Waqar Rana, Advocate (under special permission granted by Supreme Court) for Respondent No.1.

Maqbool Ellahi Malik, Senior Advocate Supreme Court, Malik Muhammad Qayyum, Advocate Supreme Court, Shaukat Ali Mehr, Advocate Supreme Court, Ch. Akhtar Ali, Advocate-on-Record assisted by Muhammad Ahmed Qayyum, Advocate (under special permission granted by Supreme Court) for Respondent No.2:

Syed Zafar Abbas Naqvi, Advocate-on-Record for Respondent No.3:

Nemo for Respondents Nos. 4 and 5.

Mr. Aftab Iqbal Chaudhry, A.-G. Punjab, Ch. Muhammad Hussain, Addl. A.-G. and Rao Muhammad Yousaf Khan, Advocate-on-Record for Respondent No.6.

Dates of hearing: 15th to 17th, 21st to 25th, 28th to 31st May, 2007, 1st, 4th to 8th, 11th to 14th, 18th to 21st, 25th to 28th June, 2007, 2nd to 5th, 9th to 12th and 16th to 20th July, 2007.

P L D 2007 Supreme Court 582

Present: Tassaduq Hussain Jillani, Nasir-ul-Mulk and Syed Jamshed Ali, JJ

ZULFIQAR and others---Appellants

Versus

SHAHDAT KHAN---Respondent

Civil Appeals Nos.848 and 849 of 2005, decided on 10th April, 2007.

(Against the judgments dated 27-4-2004 passed by the Lahore High Court, Lahore in C.Rs.No.1827 and 1828 of 2002).

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

----Arts. 185(2)(d)(e) & 185(3)---Supreme Court Rules, 1980, O.XII, R.2 & O.XIII, R.1---Conversion of petition for leave to appeal into direct appeal---Limitation---Filing of petition within time---Non-raising of objection by Office of Supreme Court that appeal and not petition was competent--Prayer for conversion of petition into direct appeal with condonation of delay caused in filing direct appeal---Validity---Counsel had committed mistake in filing petition, but its effect was aggravated by silence of the office---Contributory negligence of the Office could not be pressed as a sole ground to seek condonation of delay---Right of appeal was much stronger than right of filing petition---Giving up right of appeal by a litigant would not necessarily mean giving up his right of filing of petition---Non-suiting a litigant for not filing appeal would amount to punishing him for not availing a right, which ensured to his benefit---Neither appellant had been negligent nor was mistake to file petition instead of appeal was so reckless that discretion ought not to be exercised in his favour---Supreme Court condoned delay in filing appeal.

Taza Gul and others v. Haji Fazal Subhan 2006 SCMR 504; Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others AIR 1987 SC 1353; Investment Corporation of Pakistan v. Syed Jamaat Ali Shah and another 1992 SCMR 1195; Haji Muhammad Nawaz v. Hussain Shah 1990 SCMR 1621; Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1991 SCMR 2164 and Chairman, N.W.F.P. Forest Development Corporation and others v. Khurshid Anwar Khan and others 1992 SCMR 1202 ref.

(b) Administration of justice---

----Act of court or public functionary, on the actions of whom a citizen has no control, should not be allowed to prejudice anyone.

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

----Art.185(2)(3)---Petition for leave to appeal---Wrong provisions of law quoted on memo. of petition would not debar Supreme Court from hearing same as appeal, if within time.

(d) Interpretation of statutes---

----Provision made in a statute for benefit of an individual neither could be waived nor liable to be pressed to his disadvantage.

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

----Art. 185(2)(3)---Right of appeal stronger than right of filing petition---Giving up right of appeal by litigant would not mean giving up his right of filing petition---Principles.

A provision made in a statute for the benefit of an individual cannot only be waived, but such a provision cannot be pressed to his disadvantage. This is said in the context that right of appeal is much stronger right than the right of filing a petition, and if a litigant gives up his right of appeal, he does no necessarily mean that he has given up his right to file a petition. To non-suit a litigant for not filing an appeal would in fact amount to punishing him for not availing a right, which enured to his benefit.

(f) Constitution of Pakistan (1973)---

----Art. 185(2)(3)---Supreme Court Rules, 1980, O.XII, R.2 & O.XIII, R.1---Limitation Act (IX of 1908), S.3---Petition or appeal, filing of---Delay, condonation of---Non-applicability of provision of S.3 of Limitation Act, 1908 to such petition or appeal---Effect---Condonation of delay being in discretion of court, if declined, would result in dismissal of petition or appeal as barred by time.

(g) Limitation---

----Expiry of limitation having effect of creating a valuable right in favour of opposite party, but always subject to discretion of court.

(h) Punjab Pre-emption Act (IX of 1991)---

----Ss. 2(d), 3, 4 & 13---West Pakistan Land Revenue Act (XVII of 1967), S.42---West Pakistan Land Revenue Rules; 1968, R.34---Pre­emption suit---Talb-i-Muwathibat, performance of---Plaint showed that pre-emptor came to know of sale through vendee on 18-8-1995, when he made Talb-i-Muwathibat; that date of attestation of mutation mentioned in Pert Patwar and Pert Sarkar was 17-8-1995 and 24-8-1995 respectively---Pre-emptor had not pleaded that sale was complete before attestation of mutation---Neither copy of Roznamcha Waqiati was produced in evidence nor was vendor or Patwari examined---No evidence on record to show that sale price and possession of land had passed on to vendee before attestation of sale---Validity---In absence of specific plea and evidence of payment of sale price to vendor, oral sale would be deemed to have completed on attestation of mutation and not before any date prior thereto---Suit was dismissed in circumstances.

Muslim Law as Administered in India and Pakistan; Begum v. Muhammad Yaqoob 16 All. 444 and Parumal and others v. Wadero Mahomedali and others 171C 39 rel.

(i) Pleadings---

----Plea not raised in pleading---Effect---Decision of case could not possibly rest on such plea---Rationale behind such consistent law would be not to take other party by surprise.

(j) Punjab Pre-emption Act (IX of 1991)---

----Ss. 2(d), 3 & 4---Transfer of Property Act (IV of 1882), S.54---`Sale'---Connotation---Definition for sale as given in Punjab Pre-emption Act, 1991 not similar to that, given in Transfer of Property Act, 1882---Expression "permanent transfer" used in definition of sale in Punjab Pre-emption Act, 1991 connoted a fully consummated sale, which would be interpreted in the light of Injunctions of Islam---Sale would come into existence on payment of sale price and transfer of possession.

Monajal Huq v. Shafiullah and another PLD 1964 Dacca 640 rel.

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

---S. 42---West Pakistan Land Revenue Rules, 1968, R.34---Mutation of sale---Entry in such mutation referring to report recorded in Roznamcha Waqiati---Evidentiary value---Such note/entry was not primary evidence of contents of Roznamcha Waqiati, thus, would not constitute any evidence at all of sale.

Noor Muhammad v. Abdul Ghani 2002 CLC 88; Karam Shah v. Mst. Ghulam Fatima and 3 others 1988 CLC 1812; Sattar Muhammad and 2 others v. Hussian and 3 others PLD 1988 Pesh. 48 and Haq Nawaz v. Malik Gul Hussain through Legal Heirs and another 1994 MLD 585 rel.

(l) Punjab Pre-emption Act (IX of 1991)---

----S. 6---Civil Procedure Code (V of 1908), O.XLI, R.22---Constitution of Pakistan (1973), Art.185(3)---.Pre-emption suit---Superior right of pre-emptor, issue of---Concurrent findings of three courts below in favour of pre-emptor---Judgments of two courts below were in favour of vendee on other issues---Vendee sought to challenge such. right of pre-emptor before Supreme Court on the ground that entire case would be open on au appeal---Validity---No such plea was raised before High Court---Vendee in view of findings of two courts below in his favour could question findings on issues against him by virtue of enabling provisions of O.XLI, R.22, C.P.C.---Concurrent finding of three courts below in favour of pre-emptor could not be re-opened before Supreme Court.

Haji Muhammad Abbas and another v. Shaheen and another 1982 CLC 232 and Syed Haji Imambakhsh Shah and others v. Mir Muhammadali Khan Haji Ali Murad Khan AIR (33) 1946. Sindh 55 ref.

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

----R. 34---West Pakistan Land Revenue Act (XVII of 1967), S.42---Qanun-e-Shahadat (10 of 1984), Art.129(e)---Roznamcha Waqiati, report/entry recorded in---Evidentiary value---Report/entry made by Patwari during the course of performance of official duty would be admissible---Such report/entry, if contained statement of a private person; would be required to be proved to establish its correctness---Principles.

Although Roznamcha Waqiati is required to be maintained under the West Pakistan Land Revenue Rules, 1968 and entry made during the course of performance of official duty is admissible yet if the report contains the statement of a private individual, then it is required to be proved to establish its correctness. Under section 42 of the West Pakistan Land Revenue Act, 1967 it is the person acquiring a right in the land who has to make such a report to the Patwari Halqa. In the present case the report was made by the vendor, therefore, within the scope of section 42, West Pakistan Land Revenue Act, 1967 it is even doubtful whether such a report, at the instance of vendor (a person alienating his right) could be said to have been recorded by the Patwari in the discharge of his official duty.

Noor Muhammad v. Abdul Ghani 2002 CLC 88; Karam Shah v. Mst. Ghulam Fatima and 3 others 1988 CLC 1812; Sattar Muhammad and 2 others v. Hussian and 3 others PLD 1988 Pesh. 48 and Haq Nawaz v. Malik Gul Hussain through Legal Heirs and another 1994 MLD 585 ref.

Gul Zarin Kiayani, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants (in both cases)

Raja M. Ibrahim Satti, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondents (in both cases).

Date of hearing: 14th December, 2006.

P L D 2007 Supreme Court 595

Present: Javed Iqbal, Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

MALIK WAZIR and others---Appellants

Versus

SHAFIQ AHMED and others---Respondents

Civil Appeal No.1286 of 2001, decided on 23rd January, 2007.

(On appeal from the judgment dated 28-3-2000 passed by Peshawar High Court, Peshawar, in W.P. No.1307 of 1995).

(a) Land Reforms Regulation, 1972 (M.L.R. 115)---

----Para. 24---Constitution of Pakistan (1973), Arts.185(3) & 203-F---Restriction on alienation of holdings---Judgment of Shariat Appellate Bench of the Supreme Court reported as 1994 SCMR 899 declaring para. 24 of Land Reforms Regulation, 1972 as un-Islamic with effect from 28-2-1994---Application of such judgment to gift dated 6-11-1972--Supreme Court granted leave to appeal to consider question as to whether said judgment would have retrospective application.

Muhammad Anwar v. Government of Pakistan 1994 SCMR 899 ref.

(b) Land Reforms Regulation, 1972 (M.L.R. 115)---

----Para. 24---Constitution of Pakistan (1973), Arts.185(3) & 203-F---Restriction on alienation of holdings---Judgment of Shariat Appellate Bench of the Supreme Court. reported as 1994 SCMR 899 declaring para.24 of Land Reforms Regulation, 1972 as un-Islamic with effect from 28-2-1994---Chief Land Commissioner vide order dated 18-5-1995 declared gift dated 6-11-1972 as invalid---Validity---Chief Land Commissioner could exercise such powers after target date i.e. 28-2-1994 i.e. date of implementation/application of such judgment .mentioned therein---Chief Land Commissioner had no power on 18-5-1995 to exercise powers conferred upon him under para.24 of Regulation, 1972---Impugned order was set aside for being unlawful---Principles.

Muhammad Anwar v. Government of Pakistan 1994 SCMR 899; Zafar Iqbal v. Bashir Ahmed PLD 1989 Lah. 152; Sardar Ali v. Muhammad Ali PLD 1988 SC 287; Sajwara v. Federal Government of Pakistan PLD 1989 FSC 80; Muhammad Yousaf v. Government of Pakistan PLD 1991 SC 760; Abdur Rehman v. Muhammad Akram 1999 SCMR 100; Sirajuddin v. Member Federal Land Commission PLD 1996 SCMR 100 and Sirajuddin v. Member Federal Land Commission PLD 1996 Lah. 243 rel.

Sheikh Wazir Muhammad, Advocate Supreme Court Advocate-­on-Record for Appellants.

Saeed Baig, Advocate Supreme Court for Respondent No.1.

Respondents 2 to 4; Ex parte.

Date of hearing: 23rd January, 2007.

P L D 2007 Supreme Court 600

Present Sardar Muhammad Raza Khan and Tassaduq Hussain Jillani, JJ

Messrs TAJ COMPANY LIMITED through General-Manager---Petitioner

Versus

Haji AHMAD JAN, PROPRIETOR, MAKTABA-E-HANFIA, QUETTA and others---Respondents

Civil Petitions Nos.1392-L to 1395-L of 2003, decided on 2nd August, 2007.

(On appeal from the judgment dated 7-4-2003 of the Lahore High Court, Lahore passed in ICA No.2-L/2001 and 16-L to 18-L of 2002).

(a) Copyright Ordinance (XXXIV of 1962)---

----Ss. 10, 9 & 39---Claim of exclusive copyright---Requirements---Held, in order to avail such monopoly in the manuscript and to claim exclusive copyright thereof, it must have somewhere been got registered under the provisions of copyright law---Where there was no document on record indicative of the fact that manuscript used by the publisher had ever been registered in accordance with law and if any such document ever existed in favour of the publisher and not placed on record, the claim of publisher was liable to be rejected on this score alone.

Noor Khan's case 1984 SCMR 681 and Ch. Abdul Ghani's case 1988 SCMR 390 fol.

(b) Copyright Ordinance (XXXIV of 1962)---

----S. 28---Protection of typography and term of protection---Scope---Held, even if the publisher had airy right in the typographic arrangement of the editions of publication, it was to subsist for a period of twenty-five years from the beginning of the calendar year next following the year in which the. edition was first published---Where there was no evidence on record, which palpably seemed to have been suppressed, as to when the script was first published because such printing had remained in vogue for many decades even beyond twenty five years, no case of copyright involvement had been made out in circumstances.

Abdur Rauf Rohaila, Advocate Supreme Court, Muhammad Naazar Khan, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Petitioner (in all cases).

Muhammad Yousaf Kazrni, Advocate Supreme Court for Respondent (in C.P. No.1394 of 2003).

Nemo for Respondents (in C. Ps. Nos. 1392-L, 1393-L and 1395-L of 2003).

Date of hearing: 2nd August, 2007.

PLD 2007 Supreme Court 603

Present: Rana Bhagwandas, Actg. C.J., Abdul Hameed Dogar and Sardar Muhammad Raza Khan, JJ

ATA ULLAH---Petitioner

Versus

ALI MUHAMMAD---Respondent

Civil Petition No.836-L of 2007, decided on 13th June, 2007.

(On appeal from the judgment dated 19-3-2007 of the Lahore High Court, Lahore passed in C.R.No.1389 of 2006).

Punjab Pre-emption Act (IX of 1991)---

----Ss. 6 & 13---Constitution of Pakistan (1973), Art.185(3)---Superior right of pre-emption---Shafi Khalit and Shafi Jar---Concurrent findings of fact by the courts below---Pre-emptor claimed his superior right of pre-emption on the basis of his being Shafi Khalit and Shafi Jar---Suit was dismissed by Trial Court but Lower Appellate Court decreed the same in favour of pre-emptor---Judgment and decree passed by Lower Appellate Court was maintained by High Court---Validity---Pre-emptor had superior right of pre-emption being co-owner in suit land and also had land adjacent to suit land including common passage and .source of irrigation---Lower Appellate Court as well as High Court, on proper appraisal of evidence, had rightly concurred that pre-emptor on coming to know of sale immediately made jumping demand by disclosing his superior right of pre-emption in suit land in presence of witnesses---Factum of sending notice of Talb-i-Ishhad attested by two truthful witnesses stood established on record---There could be no exception to concurrent findings of two courts below on both Talbs which were made in accordance with law---Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused.

Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315; Mian Pir Muhammad v. Fariq Muhammad through L.Rs. and others PLD 2007 SC 302; Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329; Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another 2000 SCMR 314; Fazal Subhan and 11 others v. Msi. Sahib Jamala and others PLD 2005 SC 977; Allah Bakhsh v. Falak Sher 2004 SCMR 1580 and Abdul Malik v. Muhammad Latif 1999 SCMR 717 ref.

Ghulam Farid Santora, Advocate Supreme Court for Petitioner.

Mian Ghulam Hussain, Advocate Supreme Court for Respondent.

Date of hearing: 13th June, 2007.

PLD 2007 Supreme Court 607

Present Rana Bhagwandas and Sardar Muhammad Raza Khan, JJ

AYAZ BAIG---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.162 of 2007, decided on 26th June, 2007.

(On appeal from .the judgment dated 16-5-2007 passed by the Lahore High Court, Lahore in Criminal Revision No. 322 of 2007).

Penal Code (XLV of 1860)---

----Ss. 302(b) & 338-E---Criminal Procedure Code (V of 1898), S.345---Constitution of Pakistan (1973), Art.185(3)---Genuineness of compromise---Determination---Deceased at the time of offence was survived by father, mother and widow but subsequently both the parents had died and widow contracted second marriage---Accused filed compromise effected by the widow but trial Court and High Court declined to accept the same---Validity---At the time of death, deceased being issueless and father being alive, his seven brothers and a sister could not be the legal heirs---At a belated stage, brother and sister could not be ignored when question had come to genuineness of compromise and when they all were most likely to nurse grudge against accused---Brothers and sister had not agreed to compromise which agreement was necessary for future harmony between the families---Genuineness had to be sine qua non of a compromise which might or might not be accepted by Court in cases of punishment as Tazir---Trial Court as well as High Court had rightly disallowed the compromise being not genuine---Leave to appeal was refused.

Sh. Muhammad Aslam v. Shaukat Ali 1997 SCMR 1307 ref.

Muhammad Siddiq Mughal, Advocate Supreme Court with Chaudhry Muhammad Akram, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 26th June, 2007.

PLD 2007 Supreme Court 609

Present: Javed Iqbal, M. Javed Buttar and Hamid Ali Mirza, JJ

ABDUL SATTAR---Appellant

Versus

Mst. ANAR BIBI and others---Respondents

Civil Appeal No.1341 of 2002, decided on 8th February, 2007.

(On appeal from the judgment dated. 24-10-2001 of the Lahore High Court, Lahore, passed in C.R.No.2127 of 1995).

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

----S. 115---Revisional jurisdiction of High Court---Concurrent findings of fact by the courts below---Scope---Jurisdiction conferred upon High Court under S.115 C.P.C. is not limited---Concurrent findings of fact recorded by courts below cannot be treated as sacrosanct and can be interfered with in case of non-reading and misreading of evidence.

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

----S. 42---Limitation Act (IX of 1908), Art.120---Declaration of title---Limitation---Relinquishment deed---Minor, right of---Plaintiff was minor when land in question was surrendered on the basis of disputed relinquishment deed---Grievance of plaintiff -was that his elder brother being de fecto guardian, could not have executed relinquishment deed on his behalf---Trial Court and Lower Appellate Court concurrently decreed the suit in favour of plaintiff but High Court in exercise of revisional jurisdiction dismissed the suit---Validity---On the basis of relinquishment deed, plaintiff obtained his share from the same chunk of land and validity of the deed was never challenged---If plaintiff had refused the benefit, position would have been different---By taking his share, plaintiff had impliedly accepted relinquishment deed---High Court had examined all contentions as agitated before the Supreme Court in comprehensive manner---Plaintiff went into deep slumber and filed suit after about three decades which had spoken volumes about conduct of plaintiff---Supreme Court declined to interfere with judgment passed by High Court---Appeal was dismissed.

Ahmed Khan v. Rasul Shah PLD 1975 SC 311; Izzat v. Allah Ditta PLD 1981 SC 165; Hanifa Begum v. Muhammad Afzal Khan 1981 CLC 1156; Ziariat Gul v. Mian Khan PLD 1950 Pesh. 69; Fateh Din v. Gurmukh Singh AIR 1929 Lah. 810; Mt. Anto v. Mt. Reoti Kuar AIR 1936 All. 837; Md. Zafir v. Amiruddin AIR 1963 Pat. 108; Kase Mollah v. Fajel Shek PLD 1952 Dacca 347; Kunji Amma v. D. Antherjanom AIR 1954 Traco 371 distinguished.

Muzaffar Khan v. Sanchi Khan 2007 SCMR 181; Tulley Khan v. Ahmed Hassan Khan 1981 SCMR 1075; Midna Pore Zamindary Co. Ltd. v. Abdul Zalil AIR 1933 Cal. 627 ref.

Gulzarin Kiani, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant.

Sh. Zamir Hussain, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondents Nos. 1-6 and 15.

Ex parte: Respondents 7(i-xi), 9 to 14.

Nemo for Respondent No.8.

Date of hearing: 8th February, 2007.

P L D 2007 Supreme Court 614

Present; Javed Iqbal, Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

GOVERNMENT OF N:-W.F.P. and others---Appellants

Versus

FAIZ MUHAMMAD KHAN and others---Respondents

Civil Appeals Nos.1695 to 1698 of 2001, decided on 25th January, 2007.

(On appeal from the judgment dated 24-7-2000 of the Peshawar High Court, Peshawar, Passed in RFAs Nos. 63, 80, 94, 97 of 1994).

Land Acquisition Act (I of 1894)---

----Ss. 4, 23 & 24---Acquisition of land---Compensation---Determination---Compensation fixed by Court was further enhanced by High Court---Authorities contended that price determined in a specific village was made applicable to land in question, thus compensation was enhanced in arbitrary manner---Validity---High Court had made comparative analysis of Aust Yaksala (one year average) and sale average of different kinds of land, whereafter price was determined---Price sc, determined by High Court was neither arbitrary nor exorbitant---Price of a specific village could not have been made applicable to the land in question for the reason that mutation regarding land in that village was attested beyond one year preceding to date of notification issued pursuant to the provisions enumerated in S.4 of Land Acquisition Act, 1894 and as such had no application in so tar as acquisition of land in question was concerned---Market value, potential value and inflationary trend was kept in view by High Court and there was no question of extra burden on public exchequer---Supreme Court declined to interfere with the judgment passed by High Court---Appeal was dismissed.

1992 CLC 258 ref.

Abdul Qadir Khattak, Advocate Supreme Court for Appellants (in all Cases).

Safeerullah Khan, Advocate Supreme Court for Respondents (in Civil Appeals Nos.1695 and 1696 of 2001).

Mian Inamul Haq, Advocate Supreme Court for Respondents (in Civil Appeals Nos. 1697 and 1698 of 2001).

Date of hearing: 25th January, 2007.

P L D 2007 Supreme Court 620

Present: Javed Iqbal and Abdul Hameed Dogar, JJ

LAND ACQUISITION COLLECTOR and another---Appellants

Versus

MIAN KHAN and another---Respondents

Civil Appeal No.1294 of 2003, decided on 24th July, 2007.

(On appeal from the judgment dated 26-6-2003 of the Lahore High Court Rawalpindi Bench, Rawalpindi, passed in W.P. No.573 of 2003).

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

----Ss. 18 & 54---Civil Procedure Code (V of 1908), O.XLI, R.33---Constitution of Pakistan (1973), Arts. 199 & 185(3)---Leave to appeal was granted by Supreme Court to consider; whether in presence of provisions of exhaustive special law viz. Land Acquisition Act, 1894, and without resorting to S.18 thereof, an owner / affectee could claim enhancement of compensation directly in High Court by invoking provisions of Art. 199 of the Constitution; whether provisions of O.XLI, R.33 C.P.C. could be brought into play by court exercising jurisdiction under Art.199 of the. Constitution for giving relief to party that had never filed an appeal; and whether law applicable to appellate jurisdiction could be invoked during exercise of constitutional jurisdiction.

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

----Ss. 18 & 54---Civil Procedure Code (V of 1908), O.XLI, R.33---Constitution of Pakistan (1973), Art. 199---Acquisition of land---Compensation, assailing of---Constitutional jurisdiction of High Court---Scope---Principle of past and closed transaction---Applicability---Award ­was announced on 21-6-1992, which was assailed by some of the landowners and matter was finally decided on 28-2-2001, by Division Bench of High Court in exercise of appellate jurisdiction--- Some of the landowners who earlier assailed the award .along with some of land owners who did not assail the award earlier before any court, once again assailed the award in year 2003, before High Court in exercise of constitutional jurisdiction---High Court set aside the award and enhanced the compensation---Validity---Judgment passed by Division Bench of High Court had attained finality and it could not be reversed by Judge in Chambers, of High Court in exercise. of his constitutional jurisdiction---Judgment of Division Bench of High Court could only be assailed before Supreme Court pursuant to the provisions contained in S.54 of Land Acquisition Act, 1894---Award was one and the same which was made on 21-6-1992 and therefore, it could not be assailed again as its impact, significance and import was decided on 28-2-2001, in appeal by Division Bench of High Court---All those land owners who had not raised any objection or filed reference under S.18 of Land Acquisition Act, 1894, could not be benefited by judgment as they were satisfied 'with the award---If such land owners were .not satisfied, they could have invoked the provisions as enumerated in S.18 of Land Acquisition Act, 1894, which was never done---Complete mechanism had been provided for acquisition of land, its compensation and redressal of grievances of aggrieved land owners and therefore, question. of invocation of constitutional jurisdiction did not arise---Provisions as enumerated in O.XLI, R.33, C.P.C. could not be made ground for providing relief to those land owners who had neither challenged the award by way of reference under S.18 of Land Acquisition Act, 1894, nor filed any appeal before High Court---Invocation of constitutional jurisdiction in land acquisition cases subject to certain exceptions did not arise---Judge in Chambers of High Court had erred while exercising constitutional jurisdiction in a case which was already decided and finalized by Division Bench of High Court---Judgment passed by Judge in Chamber of High Court was set aside---Appeal was allowed.

Mehboob Ali Malik v. Province of West Pakistan PLD 1963 (W.P.) Lah. 575; Dewan Salrpan Fibre Ltd. v. Government of N.-W.F.P. PLD 2004 SC 441; Muhammad Sarwar Khan v. Government of Pakistan 1998 SCMR 2197; State v. Narayani Pillai AIR 1959 Kerala 136; Begun Jan v. Abdul Wahab PLD 1988 SC (AJ&K) 142; Zainuddin v. Assistant Commissioner-cum-Collector 1996 MLD 731; Umar Farooq v. Acquisition Collector PLD 1975 Pesh. 103; Government of Azad Jammu and Kashmir v. Muhammad Shafi PI-D 1971 AJ&K 24; Abdul Wakeel Khan v. Land Acquisition Collector 1995 CLC 548 and Province of Punjab v. Abdul Majeed 1997 SCMR 1692 ref.

Gulzarin Kiani, Advocate Supreme Court for Appellants.

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Respondent No.1.

Ms. Afshan Ghazanfar, A.A.G. Punjab for Respondent No.2.

Date of hearing: 16th January, 2007. (reserved).

P L D 2007 Supreme Court 633

Present: Abdul Hameed Dogar, Muhammad Nawaz Abbasi and Saiyed Saeed Ashhad, JJ

KARACHI DEVELOPMENT AUTHORITY, NOW CITY DISTRICT GOVERNMENT, KARACHI through D.C.O.---Petitioner

Versus

PAKISTAN through Secretary Religious and Minority Affairs, Islamabad and 4 others---Respondents

Civil Petition No.320-K of 2005, decided on 2nd August, 2007.

(On appeal from the judgment/order of High Court of Sindh dated 10-2-2005 passed in C.P. No.D-1189 of 1999).

Karachi Development Authority Order (5 of 1957)---

----Art. 37---Martial Law Regulation (57 of 1983), Para, 6-A---Constitution of Pakistan (1973), Art. 185 (3)---Transfer of property---.Sale through negotiation---Land owned by Evacuee Trust Property Board was to be given to Karachi Development Authority for housing scheme, on payment of compensation---After insertion of Para.6-A in Martial Law Regulation, 57 of 1983, all contracts were made null and void, unless approved by the Tribunal constituted thereunder---Tribunal did not confirm the proposed sale of land owned by Evacuee. Trust Property Board to Karachi Development Authority---High Court in exercise of constitutional jurisdiction maintained the order passed by Tribunal---Plea raised by Karachi Development Authority was that Martial Law Regulation 57 of 1983, was not a valid law and was also repugnant to the Constitution---Validity---Sale of public property by way of restricted auction, might not be prohibited under law but at the same time, sale of public property through negotiation or restricted auction without proper publicizing, might not be considered legal---In consequence to insertion of Para. 6-A in Martial Law Regulation No.57 of 1983, proposal of transfer of property by Evacuee Trust Property Board in the name of Provincial Government for housing scheme of Karachi Development Authority before attaining maturity became null and void---Martial Law Regulation No. 57 of 1983, was given constitutional protection under Art. 270-A of the Constitution and would be deemed to be a valid law to all intents and purposes---No estoppel against law and proposal of sale stood annulled under. Para 6-A of Martial Law Regulation No.57 of 1983---Petitioner Authority could not invoke constitutional jurisdiction of High Court for enforcement of contractual obligation inter se parties in respect of proposed transaction of sale of land---Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused.

Lavin Traders v. Deputy Administrator, Evacuee Trust (Case No.340 of 1989 under MLR No.57 of 1.983.) 1993 SCMR 1707 ref.

Abdul Qadir Khan; Advocate Supreme Court and A. Aziz Khan, Advocate-on-Record for Petitioner.

Nemo for Respondents Nos. 1 and 2.

Shafi Muhammadi, Advocate Supreme Court and Raja Sher Muhammad Khan, Advocate-on-Record for Respondents Nos. 3 and 4.

Date of hearing; 2nd August, 2007.

P L D 2007 Supreme Court 637

Present: Falak Sher, Tassaduq Hussain Jillani and Ch. Ijaz Ahmed, JJ

ABDUL MAJEED---Petitioner

Versus

MULAZIM HUSSAIN and others---Respondents

Criminal Petition No.630-L of 2006, decided on 30th August, 2007.

(On appeal from the judgment dated 4-7-2006 passed by the Lahore High Court, Bahawalpur Bench in Cr.A. No.391 of 2003).

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

----S. 302(b)---Reappraisal of evidence---Medical evidence---Scope---Medical evidence is always considered a supporting evidence---Medical evidence cannot depict the identification of accused as to who fired or hit deceased by his weapon of offence.

Machia's case PLD 1976 SC 695 rel.

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Related witnesses---Delayed F.I.R.---Night time occurrence---Life imprisonment awarded by Trial Court was set aside by High Court accused were acquitted---Validity---Two eye-witnesses were relatives of complainant and they were not injured during occurrence, so there was no circumstantial guarantee or judicial sanctity of .their presence on the spot at the time of occurrence---Both eye-witnesses were close relatives of deceased and if they had been present at the spot they must have tried to catch hold of accused---Unexplained inordinate delay occurred in lodging F.I.R.---Such delay rightly led High Court to the conclusion than eye-witnesses were procured and induced to become witnesses to the occurrence---Both the eye-witnesses were related inter se to deceased and also had enmity with accused in terms of motive alleged by prosecution---Evidence of such eye-witnesses required some corroboration to ensure that they were speaking truth---No illegality having been committed by High Court while acquitting accused with cogent reasons---Leave to appeal was refused.

(c) Criminal trial---

----Motive---Scope---Motive by itself serves as a double-edged weapon---Motive can prompt false involvement of a person on the basis of suspicion.

(d) Criminal trial---

----Witness, veracity of---Determination---Question in every criminal case, is of veracity of witnesses---Nature of corroborative evidence required in a particular case to prove guilt of accused not only depends upon the question whether witnesses are interested or dis-interested but also upon the question whether witnesses are witnesses of truth or not.

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

----Art. 185(3)---Appellate jurisdiction of Supreme Court---Petitions in criminal matters, .decision of--Principles---Different para-meters/ principles have been prescribed by Supreme Court for deciding criminal petitions against conviction and criminal petitions against acquittal---Judgment assailed with regard to acquittal should be either perverse, arbitrary or without any sustainable reasons.

Ghulam Sakindar's case PLD 1985 SC 11 rel.

Muhammad Inayatullah Cheema; Advocate Supreme Court for Petitioner.

Shabbir Lali, DPG for the Respondent/State.

Date of hearing: 30th August, 2007.

PLD 2007 Supreme Court 642

Present: Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal Sardar Muhammad Raza Khan, Faqir Muhammad Khokhar, M. Javed Buttar, Nasir-ul-Mulk and Rana Fayyaz Ahmed, JJ

PAKISTAN MUSLIM LEAGUE (N) through Khawaja Muhammad Asif, M.N.A. and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Interior and others---Respondents

Constitutional Petitions Nos. 48 and 49 of 2007, decided on 23rd August, 2007.

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

----Art. 15---Freedom of movement---Right to enter in the country cannot be denied but a citizen, can be restrained from going out of the country.

Mian Shahbaz Sharif v. Federation of Pakistan PLD 2004 SC 583 rel.

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

----Art. 184(3)---Interpretation of Art. 184(3) of the Constitution---Principles---While interpreting Article 184(3) .of the Constitution the interpretative approach should not be ceremonious observance of the rules or usages of the interpretation but regard should be had to the object and purpose for which the Article is enacted i.e. the interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution namely the Objectives Resolution (Article 2-A), the fundamental rights and the directive principles of State policy so as to achieve democracy, tolerance, equity and social justice according to Islam.

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

----Art. 184(3)---Exercise of jurisdiction by Supreme Court under Art.184(3) of the Constitution---Not dependent only at the instance of aggrieved party---Scope---Exercise of powers by Supreme Court under Article 184(3) is not dependent only at the instance of the "aggrieved party" in the context of adversary proceedings---Traditional rule of locus standi can be dispensed with and procedure available in public interest litigation can be made use of, if it is brought to the Court by a person acting bona fide.

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

----Art. 184(3)---Jurisdiction of Supreme Court under Art.184(3) of the Constitution to enforce Fundamental Rights---Scope and extent---Principles---Provisions of Article 184(3), provide abundant scope for the enforcement of the Fundamental Rights of an individual or a group or class of persons in the event of their infraction and it would be for the Supreme Court to lay down the contours generally in order to regulate the proceedings of group or class actions from case to case.

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

----Art. 184(3)---Invocation of Jurisdiction of Supreme Court under Art.184(3) of the Constitution---Requirement of existence of an aggrieved party---Scope---Under Article 184(3) of the Constitution there is no requirement that only an aggrieved party can press into service this provision---Supreme Court can entertain a petition under Article 184(3) at the behest of any person.

(f) Constitution of Pakistan (1973)---

----Art. 184(3)---Interpretation and scope of Art.184(3) of the Constitution---Article 184(3) is remedial in character and is conditioned by three prerequisites, namely that there is a question of public importance; that such a question involves enforcement of fundamental right, and that the fundamental right sought to be enforced is conferred by Chapter 1, Part II of the Constitution.

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

----Art. 184(3)---Jurisdiction of Supreme Court to entertain petition under Art.184(3) of the Constitution--Question of `public importance'---Scope and condition---Not every question of public importance which can be entertained by Supreme Court, but such question should relate to the enforcement of Fundamental Rights.

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

----Art. 184(3)---Jurisdiction of Supreme Court to entertain petition under Art.184(3) of the Constitution---`Disputed questions of facts'---Scope and extent---Even the disputed questions of facts which do not require voluminous evidence can be looked into where Fundamental Right has been breached---Where however, intricate disputed questions of facts involving voluminous evidence are involved Supreme Court will desist from entering into such controversies.

(i) Constitution of Pakistan (1973)---

----Arts. 184(3) & 199---Jurisdiction of Supreme Court under Art:184(3) of the Constitution is not bound by procedural trappings and limitations mentioned in Art.199 of the Constitution---Language of Art.184(3) does not admit of the interpretation that provisions of Article 199 stood incorporated in Article 184(3) of the Constitution.---Supreme Court while dealing with a case under Article 184(3) of the Constitution is neither bound by the procedural trappings of Article 199, nor by the limitations mentioned in that Article for exercise of power by the High Court in a case.

Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Syed Wasey Zafar v. Government of Pakistan PLD 1994 SC .621; Shahida Zahir Abbasi v. President of Pakistan PLD 1996 SC 632; Zulfiqar Mehdi v. Pakistan International Airlines Corporation 1998 SCMR 793; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 ref.

(j) Constitution of Pakistan (1973)---

----Art. 184(3)---Invocation of Art.184(3) of the Constitution---Element of public importance' is sine qua non---Adjectivepublic' necessarily implies a thing belonging, to people at large, the Nation, the State or a community as a whole---Issues arising in a case, cannot be considered as a question of public importance, if the decision of the issues affects only the rights of an individual or a group of individuals---Issues, in order to assume the character of public importance must be such that its decision affects the rights .and liberties of people at large---If a controversy is raised in which only a particular group of people is interested and the body of the people as a whole or the entire community has no interest, it cannot be treated as a case of public importance---Principles.

(k) Constitution of Pakistan (1973)---

----Part II, Chap.1 [Arts.8 to 28]---Political justice'---Concept ofpolitical justice' floats in Chap. 1 of Part II of the Constitution---Political justice' is very significant and it has been placed in the category of `Fundamental Rights'---Political parties have become a subject-matter of a Fundamental .Right in consonance with the said provision in the Objectives Resolution---Objectives Resolution provides that principles of democracy as enunciated by Islam are to be fully observed.

Benazir Bhutto v. Federation of Pakistan PLD-1988 SC 416 ref.

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

----Art. 184(3)---Invocation of Art.184(3) of the Constitution---Political justice'---Matter of public importance---Concept ofpolitical justice' deserves consideration which would be a factor on the basis whereof the jurisdiction as conferred upon the Supreme Court under Art.184(3) of the Constitution can be exercised.

Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 ref.

(m) Undertaking---

----Agreement---Distinction---Undertaking cannot be equated to that of an agreement---Principles.

An undertaking cannot be equated to that of an agreement which has its own peculiar characteristics, connotations, import and significance. The striking difference between the two would be the element of enforcement. The agreement can be enforced legally but an undertaking cannot because it has got no legal sanctity behind it.

(n) Constitution of Pakistan (1973)---

----Arts. 184(3) & 199---Constitutional jurisdiction---Scope---Such jurisdiction is not available to enforce the contractual rights and obligations of the parties.

1990 MLD 563; PLD 1992 Lah.68; 1990 CLC 2007; 1990 CLC 560; PLD 1987 Lah. 262; PLD 1986 Quetta 187; PLD 1986 Quetta 181; PLD 1973 Kar. 878; 1971 DLC 250; PLD 1966 Dacca 576; 1985 CLC 2805; NLR 1978 Civ. 1.114; PLD 1969 Dacca 779; PLD 1969 Lah. 823; 1968 SCMR 1136; 1969 DLC 449; 21 DLR 394; 1970 DLC 387; 22 DLR 235; PLD 1962 SC 108; 1962 (2) PSCR 87; 14 DLR (SC) 102; PLD 1958 SC 267; PLR 1958 (2) WP 1369; PLD 1959 SC 147; PLR 1959(2) WP 501; 1959 (1) PSCR 34; 11 DLR (SC) 260; AIR 1953 Punj. 239; AIR 1952 Raj.151; ILR (1951) 1 Raj.755; AIR 1952 Viudh Pra 13 and ILR(195 L)1 Raj 496 ref.

(o) Constitution of Pakistan (1973)---

----Art. 15---Freedom of movement---Every citizen has undeniable right vested in him as conferred under Art.15 of the Constitution to go abroad and return back to Pakistan without any hindrance and restraint---Undertaking -given by a citizen not to come back to Pakistan having no constitutional legitimacy, such citizen cannot be prohibited from coming to Pakistan---Reasonable restrictions---Powers of Executive---Scope and extent--Principles.

Every citizen has an inalienable right to enjoy the protection of law and to be treated in accordance with law and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. No action detrimental to such Fundamental Rights can be initiated except in due course of law.

Citizens of Pakistan can return to their country as no restraint can be placed on a citizen of Pakistan to return to his country. Undertaking given by a citizen not to come back to Pakistan had no constitutional legitimacy, as such citizen cannot be prohibited from coming to Pakistan. Every citizen has undeniable right vested in him as conferred under Article 15 of the Constitution to go abroad and return to Pakistan without any hindrance and restraint but it must be kept in view that it is neither absolute nor unqualified as is indicative from the language employed in Article 15 of the Constitution as a specific mention has been made "subject to any reasonable restriction un-posed by law in the public interest", meaning thereby that such right is subject to the relevant law which is in existence at relevant time but an action which is mala fide or colourable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also not action in accordance with law. Therefore action taken upon no ground at all or without proper application of the mind of an authority would also not qualify as an action in accordance with law and would, therefore, have to be struck down as being taken in an unlawful manner.

There is no inherent power in the Executive, except what has been vested in it by law, and that law is the source of power acid duty. The structure of the machinery of government, and the regulation of the powers and duties which belong to the different parts of this structure are defined by the law, which also prescribes, to some extent the mode in which these powers are to be exercised or those duties performed. From the all-pervading presence of law, as the sole source of governmental powers and duties, there follows 'the consequence that the existence or non-existence of a power or duty is a matter of law and not of fact, and so must be determined by reference to some enactment or reported case. Consequently there are no powers or duties inseparably annexed to the Executive Government. It cannot be argued that a vague, indefinite and wide power has been vested in the Executive to invade upon the proprietary rights of citizens and that such invasion cannot be subjected to judicial scrutiny if it is claimed that it is a mere executive order. This is not the position in law. Any invasion upon the rights of citizens by anybody no matter whether by a private individual or by a public official or body, must be justified with reference to some law of the country. Therefore, executive action would necessarily have to be such that it could not possibly violate a Fundamental Right. The only power of the; Executive to take action would have to be derived from law and the law itself would not be able to confer upon the executive any power to deal with a citizen or other persons in Pakistan in contravention of a Fundamental Right. Functionaries of State, are to function strictly within the sphere allotted to them and in accordance with law. No Court or Authority is entitled to exercise power not vested in it and all citizens have an inalienable right to be treated in accordance with law. Therefore, an action of an Authority admitted to be derogatory to law and Constitution, is liable to be struck down.

It is bounden duty of the Executive to respect an ordinary legal right of a subject in the same way as a Fundamental Right. For it is an established principle of British Jurisprudence which may be treated as constituting a part of the Pakistan law also, that no member of the executive can interfere with the liberty or a property of a subject except on the condition that he can support the legality of his action before a Court of Justice.

PLD 1973 SC 49; PLD 1969 SC 14; 21DLRE (SC) 1; PLD 1990 Lah. 432; 1990 MLD 1468; PLD 1989 Lah. 175; 1988 CLC 545; 1988 Law Notes 247; 1985 PCr.LJ 360; PLD 1976 Kar. 1257; PLD 1967 Dacca 607; 19 DLR 689; 1990 CLC 1772; 'AIR 1931 PC 248; A.K. Gopalan v. State of Madras AIR 1950 SC 27; 61 Law Journal 171 (203); Kent v. Dulles 357 US 116; Aseerwatham v: Permanent Secretary; Ministry of Defence and External Affiars and others Journal of International Commission of Juristis; Vol. VI, No.2, p.319 and Winter (1965 Part) and Satwant Singh Sawnney v. The Government of India Journal of the International Commission of Juristis, Vol. VIII, No.2, p.134 ref.

(p) Constitution of 1'nkistan (1973)---

----Part II, Chap.1 [Arts. 8 to 28]---Fundamental Rights---Infringement and curtailment of---Scope---Principles---Public interest---No infringement or curtailment in any Fundamental Right can be made unless it is in the public interest and in accordance with valid law---Reasonable restriction---Concept---Scope.

The Fundamental Rights can neither be treated lightly nor interpreted in a casual or cursory manner but while interpreting Fundamental Rights guaranteed by the Constitution, a cardinal principle has always to be borne in mind that these guarantees to individuals are subject to the overriding necessity or interest of community. A balance has to be struck between these rights of individuals and the interests of the community. If in serving the interests of the community, an individual or number of individuals have to be put to some inconvenience and loss by placing restrictions on some of their rights guaranteed by the Constitution, the restrictions can never be considered to be unreasonable.

No infringement or curtailment in any Fundamental Right can be made unless it is in the public interest and in accordance with valid law. No doubt that reasonable restriction can be imposed but it does not mean arbitrary exercise of power or unfettered or unbridled, powers which surely would be outside the scope of "reasonable restriction" and it must be in the public interest.

A reasonable restriction is one which is unposed with due regard to the public requirement which it is designed to meet. Anything which is arbitrary or excessive will of course be outside the bounds of reasons in the relevant regard, but in considering the disadvantage imposed upon the subject in relation to the advantage which the public derives, it is necessary that the Court should have a clear appreciation of the public need which is to be met and where the statute prescribes a restraint upon the individual, the Court should consider whether it is a reasonable restraint, in the sense of not bearing excessively on the subject and at the same time being .the minimum that is required to preserve the public-interest.

Nasirabad Properties Ltd. v. Chittagong Development Authority PLD 1966 Dacca 472 and East anal West Steamship Co. v. Pakistan PLD 1958 SC (Pak) 41 ref.

(q) Constitution of Pakistan (1973)---

----Part II, Chap. 1 [Arts, 8 to 28]---Fundamental Rights---Characteristic.

Fundamental Rights guaranteed by the Constitution are not meant merely to be pious enunciations of certain principles supposed to be the basis of the Constitution. The characteristic of a Fundamental .Right is its paramountcy to ordinary State-made laws. They are immune from the pale of legislative enactments and executive actions. They constitute express constitutional provisions limiting legislative power and controlling the temporary will of a majority by a permanent and paramount law settled by the deliberate wisdom of the nation. The sanctity of the Fundamental Rights is protected by Article 8(2) of the Constitution which prohibits the state which includes the Legislature not to make any law by which awry Fundamental Right may 'be curtailed or taken away and if any law is made to this effect then to the extent of such contravention it shall be void. It is not liable to be abridged by any legislative or executive orders except the extent provided in Art.233 of the Constitution. Fundamental Rights cannot be waived. No right which is based on public policy, can be waived. Citizens of Pakistan cannot themselves waive out of the various Fundamental Rights which the Constitution grants them. The Fundamental Rights are not to be road as if they included the words subject to a contract to the contrary'.

AIR 1952 Punj. 309; ILR 1952 Punj. 381; AIR 1950 SC 27; 1950 SCR 88, PLD 1989 Kar.404; AIR 1951 Hyd. 1; AIR 1951 SC 41; 1950 SCR 869 and PLD 1965 SC 527 ref.

(r) Constitution of Pakistan (1973)---

----Part II, Chap. 1 [Arts. 8 to 28]---Fundamental Rights---No Fundamental right can be surrendered yr waived by means of any agreement or undertaking.

(s) Constitution of Pakistan (1973)---

----Part II, Chap. 1 [Arts. 8 to 28]---Fundamental Rights---Concept---Scope.

The idea behind the concept of Fundamental Rights is that the preservation of certain basic human rights against State interference is an indispensable condition of free society. The paramountcy to State-made laws is the hallmark of a Fundamental Right. It follows that the aim of having a declaration of Fundamental Rights is that certain elementary rights of the individual such as his right to life, liberty, freedom of speech, freedom of faith acid so on, should be regarded as inviolable under all conditions and that the shifting majorities in the Legislatures of the country should not be able to tamper with them. Absolute and unrestricted individual rights do not exist in any modern State and there is no such thing as absolute and uncontrolled liberty. The collective interests of the society, peace and security of the State and the maintenance of public order are of vital importance in any organized society. Fundamental Rights have no real meaning if the State itself is in danger and disorganized. If the State is in danger, the liberties of the subjects are themselves in danger. It is for these reasons of State that an equilibrium has to be maintained between the two contending interests at stake; one, the individual liberties and the positive rights of the citizen which are declared by the Constitution to be Fundamental, and the other, the need to impose social control and reasonable limitations on the

enjoyment of those rights in the interest of the collective good of the society.

AIR 1951 All. 257; ILR (1951) 1 All. 269; AIR 1950 SC 27; 1950 SCR 88; AIR 1952 Mad. 613 and PLD 1965 Lah. 642 ref.

(t) Constitution of Pakistan (1973)---

----Art. 15---Interpretation and scope of Art.15 of the Constitution---Freedom of movement---Reasonable restriction---Principles.

The language employed in Article 15 of the Constitution, is free from any ambiguity and no scholarly interpretation would be needed. "In interpreting a provision of a Constitution the widest construction possible in its .context, should be given according to the ordinary meaning of .the words used, and the general words should be held to extend to all ancillary and subsidiary matters. A Constitution is not to be interpreted in a narrow or technical manner, and a construction which leads to a legal vacuum is to be avoided".

Right conferred upon a citizen is neither absolute nor unlimited but subject to "reasonable .restriction" imposed by law in the public interest which means that this right can be restricted by imposing "reasonable restriction of law" in the public interest. In other words the State has power to impose reasonable restrictions on the right of freedom of movement of a free citizen where such restriction is necessary in the interests of the general public. A restriction is unreasonable if it is for an indefinite or an unlimited period or a disproportionate to the mischief sought to be prevented or if the law imposing the restrictions has not provided any safeguard at all against arbitrary exercise of power.

Article 15 of the Constitution bestows a right on every citizen of Pakistan to enter or move freely throughout the country and to reside and settle in any part thereof. The right to enter in the country cannot be denied but a citizen can be restrained from going out of the country. Citizens of Pakistan have a constitutional right and a sacred prerogative to enter and remain in Pakistan.

Where a fundamental right is sought to be restricted by any law, care should be taken that it provides sufficient safeguards against casual, capricious or even malicious exercise of the powers conferred by, it. In this respect it must he remembered that though a law may not in terms restrict the exercise of certain right under this Article yet if it has the effect of -doing so, it will be open to challenge. In the case of citizens of Pakistan, there is a fundamental right to enter Pakistan from outside and, therefore, airy restriction of such right will be an invasion of this Article. The imposition of restrictions by requirement of permits, etc., is justified as a reasonable-restriction in the public interest. But a law which subjects a citizen to the extreme penalty of a virtual forfeiture of a citizenship upon conviction for a mere bleach of the permit regulations or upon, a reasonable suspicion of having committed such a breach can hardly be justified upon the ground that it imposes a reasonable restriction upon the fundamental right to reside and settle in the country, in the interests of the public.

PLD 1959 SC 470; PLR 1960(1) W.P. 253; 11 DLR (SC) 423; 1959 (2) PSCR 275; PLD 1974 Kar. 345; AIR 1953 Assam. 77; ILR (1942)4 Assam 126; 1953 CriL. Jour 657; AIR 1953 Punj. 52; ILR 1952 ' Punj. 362; 1953 Cril. Jour. 421; PLD 1958 Lah 929; PLR .1959 (1)W.P.528; AIR 1964 SC 416; PLD 1957 Lah.388; PLR 1957(1) W.P. 1062; AIR 1961 SC 294; 17 DLR 553; Muhammad Shahbaz Sharif v. Federation of Pakistan PLD 2004 SC 583; AIR 1961 SC 293; AIR 1952 SC 115; 1952 SCR 572; PLD 1969 Lah. 908; PLR 1969 (2) W.P.298; 22 DLR (W.P.) 57; AIR 1952 All. 257; .ILR (1952) 1 All 513; AIR 1952 Cal. 837; 1952 Cri L Jour 1683; AIR 1953 Nag: 185; ILR 1951. Nag. 328; Leo Pfeffer, p. 238; AIR 1954 SC 229 and 1954 SCR 933 ref.

(u) Constitution of Pakistan (1973)---

----Arts. 184(3) & 15---Universal Declaration of Human Rights, Arts. 9 &, 13---International Covenant on Civil and Political Rights, Art.12(4)---Freedom of movement---Legal restrictions in public interest'---Scope---Laches---Effect---Undertaking given by a citizen of Pakistan not to come back to Pakistan cannot be equated with legal restrictions imposed inpublic interest'---Fundamental rights cannot be denied or infringed or curtailed on the ground of laches---Principles.

Fundamental Rights cannot be denied or infringed or curtailed on the ground of laches. It depends upon a citizen to exercise such rights when he so wishes and no time limit can be prescribed for claiming such rights because the. Fundamental Rights enshrined in the Constitution are always considered paramount and cannot be curtailed, usurped or infringed by any legislative device or executive measurement, however, it is subject to any reasonable restriction that may be imposed by law in the public interest. The undertaking given by a citizen not to come back to Pakistan cannot be equated to that of "legal restrictions imposed in the public interest".

The Fundamental Right granted by Article 15 of the Constitution is backed by international norms. Article 9 of the Universal Declaration of Human Rights declares: that "No one shall be subjected to arbitrary arrest, detention or exile." Furthermore, Article 13 states: "Everyone has the right to leave any country, including his own, and to return to his country." The Human Rights Declaration itself draws its inspiration in this regard from the Magna Carta, which, as early as 121.5, proclaimed: "No man shall be outlawed or exiled ... except by the lawful judgment of his equals or by the law of the land". Although the Human Rights Declaration is not a legally binding treaty, its provisions are considered customary international law and binding, as such, on all member States of the United Nations and therefore on Pakistan. Although the International Covenant on Civil and Political Rights (ICCPR), the treaty that gives legal force to many of the rights proclaimed in the human Rights Declaration, does not expressly prohibit exile, it codifies the right to return. It's Article 12(4) states that no one shall be arbitrarily deprived of the right to enter his own country". The substance of Article 12(4) implicitly prohibits forcible exile, since an order that would force a person to leave his country would in effect restrict his return to the country and therefore would be in violation of this Article. It is evident that both national and international law forbid forcible exile. For whatever reason, a government cannot force individuals to leave their own country or prohibit their return. Notwithstanding national and international efforts for outlaw political exile, the practice persists in authoritarian and politically under developed societies as an undesirable .legacy of ancient times.

No restriction can be imposed on the right of citizens of Pakistan to enter into Pakistan who had given undertaking not to come back to Pakistan, They can come to Pakistan whenever they so desire.

The Natives' right to return by Dr. Tariq Hassan ref.

Fakhr-ud-Din G. Ebrahim, Senior Advocate Supreine Court, Malik Muhammad Rafique Rajwana, Advocate .Supreme Court, Zain Sheikh, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners (in both cases).

Sahibzada Ahmed Raza Qasuri, Senior Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondent No.1 (in C.P.No.48 of 2007).

Raja Muhammad Ibrahimn Satti, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondent No.1 (in C.P.No.49 of 2007).

Malik Muhammad Qayyum, .Attorney-General for Pakistan, Pir Liaqat Ali Shah, A.G. N.-W.F.P., Masood A. Noorani, Actg. A.G. Sindh, Ch. Khadim Hussain Qasier, .Addl. A.G., Punjab, Raja Muhammad Saeed Akram, A.A.G. Punjab and Mahmood Raza, Addl. A.-G. Balochistan (On Court Notice).

Date of hearing: 23rd August, 2007.

P L D 2007 Supreme Court 681

Present: Iftikhar Muhammad Chaudhry, C.J.. Javed Iqbal, Abdul Hameed Dogar, Faqir Muhammad Khokhar, Mian Shakirullah Jan, M. Javed Buttar, Tassaduq Hussain Jillani, Syed Jamshed Ali, Hamid Ali Mirza, JJ

MUHAMMAD IDREES----Appellant

Versus

AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN and others----Respondents

Civil Appeals Nos. 1394 of 1999 etc., heard on 13th September, 2007.

(On appeal from the judgment dated 2.3.1999 passed by the Federal Service Tribunal, Islamabad in S.A. No.809-R of 1998).

(a) Precedent---

----Even if declaration of law is prospective, it will apply to the cases in which the law is declared.

(b) Service Tribunals Act (LXX of 1973)---

----S.2-A---Constitution of Pakistan (1973), Arts.240, 260 & 212---Abatement of proceedings before Service Tribunal--Scope and extent---Law laid down in the judgment of Supreme Court in Muhammad Mubeen-us-Salam and others v. Federation of Pakistan PLD 2006 SC 602 reiterated/recapitulated---Said judgment was rendered by the Supreme Court while cases filed by the employees and the employers were before it either at the leave stage or appeal stage---Transactions past and closed were saved---Cases pending before the Supreme Court could not be said to be past and closed transactions---Judgment in Muhammad Mubeen-us-Salam applied only to the proceedings in relation to the cases which were pending before the Supreme Court (either at appeal stage or at leave granting stage) and therefore., the cases in which judgments of the Service Tribunal were never assailed before. the Supreme Court had attained finality---Section 2-A, Service Tribunals Act, 1973 was ultra wires of Arts.240 & 260 of the Constitution and unless services of an employee were governed by statutory rules he had no right to invoke jurisdiction of the Service Tribunal---Contention that judgments rendered by Service Tribunal (implemented or not) should be maintained would be totally destructive of the law declared in Muhammad Mubeen-us-Salam and others v. Federation of Pakistan PLD 2006 SC 602---If abatement was applied only to the petitions or appeals of the _employers pending before Supreme Court, it would amount to validating the judgments/orders of the Service Tribunal without even examining them---Proceedings initiated before the Service Tribunal from their very inception stood abated---Direction for abatement by Supreme Court in Muhammad Mubeen-us-Salam's case was not under S.6, Service Tribunals Act, 1973; basis, of the direction was that in cases where services of an employee were not governed by statutory rules he could not invoke S.2-A of the Service Tribunals Act, 1973 and as a corollary to and as a matter of course in such cases the Service Tribunal had no jurisdiction and after such finding, it could not possibly be said that only the matters pending before the Supreme Court, would abate leaving the judgments of Service Tribunal intact---In fact, nullifying the proceedings taken before the Service Tribunal was not only the plain intention of the Supreme Court but was also spelt out by the directions given in Muhammad Mubeen-us-Salam's case---View in the Supreme Court judgment in the case of State Life Insurance Corporation of Pakistan 2007 SCMR 1400 was inconsistent with the concept of abatement as contemplated by the judgment in Muhammad Mubeen-us-Salam's case.

Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; C.P. No.552 of 2007 and Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 ref.

State Life Insurance Corporation of Pakistan through Chairman v. Raz Muhammad 5hanwari and others 2007 SCMR 1400, held, inconsistent with Muhammad Mubeen-us-Salam's case PLD 2006 SC 602.

(c) Abatement---

----Definition---Concept of abatement is not capable of exact definition.

(d) Service Tribunals Act (LXX of 1973)---

----S. 2-A---Constitution of Pakistan (1973), Arts.240, 260 & 212---Abatement of proceedings---Held, cases of employees whose services were not governed by statutory rules stood abated with the result that proceedings and judgments rendered by Service Tribunal also stood nullified---Affected/aggrieved parties were allowed a further period of 90 days to have recourse to the available remedies---Judgments of the Service Tribunal rendered on the basis of S.2-A of the Service Tribunals Act, 1973, which were never challenged before the Supreme Court, had attained finality and shall be implemented by the concerned organizations without dragging the employees into further litigation---Cases in which the services of the employees were governed by statutory rules were not hit by the Supreme Court judgment in Muhammad Mubeen-us-Salam and others v. .Federation of Pakistan PLD 2006 SC 602---Supreme court directed that cases of employees whose services were not governed by statutory rules stood abated but other cases would require further hearing on the question whether services of employees in those cases were or were not governed by the statutory rules and same shall be fixed for disposal before appropriate Bench.

Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602 ref.

Abdul Hafeez Pirzada, Khalid Anwar, Raja Muhammad Akram, Waseem Sajjad, Syed Iftikhar Hussain Gillani, Shahid Hamid, Abdul Karim Khan Kundi and Muhammad Akram Sh. , Senior Advocates Supreme Court for Appellants.

Syed Asif Shah, Sh. Riaz-ul-Haq, Abdur Rehman Siddiqui, Afzal Siddiqui, Mian Mehmood Hussain, Ch. Khalid Farooq, Mehmood A. Sh., Mirza Hafeez-ur-Rehman, Sh. Altaaf Ilahi, Zulfiqar Khalid Maluka, Dr. Babar Awan, Advocates Supreme Court for Appellants.

Mehr Khan Malik and Arshad Ali Chaudhry, Advocate-on-Record for Appellants.

Abrar Ahmad Khan Alamgir, Muhammad Javed Iqbal, Muhammad Naeem Igbal, Muhammad Aslam Khan, Sh. Manzoor Hussain Shah, Abdul Majeed Siddiqui, Dildar Muhammad Awan, Shaukat Masood Zafar, Ghulam Samdani Hashmi, Rana Muhammad Khalil, Ghulam Abbas Membn, Munawar Ahmad, ,Syed-ur-Rehman, Abdul Qayum Chaudhry, Muhammad Sabir, Muhammad Aslam Nadeem, Muhammad Ilyas, Abdul Sattar, Muhammad Akram Aftab, Muhammad Naseem Asif, Muhammad Rafiq, Muhammad Nawaz Jappa, Gulzar Ahmad Soomro, Ghulam Hussain, Shams-ul-Islam, Manzoor Elahi, Rahat-e-Alam, Muhammad Jalil, Sadiq Ali, Nazeer Khan, Humayun Irfan, Malik Asghar Ali, Abdul Ghafoor, Iftikhar Ahmad Jogezai, Abdul Qayyum Khan, Muhammad Yasin Rashid, Mamlook Hussain, Faryad Ali and Sahibzada, (Appellants in person).

Abid Hussain Minto, Hafiz S.A. Rehman, Khawaja Muhammad Farooq, Senior Advocates Supreme Court for Employers/Department.

Ghorsi Muhammad Din Ch. , Muhammad Jaffer Hashmi, Mian Qamar-uz-Zaman, Raja Muhammad Ibrahim Satti, Saleem Baig, Sh. Anwar-ul-Haq, Jehanzeb Khan Bharwana, Riaz Muhammad Qureshi, Hashmat Ali Habib, Mian Abdullah, Javed Altaf, Manzoor Ahmad Rana, Muhammad Bashir Kayani and Syed Asif Shah, Advocates Supreme Court for Employers/Department.

?

M.S. Khattak, Raja Abdul Ghafoor and M.A. Zaidi, Advocates? on-Record for Employers/Department:

Naveed Ahmad, Asstt. Admn. Officer (Pakistan Steel Mill)

Farid Ullah Khan, AVP. HBL

Muhammad Ashraf Mirza, ALA: (PTCL)

Irfan-Ahmad Khan, Manager. (Legal, SSGC)

Dates of Hearing: 12/13th September, 2007.

P L D 2007 Supreme Court 688

Present: Rana Bhagwandas, Actg. C.J., Tassaduq Hussain Jillani and Nasir-ul-Mulk, JJ

In re: SUO MOTU CASE NO.1 OF 2007 (Manhandling of Hon'ble Mr. Justice Iftikhar Muhammad Chaudhry by Police)

Suo Motu Case No.1 of 2007 (Manhandling of Hon'ble Mr. Justice Iftikhar 1vluhaminad Chaudhry by Police), heard on 8th-May, 2007.

Per Nasir-ul-Mulk, J; Rana Bhagwandas,. Actg. C.J. and Tassaduq Hussain Jillani, J. agreeing.

(a) Contempt of Court Ordinance (V of 2003)---

----Preamble---Constitution of Pakistan (1973), Art.270AA [as added by the Constitution (Seventeenth Amendment) Act, 2003]---Validation and affirmation of Contempt of Court Ordinance, 2003---Contempt of Court Ordinance, 2003 was still a valid law as it was accorded permanence by incorporation of Art.270AA in the Constitution by the Constitution (Seventeenth Amendment) Act, 2003.

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

----Art. 204(2)(b)---Contempt of Court Ordinance (V of 2003), Ss.3 & 5---Contempt of Court---Classes of contempt of court---Powers of Supreme Court to punish for the contempt of court---Origin---Manhandling of Hon'ble Chief Justice of Pakistan by the police personnel---Such act though amounted to disrespect of the Court within the meaning of S.3, Contempt of Court Ordinance, 2003, however it would fall more squarely under Art.204(2)(b) of the Constitution which provides for punishment of a person who scandalizes the Court or otherwise does anything. which tends to bring the Court or Judge of the Court into .hatred, ridicule or . contempt---`Ridicule' would include humiliation---Held, manhandling of the Chief Justice of the country would amount to disrespect of the judiciary of the country within the meaning of S.3, Contempt of Court Ordinance, 2003 and ridiculing the person of the Chief Justice and thereby also of the Supreme Court, falling within Art.204(2)(b) of the Constitution.

In the present case the Hon'ble Chief Justice was manhandled by the Police personnel.

The Contempt of Court Ordinance, 2003 divides the contempt of Court into three classes, Civil, Criminal and Judicial, the last being relevant to the present case is defined in section 2(b) of the Contempt of Court Ordinance, 2003 as "the scandalization of the court and includes personalized criticism of a Judge while holding office". However, section 3 lays down general definition of contempt of court and includes ".., .anything which is intended to or tends to bring the authority of a Court or the administration of law into disrespect or disrepute...." - Supreme Court, .however, derives its powers of contempt from Article 204 of the Constitution and the Contempt of Court Ordinance is merely .regulatory law enacted pursuant to clause (3) of Article 204 of the Constitution which provides, "The exercise of the power conferred on a Court by this Article may be regulated by law and, subject to law, by rules made by the Court. "

Although, in the present case the act. for which the contemners were charged would amount to disrespect of the Court within the meaning of section 3 of the Ordinance, however, it would fall more squarely under sub-clause (b) of clause (2) of Article 204 of the Constitution .which provides for punishment of a person who ...scandalizes the Court or otherwise does anything which tends to bring the court or a Judge of the Court into hatred, ridicule or contempt". The wordridicule' would include humiliation. There can be no two opinions that the manhandling of the Chief Justice of the country would amount to disrespect of the Judiciary of the country within the meaning of section 3 of the Contempt of Court Ordinance, 2003 and ridiculing the person of the Chief Justice and thereby also the Supreme Court, falling within sub-clause (b) of clause 2 of Article 204 of the Constitution.

(c) Contempt of Court---

----Tendering unconditional apology at the first opportunity---Effect---When a contemner tenders unconditional apology at the first opportunity and the court is satisfied that his regrets and repentence are sincere, he shall ordinarily not be punished, however this is not a rule to be invariably followed in all cases and much would depend upon the circumstances of each case.

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

----Art. 204---Contempt of Court Ordinance (V of 2003), S.5---Contempt of Court---Tender of unconditional apology---Effect---Manhandling of Hon'ble Chief Justice of Pakistan by Police personnel and that too under the very nose of the highest police officials and administrators of the Federal Capital---Held, it was difficult to imagine of a graver contempt than the physical force used publicly by the members of law enforcing agency against the Chief Justice of Pakistan---Highest Police Officials and administrators made no effort to intervene when the police personnel resorted to the use of physical force---Said officials, therefore, failed to perform their duty---None of the senior officers had. taken any disciplinary action against the subordinate police personnel, which indicated their approval of the action---Tender of unconditional apology, in view of peculiar circumstances of the case, would not serve to purge the contemners of the contempt which may however be considered as a mitigating circumstance---Degree of culpability of the contemners, however, varies---Contemners in the present case, being guilty of contempt of Court and keeping in view the degree of their culpability, they were sentenced under Art.204 of the Constitution read with S.S, Contempt of Court Ordinance, 2003 accordingly---Principles.

The present case is possibly unique where the holder of the highest judicial office of the country was manhandled by the police personnel and that too under the very nose of the highest police officials and administrators of the Federal Capital It is difficult to imagine of a graver contempt than the physical force used publicly by the members of the law enforcing agency against the Chief Justice of a country.

In view of the peculiar circumstances of the present case, the tender of the unconditional apology would not serve to purge the contemners of the contempt which may however be considered as a mitigating circumstance. The degree of culpability of the contemners, however, varies. The police personnel deserve severe punishment in view of their actual use of physical force. Inspector General of Police and Senior Superintendent of Police, were present at the scene and as pointed out by the Inquiry Tribunal, the action of the subordinate police officials must have been taken either on the direction or with the approval of the senior police officers. In any case, they made no effort to stop their subordinate police officials from the physical harassment of the Hon'ble Chief Justice. The two senior police officers are in any event responsible for the act of their subordinates committed in their presence. The presence of Chief Commissioner and the Deputy Commissioner, at the spot was not without purpose as they were there to supervise and monitor the entire exercise. They also made no effort to intervene when the police personnel resorted to the use of physical force. They had also therefore, failed to perform their duty. None of the above senior officers had taken any disciplinary action against the subordinate police personnel, which indicates their approval of the action.

Contemners were guilty of contempt of Court and keeping in view the degree of their culpability, Supreme Court sentenced them under Article 204 of the Constitution read with section 5 of the Contempt of Court Ordinance, 2003.

Habib Wahhab-ul-Khairi v. Khan Abdul Wali Khan PLD 1978 SC 85; A.K.M.A. Awal v. The State PLD 1959 SC 66; Fakhre Alam v. The State PLD 1973 SC 525; Raja Muhammad v. The State 1990 SCMR 215; Arlidge Eady on Contempt (Third Edition) and Yusuf Ali Khan v. The State PLD 1970- SC 350 distinguished.

Per Rana Bhagwandas Acts C J, agreeing with Nasirul Mulk, J

(e) Contempt of Court-

----Tender of unconditional apology---Mere apology does not per se wipe off the gravity of the contempt---Acceptance of an unconditional apology---Principles---Jurisdiction of Court---Scope.

Contemners in the present case had not contested the charge of contempt of Court and placed themselves at the mercy of the Court by offering unconditional apology. However, apology tendered by them shall not automatically purge the contemners from the contempt and need not necessarily be accepted, unless the Court, from surrounding circumstances, is satisfied about its bona fides. Acceptance or rejection of apology, therefore, would depend on the volume and nature of contempt allegedly committed.

Mere apology does not per se wipe off the gravity of the contempt Inter alia, fundamental principles for acceptance of an unconditional apology may be summarized as under:--

(a) the apology must be tendered at the earliest stage of the contempt proceedings and may not be postponed till fag-end of the proceedings;

(b) the apology must be unqualified, unreserved and totally unconditional;

(c) the apology should not seem to be tendered but should also demonstrate sincere and genuine remorse to the satisfaction of the Court. At any event, a half-hearted or an apology in the nature of mere formality cannot be deemed as unconditional; and

(d) the contemner should not endeavour to justify his conduct.

However, jurisdiction in this behalf must be carefully exercised because ultimate object sought to be achieved is curative, It must be invariably exercised to keep up the majesty of law and dignity of judicial institution. In order to attract the soft corner and leniency of the Court, surrender to the jurisdiction of the Court praying for excusing fault is relatable to the time and should prominently reflect the keen anxiety of contemner for making genuine endeavour, to dilute gravity and with greatest humility seeking condonation of charge made against him.

(f) Contempt of Court---

----Tender of unconditional apology---Contemners, in the present case, were found to be guilty of the charge of gross contempt for indulging into unprecedented act of physical assault on the person of the Head of Superior Judiciary---Held, contemners had not only ridiculed the dignity and honour of superior judiciary but also had done so recklessly; it was for this reason that despite the bona fide repentence and remorse expressed by them, it was found necessary to convict them and award punishment commensurate with the gravity of offence committed by them---No inflexible rule of jurisprudence exists that even if apology was found to be unconditional, it must be followed by complete surrender and without demonstrating any justification.

Makhdoom Ali Khan, Attorney-General of Pakistan, Raja Muhammad Irshad, DAG for Pakistan and Tariq Mehmood Khokahr, D.A.-G. for Pakistan (On Court Notice).

Mujeeb-ur-Rehman, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondents Nos.1 to 3, 6-7.

Raja Muhammad Bashir, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondent No.4.

Raja Muhammad Ibrahim Satti, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondent No.5.

Qazi Muhammad Ameen, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondents.

P L D 2007 Supreme Court (AJ&K) 1

Present: Muhammad Reaz Akhtar Chaudhry, C.J. and Khawaja Shahad Ahmed, J

MUHAMMAD SARWAR KHAN---Appellant

Versus

SAID HUSSAIN KHAN---Respondent

Civil AppealNo.46 of 2005, decided on 17th November, 2006.

(On appeal from the judgment of the High Court dated 24-12-2004 in Civil Appeal Nol.10 of 2004).

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

----S. 149 & O.VII, R.11---Court Fees Act (VII of 1870), Ss.10 & 28---Deficiency in court-fee---Appeal by appellant was dismissed by the High Court on the ground that appellant having not paid the court-fee, appeal was incompetent and was not maintainable---Court-fee of Rs.2 was fixed by appellant on the memo. of appeal before the High Court with an application by appellant for making up the deficiency, but said application was not considered by High Court and appeal was dismissed simply on ground of non-payment of court-fee, High Court thus did not provide a chance to appellant_ for making up the deficiency in the court ­fee---Order passed by the High Court dismissing appeal, was not maintainable---Provisions of S.149, C.P.C. clearly contained that where whole or any part of any court-fee prescribed for any document by law for the time being in force, had not been paid, the Court could, in its discretion, at any stage allow party to pay the whole or any part of such court-fee---On payment of court-fee, document in respect of which fee was payable, would have the same force and effect as if such fee had been paid in the first instance---Where court-fee was not paid in whole or in part party should not be penalized simply for the reason that the court-fee had not been paid---Chance should be provided to party for making up the deficiency or for payment of court-fee and the Court should take it liberally instead of penalizing the parties---Basic object of provisions of Ss.10 & 28 of Court Fees Act, 1870, was to recover the revenue and not to penalize on such technical grounds---Impugned judgment of High Court was set aside and case was remanded to the High Court with the direction that High Court would provide a chance to appellant for making up deficiency of court-fee and decide appeal after considering the merit of the case.

Executive Engineer Building Division Mirpur and 4 others v. Raja Muhammad Nawaz Khan and Company PLD 1994 SC(AJ&K) 32; Ch. Nazir Ahmed v. Abdul Karim and another PLD 1990 SC 42; Zafar Ali Mirza v.Mst. Kulsum Begum 1989 CLC Kar. 1211 and Rashid Ahmad and another v. Khurshid Ahmad Khawar and another 1985 CLC 274 ref.

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

----Ss. 6, 10 & 28---Civil Procedure Code (V of 1908), S. 149 & O.VII, R.11---Deficiency in court-fee---Where the Court found that plaint was not properly stamped, then the proper course would be to pass an order under S.10 of the Court Fees Act, 1870 directing payment of requisite court-fee---Such order could also be passed by the Trial Court under Ss.6 & 28 of Court Fee Act, 1870 in conjunction with S.149, C.P.C.---When any plaint or documents were presented to a Court of law, then it was the duty of the staff of the Court to examine the documents and ensure whether those were properly stamped according to the provisions of Court Fee Act, 1870---Party should not be penalized for the negligence of his counsel or staff of the Court because Court Fees Act, 1870 was a taxing statute which would be interpreted in favour of subject---Provisions of Court Fees Act, 1870 and ,other fiscal statutes were to be construed strictly in favour of subject because basic object of all said statutes was to secure revenue for the benefit of the State and not to harm the litigant with the weapon of technicality.

Zafar Ali Mirza v.Mst. Kalsum Begum 1989 CLC 1211 and Allied Bank of Pakistan Ltd. v. Income Tax Appellate Tribunal and others 2000 PTD 2872 rel.

(c) Court fee-

----Deposit of court-fee---Basic object---Deposit of court-fee was to secure the revenue for the welfare of the State and not to arm the litigant public with the weapon of technicality---Where any provision was open to two reasonably possible interpretations then the one favouring the taxpayer, should be adopted.

PLD 1984 SC 289 and 1993 CLC 1666 ref.

(d) Interpretation of statute---

----Fiscal statute- Where any provision was open to two reasonably possible interpretations then the one favouring the taxpayer, should be adopted.

PLD 1984 SC 289 and 1993 CLC 1666 ref.

Syed Nazir Hussain Shah Kazmi, Advocate for Appellant.

Respondent in person.

Date of hearing: 30th October, 2006.

P L D 2007 Supreme Court (AJ&K) 10

Present: Muhammad Reaz Akhtar Chaudhry, C.J. and Khawaja Shahad Ahmed, J

BUSHRA RAHIM and another---Appellants

Versus

AZAD JAMMU AND KASHMIR PUBLIC SERVICE COMMISISON through Secretary, Muzaffarabad and 2 others---Respondents

Civil Appeal No.118 of 2005, decided on 17th November, 2006.

(On appeal from the judgment of the High Court dated 30-9-2004 in Writ Petition No.86 of 2005).

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

----Ss. 42 & 44---Administration of justice---High Court decided writ petition filed by appellants on merits when appellants or their counsel was not present before High Court---Validity---When appellant or their counsel was not present before the High Court, it was enjoined upon the High Court to dismiss writ petition for default of appearance, but Court had wrongly dismissed writ petition on merits holding that it was not a fit case for admission---High Court had failed to consider settled principle of law that "where two provisions could be applied then the less stringent provision should be applied"---Order of High Court regarding dismissal of writ petition was set aside, by the Supreme Court with the result that writ petition stood restored for regular hearing and case was remanded to High Court, for decision in accordance with law.

Sattar Muhammad Raja v. Anwarullah Khan 1985 CLC 1550; Ali Afsar Khan v. Raza Muhammad Khan and another 1983 CLC 1872 and Alif Din v. Fazal Din and others PLD 1963 AJ&K 11 rel.

Ch. Muhammad Latif, Advocate for Appellants.

Respondents: Ex parte.

Date of hearing: 10th November, 2006.

P L D 2007 Supreme Court (AJ&K) 14

Present: Muhammad Reaz Akhtar Chaudhry, C.J. and Khawaja Shahad Ahmed, J

MUHAMMAD ARSHAD KHAN---Appellant

Versus

MUHAMMAD KALEEM KHAN and 7 others---Respondents

Civil Appeal No.70 of 2004, decided on 10th November, 2006.

(On appeal from the judgment and decree of the Shariat Court dated 17-3-2004 in Civil Appeal FC No. 2 of 2004).

Azad Jammu and Kashmir Family Courts Procedure Rules, 1998---

----R. 13---Limitation Act (IX of 1908), Ss.3, 5, 29 & Art.164---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 42---Appeal to Supreme Court---Ex parte decree---Application for setting aside ex parte decree---Limitation---Ex parte decree was passed against appellant and application. for setting aside said ex parte decree having been concurrently dismissed by the Trial Court and Shariat Court being time-barred, appellant had filed appeal before Supreme Court against order dismissing application for setting aside ex parte decree---Such application was moved by appellant after about two years from passing of ex parte decree, whereas R.13 of Azad Jammu and Kashmir Family Courts Procedure Rules, 1998, which was a special law, had provided limitation of 30 days for moving application for setting aside ex parte decree from date of passing of decree---Limitation provided in R.13 of Azad Jammu and Kashmir Family Courts Procedure Rules, 1998 being different from the limitation provided in the Schedule of Limitation Act, 1908, section 29 of Limitation Act, 1908,. would apply and in case of application of said section, Court below had no jurisdiction to condone limitation under S.5 of Limitation Act, 1908---Court below, in circumstances had rightly dismissed application being time-barred---Application for setting aside ex parte decree being hopelessly time-barred and Court below having no jurisdiction to condone limitation, Shariat Court had rightly dismissed appeal against judgment of the Trial Court.

Sher Ali and 20 others v. The Manager P.I.D.C. Collieries Quetta and others PLD 1973 Quetta 35; Azad Government and others v: Muhammad Shafi PLD 1971 AJ&K 33 and Manmatha Nath Biswas v. Emperor AIR 1933 Cal. 132 ref

Asghar Ali Malik, Advocate for Appellant.

Syed Nazir Hussain Shah Kazmi, Advocate for Respondents.

Date of hearing: 6th November, 2006.

P L D 2007 Supreme Court (AJ&K) 20

Present: Khawaja Muhammad Saeed, C.J. and Muhammad Reaz Akhtar Chaudhry, J

MUHAMMAD IRSHAD and 11 others ---Appellants

Versus

Mst. HANIFA BEGUM alias BAGI and 8 others---Respondents

Civil Appeal No.10 of 2005, decided on 13th October, 2006.

(On appeal from the judgment of the High Court dated 29-9-2004 in Civil Appeal No.102 of 2002).

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

----O. XX, R.6---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 42---Appeal to Supreme Court---Appellants had sought annulment of the judgment and decree of High Court whereby appeal filed by predecessor-in-interest of appellants was dismissed---High Court, had based its judgment on the point that if the finding of fact recorded by the first Appellate Court was at variance with that of the Trial Court, the former would be preferred---Contention was that since variance existed between the findings of the trial Court and the first Appellate Court preference should be given to findings of the first Appellate Court, had no substance---Finding of the first Appellate Court would be preferred only if it was found to be substantiated by evidence on record and it was supported by logical reasoning, duly taking note of the reason adduced by the first Appellate Court, which had been disfavoured in the contrary finding---Finding at variance would naturally be compared with the finding of the Trial Court and if it was found that the finding of the first Appellate Court was based on strong, cogent evidence and was inspiring-confidence only then preference should be given to the finding of the fist, Appellate Court---Preference could not be given merely on the ground that it was the finding of the first Appellate Court---High Court, in the present case, had simply held that preference should be given to first Appellate Court, but had not drawn any comparison in its judgment between the findings of the Trial Court and the first Appellate Court---High Court had not gone through the evidence .and endeavoured to take a comparison between both the findings---Finding of the High Court, was not maintainable---Judgment and decree passed by the High Court was set aside and case was remanded, accordingly.

Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617 rel.

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

----O. XX, R. 6---Contents of judgment and decree---Expected from a judicial officer that he would pass the speaking order to enable every one to have an idea or the view, which found favour with the Presiding Officer or such Court or the Tribunal---Judgment should contain concise statement of the case, points for determination which had been raised, the decision thereon and reason for such decision---Judicial order must be speaking and manifesting by itself that the Court had applied its mind to the resolution of all the material issues, because the poor litigants who brought their disputes in the Courts of law with the incidental hardship and expenses expect a judicial treatment of their cases and the determination by proper order---Any order or decree passed by the Court must not be vague, but must be precise, deliberate and couched in legal terminology.

Javed Iqbal v. Inspector-General of Police and 2 others 2005 SCR 25 rel.

Sh. Abdul Aziz, Advocate for Appellants:

Sardar Muhammad Arif Khan, Advocate for Respondents.

Date of hearing: 2nd October, 2006.

P L D 2007 Supreme Court (AJ&K) 56

Present: Muhammad Reaz Akhtar Chaudhry, C.J. and Khawaja Shahad Ahmed, J

MUHAMMAD SHAFIQUE---Appellant

Versus

Mst. GUL TAJ---Respondent

Civil Appeal No.64 of 2006, decided on 16th January, 2007.

(On appeal from the judgment of the Shariat Court dated 6-10-2006 in Civil Appeal No.94 of 2005).

Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----S. 5, Sched. & S.12---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Dissolution of marriage on ground of Khula'---Where it was apprehended that spouses could not keep themselves together within the limits ordained by God, then the marriage had to be dissolved after directing the wife who claimed dissolution of marriage to return the benefits whatever she had derived from her husband---Basic purpose and object of marriage was creation of a perfect and happy life between the spouses which could only be done, if there was a mutual love and affection and the limits imposed by God were observed---If it was not possible and the basic object of marriage was defeated then the marriage had to be dissolved---Husband, in the present case, stated in the court that he was ready to live with his wife on any sort of terms and conditions whichever she liked but she flatly refused and was not willing to live with him at any cost---Wife had developed extreme type of aversion against him---Wife, in cross-examination, had deposed that if husband was willing to provide her all the facilities demanded by her, even then she was not willing to live with him and she was not willing to live with her husband even if she had to be killed---Such aversion of wife showed extreme type of hatred in the mind of wife and it could easily be said that she was not willing to live with her husband at any cost---Relations between the spouses thus were so much strained that they could not live together within the limits ordained by God---Courts, in circumstances had rightly reached the conclusion that no chance of reconciliation existed between the spouses---Evidence on record had proved that amount of Rs.40,000 as dower though was fixed, but same was not paid by husband to wife---Court below, in circumstances had rightly resolved that amount of dower was not paid to wife and had rightly dissolved the marriage in lieu of amount of dower which was to be paid by husband to wife.

Mst.Balgis Fatima v. Najm-ul-Ikram Qureshi PLD 1959 Lah. 566 rel.

Syed Nazir Hussain Shah Kazmi for Appellant.

Kh. Muhammad Nasim for Respondent.

Date of hearing: 11th January, 2007.

P L D 2007 Supreme Court (AJ&K) 72

[Appellate Jurisdiction]

Present: Muhammad Reaz Akhtar Chaudhry, C.J. and Khawaja Shahad Ahmed, J

AZMAT alias PAPU and 3 others---Appellants

Versus

Mst. NISA BEGUM and 2 others---Respondents

Criminal Appeal No.50 of 2005, decided on 10th March, 2007.

(On appeal from the judgment of the Shariat Court dated 16-9-2005 in Criminal Revision Petition No 49 of 2005).

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

----S. 540---Penal Code (XLV of 1860), Ss.302, 324 & 34---Summoning of material witnesses---Evidence of prosecution having been closed by the Trial Court, complainant filed revision before Shariat Court which was dismissed being time-barred---Appeal filed before Supreme Court against the judgment of Shariat Court was also dismissed---When statements of accused were recorded under S.342, Cr.P.C., complainant moved application under S.540, Cr.P.C. for summoning prosecution witnesses as their evidence was essential for just decision of the case, which application was accepted by the Trial Court, however it declined to summon one prosecution witness---Shariat Court in revision filed by complainant against said order, directed the Trial Court to summon said prosecution witness also-Appeal had been filed against said judgment of the Shariat Court---Earlier when evidence of said witnesses was closed, then revision petition filed before Shariat Court was dismissed being time-barred and Shariat Court did not consider the facts and circumstances of the case; Supreme Court also dismissed appeal on the ground that revision before the Shariat Court was time-barred and both the Shariat Court and Supreme Court therefore had not gone into the merits of the case---Application subsequently filed under S.540, Cr.P.C. was allowed by the Trial Court and order passed by the Trial Court was maintained by the Shariat Court---Shariat Court and the Trial Court had allowed application of complainant while invoking powers under S. 540, Cr.P.C., which had empowered the Court to summon any person as a witness or examine any person, though not summoned as a witness and recall or re-examine any person when his evidence appeared essential for the just decision of the case---Basic

object of S.540, Cr.P.C. was to ascertain the truth for reaching at a proper conclusion of the case---Primary duty of a Court was to ascertain the truth---Court could not be absolved from that duty, merely on the basis of some technicality because basic object of enactment of law, the rules and creation of the courts was to administer justice and the justice could not be administered without ascertaining the truth---Witnesses sought to be summoned, being very important witnesses for reaching at a proper conclusion, it was necessary for the Trial Court to examine those witnesses.?

Mazhar Hussain v. The State 2002 PCr.LJ 614 and Mst. Nishan Bibi v. The State and another 2002 PCr.LJ 1501 ref.

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

----S. 540---Application for summoning and examining material witness---Object of S.540, Cr.P.C. ---Basic purpose of S.540, Cr.P.C. was that the court should examine any person who had any knowledge about the case and controversy therein so as to bring on record all the relevant material facts and to do complete justice after taking into consideration all the aspects of the case---Investigating Agency, the counsel, the parties and the witnesses, were mere instruments for revealing the truth so that the court should arrive at a just decision---Section 540, Cr.P.C. was basically meant for recording statement of such person who could help the court in reaching a just decision of the case---Power under S.540, Cr.P.C. could be invoked in order to bring something which could not be brought on record either due to negligence of parties or due to their intentional act.

Ghazi Ogahi v. The State PLD 2002 Kar. 411 ref.

Muhammad Azam Khan for Appellants.

Abdul Aziz Ratalvi for Respondents Nos. 1 and 2.

Addl. A.-G. for the State.

Date of hearing: 26th January, 2007.

P L D 2007 Supreme Court (AJ&K) 77

Present: Muhammad Reaz Akhtar Chaudhry, C.J. and Khawaja Shahad Ahmed, J

ABDUL REHMAN and another---Appellants

Versus

MUHAMMAD MUSHTAQ alias MAKHA and another---Respondents

Criminal Appeal No.22 of 2005, decided on 15th February, 2007.

(On appeal from the judgment of the Shariat Court dated 25-2-2005 in Criminal Appeal No.17 of 2004).

(a) Azad Jammu and Kashmir Offences Against Property (Enforcement of Hudood) Act, 1985---

----S. 17(4)---Penal Code (XLV of 1860), Ss.341 & 392---West Pakistan Arms Ordinance (XX of 1965), S.13---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), 42---Appeal against judgment of Shariat Court---Appreciation of evidence---Appeal had been directed against judgment of Shariat Court whereby death sentence awarded to accused by the Trial Court was set aside and instead sentence of ten years' R.I. was awarded---Validity---Shariat Court had not gone through the evidence minutely and had wrongly interpreted the evidence; Court had ignored the site plan which could be referred for determining the respective positions of accused, deceased and the witnesses and also place from where witnesses had witnessed the occurrence---Court, while appreciating evidence of eye-witnesses, had also to keep in mind the site plan for forming any opinion about particular eye-witness---Shariat Court had not appreciated evidence while keeping in view positions of prosecution witnesses incorporated in site plan---Shariat Court, in circumstances had wrongly discarded evidence of said prosecution witnesses---Shariat Court, despite holding that evidence as required under S.7 of Azad Jammu and Kashmir Offences Against Property (Enforcement of Hudood) Act, 1985 was not available, had awarded sentence of 10 years' R.I. under S.392, P.P.C.---Judgment of Shariat Court was self-contradictory which was not based on any solid and cogent reason---Report of Fire-arm Expert was that empty recovered from the place of occurrence was tired from 222 bore gun recovered at the instance of accused---Post-mortem report also had corroborated the version of prosecution, but Shariat Court had not considered that evidence---Court's fundamental duty was that while dealing with a murder case, it should sift the grain from the chaff---Version narrated in the F.1.R. and the statements of five eye-witnesses found corroboration from post-mortem report---No contradiction existed in the evidence of prosecution witnesses regarding time and place of recovery and manner of recovery---Version narrated by prosecution and eye-witnesses, found full corroboration from post-mortem report, recovery of gun, empty and report of Fire-arm Expert---Prosecution had proved its case against accused beyond any doubt---No enmity existed between witnesses and accused---Nothing was on record on basis of which it could be said that prosecution witnesses were inimical towards accused and had deposed against accused---Prosecution witnesses though were nearest relatives of complainant but mere relationship of a witness with complainant party was no ground for discarding or disbelieving his evidence until and unless he had some enmity with accused---Evidence of eye-witnesses, witnesses of recovery, post-mortem report and report of Fire-arm Expert, revealed that accused had committed murder of deceased---Trial Court in circumstances had rightly found accused guilty and awarded him death sentence and Shariat Court was not justified to convert sentence into 10 years imprisonment as accused had committed a brutal gruesome murder---Accused had committed murder of a woman only for the sake of ornament of petty amount---Accused had not committed offence on some provocation---Judgment passed by Shariat Court was set aside---Sentence of death awarded by the Trial Court was restored, accordingly.

Matiul Haq and 6 others v. The State 1983 PCr.LJ. 429; Muhammad Ahmad and another v. The State and others 1997 SCMR 89; Muhammad Khalil v. The State 1992 SCR 249; Abdul Khaliq v. Jehangir and another 1999 YLR 1908 and Ishaq v. The State PLD 1985 Kar. 595 ref.

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

----Ss. 302 & 53---Sentence, awarding of---While awarding the sentence the court had to be satisfied that; murder had been committed; that murder had been committed by accused and; that question of sentence should be determined according to gravity of offence---Question of sentence demanded utmost care---Sentence must be weighed in golden scale and it should be properly balanced to punish the offender---All circumstances surrounding the guilt must be carefully borne in mind---Elements to be considered for assessing the quantum of sentence were nature of offence; circumstances in which it was committed; degree of deliberation shown by the offender; provocation which he received; antecedents of prisoner up to the time of sentence; and his age and character---Such matters should be established by evidence and not by the impression created on the spur of the moment---Very wide discretion in the matter of sentence had been given to the courts, but discretion must be exercised ,judiciously---Basic object of punishment was to create a deterrence so that no one should dare to commit further crime and to make the evil doer an example and a warning to all other like minded persons---Death sentence in a murder case was a normal penalty and one while diverting towards lesser sentence had to furnish detailed reasoning, but no reasoning was required for awarding death sentence because it was a normal penalty---Where the court had to pass one out of two sentences, it should take into consideration all the circumstances of the case and award sentence which, according to its view, was more befitting.?

Waris Ali v. The State 1999 SCMR 1469; Noor Muhammad v. The State 1999 SCMR 2722 and Muhammad Ramzan v. The state and another 1997 PCr.LJ 1522 ref.

Ch. Ali Muhammad, Advocate for Appellants.

Raja Mazhar Iqbal, Advocate for Respondent No.1.

Riaz Navid Butt, Additional Advocate-General for the State.

Date of hearing: 29th November, 2006.

PLD 2007 Supreme Court (AJ&K) 92

Present: Muhammad Reaz Akhtar Chaudhry, C.J. and Khawaja Shahad Ahmed, J

MUJAHID HUSSAIN NAQVI---Petitioner

Versus

AZAD GOVERNMENT and others---Respondents

Civil Review Petition No.13 of 2001, decided on 30th May, 2007.

(In the matter of review from the order of this Court dated 15-6-2001 passed in Civil Miscellaneous Petitions Nos.45 and 46 of 2001)

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

----S. 114 & O.XLVII, R.1---Azad Jammu and Kashmir Supreme Court Rules, 1978, O.XLVI, R.1---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42-A(1)---Review of Supreme Court judgment---Issue or question decided by court erroneously or illegally---Review---Scope---Denial of justice to a person on basis of technicalities would not be justified---Greatness of a person would be to realize his mistake and correct same, but not to make same an issue of prestige and insist upon same---If one felt that any question was decided by him illegally or by not applying raw properly, then his basic duty would be to correct the wrong---Holy Prophet and pious persons whenever found that some error was committed by them, they immediately sought forgiveness and refuge from God and reviewed their wrongdoings---Administration of justice to parties being fundamental duty of all courts, court would be bound to ignore such law or rules of procedure not fulfilling its basic object, but being enjoinder of injustice or an hindrance in the way of justice---Moral and legal duty of Supreme Court was to ensure doing of complete justice to every one in every case matter---If an issue/question decided by Supreme Court found to be resolved illegally, then its refusal to review same would amount to injustice i.e. negation of justice---Principles.

Khuda Dad v. Ahmad Khan 1988 CLC 25; Mir Mazar v. Azim PLD 1993 SC 332; Haji Muhammad Islam v. Muhammad Rafiq and 2 others 1991 CLC 84; Ch. Zahur Ilahi v. The State PLD 1977 SC 273; Surah Al-Ambia Verses 77 and 78; Zia-ul-Qur'an Vol. 3, pp.117 and 178 by Pir Muhammad Karam Shah and Tafseer Ibn-e-Kaseer, Vol. 3, pp.414 and 415 by Hafiz Emad-ud-Din Abul Fida Ibn-e-Kaseer rel.

Zulfiqar Ali Bhutto v. The State PLD 1979 SC 741; Lt.-Col. Nawabzada Muhammad Ameer Khan v. The Controller of Estate Duty Government of Pakistan PLD 1962 SC 335; Muhammad Yousaf Sani v. Azad Government and 4 others 1996 SCR 370; Allah Ditta and others v. Mehrban and others 1992 SCR 145; Zafar Iqbal v. Allotment Committee of Municipal Committee Mirpur and others 1994 SCR 157; Ch. Ajaib Hussain and another v. Mst. Zareen Akhtar and 11 others 2003 YLR 410 and Muhammad Ayub Khan and others v. Chairman Inspection team and others PLD 1982 SC(AJ&K) 27 disapproved.

(b) Administration of justice---

----Purpose of enactment of all rules and laws is to secure proper administration of justice---Principles.

All the Rules and Laws are enacted for securing proper administration of justice. The Rules are meant to advance justice and to preserve the rights of litigants. The Rules are not enacted for entrapping the persons into blind corner so as to frustrate the purpose of law and the justice.

Khuda Dad v. Ahmad Khan 1998 CLD 25; Mir Mazar v. Azim PLD 1993 SC 332 and Haji Muhammad Islam v. Muhammad Rafique and 2 others 1991 CLC 84 rel.

(c) Islamic jurisprudence---

----Administration of justice---Greatness of a person would be to realize his mistake and correct same, but not to make same an issue of prestige and insist upon same---Person having resolved a question illegally or by not applying law correctly must correct the wrong---Holy Prophet and pious persons whenever found that some error was committed by them, they immediately sought forgiveness and refuge from God and reviewed their wrongdoings---Islamic principles highlighted.

Surah Al-Ambia Verses 77 and 78; Zia-ul-Qur'an Vol. 3, pp.117 and 178 by Pir Muhammad Karam Shah and Tafseer Ibn-e-Kaseer, Vol. 3, pp.414 and 415 by Hafiz Emad-ud-Din Abul Fida Ibn-e-Kaseer rel.

Petitioner in person.

Asghar Ali Malik for Respondents.

P L D 2007 Supreme Court (AJ&K) 102

Present: Muhammad Reaz Akhtar Chaudhry, C.J. and Khawaja Shahad Ahmed, J

Criminal Appeal No.44 of 2005

LIAQAT HUSSAIN and another---Appellants

Versus

ULFAT KHAN and, another---Respondents

(On appeal from the judgment of the Shariat Court dated 10-6-2005 in Criminal Reference No.27 of 2004 and Criminal Appeal No. 11 of 2005).

Criminal Appeal No.47 of 2005

Mst. RAJ BI and 3others---Appellants

Versus

LIAQAT HUSSAIN and 2others---Respondents

(On appeal from the judgment of the Shariat Court dated 10-6-2005 in Criminal Reference No.27 of 2004, and Criminal Appeal No.11 of 2005).

Criminal Appeal No.48 of 2005

KHAN MUHAMMAD---Appellant

Versus

ULFAT KHAN and another---Respondents

(On appeal from the judgment of the Shariat Court dated 10-6-2005 in Criminal Reference No.27 of 2004 and Criminal Appeal No. 11 of 2005).

Criminal Appeals Nos. 44, 47 and 48 of 2005, decided on 18th May, 2007.

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

----S. 302---Appreciation of evidence---Principles---Conviction can be recorded on the ocular testimony of a natural and reliable witness without seeking any corroboration---Such testimony, however, is required to be scrutinized with great care and caution in order to eliminate any possibility of doubt.?

Muhammad Hanif v. The State 1983 PCr.LJ 22S ref.

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

----S. 302---Appreciation of evidence---Inimical or interested witness---Practice and procedure ---While evaluating the evidence of an inimical, interested or partisan witness, Court has to be more cautious and it should focus its attention on the question whether his presence at the place of occurrence was probable and if so whether the story narrated by him is consistent with the other evidence on record, natural course of human events, surrounding circumstances and inherent probability of the case is sufficient to satisfy a prudent person---If the answer is in affirmative and the evidence of the witness appears to be almost flawless and free from suspicion, court may accept such evidence.?

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

----Ss. 302/34 & 341---West Pakistan Arms Ordinance (XX of 1965), S.13---Appreciation of evidence---Evidence of eye-witnesses being free from suspicion inspired confidence, which was corroborated by the medical evidence, recovery of pistol from the accused which matched with the crime empties according to the report of Firearms Expert--No enmity of prosecution witnesses with the accused was proved on record, which had ruled out the possibility of substitution of accused, which even otherwise was a very rare phenomenon---Minor contradictions pointed -out in evidence did not lead to any doubt about innocence of accused and were quite natural---Mere relationship of eke-witnesses with the deceased was no ground for discarding their testimony unless their enmity with accused was established---Convictions and sentences of accused were upheld in circumstances.?

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

----S. 302---Appreciation of evidence---Related witnesses, credibility of---Relationship of witnesses with the deceased alone is not sufficient to discard their testimony outrightly if they are otherwise found to be truthful---Witnesses found to be interested and inimical having a motive to falsely implicate innocent person from other party must be scrutinized very carefully and cautiously by the Court in order to eliminate the chances of false implication.?

Mehtab Khan v. The State PLD 1979 SC (AJ&K) 23 ref.

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

----S. 302---Appreciation of evidence---Contradictions in evidence---Minor contradictions in the statements of witnesses which do not lead to any doubt or on the basis of which no inference can be drawn regarding innocence of accused, are purposeless---Existence of such minor contradictions is quite natural.?

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

----S. 302---Appreciation of evidence---Corroboration---Connotation---Corroboration may not be from an independent witness but from anything which tends to satisfy the Court that the witness has spoken the truth---Corroboration need not necessarily be of the same probative force and can be from any circumstance satisfying the Court.?

Mehtab Khan v: The State PLD 1979 SC(AJ&K) 23 ref.

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

----S. 103---Search in presence of respectable inhabitants of the locality---Strict compliance of S.103, Cr.P.C. is not necessary in case of recoveries or seizure memos made by the police---Similarly mere relationship of the witnesses of the recovery memos is not a ground to reject their testimony dubbing the same as doubtful.

Abdul Rashid and others v. Abdul Ghaffar and others 2001 PCr.LJ 524 ref.

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

----S. 302(a)---Punishment with death as Qisas---Object---Sentence of Qisas awarded to an accused shall also create a deterrent in the society clue to which no other person shall dare to .commit the offence of murder---If in airy case while taking a lenient view the sentence of Qisas is not enforced, then the peace and tranquility of society shall be jeopardized and it shall be enjoinder of debacle of peaceful and harmonious atmosphere.?

Holy Qur'an in Sura Al-Baqara, Paara 2, Verses 178; 179 and Tafhim-ul-Qur'an, Vol. I, Syed Abul-Ala Modoodi ref.

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

?----Ss. 302/34 & 341---Appreciation of evidence---Accused, who was an old roan, was not armed with any kind of weapon and only a Lalkara was attributed to him---Record did not show that accused knew that co-accused, his son, was armed with a pistol---No overt act was attributed to accused---Normally all family members were dragged into the case if one member of the family had committed a crime---Benefit of doubt was extended to accused in circumstances and he was acquitted accordingly.?

Hidayat Ullah and others v. The State 1976 PCr.LJ 1.067; Muhammad Latif and 4 others v. The State 1976 PCr.LJ 1151 and Muhammad Shafi and another v. The State 1970 PCr.LJ 868 ref.

Sardar Khalil Ahmed Bukhari for Appellants (in Criminal Appeal No.44 of 2005).

Ch. Ali Muhammad for Respondent No.1 (in Criminal Appeal No.44 of 2005).

Muzaffar Ali Zafar, Addl. A.-G. for the State (in Criminal Appeal No.44 of 2005).

Ch. Ali Muhammad for Appellants (in Criminal Appeal No.47 of 2005).??????????? .

Syed Khalil Ahmed Bukhari for Respondents Nos.1 and 2 (in Criminal Appeal No.47 of 2005).

Muzaffar Ali Zafar, Addl. A:-G. for the State (in Criminal Appeal No.47 of 2005).

Syed Khalil Ahmed Bukhari for Appellants (in Criminal. Appeal No.48 of 2005).

Ch. Ali Muhammad for Respondent No.1 (in Criminal Appeal No.48 of 2005).

Muzaffar Ali Zafar, Addl. A.-G. for the State (in Criminal Appeal No.48 of 2005).

Date of hearing: 5th March, 2007.

P L D 2007 Supreme Court (AJ&K) 119

Present; Muhammad Reaz Akhtar Chaudhry, C.J. and Khawaja Shahad Ahmed, J

Civil Appeal No.86 of 2002

TAHIR MAHMOOD and 3 others---Appellants

Versus

KHALID SHARIF and 9 others---Respondents

(On appeal from the judgment of the High Court dated 6-3-2002 in Writ Petition No.103 of 1998).

Civil Appeal No.97 of 2002

KHALID SHARIF and 8 others---Appellants

Versus

CUSTODIAN OF EVACUEE PROPERTY, AJ&K, MUZAFFARABAD and 6 others---Respondents

(On appeal from the judgment of the High Court dated 6-3-2002 in Writ Petition No.7 of 1998).

Civil Appeals Nos.86 and 97 of 2002, decided on 30th July, 2007.

(a) Azad Jammu and Kashmir Administration of Evacuee Property Act (XII of 1957)---

----Ss. 18-B(1)(e), 18-A & 19---Scope and extent of powers of Custodian of Evacuee Property under S.18-B(1)(e), Azad Jammu and Kashmir Administration of Evacuee Property Act, 1957---Proprietary rights had already been granted to the allottee---Once the proprietary rights had been granted by the Custodian, he had no power left with him to cancel the allotment under S.18-B(1)(e) of the Act---Powers of Custodian of Evacuee Property to cancel the basic allotment, while invoking the powers of Multiple Judge under S.18-B(1)(e), Azad Jammu and Kashmir Administration of Evacuee Property Act, 1957 elaborated.

No doubt section 18-B(1)(e) of the Administration of Evacuee Property Act, 1957 confers the powers of Multiple Judge upon the Custodian, but these powers were given to him for a particular time. Under this provision of law the Custodian .can exercise the powers of Multiple Judge during the process of grant of proprietary rights. This provision clearly contains that the Custodian shall exercise the powers of Multiple Judge in cases processed or being processed for grant of proprietary rights. It clarifies the position that the Custodian shall exercise the powers of Multiple Judge during the course of grant of .proprietary rights. Before granting the proprietary rights, he has to ensure that no one is holding allotment beyond the scale and if it is found that someone is holding the allotment beyond the scale, then he can cancel the allotment while exercising the powers of Multiple Judge. The powers of Multiple Judge have been given to the Custodian only for meeting such eventuality.?

The provision clearly conveys that the Custodian shall exercise the powers of Multiple Judge under the Multiple Allotment Act, 1961, in order to confer the proprietary rights. In the aforesaid provision .the words "in order to confer proprietary rights" clearly convey that the powers of Multiple Judge were only given for conferring the proprietary rights. He can exercise these powers while conferring the proprietary rights. This provision is very much clear. It empowers the Custodian to exercise the powers of Multiple Judge during the course of grant of proprietary rights, which means that these powers were given to him for this particular situation. This provision further contains that "The Custodian shall exercise the powers of Multiple Judge under the Multiple Allotment Act, 1961, in cases processed or being processed for the grant of proprietary rights". Thus it clarifies that the Custodian shall exercise the powers of Multiple Judge in those cases which have been processed or are being processed for grant of proprietary rights. The whole of the provision clearly conveys that the powers of Multiple Judge were given to the Custodian during the completion of process of grant of proprietary rights. He can only look into the validity of allotment while granting proprietary rights.?

Section 18-B(1)(e) was enacted only for conferring the powers of Multiple Judge to the Custodian during the process of grant of proprietary rights because it has been clearly provided in this provision of law that "the Custodian while conferring the proprietary rights to a person can bring the allotment within the prescribed scale if it is beyond it" and he shall exercise the powers in cases processed or being processed for grant of proprietary rights. It clearly conveys that these powers were made available to the Custodian at the time of grant of proprietary rights and these powers were conferred upon him for a particular eventuality. The words used in the statute are very much clear and if ordinary, natural and grammatical meanings are given to the words, then these clearly reveal that the powers of Multiple Judge were given to the Custodian only for the time when he has to grant the proprietary rights. No doubt the Literal Rule contains that where the reading of the words leads to absurdity and the words are susceptible of other meaning, the Court may adopt the same if no alternate construction is possible but in the instant case, the reading of words contained in section 18-B(1)(e) does not lead to any other susceptible meaning. It is very much clear that these powers are given only for the time when he has to consider the cases for grant of proprietary rights.?

The words in section 18-B(1)(e) clearly convey that the Custodian shall exercise the powers of Multiple Judge when a file is processed or is being processed for grant of proprietary rights which means that the Custodian can look into the validity of the allotment under the Multiple Allotment Act at the time of considering the grant of proprietary rights.?

The powers of Multiple Judge were given to the Custodian for a particular time which means that these powers were available to him only during the process of grant of proprietary rights.?

Sections 18-A and 18-B were not included in the original Administration of Evacuee Property Act. After section 18, section 19 was mentioned in the original Act. Sections 18-A and 18-B were introduced subsequently on 14-1-1987. These provisions were introduced when it was decided by the Legislature to provide measures for permanent social and economic rehabilitation of the allottees of evacuee property by granting them proprietary rights. It is quite clear that these provisions were introduced only for the purpose of conferring the proprietary rights to the allottees of the land. Therefore these provisions deal with the grant of proprietary rights. These provisions provide procedure for grant of proprietary rights and also confer certain powers on the Rehabilitation Commissioner and the Custodian regarding grant of proprietary rights.?

The Preamble of the Act, whereby sections 18-A and 18-B were added clearly conveys that this Act was enacted only for the purpose of granting the proprietary rights to the allottees of the property. Section 18-A clearly lays down that the allottee holding allotment of evacuee property in AJ&K shall enjoy proprietary rights in respect of such property. Subsection (2) of section 18-A contains that the proprietary rights in pursuance of subsection (1) shall be granted by the Custodian to an allottee after satisfying himself about the genuineness of the claim and realizing from such allottee the cost and other dues prescribed by the rules. Subsection (3) .contains that the Rehabilitation Commissioner shall issue entitlement certificate under subsection (2).?

Section 18-B contains certain cases in which the Custodian can cancel the allotment of evacuee property.?

The plain reading of Preamble of the Act, whereby sections 18-A and 18-B were introduced and these provisions clearly reveal that certain powers were given to Custodian and Rehabilitation Commissioner under these provisions. These powers were given only for completion of process of grant of proprietary rights. When once this process is completed, then the Custodian is not authorized to exercise the powers given to him under these provisions. Section 18-B(1)(e) clearly contains that the Custodian shall exercise the powers of Multiple Judge under the Multiple Allotment Act in cases processed or being processed for the grant of proprietary rights. In this way, clause (e) contains a stipulation that the Custodian shall exercise .the powers of Multiple Judge at the time of processing the cases for grant of proprietary rights. Thus it is quite clear that the powers of Multiple Judge were conferred upon the Custodian only for considering the cases regarding the grant of proprietary rights. Once the proprietary rights have been granted by the Custodian, then after that he has no power to cancel the allotment under section 18-B(1)(e). In the present case the proprietary rights were granted on 24-7-1986. After the period of 11 years, the Custodian had invoked the suo Motu powers and cancelled the basic allotment while exercising the powers of Multiple Judge. He was not at all empowered and. competent, to cancel the basic allotment of the appellants after the grant of proprietary rights to them. If such jurisdiction is conferred upon the Custodian, then there will be no end of litigation and the poor litigants and their generations will be driven from pillar to post and they will be pushed into such a quagmire which will engender debacle of faith and confidence of people on the system. In such-like situation, the lachrymose maledictions of the poor litigants and their generations would ruin us. The Custodian had wrongly and without any jurisdiction cancelled the basic allotment and the learned Judge of the High Court had also failed to consider this important aspect of the case.?

(b) Interpretation of statutes---

----Modes and methods as "rules of statutory interpretation" enumerated with an exhaustive study of the subject---Intention of Legislature and reasons---Determination of---Principles.

The mode or method of interpretation of statutes has not generally been regulated by the Assembly or law-makers. It has to be evolved by the Judges and it varies from time to time. The Jurists have termed such modes or methods as "rules of statutory interpretation" . These rules areas under:---

(i) The Literal Rule.

(ii) The Mischief Rule.

(iii) The Golden Rule.

(iv) The United Contextual Approach.

Under the Literal Rule, the statute is to be read literally by giving the words used ordinary, natural and grammatical meaning. However if such a reading leads to absurdity and the words are susceptible of another meaning, the Court may adopt the same. If no such alternate construction is possible, the Court .must adopt ordinary rule of literal interpretation. Under the Literal Rule, the words of a statute are sufficient to determine every question that arises under it, no matter how absurd and unjust are the consequences. Interpretation of a provision of law should be harmonious and it should not lead to contradictory or ridiculous consequences. Various provisions of Act have to be read together and not in isolation thereof. A provision of law has to be interpreted in a manner more conducive to the interest of justice and practically possible.?

The Mischief Rule is a rule to guide the Judges when they find difficulty in Literal Interpretation. Under this Rule, the Judge is allowed to consider the historical background of the statute. This Rule allows the Judge to look into the common law before the Act and the mischief in the common law. Where the statute is for the remedy, the same is to be construed in such a manner to suppress the mischief and provide the remedy. The Judges must suppress the mischief and provide remedy to suppress/stop the novel innovations and inventions for evasion and continuance of the mischief. The Mischief Rule is designed to let the -Court to consider why the Act was passed and then to apply that knowledge giving the words under consideration whatever the meaning will be best according to the social purpose of legislation. The rule intends that the Court must advance legislative object and suppress the mischief sought to be cured. ?

The rule that a statute may be interpreted without following the literal interpretation so as to avoid absurdity is called Golden Rule. The literal legacy is conclusive evidence of the intention of "legislature and the intention can be gathered from the words used in the statute. Therefore, a statute must normally be interpreted on the basis of its ordinary, natural and grammatical meaning. According to this Rule, the Court is supposed to follow the literal approach unless it produces absurdity in which case only, the Court should give some other interpretation.?

Under the Rule of United Contextual Approach, the Court has the right to examine every word of statute in its context .and to use the same in its widest sense by not only including other enacting provisions of the same statute but its Preamble, the existing state of the law, other statutes in pari materia and the mischief. The Court can by those and other legitimate means discern the statute intended to remedy. No one can profess to understand any part of the statute or of any other document before he has read whole of it. Until one has done so, he is not entitled to say that it or any part of it is clear and unambiguous. All the statutes and enactments are to be given such interpretation as to make them operative and not to bypass them by advancing mere technical objections.?

The basic and fundamental rule of interpretation of statute is that the Court should ascertain the intention and the purpose of the Legislature because it is the essence of the statute. The legislative purpose is the reason why a particular enactment was passed by the Legislature.?

Naturally, the legislative purpose is the reason why the particular enactment was passed by the legislature. Perhaps the reason was to remedy some existing evil or to correct some defect in existing law, or to create a new right or a new remedy. Consequently, in seeking to ascertain the legislative purpose, the Court will resort, among other things, to the circumstances existing at the time of the law's enactment, to the necessity for the law and the evil intended to be cured by it, to the intended remedy, to the law prior to the new enactment and to 'the consequences of the construction urged.

The Court while construing a statute has to ascertain the reasons for its enactment that why it was enacted. Another principle of interpretation of statute is that the Court should give the simple meaning to the words used in the legislation. The Court can gather the intention of the Legislature from the simple meaning of words used in the legislation.?

The interpretation of law should be harmonious and it should not lead to contradictory or ridiculous consequences. Various provisions of Act are to be read together and not in isolation thereof.?

Canon of Construction and Interpretation of Statutes; Asim Qureshi v. Farooq Ahmad Khan Laghari and another PLD 1999 Lah. 76; Syed Muddasar Shah v. Managing Director N.-W.F.P. Forest Development Corporation and others 1999 MLD 736 and Statutory Construction, Interpretation of Laws, p.247 ref.

(c) Interpretation of statutes---

----Literal rule---Statute is to be read literally and the ordinary, natural and grammatical meanings should be given to the words used in the statute.?

(d) Interpretation of statutes---

----Golden rule---Statute must normally be interpreted on the basis of its ordinary, natural and grammatical meaning.?

?

(e) Interpretation of statutes---

----Harmonious interpretation---Interpretation of law should be harmonious and it should not lead to contradictory are ridiculous consequences---Various provisions of Act are to be read together and not in isolation thereof.?

M. Tabassum Aftab Alvi for Appellants (in C.A.No.86 of 2002).

Asghar Ali Malik for Respondents Nos. 1 to 9 ((in C.A.No.86 of 2002).

Asghar Ali Malik for Appellants ((in C.A.No.97 of 2002).

M. Tabassum Aftab Alvi for Respondents Nos.4 to 7 (in C.A.No.97 of 2002).

Date of hearing: 26th June, 2007.