PLD 2008 Judgments

P L D 2008 Federal Shariat Court 1

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

In re: SUO MOTU CASE NO.1/K OF 2006

(GENDER EQUALITY)

Suo Motu Case No.1/K of 2006, decided on 12th December, 2007.

Pakistan Citizenship Act (II of 1951)---

----S. 10---Constitution of Pakistan (1973), Arts.203-D, 2-A & 25---Repugnancy to Injunctions of Islam---Right of a married Pakistani woman to get Pakistan's citizenship for her foreign husband---Jurisdiction of Federal Shariat Court---Scope---Federal Shariat Court, in exercise of its powers under Art.203-D of the Constitution took suo motu notice of a news item that under Pakistan Citizenship Act, 1951 a married Pakistani woman was denied the right to get Pakistan's citizenship for her foreign husband; while a married man was entitled under S.10 of Pakistan Citizenship Act, 1951, to obtain Pakistan citizenship for his foreign wife---Section 10 of Pakistan Citizenship Act, 1951 was discriminatory, which negated gender equality and was in violation of Arts.2-A & 25 of the Constitution and also against international commitments of Pakistan and most importantly was repugnant to Holy Qur'an and Sunnah---While S.10 of Pakistan Citizenship Act, 1951 expressly contemplated denial of citizenship to a foreign husband of a Pakistani woman, as neither she nor he was entitled to apply for that, nevertheless under law whether municipal or international, grant of nationality would remain within the domain of discretion of the government of the country, which could refuse it for. reasons of national security or public interest etc. to which she or he could not claim as a matter of right---Federal Shariat Court, in exercise of powers under clause (3)(a) of Art. 203-D of the Constitution, required the President of Pakistan to take suitable steps for amendment of S.10(2) of Pakistan Citizenship Act, 1951, and other provisions of said Act, within specified period ensuring appropriate procedure for giant bf Pakistani nationality to a foreign husband married to a Pakistani woman.

Muhammad Ramzan Qureshi v: Federal Government and others PLD 1986 FSC 200; Pakistan v. Public at Large PLD 1986 SC 240; Mst. Kaneez Fatima v. Wali Muhammad and another PLD 1993 SC 901; Hafiz Abdul Waheed v. Mrs. Asma Jehangir and another PLD 2004 SC 219; Hazoor Bakhsh v. Federation of Pakistan PLD 1983 FSC 255; I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041 and Pakistan Muslim League(Q) v. Chief Executive of Islamic Republic of Pakistan PLD 2002 SC 994 ref.

Sardar Abdul Majeed, Standing Counsel and Naveed Akhtar Section Officer Ministry of Interior, Islamabad for Federal Government.

Shafqat Munir Malik, Addl. A.G., Punjab.

Arshad H. Lodhi, Asstt. A-G.. Sindh.

Pir Liaqat Ali Shah, A.-G., N.-W.F.P.

Mehmood Raza, Addl. A.-G. Balochistan.

Syed Afzal Haider, Senior Advocate, Supreme Court of Pakistan for Human Rights Commission of Pakistan and Lahore High Court Bar Association.

Muhammad Idrees Baig, Secretary for National Commission on the Status of Women.

Dates of hearing: 25-1-2007, 12-2-2007, 13-2-2007, 14-3-2007 2-4-2007, 7-5-2007, 29-5-2007, 7-6-2007, 4-9-2007, 6-98-2007 and 18-9-2007.???????

P L D 2008 Federal Shariat Court 17

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

Mst. SAKINA BIBI and others---Petitioners

Versus

GOVENRMENT OF PAKISTAN and others---Respondents

Shariat Petitions Nos. 29/I, 43/I, 64/I, 67/I of 1992, decided on 7th May, 2008.

Land Acquisition Act (I of 1894)---

----Ss. 4 & 13---Constitution of Pakistan (1973), Art.203-D---Acquisition of private property-Payment of compensation---Petition to Federal Shariat Court---State was not empowered to acquire private property without the consent of the owner; in case it was acquired in dire need or in exceptional circumstances, the government was bound to pay its compensation to its owner according to the market value or to provide the owner alternate property---Government which had acquired land of the petitioners, was directed to pay compensation to the petitioners/owners, within specified period and also to those aggrieved persons who had not approached the Shariat Court and whose property had been acquired.

Qazalbash Waqf and others v. Chief Land commissioner, Punjab, Lahore PLD 1990 SC 99 rel.

Mian Sultan Muhammad, Attorney for petitioners (in S.P.No.29/I of 1992).

Muhammad Shafi, Attorney for Petitioners in S.P.No.43/I of 1992).

Sardar Abdul Majeed, Standing Counsel for Federal Government.

Peer Liaqat Ali Shah, Advocate-General, N.-W.F.P. Shafqat Munir Malik, Addl. A.-G., Punjab.

Mehmood Raza, Addl. A.-G., Balochistan.

Arshad H. Lodhi, Asstt.A.-G., Sindh.

Masood Jan, Asstt. Secretary, Board of Revenue, N.-W.F.P.

Muhammad Daood, Superintendent, Board of Revenue, N.-W.F.P.

Raj Muhammad Deputy Director, Sericulture, N.-W.F.P.

Nasim Khan, Secretary Law, Government of N.-W.F.P.

Muhammad Saeed, Deputy Solicitor, Law Department, Government of N.-W.F.P.

Dates of hearing: 1st July, 18th October, 11th November, 1992; 15th June, 1st December, 1993; 3rd April, 1994; 10th and 18th December, 1995; 27th May, 4th and 28th June, 1999; 28th March, 2000; 28th March, 2002, 23rd January, 12th and 13th February, 28th March, 7th and 29th May, 11th September, 2007; 22nd, 29th January, 12th and 27th March and 7th May, 2008.

P L D 2008 High Court (AJ&K) 1

Before Sardar Muhammad Nawaz Khan, C. J. and Ghulam Mustafa Mughal, J

MUHAMMAD TARIQ AMEEN and others---Appellants

Versus

EHTESAB BUREAU AZAD JAMMU AND KASHMIR through Chief Prosecutor Ehtesab Bureau AJ&K, Muzaffarabad---Respondent

Criminal Appeals Nos.23 and 24 of 2005, decided on 13th May, 2008.

(a) Azad Jammu and Kashmir Ehtesab Bureau Act (I of 2001)---

----S. 11 --Prevention of Corruption Act (II of 1947), S.5(2)---Penal Code (XLV of 1860), S.468---Criminal Procedure Code (V of 1898), S.510---Appraisal of evidence---Prosecution case was that two accused had misused their authority to benefit the third accused and in this way caused damage to government exchequer---Entire edifice raised by the prosecution case rested on an order allegedly issued by one of the said two accused---Original order was not available on the file, as according to prosecution the original record with regard to service of the third accused had been destroyed---Photostat copy of the said order had no evidentiary value being inadmissible in evidence, which was not sent to handwriting expert for his opinion about the signatures of the concerned accused, who had denied issuance of the order---Other document was simply a proposal initiated by the said accused---Record did not show as to by whom such proposal was implemented which related to the training of the third accused---Report of the handwriting expert revealed that the signatures of the accused were found on the proposal initiated by him but it was a futile exercise as the accused had not disputed this document---Signatures of the accused over other documents collected by the prosecution from the office of education department were neither seized in his presence, nor he admitted them as correct---Positive opinion of the handwriting expert about the signatures of the accused on the said documents did not link him with the alleged offence, because the handwriting expert was not called before the Court to testify his report as required under S.510, Cr.P.C.---No mens rea or illegal gain was proved against the accused which was essentially to be proved in a case of corruption and corrupt practices---Entire evidence with regard to participation of accused in elections had nothing to do with the requirement under S.11 of the Azad Jammu and Kashmir Ehtesab Bureau Act, 2001, and S.468. P.P.C., because the allegations of forgery, misuse of position or obtaining illegal gain had not been proved'--All the legal requirements provided under the said provisions of law were to be fulfilled through reliable and cogent evidence, which was missing in the case---Accused were acquitted in circumstances.

(b) Azad Jammu and Kashmir Ehtesab Bureau Act (1 of 2001)---

----Ss. 10/11---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal trial --Essential---Existence of element of mens rea is essential in a case of corruption and corrupt practices---Unless the prosecution proves illegal gain received or obtained by an accused for his benefit or for the benefit of any person having relations with him, he cannot be convicted under these provisions of law---Mens rea is essential factor to be established in cases of corruption.

Raja Muhammad Hanif Khan and Chaudhry Muhammad Ibraheem Zia for Appellants.

Sardar Javed Naz, Deputy Chief Prosecutor and Khurshid Alam, Asstt. Chief Prosecutor for Ehtesab Bureau.

P L D 2008 High Court (AJ&K) 10

Before Ghulam Mustafa Mughal, J

MUHAMMAD YOUNUS KHAN and 11 others---Appellants

Versus

Kh. MUHAMMAD ISHAQ and 6 others---Respondents

Civil Appeal No.141 of 2005, decided on 9th June, 2008.

Civil Procedure Code (V of 1908)---

----O. XXII, Rr. 3, 4 & O.I, R.10---Impleading of a party---Appeal had been filed against dead person and his legal representatives were already on the record and the appellants had not impleaded them in line of respondents, though they did implead them in an appeal before High Court in an earlier round of litigation---Such legal representatives could not be impleaded in the garb of application for substitution, that too after the prescribed period of limitation---Where an appeal or a suit was filed against a sole dead person, then neither Order XXII, Rr. 3 & 4 of C.P.C. was applicable nor O.I, R.10,C.P.C. was attracted because such institution was a nullity in the eye of law and could not be revived impleading the legal heirs of the deceased.

Khan Muhammad Khan and 19 others v. Saif Ali and 22 others 1999 YLR 550; Hazrat Khan v. Amanullah Khan and others 1996 SCMR 1217; Ahmad Zaman Khan, Barrister v. Govt. of Punjab through Collector, Multan and 2 others 1993 CLC 1327; Hassan Amir and others v. Collector and others 1994 MLD 452; Muhammad Ibrahim v. Custodian Evacuee Property and 10 others 1999 YLR 2336; Malik Bashir Ahmed Khan and another v. Qasim Ali and 12 others PLD 2003 Lah. 615; Abdul Hamid Khan v. Muhammad Zameer Khan and 2 others 1990 MLD 1617; Province of East Pakistan v. Major Nawab Khawaja Hasan Askry PLD 1971 SC 82; Muhammad Ashraf and 8 others v. Azad Government of the State of Jammu and Kashmir and 13 others PLD 1985 SC(AJK) 102; Sakhi Muhammad and 10 others v. Noor Muhammad and 28 others PLD 1988 SC(AJK) 156 and Azad Government of the State of Jammu and Kashmir v. Sarfraz Alam and others 1997 MLD 383 ref.

Kh. Attaullah Chak and Kh. Muhammad Naseem for Appellants.

Muhammad Yaqoob Mughal for legal representatives of Respondent No.1.

P L D 2008 Islamabad 1

Before Sardar Muhammad Aslam, C. J. and Raja Saeed Akram Khan, J

Rana MUHAMMAD QASIM NOON---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and others---Respondents

Writ Petition No.21 of 2008, decided on 27th January, 2008.

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

----S.39(6)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Re-counting of ballot papers---Principles---Petitioner being unsuccessful candidate in election was aggrieved of order passed by Election Commission in refusing to direct re-count of votes, re-tabulation of result as received from Presiding Officer and its comparison with consolidated results issued by Returning Officer---Validity---Petitioner had to make out a case for re-counting by crossing hurdle in his way of "reasonableness"---Simple allegation couched in general words without specific instance and not substantiated by evidence could not be made basis to direct re-counting---Re-counting could not be directed after finalization of consolidation of results in absence of commission of grave illegalities apparent on the face of record---People expressed their voice which must be given respect and they should not be deprived of representation by keeping constituency vacant---Adequate machinery was provided in Representation of the People Act, 1976 to challenge election of a returned candidate through election petition---High Court refused to allow re-counting of ballot papers---Constitutional petition was dismissed in circumstances

Kanwar Ejaz Ali v. Irshad Ali and 2 others PLD 1986 SC 483 rel.

Writ Petition No.1478 of 2008; Writ Petition No.12058 of 2007 and W.P.No.12011 of 2007 distinguished.

Muhammad Akram Sheikh for Petitioner.

Nazeer Ahmed Ghazi and Molvi Zeeshan-ul-Haq for Respondent No.4.

Ghulam Mujtaba Returning Officer (in person).

P L D 2008 Islamabad 5

Before Sardar Muhammad Aslam, C J

Dr. RUKHSHANDA PARVEEN---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.1909 of 2007, decided on 24th March, 2008.

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

----S. 2---Constitution of Pakistan, Art.199---Constitutional petition---Exit control list---Grievance of petitioner was that her name had been placed on exit control list on the allegation of her links with Dr. Abdul Qadeer Khan---Validity---No material was found available in support of action of authorities placing name of petitioner on Exit control list--Petitioner was citizen of Pakistan and action of authorities detrimental to rights and liberty of a citizen was not permissible in law---Petitioner had already suffered for no fault attributable to her by losing prestigious scholarship---High Court directed the authorities to remove name of petitioner from Exit control list---Constitutional petition was allowed accordingly.

Saleem Akhtar v. Federation of Pakistan PLD 1999 Kar. 177 and Major (R.). Mir Mazhar Qayyum v. Federation of Pakistan 1999 YLR 111 fol.

Tariq Mehmood Khokhar for Petitioner.

D.A.G. for Respondents.

Ch. Muhammad Akram S.I. ECO M/O Interior in person with record.

P L D 2008 Islamabad 7

Before Sardar Muhammad Aslam, C.J. and Syed Qalab-e-Hasan, J

Malik MUKHTAR AHMAD---Appellant

Versus

Maj. (R.) MEHMOOD ALI KHAN and 15 others---Respondents

Intra-Court Appeal No.34 of 2006, decided on 12th March, 2008.

National Accountability Ordinance (XVIII of 1999)---

----S. 18---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Investigation, authorization of---Scope---Two criminal cases on same allegation---Appellant was aggrieved of order passed by Single Judge of High Court, whereby copy of application filed by respondent was sent to NAB for investigating the case---Plea raised by appellant was that as already a criminal case had been registered against him, therefore, neither second F.I.R. was competent nor High Court could issue direction to NAB for investigation---Validity---Division Bench of High Court directed the Chairman NAB to re-examine the case of appellant, inasmuch as second F.I.R. could not be registered and if so, to firstly satisfy himself with legal conditions before proceeding further with reference---Order, passed by Single Judge of High Court was set aside by Division Bench---Intra-Court appeal was allowed in circumstances.

Rauf Bakhsh Kadri v. State 2003 MLD 777 and Saleem Raza and 31 others v. The State PLD 2007 Kar. 139 rel.

Hamid Ali Bukhari and Umer Sajjad for Appellants.

Respondents Nos.1 and 3 in person.

Shamshad-Ullah Cheema Standing Counsel for Respondents Nos.12 to 14.

Tanveer-ul-Islam Khan for NAB/Respondent No.16.

Shaukat Ali S.-I. with record.

P L D 2008 Islamabad 11

Before Muhammad Munir Peracha, J

Miss KIRAN ARIF MIAN---Petitioner

Versus

Miss KINZA KHALID and another---Respondents

Civil Revision No.547 of 2005, heard on 8th April, 2008.

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

----S. 115, O. VIII, R. 10 & O. XLIII, R.1(b)---Revision---Maintainability---Trial Court after striking off defence of defendant, fixed the case for ex parte evidence of plaintiff---Defendant assailed the order passed by Trial Court in civil revision---Validity---Since judgment was not pronounced by Trial Court against defendant, therefore, appeal was not competent---Defendant had rightly filed revision petition in circumstances.

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

----O.VIII, Rr.9 & 10---Phrase "so required"---Scope---Non-filing of written statement---Striking off defence---Principles---If court has required defendant to file written statement, as the phrase used is "so required", only then provision of O. VIII, R. 10, C.P.C. can be invoked---Phrase "so required" necessarily relates to order passed under O.VIII,R.9, C.P.C.

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

----O. VIII, R.1, first proviso---Word "ordinarily"---Connotation---Word "ordinarily" used in first proviso to O.VIII, R.1, C.P.C. clearly demonstrates that it is directory in nature and court has the power to allow time beyond thirty days.

Wak Orient Power and Light Limited v. Westing House Electric Corporation 2002 SCMR 1854 rel.

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

----O. XXXII, Rr. 3 & 4---Guardian ad litem---Appointment---Plaintiff is supposed to file along with the plaint a list of relatives of the minor and other persons capable of acting as guardian---If no such list is filed, the court may call upon the plaintiff to furnish such list---Court has then to pass an order for appointment of guardian in the suit for the minor defendant.

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

----S. 12---Civil Procedure Code (V of 1908), O. VIII, Rr. 9, 10, O.XXXII, Rr.4, 5 & S.115---Suit against minor---Guardian ad litem, non-appointment of---Duty of court---Striking off defence---Plaintiff sought specific performance of agreement to sell against minor girl through her father---Court did not pass any order for appointment of guardian ad litem and despite seeking two adjournments minor failed to file written statement---Trial Court struck off the defence of defendant and adjourned the case for evidence of the plaintiff---Defendant filed application for setting aside of ex parte order but the application was dismissed by trial Court---Validity---No order of the court existed about appointment of father of minor as her guardian for the suit---Even if guardian was appointed by the court to defend the minor defendant and guardian did not fulfil their obligations and thus court was duty bound to replace the guardian---If father of the minor was not doing his duty of filing written statement, some other proper person should have been appointed as guardian like a court official or pleader---Trial Court without considering that defendant was a minor, struck off the defence of defendant---Order passed by trial Court was illegal and the same was set aside by High Court in exercise of revisional jurisdiction---High Court passed the order under O.VIII, R.9, C.P.C. requiring defendant to file written statement and directed the trial Court to specify the date before which defendant was to file written statement---Revision was allowed accordingly.

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

----S. 115---Revisional jurisdiction of High Court---Suo motu powers--Scope---High Court may exercise its revisional jurisdiction either suo motu or on an application of a person---If a person makes an application under S.115(1), C.P.C. for invoking revisional jurisdiction of High Court, such person has to make application within ninety days of the order sought to be revised---If some glaring illegality comes to the notice of High Court, although through an application filed by a person, beyond ninety days of the order, High Court may exercise its revisional jurisdiction---If a glaring mistake comes into notice of High Court, the High Court should not ignore the same merely on the ground that it has come to its notice through an application filed by a person beyond ninety days---High Court may exercise suo motu revisional jurisdiction possessed by it in such situation.

Malik Zamin Abbas for Petitioner.

Muhammad Aslam Arain for Respondents.

Date of hearing: 28th April, 2008.

P L D 2008 Islamabad 21

Before Sardar Muhammad Aslam, C.J. and Raja Saeed Akram Khan, J

MUHAMMAD ISHTIAQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.717 of 2002, heard on 30th April, 2008.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 302(c)---Appreciation of evidence---Sentence, reduction in---Medical evidence being in clash with ocular testimony, incident could be inferred to have not taken place as deposed by the prosecution witnesses---No motive or any previous ill-will existed between the parties--Occurrence had taken place at the spur of the moment on exchange of filthy language by both the sides without any premeditation or pre-concert---Deceased as well as the accused, both young persons with boiling blood might have lost patience and in the heat of temper scuffled with each other and it could not be said with certitude as to whether in the said scuffle the gun went off accidentally or the accused pressed the trigger to avoid loss of control of the gun and the resultant apprehension of being done to death or receive a fatal injury---Accused in such a situation might be deprived of self-control, lost his mental faculty may be temporarily and became unable to judge his actions---Such a sudden provocation and flare up did not bring the offence within the ambit of outright murder---Conviction of accused under S.302(b), P.P.C. was altered to S.302(c), P.P.C. and his sentence of death was reduced to ten years' R.I., in circumstances.

Sabah Mohy-ud-Din for Appellant.

Malik Waheed Anjum for the Complainant.

Khawaja Muhammad Asif, Federal Counsel for the State.

Date of hearing: 30th April, 2008.

P L D 2008 Islamabad 26

Before Raja Saeed Akram Khan, J

MUHAMMAD IQBAL KHAN---Petitioner

Versus

DIRECTOR-GENERAL, FIA, ISLAMABAD and 4 others---Respondents

Writ Petition No.2296 of 2006, heard on 27th May, 2008.

Emigration Ordinance (XVIII of 1979)---

----Ss.18 & 22---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Allegations levelled against petitioner in F.I.R. registered against him were that he fraudulently induced respondent to emigrate abroad for the purpose of securing employment and thereby petitioner received from him huge amount---Petitioner was handcuffed and taken to FIA Cell---FIA personnel told the petitioner that he had been arrested for being a terrorist---Petitioner was a British citizen, of Pakistan origin and was a renowned businessman and Chief Executive of a firm and he came to Pakistan at the invitation of Government of Pakistan for the purpose of investment---Petitioner set up a beverage plant in Pakistan and total cost of the project was approximately one million pounds sterling, equivalent to Pak Rs.11,50,000,00---Person who invested such huge money and established beverage factory in Pakistan, could not indulge in such like activities for which he had been booked---Facts and circumstances of the case, showed that all that had been done to grab the factory/property and to achieve that purpose---FIA Authorities had fully supported/facilitated the person who involved petitioner in the case---Act of FIA personnels, could not be appreciated and approved, who had acted abhorrently---Constitution guarantees inalienable rights of life, property, reputation and to be protected by law and not to be prevented from doing which was not prohibited by law---FIA personnels had failed to act in good faith in the case, instead they acted malafidely; however, as the case against the petitioner had already been cancelled by the competent court, present petition had borne fruit---D.G., FIA, however was directed to look into the conduct of FIA personnels in the case personally and hold a full fledge inquiry to fix responsibility on delinquent officials.

Tariq Mehmood Khokhar for Petitioner.

Iftikhar Bhatti, Federal Counsel for Respondents.

Date of hearing: 27th May, 2008.

P L D 2008 Islamabad 30

Before Muhammad Munir Peracha and Dr. Sajid Qureshi, JJ

Messrs FECTO CEMENT LIMITED, SANGJANI, ISLAMABAD---Appellant

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Water and Power, Islamabad and 5 others---Respondents

I.C.A. No.95 of 2003, decided on 17th June, 2008.

West Pakistan Finance Act (XXXIV of 1964)---

----S. 13---Establishment of West Pakistan Act, 1955, S.2(1)---Capital Development Authority Ordinance (XXIII of 1960), S.2(p)---Capital of the Republic (Determination of Area) Ordinance (VI of 1963), S.2---Province of West Pakistan (Dissolution) Order (P.O. 1 of 1970), Art.19---Constitution of Pakistan (1973), Arts. 1(2) & 268---Consumption of electricity by industrial unit established in capital area of Islamabad---Levy of electricity duty---Scope---Area of Islamabad already being part of Province of Punjab on promulgation of Establishment of West Pakistan Act, 1955 became part of West Pakistan and remained so even after declaration of area of capital by S.2 of Capital of the Republic (Determination of Area) Ordinance, 1963---Province of West Pakistan stood dissolved through Province of West Pakistan (Dissolution) Order, 1970, whereafter Constitution (1973), was promulgated and Punjab Assembly could not legislate with respect to Capital Area of Islamabad---By virtue of Art.268 of the Constitution, S.13 of West Pakistan Finance Act, 1964 being an existing law and in force in Capital Area of Islamabad was to continue in force---Section 13 of Finance Act, 1964 as substituted by S.5 of Punjab Finance Ordinance, 1978 would apply to Capital Area of Islamabad with effect from 27-6-1978---Principles.

Hashwani Hotels Ltd., Karachi v. Government of the Punjab and another PLD 1981 Lah. 211 distinguished.

Raja Muhammad Akram for Appellant.

Sheikh Zameer Hussain for Respondents.

Date of hearing: 9th June, 2008.

P L D 2008 Islamabad 37

Before Syed Qalb-i-Hassan, J

Raja SAFEER AHMAD and another---Petitioners

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Defence, Rawalpindi

and 3 others---Respondents

Writ Petition No.1678 of 2007, decided on 27th May, 2008.

Works of Defence Act (VII of 1903)---

----Ss.2(j) & 3---Notification S.R.O.279(I)/2007---National Command Authority Ordinance (LXX of 2007), S.2(d)---Land Acquisition Act (I of 1894), Ss. 35 & 36---Constitution of Pakistan (1973), Arts. 23, 24 & 199---Constitutional petition---Works of defence---Restriction on use of property---Petitioners were owners of properties situated in the vicinity of Pakistan Institute of Nuclear Science and Technology (PINSTECH)---Petitioners were aggrieved of notification S.R.O.279(I)/2007, whereby authorities restrained all owners of the properties from alienating the same unless permitted by the authorities---Plea raised by petitioners was that such restriction was ultra vires the Constitution and PINSTECH did not fall under the definition of works of defence as defined in S.2 (j) of Works of Defence Act, 1903---Petitioners further raised the plea that authorities could have acquired their properties under Land Acquisition Act, 1894---Validity---Restrictions imposed for unlimited period were not reasonable restrictions as enshrined in Art.23 of the Constitution---Authorities did not object to construction raised by people for the last sixty years and then all of a sudden a notification was issued to impose restrictions on the entire vicinity without prescribing time limit to keep public in lurch for an indefinite period---Restrictions imposed by the notification for indefinite period were not reasonable restrictions---High Court following the analogy of Ss.35 and 36 of Land Acquisition Act, 1894, directed the authorities to prescribe any definite period for temporary restrictions but not exceeding three years from the date of notification otherwise notification would be deemed to have been lapsed after a period of three years---Authorities were entitled to acquire property in accordance with procedure laid down Land Acquisition Act, 1894 after a period of three years from the date of the notification if deemed necessary in the interest of sovereignty of Pakistan---Petition was disposed of accordingly.

Jamat-i-Islami Pakistan v. Federation of Pakistan PLD 2000 SC 111 and AIR 1922 All. 86(1) ref.

Syed Iftikhar Gillani for Petitioners.

Raja Muhammad Bashir for Respondents Nos. 2 and 3.

Barrister Masroor Shah for Respondent No. 4 (CDA).

Date of hearing: 18th April, 2008.

P L D 2008 Islamabad 48

Before Syed Qalb-i-Hassan, J

Messrs SEZAI TURKES FEYZI AKKAYA CONSTRUCTION COMPANY (STFA) through Regional Representative STFA, Islamabad---Petitioner

Versus

Messrs EKON YAPI ONARIM TICARET VE SANAYI LTD. through Managing Director and 2 others---Respondents

C.R.No.244 of 2007, herd on 9th May, 2008.

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

----S. 28---Any contract entered into with a foreign national giving jurisdiction to a foreign court and ousting jurisdiction of courts in Pakistan, would be an invalid contract.

M.A. Chowdhury v. Mitsui O.S.K. Lines Ltd. and 3 others PLD 1970 SC 373 fol.

Kadir Motors v. National Motors 1992 SCMR 1174; Muhammad Asghar v. Standard Insurance 2007 CLC 209 and State Life Insurance v. Rana M. Saleem 1987 SCMR 393 distinguished.

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

----S. 20---All suits shall have to be instituted in court in the local limits of whose jurisdiction the defendant or any of the defendants actually or voluntarily resides or carries on business or personally works for gain at the time of commencement of the suit---Defendants (foreign companies) having their offices in Islamabad, suit was rightly filed in court of Islamabad.

Muhammad Bilal, Babar Bilal and Ms. Shaziya Bilal for Petitioner.

Umar Farooq Adam for Respondent No.1.

Syed Nayyab Hassan Gardezi for Respondent No.3.

Date of hearing: 9th May, 2008.

P L D 2008 Karachi 1

Before Zia Perwez, J

MUHAMMAD ANIS---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.806 of 2007, decided on 9th October, 2007.

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

----S.497---Penal Code (XLV of 1860), Ss.395 & 412---Qanun-e-Shahadat (10 of 1984), Art.22---Bail, grant of---Identification parade---Statement of co-accused---Neither any recovery was effected from possession of accused, nor he was arrested from the spot---Only evidence against accused was statement of co-accused recorded under S.161 Cr.P.C.-- Validity---In absence of any identification parade or recovery from possession of accused, evidence in shape of statement of co-accused, prima facie, was not strong enough to deny concession of bail---Even such statement was not corroborated and without corroboration it was not acceptable against other accused---Prima facie, there was no sufficient evidence against accused connecting him with commission of offence with which he was charged---Bail was granted in circumstances.

Ghulam Hussain v. The State 1997 PCr.LJ 1782; Mrs. Saeeda Ahsan v. Province of Punjab 1992 MLD 1322; Muhammad Nasim v. The State 2000 YLR 3010 and Pir Mazhar-ul-Haq v. The State 1992 PCr.LJ 1910 ref.

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

----Ss.497 & 498---Bail, grant of---Principles---Bail cannot be withheld as punishment on the ground that the offence with which accused is charged is non-bailable.

Mahmood A. Qureshi along with Haq Nawaz for Applicant.

Qazi Wali Muhammad for the State.

P L D 2008 Karachi 3

Before Abdur Rahman Faruq Pirzada, J

ALI NAWAZ SABZOI---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No.41 of 2007, decided on 25th September, 2007.

West Pakistan Arms Ordinance (XX of 1965)---

----S. 13(e)---Appreciation of evidence---Benefit of doubt---Complainant/S.H.O. at relevant time was posted at Police Station K', whereas the alleged recovery of pistol was effected within the jurisdiction of Police StationKand--,-No entries of arrival as well as departure were made at Police StationKand' to the effect that S.H.O. K' had entered within the limits of Police StationKand' for the purpose of investigation , recovery etc. in any particular case---Complainant. neither appeared at Police Station Kand' personally for registration of F.I.R., nor he signed the F.I.R.---Complainant/S.H.O. had sent the mashirnama of recovery through one constable at Police StationKand'---Contention of counsel for petitioner/accused to the effect that mashirs were closely related to complainant in the main connected case, found support from the deposition of prosecution witnesses---Case of prosecution was not that both mashirs were residents of the locality of the place of recovery---No independent person residing in the locality of place of recovery was associated with the case as mashir---Prosecution case was that recovery of pistol was made from inside the house of accused---Mandatory provisions of S.103 Cr.P.C., provided that independent persons from the locality should be made mashirs, however such provisions were prima facie violated in the present case---Evidence on record was not properly appreciated by the Trial Court as well as Appellate Court, which amounted to misreading of evidence---Benefit of doubt, in view of various discrepancies appearing in the case ought to be given to petitioner/accused---Impugned judgments of the Trial Court and Appellate Court, were set aside --- Petitioner/accused was directed to be released.

Ali Nawaz Ghanghro for Applicant.

Mushtaq Ahmed Kaurejo, State Counsel.

Date of hearing: 25th September, 2007.

P L D 2008 Karachi 8

Before Muhammad Moosa K. Leghari and Mrs. Yasmin Abbasey, JJ

KHALIL AHMED---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. D-69 and D-84 of 2006, decided on 19th September, 2007.

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

----S. 9(c)---Appreciation of evidence---Chemical Examiner's report revealed that it was not perceivable that material recovered from the possession of accused was charas---After such negative report from the Chemical Examiner, no doubt remained to take a view that material sent to the Chemical Examiner was charas---Case of prosecution, in circumstances suffered an irredeemable damage on that score alone---Record showed that the charas was in the shape of rods, but nowhere in the entire evidence, the number of rods had been mentioned---F.I.R. did not disclose the names of the subordinate staff who accompanied the complainant for the purpose of checking---Even the names of Mushirs were not mentioned in the body of memo of arrest, recovery and seizure of charas---Car in question though was also taken in custody by the Excise Inspector, but neither such memo was prepared nor produced in evidence---Such circumstances had rendered the prosecution story dubious---Recovery was effected on a highway in front of Petrol Pump in the close proximity of town, which was a busiest place, but neither any person from the public was made witness of recovery nor anyone was persuaded to attest the recovery proceedings---Applicability of S.103, Cr.P.C. though had been excluded under the Control of Narcotic Substances Act, 1997, but it would not debar or prohibit the officers making recoveries on such places, which were necessarily surrounded by people to take some steps/measures to associate private persons in the process-House of accused was searched without warrant and without associating any respectable person of the locality---Story as cooked up by the prosecution, being highly improbable and implausible, had created number of doubts---Case of prosecution being highly doubtful, conviction of accused, could not be based on such type of trials which were marred by glaring infirmities---Conviction recorded against accused were set aside and they were directed to be released.

Muhammad Hashim v. The State PLD 2004 SC 856 ref.

Noorul Haq Qureshi for Appellant (in Criminal Appeal No. D-69/06).

Basharat Ahmed Jatt for Appellant (in Criminal Appeal No. D-84/06).

Muhammad Azeem Panhwar for the State.

Date of hearing: 5th September, 2007.

P L D 2008 Karachi 14

Before Abdur Rahman Faruq Pirzada, J

PERVAIZ AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.239 and M.A.No.545 of 2007, decided on 28th September, 2007:

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

---S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(b) & 25---Bail, grant of---Further inquiry---Charas in question was found in the shape of five separate slabs/patties, but only one slab/patti was sent for the chemical analysis report---No expert opinion could be available regarding remaining four slabs/patties, as to whether those contained any narcotic substance or not---Since only one slab/patti of charas was separately sent for the chemical analysis report, which weighed one kilogram, the chemical report would be conclusive only to the extent of one kilogram of charas---Question whether the entire recovered substance was covered by the definition of narcotics, would be properly determined at the stage of trial after sufficient evidence was brought on record---Tentative assessment showed that chemical analysis report to the extent of only one slab/patti weighing one kilogram, prima facie would constitute an offence under S.9(b) Control of Narcotic Substances Act, 1997, which was punishable to the extent of seven years---Place where incident allegedly occurred was situated in the midst of the city which was a thickly-populated area, but no private person from the locality was associated as witness/mashir in the case---Section 25 Control of Narcotic Substances Act,1997, provided that provisions S.103, Cr.P.C. would not be applicable, but still each case had to be seen in its true perspective with regard to the background and surrounding circumstances---In the present case, as a natural circumstance , some persons from the locality, must have been available who had witnessed the incident, but those were not associated-Case of accused calling for further inquiry under S.497(2), Cr.P.C., he was admitted to bail .

Imtiaz Ali v. The State 2006 MLD 1961; Nadeem v. The State 2007 MLD 1092 and Afzal Ahmed v. The State 2003 SCMR 573 rel.

PLD 2004 SC 856; Mst. Bibi v. The State 2005 MLD 386; Muhammad Uzair Siddiqui v. The State PLD 2005 Peshawar 81; Jangrez Khan v. The State 2005 PCr.LJ 1506 ref.

Asif Ali Abdul Razzak Soomro for the Applicant.

Mushtaq Ahmed Kaurejo, State Counsel.

P L D 2008 Karachi 20

Before Zia Perwez, J

Shaikh MUHAMMAD SADI1Q---Appellant

Versus

Mst. SAIN ISLAM---Respondent

F.R.A. No.22 of 2006, decided on 25th September, 2007.

(a) Words and phrases---

----"Impair"---Meanging.

Chambers 20th Century Dictionary, New Edn., 1983 ref.

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

----S. 17(2)(iii)---Ejectment petition---Installation of air-conditioner and iron gate at premises by tenant---Validity---No protest was' made by landlord in this regard till expiry of lease period---Security amount was available with landlord-Such changes effected might be restored at the costs of tenant at the time of handing over possession of premises---No ground for ejectment was made out-Ejection petition was dismissed in circumstances.

Samiullah v. Mian Muhammad Saleem 1971 SCMR 725 and Muhammad Yusuf v. Muhammad Saghiruddin Qureshi 1987 CLC 76 ref.

Syed Qudrat Ali v. Mst. Maqbool Fatima and 3 others 1989 CLC 599 rel.

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

----S. 10---Contract Act (IX of 1872), S.10---Payment of rent---Rent agreement for a period of eleven (11) months---Agreement containing clause regarding increase in monthly rent at 10% after expiry of every eleven (11) months---Effect---Such clause would not operate within initial period of tenancy, but would come into operation on expiry of term of period of eleven (11) months---Incorporation of such clause in agreement in order to protect future rights of landlord would not be illegal, if same was entered into with free consent of parties.

Muhammad Akbar v. Shaikh Nasiruddin 1991 MLD 1338; Abdul Aziz v. Yahya and 4 others 1993 MLD 1447; Mst. Nasima Begum v. Ali Dost PLD 1993 Kar. 137 ref.

Laus Deo Enterprises v. Mrs. Suraya Jameel and another (PLD 1991 Kar. 309 rel.

Fasih-uz-Zaman for Appellant.

Qamar-ul-Islam for Respondent.

Date of hearing: 25th September, 2007.

P L D 2008 Karachi 25

Before Nadeem Azhar Siddiqi, J

ABDUL ALEEM BUTT---Plaintiff

Versus

Messrs BEHRIA FOUNDATION through Managing Director and another---Defendants

Civil Suit No.202 of 2001, decided on 19th October, 2007.

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

----S. 12(1) & Art.23---Suit for damages---Malicious prosecution---Limitation---Plaintiff was acquitted from criminal case, which was got registered against him by defendant---Suit was filed by plaintiff for damages for malicious prosecution but defendant raised objection that suit was barred by limitation---Plea raised by plaintiff was that after excluding time consumed for getting attested copy of judgment, the suit was within time---Validity---Exclusion of time consumed in obtaining certified copy of orders for the purpose of filing of suit was not provided in S.12 of Limitation Act, 1908---Benefit of S.12 of Limitation Act, 1908, was not available to plaintiff for the purpose of filing the suit and it was barred by Art.23 of Limitation Act, 1908---Suit was dismissed it circumstances.

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

----Art. 120---Residuary provision for filing of suits---Applicability--Provisions of Art.120 of Limitation Act, 1908, are applicable to the cases/suits which do not fall under any specific category---Where another specific Article applies provisions of Art.120 of Limitation Act, 1908, do not apply.

Muhammad Yousuf v. Syed Ghayyur Hussain Shah and others 1993 SCMR 1185 ref.

(c) Malacious prosecution---

----Suit for damages---Limitation.

Ch. A. Rasheed for Plaintiff.

Nemo for Defendants.

Dates of hearing: 23rd and 31st August, 2007.

P L D 2008 Karachi 29

Before Zia Perwez, J

TANYA KNITWEAR (PVT.) LTD. and others---Appellants

Versus

FIRST WOMEN BANK LTD---Respondent

First Appeal No.24 of 2003, decided on 23rd October, 2007.

(a) Review---

----Special statute---Power to review---Scope---Exercise of powers under special enactment does not imply a power to review earlier orders in exercise of inherent powers unless power of review is specifically conferred by such statute.

Messrs Baghpatee Service (Pvt.) Ltd. and 6 others v. Messrs Allied Bank of Pakistan Ltd. 2001 CLC 1363 rel.

(b) Financial Institutions (Recovery of Finances) Ordinance (LXVI of 2001)---

----S. 17---Civil Procedure Code (V of 1908), O.XXIII, R.3 & S.151---Consent decree, setting aside of---Decision on merits---Scope---Suit filed by bank was decreed in favour of bank on the basis of joint statement submitted by counsel of both the parties---After over two years of passing of consent decree, bank filed application for either changing material dates in the compromise or for setting aside of decree and decision of case on merits on the ground that statement filed by their counsel was without authority---Bank did not institute any action against counsel who had allegedly filed compromise---Effect---Such consent order which was based on record, where change of dates might seriously prejudice the right of opposite party could not be reviewed or interfered with by High Court, after a long delay of more than two years---No violation of any State Bank Circular was pointed out by the bank---Such was beyond the scope of S.151, C.P.C. to review such case on merits---High Court did not find any ground or error in the consent order passed earlier which could call for correction as compromise was based on the statement of both the parties---Neither any ground for recall or order of compromise decree was made out nor powers of review were available---Application was dismissed in circumstances.

Metal Containers Employees Union v. Ali Anwar Changhro 2001 YLR 1818; Messrs Baghpatee Service (Pvt.) Ltd. and 6 others v. Messrs Allied Bank of Pakistan Ltd. 2001 CLC 1363; Hashwani Hotels Limited v. Federation of Pakistan and others PLD 1997 SC 315; Messrs Habib Bank Limited v. Messrs Schon Textiles Ltd. 2001 YLR 1244; Agricultural Development Bank of Pakistan v. Jasarat Hussain 2002 CLD 93; Allied Bank of Pakistan Ltd. Faisalabad v. Messrs Aisha Garments, etc. 2002 AC 104; Textile Management (Pvt.) Ltd. v. N.I.T. 2002 CLD 276; Allied Bank of Pakistan Ltd. v. Messrs Modern Metallic Services 2003 CLD 1352; Allied Bank of Pakistan Ltd. v. Mrs. Fahmida and others 2004 CLD 110; Nasir Mushtaq Vohra v. Crescent Investment Bank Ltd. 2005 SLJ 35; United Bank Ltd. v. Ch. Ghulam Hussain 1998 CLC 816; Habib Bank Ltd. v. A.B.M. Graner (Pvt.) Ltd. PLD 2001 Kar. 264; 2001 MLD 1351; 2001 YLR 1549; Adul Basit v. Bank of Punjab 2003 CLD 751; Yussra Textile Corporation v. PICIC Commercial Bank Ltd. 2003 CLD 905; Habib Bank Ltd. v. Al-Jalal Textile Mills Ltd. 2003 CLD 1007; National Bank of Pakistan v. Punjab Building Products Ltd. PLD 1998 Kar. 302; I.C.P. v. Messrs Chiniot Textile Mills Ltd. PLD 1998 Kar. 316; United Bank Ltd. v Central Cotton Mills Ltd. 1999 CLC 1374; Habib Bank Ltd. v. Pakistan National Textile Mills 2001 MLD 1137; United Bank Ltd. v. Mian Aftab Ahmed 2001 MLD 1332; Habib Bank Ltd. v. Balochistan Gum Industries (Pvt.) Ltd.. 2001 YLR 81; Muslim Commercial Bank Ltd. v. Razwan Textile Mills Ltd. 1998 MLD 529; Muhammad Yusaf v. A.D.B.P. 2002 CLD 1270; Gul Habib v. Habib Bank Ltd. PLD 1983 Pesh. 31; Muhammad Sulleman v. Habib Bank Ltd. 1988 CLC 969; Industrial Development Batik of Pakistan v. Al-Mansoor Ltd. PLD 1989 Pesh. 191; Bakers Equity Ltd. v. Bentonite Pakistan Ltd. 2003 CLD 931; International Traders v. Union Bank Ltd. 2003 CLD 1464; Bank of Khyber v: Spencer Distribution Ltd. 2003 CLD 1406; Central Bank of India v. S. Muhammad Abdul Jalil Shah 1999 CLC 971; Muhammad Siddiq Muhammad Umar v. Australasia Bank Ltd. PLD 1966 SC 684; Citibank N.A., A Banking Company v. Riaz Ahmed 2000 CLC 847; First Grindlays Modaraba v. Pakland Cement Ltd. 2000 CLC 2017; Sh. Muhammad Naeem v. Habib Bank Ltd. 2003 CLD 606;, Citybank v. Tariq Mohsin Siddiqui PLD 1999 Kar. 196; Askari Comercial Bank Ltd. v. Pakland Cement PLD 2000 Kar. 246; Pakistan Industrial Credit and Investment Corporation Ltd. 2001 CLC 1551 and Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94 ref.

Raja Qasit Nawaz Khan for Appellants.

Khawaja Naveed Ahmed for Respondent.

P L D 2008 Karachi 38

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

MAHESH KUMAR and another---Petitioners

Versus

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

Constitutional Petitions Nos.D-1580 and D-1661 of 2007, decided on 22nd October, 2007.

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

----Preamble---National Accountability Ordinance, 1999, was promulgated to eradicate corruption and corrupt practices and hold accountable all those persons accused of such practices---One of the main considerations for promulgation of National Accountability Ordinance, 1999, was to recover the amount which accused person did not pay and misappropriated the amount and assets.

(b) Interpretation of statutes---

---Different words carrying same meaning---Effect---If different words are being used in a provision carrying somewhat similar meaning then it cannot be the intention of legislature that similar words should be given different meaning---Otherwise one of them which covers special meaning different from other word would become redundant, which cannot be attributed to legislature.

Momdar v. State PLD 1990 SC 934 rel.

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

---Ss. 5(m), 5(o) & 5(r)---Wilful default---Words "person" and "holders of public office"---Scope---Apart from definition of "person" as given in S.5(o) and (m) of National Accountability Ordinance, 1999, it should also be applied to the person committing offence of wilful default---Specified persons, who are defined in National Accountability Ordinance, 1999, are included in provision of S.5(r) of the Ordinance.

(d) Interpretation of statutes---

--Penal provision is to be interpreted very strictly.

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

--S. 5(r) Wilful default---Scope---Provisions of S.5(r.) of National Accountability Ordinance, 1999, are penal in nature, as those involve punishment on omission to fulfil requirement of provisions.

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

----Ss. 5(a) & 5(r)---Wilful default---Omission of word "accused"---- Object and scope---Legislature knew that if an accused during investigation or trial enters into plea bargain then he would be entering into plea bargain in the capacity of accused for whom specific definition had been given in National Accountability Ordinance, 1999---If the intention of legislature been to include "accused" in the provisions of S.5(r) of National Accountability Ordinance, 1999, then legislature could have added the word "accused" in such provision as done in the case of "holder of public office"---Omission of such word clearly indicates that legislature did not intend to specifically include "accused" in the definition of wilful default under S.5(r) of National Accountability Ordinance, 1999.

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

----Ss. 5(r), 25(b) & 33E---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of proceedings---Wilful default---Plea bargaining amount---Default---Recovery procedure---During earlier investigation, accused entered into plea bargain and after making down payment, they were released---After their release, accused dad not pay remaining instalments of their plea bargain amount---Authorities issued notices under S.5(r) of National Accountability Ordinance, 1999, to the accused for recovery of defaulted instalments---Plea raised by accused was that mode for recovery of such amount was under S.33-E of National Accountability Ordinance, 1999, and not under S.5(r) of the Ordinance---Validity---Under plea bargain, accused had offered sums which were accepted by Chairman, NAB---Matter was referred to court and the court approved the amount of plea bargain, therefore, such amounts were determined by the court under the provisions of National Accountability Ordinance, 1999---Amounts of plea bargain would come within the definition of "other sum due under the Ordinance or as determined to be due by the Court", therefore, provisions of S.33-E of National Accountability Ordinance, 1999, would be attracted---Provisions of S.5(r) of National Accountability Ordinance, 1999, were general in nature which dealt with all sums due but provisions of S.33-E of the Ordinance dealt with specified sum---Special provision would prevail over general provision---Amount which had come within the scope of S.33-E of National Accountability Ordinance, 1999, was required to be recovered as provided under the provision---Proceedings of wilful default pending against the accused were abuse of process of law---Proceedings were quashed in circumstances.

(h) Practice and procedure---

----If a particular act is required to be done in a particular manner then it should be done in that manner alone.

Muhammad Anwar Tariq for Petitioner' (in Constitutional Petition No.1580 of 2007).

Ghulam Sarwar Chandio for Petitioner (in Constitutional Petition No.1661 of 2007).

Shafaat Nabi Khan Sherwani, Deputy Prosecutor General Accountability for Respondent (in both Constitutional Petitions).

Date of hearing: 3rd October, 2007.

P L D 2008 Karachi 49

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

MEHMOOD UL HASSAN KHAN---Petitioner

Versus

DOW UNIVERSITY OF HEALTH SCIENCES through Vice-Chancellor---Respondent

Constitutional Petition No.D-1758 of 2007, heard on 4th September, 2007.

(a) Sindh Permanent Residence Certificate Rules, 1971---

----R. 6---Pakistan Citizenship Act (II of 1951), S.17---Constitution of Pakistan (1973), Arts. 15, 22(3)(b) & 37(3)---Educational institution--- Admission, right of--Scope---public Authority might confine such right to an educational institution located in a particular area to its residents, but ancestry of candidate ex facie would be an irrelevant consideration.

(b) Sindh Permanent Residence Certificate Rules, 1971---

----R. 6---Permanent residence certificate---Admission in educational institutions on basis of such certificate---Scope---Basic objective of R.6 of Sindh Permanent Residence Certificate Rules, 1971 would be to determine permanent residence of a candidate in an area on basis of factual inquiry---Rule that domicile of child must follow that of his father would have no application for purpose of R.6 of Sindh Permanent Residence Certificate Rules, 1971, which envisaged-separate domicile for parents and children applying for admissions in educational institutions---Certificate of domicile issued under Citizenship Act, 1951 either to a candidate or his parents would altogether be irrelevant for such purpose---Principles.

(c) Pakistan Citizenship Act (II of 1951)---

----S. 17---Pakistan Citizenship Rules, 1952, R.23---Sindh Permanent Residence Certificate Rules, 1971, R.6---Citizenship or domicile certificate, , grant and cancellation of---Expressions "domicile" and "permanent residence"---Distinction---Expression "domicile" would reflect a person's status as a citizen of a particular State or country, whereas expression "permanent residence" might be a pure question of fact as to his residence in a particular area.

Joan Marg Carter v. Albert William Carter PLD 1961 SC 616; Mehr-un-Nisa Baloch v. Appellate Committee PLD 1978 Kar. 214; Muhammad Yar Khan v. Deputy Commissioner-cum-Political Agent Loralai 1980 SCMR 456 and Ziaullah v. District Magistrate Nawabshah 2000 CLC 406 rel.

(d) Sindh Permanent Residence Certificate Rules, 1971---

----R. 6---Constitution of Pakistan (1973), Arts.15, 22(3)(b) & 37(3)---Permanent residence certificate of Karachi District---Admission in State owned Medical College in Karachi---Prospectus of College reserving seats on open merits for candidates, who and their parents both possessed such certificates from Karachi District---Validity---Provincial Government might have right to reserve seats in educational institutions for bona fide residents of such Province---Denial of such right to a resident on mere ground of his failure to get original domicile certificate cancelled would be violative of fundamental rights guaranteed under Art.15 of the Constitution---Candidate for such purpose must possess his own independent domicile certificate of Karachi separate from that of his parents having certificate from another place---Principles.

Syed Muhammad Afaque v. Federal Public Service Commission 2001 CLC 2001 ref.

Muhammad Yar Khan v. Deputy Commissioner-cum-Political Agent Loralai 1980 SCMR 456; Atiya Bibi Khan v. Federation of Pakistan 2001 SCMR 1161 and Gul Rukh Sarfaraz v. Government of N.-W.F.P. 2001 SCMR 1729 rel.

(e) Pakistan Citizenship Rules, 1952---

----R. 23---Sindh Permanent Residence Certificate Rules, 1971, R.6---Domicile certificate,' cancellation or change of---Scope---Such certificate, if obtained through misrepresentation could be cancelled---Holder of such certificate issued in his favour by one District, if chose to settle down permanently in another District, would be entitled to retain such certificate.

Khalid Javed Khan for Petitioner.

Afaq A. Saeed for Respondent No. 1.

Abdul Jabbar Lakho, A.A.-G.

Date of hearing: 4th September, 2007.

P L D 2008 Karachi 57

Before Muhammad Afzal Soomro, C J

ABDALI SHAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.902 of 2007 and Miscellaneous Application No.5262 of 2007, decided on 20th November, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.619, 21 & 22---Police Order (22 of 2002), Arts.18, Proviso 4 & 155(c)(d)---Bail, grant of---No officer below the rank of Sub-Inspector, according to Ss. 21 & 22 of the Control of Narcotic Substances Act, 1997, could raid, search and arrest any person involved under the said Act and any action taken by such officer would make the proceedings null and void, as in the present case---Investigation of the case had been conducted, in violation of Arts. 18, Proviso 4 & 155 (c) & (d) of the Police Order, 2002---Mashirnama of arrest had been prepared at the place of incident which had been made doubtful by the memo. of recovery---No recovery had been effected from the person of accused, which had allegedly been effected from a Taxi and the same did not belong to accused---Accused was admitted to bail in circumstances.

Nasrullah v. The State PLD 2001 Pesh. 152; Gharibullah v. The State 2002 PCr.LJ 677; Muhammad Yaseen's case 2004 YLR 1303 and Muhammad Farooq and others v. The State 2007 PCr. LJ 1103 ref.

Raza Hashmi and Hassan Sabir for Applicant.

Zubair Qureshi A.A.-G. for the State.

P L D 2008 Karachi 60

Before Nadeem Azhar Siddiqi and Dr. Rana Muhammad Shamim, JJ

GHULAM MUSTAFA WASSAN---Appellant

Versus

ABDUL SALAM TAHEEM and 13 others---Respondents

Election Appeal No.23 of 2007, decided on 12th December, 2007.

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

----S. 14(5)---Acceptance or rejection of nomination papers---Appeal---Scope---Right of appeal was given to a candidate only against the acceptance or rejection of nomination papers, but if the Election Tribunal, on the basis of information or material brought to its knowledge, was of the opinion that candidate was a defaulter or had got any loan written off or suffered from any disqualification, it could reject the nomination papers---Election Tribunal had the power to treat' the appeal as information or material brought to its knowledge for rejecting the nomination papers.

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

----Ss. 14(5) & 99---Acceptance of nomination papers---Appeal against---Nomination papers submitted by respondent having been accepted, appellant had filed appeal against acceptance order---Appellant had alleged that respondent was defaulter of government dues and was involved in criminal activities; that he had been declared absconder and he was not a man of good character; and that he made false declaration while submitting the nomination papers---Validity---Respondent was not proved to be a defaulter as he had produced the documents which had shown that he was not exclusive owner of the property, but was only a co-sharer and if -the amount due was divided between the co-owners share of respondent was less than the amount prescribed by clause (t) to subsection (1A) of S.99 of the Representation of the Peoples Act, 1976---Mere involvement of respondent in a criminal case was not sufficient to disqualify him to contest election, unless he was convicted and sentenced by a court of competent jurisdiction---Fact that respondent had remained absconder and fugitive from law and his properties were attached, it could not be said that he was a man of good character---Respondent had secretly appeared before the court and obtained bail after filing of his nomination papers---Respondent, in circumstances, was not qualified to be elected or chosen as a member of the Assembly---Allowing appeal, nomination papers of respondent were rejected, in circumstances.

Hussain Bux v. District and Sessions Judge/District Returning Officer and Appellate Authority, Sanghar 2002 CLC 281; Shabbir Ahmad v. Syed Akhtar Hussain Rizvi 1994 MLD 447 and Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423 rel.

S. Shahenshah Hussain for Appellant.

S. Ahsan Ali for Respondent No.1 .

Agha Zafir Ali, Asstt. A.-G. Sindh for Respondent No.14.

Atta-ur-Rehman, Asstt. Election Commissioner, Sindh.

Date of hearing: 11th December, 2007.

P L D 2008 Karachi 64

Before Nadeem Azhar Siddiqi and Dr. Rana Muhammad Shamim, JJ

Syed SARFRAZ HUSSAIN SHAH---Appellant

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE/RETURNING OFFICER and 16 others---Respondents

Election Appeals Nos.11 to 13 of 2007, decided on 10th December, 2007.

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

----Ss. 14 & 99---Sindh Local Government Ordinance (XXVII of 2001), S.158---Constitution of Pakistan (1973), Art.63---Rejection of nomination papers on ground of disqualification---Appeal---Appellant, who was holding office of Taluka Nazim at the time of filing of nomination papers, filed three nomination papers to contest election of National and Provincial Assemblies, but all nomination papers were rejected on the ground that Art. 63(c) of the Constitution disqualified the candidate/appellant and S.158 of Sindh Local Government Ordinance 2001 also barred his nomination papers---Section 158 of Sindh Local Government Ordinance, 2001 had provided that a Taluka Nazim could contest election for any other political post after resigning from existing post of Nazim---Section 158 of the Ordinance had imposed a bar upon the sitting Nazim to contest election without first resigning from the post of Nazim---Election was a very wide term and was a continuous process consisting of series of steps starting from filing of nomination papers to the announcement of result---Appellant, who was sitting Taluka Nazim, did not tender his resignation before submitting his nomination papers---Section 158 of Sindh Local Government Ordinance, 2001, which had imposed a bar upon sitting Nazim to contest election without first resigning from the post of Nazim, was saved under Art.63(1)(s) of Constitution---Returning Officer, in circumstances had rightly rejected the nomination papers of appellant---In absence of any illegality and infirmity in impugned orders, appeal against said orders was dismissed.

Election Commission of Pakistan v. Javaid Hashmi and others PLD 1989 SC 396; N.P. Ponnuswami v. Returning Officer, Namakkal AIR 1952 SC 64; Muhammad Nazir Hakim v. Said Muhammad PLD 1962 Lah. 421 and Muhammad Afzal v. Miraj Din PLD 1967 Lah. 689 ref.

Fareed Ahmed A. Dayo for Appellant.

Agha Zafir, Asstt. A.-G., Sindh for Respondent.

Raja Kumar, Representative of Returning Officer.

Date of hearing: 8th December, 2007.

P L D 2008 Karachi 68

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

INDUS BATTERY INDUSTRIES (PVT.) LTD.---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petition No.D-2326 of 2006, heard on 11th October, 2007.

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

----Ss. 25-C & 155-H---Freedom of Information Ordinance (XCVI of 2002), Ss.3, 8 & 15---Under-invoicing of imported goods, detection of---Information regarding description quantity, quality, port of export, country of origin and value of imported goods declared- by importer---Right to such information of a person interested in making an offer under S.25-C of Customs Act, 1969---Non-disclosure of such information to such interested person by Customs Authorities claiming immunity under S.155-H of the Customs Act, 1969---Validity---Object of S.25-C of Customs Act, 1969 was to facilitate detection of under-invoicing in order to prevent evasion of customs duties and charges---Immunity from making such disclosure claimed by Customs Authorities, if permitted, would defeat such object of S.25-C of the Act---Such information to be gathered by such interested person would not fall within any of immunities provided under Ss.8 & 15 of Freedom of Information Ordinance, 2002---Duty of Customs Authorities to disclose such information to such interested person as same would help in preventing under-invoicing---Principles.

Section 155-H of the Customs Act, 1969 bars the Customs Authorities from divulging information about the imported goods to a third person. The object of section 25-C of the Customs Act, 1969 is to facilitate detection of under-invoicing so as to prevent evasion of customs duties and charges. This object cannot be achieved if the Customs Authorities claim immunity under section 155-H of the Customs Act, 1969, which if permitted would defeat the very purpose of section 25-C of the Customs Act, 1969. The information as to description of the imported consignment, the quantity, the quality, the country of origin, the port of export and the value declared for such goods is necessary to make offer under section 25-C. If these material particulars are not disclosed to a local buyer, he would not be able to make his offer under section 25-C which would have facilitated detection of under-invoicing, if any committed. Divulging requisite information to a person interested in making an offer under section 25-C is therefore necessary to achieve the objects of section 25-C of the Customs Act, 1969. On the contrary withholding such information by claiming immunity from disclosure under section 155-H of the Customs Act, 1969 would thwart the detection of under-invoicing thereby causing loss to the exchequer.

Access to information is sine qua non of constitutional democracy. The public has a right to know everything that is done by the public functionaries. The responsibility of public functionaries to disclose their acts works both against corruption and oppression. Though this right has its limitations but every routine business of the public functionary cannot be covered with the veil of secrecy or privilege. Only where disclosures would cause greater harm than good that the disclosures are to be disallowed. Therefore, as a rule, information should be disclosed and only as an exception privilege should be claimed on justifiable grounds permissible under the law. Freedom of Information Ordinance, 2002, regulates this right to information, which emanates from the freedom of expression. The object of this Ordinance as evinced from its preamble, is to provide for transparency and freedom of information in order to ensure that citizens have access to public records and the Government is more accountable to its citizens. Under section 3 of the Freedom of Information Ordinance, 2002, the provisions of the said Ordinance are to be so interpreted as to facilitate prompt disclosure of information at minimal cost. Furthermore section 3 also contains a non obstante clause which provides that notwithstanding anything contained in any other law, no person is to be denied information from any official record. The only limitations to this right are the immunities described in sections 8 and 15 of the said Ordinance.

When an immunity is claimed from making disclosures, the courts have to tilt towards permitting disclosures in order to balance the public right to know against the interest of an individual, unless of course the disclosures are likely to expose personal privacy of an individual. No doubt, where there are two competing interests involved, the court would perform balancing act by weighing both the interests and decide where the balance tilts. In a democratic and free societies even the consumers of a product are given the right to be informed about its quality, quantity, purity, potency, standards and constituents, so that consumers could make informed choices.

The documents from which necessary details of imported consignment are to be gathered by a person interested in making an offer under section 25-C of the Customs Act, 1969 do not fall within any of the immunities provided under sections 8 and 15 of the Freedom of Information Ordinance, 2002. Furthermore, as section 3 of the Freedom of Information Ordinance, 2002 contains non obstante clause "notwithstanding anything contained in any other law", no immunity can be claimed on the basis of section 155-H of the Customs Act, 1969 as the provisions of the Freedom of Information Ordinance, 2002 have overriding effect over the provisions of section 155-H of the Customs Act, 1969.

The Customs Authorities are bound to disclose information regarding description, quantity, quality, the port of export, the country of origin and the value of the imported consignment declared by the importer to any person, who is interested in making an offer under section 25-C of the Customs Act, 1969. The disclosure of such information would certainly help in preventing under-invoicing, which is the very object of section 25-C of the Customs Act, 1969. In fact, all such information should be made available on the web site of the Customs Authorities.

Kashif Naseem v. Federation of Pakistan and others 2007 PTD 2250 ref.

(b) Freedom of Information Ordinance (XCVI of 2002)---

----Ss. 3, 8, 14, 15, 16 & 17---Application for obtaining information regarding public record---Immunity from making such disclosure claimed by authority---Duty of court---Right of citizen to have access to such information had its limitations, but every routine business of public functionary could not be covered with veil of secrecy of privilege---Where disclosure would cause greater harm than good, then disclosure could be disallowed---Where two competing interests were involved, then court would perform balancing act by weighing both interests and decide where balance tilted---Principles.

Access to information is sine qua non of constitutional democracy. The public has a right to know everything that is done by the pubic functionaries. The responsibility of public functionaries to disclose their acts works both against corruption and oppression. Though this right has its limitations but every routine business of the public functionary cannot be covered with the veil of secrecy or privilege. Only where disclosures would cause greater harm than good that the disclosures are to be disallowed. Therefore, as a rule, information should be disclosed and only as an exception privilege should be claimed on justifiable grounds permissible under the law. Freedom of Information Ordinance, 2002, regulates this right to information, which emanates from the freedom of expression. The object of this Ordinance as evinced from its preamble, is to provide for transparency and freedom of information in order to ensure that citizens have access to public records and the Government is more accountable to its citizens. Under section 3 of the Freedom of Information Ordinance, 2002, the provisions of the said Ordinance are to be so interpreted as to facilitate prompt disclosure of information at minimal cost. Furthermore section 3 also contains a non obstante clause which provides that notwithstanding anything contained in any other law, no person is to be denied information from any official record. The only limitations to this right are the immunities described in sections 8 and 15 of the said Ordinance.

When an immunity is claimed from making disclosures, the courts have to tilt towards permitting disclosures in order to balance the public right to know against the interest of an individual unless of course the disclosures are likely to expose personal privacy of an individual. No doubt where there are two competing interests involved, the court would perform balancing act by weighing both the interests and decide where the balance tilts. In a democratic and free societies even the consumers of a product are given the right to be informed about its quality, quantity, purity, potency, standards and constituents, so that consumers could make informed choices.

Haseeb Jamali for Petitioner.

Rizwan Ahmed Siddiqi, D.A.-G., Aqeel Ahmad Abbasi and Ghulam Ahmed Khan for Respondents.

Date of hearing: 11th October, 2007.

P L D 2008 Karachi 76

Before Faisal Arab, J

TRADING CORPORATION OF PAKISTAN ---Plaintiff

Versus

NAVEED HUSSAIN SHAH---Defendant

Suit No.459 of 1997, heard on 24th October, 2007.

Public functionaries---

----Loss to public assets by public functionaries---Accountability---Public functionaries, who manage and control public assets, are trustees of people and should be made accountable for their negligence and indolence, which resulted in loss to public exchequer---Principles.

Ashfaq Hussain for Plaintiff.

Nemo for Defendant.

Date of hearing: 24th October, 2007.

P L D 2008 Karachi 80

Before Khilji Arif Hussain, J

SAJID AHMED ANSARI---Plaintiff

Versus

AGA KHAN UNIVERSITY HOSPITAL through Chairman, Karachi and 8 others--Defendants

Suit No.258 of 1995 in Judicial Miscellaneous No.55 of 1992, decided on 27th April, 2007.

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

----S. 23, Arts. 22, 36 & 115---Contract Act (IX of 1872), S.2---Suit for damages for personal injury---Plaintiff met with an accident of electric shock on 24-9-1990 and his fore-arm and leg were amputated in hospital on same day---Final operation was performed on 4-10-1990---Plaintiff was discharged from hospital on 27-10-1990---Plaintiff filed suit on 19-4-1992 alleging that defendant had amputated his leg and fore-arm in a negligent manner; which being a continuing cause of action, his suit was covered by S.23 of Limitation Act, 1908---Validity---Such act of amputation was completed on 4-10-1990, which was the date when cause of action accrued to plaintiff or at best on 27-10-1990, when he was discharged from hospital---Such act of amputation could not be termed as continuing cause of action within term of S.23 of Limitation Act, 1908---Article 22 of Limitation Act, 1908 would not attract to facts of the present case as word "committed" used therein denoted that injury should be commission of an overt act and would not cover case of injury that resulted on account of misfeasance---Plaintiff had undergone an operation by signing memo of consent, which could be termed as a contract between parties---Discharging of duty by defendant-doctor in an improper manner would constitute an act of misfeasance---If there was no contract between parties, then Art.36 of Limitation Act, 1908, would apply providing two years of limitation from date of act of misfeasance---If there was a contract between parties, then Art.115 of Limitation Act, 1908 would attract providing three years of limitation---Plaintiff had filed suit before expiry of three years, thus, was in time.

Sajid Wali v. Ahmed Saeed and 5 others 1970 SCMR 623; Syed Niamat Ali and 4 others v. Dewan Jairam Dass and another, PLD 1983 SC 5; R.B. Industries Ltd. v. Employees' Welfare Union and another, PLD 1983 SC 15; Farrukh Saeed Khan v. Ianir-ur-Bhatti, SBLR 2006 Sindh 231 and Abdulla Muhammad Jabli v. Abdullah Muhammad Zulaikhi AIR 1924 Bom. 290 ref.

Abdul Majid Butt v. United Chemicals Ltd. PLD 1970 Lah. 298 rel.

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

----Art. 22---Word "committed" as used in Art.22 of Limitation Act, 1908---Connotation---Such word denoted that injury should be due to commission of an overt act, but same would not cover case of injury resulted on account of misfeasance.

Abdul Majid Butt v. United Chemicals Ltd. PLD 1970 Lah. 298 rel.

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

----S. 2---Oral or written contract between patient and doctor/hospital---Implied legal implication stated.

A patient is admitted in a hospital on the basis of a contract between the patient and the hospital/doctor. Such contract can be written or oral. Apart from various rules of the hospital the implied agreement between the patient is that a doctor in discharging of his duties will take all possible reasonable care and caution, which a prudent man/professional man is supposed to do not only to save life of the patient but also to rehabilitate him in the society.

(d) Damages---

----Claim for---Charge of commission of professional negligence .by doctor while treating his patient---Burden of proof---Principles stated.

Normally the burden is upon the party, who alleges negligence, to prove same by producing evidence in support of the allegations, but the said burden can be shifted on the other side if a statement is made by the aggrieved party that required care has not been taken, while discharging the duty as a doctor/hospital which they were required to undertake.

In the professional negligence cases it is difficult for an aggrieved party suffering due to the acts and deeds of the professionals to prove positively that due to professional negligence in discharging duties doctor/hospital has acted in a negligent manner. In such case it is for the party who is custodian of all the records and professional qualifications to prove that while discharging their duties under which they ought to have taken care and precautions not only to save the life of the patient in the hospital, but also to rehabilitate him in the society, to the required standard of the care and precaution had been taken by them and there was no negligence on their part.

(e) Administration of justice---

----Judge would be supposed to decide case not on basis of his personal feelings, likeness or dislikeness, but on basis of evidence available on record and in accordance with principle of law applicable to the facts of case.

Rizwan Ahmed Siddiqui for Plaintiff.

Liaquat Merchant and Khalid Mahmood Shah for Defendants.

Date of hearing: 5th April, 2007.

P L D 2008 Karachi 94

Before Arshad Noor Khan, J

NAZIR AHMED---Petitioner

Versus

ASIF and 4 others---Respondents

Criminal Revision No.59 of 2006, decided on 15th January, 2008.

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

----Preamble---Right to approach court---Scope---Land grabbers have no right to approach court to protect their rights---Illegal Dispossession Act, 2005, has been promulgated by the Government to protect lawful possession of lawful owners and lawful occupiers of property against illegal dispossession at` the hands of land grabbers and land mafia.

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

----S. 2(c) ---"Occupier"---Scope---Occupation of person who claims possession must be in lawful possession over property in question---For the purpose of proving such fact, it is incumbent upon person claiming lawful ' possession of property, to produce certain documents or evidence to prove his possession as lawful possession over the property.

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

----S. 2(d)---"Owner"---Scope---Owner, who' is claiming the property in dispute must prove his status as lawful, in case he has been dispossessed from the property.

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

----Ss. 2(c) (d) & 3---Restoration of possession---Principles---Occupant of Kachi Abadi---Proof of entitlement---Petitioner claimed to have been dispossessed from property in question by respondents but Trial Court dismissed his petition---Validity---No evidence or documents were shown or produced by petitioner to show that he was owner or occupier of the property in question within the meaning of S.2(c) and (d) of Illegal Dispossession Act, 2005---In absence of any document showing title of petitioner or his occupation as lawful owner or occupier of property in question, his claim of its being lawful occupier could not be acceded to---High Court in exercise of revisional jurisdiction, did not find any illegality in the order passed by Trial Court---Revision was dismissed in circumstances.

Mehboob Elahi for Petitioner.

Muhammad Arif Latif for Respondents.

Shaikh Haider for the State.

Date of hearing: 15th January, 2008.

P L D 2008 Karachi 97

Before Muhammad Afzal Soomro, C J

ABDUL KHALIQ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.987 of 2007, decided on 24th January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)---Bail, grant of---Recovery of Charas in shape of rods from vehicle---Submission of challan in court after 20 days of registration of F.I.R. without explaining such delay---Prosecution alleged accused to be driver of vehicle, while he did not know driving---Mushirnama did not show that samples of Charas were sealed and signed at the spot---From whole Charas recovered in shape of rods, only 9 samples had been taken and not from each rod---Total weight of samples taken became 90 grams, which fell within definition of Ss.6 & 9(a) of Control of Substances Act, 1997 carrying punishment for two years---Accused was granted bail in circumstances.

2001 SCMR 14; 2003 PCr. LJ 540 and 2007 PCr. LJ 139 ref.

2005 PCr.LJ 1080 and 1995 SCMR 1345 rel.

Illam Din Khattak for Applicant.

Mrs. Sofia Saeed Shah, Standing Counsel.

P L D 2008 Karachi 100

Before Arshad Noor Khan, J

MUHAMMAD AFAQ---Petitioner

Versus

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

Constitutional Petition No.S-539 and C.M.A.No.3593 of 2005, decided on 15th January, 2008.

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

----S. 8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Fixation of fair rent---Principles---Concurrent finding of facts by the court below---Landlord sought fixation of fair rent on the ground that tenant was paying him Rs.300 per month as rent of the premises whereas adjoining properties were fetching monthly rent at the rate of Rs.50 per square foot---Rent Controller allowed the application and increased the rent at the rate of 10%, whereas lower Appellate Court allowed the appeal of landlord and fixed the rent at the rate of Rs.40 per square foot---Validity---Four conditions were provided in S.8 of Sindh Rented Premises Ordinance, 1979; and it was not necessary that all such four conditions must be satisfied or fulfilled by landlord while praying for fixation of rent of demised premises---Any one condition specified in S.8 of Sindh Rented Premises Ordinance, 1979, was sufficient to fix fair rent of demised premises---Lower Appellate Court had taken into consideration the evidence that property similar to property in dispute could fetch Rs.40 per square foot, as such all relevant aspects were considered before fixation of fair rent---No illegality or misreading of evidence was pointed out by tenant in the order passed by lower Appellate Court---Finding of both the Courts below regarding fixation of rent was a finding which was arrived at after considering the whole evidence available on record---Finding of fact concurrently arrived at by the courts below could not be disturbed in Constitutional jurisdiction of High Court---Petition was dismissed in circumstances.

Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 and Mian Fazal Elahi v. Additional District Judge and another PLD 12988 Lah. 239 distinguished.

Muhammad Ashraf Khan Mughal for Petitioner.

Zahid Hussain for Respondent No.1.

Nemo for Respondents Nos. 2 and 3.

P L D 2008 Karachi 103

Before Nadeem Azhar Siddiqi, J

Messrs FATEH TEXTILE MILLS LTD.---Plaintiff

Versus

WEST PAKISTAN INDUSTRIAL DEVELOPMENT CORPORATION---Defendants

Suit No.6 of 1976, decided on 7th January, 2008.

Civil Procedure Code (V of 1908)---

----S. 151, O.IX, R.8 & O.XVII, R.3---Restoration of suit dismissed for non-prosecution---Scope---When suit was dismissed both the parties were absent and it was a date fixed for arguments---Plaintiffs sought restoration of suit---Validity---Order for dismissing the suit for non-prosecution was not a proper order and no limitation was prescribed for recalling an order which was not warranted under law---Act of court should not prejudice anyone---Court was empowered under S.151, C.P.C. to make such orders which were necessary to meet the ends of justice or to prevent abuse of process of court---High Court restored the suit to its original number---Application was allowed accordingly.

Hashwani Hotels Limited v. Afghan Carpet and another Suit No.1123 of 1996 and Muhammad Haleem and others v. H.H. Muhammad Naim and others PLD 1969 SC 270 rel.

Nasir Hussain Jafri for Plaintiff.

Bashir Ahmed Khan for Defendant.

P L D 2008 Karachi 105

Before Arshad Noor Khan, J

Mst. YAQOOBI BEGUM and another---Appellants

Versus

Syed AFSHEEN FATIMA and another---Respondents

M.A. No.50, Misc. No.2910 of 2005 and Misc. No.866 of 2006, decided on 16th January, 2008.

Islamic Law--

----Inheritance---Shia law---Shares of widow, children and parents---Entitlement---Widow and children of deceased as per Shia law were not excluded from the estate left by deceased---Mother and father of deceased were also entitled to their shares in the property left by deceased---Appellant being mother of deceased was entitled to 1/6th share of the estate left by deceased and remaining share was inherited. by widow and children---Deceased was a police officer and was entitled to certain benefits including death compensation as well as monthly salary of deceased till the age of 60 years, if deceased would have been alive, as according to the scheme of police department, widow and children deceased must be benefited with recurring income of deceased in the shape of monthly salary---High Court declined to interfere with the order passed by Trial Court as there was no illegality apparent on the face of it---Appeal was dismissed in circumstances.

Feroze Hussain Sheikh for Appellant.

Muhammad Shoaib Abidi for Respondent.

P L D 2008 Karachi 109

Before Nadeem Azhar Siddiqi, J

MUHAMMAD YAQOOB and 2 others---Plaintiffs

Versus

MUHAMMAD AHMED and another---Defendants

Suit No.999 of 2005 and C.M.As. Nos.9881 and 9993 of 2007, decided on 7th January, 2008.

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

----S. 151---Inherent power of court---Scope---Invoking of such power--Limitation-No specific period of limitation is provided for filing application under S.151, C.P.C.---Court is empowered to make such orders as may be necessary to meet the ends of justice or to prevent abuse of process of court.

(b) Administration of justice---

----Act of court---Act of court should not prejudice anyone.

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

----S. 151---Administration of justice---Opportunity of hearing---Court before passing order did not afford any opportunity to defendant to submit his case before it---Effect---Court possessed inherent power to rectify such mistake as act of Court should not prejudice anyone.

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

----O. XIV, R. 5---Additional issues, framing of---Principles---Application was filed by defendant for framing of additional issue as no issue had been framed on main controversy---Validity---Issues could be amended at any stage of trial---No evidence having yet been recorded additional issues if framed, would cause no prejudice to anyone and both parties would get full opportunity to prove their respective cases---No issues with regard to main controversy in the suit having been framed, High Court framed additional issues---Application was allowed accordingly.

S. M. Gharib Nawaz Dakawala for Plaintiffs.

Yousuf Molvi for Defendant No.1.

P L D 2008 Karachi 112

Before Muhammad Afzal Soomro, C J

MUHAMMAD ESSA---Applicant

Versus

THE STATE---Respondent

Bail Application No.1080 of 2007, decided on 11th January, 2008.

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

----S. 497(2)-Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 14 & 15---Bail, grant of---Further inquiry---Before lodging F.I.R. in the case, prosecution had lodged earlier F.I.R. which was the main case---Nothing had been recovered from the possession of accused in the main case earlier filed against him through F.I.R., which case ended in his acquittal---Trial Court held prosecution of said case as false and directed Authorities to take action against the Department---Accused was already arrested by A.N.F. officials from International departure of the airport---Subsequent arrest of accused in later F.I.R., would create doubt and require further inquiry---Prosecution had shown five kilograms of charas in the present case which was alleged to have been recovered from the car not from the possession of accused who was in continuous custody and had been acquitted in the main case-Accused was granted bail, in circumstances.

2000 PCr.LJ 657; 2005 PCr.LJ 1080 and 1995 SCMR 1345 ref.

Ghulam Rasool Mangi for Applicant.

Ashfaq Hussain Rizvi, Special Prosecutor A.N.F.

P L D 2008 Karachi 117

Before Muhammad Afzal Soomro, C J

GHULAM MUHAMMAD GHOUSI through Legal Heirs---Petitioners

Versus

GHULAM GHOUS and 2 others---Respondents

Writ Petition No.S-941 of 2002, decided on 23rd January, 2008.

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

----S. 15---Ejectment petition---Relationship of landlord and tenant between parties, denial of---Sale-deed in favour of landlord was subject of a civil suit already pending between parties, wherein landlord was restrained to use sale-deed as title document till decision of suit---Effect---Sale-deed in favour of landlord was sub judice before court of competent jurisdiction and a stay order was operating against him---Tenant had shown a genuine and bona fide doubt over title of landlord---Rent Controller had no jurisdiction to go into disputed question of title---Landlord could not maintain ejectment proceedings, unless his title was established before civil court---Ejectment petition was dismissed for being premature.

Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064; Iqbal v. S. Rahim Shah 1990 SCMR 647; Province of Punjab through. Education Secretary v. Mufti Abdul Ghani PLD 1985 SC 1 and Muhammad Shabbir v. Mst. Hamida Begum 1992 MLD323 99 ref.

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

----O. XLI, R.33---Finding of Trial Court---Powers of Appellate Court to disturb such finding---Principles.

Appellate Court while disturbing the finding of trial Court is under legal duty to meet the reasoning of the trial Court in the judgment and to consider the controversy entirely afresh both as regards facts and law and to substitute its own judgment for that of subordinate Court.

Madan Gopal v. Maran Bepari PLD 1969 SC 617; Mst. Iqbal Begum and 2 others v. Muhammad Bashir and others 2003 MLD 1280 and Ali Raziq v. Sabar Khan 2003 CLC 1342 rel.

Ismail Kassim for Petitioner.

Ghulam Ghous for Respondents.

Date of hearing: 11th January, 2008.

P L D 2008 Karachi 126

Before Dr. Rana Muhammad Shamim, J

Messrs QURESHI GARMENTS---Petitioner

Versus

SHAISTA ZAFAR and others---Respondents

C.P. No.333 of 2007, decided on 14th January, 2008.

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

----Ss. 15(2)(ii)(iii)(c), 18 & 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant on ground of default in payment of rent and impairing value of premises---Statutory notice under S.18, Sindh Rented Premises Ordinance, 1979 to tenant---Object---Both the Rent Controller and Appellate Court decided issue as to impairing the value of the premises against the landlord, but decided issue of default in his favour and ordered ejectment of tenant---Tenant had asserted that landlord had not issued statutory notice of transfer of premises under S.18 of Sindh Rented Premises Ordinance, 1979 to him, whereas landlord had submitted that said notice was duly served upon the tenant---Provisions of S.18 of Sindh Rented Premises Ordinance, 1979 were not to be strictly construed, but same were relevant only for the purpose of filing ejectment application by the new landlord---Object of said notice was to intimate the tenant about the transfer of property in the name of new landlord, so that the rent was to be paid to him---Tenancy in no way was dependant on the service of notice under S.18 of Sindh Rented Premises Ordinance, 1979 and in case ejectment application was instituted by the landlord in default of rent and receipt of copy of the said application by which tenant would come to know about the transfer of property, would constitute due notice and could be treated as substantial compliance with the provisions of S.18 of the Ordinance---Impugned order did not suffer from any illegality or irregularity---No case of misreading or non-reading of evidence having been made out, petition was dismissed.

Gulzar Begum v. Mst. Sairah Bibi 1972 SCMR 251 and Pakistan National Shipping Corporation v. Messrs General Services Corporation 1992 SCMR 871 rel.

Nasrullah Awan for Petitioner.

S. Azizul Hassan for Respondent No.1.

P L D 2008 Karachi 130

Before Muhammad Afzal Soomro, C J

MUHAMMAD SALEEM---Applicant

Versus

MEHMOOD and 2 others---Respondents

Criminal Miscellaneous Application No.262 of 2006, decided on 23rd January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.324/34---Bail, cancellation of---Role assigned to accused was of causing danda blow to complaint's father---Record showed that co-accused bad caused injuries to complainant's father---Case against accused would not come within ambit of grounds set forth for cancellation of bail---Trial Court had rightly granted bail to accused---Application for cancellation of bail was dismissed in circumstances.

Mirza Sarfraz Ahmed for Applicant.

Ghulam Mustafa Memon for Respondents.

Fazlur Rehman Awan for the State.

P L D 2008 Karachi 132

Before Dr. Rana Muhammad Shamim, J

ASIF ALI---Petitioner

Versus

Mst. TEHMINA NASEEM SHAD and 2 others---Respondents

Constitutional Petition No. S-410 of 2004, decided on 15th January, 2008.

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

----S. 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minor---Welfare of minor---Courts below concurrently gave custody of minor to mother and the father who had divorced her had challenged said concurrent judgments of the courts below in constitutional petition---Validity---Minor was patient of imperforated disease and had been operated thrice, in such circumstances when minor had attachment with his mother, in case he was given in the custody of his father who was stranger for him, it would deteriorate his health---Father, who had contracted second marriage, when he would leave for his, job, child would be at the mercy of step mother---In presence of real mother, who was living in a combined family having sisters and mother, it would not be proper to deprive the child from the natural love and affection of the mother particularly when nothing substantial had come on record to prove that the mother had failed to properly look after her son---Scope of powers of High Court while dealing with the concurrent findings of the two courts below, in exercise of constitutional jurisdiction, was very limited---Burden of proving that findings recorded by courts below were vitiated by evidence on record or suffered from non-reading of material evidence or there was jurisdictional defect, lay on the petitioner, which the petitioner in the present case had failed to point out---Both courts below had very carefully examined all the aspects of the matter in regard to the welfare of the minor---Concurrent judgments of the courts below could not be interfered with by the High Court in exercise of its constitutional jurisdiction.

1993 CLC 2468; PLD 1978 SC 220; PLD 1962 Lah. 142; Mst. Firdous Iqbal v. Shifaat Ali 2000 SCMR 838; M. Farrukh Iqbal v. Additional District Judge, Islamabad 1999 MLD 1754 and Mst. Feroze Begum v. Lt.-Col. Muhammad Hussain 1978 SCMR 299 rel.

Kadir Bukhsh Bhutto for Petitioner.

Aman Khattak for Respondent No.1.

P L D 2008 Karachi 135

Before Muhammad Afzal Soomro, C J

AZIZUR REHMAN RAJPUT---Appellant

Versus

ASIF IQBAL SIDDIQUI and another---Respondents

First Rent Appeal No.15 and C.M.A. No.2134 of 2007, decided on 29th January, 2008.

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

----Ss. 17(4)(a)(i) & 24---Personal bona fide need of landlord and his family---Ejectment petition by landlords on ground of personal bona fide need had been allowed by the Rent Controller---Tenant failed to file written statement though several chances were given to him by the Rent Controller---Landlords by producing evidence on record had fully proved that demised premises was required by them for their personal bona fide use as well as for use of their families---Tenant had himself admitted that he had purchased a house---Landlords having fully proved that they needed premises in question for their personal bona fide use and use of their families, Rent Controller rightly ordered ejectment of tenant on ground of personal bona fide need.

Zarina Ayaz v. Khadim Ali Shah 2003 SCMR 1398; Messrs F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178; Asghar Hussain v. Mst. Tausheed Begum and 2 others 2005 CLC 633; Mrs. Yasmeen Malik, and others v. Mrs. Safia Begum and others PLD 2005 SC 27 and Fakhruddin Khan Syed and others v. Mst. Surryia Sultana and others 2005 YLR 349 rel.

Moin Azhar Siddiqui for Appellant.

Mehmoodul Hassan for Respondent.

P L D 2008 Karachi 139

Before Arshad Noor Khan, J

Mst. RABIA BEGUM and 2 others---Applicants

Versus

GOVERNMENT OF SINDH through Secretary Ministry of Education, Karachi and 3 others---Respondents

Civil Revision Application No.79 of 1998, decided on 17th January, 2008.

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

----Ss. 105, 106 & 117---Industrial Relations Ordinance (XXIII of 1969), S.2(xiv)---Ejectment of Educational institution, suit for---Filing of suit before expiry of six months after service of notice upon lessee under S.106 of Transfer of Property Act, 1882---Maintainability---Educational institution did not fall within definition of "industry." provided under S.2(xiv)of Industrial Relations Ordinance, 1969---Such suit was not covered by provisions of Ss.105 & 117 of Transfer of Property Act, 1882, thus, fulfilment of mandatory requirements of S.106 thereof prior to filing of suit was not obligatory on lesser---Such suit was, not defective for want of any notice.

Province of Sindh through Secretary Education, Sindh Secretariat Karachi and others v. Nisar Ahmed 1983 CLC 1905 ref.

Board of Governors, Aitchison College, Lahore v. Punjab Labour Appellate Tribunal 2001 SCMR 1928 and Zahid Mahmood v. Muhammad Sawar 2000 MLD 952 rel.

Abid Feroze for Applicants:

Nemo for Respondents.

Date of hearing: 17th January, 2008.

P L D 2008 Karachi 146

Before Muhammad Afzal Soomro and Mrs. Qaisar Iqbal, JJ

MUHAMMAD RASHEED HASSAN---Petitioner

Versus

THE STATE through Secretary Ministry of Interior and another---Respondents

Constitutional Petitions Nos.D-1231 and D-1730 of 2007, heard on 13th September, 2007.

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

----S. 498---National Accountability Ordinance (XVIII of 1999), Ss.18(a) & 24(b)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Pre-arrest bail, grant of---Officer of Pakistan Airlines Corporation and agent of lessee-company---Charge of receiving illegal gratification and commission---Contract by Pakistan Airlines Corporation for acquiring aircrafts from lessee-company on lease---Approval of such contract by Board of Directors of Pakistan Airlines Corporation and High Powered Committee---Participation of Pakistan Airlines Corporation in proceedings initiated in foreign court since 2005, wherein judgment had been announced in July, 2007---Filing of reference against petitioners in June 2007---Investigation report suggested about contractual obligation between petitioners; lessee and PIA, which could be determined in suit for recovery to be filed by PIA against petitioners---No direct evidence was available that petitioners were involved in commission except that matter came to light after four years of transaction, which would require adjudication at trial---Record of Bank had not been seized for alleged commission amount passed on from account of one petitioner to other---First petitioner aged 60 years was old chronic patient of heart ailment, diabetes and mellitus and was under treatment for last 3 years while the second petitioner had undergone electro physiology and was diabetic---Detention of petitioners in jail or stay in Government Hospital might result in their collapse at any time as they would require immediate treatment, close monitoring by a doctor in a well equipped Hospital---Pre-arrest bail granted to petitioners was confirmed in circumstances.

Haji Abdul Razzak and another v: The State and others (C.Ps. Nos.12 and 13 of 2003); Baig Muhammad v. Chairman NAB 2002 MLD 203 and Brig. (R) Aslam Hayat Qureshi v. The State 2002 MLD 695 ref.

(b) Administration of justice---

----Courts have inherent powers to provide remedy where there is a wrong.

Anwar Saifullah v. The State and others PLD 2000 Lah. 564 and Asif Ali Zardari v. The State 1993 PCr.LJ 781 rel.

Abdul Hafeez Pirzada and Abdul Sattar Pirzada for Petitioner (in Constitutional Petition No.D-1730 of 2007).

Shafat Nabi Khan Sherwani, D.P.G.; NAB for Respondent (in Constitutional Petition No.D-1730 of 2007).

Mehmood A. Qureshi for Petitioner (in Constitutional Petition No.D-1231 of 2007).

Shafat Nabi Khan Sherwani, D.P.G. NAB for Respondents (in Constitutional Petition No.D-1231 of 2007).

P L D 2008 Karachi 152

Before Khawaja Naveed Ahmed, J

GOHAR HABIB---Appellant

Versus

PUBLIC-AT-LARGE---Respondent

Miscellaneous Appeal No.41 of 2007, decided on 30th January, 2008.

Succession Act (XXXIX of 1925)---

----S. 373---Carriage by Air (International Convention) Act (IX of 1966), S.6---Application for issuance of succession certificate---Death in Aircraft accident---Compensation awarded by Airline company on account of death of deceased---Right of legal heirs of deceased to claim such compensation---Succession Certificate was issued to legal heirs of the deceased.

Mst. Ameeran Khatoon v. Mst. Shamim Akhtar and others 2005 SCMR 512; Muhammad Mumtaz v. Mst. Umra Bevi PLC 1999 (C.S.) 793 and Mst. Sabra Begum and another v. Mst. Iffat Shafique and 2 others 2006 YLR 2678 rel.

Muhammad Siddiq along with Attorney of the Legal Heirs Major (R) Rehmatullah.

P L D 2008 Karachi 154

Before Khawaja Naveed Ahmed, J

NAVEED---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1102 of 2007, decided on 7th February, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.397---Bail, refusal of---Accused had been caught red-handed on the spot along with pistol while committing robbery in the bus--Eye-witnesses cooperating with the police had got their statements recorded on the spot and incriminating recoveries had been effected in their presence from the accused---Dead body of one of the docoits killed by a passenger in the Bus had been removed by the police---Arrest of such offenders on the spot would give confidence to the people in the working of law-enforcing agencies--Court should also encourage witnesses, complainants, police and prosecution agency, who after putting their lives in danger, hold the culprits and bring them to justice---Bail was refused to accused in circumstances.

1997 PCr.LJ 761, 739, 704; 1999 PCr.LJ 308; 1999 PCr.LJ 506, 935; 2006 PCr.LJ 1033; 1999 PCr.LJ 283; 2001 PCr.LJ 1431; 1999 PCr.LJ 506 and 2002 PCr.LJ 147 ref.

Amjad Ali for Applicant:

Haji Abdul Majeed, State Counsel.

P L D 2008 Karachi 157

Before Agha Rafiq Ahmed Khan, J

MANZOOR HUSSAIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.S-531 and S-420 of 2006, decided on 30th January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.302/34---Pre-arrest bail, refusal of---Accused were-named in the F.I.R. who armed with pistols had accompanied the main accused, who had committed the murder of his wife---Statements of eye-witnesses had been recorded under S.164, Cr.P.C. in presence of the said main co-accused, who had given full account of the incident in their statements---Both the accused were armed with pistols and they had threatened the eye-witnesses and thereafter left the place of occurrence---Accused as per evidence had facilitated the co-accused in committing the murder---Section 34, P.P.C. was very much attracted in the facts of the case---Accused had failed to establish the requisite mala fide intention on the part of prosecution for their false involvement in the case---Pre-arrest bail was declined to accused in circumstances.

Abdul Haleem Lakho v. Abdul Karim alias Karim Bux and others 2005 SCMR 1539; Fakir Babar Khan v. The State 2007 PCr. LJ 352; Darya Khan and others v. The State 2006 MLD 1958; Attaullah and 3 others v. The State and another 1999 SCMR 1320 and Faraz Akram v. The State 1999 SCMR 1360 ref.

Syed Madad Ali Shah along with Applicant

Mehmood Alam Abbasi for the Complainant.

Anwar H. Ansari, State Counsel.

P L D 2008 Karachi 160

Before Arshad Noor Khan, J

MERAJUDDIN GHOURY---Petitioner

Versus

MUHAMMAD ASLAM and others---Respondents

Constitutional Petition No.S-443 and C.M.A. No.2940 of 2007, decided on 4th February, 2008.

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

----S. 16(1)(2)---Tentative rent order---Deposit of arrears of rent and future monthly rent in Miscellaneous Rent Application in Court by tenant even after passing of tentative rent order---Effect---Such deposit could not be treated a valid tender of rent---Non-deposit of rent in court by tenant as per terms of tentative rent order would result in striking off his defence---Principles.

Abdullah Ghanghrio v. Tahira Begum 1984 CLC 3102; Mst. Zulekha Bai v. Muhammad Yaqoob 1981 CLC 479 and Malik Aman v. Khawaja Abdul Aziz 1987 CLC 425 rel.

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

----S. 16(1)---Tentative rent order---Rate of monthly rent and relationship of landlord and tenant not disputed by either party---Effect---Rent Controller would not be bound in such case to frame issue and record evidence before passing such order.

Muhammad Yousuf v. Maqbool Ahmed 1985 CLC 2862; Ismail v. Mst. Sara Bai and another 1987 CLC 1393; Aurangzeb v. Syed Amjad Ali 1984 CLC 1765; Ali Muhammad v. Khalil Ahmed Allahwala 1985 CLC 1297; Syed Khadim Hussain Abedi v. Mst. Geti Ara Begum 1984 CLC 68; Mushtaq Hussain v. Muhammad Shafi 1979 SCMR 496; Mahmood Hassan v. Abdul Rauf NLR 1980 UC 33; Muhammad Ali v. Shafiq Ahmad 1992 MLD 801 and Hazur Bux v. Jethanand 1988 MLD 2018 distinguished.

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

----S. 16(1)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Scope---Tentative rent order, non-compliance of---Concurrent findings of courts below---Validity---Such findings on question of fact could not be disturbed by High Court in exercise of constitutional jurisdiction.

Muhammad Sharif v. Muhammad Afzal Sohail PLD 1981 SC 246 rel.

Syed Muhammad Akbar for Petitioner.

Mohsin Imam holding brief for Muhammad Ayoub Khan for Respondents Nos. 1 to 3.

P L D 2008 Karachi 166

Before Khawaja Naveed Ahmed, J

ISLAMUDDIN---Petitioner

Versus

IV-ADDITIONAL DISTRICT AND SESSIONS JUDGE, KARACHI EAST and others---Respondents

Constitutional Petition No.S-141 of 2007, heard on 8th February, 2008.

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

----S. 15(2)(vii)---Bona fide personal need of landlord---Evidence of landlord regarding number of shop not in conformity with that mentioned in the ejectment petition---Effect---Shop sought to be vacated was part of a small house constructed over 120 square yards land---Only one person in the name of as tenant was in possession of shop for last 26 years---Ejectment petition was accepted in circumstances.

Muhammad Afaq Khan Shahid for Petitioner.

Sami Ahsan for Respondent No.3.

P L D 2008 Karachi 170

Before Agha Rafiq Ahmed Khan, J

REHMATULLAH and another---Applicants

Versus

THE STATE---Opponent

Criminal Bail Applications Nos. S-418 and S-501 of 2007, decided on 18th January, 2008.

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

----S. 498---Pre-arrest bail, grant of---Scope---Bail before arrest can be granted in extraordinary circumstances where prima facie mala fides are apparent on the part of prosecution or accused appear to have been falsely involved in the case.

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

----S. 498---Penal Code (XLV of 1860), Ss.302/324/147/148/149/114/504/337-H(ii)/337-A(i)/337-F(i)---Pre-arrest bail, refusal of---Both the accused were nominated in the F.I.R. with clear roles attributed to them by the complainant-Accused had come armed with pistols along with other accused persons after the first incident in furtherance of their common object and S.149, P.P.C. was very much applicable in the case---Delay of few hours in lodging the F.I.R. had been clearly explained by the complainant---Accused did not join the investigation -after registration of the case and they had been shown as absconders in the challan---Interim pre-arrest bail already granted to accused was recalled in circumstances.

Khadim Hussain v. The State 1981 SCMR 1115; Attaullah v. The State 1999 SCMR 1320 and Rais Wazir Ahmad v. The State 2004 SCMR 1167 ref.

Qaseem Ahmed for the Applicant (in Criminal Bail Application No.418 of 2007).

Jawed Choudhry for Applicant (in Criminal Bail Application No.501 of 2007).

Anwar H. Ansari for the Stet.

P L D 2008 Karachi 173

Before Ali Sain Dino Metlo, J

MUSHTAQ ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.S-57 of 2004, decided on 21st January, 2008.

(a) Prevention of Corruption Act (II of 1947)---

----Ss. 5 & 4---Appreciation of evidence---Major part of the prosecution case about payment of bribe of Rs.3,000 to the accused was not only not supported by any evidence, but indeed stood falsified by prosecution's own witness---Magistrate, Circle Officer and the Constable who claimed to have recovered the tainted money from the accused, had not stated that the money was paid in their presence or that they had heard any conversation between complainant and the accused at the time of handing over the money---Presumption against the accused created by S. 4 of the Prevention of Corruption Act, 1947, had been made rebuttable by qualifying the same with the clause "unless the contrary is proved"---Accused and the complainant being co-villagers a suggestion put to the Circle Officer in his cross-examination that the complainant had paid the money to the accused for delivery to his brother at his village, was quite plausible---In view of the suggested plausible explanation regarding the money recovered from the accused, the presumption of receiving the money as bribe envisaged by S.4 of the Prevention of Corruption Act, 1947 stood displaced, particularly in the absence of any direct evidence to show that the money was paid as bribe---Accused was acquitted in circumstances.

(b) Prevention of Corruption Act (II of 1947)---

----S. 4---Presumption where public servant accept gratification---Presumption envisaged by S.4 of the Prevention of Corruption Act, 1947, is rebuttable in view of the qualifying clause "unless the contrary is proved"---Such burden of proving to the contrary upon the accused is lighter than the burden of proof upon the prosecution---Prosecution has to prove the charge beyond reasonable doubt, while the accused is require to show the possibility of his defence being true---Accused need not necessarily lead evidence in every case---The contrary can be proved by the examination of the accused on or without oath or by the circumstances of the case.

Appellant in person.

Mushtaq Ahmed Abbasi, Asstt. A.-G. for Respondent.

Date of hearing: 23rd November, 2007.

P L D 2008 Karachi 177

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

ATTO alias ATTA MUHAMMAD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.S-434 and S.435 of 2006, decided on 1st January, 2008.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/395/396/397/353/ 332/333/307/404/412/147/148/149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---West Pakistan Arms Ordinance (XX of 1965), S. 13(d)---Bail, grant of---Ground of delay---Keeping the accused in custody without trial for fourteen years, which was quite a long time, by the Court which by law was enjoined to conclude the trial within a few days, was nothing but abuse of the process of law as well as of Court---Delay in trial, particularly when it amounted to abuse of process of law or of Court, had always been recognized as a ground for grant of bail---Inordinate and scandalous delay of 14 years in trial of accused was also violative of fundamental right of access to justice as well, which must be remedied without any further loss of time by releasing him on bail---Said right could not be denied to accused on the ground that during his captivity he was convicted of an offence under S.13(d) of the West Pakistan Arms Ordinance, 1965, or that before his captivity of 14 years he had escaped from custody of police by deceiving them---Manner of arrest of accused, his escape and re-arrest did not depict him to be a dangerous and desperate criminal---Delay in the case was shocking and the exceptions to the grant of bail for the reasons of accused being a previous convict or a dangerous, desperate or hardened criminal, would not apply to the cases of such shocking delay---Accused was granted bail in circumstances.

Sharaf Faridi v. Federation of Pakistan PLD 1989 Kar. 404; Government of Balochistan v. Azizullah Memon and others PLD 1993 SC 341; Al-Jehad Trust v. Federation of Pakistan and others PLD 1996 SC 324; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Shaikh Liaqat Hussain v. Federation of Pakistan PLD 1999 SC 504; Sanam Shah and 10 others v. The State 1986 PCr.LJ 2947; Mumtaz and 13 others v. The State 1992 PCr.LJ 2325; Shammon Jatoi v. The State PLJ 1996 Cr.C. Karachi 53; Ghulam Hussain v. The State PLD 1981 Kar. 711 and The State v. Asif Adil and others 1997 SCMR 209 ref.

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

----S. 497---Bail, grant of---Delay in trial---Principles---Delay in trial particularly when amounting to abuse of process of law or of Court, has always been recognized as a ground for grant of bail, before its incorporation in statute in the shape of third and fourth provisos to subsection (1) of section 497, Cr.P.C. as well as after their repeal, which had the effect of simply regulating discretion of the Court---Even exceptions to the grant of bail for the reasons of accused being previous convict or dangerous, desperate or hardened criminal, would not apply to the cases of shocking delay---Inordinate and scandalous delay in trial is not only abuse of the process of law and of Court, but is also violation of the fundamental right of access to justice and must be remedied without any further loss of time.

Sharaf Faridi v. Federation of Pakistan PLD 1989 Kar. 404; Government of Balochistan v. Azizullah Memon and others PLD 1993 SC 341; Al-Jehad Trust v. Federation of Pakistan and others PLD 1996 SC 324; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Shaikh Liaqat Hussain v. Federation of Pakistan PLD 1999 SC 504; Sanam Shah and 10 others v. the State 1986 PCr.LJ 2947; Mumtaz and 13 others v.. The State 1992 PCr.LJ 2325 and Shammon Jatoi v. The State 1996 PCr.LJ 783 ref.

Manzoor Ahmed Junejo for Applicant.

Habibur Rahman Shaikh, Asstt. A.-G. for the State.

Date of hearing: 18th October, 2007.

P L D 2008 Karachi 182

Before Khawaja Naveed Ahmed, J

MUHAMMAD IRFAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.330 of 2006 and M.A. No.163 of 2008, decided on 1st February, 2008.

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

----S. 302(c)---Appreciation of evidence---Benefit of doubt---Medical evidence had contradicted the ocular testimony of all the witnesses in respect of the time, place and the manner of consuming the insecticide by the deceased---Narration given by the complainant that her deceased son had told her about having been forced to drink the insecticide mixed in liquor by the accused, was not supported by any witness---Said conversation between the mother and the son was not heard by any Doctor, police officer or any independent witness---Medical evidence furnished by Doctor and Chemical Examiner when in contradiction with oral testimony of related and interested witnesses, had to be believed---Alleged statement attributed to the deceased by his mother having not been proved, was discarded from evidence---Benefit of doubt was given to the accused and he was acquitted in circumstances.

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

----Art. 59---Penal Code (XLV of 1860), S.302---Expert's opinion---Evidentiary value---Documentary evidence in the shape of certificates issued by experts specifically medical experts, Chemical Examiners and Forensic Experts when contradictory to oral testimony of related and interested witnesses, is to be believed and it always prevails upon the said ocular evidence produced by the interested parties.

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

----S. 302---Appreciation of evidence---Benefit of doubt---Principles---Benefit of doubt in criminal cases is always given to the accused.

Shaukat H. Zubedi for Appellant.

Muhammad Sabir Haider, Asstt. A.-G. Sindh for the State.

Dates of hearing: 31st January and 1st February, 2008.

P L D 2008 Karachi 189

Before Arshad Noor Khan, J

MUHAMMAD AFZAL---Petitioner

Versus

IIND ADDITIONAL DISTRICT AND SESSIONS JUDGE and 2 others---Respondents

Constitutional Petition No. S-433 of 2005, decided on 4th February, 2008.

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

----S. 15(2)(ii)---Default in payment of rent---Plea of tenant that after payment of pagree amount under rent agreement, landlord could not seek his ejectment on any ground including default in payment of rent---Validity---Term "pagree" was foreign to provisions of Sindh Rented Premises Ordinance, 1979, which could not be enforced through process of court---Terms and conditions settled between parties, if contrary to law, could not be treated as lawful and enforceable under law---Court could not grant relief on basis of such illegal terms and conditions---If such agreement between parties was given effect to even then wilful default in payment of rent could not be condoned---Such plea of tenant was repelled in circumstances.

Secretary of Punjab, Forest Department v. Ghularn Nabi PLD 2001 SC 415; Mirza Abdul Aziz Baig v. Mushtaq Ahmed 1980 SCMR 834; Muhammad Sharif v. Muhammad Afzal Sohail PLD 1981 SC 246; Allah Din v. Habib PLD 1982 SC 465; Shaikh Muhammad Bashir Ali v. Soofi Ghulam Mohiuddin 1996 SCMR 813 and Abdul Ghaffor v. Mst. Amtul Saeeda 1990 SCMR 28 ref.

Mrs. Shirazee v. Abdul Qadir 1993 CLC 528 distinguished.

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

----S. 10---Sindh Rented Premises Ordinance (XVII of 1979), S.15---Agreement---Terms and conditions of agreement settled between parties contrary to law---Validity---Such agreement could not be treated as lawful and enforceable under law---Court could not grant relief on basis of such illegal terms and conditions.

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

----Ss. 2(i) & 15(2)(vii)---Default in payment of rent---Disconnection of electricity for non-payment of bills by tenant---Effect---Electricity charges were included in rent as per provisions of S.2(i) of Sindh Rented Premises Ordinance, 1979---Non-payment of electricity charges would tantamount to default in payment of monthly rent by tenant.

Sheezan Ltd. v. Abdul Ghaffar 1992 SCMR 2400 fol.

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

----Art. 199---Constitutional jurisdiction---Scope---Concurrent findings of Courts below neither capricious nor arbitrary nor result of mis­reading or non-reading of evidence on record---High Court in exercise of constitutional jurisdiction neither could disturb such findings nor reappraise evidence.

Muhammad Rafi for Petitioner.

S.M. Akhtar Rizvi for Respondent No.3.

Nemo for Respondents Nos. 1 and 2.

Date of hearing: 4th February, 2008.

P L D 2008 Karachi 196

Before Muhammad Afzal Soomro, C J

MUHAMMAD SIDDIQ---Applicant

Versus

MUSHTAQ ALI and 5 others---Respondents

Civil Revision No.71 of 2006, decided on 19th February, 2008.

Specific Relief Act (I of 1877)---

---Ss. 8, 39 & 42---Contract Act (IX of 1872), S.188---Suit for declaration, cancellation of power of attorney and possession---Plaintiff had prayed for declaration to the effect that registered irrevocable power of attorney executed by him in favour of his son was not liable to be exercised during the lifetime, as there was difference between power of attorney and will---Validity---Section 188 of Contract Act, 1872 described the extent of agents authority; Agent having an authority to do an act had authority to do every lawful act and thing for the execution of the same---Power of attorney was an instrument by which authority was conferred on an agent---Such an instrument was construed strictly and conferred only such authority as was given expressly or by necessary implication---Irrevocable general power of attorney in the suit indicated that same was to be operated during lifetime of the plaintiff and after his death same would operate as will---Alleged cancellation of said registered general power of attorney did not bear the signature of attorney nor it was registered---Attorney was son and attorney of the plaintiff having power to do so sold the property, in question---Appellate Court below had not considered all said facts and passed impugned order hastily---Impugned judgment and decree, were set aside and resultantly the possession of the property in question was restored to the buyer of the property.

Mirza Sarfraz Ahmed for Applicant.

Respondent No.1 (in person).

Date of hearing: 19th February, 2008.

P L D 2008 Karachi 198

Before Muhammad Afzal Soomro, C J

IMRAN ALI---Petitioner

Versus

Mst. IFFAT SIDDIQUI and 2 others---Respondents

Constitutional Petition No.S-44 of 2008, decided on 20th February, 2008.

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

----Ss. 12, 25 & 47---West Pakistan Family Courts Act (XXXV of 1964), S.14---Constitution of Pakistan (1973), Arta 199---Constitutional petition---Appointment of guardian and custody of minors---One of the minors was of about 8 years while other was. about 5-1/2 years old---Petitioner, who was father of minors was Shia and had sufficient means to look after the welfare of the minors, and also to provide them better means for their growth as per his own sect---Minors were going to school prior to handing over the temporary custody to the mother and no evidence was available on record to the effect that during temporary custody of mother, minors were going to school---Mother of minors was residing with her three brothers, one of whom was a convicted person and was residing abroad---Record had also shown that the family atmosphere of father was much better for future growth of minors as' mother of the father was retired principal of a school, his elder brother was running his own school and his second brother was getting education in Australia---Father had sufficient source of income to maintain the minors in better way---Father and mother had equal love with the children, moreso minors needed love, affection, better education, mental and physical health and civil and social atmosphere---Children should be brought up according to the sect/religion of their father---Both Courts below while granting temporary custody of minors to mother had not considered said facts and circumstances and had misread evidence available on record and had not properly appreciated the evidence---Impugned judgments were set aside and petition by father was allowed as prayed for and he was appointed as guardian of the minors till the age of their majority as welfare of minors lay with him.

M.A. Kazi for Petitioner.

Farooq Hayat Khan for Respondent No.1.

Date of hearing: 15th February, 2008.

P L D 2008 Karachi 204

Before Muhammad Afzal Soomro, C J

NASRULLH SHARIF---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.812 of 2006, decided on 19th February, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.409, 420, 468 & 471/34---Prevention of Corruption Act (II of 1947), S.5(2)---Interim bail, confirmation of---Co-accused being public servants had been granted bail and some of them had been acquitted---Name of accused had not been mentioned in the F.I.R.---Accused was also entitled to grant of bail as a rule of consistency.

Sikandar A. Karim v. State 1995 SCMR 387 rel.

Muhammad Imran Butt for Applicant.

Pervaiz Memon for the State.

P L D 2008 Karachi 205

Before Khawaja Naveed Ahmad, J

SADRUDDIN---Petitioner

Versus

ASLAM MADAD ALI and others---Respondents

Constitutional Petition No.S-504 and C.M.A. No.3067 of 2006, decided on 24th January, 2008.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Concurrent finding of Courts below---High Court in constitutional jurisdiction could reverse such findings, if same were fanciful or against law or based on misreading or non-reading of evidence.

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

----S. 8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Fair rent, fixation of---Ground of increase in rate of rent of adjoining premises, water and conservancy charges---Demised premises consisted of three bed-rooms each with attached bath room, sitting room, dinning room and TV lounge---Monthly rent of Rs.500 was fixed in the year 1985---Landlord prayed for fixation of fair rent at Rs.5,000 per month---Rent Controller and Appellate Authority declined to increase rent on ground of increase in rent of adjoining premises for lack of proof---Validity---Rate of rent in the city had increased during last 20 years---Premises similar to that of demised premises, if located in a posh locality, would be available at monthly rent of Rs.10,000 to Rs.15,000, while similar accommodation in other areas would be available at Rs.5,000 to Rs.7,000---High Court in view of old tenement and condition of demised premises fixed monthly rent at Rs.2500 and taxes and conservancy charges at Rs.1,000.

Messrs Noori Trading Corporation v. Abdul Ghafoor 1997 CLC 205; State Life Insurance Corporation v. Pakistan National Shipping Corporation 1993 CLC 1726; Mst. Aqila Khatoon v. Abu Bakar Khan PLD 1987 Kar. 541; Shakeel Adilzada v. S.M. Rafi 1995 MLD 181 and Abdul Ghaffar v. Noor Jahan Malik, 1987 CLC 2182 ref.

Zafar Hadi Shah for Petitioner.

Nemo for Respondent No.1.

Haider Shaikh, State Counsel for Respondents Nos. 2 and 3.

P L D 2008 Karachi 212

Before Muhammad Afzal Soomro, C J

RAZI AHSAN---Applicant/Complainant

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Application No.87 of 2007, decided on 5th March, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 497(5)---Penal Code (XLV of 1860), S. 489-F---Pre-arrest bail, grant of---Parties were partners in profit and loss and dispute related to accounts---Offence was punishable up to 3 years, which did not fall within the prohibitory clause contained in S.497, Cr.P.C.---Grant of bail in such a case was a rule and refusal was an exception---Was yet to be seen as to whether the purpose of issuing the cheque was dishonest or not and in that regard past conduct of parties was also to be seen---Business transactions, genuine disputes and contractual obligations, could not constitute an intention for the offence---Trial Court having rightly granted bail to accused, application for its cancellation was dismissed.

Mst. Qudrat Bibi v. Muhammad Iqbal and others 2003 SCMR 68; Syed Rashid Hussain v. Muhammad Ismail and others 1976 PCr. LJ 673; Dodo Khan v. Jalaluddin and others PLD 1973 Kar. 554; Maj. (R.) Javed Inayat Khan Kiyani v. The State 2006 CLD 1314; Muhammad Mukhtar v. Sajjad Hussain and others 2004 YLR 2227; Maj. Anwarul Haq v. The State PLD 2005 Lah. 607 and Bashir Dawood and others v. Tanveer Ahmed and another 2000 PCr.LJ 1230 rel.

S. Naqi Mirza for Applicant.

Aga Zafir, A.A.-G. for the State.

Ehsan Raza for Respondent No.2.

P L D 2008 Karachi 215

Before Muhammad Afzal Soomro, C J

BASHIR AHMED---Applicant

Versus

THE STATE---Complainant

Criminal Bail Applications Nos.1071, 1009 and 986 of 2007, decided on 7th March, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---Penal Code (XLV of 1860), S.392/34---Pre-arrest and after arrest bail, grant of---Recovery had not been made from the exclusive possession of accused persons; their names did not appear in the F.I.R.---Involvement of accused persons in the case was on account of co-accused and alleged confession by some of them which in law was not admissible---Case, in circumstances required further inquiry---Pre-­arrest bail granted to one of accused persons was confirmed and bail before arrest was granted to other accused.

1999 PCr.LJ 1529; Shehzore and another v. The State 2006 YLR 3167; Arshad Mehmood v. The State 1985 PCr.LJ 2048; Muhammad Akhtar v. The State 1984 PCr.LJ 2340 rel.

Muhammad Akbar Khan for Applicant (in Criminal Bail Application No.1009 of 2007).

Ghulam Mustafa Sheikh for Applicant (in Criminal Bail Application No.986 of 2007.)

Javed Ahmed Chhatari for applicant (in Criminal Bail Application No.1071 of 2007).

Fareed Ahmed A. Dayo, Addl.A.-G. for the State.

P L D 2008 Karachi 218

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

Messrs MIAN SONS TEXTILE (PVT.) LTD. KARACHI through Chief Executive---Petitioner

Versus

KARACHI BUILDING CONTROL AUTHORITY, KARACHI through Chief Controller of Buildings and another---Respondents

Constitutional Petition No.1248 of 2002, decided on 18th November, 2005.

Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance (VIII of 2002)---

----Ss. 2(d) & 5---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Regularizing of construction---Building---Definition---Petitioner was aggrieved of construction of fourth floor and chimneys of the building by respondent---Contention of petitioner was that after expiry of period of Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, no approval could have been granted to respondent---Validity---Upon having applied for regularization within time a vested right had accrued in favour of respondent which could not be impaired by expiry of the Ordinance---Three floors had already been constructed and petitioner was only aggrieved by construction of fourth floor---Building was defined under S.2(d) of Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002, as building or portion thereof constructed on a plot---Regularization of the building only to the extent of three floors was permissible under Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002---High Court directed the authorities that approval granted to respondent would only be confined to first three floors of the building and fourth floor would be illegal---High Court restrained the respondent from raising fourth floor and if the same had been raised, it was to be demolished---Petition was allowed accordingly.

S.A Hasni for Petitioner.

Shahid Jamiluddin for Respondent No. 1.

Ikramuddin Siddiqui for Respondent No.2.

Date of hearing; 18th November, 2005.

P L D 2008 Karachi 221

Before Shabbir Ahmed and Khilji Arif Hussain, JJ

Syeda WAQUAR JAHAN NADEEM through her Son---Petitioner

Versus

KARACHI ELECTRIC SUPPLY CORPORATION, KARACHI through Managing Director and 2 others---Respondents

Constitutional Petition No.1734 of 1999, decided on 28th May, 2004.

Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----S. 7---Karachi Electric Supply Corporation Act (LVII of 1952), S.3---Notification S.R.O. 1045(I)/99, dated 16-9-1999---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Tariff---Surcharge and additional surcharge, levy of---Petitioner assailed levy of surcharge and additional surcharge by Karachi Electric Supply Corporation on the ground of its being without lawful authority---Validity---If there was any inconsistency between Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, which was a Federal Act, and Karachi Electric Supply Corporation Act, 1952, the latter would prevail---Charge and surcharge were not imposed without the consent of Provincial Government and under S.3 of Karachi Electric Supply Corporation Act, 1952, Provincial Government was authorized to levy electricity surcharge and additional surcharge upon consumption of electricity---Surcharge and additional surcharge in electric bill issued by the Corporation was not without lawful authority---Petition was dismissed in circumstances.

Gadoon Textile Mills and 514 others v. WAPDA and others 1997 SCMR 641 and Nafees Bakers and another v. Government of Azad Jammu and Kashmir 1994 CLC 2244 ref.

Muhammad Farogh Naseem for Petitioner.

Muhammad Ikram Siddiqui for Respondent No.1.

Syed Zaki Muhammad, D.A.-G. and M. Sarwar Khan, Addl. A.-G.

P L D 2008 Karachi 224

Before Nadeem Azhar Siddiqui, J

BASHOO MAL---Plaintiff

Versus

NASEER AHMAD---Defendant

Civil Suit No.5.62 of 2005 and C.M.A. No.4282 of 2007, decided on 20th February, 2008.

Civil Procedure Code (V of 1908)---

---Ss. 10 & 151---Object and purpose of S.10, C.P.C.---Stay of proceedings---Consolidation of suits---Scope---Plaintiff filed suit for recovery of money, whereas defendant filed suit for rendition of account, perpetual injunction, appointment of receiver and recovery of damages---Defendant sought stay of suit filed by plaintiff on the ground that matter in issue in both the suits was same between the same parties---Validity---Object of S.10, C.P.C. was to prevent courts of concurrent jurisdiction from simultaneously adjudicating and proceeding with trial of two suits in which matter in issue was directly and substantially the same between the parties in respect of same cause of action for the same subject-matter and for the same relief---Other object of S.10 C.P.C. was to avoid conflict of opinion of the two courts---One test of applicability of S.10 C.P.C. was whether on final decision being reached in previous suit, such decision would operate as res judicata in subsequent suit---Subject-­matter of both the suits, in the present case, was same and parties were also the same---Cause of action was different as well as relief claimed in both the suits was also different---Issues in both the suits were also different---If suit filed by defendant was decreed, there would be no need to proceed with the subsequent suit but if for any reason, suit of defendant was dismissed, the suit of plaintiff had to proceed on merits---No purpose would be served in staying proceedings of suit filed by plaintiff---As requirements of staying the proceedings being not available both the suits could be consolidated and disposed of by common judgment---High Court instead of staying the suit, consolidated both the suits and decided to proceed the same together to avoid conflict of opinion---Application was dismissed in circumstances.

Dr. Haider Ali Mithani v. Ishrat Swaleh PLD 1999 Kar. 81; Muhammad Yaqoob v. Behram Khan 2006 SCMR 1262; Muhammad Hafeez Khan v. Muhammad Azeem 2006 YLR 460 and Attock Oil Company v. Ghaith Rashad Pharaon 1996 CLC 1657 ref.

Naveed Ahmed Khan for Plaintiff.

S. Ali Ahmed Tariq for Defendant.

P L D 2008 Karachi 228

Before Nadeem Azhar Siddiqi, J

GENERAL TRADERS AND AMMUNITION MANUFACTURERS LTD. through Chief Executive---Plaintiff

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Commerce, Islamabad

and another---Defendants

Suit No.1386 of 2007 and C.M.A. No.8947 of 2008, decided on 20th February, 2008.

Import Policy Order, 2005---

----Item. 19---Specific Relief Act (I of 1877), Ss.42 & 54---Civil Procedure Code (V of 1908), O XXXIX, Rr. 1 & 2 ---Interim injunction, grant of---Import of banned items---Plaintiff was manufacturer of non-prohibited bore of shotgun cartridges---Grievance of plaintiff was that in year, 2005, authorities allowed him to import empty cases of shotgun cartridges but in subsequent year, such import was denied---Plea raised by authorities was that one time permission was granted to plaintiff and no further permission could be granted---Validity---Powers were given to Federal Government to allow import in relaxation of any prohibition or restriction under Import Policy Order---Federal Government had to assign reasons for allowing relaxation---If Federal Government refused to allow import in relaxation of any prohibition or restriction reasons had to be given which were just and reasonable and not arbitrary---Reason for not allowing import in relaxation must be cogent and for advancement of Import Policy Order---Under exception only ammunition could be imported and not spare-parts but at the same time it had to be seen that when cartridges could be imported under exception, the empty shells being part of cartridges could also be imported under exceptions and above all the powers were given to Federal Government to relax any prohibition and restriction---When no restriction was imposed by Import Policy Order, the officers exercising powers under Import Policy Order could not impose such restrictions and each request for relaxation had to be examined independently on its own merits---Plaintiff had made out a prima facie case and balance of convenience was also in favour of plaintiff---If No Objection Certificate/relaxation was not granted, plaintiff would suffer irreparable losses and injuries which could not be calculated in terms of money---High Court directed the authorities to issue required No Objection Certificate/relaxation to plaintiff for import of empty cases of shotgun cartridges---Application was allowed accordingly.

M/s. Airport Support Services v. The Airport Manager Quaid-e-Azam International Airport Karachi and others 1998 SCMR 2268; Abid Hassan and others v. P.I.A.C. and others 2005 SCMR 25; Chairman Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Ltd, Rawalpindi PLD 1991 SC 14; Shaukat Ali v. Secretary, Industries and Mineral Development Government of Punjab, Lahore and others 1995 MLD 1232; Shaheen Construction Co. through, Managing Partner/Attorney v. Province of Sindh through Chief Secretary and others 2000 MLD 1660; M/s. Mirpurkhas Sugar Mills Ltd. v. Consolidated Sugar Mills Ltd. and others PLD 1987 Kar. 225 and M/s. Arif Builders and Developers v. Government of Pakistan and others PLD 1997 Kar. 627 ref.

Khalid Jawed Khan for Plaintiff.

Mrs. Sofia Saeed Shah, Standing Counsel for Defendant No.1 along with Umardad Afridi, Section Officer (Import) of Defendant No.1.

P L D 2008 Karachi 234

Before Mrs. Qaiser Iqbal and Syed Mahmood Alam Rizvi, JJ

GUL HASSAN SAAND---Petitioner

Versus

THE STATE through NAB----Respondent

Constitutional Petition No.D-284 of 2007, decided on 20th February, 2008.

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

----Ss. 497 & 498---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction of High Court---Scope--- Bail, grant or refusal of---Constitutional jurisdiction enjoyed by High Court for grant or refusal of bail, was entirely discretionary, but no deviation could be allowed from the rule that discretion should not be exercised in violation of recognized principle of justice---If the discretion was exercised only on the basis of presumption, inference, suspicion and bare allegation, it would defeat the very purpose of the discretion---Law would not permit the people to be confined in jail only on the basis of presumption and suspicion of criminal acts, it- was duty of the court to administer the justice, prevent abuse of law and protect the liberty of people---Bail could not be claimed as a matter of right, but there could also be departure from the rule that bail in non-bailable offences should not be withheld as punishment.

Abdul Haleem Lakho v. Abdul Karim alias Karim Bux and others 2005 SCMR 1539; Ch. Tanveer Khan v. Chairman, National Accountability Bureau PLD 2002 SC 572; Farukh Javed Ghumman v. The State PLD 2004 Lah. 155 and Abdul Aziz Khan Niazi v. The State PLD 2003 SC 668 rel.

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

----S.498---National Accountability Ordinance (XVIII of 1999), S.9---Pre-arrest bail, refusal of---Allegations against accused were that he was possessing the property having acquired the same from the actual owners at low price thereby gaining huge profit by disposing of the same---On tentative sifting of evidence collected by the prosecution, it transpired that accused had earned amounts from the prize bonds owned by himself as well his wife, which had cast shadow on accused's known source of income as prima facie those assets and property acquired by accused were disproportionate to his known source of income---No case was made out warranting grant of bail in favour of accused---Interim pre-arrest bail order passed in favour of accused, was recalled, in circumstances.

Aamir Raza Naqvi for Petitioner.

Ainuddin Khan, ADPG for NAB.

P L D 2008 Karachi 239

Before Syed Mehmood Alam Rizvi and Farrukh Zia G. Shaikh, JJ

KHAWAJA FEROZ---Appellant

Versus

MUHAMMAD DAWOOD and others---Respondents

High Court Appeals Nos.204, 205, 206 and 207 of 2007, decided on 6th February, 2008.

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

----O. XXVI, R. 1---Local Commission---Recording of evidence---Scope---High Court, on plaintiff's application appointed Local Commission for recording of evidence of parties---Plea raised by defendant was that evidence could not be recorded through Local Commission just for saving time---Validity---Taking steps for early decision in the matter and recording evidence on commission to save time of the parties could not be termed to be erroneous or an act against principles of natural justice---High Court rightly held that it would be in the interest of both the parties if they came out of litigation as early as possible---Order of appointment of Local Commission was not likely to cause any prejudce to defendant in any way, as both the parties would have the opportunity to adduce their evidence and cross-examine the witnesses---High Court in High Court appeal declined to interfere with the order passed by High Court---Appeal was dismissed in circumstances.

Khatiza Bai v. Muslim Commercial Bank PLD 1978 SC 96; Malik Asad Ali and others v. Federation of Pakistan and others PLD 1998 SC 161; Mrs. Shahnaz and others v. Hamid Ali Mirza 2006 CLC 1736 and unreported case of Allied Bank of Pakistan v. Imdad A. Shaikh (HCA No.216 of 2007) ref.

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

----O. XXVI, R.1---Local Commission---Recording of evidence--Demeanor of witness---Scope---Recording of evidence through Local Commission was assailed on the ground that court might check demeanor and stop irrelevant questions likely to be put to witness---Validity---Such conditions were available in all the suits where recording of evidence on Commission had been ordered---If such had been a valid reasons, then appointment of Local Commissioner for evidence would have been discouraged in all cases.

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

----O. XXVI, R.1---Local Commission---Recording of evidence---Consent of parties---Effect---Order for recording of evidence by Local Commission can be passed through consent of parties but there is no bar on the Court passing the order without consent---Even in cases where parties give consent, the Court is not bound to act accordingly.

Mansoor-ul-Arfin for Appellant.

Rasheed A. Rizvi for Respondents Nos. 1, 2 and 3.

P L D 2008 Karachi 244

Before Mrs. Yasmin Abbasey and Syed Mehmood Alam Rizvi, JJ

NIPPON YUSEN KAISHA (NYK) LINES---Appellants

Versus

Messrs MSC TEXTILES (PRIVATE) LIMITED and 6 others---Respondents

Admiralty Appeal No. 4 of 2007, decided on 7th March, 2008.

(a) Carriage of Goods by Sea Act (XXVI of 1925)---

----S. 6 & Sched. Art.3---Discharge of goods---Acts necessary to be done by carrier of goods stated.

Discharge of goods does not mean to discharge at the port of destination, but to the person, who is entitled to take the delivery. So if, consignee, because of his own reason failed to get release of the consignment, the responsibility of carrier does not end here. It was responsibility of the carrier, if consignee does not come forward to receive delivery of goods to give a proper notice to him and a reasonable time to pick-up the goods. If, no diligent response came to him from the consignee, even then he should had followed the local port law, custom and regulation for its careful delivery to the Customs Authorities.

(b) Admiralty Jurisdiction of High Courts Ordinance (XLII of 1980)---

----Ss. 3 & 4---Carriage of Goods by Sea Act (XXVI of 1925), S.6---Admiralty suit---Breach of contract of carriage of goods on ship---Claim in rem and personam against offending ship being slot charter of defendant---Liability of slot charter stated.

Slot charter is relatively a recent device of sharing the carrying 'capacity of ship. In such arrangement two or more operators usually of similar size of vessel in a particular geographic trade will agree to share space on another vessel. The attraction of such arrangement is evident, space is utilized more efficiently and operating cost is reduced while service is expanded. Thus when a party agrees to provide a space at the board of his vessel for transportation from the place of discharge to the place of destination, then he cannot escape from the liability on breach of contract from a claim in rem and personam against the offending vessel and its beneficial owner who operates it.

Atlantic Steamer's Supply Company v. M.V. Titisee and others PLD 1993 SC 88; Yukong Ltd. South Korea Co. v. M.T. Eastern Navigation PLD 2001 SC 57 and Weekly Law Reporters 818 (827) ref.

(c) Admiralty Jurisdiction of High Courts Ordinance (XLII of 1980)---

----Ss. 3, 4 & 5---Admiralty suit---Arrest of three vessels for an action in rem, out of which two being slot charter of defendant---Liability of slot charter for damages caused to plaintiff (consignor of goods)---Scope---Bill of Lading was executed between plaintiff and defendant---Defendant being owner and having major shares in chartered vessel had control over there, thus as per contract had transported goods thereby to port of destination---Arrest of sister ship of vessel, which was beneficially owned by defendant was just and proper---Defendant, who beneficially owned and operated such three vessels as per contract was responsible to carry goods and discharge same at port of destination---Defendant, thus, at later stage, could not escape itself from liability that vessels were not owned by it

Ahmed Investment Ltd. v. Sunrise IV PLD 1980 Kar. 229; Bangladesh Shipping Corporation v. Nedon PLD 1981 Kar. 246 and Yukong Ltd., South Korea C. v. M.T. Eastern Navigation PLD 2001 SC 57 ref.

C.V. `Lamon Bay' and others v. Sadruddin and others 2005 MLD 133 rel.

(d) Words and phrases---

---"Slot charter"---Meaning.

13th Edn. Judicial Dictionary of K.J. Aiyar and Admiralty and Maritime Lat" Practitioner's Edn. ref.

(e) Admiralty Jurisdiction of High Courts Ordinance (XLII of 1980)---

----Ss. 3 & 4---Carriage of Goods by Sea Act (XXVI of 1925), S. 6 & Sched. III, Art. 1(e)---Admiralty suit---Limitation---Non-delivery of goods to consignee at port of destination was communicated to plaintiff on 8-5-2003---Failure of carrier to re-export goods to Pakistan as advised on 16-6-2004 by plaintiff---Auction of goods by Customs Authorities of Port of destination on 30-6-2004---Filing of suit by plaintiff on 9-10-2004---Validity---Notice of auction was served on 18-3-2004, but same was not communicated to plaintiff---Limitation in such case would run with effect from 29-6-2004, when plaintiff was informed that Customs Authorities had taken decision to auction suit consignment---Suit filed on 9-10-2004 was well in time.

Newzealand Insurance Co. Ltd. Chittagong v. M.A. Rouf and others 1962 Dacca 31 rel.

Muhammad Naeem for Appellants.

Nisar A. Mujahid for Respondents.

Date of hearing: 5th December, 2007.

P L D 2008 Karachi 255

Before Arshad Noor Khan, J

KASHIF KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.117 and Miscellaneous Application No.2075 of 2007, decided on 17th March, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 44, 249 & 249-A---Penal Code (XLV of 1860), Ss.489-A & 489-F---Quashing of order---Application for----Accused who was granted bail filed application under Ss.249 & 249-A, Cr.P.C. before Judicial Magistrate seeking therein his acquittal on the ground that the dispute seemed to be one of civil nature and that criminal case had not been registered by an authorized person---Trial Court did not concede the arguments advanced by the counsel for accused and rejected same---Accused had filed application for quashing of order whereby application filed by accused under Ss.249-A/249, Cr.P.C. was rejected by the Judicial Magistrate---Counsel for accused relied upon S.44, Cr.P.C. to contend that the complainant being not beneficiary of the cheque in question, F.I.R. lodged by him was against the provisions of S.44, Cr.P.C,---No doubt S.44, Cr.P.C. included S.489-A, P.P.C. to take cognizance by the nearest Magistrate or police officer, but section 489-A P.F.C. which was substituted in P.P.C. and S.489-F, P.P.C. had been inserted by Ordinance LXXV of 2002 on 25-10-2002; section 489-F, P.P.C., having become part and parcel of 5.489, P.P.C., same could not be said to have been excluded from S.44, Cr.P.C.---Complainant, who was manager of the company concerned, could not be said to be not competent person to lodge F.I.R.---By virtue of S.489-F, P.P.C., an intentional issuance of bogus cheque had been declared as criminal offence and even otherwise if the party against whom any action had been taken and said party had both civil and criminal remedies available to him, he could resort to both the proceedings simultaneously against accused and it could not be said that accused could not be prosecuted in criminal action where the subject-matter wholly or partly was of civil nature---Nature of the proceedings in criminal administration of justice was to punish the wrong doer, whereas the remedy provided in civil proceedings was to recover the amount from accused---Trial Court had rightly observed that since the evidence of the material witness was yet to be led by the complainant party and accused would have ample opportunity to rebut the case of the complainant, quashing of order passed by Judicial Magistrate could not be ordered in proceedings under S.561-A, Cr.P.C.---Even otherwise order rejecting application under Ss.249-A/249, Cr.P.C. could have been challenged in revision under S.435, Cr.P.C.---Case being not fit case to quash proceedings pending before the Trial Court, application in that respect was dismissed.

S.M.A. Mahmood for Applicant.

Ms. Afsheen Aman for the State.

P L D 2008 Karachi 260

Before Dr. Rana Muhammad Shamim and Farrukh Zia G. Shaikh, JJ

MUHAMMAD RAFIQUE---Applicant

Versus

MUHAMMAD ISMAIL and 3 others---Respondents

Criminal Transfer Application No.45 of 2005, decided on 25th March, 2008.

(a) Interpretation of statutes---

----Preamble---Significance---Where there was a written Constitution, it was the duty of the courts to carry out and interpret the intention of the Parliament as envisaged in the statute or Act of Parliament unless same was ultra vires the Constitution itself---In order to determine the true intention of the Parliament, the Judges, as aids to ascertainment of the intention of the Parliament, must look at the 'Preamble' of the Act in question; and if, after that performance, the Judges were satisfied with a word, phrase or passage, the meaning of which was in dispute, that it really had only that one meaning in the context, they must apply that meaning; but if they had doubts on the subject they must think again; it was at that point that the distinction between enacting part of statute and other parts became crucial---If however, the Judges doubted about the meaning of the statutory provisions, which they were considering for some reason as due to lack of clarity or apparent pointlessness, they could take the Preamble into consideration in determining; how those doubts should be resolved---When there was a statute, it would set out the facts and assumption upon which the statute was based---Preamble was generally for the mischief to be remedied in the scope of the Act described, it was in circumstances clearly permissible to have recourse to it as an aid to construing the enacted provisions.

(b) Interpretation of statutes---

----Ejusdem generis, rule of---Applicability---Scope---Rule of ejusdem generis was that words in a statute were to be interpreted by the association in which they were found, was applied as an aid in ascertaining the intent of the legislature and not to subvert it when intent was ascertained and would give no warrant of narrowing alternative provisions which the legislature had adopted with the purpose of affording added safeguards---Said rule would apply when conditions would exist viz. that the statute contains an enumeration by specific words; that the members of the enumeration constitute a class or category; that the class is not exhausted by the enumeration; that a general term followed the enumeration; that there was a distinct genus which comprised more than one species; and that there was not clearly manifested an intent that the general term be given a broader meaning than the doctrine required.

(c) Interpretation of statutes---

----Ejusdem generis, rule of---Applicability---Scope---Where a list of certain circumstances in which a particular act could be done was followed by a general clause, that clause must be interpreted as referring to circumstances ejusdem generis as those which had been relied in the foregoing clauses---Such rule of interpretation would apply as much to associated words in one sentence as to terms or phrase appearing in parts of the same section or in different sections in the same chapter---Doctrine of ejusdum generis should be restricted only to cases where the general words follow specific words in the very same clause or sentence---Rule was that when general words follow particular and specific words of the same nature, the general words must be confined to the things of the same kind as those specified.

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

----S. 526---Penal Code (XLV of 1860), Ss.302 & 324/34---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Anti-Terrorism Act (XXVII of 1997), S.6---Transfer of case---Scope---Act of terrorism and jurisdiction of Anti-Terrorism Court---If an offender with an intention to strike terror in the people or any section of the people etc. would commit scheduled offence, then only he would be subject to jurisdiction of Anti-Terrorism Court---In order to determine as to whether an offence would fall within the ambit of S.6 of Anti-Terrorism Act, 1997, it would be essential to have a glance over the allegations made in F.I.R., record of case and surrounding circumstances---Whether a particular act was an act of terrorism or not, the motivation, object, design and purpose behind such act was to be seen---Whether said act had created a sense of fear and insecurity in the public or in any section of public or community or in any sect---Offence alleged in the present case had taken place because of the previous enmity and private vendetta---Facts of the case revealed that alleged sprinkling of the spirit on the person of the victim was within the boundary walls of the house of applicant and was not in public---Element of striking terror for creating sense of fear and insecurity in the people or any section of the people was not made discernible in the F.I.R. and for that matter on the record of the case as a whole---Application for transfer of case to the Anti-Terrorism Court filed under S.526, Cr.P.C. was dismissed, in circumstances.

PLD 2005 SC 530; PLD 2004 SC 917; 2003 SCMR 1323; 2001 PCr.LJ 581; 2003 YLR 1977; PLD 2004 Lah. 199; 2007 SCMR 142; PLD 2001 SC 521 and PLD 2007 SC 571 rel.

Ghulam Shabir Shar for Applicant-Complainant.

Zulfiquar Ali Sangi for Respondents Nos. 2 and 4.

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

Date of hearing: 4th March, 2008.

P L D 2008 Karachi 271

Before Nadeem Azhar Siddiqi, J

MINOO HOSHANG KAPADIA, KARACHI---Petitioner

Versus

ARNAZ MINOO KAPADIA, KARACHI---Respondent

Divorce Petition No.1 of 2007, decided on 24th March, 2008.

(a) Parsi Marriage and Divorce Act (III of 1936)---

----S. 34---Judicial separation, grant of---Grounds---Judicial separation can be granted on any of the grounds for which a divorce can be granted and additionally on the ground of cruelty or personal violence.

(b) Parsi Marriage and Divorce Act (III of 1936)---

----Ss. 2(4), 32(e), 32(g) & 34---Judicial separation and divorce---Scope---Grievous hurt'---Husband sought judicial separation on the ground of desertion of wife but instead of separation, wife sought divorce on the ground of cruelty and personal violence---Validity---Allegation of grievous hurt levelled by wife against husband that he forcefully pulled her by right wrist, aggravating an old injury was not covered under the definition ofgrievous hurt' and marriage could not be dissolved on such ground---Cruelty and personal violence, under S.34 of Parsi Marriage and Divorce Act, 1937, was an additional ground for judicial separation and not divorce---High Court declined to dissolve marriage and order for judicial separation was passed---Petition was allowed accordingly.

Nawzer Dhunjishaw Kheswalla v. Mst. Kholshed PLD 1968 Kar. 541; Vinita Saxena v. Pankaj Pandit (2006) 3 Supreme Court Cases 778; Cowasji Nusserwanji v. Shehra Cowasji Patuck AIR 1938 Bombay 81; Manish Sirohi v. Smt. Meenakshi AIR 2007 All. 211 and Haji Haroon Mandhra v. Abdul Rahim and others SBLR 2001 SC 700 ref.

(c) Parsi Marriage and Divorce Act (III of 1936)---

----S. 32(g)---Divorce on the ground of desertion-Pre-condition-For applying divorce on such ground defendant has to desert plaintiff for three years.

(d) Administration of justice--

----Bypassing of statute---Principle---In absence of any specific provision, Court cannot bypass provision of statute on the touchstone of equity---Statutory provisions have to be given effect by the courts in letter and spirit.

Muhammad Akram v. Mst. Zainab Bibi 2007 SCMR 1086; Land Acquisition Officer v. Gul Muhammad PLD 2005 SC 311 and Dr. Haq Nawaz v. Balochistan Public Service Commission 1996 PLC (C.S.) 872 rel.

(e) Parsi Marriage and Divorce Act (III of 1936)----

-----S. 32(g)---Divorce---Period of three years, condoning of---Powers of Court---Scope---Court has no power to condone period of three years provided in S.32(g) of Parsi Marriage and Divorce Act, 1937---Before expiry of period of three years marriage cannot be dissolved.

(f) Legislation---

----Direction to Legislate cannot be issued by Court.

Sharaf Faridi v. The Federation of Pakistan PLD 1989 Kar. 404 rel.

R.F. Virjee for Petitioner.

Ms. Farida Moten for Respondent.

Delegates, namely, Mst. Farokh Wania, Kati R. Sethna, Zarin H. Shroff, Zarin Jehangir Kakalia, Savak Ardeshir Mistry, Nergish Sam Jamasjee and Roy D. Minwala present in persons.

Dates of hearing: 17th and 25th January, 2008.

P L D 2008 Karachi 280

Before Ali Sain Dino Metlo, J

Chaudhary MUHAMMAD BASHIR-Applicant

Versus

Mirza WAHID MUHAMMAD BAIG and another---Respondents

Criminal Miscellaneous Application No.80 of 2007, decided on 13th March, 2008.

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

----Ss. 190, 173 & 561-A---Penal Code (XLV of 1860), Ss.380 & 511---Quashing of orders refusing to summon the accused---Complainant after fully implicating the accused respondent in his evidence moved an application before the Trial Court for joining him as accused in the trial, but the same was dismissed on the ground that police had not joined him as accused and if the complainant was not satisfied with the report of investigation he should file a direct complaint---Revision petition against the said order filed by the complainant was dismissed by Sessions Court on the ground that he had made delay in moving the application---Validity---Reasons given by the Trial Court and the Sessions Court for not joining the respondent as accused were not tenable in law---Courts were not bound by the ipse dixit of police,--Cognizance could be taken even on a negative report of police and a person exonerated by police could be joined as accused if he was found, prima facie, involved in the commission of the offence and his exoneration was not supported by evidence or was based on unsound reasons---Advising the complainant to file direct complaint against such person would have the effect of simply multiplying and prolonging the litigation---No period of limitation was also prescribed for prosecuting a person involved in the commission of an offence and he could be joined as accused at any stage---Court for the purpose of commencing proceedings for the trial of a person had to make only a tentative assessment of material collected by the investigating agency or produced before the Court and if a, prima facie, case was made out against him he was to be joined as accused---Exhaustive order dilating upon each and every aspect of the matter needed not be necessarily passed---Detailed and deeper appreciation had to be made at the final stage after recording evidence---Impugned orders were consequently set aside and the accused respondent was directed to be joined as accused in the trial---Petition was allowed accordingly. 1997 MLD 1430 dissented from.

Safder Ali v. Zafar Iqbal 2002 SCMR 63; Mehboob and others v. Emperor 26 Cr.LJ 181; PLD 1967 SC 425; 1972 SCMR 336; 1985 SCMR 1314 and 1988 SCMR 1428 ref.

1997 MLD 1430 dissented from. 1999 PCr.LJ 731 distinguished.

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

----Ss. 190 & 173---Summoning of accused not placed in column No.2 of the challan---Not necessary that for the purpose of joining a person as accused, his name must appear in column No.2 of the charge sheet---Omission, deliberate or inadvertent, on the part of the Investigating Officer to mention in his report name of a person concerned in the commission of an offence, cannot have the effect of depriving the Court of its power to join him as accused in the trial---Court would be free to apply its mind and take decision independently, of course, on the basis of material available before it.

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

----Ss. 190 & 173---Cognizance of offence by Magistrate---Cognizance is taken of an offence and not only of a particular offender and once a Court takes cognizance of an offence it can issue process against any person prima facie found concerned in the commission of the offence, notwithstanding the fact that he was exonerated or his name was not mentioned in the police report, as police was not the final arbiter and it was the Court to decide finally who should or who should not be tried.

Safder Ali v. Zafar Iqbal 2002 SCMR 63; Mehboob and others v. Emperor 26 Cr.LJ 181; PLD 1967 SC 425; 1972 SCMR 336; 1985 SCMR 1314 and 1988 SCMR 1428 ref.

Applicant in person.

Masood Ali for Respondent No. 1.

Qazi Wali Muhammad State Counsel.

Date of hearing: 13th March, 2008.

P L D 2008 Karachi 285

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

SUO MOTU COURT REFERENCE: In the matter of

Constitutional Petition No.D-1257 of 20061 heard on 29th September, 2006.

(a) Prisons Act (IX of 1894)---

----S. 28---Pakistan Prisons Rules, 1978, R.235---Detention of under trial accused---Delay in trial---Reports received from the Trial Courts revealed that the main reason for delay in trial of the cases of prisoners detained in custody for long duration were non appearance of prosecution witnesses and non-production of prisoners in the Court at the time of hearing---Person accused of an offence could not be detained indefinitely and a presumption of innocence was attached to him until proof of his guilt---High Court directed that after 31st March 2007, non-production of a prisoner on the date of hearing could possibly be treated as detention without lawful authority or in an unlawful manner and be dealt with accordingly---Trial Courts were also directed to furnish a list of cases on a daily basis when prisoners in custody had not been produced---Superintendents of Central Prison and special prison, were directed to furnish quarterly reports mentioning the prisoners not produced in Court on the date of hearing and reasons for such non-production---Non-­production of prisoners, was not the only cause of unconscionable delay, but on several occasions non-availability of witnesses or the relaxed attitude of the parties or the courts contributed to such delay.

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

----S. 382-B---Period of detention to be considered while awarding sentence of imprisonment---Upon being, granted the benefit of S.382-B Cr.P.C., the period of detention and the date of judgment, could be counted as part of the sentence---Detention .of accused in custody for an additional period, was absolutely illegal on any legal principle whatsoever and there could obviously be no legal explanation for such extended detention.

Mazharuddin v. The State 1998 PCr.LJ 1035 ref.

(c) Pakistan Prisons Rules, 1978---

----Rr. 235 & 624---Prisons Act (IX of 1894), S.28---Keeping under-trial prisoners in cells---Under-trial prisoners except those covered by R.624 of Pakistan Prisons Rules could not be kept in cells under any circumstance-Rule 235 of Pakistan Prisons Rules, could not be construed so as to confer any power in excess to what was given in S.28 of Prisons Act, 1894, which permitted confinement in cells for convicted accused----High Court ordered that all under-trial prisoners kept in cells must be immediately removed to barracks, failing which their detention might be liable to be held unlawful entailing necessary consequences.

(d) Prisons Act (IX of 1894)---

----S. 28---Pakistan Prisons Rules, 1978, R.235---Keeping prisoners in cells---Crowding of prisoners---Measures to be taken---Only convicts and not under-trial prisoners could be kept in cells, save in exceptionable conditions---High Court directed that immediate steps be taken to construct new barracks in District jails and central jail; that as soon as barracks were completed, all convicted persons be transferred from central jail to partly relieve the said jail from burden of over population; that possibilities of further construction in the premises of central jail could be examined; that Jail Authorities would prepare a list of all under-trial prisoners, convicts charged with offences punishable with imprisonment for three years or less, which would be produced in the court on next date of hearing so that they could be transmitted to Sessions Judges for deputation of Magistrates to conduct trial of cases in jails and that it would be ensured that prosecution witnesses were available at the trial and in the events of failure of the prosecution to produce them expeditiously, power to grant bail might be liberally exercised.

(e) Prisons Act (IX of 1894)---

----S. 28---Pakistan Prisons Rules, 1978, R.235---Prolonged detention without trial---Effect---Prolonged detention, without trial could be treated as detention in unlawful manner not merely liable to be struck down, but also to entitle the detainee to be compensated by the detaining authority---High Court directed Special Assistant to Member Inspection Team to require all the trial Courts to keep record of cases where under-trial prisoners required to be produced were not produced in their respective courts and submit to High Court in monthly returns, which would be periodically communicated to the Inspector-General Prisons who would seek appropriate explanation from the Superintendent of every Prison and communicate same to the High Court.

M. Ilyas Khan and Muhammad Farooq, Abbass Ali, Serwer Khan, Abdul Jabbar Lakho and Muhammad Rafique Rajouri Addl. As.-G.

Ahmed Pirzada, Akhtar Ali Mehmood and Rizwan A. Siddiquie, D.A.Gs.

Akhtar Hussain for Respondent.

Soofia Saeed Shah, Standing Counsel.

P L D 2008 Karachi 297

Before Abdur Rahman Faruq Pirzada, J

LAND ACQUISITION COLLECTOR/OFFICER PAK-ARAB REFINERY LTD. (PARCO), SHIKARPUR and another---Appellants

Versus

YASEEN KHAN and another---Respondents

Land Acquisition 1st Civil Appeal No.6 of 2006 and C.M.As. Nos.86, 103 and 104 of 2007, decided on 14th March, 2008.

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

----S. 23(2)---Land acquired for company---Landowner in such case would be entitled to an additional sum of 25% of market value of acquired land---Principles.

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

----S. 23---Compensation, determination of---Possession of land was taken on 30-11-2001---Award was announced on 19-9-2005---Effect---Value of land must have been increased with passage of period of about five years.

Province of Sindh through Collector of District Dadu and others v. Ramzan and others PLD 2004 SC 512 and Shoukat Ali and others v. Deputy District Officer and others 2005 SLJ 313 rel.

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

---Ss. 4, 6 & 34---Land acquisition---Payment of interest to landowner---Scope---Award made in September 2005---Amount of compensation deposited by Land Acquiring Agency to Land Acquisition Officer in January 2006---Effect---Such Agency was legally bound to deposit entire amount of compensation with Land Acquisition Officer before award---Such Agency in circumstances had violated mandatory provisions of law---Landowner was awarded interest on market value of land @ 6% per annum from time of taking possession of acquired land till date of payment of compensation.

Shoukat Ali and others v. Deputy District Officer and others 2005 SLJ 313 and Land Acquisition Collector Islamabad and another v. Alauddin and others PLD 2008 Pesh. 3 rel.

Muhammad Saleem Jessar for Appellants.

Asif Ali Abdul Razzak Soomro and Gul Hassan Solangi for Respondent No.1.

Ali Azhar Tunio, Addl. A.G. for Respondent No.2.

P L D 2008 Karachi 305

Before Abdur Rahman Faruq Pirzada, J

Syed HASSAN RAZA---Applicant

Versus

DEEDAR HUSSAIN SHAH and others---Respondents

Criminal Miscellaneous Application No.S-20 of 2008, decided on 26th March, 2008.

Penal Code (XLV of 1860)---

----Ss. 489-F, 504 & 506(2)---Criminal Procedure Code (V of 1898), S.173---Magistrate while disagreeing with the summary report submitted by the Investigating Officer with the recommendation for disposal of the case under "B" Class, had directed the Investigating Officer to submit the charge sheet under S.173, Cr.P.C. before the Court having jurisdiction---Validity---Accused admittedly had issued the cheque for the amount of Rs.1,97,000 in the name of the complainant, which was subsequently dishonoured---Accused had himself instructed the Manager of the Bank concerned to stop payment of the said cheque through a letter, as the payment had already been made to the complainant in cash---Accused took a contradictory stand subsequently when he wrote a letter to complainant acknowledging that the amount of Rs.1,97,000 was still outstanding and he requested the complainant to get the payment of the said cheque from the Bank---Bank informed the accused by means of a letter that the payment of the said cheque to complainant was still stopped as per instruction of the accused and the complainant once again was put at disadvantage---Said contradictory stand taken by the accused while dealing with the complainant had, prima facie, made out a case under S.489-F, P.P.C.---Magistrate under S.173, Cr.P.C. while taking cognizance of the case was competent to apply his judicious mind to the summary report and then to pass the order---Impugned order revealed that it appeared from the police papers that the investigating team had disposed of the case under `B' (false) class on account of statements of the defence witnesses---Record, however, showed that the accused had given the cheque, which was bounced for want of arrangement, as was also clear from the Bank record---Accused had not denied his signatures on the cheque issued to the complainant and such prima facie evidence could not be brushed aside---Impugned order did not suffer form any illegality---Petition was dismissed accordingly.

Farooq Sumar and others v. The State 2005 CLJ 219 ref.

Basharat Ahmed Jatt for Applicant.

Pirbhulal-u-Goklani for Respondent No.1.

Rasheed A. Qureshi. Asstt. A.-G. for Respondent Nos. 2 to 4.

P L D 2008 Karachi 310

Before Syed Pir Ali Shah, J

ASIF ALI ZARDARI---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No.139 of 2005, decided on 23rd April, 2008.

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

----S. 265-K---Penal Code (XLV of 1860), Ss.302, 324, 148, 146, 120-A & 120-B---Power of Court to acquit accused at any stage under S.265-K, Cr.P.C.---Scope---Principles---Court has ample powers to acquit accused even if the witnesses are not examined---Provisions of S.265-K, Cr.P.C. are meant to prevent the rigours of a prolonged trial when it is apparent from the record that there is no probability of the accused being convicted of any offence---Burden of proof is on the prosecution and in the present case, evidence available with it, if at all accepted (as it is), the same would not be able to establish the charge against accused in the light of required standard of law, hence recording of further evidence would waste public time and serve no public interest, rather on the contrary, such futile exercise would prove to be further scandalous to the accused person, who equally deserved justice and fair treatment in all respects--;Accused, in circumstances, was entitled to acquittal.

1991 PCr.LJ 644; 1991 MLD 2198; 2004 PCr.LJ 1071; PLD 1965 SC 287; 2000 SCMR 122 and AIR 1957 Madhpra 236 rel.

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

----S. 265-K---Penal Code (XLV of 1860), Ss.302, 324, 148, 146, 120-A & 120-B---Power of Court to acquit accused at any stage under S.265-K, Cr.P.C.---Every accused as a matter of law is presumed to be innocent unless proved otherwise---Taking in view all facts and circumstances on record and considering the entire evidence collected by the prosecution in the present case, as a gospel truth, same would establish that no offence had been committed by accused---Neither there was any evidence showing that the offence had been committed by the accused himself nor there was any probability of the accused being convicted in the matter for any offence---Accused had suffered mental agony spread over 11/12 years of trial proceedings and in the peculiar circumstances, further proceedings shall bring more suffering to the accused for no fault on his part---Accused was entitled to be acquitted under S.265-K, Cr.P.C. from the charge of the case in the interest of justice.

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

----S. 561-A---Penal Code (XLV of 1860), Ss.302, 324, 148, 146, 120-A & 120-B---Application for quashment of proceedings under S.561-A Cr.P.C.---Inherent powers of High Court under S.561-A, Cr.P.C.---Object and scope---Object of S.561-A, Cr.P.C., whereby inherent powers are conferred upon High Court, is to do the real and substantial justice and to prevent the abuse of the process of Court---Powers of High Court are very wide to secure ends of justice---Statements of thirteen witnesses, in the present case, showed that their evidence was hearsay and as such Trial Court misread and mis-appreciated the evidence that recorded facts showed that there was absolutely no direct evidence against the accused and there was nothing incriminating against him; that prosecution would not achieve its object by examination of remaining witnesses and in no way the case was likely to end in conviction so far the case of present accused was concerned; that it was a matter of record that as much as three F.I.Rs. were registered with interval but the name of accused did not transpire in any of the F.I.Rs. and as such he was not nominated by either of the complainant and that even if, remaining witnesses were examined, the case of the prosecution would not be improved so much as to result in conviction of accused---Held, it was a fit case where proceedings pending before the District and Sessions Judge in respect of the accused (present applicant) be quashed as there was no possibility of the applicant/accused being convicted in the alleged offence, as proceedings, pending, were nothing but abuse of process of the Court.

M.S. Khawaja v. State PLD 1965 SC 287 and 2005 YLR 1867 rel.

Shaukat Zubedi, Shahadat Awan and Abu Bakar Zardari for Applicant.

Sarfraz Khan Tanoli and Tanveerul Islam for Mst. Badrun Nisa wife of deceased Ashiq Ali Tatoi.

Mahmood A. Qureshi for the Complainant.

Muhammad Ilaya Khan, Special Prosecutor for the State.

Dates of hearing: 1st, 2nd, 7th and 9th April, 2008.

P L D 2008 Karachi 325

Before Abdur Rahman Faruq Pirzada, J

ABRAR AHMED alias ABRAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.389 of 2004, decided on 21st April, 2008.

Penal Code (XLV of 1860)---

---Ss. 489-A, 489-B & 489-C---Appreciation of evidence---Out of three Mashirs, only one was examined and it was clear from his deposition that he did not fully support prosecution case---Said mashir had stated that mashirnama was not read over to him and in circumstances he could not say about the contents of mashirnama, he had further stated that his thumb impression on the mashirnama was obtained by the police at the shop of the complainant---In view of that testimony of said mashir, even the recovery of currency note from accused would be rendered as doubtful---None of the remaining mashirs was examined on the point of recovery---In order to constitute the offence under S.489-B, P.P.C., a person must have the knowledge or have reasons to believe that the currency note in question was forged or counterfeit---Not a single prosecution witness in the entire evidence produced by prosecution had spoken a word on the aspect of the case and it had not been stated clearly by any of the prosecution witnesses, whether accused had the knowledge or had reason to believe that the currency note used by him was forged or counterfeit---Mere possession of forged currency note, was not an offence, unless the knowledge or intention on the part of accused was established beyond reasonable doubt---Prosecution thus did not establish its case beyond 'reasonable doubt---Impugned judgment passed by the Trial Court against accused was set aside---Accused was acquitted; in circumstances.

Azmat Khan v. State 2000 PCr.LJ 1461; Ali Asgher v. The State 1992 PCr.LJ 1913; Bur Singh v. The Crown AIR 1931 Lah. 34; 1993 PCr.LJ. 1909; 1988 PCr.LJ 1553; 1971 PCr.LJ 53; 1984 PCr.LJ 1281 and 1989 PCr.LJ 1079 ref.

M. Shafqat Tanoli for Appellant.

Z. K. Arif State Counsel.

Date of hearing: 21st April, 2008.

P L D 2008 Karachi 332

Before Khalid Ali Z. Qazi, J

PAKISTAN TELEVISION CORPORATION---Plaintiff

Versus

Messrs BOND ADVERTISING (PVT.) LTD---Defendant

Suit No.102 of 2000, decided on 10th April, 2008.

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

----O. XXIX, R.1---Suit filed by corporation---Maintainability---Plaint was signed and verified by manager who was attorney and had been authorized through general power of attorney executed by Managing Director for the purpose as required under O.XXIX, R.1 C.P.C---Power of attorney was produced in court and the fact was confirmed by plaintiff's representative in his evidence which had not been denied or rebutted by defendant in cross-examination---Suit held, was filed by authorized person in circumstances.

1988 CLC 1381 rel.

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

----S. 12---Specific performance of contract---Recovery of money---Plaintiff claimed that in compliance of contracts between the parties, plaintiff telecast advertisement spots for defendant's clients but defendant did not make full contractual payments---Validity---Plaintiff's version was supported through evidence while defendant failed to appear to defend the suit filed by plaintiff and to support his counter claim made by him in his written statement---Effect---When signatory to written statement failed to appear, then even written statement could not be exhibited and there was no rebuttal to plaintiff's version---Written statement/counter claim filed by defendant could not be considered in his favour and no reliance could be placed on such written statement and presumption would be that the defendant had not pressed the issues---High Court decreed the suit in favour of plaintiff to the extent of the amount claimed along with markup till realization of decretal amount---Suit was decreed accordingly.

1988 CLC 1381; 2008 YLR 464; PLD 2004 SC 633; PLD 2004 SC 415; 2000 SCMR 1391; PLD 1972 SC 25 and PLD 2003 SC 594 ref.

Munawar Ghani for Plaintiff.

Nemo for Defendant.

Date of hearing: 12th February, 2008.

P L D 2008 Karachi 342

Before Arshad Noor Khan, J

QUAID JOHAR---Applicant

Versus

MURTAZA ALI and another---Respondents

Criminal Revision Application No.8 of 2008, decided on 25th April, 2008.

(a) Administration of justice--

----Criminal lis or complaint could not be agitated or defended through the attorney.

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

----Ss. 3 & 4---Criminal Procedure Code (V of 1898), S.561-A---Illegal dispossession---Proof---Complainant was not owner of property in question nor his possession over the premises had been established through any cogent evidence-Trial Court dismissed the complaint---Plea raised by complainant was that he had rented out the property to his relative who had been dispossessed by accused---Validity---In absence of any evidence or affidavit of the relative of complainant whom he stated to have rented out the property, claim of complainant could not be acceded to as he failed to prove to have rented out the premises to his relative---Controversy between the parties was a dispute of civil nature for which parties should approach civil Court---Trial Court had rightly dismissed the complaint after appraisal of whole material available---High Court did not find any justification to interfere with the order passed by Trial Court-Revision was dismissed in circumstances.

Tariq M. Khawaja for Applicant.

Ms. Kauser Naz Naqvi for the State.

Respondent No.2 along with his wife Ms. Rubina is present.

Respondent No.1 called absent.

P L D 2008 Karachi 348

Before Muhammad Afzal Soomro, C J

MUHAMMAD ZAMAN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.253 and 247 of 2007, decided on 14th April, 2008.

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

----S. 87---Proclaimed offender--Proclamation for person absconding---Non-bailable warrants were issued against the accused without mentioning their addresses---No publication in this regard in any newspaper was ever made---Accused could not be treated as proclaimed offenders.

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

----S. 103---Search to be made in presence of witnesses---Police witnesses---Credibility---When the incident takes place in thickly populated area and the police receives spy information prior to the occurrence, then the evidence of police officials in such a situation cannot be relied upon.

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

---Ss. 302(b) & 353-Appreciation of evidence---Prosecution evidence contained major contradictions---General allegations were made against the accused and no specific role was assigned to any one---Despite the offence having taken place in thickly populated area and the police having received spy information about the presence of the accused at the place of alleged incident, no private person from the locality was associated as witness of the incident---Police witnesses, in order to improve the prosecution case, had made improvements in their statements which had many discrepancies and created .serious doubts---Although encounter between the police and the accused had continued for 6/7 minutes claiming death of one person from each side, yet not a single crime empty was recovered from the spot---Fire-arms allegedly recovered from the accused admittedly were not sealed, foisting of the same upon the accused, therefore, could not be ruled out---Fire-arms in the hands of two accused were not seen by prosecution witnesses at the time of incident, which suggested their false involvement in the case---One accused was proved to be present on his duty at the time of occurrence and case against him was not free from doubt---No address of accused having been given in the non-bailable warrants issued against them and no publication in the newspaper having been made, which were mandatory requirements, initiation of proclamation proceedings was defective---Accused were acquitted in circumstances.

Usman Khan and others v. The State PLD 1969 SC 293; Usman and another v. The State 1992 PCr.LJ 1960; Abdul Aziz and 2 others v. The State 1983 SCMR 247; Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928; Ghulam Abbas v. Zafar Ali and 3 others 1970 SCMR 527 and 1997 MLD 48 ref.

Farooq Hayat for Appellants (in Cr. Appeal No.253 of 2007)

Syed Qamar Ali for Appellants (in Cr. Appeal No.247 of 2007).

Arshad Lodhi Asstt. A.-G. Sindh for the State.

Date of hearing: 7th March, 2008.

P L D 2008 Karachi 358

Before Arshad Noor Khan and Ghulam Dastagir Shahani, JJ

NASEER MUHAMMAD and 5 others---Petitioners

Versus

PROVINCE OF SINDH through Secretary Live Stock and Fisheries Department and 2 others---Respondents

Constitutional Petition No.D-584 of 2007, decided on 21st April, 2008.

Sindh Fisheries Ordinance (III of 1980)---

----Ss. 2(k) & 3(i)---Sindh Fisheries Rules, 1983, R.2(c)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Vires of framing scheme and policy for issuance of licence for fishing by authorities---Provisions of Sindh Fisheries Ordinance, 1980 and Sindh Fisheries Rules, 1983 applicable to the authorities, fully empowered them to frame any scheme or policy which was better suited in the interest of public and to accommodate more and more persons for fishing to provide them bread earning opportunities---Act of authorities to such extent, could not be declared as illegal, inoperative, ultra vires or against the spirit of Fisheries Ordinance, 1980 and Sindh Fisheries Rules, 1983---Principles---Constitutional petition was dismissed.

Inayatullah Morio for Petitioners.

Muhammad Bachal Tonyo, Addl. A.-G.

P L D 2008 Karachi 361

Before Dr. Rana Muhammad Shamim, J

Haji IBRAHIM and others---Petitioners

Versus

HABIB BANK LTD. and others---Respondents

Constitutional Petition No.504 and C.M.A. No.3391 of 2005, decided on 5th March, 2008.

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

----S. 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Bona fide personal need of landlord---Burden to prove---Court was duty bound to see each and every case on its own merits---Burden to prove personal need was upon the landlords which they were to prove through convincing evidence' as mere wish, whim or convenience of landlord was not enough to prove good faith---Record showed an admitted position that the landlords firstly claimed personal need on 27-11-1994 when legal notice was served on the tenant but entered into supplementary agreement on 27-10-1996 for five years on the increased rent---Effect---Held, on entering into such agreement; landlords themselves withdrew their claim of personal need, particularly in view of the fact that in the said supplementary agreement the tenant had been given option to renew the tenancy.

Muhammad Anwar v. Muhammad Saeed 1991 SCMR 2337; Sher Khan v. Haji Naqeebuddin 1995 MLD 148; Haji Mohibullah & Co. v. Khawaja Bahauddin 1990 SCMR 1070; Muhammad Ashraf v. Muhammad Adil Zaidi 1999 MLD 3312; Mst. Sarwari Begum v. Ata-ur-Rehman 1997 CLC 1500; Haji Zainul Abedeen v. Mst. Sharifan Begum 1991 CLC 1515; Muhammad Saleem Qureshi v. M Mohsin Butt 1996 CLC 381; Gohar Rashid v. Fazal Hasan Mazhar PLD 1995 Lah. 469; Lahore Diocesen Trust v. Messrs Glaxo Laboratories 1996 MLD 1825; Zahoor Din v. Mirza Ayub Baig 1981 SCMR 1081; Malik Islam Akber v. Mustafa Hussain 1992 CLC 1753; Shajar Islam v. Muhammad Siddique PLD 2007 SC 45; Mrs. Tahira Dilwar Ali Khan v. Mst. Syeda Kaneez Sughra PLD 2007 Kar. 50; Col. Shah Sadiq v. Muhammad Ashiq 2006 SCMR 276; Matloob Hussain v. Syed Abdul Qayyum 1988 MLD 2150; Muhammad Ismail v. Mst. Bushra Fayyaz 1993 MLD 702; Syed Abdul Khair v. Syed Jan Muhammad 1997 CLC 403; Zafarullah v. Muhammad Akbar 1986 MLD 1755; Manzoor Ahmad v. Karim Bux PLD 1986 Kar. 637; Akber Ali v. Abdul Majid 1988 MLD 1412; Pakistan Food Manufactures v. Sadiq Ishaque 1992 CLC 482; Fasahat Ali v. Mst. Noor Jehan Begum 1991 CLC 1902; Fida Hussain v. Noor Muhammad Bana 1985 CLC 3014; Muhammad Moosa Khawaja v. Haji Muhammad Umar 1995 MLD' 1880; Associated Sales Agencies, Karachi v. The Standard Insurance Co. Ltd. 1985 CLD 2419; Muhammad Ramzan v. Soofi Muhammad Bashir 1989 MLD 548; Muzaffar Hussain Jafri v. Fazal Ahmad 1993 MLD 1707; Adam Limited v. General and Rubber Trading Co. 1998 MLD 579; Yaqoob Ali v. Ismail 1987 CLC 526; Faqir Taj v. Mst. Shamsho 2003 YLR 894; Sakina Bibi v. Aziz Begum 2005 YLR 2947 and Haji Muhammad v. Allah Yar 2007 CLC 960 ref.

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

----S. 15---Personal bona fide need of landlord---Oral, assertion of the landlord for personal need is to be examined very carefully.

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

----S. 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Bona fide personal need of landlords---Waiver clause in the rent agreement does not preclude the landlords from the remedies as available in the Sindh Rented Premises Ordinance, 1979 including the personal bona fide need---Where, however, the landlords had failed to show their bona fide requirement of the demised premises, the finding on such aspect of the matter would not affect the impugned judgment.

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

----Art. 199---Sindh Rented Premises Ordinance (XVII of 1979), S.15---Constitutional jurisdiction of High Court under Art.199 of the Constitution---Judicial review---Scope---High Court. in the exercise of its constitutional jurisdiction is not supposed to interfere in the findings on the controversial question of facts based on evidence even if such finding is erroneous---Scope of the judicial review of the High Court under Article 199 of the Constitution in such cases, is limited to the extent of misreading or non-reading of evidence or if the finding is based on no evidence which may cause miscarriage of justice but it is not proper for the High Court to disturb the finding of fact through reappraisal of evidence in writ jurisdiction as substitute of revision or appeal.

Shajar Islam v. Muhammad Siddique PLD 2007 SC 45 rel.

Sohail Jabbar for Petitioners.

Hasan Akbar for Respondent No. 1.

P L D 2008 Karachi 369

Before Munib Ahmad Khan, J

JALAL and 11 others---Applicants

Versus

KAPRI KHAN and another---Respondents

Criminal Revision Application No.S-24 and M.A. No.280 of 2007, decided on 29th April, 2008.

Illegal Dispossession Act (XI of 2005)---

----S. 3---Application against illegal dispossession---Objection to---Applicants were aggrieved by order whereby their objections to the maintainability of application filed under S.3 of Illegal Dispossession Act, 2005 was dismissed---Basic objection of applicants was that Illegal Dispossession Act, 2005 was promulgated later on while they were in possession of the land in dispute prior to promulgation of said Act and that a suit filed by respondent being pending in the civil court, application filed under S.3 of Illegal Dispossession Act, 2005 shall not have been entertained---Submission of counsel for respondent was that filing of the suit had no bar to the action under Illegal Dispossession Act, 2005 and respondent could avail both remedies---Validity---Illegal Dispossession Act, 2005 did not restrain a complainant from taking any action against an alleged accused as S.3(2) of said Act had provided that action under the Act could be taken without prejudice to any punishment to which a person could be liable under any other law for the time being in force---Where suit for declaration and injunction was filed and during pendency of said suit the plaintiff was dispossessed prior to or after grant of injunction, then besides remedy available to him on that pending suit, aggrieved person could also initiate proceeding under Illegal Dispossession Act, 2005---If a person remained in illegal possession, despite the fact that he was not the lawful owner nor legally authorized to occupy, then on every passing day fresh cause of action would arise in favour of actual owner who had been dispossessed even prior to promulgation of Illegal Dispossession Act, 2005---Contention of counsel for applicants that Illegal Dispossession Act, 2005 was not applicable to the dispossession which had taken place prior to said Act had no force---Said law could be considered as a warning to the illegal occupant, so that immediately after passing of the Act, the persons who were in unlawful possession in terms of S.3 of said Act should surrender the possession or to face the consequence---When challenge was in respect of the ownership and lawful authority, then the court had to decide that issue keeping in view that illegal ownership or unlawful authority would not become lawful after passage of time only.

PLD 2006 Lah. 649; PLD 2006 Kar. 221 and PLD 1007 SC 423 ref.

Noor Ahmed Memon for Applicants.

Muhammad Yousif Leghari for Respondnet No.1.

Anwar H. Ansari, State Counsel.

P L D 2008 Karachi 374

Before Dr. Rana Muhammad Shamim and Ghulam Dastagir A Shahani, JJ

JAMEEL KHAN and 2 others---Appellants

Versus

THE STATE---Respondent

Special Criminal Appeal No.D-65 of 2003, decided on 31st January, 2008.

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

----Ss. 9(c) & 25---Appreciation of evidence---Sentence, reduction in---Forty-eight packets of opium were recovered from a secret drawer in the cabin of a truck---Each bundle contained 4 kilograms and total opium became 192 kilograms---Only two bundles of 4 kilograms each were sealed separately and were sent for examination and no sample was drawn from remaining 46 bags containing 188 kilograms---Version of the complainant regarding driving of truck in questions by two of accused persons turn by turn from N.-W.F.P. to Sindh Province, and recovery of opium from said truck was corroborated by other prosecution witnesses---Concealment of opium in question in the dash-board of the truck was in the common conscious knowledge of both the accused---No explanation was offered for travelling empty truck without load all the way from Sawabi (N.-W.F.P.) to the place of occurrence---Case of the conscious possession of 192 kilograms of opium was proved beyond reasonable doubt---No independent witness was associated in recovery proceedings and only Police Officials were witnesses in the case---In absence of any enmity or ulterior motives to implicate in the case, evidence of Police Official could be relied upon as Police Officials were as good witnesses as any other citizen unless any mala fides was established against them---Even otherwise provisions of S.103, Cr.P.C. had been excluded under provisions of S.25 of Control of ,Narcotic Substances Act, 1997---Accused persons could not prove that they had only taken lift on truck as their said claim was not corroborated through any other independent witness---Case of acquitted accused was totally on different footing from the case of accused persons---Prosecution had proved its case against both the accused beyond reasonable doubt by producing consistent, corroborative, direct, cogent, confidence inspiring evidence---No illegality, irregularity, infirmity or mis-appreciation of evidence had been pointed out by the defence in findings of Trial Court which convicted accused---Appeal filed against conviction was dismissed, however substantive sentence awarded to accused was modified from life to sentence of 14 years' R.I., whereas conviction awarded to the third accused was set aside and he was acquitted and released.

2002 PCr.LJ 51; 1997 SCMR 543; 2001 PCr.LJ 1762; 1996 PCr.LJ 843; 1971 PCr.LJ 970; 1969 SCMR 362; 2002 PCr.LJ 215; 1996 PCr.LJ 309; 2004 PCr.LJ 1224; PLD 2003 Kar 216; Rahim Dad v. The State 2002 PCr.LJ 1506; Munawar Shah v. The State 2004 MLD 200; Amanullah alias Aman v. The State 2000 PCr.LJ 1536; Sarfraz v. The State 2007 SCMR 830; Waris Khan v. State 2006 SCMR 1051 and Muhammad Hashim v. State PLD 2004 SC 856 ref.

Mumtaz Ali Khan Deshmukh for Appellant No.1.

Ghulam Muhammad Khan Durrani for Respondents Nos. 2 and 3.

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

Date of hearing: 31st January, 2008.

P L D 2008 Karachi 381

Before Bin Yamin, J

Senator ASIF ALI ZARDARI and another---Applicants

Versus

THE STATE---Respondents

Criminal Revision Application No.100 of 1999 and Criminal Miscellaneous No.78 of 2002, decided on 13th May, 2008.

Criminal Procedure Code (V of 1898)---

---S. 561-A---Penal Code (XLV of 1860), Ss.409, 420 & 109---Customs Act (IV of 1969), S. 156(1)(8)(14)---Prevention of Corruption Act (II of 1947), S.5(2)---Applications for quashment of proceedings-Allegations of criminal breach of trust, abuse of official position, smuggling, evasion of tax, customs duty etc.---Nothing was available on record to show that applicants were involved in any manner with the commission of the alleged offences or they were the persons who violated any relevant law at the relevant time---One of the accused persons appeared to have been involved in the case on false ground to victimize him for political ideas while the other had also not violated any law, but was involved on the false ground for the reasons best known to the prosecution---Material witnesses of the prosecution had already been examined in the case and if the remaining witnesses were examined in Court, they were not likely to improve the case of prosecution against the accused---No possibility existed of the conviction of accused at the conclusion of the trial as it was case of no evidence-Case of accused being the, one fit for quashment of proceedings in question, High Court allowed applications of both the accused and ordered quashment of proceedings accordingly.

Abubaker Zardari and Mian Khan Malik and Adnan Karim for Applicants.

Rizwan Ahmed Siddiqui Deputy Attorney-General for the State.

P L D 2008 Karachi 388

Before Arshad Noor Khan, J

KHALIL RAHMAN AYUB and others---Plaintiffs

Versus

Mrs. Syeda YASMIN ZAIDI---Defendant

Suit No.207 of 2000 and S.M.A. No.10 of 1999, decided on 24th April, 2008.

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

----Ss. 278 & 295---Qanun-e-Shahadat (10 of 1984), Arts.61, 73 & 76(c)---Suit for issuance of letter of administration---Will---Claim of plaintiff that the Will had been executed in his favour by deceased was denied by defendant (Widow of deceased)---Proof---Plaintiff, instead of original Will produced in evidence Photocopy thereof---Plaintiff did not lead any independent evidence that deceased at the time of death, had left a Will---Plaintiff did not lead any evidence about destruction of original Will---Secondary evidence could not be led unless destruction of primary evidence was established by plaintiff by producing plausible and convincing evidence---Signatures of deceased on Will were denied by his widow---Widow would be presumed to be well acquainted and familiar with signature of her deceased husband, thus, her denial. of his signature would be of much significance---No suggestion was put to widow during cross-examination that Will bore signature of deceased and she was telling lie---Plaintiff did not bring on record any document to show admitted signature of deceased for comparison thereof with signature of deceased on Will---Nothing was on record to show that original was not traceable---Widow's denial about signature of her deceased husband was upheld in circumstances.

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

----Art. 133--Assertion made by witness in examination-in-chief not disputed or controverted in cross-examination---Effect---Such assertion would be deemed to have been accepted by opposite party---Principles.

Muhammad Akhtar v. Manna and others 2001 SCMR 1700 rel.

(c) Islamic Law---

----Gift---Widow claimed property to have been gifted in her favour by her deceased husband---Proof---Age of one witness of widow at the time of declaration of gift in her favour was stated to be of 15-16 years---Such important declaration might not have been made by deceased in presence of a grown up youth---Had deceased gifted property in favour of his widow, then she would have got same mutated in record of rights during life time of deceased---Mere assertion of widow that she did not get property mutated in her name as she was a Government employee, would be of no significance---Gift in favour of widow was not proved in circumstances.

Amir Aziz Khan for Plaintiffs.

Hafiz Abdul Baqi for Defendant.

Date of hearing: 15th April, 2008.

P L D 2008 Karachi 398

Before Arshad Noor Khan, J

MUHAMMAD NAEEM---Applicant

Versus

THE STATE---Respondents

Criminal Revision Application No.32 of 2008, decided on 23rd April, ., 2008.

Criminal Procedure Code (V of 1898)---

----S. 513---Penal Code (XLV of 1860), Ss.302 & 395---Surety documents deposited in earlier case---Acceptance of said Surety documents in a subsequent case--- Applicant who was granted bail, filed application that surety pavers already filed in the court in respect of bail earlier granted to his brother, could be kept as surety in his case---Said application had been dismissed---Validity---Surety papers which applicant intended to keep as surety in his case, had already been accepted by the Trial Court in earlier case---Charge having already been created over the property by said surety documents by pledging said documents before the competent court, further charge could not be created over the property which had already been pledged by a competent court, unless said property had been redeemed by the court---Further pledge of same property was not permissible under the law---Order passed by the Trial Court not suffering from any illegality, same could not be interfered with in revisional jurisdiction of High Court.

Mst. Afshan Bibi v. State 1998 SCMR 6 ref.

Rustam Ali Khan for Applicant.

Ms. Kauser Naz for the State.

P L D 2008 Karachi 400

Before Munib Ahmad Khan, J

ABDUL BARI---Applicant

Versus

THE STATE and 10 others---Respondents

Criminal Revision Application No.S-26 and M.A. No.738 of 2008, decided on 22nd April, 2008.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 5---Criminal Procedure Code (V of 1898), S.439---Illegal dispossession---Complaint against---Trial Court dismissed complaint observing that it was a matter of civil nature---Certain survey/khet numbers for which application under Illegal Dispossession Act, 2005 had been filed and ownership of complainant/applicant had been supported by concerned Mukhtiarkar, which had also been taken into consideration by the Trial Court---Respondents were claiming that one of the khets which was not being claimed by applicant/complainant, was in their possession---In such situation no conflict existed in respect of claim and title documents---Trial Court could proceed with the matter by ascertaining the factual position in respect of demarcation and entitlement of the parties instead of terming same as the case of civil nature---Illegal Dispossession Act, 2005 had been promulgated to safeguard the interests of the owners and to stop the land grabbers from occupying the lands illegally---No justification was available, if the case was simply termed as a dispute in civil nature without bringing relevant matter on record---Impugned order was set aside by High Court with the direction to the Trial Court to call proper report from Mukhtiarkar in respect to title and demarcation in respect of land of the applicant and of respondents as well and proceed further under the Illegal Dispossession Act, 2005.

Muhammad Azeem Panhwar for Applicant.

Anwar H. Ansari for the State.

Muharram G. Baloch filed his power for respondents Nos. 2 to 5 along with objections, which are taken on record.

P L D 2008 Karachi 402

Before Mrs. Qaiser Iqbal and Syed Mehmood Alam Rizvi, JJ

SUI SOUTHERN GAS COMPANY LTD., KARACHI---Petitioner

Versus

FEDERATION OF PAKISTAN through Ministry of Petroleum and Natural Resources, Government of Pakistan, Islamabad and 2 others---Respondents

Constitutional Petition No.D-91 of 2006, C.M.A. No.6017 of 2007 and C.M.A. No.321 of 2006, decided on 21st April, 2008.

Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----Ss. 2(xxxii), 3 & 12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Demand of gas supply for Captive Power Plant of hotel---Refusal of Sui Southern Gas Company (SSGC) to accept such demand of applicant-hotel---Dismissal of appeal and review filed by SSGC against acceptance of such demand of hotel by Oil and Gas Regulatory Authority---Plea of SSGC was that applicant-hotel was not export-oriented industry; and that acceptance of its demand was violative of decision of Economic Coordination Committee of Federal Cabinet and Power Policies prohibiting supply of gas for power generation to Hotels lacking foreign investment of 500 million rupees or above-Validity--Applicant-hotel did not fulfil requirements for grant of gas connection for power generation---Power Policies announced by Government subsequent to rejection of applicant-hotel's demand by SSGC would not govern such matter---As no dispute existed regarding "regulated activity" as defined in S.2(xxxii) of Oil and Gas Regulatory Authority Ordinance, 2002, all proceedings before authority were irregular and without jurisdiction---High Court accepted constitutional petition with observations that applicant-hotel would be at liberty to make fresh application to Federal Government, which would decide same according to law and its policies.

District Magistrate, Lahore and another v. Syed Raza Kazim PLD 1961, SC 178 ref.

Asim Iqbal for Petitioner.

Khalid Mehmood Siddiqui for Respondent No.2.

Rasheed A. Rizvi for Respondent No.3.

P L D 2008 Karachi 410

Before Abdur Rehman Faruq Pirzada, J

ALI ASGHAR---Appellant

Versus

MAZHAR ASIM and 2 others-Respondents

Criminal Acquittal Appeal No.S-8 of 2008, heard on 22nd May, 2008.

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

---Ss. 417(2), 247, 249-A---Penal Code (XLV of 1860), Ss.161, 163, 167 & 408---Prevention of Corruption Act (II of 1947), S.5(2)---Appeal against acquittal---Respondents/accused persons having been acquitted under S.249-A, Cr.P.C., appeal against such acquittal had been filed by the complainant under S.417(2), Cr.P.C.---Trial Court in acquitting accused persons was influenced by the provision of S.247, Cr.P.C. dealing with non-appearance of complainant in the court on certain occasions---Case diaries and other evidence on record had shown that since filing of direct complaint complainant and prosecution witnesses attended the court on various dates of hearing---Complainant and prosecution witnesses attended the court on 44 dates of hearing out of total 46 dates of hearing since framing of charge---Subsequently complainant and prosecution witnesses were present, but case was adjourned on application of accused persons---Complainant was keen to proceed with the case and he approached High Court on two occasions---Examination-in-chief of complainant was recorded earlier and subsequently on some occasions complainant was present along with one witness, but case was adjourned on the ground that complainant had not brought all his witnesses, in the given circumstances, if the Trial Court felt that case was being adjourned unnecessarily, then the evidence of complainant along with said one witness ought to have been recorded---Trial Court had finally acquitted accused persons under S.249-A, Cr.P.C. mainly on the ground of non-appearance of prosecution witnesses---Impugned order was unwarranted by the facts as well as law as same was not within the ambit of law and justice, especially when the Trial Court had not made best efforts in granting sufficient time for procuring the prosecution witnesses including official witnesses---Impugned order of acquittal was set aside and case was remanded to the Trial Court for trial according to law.

1997 PCr.LJ 1626; Faiz Muhammad v. Abdur Raoof and others 1999 PCr.LJ 864; 2000 MLD 220; PLD 1970 SC 173; PLD 1964 SC 829; Muhammad Sharif v. Jamshed Ali and others PLD 1996 Lah. 471 and Nazir Muhammad v. Gawa and 3 others 1988 PCr.LJ 2309 ref.

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

----S. 247---Penal Code (XLV of 1860), Ss.467 & 468---Non­appearance of complainant---Effect---Offences under sections 467 & 468, P.P.C. being cognizable and non-compoundable, the provisions of S.247, Cr.P.C. could not be applicable in the case.

Nizamuddin Baloch along with Appellant/Complainant.

Haji Shamsuddin Rajper along with Respondents/accused.

Muhammad Mehmood Khan, S. Yousafi, Asstt. A.-G.

P L D 2008 Karachi 420

Before Khawaja Naveed Ahmed, J

ASHIQUE SOLANGI and another---Petitioners

Versus

THE STATE---Respondent

Criminal Revision No. S-51 of 2005, decided on 29th April, 2008.

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

----Ss. 452, 337-H(2), 506(2) & 148---Criminal Procedure Code (V of 1898), S.345-Compromise-Parties had compromised outside the Court in the case in which some offences were compoundable whereas other offences were not compoundable---If the main offence was compoundable and the parties had compromised, then the small offences should be treated as compromised though under the statute the same were not compoundable---Compromise having taken place between the parties outside the Court, it was not proper to uphold the conviction of accused, specially when the complainant did not want to pursue his case anymore---Accused were acquitted on the basis of compromise in circumstances.

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

----S. 345---Penal Code (XLV of 1860), Ss. 452, 337-H(2), 506(2) & 148---Compromise in cases where some offences are compoundable and some are not compoundable---Principle---Where parties have compromised and the main offence is compoundable, then the small offences should be treated as compromised, though under the statute those are not compoundable.

Inayatullah Morio for Petitioners.

Mushtaque Ahmed Abbasi, Asstt. A.-G. Sindh for Respondents.

Muhammad Saleem GN Jessar for the Complainant.

Date of hearing: 29th April, 2008.

P L D 2008 Karachi 421

Before Bin Yamin, J

NASIR NAWAB KHAN and another---Applicants

Versus

Mst. KAUSAR NAZ---Respondent

Criminal Revision Application No.29 of 2008, decided on 23rd May, 2008.

Illegal Dispossession Act (XI of 2005)---

---Ss. 3, 4 & 5---Illegal dispossession---Complainant had alleged that in her absence, her flat having been illegally occupied by accused/applicants, she filed application to the Trial Court under Illegal Dispossession Act, 2005---Trial Court took cognizance of the case, issued non-bailable warrant against applicants and had further ordered that complainant be put in possession of the flat in possession---Grievance of the counsel for applicants was that order of taking cognizance and subsequent order for putting complainant in possession of the flat in question was passed without affording them opportunity of being heard---Admitted position was that order of putting complainant in the premises in question was passed without affording opportunity to applicants of being heard---Nobody could be condemned unheard---In the present case as applicants were in possession of flat in question, they had the right to be heard by the Trial Court and thereafter appropriate order was required to be passed in the case---Order of taking possession from applicants and putting complainant in possession of the flat in question had been passed without hearing applicants, that portion of order was not maintainable---Said order was set aside by the High Court with the direction that Trial Court before passing any such order should provide opportunity of hearing to the applicants.

Abdur Rashid Khondkar v. Chandu Matbar and 15 others PLD 1964 SC 795; Peer Bakhsh v. The State 1979 PCr.LJ 24; Abdul Latif v. Bagga Khan and another PLD 1996 SC 152; Syed Manzoor Hussain Shah v. Syed Agha Hussain Naqvi and another 1983 SCMR 775; Messrs Ihsan Yousaf Textile (Pvt.) Ltd., Faisalabad v. Collector of Sales Tax (Adjudication), Faisalabad and 2 others 2003 PTD 1747; Muhammad Muslim and another v. Muhammad Iqbal and 2 others PLJ 2004 SC 2; Shah Nazar Khan and 6 others v. Goga Khan and 5 others 2005 YLR 3297; Capt. S.M. Aslam v. The State and 2 others PLD 2006 Kar. 221; Memoona Bano v. S.H.O., P.S. Al-Falah and others SBLR 2007 Sindh 1047 and Ashiq Hussain and another v. Athar Sher and 2 others 2008 PCr.LJ 719 ref.

Merajuddin Ensar for Applicants.

M.M. Tariq for Respondent.

Fazalur Rehman, State Counsel.

P L D 2008 Karachi 424

Before Bin Yamin, J

Miss SHAISTA SHAMS---Petitioner

Versus

Mst. SEEMA BEGUM through constituted Attorney and 2 others---Respondents

Constitutional Petition No.S-446 of 2007, decided on 11th June, 2008.

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

---S.15---Constitution of Pakistan (1973), Art, 199---Constitutional petition---Ejectment of tenant---Relationship of landlord and tenant---Agreement of sell---Tenant resisted ejectment petition on the ground of being owner of premises on the basis of execution of agreement to sell by landlord in her favour---Rent Controller allowed ejectment application and passed eviction order, which was maintained by Lower Appellate Court---Validity---After execution of sale agreement, no registered sale-deed was executed in favour of tenant by landlord, thus sale agreement , executed between both the parties had no legal value without registration of documents on the basis of sale agreement---Tenant admitted that she had not paid any rent to landlord since year, 1982---Unless and until registered sale-deed was executed between the parties, relationship of landlord and tenant existed between them---Tenant could not get benefit of sale agreement and 'avoid payment of rent---Orders passed by Rent Controller as well as by Lower Appellate Court were in accordance with the law and based on material available on record, hence both the orders did not require any interference by High Court---Petition was dismissed in circumstances.

Anis Ahmed v. Government of Pakistan and 3 others PLD Karachi 709; Haji Mohibullah & Co. and others v. Khawajabahuddin 1990 SCMR 1070; The Deputy Registrar, Cooperative Societies v. Mst. Zulekha and 4 others 1990 CLC 1003; Barkat Ali v. Muhammad Ehsan and another 2000 SCMR 556; Amina Nuzhat Babar v. Khan Sher 2002 CLC 1; Mushtaq Ahmad v. Mst. Ismat Faiz Khan PLD 2005 Karachi 521; Iqbal and 6 others v. Mst. Rabia Bibi and another PLD 1991 SC 242 and Haji Jumma Khan v. Haji Zarin Khan PLD 1999 SC 1101 ref.

Abdul Karim Siddiqui for Petitioner.

Ghulam Ali Khokhar for Respondent No.1.

P L D 2008 Karachi 429

Before Nadeem Azhar Siddiqi, J

SHELL PAKISTAN LTD. through Attorney---Plaintiff

Versus

AERO ASIA INTERNATIONAL (PVT.) LTD. through Chief Executive and another---Defendant

Suit No.1338 of 2007, decided on 12th June, 2008.

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

----S.34---Civil Procedure Code (V of 1908), O.XXXVII, R.I---Stay of proceedings---Recovery of money---Dishonoured cheque---Defendant sought stay of proceedings on the basis of arbitration agreement between both the parties---Validity---For deciding application under S.34 of Arbitration Act, 1940, the pleadings in the suit were to be considered---Cause of action pleaded in the plaint was based on dishonoured cheques which was an independent cause of action not related to dispute under arbitration clause in the agreement---Proceedings were not stayed in circumstances.

Messrs Shell Pakistan Ltd. v. Messrs Bhoja Air (Pvt.) Ltd. 2007 MLD 1424; Mst. Suriya Waseem Usman v. L&M Int. (Pvt.) Ltd. 2002 CLD 624 and Cotton Export Corporation of Pakistan v. Asif Cotton Ginners 1995 CLC 1024 ref.

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

---O.XXXVII, Rr.1 & 2---Negotiable Instruments Act (XXVI of 1881), Ss.79, 80 & 118(a)---Recovery of money---Negotiable instrument---Presumption---Scope---Suit was based on negotiable instruments/ dishonoured cheques and presumption would be that the same were issued against consideration unless rebutted by defendant.

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

----S.34, O.XXXVII, Rr.1 & 2---Negotiable Instruments Act (XXVI of 1881), Ss.79 & 80---Recovery of money---Dishonoured cheques---Amount of decree---Determination---Inclusion of interest in decree---Plaintiff sought recovery of his money on the basis of dishonoured cheques issued by defendants in favour of plaintiff---Despite service of process in the name of defendants, no body appeared on their behalf---Plaintiff sought decree for Rs.3,47,19,000 against defendant-company and Rs.20,00,000 against private defendant---Validity---From pleadings it appeared that amount of Rs.20,00,000 was included in the sum of Rs.3,47,19,000 as private defendant had issued cheque on behalf of defendant company as personal guarantee---High Court decreed the suit of plaintiff only in the sum of Rs.3,47,19,000 against both the defendants jointly and severally but liability of private defendant would not exceed Rs.20 million in any case, with interest at the rate of 6% per annum in accordance with Ss.79 and.80 of Negotiable Instruments Act, 1881, from the date of filing of suit till the date of decree---High Court also included interest in the decree at the rate of 10% per annum from the date of decree to the date of payment in accordance with S.34, C.P.C.---Suit was decreed accordingly.

Naeem Iqbal v. Mst. Zarina 1996 SCMR 1530; Ahmed Autos v. Allied Bank of Pakistan PLD 1990 SC 497 and Mian Muhammad Amjad Amin v. Rana Bashir Ahmed 2004 MLD 988 ref.

Khalid Jawaid Khan and Noman Jamali for Plaintiff.

Nemo for Defendant.

Date of hearing: 15th May, 2008.

P L D 2008 Karachi 435

Before Azizullah M. Memon and Arshad Noor Khan, JJ

NATIONAL BANK OF PAKISTAN---Appellant

Versus

Messrs FARRUKH CORPORATION through Legal Heirs and others---Respondents

High Court Appeal No.220 of 1989, decided on 30th May, 2008.

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

----O. VII, R. 2---Law Reforms Ordinance (XII of 1972), S.3---High Court Appeal---Money suit---Recovery---Joint liability---Proof---Suit was filed by plaintiff bank against his borrower and godown owner with whom stock of the borrower were pledged---Borrower committed default of the loan and bank auctioned stocks of the borrower---Grievance of bank was that owner of godown failed to deliver full quantity of stocks pledged with him, therefore, bank suffered loss which was sought to be recovered from the' borrower as well as from the owner of the godown jointly---Trial Court decreed the suit in favour of bank against the borrower only---Plea raised by bank was that both the defendants were jointly responsible for the loss caused to the bank, therefore, suit should have. been decreed against both the defendants jointly---Validity---Trial Court did not appraise the evidence in its true perspective and wrongly found that there was no privity of contract between plaintiff bank and owner of the godown---If there was no privity of contract between plaintiff bank and owner of godown, the owner could not be absolved from the' responsibility of keeping of particular quantity of the stock at his godown and its return in the manner in which it was kept in his godown to the bank or its nominee---If any shortfall had occurred, the owner of godown was responsible for such shortfall and was liable to pay the loss and damages caused to the stock kept by him in his godown---Owner of godown could not be let free in case of any loss or shortfall of the stock kept in his godown---Owner of godown was liable to pay the losses incurred because of his negligence to the stock kept by him at his godown,.--Trial Court was not justified in absolving owner of godown from such responsibility---High Court modified the judgment and decree passed by Trial Court and suit was also decreed against owner of godown---Intra-Court Appeal was allowed accordingly.

Mansoor-ul-Arfin for Appellant.

Nemo for the Respondents.

Date of hearing: 13th May, 2005.

P L D 2008 Karachi 443

Before Khalid Ali Z. Qazi, J

ABDUL GHANI and others---Plaintiffs

Versus

ABDUL RASHID and others---Defendants

Suit No.1273 of 2002, decided on 23rd June, 2008.

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

----Ss. 43, 44 & 46---Civil Procedure Code (V of 1908), O.XL, R.I---Suit for dissolution of partnership and rendition of accounts--Partnership firm was engaged in developing of Housing Scheme---Nazir of the Court appointed to prepare report about the accounts and assets of the partnership concern, submitted that in spite of repeatedly asking the defendants to produce the accounts of the firm, no such accounts and layout plan of the Scheme were produced, as such, it was not possible for the Nazir to prepare the accounts of partnership---Record showed that the defendants admitted in their written statement and affidavit-in-­evidence and cross-examination that they were conducting the affairs of partnership business as managing partners but in spite of that admission and the direction of the Court they failed to tender accounts to the plaintiffs and in spite of directions .of the Court they, as managing partners, failed to provide and submit accounts of the partnership firm, bank statements, approved plan, allotment 'orders of the plots in the Housing Scheme and monies received from the allottees of the plots and all the accounts in respect of partnership firm but the managing partner fraudulently, mala fide and dishonestly failed to produce all such accounts and documents---High Court, in circumstances, ordered the office to prepare final decree in terms of O.XX, R.13, C.P.C. and appointed the Nazir as Receiver as well as Commissioner to take over the business and all the assets of the partnership firm moveable or immovable and recover from the defendants including unutilized land of the Housing Scheme (Partnership business) and after taking over all the assets and properties of the partnership firm, he was further directed to sell the same through public auction on `as is where is' basis and to distribute the sale proceeds amongst the partners in accordance with their respective shares.

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

----S.30---Admission of minor in partnership---Scope---Minor may be a partner in a firm with the consent of all the partners for the time being and he may be admitted to the benefits of the partnership.

PLD 1955 Lah. 350 ref

(c) Administration of justice---

----Technicalities not to create hurdles in way of substantial justice---Principles.

Cases of parties should be decided on merits. If a party upon evidence brought on record, has established his case on merits, then such party should not be knocked out on technical grounds. The technicalities should not create hurdles in the way of substantial justice. Mere technicalities, unless offering insurmountable hurdles, should not be allowed to defeat the ends of justice.

Nasir Hamid Qureshi v. Abbasi Begum 2003 SCMR 1553 rel.

Mubarak Ahmed for Plaintiffs.

Syed Asfaq Hussain Rizvi for Defendants.

Dates of hearing: 20th November, 5th December, 2007 and 15th January, 2008.

P L D 2008 Karachi 458

Before Khalid Ali Z. Qazi, J

RASES GHULAM SARWAR through Attorney---Plaintiff

Versus

MANSOOR SADIQ ZAIDI and 4 others---Defendants

Suit No.164 of 2007 and C.M.As. Nos.4708, 8186, 1216 of 2007, decided on 29th May, 2008.

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

----O. VII, R.11---Rejection of plaint in piecemeal---Scope---Plaint could not be rejected in piecemeal---Where even one prayer was maintainable, plaint could not be rejected under O. V11, R.11, C.P.C.

Younus Textile Mills v. Muhammad Fazal Tayyab 2004 MLD 1081 rel.

(b) Defamation Ordinance (LVI of 2002)---

----Ss. 3, 4, 9 & 13---Civil Procedure Cede (V of 1908), S.9---Libel, suit for damages---Jurisdiction of civil court---Scope---Jurisdiction of civil court to entertain such suit under general law (i.e. S.9, C.P.C.) not specifically ousted by Defamation Ordinance, 2002---Jurisdiction of civil court under S.9, C.P.C. and that of District Judge under Defamation Ordinance, 2002 to entertain such suit was concurrent---Open to plaintiff to choose either to pursue statutory remedy under Defamation Ordinance, 2002 or general law remedy, under S.9, C.P.C.---When plaintiff once opted to pursue general law remedy under S.9, C.P.C. then his statutory remedy under Defamation Ordinance, 2002 would be completely barred and vice versa---Principles.

M. Moosa v. Mahomed and others PLD 1959 Kar. 378; M. Moosa v. Mahomed and others PLD 1968 SC 25; Government of Punjab v. Mst. Kamina 1990 CLC 404; Ghulam Ali v. Abdul Hafiz PLD 1962 Lah. 765; Adeeb Javedani v. Yahya Bakhtiar 1995 CLC 1246; Capt. Benaras Khan v. Commodore Akhtar Hanif and another 1988 CLC 1093; Syed Mehmood Ali v. Network Television Marketing (Pvt.) Ltd. and another PLD 2005 Kar. 399; Major (Retd.) Tanvir Hussin Shah v. Government of the Punjab and others 1989 MLD 1086 and Mohiuddin Ansari and another v. Muhammad Arif Siddiqui 1989 MLD 3875; Wolverhampton New Water Works Company v. Hawkesford 1859) 37 LJ 248; Mian Sultan Ali Nanghiana v. Mian Nur Hussain PLD 1949 Lah. 301; Tanveer Jamshed v. Raja Ghulam Haider 1992 SCMR 917 and Mst. Fehmida Begum v. Muhammad Khalid 1992 SCMR 1908 rel.

Shafqat-ur-Rehman v. Daud-ur-Rehman PLD 2006 Pesh. 206 not fol.

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

----S. 9---Enforcement of legal right recognized in general law or created by special law---Remedy under special or general law, availability of--Principles.

In the first category are the cases, where a legal right is already recognized in common or general law, which is later codified through statute and such statute also provides a remedy. In such cases, unless there is an ouster clause barring jurisdiction of civil courts, both the remedies under the general and special laws would be available, subject to the doctrine of election i.e. the plaintiff/applicant will have to choose as to whether he would pursue the remedy under special or general law; in the second category of cases, the legal right itself is created by the statute, but no remedy is provided under the codified law. In such cases, the statutory right will be enforceable by the procedure given under the general law.

Wolverhampton New Water Works Company v. Hawkesford (1859) 37 LJ 248; Mian Sultan Ali Nanghiana v. Mian Nur Hussain PLD 1949 Lah. 301; H.H. Ahmed v. Pakistan PLD 1972 Kar. 366; Pakistan v. H.H. Ahmed 1971 SCMR 626; United Bank Ltd. v. Messrs Akbar Agencies Ltd. PLD 1987 Kar. 81 and, West Punjab Government v. Pindi Jhelum Valley Transport Ltd. PLD 1953 Lah. 339 rel.

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

----Arts. 19, 15, 16 & 17---Defamation Ordinance (LVI of 2002), Ss.5 & 2---Defamatory publication---Freedoms envisaged in Arts 15, 16, 17 and 19 of the Constitution are not absolute, but subject to reasonable restrictions---Fundamental duty of every 1ropagator, printer and publisher would be to establish that whatever they published was based upon truth---Principles.

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

---Ss. 5 & 2---Civil Procedure Code (V of 1908), O. XXXIX, Rr.1 & 2---Defamatory publication---Grant of temporary injunction against such publication---Scope---Courts though not debarred from granting such injunction, but would be reluctant to grant the same-Where publication was apparently untrue or caused with an attempt to blackmail the plaintiff, then such injunction would be granted---Principles.

Puri Terminal Ltd. v. Government of Pakistan 2004 SCMR 1092 ref.

Majid Nizami v. Sheikh Muhammad Rashid PLD 1996 Lah. 410; Sultan Ali Lakhani v. Mir Shakeelur Rehman PLD 1997 Kar. 41; Quarz Hill v. Beall (1882) 20 Ch. D 501; Bonnard v. Perryman (1891) 2 Ch. 269; Harishankar v. Kailash Narain 1981 MPLJ 589; Ratanlal and Dhirajlal on the Law of Torts by Justice G.P. Singh, 24th Edn., P.307 & 308 and Mehrotra's Commentary on the Law of Defamation, Damages and Malicius Prosecution by G.S. Kalra, 5th Edn., p.89 rel.

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

----O. XXXIX, Rr. 1 & 2---Defamation Ordinance (LVI of 2002), Ss.5 & 2---Defamatory publication---Temporary injunction, grant of ---Denial of plaintiff's plea by defendant---Pleadings of parties and documents on record not making out a case against defendant---Effect---Such being a case of "word against word" was wanting in evidence---Where prima facie case could not be established without recording evidence, court would refrain from granting such injunction---Where court could not draw any inference from pleadings of parties, then no injunction could be issued---Temporary injunction was refused in circumstances.

Mashkoor Khan v. Province of Sindh 1971 SCMR 572; Fazal Din v. Rubina Aurangzaib 1983 CLC 1280 and Balagamwala Oil Mills v. Shakarchi Trading 1991 CLD 2071 rel.

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

----O. XXXIX, Rr. 1 & 2---Defamation Ordinance (LVI of 2002), Ss. 5 & 2---Defamatory publication---Temporary injunction, grant of---Establishment of prima facie case required recording of evidence---Effect---Court would not grant injunction in such case.

Fazal Din v. Rubina Aurangzaib 1983 CLC 1280 rel.

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

----O. XXXIX, Rr. 1 & 2---Defamation Ordinance (LVI of 2002), Ss.5 & 2---Defamatory publication---Temporary injunction, grant of---quantification of damages by plaintiff---Effect---Such quantification would disentitle plaintiff to seek injunction---Where prayer for damages was made in alternative, then plaintiff, despite quantification of damages, could obtain injunction---Illustration.

Tahir Zaman v. Jin WEI SBLR 2004 Sindh 222 rel.

(i) Constitution of Pakistan 1973)---

----Art. 204---Contempt of Court Ordinance (IV of 2003), S.3---Defamation Ordinance (LVI of 2002), Ss.5 & 2---Defamatory publication---Contempt of court application for---Order of court restraining defendant from. publishing any adverse report against plaintiff---Plaintiff alleged distribution of defamatory pamphlets against him, which fact was denied by defendant in counter-affidavit---Validity---Such being a case of "word against word"---Plaintiff had failed to establish a prima case as there was nothing on record to show that defendant had violated such order of court---Such application was dismissed in circumstances.

Syed Saeeduddin Nasir for Plaintiff.

Muhammad Khalid for Defendants.

P L D 2008 Karachi 470

Before Arshad Noor Khan, J

ABDUL SALAM JATOI---Petitioner

Versus

ANWAR HUSSAIN and 8 others---Respondents

J.M.A.No.76 of 2005 in Civil Suit No.1241 of 2003, decided on 19th June, 2008.

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

----S. 12(2) & O.XXIII, R.3---Specific Relief Act (I of 1877), Ss.12, 39, 42 & 53---Suit for specific performance of agreement, declaration, cancellation of document, injunction and damages---Consent decree---Application under S.12(2), C.P.C. alleging that decree was obtained by misrepresentation and fraud by respondent as the applicant was put under threats for obtaining his signatures on the compromise application, as such, the consent decree was not free and binding on him---Validity---Application under S.12(2), C.P.C. was filed after one year and ten months from the date of passing of the consent decree---In case any misrepresentation was made by the respondent or any fraud was practised it was not shown as to what were the circumstances which compelled him to remain silent for such a long period from the date of passing of the decree---Application was completely silent to show that what type of the influence had been practised by respondent to compel him to sign the compromise application-Held, for the purpose of consideration of the application under S.12(2), C.P.C., the applicant was required to set forth each and every detail of allegations which according to him were necessary to establish the case of setting aside a consent decree but he failed to do so---Application being meritless was dismissed in circumstances---Principles.

Abdul Aziz Khan Niazi and others v. Mrs. Salama Rahman and another 1992 CLC 777; Muhammad Qasim v. Abdul Karim 1993 MLD 1617, Lal Din v. Muhammad Ibrahim 1993 SCMR 710; Muhammad Akram v. Dr. Ghulam Rabbani and others PLD 2006 SC 773 and Mobina Begum v. The Joint Secretary Ministry of Religious and Minority Affairs, Government of Pakistan, Islamabad and 2 others (sic) distinguished.

Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others 2003 SCMR 1050; Water and Power Development Authority through Chairman and 5 others v. Messrs Sea Gold Traders 2002 MLD 19 and the Commanding Officer, National Logistic Cell and another v. Raza Enterprises and others 2003 CLC 719 ref.

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

----O. XXIII, R.3---Compromise decree---Status quo in any way does not prohibit the parties to the litigation to enter into compromise during the pendency of the Rs---Order XXIII, R.3, C.P.C. speeks about compromise of the dispute between the parties at any stage of the proceedings even before the Appellate Court.

Shahab Sark for Petitioner.

Abdul Wajid Wyne for Respondent No.1.

Nemo for the Remaining Respondents.

P L D 2008 Karachi 477

Before Khawaja Naveed Ahmad, J

MUHAMMAD ANWAR ANSARI---Petitioner

Versus

Mst. NAZIA SHAMIM and 2 others--Respondents

Constitutional Petition No.S-235 and C.M.A. No.1814 of 2007, decided on 15th May, 2008.

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

----S. 5, Sched., & S.12-A---Suit for maintenance of children, divorce/Khula' and recovery of dowry articles---Trial and decision of such cases on priority basis---Method emphasized by High Court to be adopted by Family Courts.

The cases pertaining to the maintenance of children, Khula'/divorce as well as return of dowry articles should be tried and decided on priority basis: If possible, the trial Court should fix these cases every week and should see that on each date of hearing some progress is made in the case and in case progress is not made, the party who created hurdles in progress of the matter should be asked to pay the costs, for that particular day for delaying the matter. In our society, there are certain persons, who make the lives of their ex-wives and children miserable by showing arrogance and indifferent behavior towards them. These people when sit in their private gatherings, express their sentiments by uttering tall words meaning thereby that they are above the law and they will ruin the lives of their ex-wives and will teach lesson to their ex-in-laws. The Judges of Trial Court should be vigilant about such arrogant and ruthless persons, who are trying to make their wives run in the Court even five years after the divorce just to collect their own dowry articles, which their parents had given to them from their hard earned money. In spite of the fact that amendment in the West Pakistan Family Courts Act, 1964 has been made in the year, 2002, which bound the courts to dispose of such matters within six months, the courts below have not taken any serious steps to follow the law in respect of expeditious disposal of family cases. High Court expressed displeasure over delay caused in disposal of family cases.

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

----Ss. 12-A & 13---Execution proceedings; expeditious disposal of---Method---High Court emphasized on Family Courts to fix such proceedings on weekly basis and try to dispose of same within one month from date of its filing.

Mehmood Hassan for Respondent No.1.

P L D 2008 Karachi 480

Before Munib Ahmed Khan, J

SHAFI MUHAMMAD---Applicant

Versus

THE STATE and others---Respondents

Criminal Revision Applications Nos.S-113, S-114 and M.As. Nos.1054 and 2117 of 2008, decided on 10th June, 2008.

Illegal Dispossession Act (XI of 2005)---

----S. 3---Qanun-e-Shahadat (10 of 1984), Art.111---Respondent had claimed both the plots in dispute through a registered sale-deed which was about 30 years old and until disproved had to be admitted as correct under Qanune-e-Shahadat, 1984---Both the orders of Revenue Authorities were in favour of the respondent, while Board of Revenue had directed status quo in the matter---Possession of the said plots being in dispute, respondent had approached the Sessions Court under S.3 of the Illegal Dispossession Act, 2005 and the issue had been decided in his favour---Contention of petitioner on the other hand regarding the said plots was based on a sale agreement dated 21-1-2000 which was neither a registered document nor mode of payment had been mentioned therein---Inspection at site confirmed the contention of respondent that the possession of the plots had been taken by the petitioner---Entitlement of either of the parties could be decided by the Court seized of the matter under Illegal Dispossession Act, 2005---Apparently the lease deed of 1977 in favour of respondent was a registered document and under Article 111 of Qanun-e-Shahadat, 1984, Court had to take its judicial notice and would give weight to it until it is disproved---Claim of petitioner in respect of same plots but under different numbers had also created doubts which could only be removed by strong supportive documents in his favour---Illegal Dispossession Act, 2005 had been promulgated to facilitate general public and to take to task the notorious persons and land grabbers and keeping in view the intention of Legislature as well as indulgence of land grabbers so frequently in land grabbing, law has to be applied retrospectively---Act of illegal dispossession would remain in continuity until remedied, therefore a person taking possession illegally could not be allowed to save himself on technical pleas---Impugned order passed by Sessions Court in favour of respondent was upheld in circumstances.

Criminal Revision Application No.S-24 of 2007 and PLD 2007 SC 427 ref.

Muhammad Azeem Panhwar for Applicant.

Sher Muhammad Leghari for Respondent No.2.

Mumtaz Alam Leghari Asstt. A.-G. Sindh for the State.

P L D 2008 Karachi 483

Before Khawaja Naveed Ahmed, J

MUHAMMAD RAMZAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.385 of 2008, decided on 3rd July, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.337-A(i), 337-H(ii), 147, 148 & 149---Bail, grant of--Further inquiry---Contention of the State Counsel was that as only accused had been arrested while all co-accused were at large, if accused was granted bail he would also disappear---Contention was repelled as liberty of one accused could not be withheld in order to procure the arrest/surrender of co-accused who were at large---Entire dispute between parties was of matrimonial in nature, which resulted into death of one lady---Allegation against accused was of a general nature; no injury to deceased had been attributed to accused, whose age was about 70 years---Accused was nominated in the case only because he was head of the family---Case required further inquiry under S.497(2), Cr.P.C. into the guilt of accused and during pendency of inquiry, accused was entitled to grant of bail---Accused was granted bail in circumstances.

Yaroo v. The State 2004 SCMR 864; Mehmood Akhtar and another v. Haji Nazir Ahmad and 4 others 1995 SCMR 310; Wakeel Hassan v. The State 1976 SCMR 159; Muhammad Aslam alias Photo v. The State 2001 PCr.LJ 1349 and Janib Chandio v. State 1997 MLD 1691 ref.

Ali Nawaz Dehraj for Applicant.

Muhammad Bux Awan for the State.

P L D 2008 Karachi 487

Before Dr. Rana Muhammad Shamim and Ghulam Dastagir A. Shahani, JJ

HUZOOR BUX---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No.20 of 2008, decided on 1st July, 2008.

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

---Ss. 365-A/392/353/324/337-A(i)---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Criminal Procedure Code (V of 1898), Ss.435/439---Constitution of Pakistan (1973), Art.199---Facts of the ease did not provide any suitable and appropriate circumstance for exercise of powers as required under Ss.435 and 439, Cr.P.C. and, as such, Revision Application was not maintainable, though the same could be converted into a constitutional petition---Anti-Terrorism Court vide impugned order had dismissed the application of accused for transfer of the case to an ordinary Sessions Court---Validity---For determining he issue whether the offence was triable under the Anti-Terrorism Act, 1997, or not nature of the offence had to be seen in the light of the averments that how the same had been committed along with the particular place of incident and the time and further that' by that act a sense of fear and insecurity in the society had been created in the minds of the people at large or not---Incident in the present case had taken place at odd hours of the night near a graveyard---Complainant was neither going to be kidnapped for the particular purpose of ransom, nor any demand for ransom had been made so far---Some cash and a Mobile phone were allegedly robbed from the complainant---Prima facie, case against accused was of abduction falling under S.365, P.P.C.---Matter, thus, did not fall within the ambit of S.6 punishable under S.7 of the Anti-Terrorism Act, 1997, and the same was not triable by the Anti-Terrorism Court---Revision petition was consequently converted into a constitutional petition in the interest of justice and impugned order was set aside with the direction to Anti-Terrorism Court to transfer the case to the ordinary Sessions Court for trial in accordance with law---Petition was allowed accordingly.

Syed Hussain Abbass v. The State Criminal Appeal No.257 of 2000; Asghar v. The State Criminal Revision Application Np.D-44/2004; Tariq Ali v. The State Criminal Revision Application No.74 of 2004; Taha v. The State 2000 PCr.LJ 1322; Muhammad Sabir Roshan v. The State 2000 PCr.LJ 1195; The State v. Muhammad Shafiq PLD 2003 SC 224; Jahangir Akhtar Awan and 2 others PLD 2000 Karachi 89 and Mst. Raheela Nasreen v. The State 2002 SCMR 908 ref.

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

----S. 6---"Terrorist act"---Meaning and object---"Terrorism" is to be determined from the criminal act designed to create a sense of fear or insecurity in the minds of the general public disturbing even tempo of life and tranquillity of the society---Other ordinary crimes are not to be dealt under the Anti-Terrorism Act, 1997---Physical harm to the victim is not the sole criterion to determine the question of terrorism, as motive should be the key word or the objective of the act---When an offence is committed without the background of any enmity and manner and method of the commission of the offence is such that the public at large individually and collectively feel apprehension that any one of them can at any time be subjected to similar act of brutality, disturbing the physical and mental peace and tranquillity of the people, giving impression' that the writ of the Government has been rendered ineffective, with the result that nobody is safe in pursuing ordinary pursuits of life, then such act certainly amounts to an act of "terrorism" as defined in S.6 of the Anti-Terrorism Act, 1997.

The State v. Muhammad Shafiq PLD 2003 SC 224; Jahangir Akhtar Awan and 2 others PLD 2000 Karachi 89 and Mst. Raheela Nasreen v. The State 2002 SCMR 908 rel.

Nazar Akber for Applicant.

Masood A. Noorani, Addl. A.-G. for the State.

Date of hearing: 6th June, 2008.

P L D 2008 Karachi 492

Before Khalid Ali Z. Qazi, J

THE STATE---Petitioner

Versus

MUHAMMAD AYOOB---Respondent

Criminal Suo Motu Revision No.79 of 2002, decided on 23rd June, 2008.

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

----S. 497---Bail, grant of---Powers of Magistrate---Magistrate cannot grant bail unless the matter falls under one of the following categories viz., (i) if the person seeking bail has been placed under actual custody; or (ii) he appears in answer to a process issued by the Court; or (iii) he is brought before the Court by the police or by some other arresting authority---There is no legal concept of a "judicial custody" by way of a voluntary surrender before the Court---Unless and until the accused is under actual restraint or custody by the police or other law enforcing authorities/agencies, he cannot be construed to be in "custody".

Muhammad Sharif v. The State 1979 PCr.LJ Note 7 page 5: Muhammad Saeed v. The State 1980 PCr.LJ 17; Hidayat ullah Khan v. The Crown PLD 1949 Lah. 21; The Crown v. Khsuhi Muhammad PLD 1953 FC 170; Sadiq Ali .v. The State PLD 1966 SC 589; Muhammad Ayub v. Muhammad Yaqoob PLD 1966 SC 1003; Juma Khan v. The State PLD 1960 Pesh. 25; Hakim Ali Zardari v. The State PLD 1998 SC 1; Wajid Ali v. The State 1983 PCr.LJ 183; Raza Muhammad v. The State 1995 PCr.LJ 1190 and Taj Muhammad v. The State PLD 1976 Pesh. 112 ref.

(b) Judicial custody--

----Connotation---There is no legal concept of a "judicial custody by way of a voluntary surrender before the Court---Unless and until the accused is under actual restraint or custody by the police or other law enforcing authorities/agencies,' he cannot be construed to be in "custody".

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

----S. 497(5)-Penal Code (XLV of 1860), Ss.471/468/420---Cancellation of pre-arrest bail granted by Judicial Magistrate, refusal of---Accused had surrendered himself before the Judicial Magistrate who vide impugned order had admitted him to bail---Validity---Held, the order of the Judicial Magistrate admitting the accused to bail was not in consonance with law, since in essence the Magistrate had granted bail before arrest to him, when he had no such power---There was no concept of a "judicial custody" by way of 'a voluntary surrender before the Court---Unless and until the accused was under actual restraint or custody by the police or other law enforcing agencies, he could not be construed to be in "custody"---However, the case was not fit to cancel the bail granted to accused at such a belated stage for the very simple reason that on account of the Record and Proceedings having been consigned to High Court, the trial had been delayed by 6/7 years, for which the accused could not be attributed any blame---Even the Prosecutor-General had conceded that cancellation of bail at such a belated stage would cause undue hardship to the accused---Accused had been appearing on every date before High Court---Bail allowed to accused was not cancelled in circumstances.

Muhammad Sharif v. The State 1979 PCr.LJ Note 7 page 5; Muhammad Saeed v. The State 1980 PCr.LJ 17; Hidayat ullah Khan v. The Crown PLD 1949 Lah. 21; The Crown v. Khsuhi Muhammad PLD 1953 FC 170; Sadiq Ali v. The State PLD 1966 SC 589; Muhammad Ayub v. Muhammad Yaqoob PLD 1966 SC 1003; Juma Khan v. The State PLD 1960 Pesh. 25; Hakim Ali Zardari v. The State PLD 1998 SC 1; Wajid Ali v. The State 1983 PCr.LJ 183; Raza Muhammad v. The State 1995 PCr.LJ 1190 and Taj Muhammad v. The State PLD 1976 Pesh. 112 ref.

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

---Ss. 497/498---Pre-arrest bail---Magistrate is not empowered to grant bail before arrest---Caveat on the legal plane added by High Court ,to take measures and precautions in respect of such powers of Magistrate after elucidating the concept enshrined in the settled law.

Muhammad Sharif v. The State 1979 PCr.LJ Note 7 page 5; Muhammad Saeed v. The State 1980 PCr.LJ 17; Wajid Ali v. The State 1983 PCr.LJ 183; Raza Muhammad v. The State 1995 PCr.LJ 1190 and Taj Muhammad v. The State PLD 1976 Pesh. 112 ref.

Shahaddat Awan, Prosecutor-General and Amicus Curaie for the State.

F. Karim Durrani for Respondent.

Date of hearing: 23rd June, 2008.

P L D 2008 Karachi 499

Before Khawaja Naveed Ahmad, J

SAAD AMANULLAH KHAN---Petitioner

Versus

IVTH-SENIOR CIVIL JUDGE, (SOUTH), KARACHI and 3 others---Respondents

C.P. No.S-279 of 2008, decided on 29th July, 2008.

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

----Arts. 199 & 187---Constitutional petition---Maintainability---Order of Supreme Court---Implementation---Scope---Petition under Art.199 of the Constitution seeking implementation of order of Supreme Court is maintainable.

Khushi Muhammad v. I.-G. Police 1999 SCMR 2868 and Umer Gul v. GOS 2007 YLR 3191 rel.

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

----S. 25---Custody of minor---Visitation right---Scope---Law favour right of visitation of a parent to remain intact even if custody is awarded to the other parent.

Nemat Ullah Qureshi v. Mst. Bilqis Sitara PLD 1973 Lah. 442; Mrs. Parveen v. Kh. Muhammad Ashar PLD 1975 Lah. 334; Ghulam Sakina v. Ghulam Abas PLD 1978 Lah. 1389; Sardar Hussain v. Mst. Parveen Umer PLD 2004 SC 357 and Mst. Nighat Firdous v. Khadim Hussain 1998 SCMR 1593 rel.

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

---S. 25---Custody of minor---Statement of ward---Principle---Where children had remained under complete supervision of mother and maternal parents/relatives to the complete exclusion of father and his part of family for the last 8 to 9 years, statements of such children were a result of tutoring and brain washing---Statements of such children could not be accepted in circumstances.

Javed Akhtar v. Nasreen Akhtar 2006 YLR 2215 and Mukhtar Ahmad Khan v. Mst. Aziza Begum PLD 1975 Lah. 86 rel.

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

----S. 25---Constitution of Pakistan (1973), Arts.199 & 187---Constitutional petition---Custody of minor children---Welfare of minor---Decision of Supreme Court---Implementation---Matter between the parties with regard to custody of minor children was finally decided by Supreme Court on the basis of a compromise filed by the parties---According to the compromise,. custody of minors was handed over to their mother while their father was given a right of visitation---Grievance of father of minors was that mother of minors was not complying with the decision of Supreme Court---Validity---In long legal battle with allegations and counter allegations both father and mother had lost sight of the fact that in ultimate result, the losers were children as their welfare was in the fact that both the parents should have an effective say in upbringing and children should be attached to both the parents---High Court appointed Deputy Registrar (Judicial) with the task to see implementation of the order in letter and spirit and either party might approach the official for its implementation---High Court permitted the official so appointed to seek police aid in case the same would be required to get the order implemented---High Court warned the parties concerned that nothing should be done to disobey the order and all efforts should be employed to implement the same in letter and spirit failing which High Court would adopt effective measures---High Court further directed Deputy Registrar (judicial) to take such steps to create an environment whereby children would be enabled to meet their parents smoothly---Petition was disposed of accordingly.

Syed Maqsood Ali v. Sofia 'Naushaba 1986 SCMR 427; Mst. Hameed Mai v. Irshad Hussian PLD 2002 SC 267; Zainab Bibi v. Rehmat Ali 1994 MLD 1098; Tassadiq Hussian Shah v. Surraya Begum1980 CLC 1802; Nazir Ahmad v. Additional District Judge, III, Sahiwal 1988 SCMR 1359; Farah Waqar v. Waqar Ahmad Khan 2000 YLR 3046; Barkat Bibi v. Zahida Parveen 2003 YLR 1105; Kaniz v. Noor Muhammad 1991 CLC Note 148; Surraya Begum v. Tassadiq Hussain Shah 1980 CLC 1955; 2007 MLD 658 and 1988 CLC 2196 ref.

Syed Maqsood Ali v. Sofia Naushaba 1986 SCMR 426 fol.

Dr. Muhammad Farogh Naseem for Petitioner.

Nemo for Respondent No.1.

Haider Waheed for Respondents Nos. 2, 3 and 4.

Wards Sarah Saeed Amanullah and Ameen Saad Amanullah (present in person).

Date of hearing: 15th July, 2008.

P L D 2008 Karachi 516

Before Nadeem Azhar Siddiqi, J

ABDUL QADIR and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.S-218 of 2003 and M.A. No.417, decided on 7th .July, 2008.

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

----S. 426---Application for suspension of sentence, pending appeal---Appeal was pending since 2003, paper book had been prepared, but case could not be listed for regular hearing due to heavy pendency of cases---Every litigant had a right that his case should be decided without loss of time---Arguments advanced by the counsel for accused went to the root of the case, which could only be appreciated at the time of hearing of appeal when the entire evidence available on record would be thrashed out---While hearing an application under S.426, Cr.P.C., deeper appreciation of evidence was not required---Application for suspension of sentence was disposed of with direction to office to fix the matter for regular hearing within specified period.

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

----Ss. 426 & 497---Granting bail pending appeals in offences falling under the prohibitory clause of S.497, Cr.P.C.---Bail, pending appeals in the offences falling under the prohibitory clause, could not be granted, unless it was shown that conviction was based on no evidence or inadmissible evidence and was not ultimately sustainable---Grant of bail without considering or ascertaining question. of guilt or innocence on merits through appraisal of evidence, was not justified.

Muhammad Saleem v. The State PLD 2006 SC 483 rel.

Aijaz Ahmed Awan for Appellant.

Mashooq A. Samoo, Asstt. A.-G. for the State.

P L D 2008 Karachi 518

Before Munib Ahmed Khan, J

NABI BUX and 6 others---Applicants

Versus

GHULAM MUHAMMAD and others---Respondents

Criminal Revision No.99 and M.A. No.2623 of 2007, decided on.24th June, 2008.

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

----Preamble & S.5---"Illegal dispossession"---Import, object and scope---Duration of. trial---Certain reliefs have been provided against menace of illegal activities of land grabbers---As crime of illegal dispossession is assuming alarming position, therefore, Illegal Dispossession Act, 2005, authorizes Trial Court to proceed summarily---Short limit of time for every stage of proceedings has been provided under S.5 of Illegal Dispossession Act, 2005.

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

----Ss. 5 & 9---Illegal dispossession---Restoration---Procedure--Plea of agreement to sell---Complaint of illegal dispossession was filed by respondent against accused persons---Complainant had relied upon registered documents and Revenue Record in his favour whereas accused contested the complaint on the basis of agreement to sell executed in their favour---Trial Court allowed the petition and possession was restored to complainant---Plea raised by accused was that Trial Court should have dealt with the complaint as a civil suit to ascertain truth of factual position---Validity---Although no specific procedure or way of investigation was provided in Illegal Dispossession Act, 2005, yet it had directed the court to proceed from day to day to decide case within 60 days---High Court advised that normal procedure provided for other type of criminal cases should not be forced upon the court trying offences under Illegal. Dispossession Act, 2005---Procedure under S.9 of Illegal Dispossession Act, 2005, could be applied only in respect to issuance of notices, issuance of warrant, recording conviction and commit offender to prison etc. but it could not be 'stretched to the extent that abnormal delay should result and the very purpose of the Act should fail---When agreement to sell had come in conflict with registered documents, the same had lost its sanctity---Accused had no locus standi to stand on, therefore, their defence was rightly rejected by Trial Court---High Court in exercise of revisional jurisdiction declined to interfere with the judgment passed by Trial Court---Revision was dismissed in circumstances.

2008 YLR 1044 ref.

Abdul Qadir Shaikh for Applicants.

Manzoor Ahmed M. Junejo for Respondents.

Liaquat Ali Shar, Addl.A.-G.

P L D 2008 Karachi 522

Before Khawaja Naveed Ahmed, J

IMTIAZ JAWED---Applicant

Versus

THE STATE---Respondent

Criminal Bail -Application No.576 of 2007, decided on 9th January, 2008.

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

----S. 497(1), first proviso---Bail on medical ground---Criterion---Correct criterion for grant of bail to an accused in a non-bailable case on medical ground is that the sickness or ailment with which, the accused is suffering is such that it cannot be properly treated within the jail premises and that some specialized treatment is needed and his continued detention in jail is likely to affect his capacity or is hazardous to his life.

Manzoor Ahmad Watto v. State 2000 SCMR 107 ref.

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

----S. 497(1), first proviso---Bail on medical ground---Principles---For releasing an accused on bail on medical ground there must exist strong reason to' believe that despite advanced medical technology and availability of medicines, his treatment in jail is not possible at all having regard to the nature of illness.

Ghulam Raza v. Khuda Bux 2005 SCMR 1904 ref.

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

----S. 497(1), first proviso---Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(c)---Bail on medical ground, grant of---Grant or rejection of bail was a discretionary relief, but such discretion had to be exercised fairly and judiciously---Doctors, in the present case, were unanimous on the point of ailment of accused---Board of Doctors had opined that the accused was suffering from heart disease and they had warned about the risk factor---Accused was also suffering from Hapatitis `C'- which disease apart from being life threatening was contagious as well and could spread such disease amongst the other inmates of the jail, who were crowded in' barracks, as stated by the Chief Medical Officer of the jail concerned---Accused was admitted to bail on medical ground alone in circumstances.

Munawar Hussain Manj v. State 2000 SCMR 1585; Gul Zaman v. State 1999 SCMR 1271; Manzoor Ahmed Watto v. State 2000 SCMR 107; Zakhim Khan Masood v. State 1998 SCMR 1065 and Muhammad Yousafullah Khan v. State PLD 1995 SC 58 ref.

Ghulam Raza v. Khuda Bux 2005 SCMR 1904 and Muhammad Asghar Mughal v. State. PLD 2006 Kar. 244 distinguished.

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

---Ss. 497/498---Baih--Discretion---Principles---Grant or rejection of bail is a discretionary relief, but such discretion should be exercised fairly, and judiciously.

I.A. Hashmi and Ilamdin Khattak for Applicant.

Ashfaq Hussain Rizvi, Special Prosecutor, ANF for the State.

P L D 2008 Karachi 532

Before Arshad Noor Khan, J

ABDUL ABID---Plaintiff

Versus

SIDDIQUE MOTI and another---Defendants

Civil Suit No.508 and C.M.As. Nos. 4348, 8796 of 2007, decided on 26th August, 2008.

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

----O. VII, R.11---Rejection of plaint---Scope---Plaint can only be rejected if it does not disclose cause of action and suit is barred by any law or plaintiff fails to pay requisite court fee in spite of direction of court and for such purpose the court has to look into the averments contained in the plaint.

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

----Art. 25---Civil Procedure Code (V of 1908), O. II, R. 2 & O.VII, R.7---Damages, recovery of---Limitation---Rejection of plaint---Cause of action---Earlier round of litigation between the parties was decided by Supreme Court on 28-11-2005 and suit for recovery of damages was filed by plaintiff on 21-11-2006---Plea raised by defendant was that as plaintiff omitted his claim of damages in the suit filed earlier, therefore, he did not have cause of action for subsequent suit---Validity---Suit was filed after the end of litigation between the parties, as claim of damages was not available to plaintiff at the time of filing of earlier suit---Plaintiff had not wilfully, intentionally and deliberately relinquished the part of his claim because subsequent suit was outcome of final decision of lis between the parties, thus provisions of O.II, R.2.C.P.C. were not attracted---Suit filed within one year from the date of final decision was within limitation---High Court declined to reject the plaint under O.VII, R.11 C.P.C. ---Application was dismissed in circumstances.

PLD 1970 Kar. 770 and 2003 MLD 22 distinguished.

Muhammad Ayub Khan for Plaintiff (along with Plaintiff present in person).

Sajid Latif for Defendant No.1.

P L D 2008 Karachi 536

Before Arshad Noor Khan, J

GHULAM FAREED---Plaintiff

Versus

SHAHID-UD-DIN TUGHALAQ---Defendant

Suit No.Nil and C.M.As. Nos.14 & 1371 of 2008, decided on 20th August, 2008.

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure Code (V of 1908), S.16 & O.VII, R.10---Return of plaint---Territorial jurisdiction---Determination---Defendant assailed territorial jurisdiction of Trial Court at place "K" on the ground that he was resident of place "T" where he was running his business and suit property was also situated at place "T"---Contention of plaintiff was that as agreement relied upon by him was executed at place "K", therefore, suit was competently filed---Validity---Agreement relied upon by plaintiff was with regard to terms and conditions of partnership between both the parties and subject matter of suit was property which was situated at place "T" and agreement was nothing but showing entitlement of partners regarding share in property in dispute---Property in dispute being situated at place "T", parties to the suit were residing at place "T" and were running their business for gain there, therefore, courts at place "T" had territorial jurisdiction to entertain and adjudicate upon the suit---Trial Court at place "K" declined to entertain the suit---High Court returned the plaint to plaintiff in view of S.16 C.P.C., for presentation before proper court---Plaint was returned in circumstances.

Zaheer H. Minhas for Plaintiff.

Raja Mir Muhammad for Defendant.

P L D 2008 Karachi 540

Before Arshad Noor Khan, J

PAK AMERICAN COMMERCIAL (PVT.) LTD. through Director---Plaintiff

Versus

HUMAYOUN LATIF and 7 others----Defendants

Suit No.981 of 2002, C.M.A. No.6871 of 2005, 6923, 7251, 7569 of 2002, 4825 of 2003 & 7230 of 2006, decided on 25th August, 2008.

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

----S.42---Civil Procedure Code (V of 1908), O.VII, R.11---Rejection of plaint---Declaration of title---Limitation---Plaintiff company through its director sought declaration to the effect that plaintiff was tenant of defendants and consequently sought possession of suit property--Validity---Director of plaintiff company, at no point of time remained in possession over shop in question---Director of plaintiff company was in knowledge about execution of transfer of tenancy rights by his father in favour of his brother---Suit was filed belatedly after about five years of registration of transfer deed in favour of his brother and no explanation had been put forward by plaintiff seeking such declaration after inordinate delay---No privity of contract existed between parties, therefore, plaintiff possessed no legal character to maintain suit against defendants---Suit filed by plaintiff was not maintainable in law---Plaint was rejected in circumstances.

Pakistan State Oil Company Ltd. Karachi v. Pirjee Muhammad Naqi 2001 SCMR 1140; Minochar N. Kharas v. Ali Hassan Manghi and others 1986 CLC 1378; Aijaz Hussain Bhatti v. Haji Bagh Ali and other 1985 CLC 261; Khawaja Muhammad Yaqub Khan v. Sh. Abdur Rahim and others 1968 SCMR 734; Muhammad Sarwar v. Muhammad Shafi 1986 SCMR 1638; Messrs Services Sales Corporation v. Abdul Karim 1991 CLC 1220; Burmah Eastern v. Burmah Eastern Employees' Union and others PLD 1967 Dacca 190; Mst. Sakina and others v. The Excise and Taxation Officer and others 1989 CLC 964; Dr. Faqir Muhammad v. Maj Amir Muhammad and others 1982 SCMR 1178; Muhammad Sharif v. The State, 1982 SCMR 1181; Khan Iftikhar Hussain Khan of Mamdot v. Messrs Ghulam Nabi Corporation Ltd, PLD 1971 SC 550; Abdul Rahim and 2 others v. Messrs United Bank of Pakistan PLD 1997 Karachi 62; Government of Pakistan v. Premier Sugar Mills and others, PLD 1991 Lahore 381; Messrs Taurus Securities Ltd. v. Arif Saigol and others, 2002 CLD 1665; Punjab Livestock Dairy and Poultry Development Board v. Sheikh Muhammad Younus 1980 CLC 1932; Friendship Textile Mills (Pvt.) Ltd. v. Government of Balochistan 1998 CLC 1767; Abubakar Saley Mayet v. Abbot Laboratories and another 1987 CLC 367; Messrs Standard Hotels (Pvt.) Ltd. v. Messrs Rio Centre and others 1994 CLC 2413; S.M. Shafi Ahmad Zaidi v. Malik Hassan Ali Khan (Moin) 2002 SCMR 338; Muhammad Akhtar and others v. Abdul Hadi and others 1981 SCMR 878; Maj. (Retd.) Hamid Ali Khan v. Mian Muhammad Anwar 2000 CLC 1633; Mian Muhammad Akram and others v. Muhammad Rafi 1989 CLC 15; Muhammad Zaman v. Tariq Mahmood and 28 others 1994 MLD 207; Muhammad Yaqub and 63 others v. The Province of the Punjab 1993 MLD 2419; Abdul Zahir v. Mir Muhammad and 10 others 1999 CLC 246; Muhammad Yasin Khan and 4 others v Azad Government of Jammu and Kashmir 1991 MLD 2295; Fazal Rahim v. Al-Wajid Town 1994 MLD 126; Ghous Bux v. Muhammad Suleman and others 2001 MLD 1159; Muhammad Amin, and others v. Mian Muhammad PLD 1970 BJ 5; Chiragh Din and another v. Chairman, Thal Development Authority 1970 SCMR 29; Oil and Gas Development Corporation v. Lt. Col. Shujauddin Ahmed PLD 1970 Kar. 332; Tahir Mahmood Rana v. The Tourism Development Corporation of Punjab, Lahore and 2 others 1994 CLC 2004; Karam Ali and others v. Raja and others PLD 1949 Lah. 100; Messrs Haydari Construction Co. Ltd. v. Bank of Credit and Commerce International Overseas, Ltd and another 1991 CLC 149; Mulraj v. Murti Raghunathji Maharaj AIR 1967 SC 1386; Nand Kishore v. Shadi Ram and others AIR 1926 Allah. 457; Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan 1994 SCMR 2142; Syed Fakhar Mahmood Gillani v. Abdul Ghafoor 1995 SCMR 96; Sardara and 4 others v. Muhammad Khan PLD 1998 SC 1509; Wajid Ali Khan v. Sheikh Murtaza Ali and 2 others 2003 SCMR 1416; M. Shafi v. The State 1986 CLC 110 and Pakistan Banking Council and 4 others v. Ali Maohtaram Naqvi and others 1985 SCMR 714 ref.

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

----O.XXIX, R.1---Suit by corporation---Non-filing of resolution of Board of Directors---Effect---Plaint filed by or on behalf of plaintiff company, did not show that its director had filed any resolution passed by its Board of Directors authorizing him to sign, verify and present the plaint---Such plaint was without lawful authority as plaint had not been presented properly.

Khan Iftikhar Hussain Khan of Mamdot v. Messrs Ghulam Nabi Corporation Ltd. PLD 1971 SC 550 rel.

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

----S. 39---Limitation Act (IX of 1908), Art.91---Civil Procedure Code (V of 1908), O. VII, R.11---Rejection of plaint---Cancellation of registered document---Plaintiff sought cancellation of registered document dated 31-10-1997, in a suit filed on 27-9-2002---Validity---Cancellation of document fell under S.39 of Specific Relief Act, 1877, and period to file suit for cancellation of such document was three years under Art.91 of Limitation Act, 1908, from the date when facts had become known to the plaintiff---Execution and registration of the document was within the knowledge of plaintiff and plaint filed on 27-9-2002 was filed after expiry of limitation period---Suit regarding cancellation of registered document executed on 31-10-1997 was barred under Art. 91 of Limitation Act, 1908---Plaint was rejected in circumstances.

Muhammad Ismail Memon for Plaintiff.

Raja Qasit Nawaz for Defendant Nos. 1 and 8.

Farhan Abrar for Defendant No.7.

P L D 2008 Karachi 551

Before Bin Yamin, J

M UHAMMAD, IRSHAD---Applicant

Versus

COURT OF IIND ADDITIONAL DISTRICT AND SESSIONS JUDGE, SOUTH, KARACHI and another---Respondents

Criminal Revision Application No.42 of 2008, decided on 22nd May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 499---Penal Code (XLV of 1860), S. 392/34---Rejection of surety---Applicant, who stood surety for accused, submitted his lease document of plot measuring 45 sq. yards, but the Trial Court rejected the surety---Value of plot in question was Rs.1,500,000 whereas total bail amount granted to accused in all the cases was Rs.900,000---Trial Court had not given any reasons for rejecting the surety documents of the applicant---Trial Court having accepted the surety documents offered on behalf of co-accused which were with regard to the land which was quite small in comparison to the area offered by applicant, action of the Trial Court amounted to discrimination---Trial Court was required to have accepted the documents of the applicant/surety under the principle of consistency and by not doing so, had committed discrimination---Trial Court was directed by High Court to accept the documents of surety offered on behalf of accused.

Zulfiqar Ali Solangi for Applicant.

Asadullah Baloch for Respondents.

P L D 2008 Karachi 554

Before Azizullah M. Memon Actg. C.J. and Khalid Ali Z. Qazi, J

Syed TARIQ PERVEZ through Legal Heirs---Appellants

Versus

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

High Court Appeal No.206 of 2006 and C.M.A. No.757 of 2008, decided on 21st May, 2008.

Civil Procedure Code (V of 1908)---

----O. XXII, R.4---Limitation Act (IX of 1908), S.5---Time-barred application under O.XXII, R.4, C.P.C. praying that legal representatives of the deceased defendant be impleaded as defendants with an application under S.5, Limitation Act, 1908, for condonation of delay---Held, whenever a prejudice was likely to cause to a party who was not afforded due opportunity to defend himself in the facts and circumstances of a peculiar case and whenever the same essentially demanded that the technicalities should not be allowed to serve as an obstacle in doing the full and complete/substantial justice, delay in pursuing the proceedings alone would not defeat the rights of such a party in such a case---Principles.

No doubt in each and every relevant case a party seeking condonation of the delay in pursuing the proceedings of a case has to satisfactorily explain delay of each and every day occurring against his pursuing of such proceedings. Yet, it is also a settled principle of law that wherever a prejudice is likely to cause to a party who is not afforded due opportunity to defend himself in the facts and circumstances of a peculiar case, and further that wherever the same essentially demands that the technicalities should not be allowed to serve as a obstacle in doing the full and complete/substantial justice, delay in pursuing the proceedings alone would not defeat the rights of such a party in such a case.

In order to see that the defendants were afforded with due opportunity to defend themselves in the suit, wherein a claim worth Rs.184,356,681/accounts thereto was involved, the delay in filing of the application under O.XXII, R.4, C.P.C. was not to allow to defeat their rights to defend themselves.

High Court condoned the delay in filing of the applications under Order XXII, Rule 4, C.P.C., so that the complete and full justice may be provided to the party who is ultimately found to deserve the same.

High Court appeal was allowed. Impugned order passed by Single Judge was set aside, with the result that both the applications viz. one under Order XXII, rule 4, C.P.C. and the other under section 5 of the Limitation Act, 1908 were allowed, the order/judgment/decree which may have been passed by Single Judge in the suit against the defendants stood set aside with directions to the plaintiff to file amended memo. of plaint in the suit, impleading the defendants therein for further proceedings according to law. However, the defendants were directed to pay cost amount of Rs.50,000 (Rupees fifty Thousand Only) to the plaintiff within a period of 90 days from the date of order.

Muhammad Sadiq v. Muhammad Sakhi PLD 1989 SC 755; WAPDA v. Muhammad Khalid 1991 SCMR 1765; Mst. Arshan Bi and another v. Maula Bakhsh and others 2003 SCMR 318 and Imtiaz Ahmed v. Ghulam Ali and others PLD 1963 SC 382 ref.

Agha Zafar Ahmed for Appellants.

Safdar A. Syed for Respondent.

Rizwan Ahmed Siddiqui, learned D.A.G. as Amicus curiae.

P L D 2008 Karachi 558

Before Nadeem Azhar Siddiqi, J

ABDUL WAHAB ABBASI---Plaintiff

Versus

GUL MUHAMMAD HAJANO---Defendant.

Suit No.644 of 2006, decided on 7th August, 2008.

(a) Defamation---

----Meaning and compensation---Defamation is communication to third party of false statement about a person to injure his. reputation and to cause personal harm to him---Filing of suit for compensation on account of civil action is permissible, if in the case of special nature in which suit for damages, independent of cost awarded in the suit, can be maintained.

Ali Asghar v. Fazal Akbar 1988 CLC 147 rel.

(b) Defamation---

----Onus to prove---If matter is defamatory, the falsity of it is presumed until it is proved to be true---Matter is deemed to be defamatory if it exposes plaintiff to hatred, ridicule or tends to injure him in his profession or trade.

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

----O. IX, R. 13---Defamation---Ex-parte decree---Malicious prosecution---Recovery of damages---Quantum---Statement of plaintiff on oath---Plaintiff was a government official and made party in Constitutional petition filed by defendant before High Court, wherein certain allegations were levelled against him, which petition was dismissed by High Court---Plaintiff filed suit against defendant for recovery of Rs.60,60,000 as damages for malicious prosecution---Validity---To prove allegation or defamatory statements as true, the burden was on defendant, who neither filed any written statement nor rebutted affidavit in ex parte proof filed by plaintiff---Statement on oath of plaintiff had gone unchallenged and remained un-rebutted---Allegations in constitutional petition filed by defendant were defamatory in nature and had been levelled to lower reputation of plaintiff in estimation of others and could be treated as malicious---Defendant failed to prove that allegations made against plaintiff in the petition were true---Plaintiff was a respectable officer and was enjoying good reputation and false and malicious prosecution had affected his reputation in his profession and trade---False and malicious allegations had caused loss of reputation, mental torture and financial losses to plaintiff---Court was itself competent to ascertain question of damages keeping in view the circumstances of the case---High Court awarded a sum of Rs.15,00,000 as compensation to plaintiff for malicious prosecution---Suit was decreed accordingly.

Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28; Ameeruddin v. Fazalur Rahim Khan 2003 YLR 13.6 and Pakistan Industrial Development Corporation v. Aziz Qureshi PLD 1965 (W.P) Karachi 202 ref.

(d) Defamation---

----Quantum of damages---Scope---No hard and fast rule to grant general damages and there is also no yardstick to measure the same-Rule for award of general damage is that in the case of defamation the conscience of court should be satisfied that damages awarded would if not completely satisfactorily compensate aggrieved party and that the amount so assessed must be compensatory in nature and not to appear punitive or exemplary.

Muhammad Sharif v. Nawab Din PLD 1957 W.P. Lah. 283 and Sufi Muhammad Ishaque v. The Metropolitan Corporation, Lahore PLD 1996 SC 737 rel.

Manzoor Ali Khan for Plaintiff.

Nemo for Defendant.

Dates of hearing: 24th December, 2007 and 17th January, 2008.

P L D 2008 Karachi 567

Before Khalid Ali Z. Qazi, J

GUL HASSAN---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.154 of 2008, decided on 6th August, 2008.

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

----Ss. 561-A, 249-A & 265-K---Quashing of proceedings and acquittal of accused---Power of quashment either under section 561-A, Cr.P.C. or under sections 249-A/265-K, Cr.P.C. is to be sparingly used in exceptional circumstances where it is clear from the material on record that there is no possibility of the accused being convicted even after full completion of the trial.

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

----S. 561-A---Inherent powers of High Court---Courts can use section 561-A, Cr.P.C. to save a party from harassment and abuse of the process of Court.

Malik Salman Khalid v. Shabbir Ahmed 1993 SCMR 1873 ref.

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

----Ss. 249-A & 265-K---Power of Court to acquit accused at any stage---Party can move for acquittal at any stage of the proceedings and there is no legal bar or requirement that the application for acquittal can only be moved before the Trial Court after recording of evidence of all the witnesses.

The State v. Asif Ali Zardari 1994 SCMR 798 ref.

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

----S. 561-A---Inherent powers of High Court---Scope---High Court upon reaching the conclusion that the order passed by a subordinate criminal Court was an abuse of the process of the Court, can rectify the injustice under its inherent powers.

Hussain Ahmed v. Irshad Bibi 1997 SCMR 1503 ref.

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

----Ss. 561-A & 265-K---Penal Code (XLV of 1860), S.302/34---Quashing of proceedings and acquittal c: accused---Both the crucial eye-witnesses of the incident had clearly testified that the deceased had been murdered by unknown assailants who had also injured the accused---Complainant, wife of the deceased, had further confirmed in her cross-examination that her statement as recorded by the police, was not correct and that she being illiterate, the same was neither read over to her nor she had signed any document---No possibility of the accused being convicted in the case by the Trial Court existed which had materially erred in failing to acquit the accused under section 265-K, Cr.P.C.---Proceedings pending before the Trial Court against the accused were quashed and he was acquitted under section 265-K, Cr.P.C. in circumstances.

Malik Salman Khalid v. Shabbir Ahmed 1993 SCMR 1873; The State v. Asif Ali Zardari 1994 SCMR 798; Hussain Ahmed v. Irshad Bibi 1997 SCMR 1503; Nazir Iqbal v. The State NLR 1999 Criminal 181; Miraj Khan v. Gul Ahmed 2000 SCMR 122 and Asif Ali Zardari v. The State PLD 2008 Kar. 310 ref.

Miss Zubaida K. Jamali for Applicant.

Muhammad Bux Awan for the State.

Date of hearing: 30th July, 2008.

P L D 2008 Karachi 572

Before Azizullah M. Memon C. J. and Khalid Ali Z. Qazi, JJ

KARACHI ELECTRIC SUPPLY COMPANY LIMITED---Appellant

Versus

TRI-STAR ENERGY LIMITED and another---Respondents

High Court Appeals Nos.163 and 186 of 2008, decided on 19th August, 2008.

Civil Procedure Code (V of 1908)---

----O. XIII, R.4---Any document placed on record or exhibited, which has not been duly proved, cannot be considered as an admissible piece of evidence.

PLD 1967 SC 271; PLD 1960 (W.P) Karachi 562; PLD 2006 SC 214; PLD 2005 SC 842; 2005 SCMR 720; PLD 2003 SC 379; PLD 2005 SC 270; 1996 CLC 79; 2007 CLC 1089; PLD 2001 Kar. 383; 2003 MLD 1430; PLD 1963 Dhaka 175; 1983 SCMR 1265; Suit No. 1448 of 1998; HCA No.163/2008; 2003 CLD 1822; 2000 MLD 466; distinguished.

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

----O. XIV, R.1---Framing of issues---Principles---Incumbent upon the court to frame issues, in the light of controversies raised in the pleadings of the parties---Issues of law and facts are to be illustrated clearly, to enable the parties to understand the point at issue to support their respective claims by relevant evidence on material points---Where no opportunity was afforded to the defendants for filing amended written statement and the single issue framed by the Court did not reflect the pleadings of the parties, same caused prejudice to the defendants---Cases in between the parties had to be decided on merits and the rules and procedures were framed to foster the cause of justice which should sparingly come into the way of dispensation of the same on merits.

(c) Administration of justice---

----Cases in between the parties had to be decided on merits and the rules and procedures were framed to foster the cause of justice and should sparingly come into the way of dispensation of the same on merits.

Syed Tahira Begum and another v. Syed Akram Ali and another 2003 SCMR 29 and Libra Enterprises v. Messrs Macer Pharmaceutical (Pvt.) Ltd. 2006 CLC 316 fol.

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

----Ss. 21, 42 & 54---Civil Procedure Code (V of 1908), S.151---Law Reforms Ordinance (XII of 1972), S.3---High Court appeal---Suit for enforcement of contract, declaration and injunction---Application under S.151, C.P.C.---Record showed that on 21-4-2008 matter was fixed for further order; counsel for plaintiff had filed an application under S.151, C.P.C. for taking up the matter on same day which was granted by the court even without issuing any notice to the defendants; on the same day counsel for plaintiff stated that no body had appeared from the defendant's side since long and matter was proceeding ex parte; said counsel argued the matter and impugned judgment was passed the same day and decree was later on signed on 15-5-2008; entire matter had been decided in one day without compliance of the various proceedings of the suit stages i.e. settlement of issues, filing of list of witnesses and documents, recording of evidence and final arguments--Validity---Held, neither the single Judge was justified in deciding the entire case in such a hurry nor the judgment was in accordance with the evidence on record---Single Judge admittedly erred in law, committed material irregularity, the impugned judgment and decree were set aside---Defendants had made out a case to allow them to defend themselves in the suit so that same may be heard and decided on merits---Decree having been signed by the single Judge on 15-5-2008 and appeals having been filed on 4-6-2008 and 6-6-2008, same were to be treated within the period of limitation prescribed by law.

Muhammad Ali Mazhar for Appellant (in HCA No.163 of 2008).

Yawar Farooqui along with Irfan A. Memon for Appellant (in HCA No.186 of 2008).

Mansoor Ahmed Khan and Asim Mansoor Khan for Respondents (in both appeals).

Date of hearing: 25th July, 2008.

P L D 2008 Karachi 583

Before Khalid Ali Z. Qazi, J

EXIDE PAKISTAN LIMITED through Finance Director and Company Secretary---Plaintiff

Versus

Malik ABDUL WADOOD---Defendant

Suit No.797 and C.M.As. Nos. 5097, 7214 of 2008, decided on 19th August, 2008.

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

----S. 27---Specific Relief Act (I of 1877), S.57---Restrictive covenant---Scope---Any agreement by which any lawful profession, trade or business is restrained is void under S.27 of Contract Act, 1872, as such the same is subject to an exception contained in S.57 of Specific Relief Act, 1877, according to which agreement restraining carrying on a business after sale of goodwill is exempt from operation of S.27 of Contract Act, 1872---Basic principle was that any restraint on trade clause would be, prima facie, void unless the same was justified to be reasonable between the parties and not inimical to public interest.

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

----S. 27---Specific Relief Act (I of 1877), S.57---Restrictive covenant---Applicability.

Following are the principles for application of restrictive covenant:

(a) a restraint of trade clause is void if unreasonable, however, if the same is reasonable the said clause is valid;

(b) a reasonable restraint of trade clause whereby an employee is prevented from entering into competition with his former employer or entering into an employment in same/similar business with a competitor of former employer, can be enforced by Court. The said enforcement can include a declaration or injunction or both, as the case may be;

(c) reasonableness of the clause will vary from case to case and will inter alia, depends upon the following:

(i) the extent of duration;

(ii) the extent of the geographical territory;

(d) the employer will only be able to obtain an injunction for information, know-how and details of customers/orders acquired by employee through some classified or secret information. However; no injunction can be obtained if the know-how is not acquired by employee through access of classified or secret information but rather during the normal course of employment;

(e) the restraint of trade clause should only be aimed at protecting interest of the employer and not aimed at penalizing the employee or causing him inconvenience;

(f) the restraint of trade clause should not be vague and generalized but should be rather specific. In case general a vague part of the restrictive covenant is separable from the substantive part, the Court while exercising doctrine of severance and by supplying construction will be empowered to uphold the substantive part of the restrictive covenant. However, where restraint of trade is not separable in the manner stated above, the Court will reject the entire clause without applying the doctrine of severance;

(g) the restraint of trade clause shall only be applicable to the particular type of business in which the employer is actually engaged in and not to any business activity in which the employer would possibly engage in the future.

BNS Air Services (Pvt.) Ltd. v. Anwar Ali and others 1987 MLD 3009; Al-Abid Silk Mills Ltd. v. Syed Muhammad Mudassar Rizvi 2003 MLD 1947; Zafar Iqbal Papu v. District Magistrate Karachi East PLD 1988 Kar. 275; Syed Shabih Haider Zaidi v. Shaikh Muhammad Zahoor Uddin 2001 CLC 69; Government of Pakistan v. M.I. Cheema Dy. Registrar, Federal Shariat Court 1992 SCMR 1852; Shahab Din v. The State 2004 MLD 1411; Al-Jamiaul Arabia Ahasanul Uloom and Jamia Masjid v. Syed Sibte Hasan 1999 YLR 1634; Section 57 of the Specific Relief Act; Shree Gopal Paper Mills Ltd. v. Surendra K. Ganeshdas Malhotra AIR 1962 Cal. 61; Suprintendence Company of India (P.) Ltd. v. Krishan Murgai AIR 1980 SC 1717; Sandhya Organic Chemicals P. Ltd. and others v. United Phosphorous Ltd. and another AIR 1997 Gujrat 177; Indo-Burma Oil Fields Ltd. v. Burma Oil Company Ltd. AIR 1921 Lower Burma 19; V.N. Desh Pande v. Arvind Mills Company Ltd. AIR 1946 Bombay 423; Niranjan Shanker Goli Kari v. Century Spinning and Manufacture Company Ltd. AIR 1967 SC 1098; AIR 1979 Delhi 232; Nooruddin Hussain v. Diamond Vacuum Bottle Manufacturing Co. Ltd. PLD 1981 Kar. 720; Pak China Chemicals v. Department of Plant Protection 2006 CLD 210; Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co. Ltd. (1894) AC 535; British Reinforced Concrete Engineering Co. Ltd. v. Schelff (1921) 2 CH. 563; Goldsoll v. Goldman (1915) 1 Ch. 292; Herbert Morris Ltd. v. Saxelby (1916) 1 AC 688; Forster and Sons Ltd. v. Suggett (1918) 35 TLR 87; Commercial Plastics Ltd. v. Vincent (1965) 1 QB 623; Litle Woods Organization Ltd. v. Harris (1978) 1 All. ER 1026; Fitch v. Dewes (1921) 2 AC 158; M&S Drapers v. Reynolds (1957) 1 WLR 9; Marion White Ltd. v. Francis (1972) 1 WLR 1423; Mason v. Provident Clothing and Supply Co. Ltd. (1913) AC 724; Attwood v. Lamont (1920) 3 KB 571 and Alec Lobb Grages Ltd. v. Total Oil (GB) Ltd. (1985) 1 WLR 173 rel.

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

----Ss. 54 & 57---Contract Act (IX of 1872), S.27---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Interim injunction, grant of---Restrictive covenant---Applicability---Plaintiff was a manufacturing company and defendant was its ex-employee---Plaintiff sought injunction against defendant on the ground that defendant had executed an agreement undertaking not to work for a period of two years with any competitor of plaintiff, once he would leave the job---Plea raised by plaintiff was that during employment with plaintiff, defendant had acquired confidential information---Validity---Restrictive covenant between the parties was too vague, generalized and hence void---Agreement did not specify as to what particular specialized information had been divulged to defendant, which he would be prevented to use directly or indirectly in employment with another employer---Plaintiff could not particularize as to what particular confidential information was acquired by defendant---As the plaintiff failed to disclose as to what particular trade secret or secret formula or information was specially acquired by defendant other than in his normal course of employment, therefore, he had failed to make out a prima facie case---Interim injunction was refused in circumstances.

BNS Air Services (Pvt.) Ltd. v. Anwar Ali and others 1987 MLD 3009; Al-Abid Silk Mills Ltd. v. Syed Muhammad Mudassar Rizvi 2003 MLD 1947; Zafar Iqbal Papu v. District Magistrate Karachi East PLD 1988 Kar. 275; Syed Shabih Haider Zaidi v. Shaikh Muhammad Zahoor Uddin 2001 CLC 69; Government of Pakistan v. M.I. Cheema Dy. Registrar, Federal Shariat Court 1992 SCMR 1852; Shahab Din v. The State 2004 MLD 1411; Al-Jamiaul Arabia Ahasanul Uloom and Jamia Masjid v. Syed Sibte Hasan 1999 YLR 1634; Section 57 of the Specific Relief Act;' Shree Gopal Paper Mills Ltd. v. Surendra K. Ganeshdas Malhotra AIR 1962 Cal. 61; Suprintendence Company of India (P.) Ltd. v. Krishan Murgai AIR 1980 SC 1717; Sandhya Organic Chemicals P. Ltd. and others v. United Phosphorous Ltd. and another AIR 1997 Gujarat 177 ref.

Ms. Sana Minhas for Plaintiff.

Abdul Qayyum Abbasi for Defendant.

Date of hearing: 29th July, 2008.

P L D 2008 Karachi 603

Before Khawaja Naveed Ahmed, J

MUHAMMAD HAYAT alias LIAQUAT---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.92 of 2004, decided on 21st August, 2008.

Penal Code (XLV of 1860)---

----Ss. 302, 201 & 34---Qanun-e-Shahadat (10 of 1984), Art.40---Appreciation of evidence---Accused/applicant allegedly along with co-accused at midnight had cut male organ along with both the testicles of deceased with sharp-edged weapon; deceased had died due to the said operation; thereafter accused with, the help of two co-accused, who were not named in the charge sheet, had allegedly buried the dead body in a vacant plot---Trial Court had charged the accused persons, for committing the offence punishable under S.302, 201 & 34, P.P.C.---Validity---Death of deceased was in unnatural way; dead body as well as male organ and testicles of the deceased were recovered; question as to who committed murder of the deceased was a mystery; offence statedly had not been committed intentionally and deceased had volunteered for the said operation; it was common in the community of eunuchs to do such operations and they also have expertise in conducting such operations; accused/appellant while present in the court had given all information regarding culture, living behaviour and custom of the eunuchs; accused though had insistently denied having committed the offence, had voluntarily assisted the court in giving information about culture of eunuchs and practice of such operation being conducted by guru; accused had stated that he was not the guru and as such not involved in conducting the operation---Record had revealed that present was the case of no evidence against the present accused; not a single witness had implicated him with the commission of alleged offence; piece of evidence used against the accused was pointation of place of commission of crime and recovery of dead body, male organ and testicles---Article 41, Qanun-e-Shahadat, 1984 was attracted as said piece of evidence which was already in the knowledge of police party and general public prior to the pointation of the present accused, could not be used against him and the case was that of no evidence against the present accused---High Court, in circumstances, allowed the appeal and acquitted the accused, his sentence and conviction was set aside and directed to be released forthwith.

Zulfiqar v. The State 1993 PCr.LJ 168; Haji Khan and 2 others v. The State 1991 PCr.LJ 2110 and Makhan Singh v. The State 1983 MLD 1567 rel.

Ali Nawaz Channa for Appellant.

Muhammad Iqbal Kalhoro, Addl. Prosecutor-General and Muhammad Bux, State Counsel for A.G. Sindh.

Date of hearing: 21st August, 2006.

P L D 2008 Karachi 609

Before Khawaja Naveed Ahmed, J

MUHAMMAD NASIR KHAN---Applicant

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.65 of 2008, decided on 11th April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Offence of Zina (Enforcement of Hudood), Ordinance (VII of 1979), S.16---Cancellation of pre-arrest bail, refusal of---Complainant was aggrieved of pre-arrest bail granted to his son-in-law who, despite having divorced his daughter, was still living with her and both of them were living as husband and wife---Facts regarding confirmation of divorce were disputed in the case---Accused respondent had stated before High Court that the application under section 7 of the Muslim, Family Laws Ordinance, 1961, was got signed from him by his father-in-law(complainant) which he had submitted before the union council, but he himself had never attended the office of union council and never received the certificate of confirmation of divorce---Accused stated that he had revoked his divorce within 74 days of signing of the divorce deed---Wife of the accused had also appeared before High Court and confirmed that divorce was revoked and "Raju" had taken place prior to the expiry of her Iddat period and she had supported the stand taken by her husband in the Court---Complainant had not involved his daughter in the case though the allegations against her were also similar to those against his son-in-law, and he had adopted a policy of pick and chose amongst the accused persons---Such attitude of the complainant had made his action mala fide which was the basic ground for grant of pre-arrest bail---Controversy over the facts as well as period of "Raju" between both the parties had made the case against the accused of further inquiry and he was entitled to remain on bail---Petition was dismissed in circumstances.

1994 SCMR 2098; 2006 CLC 1525; 2000 MLD 173; PLD 1993 SC 901; 1991 MLD 1198; 2003 YLR 2592 and 1987 PCr.LJ 1976 ref.

Ch. A. Rasheed and Ms. Shahida Nasreen for Petitioner.

Qazi Ali Akhtar for Respondent.

Naheed Naz for the State.

Qazi Ali Athar for Respondent No.2.

Shafi Muhamamdi Amicus Curiae.

Date of hearing: 11th April, 2008.

P L D 2008 Lahore 1

Before Muhammad Sair Ali, J

ABDUL HAMEED and 7 others---Petitioners

Versus

ABDUL RAZZAQ and 3 others---Respondents

Civil Revisions Nos.747 and 2128 of 2005, heard on 26th September, 2007.

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

----Ss. 96, 115 & O.XLI, R.31---Two separate appeals against decrees passed in two separate suits filed by both parties against each other involving different issues---Decision of both appeals by Appellate Court on basis of issues not subject-matter of concerned appeal---Validity---Appellate Court had intermixed issues and had not given respective judgments/decrees on issues of suits from which those had arisen---Appellate Court had decided both appeals on wrong issues, which error could be result of consolidated consideration of two appeals together---Impugned judgments/decrees were result of inapplicability of mind or inattention or erroneous typographical transposition of issues, which had caused serious miscarriage of justice and rendered them incomprehensible for litigants and persons of ordinary or extraordinary prudence---Appellate Court had committed material irregularity, misapplied itself and mis-exercised jurisdiction in passing impugned judgments/decrees---High Court set aside impugned judgments/decrees directing Appellate Court to decide afresh both appeals in accordance with law.

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

----O. XX, R.4 & O.XLI, R.31---Standard judgment---Essential requirements stated.

A judgment is not a jigsaw puzzle or a guessing game or a riddle to be solved by mind joggling exercises. Standard judgments are error free, concise, consistent, coherent and comprehensible irrespective of the stylistic differences. Principles, parameters and requirements of a judgment are: that judgment should contain a concise statement of case, points for determination, decision thereon and reasons for such decision manifesting application of mind by the Judge to resolve the issues involved; that it ought to be self-contained, unambiguous, easily intelligible, lucid, open only to one interpretation and thus leaving nothing to guess work or probabilities on matters under determination; that it should be self-speaking, well-reasoned and analytical reflecting due consideration of facts, law and contentions of the parties; and that it should be founded on legal grounds and the evidence on record.

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

----Ss. 35 & 115---Two appeals arising out of two suits involving different issues---Decision of appeals by Appellate Court on wrong issues---Revision petitions against such decision by both parties---Validity---Parties had suffered because of act of Court---High Court accepted revision petitions and remanded the case without passing order as to costs.

Hamid Ali Mirza for Petitioners.

Rana Zahoor Ali for Respondents.

Date of hearing: 26th September, 2007.

P L D 2008 Lahore 4

Before Syed Asghar Haider, J

GHULAM MUSTAFA and another---Petitioner

Versus

ABDUL MALIK---Respondent

Civil Revisions Nos.1670, 1671, 1672 and 1673 of 2006, decided on 18th October, 2007.

Civil Procedure Code (V of 1908)---

----O. XVIII, Rr. 8 & 14---Evidence, recording of---Procedure---Memorandum of substance of evidence---Scope---Misreading of evidence---Grievance of petitioner was that presiding officer of Trial Court did not record evidence in his own hand and neither made any memorandum of substance of evidence nor he had recorded any reason for his inability to record the memorandum---Effect---If evidence was not taken down in writing by Judge, he was bound under O.XVIII C.P.C., as the examination of each witness proceeded, to make memorandum of substance of what each witness deposed---Such memorandum was to be written by Judge and had to form part of record---Such was a mandatory provision and was required to be strictly adhered to and followed, so that Judge should be cognizant of testimony made by witnesses, to obviate any chance of misconstruing or misinterpreting it; in furtherance thereto O.XVHI, R.14 C.P.C. contemplated that if Judge was unable to make a memorandum as required, he would cause reasons of such inability to be recorded and would cause memorandum to be made in writing from his dictation in open court---Memorandum so made would form part of record and it was imperative, incumbent and binding upon the court to record reasons for its inability to make a memorandum---Till the needful was done, the same could not be treated to form part of record---Provisions of law having not been adhered to, therefore, testimony of witnesses could not have been treated to form part of record but it was so done, thus evidence was misread---Putting a certificate at the end of testimony of witness by the court "dictated by me" was not substantial compliance of the law as the order contained no reasons as contemplated by law---Judgments and decrees passed by both the courts below were set aside and case was remanded to Trial Court for decision afresh after recording of evidence---Revision was allowed accordingly.

Malik Mukhtar Ahmad Khokhar for Petitioners.

Anees-ur-Rehman for Respondent.

P L D 2008 Lahore 7

Before Syed Zahid Hussain, J

FAIZ MUHAMMAD---Petitioner

Versus

MUHAMMAD AZAM---Respondent

Civil Revision No.2272 of 2001, heard on 9th October, 2007.

Punjab Pre-emption Act (IX of 1991)---

----S. 13---Pre-emption suit---Making of Talbs---Proof---Non-mentioning of time, date, place and name of informer in plaint---Effect---Suit filed by pre-emptor was dismissed by Trial Court but Appellate Court partly decreed the suit in favour of pre-emptor to the extent of half share---Plea raised by vendee-was that pre-emptor failed to prove performance of Talbs in accordance with law --Validity---For succeeding and grant of decree in pre-emption suit, performance of Talbs as prescribed by S.13 of Punjab Pre-emption Act, 1991, was a mandatory requirement---If performance of Talbs were not made in accordance with law, even superior right claimed by pre-emptor stood extinguished---Pre-emptor failed to fulfil the requisite conditions of making Talb-i-Muwathibat and his mere assertion as to performance of Talbs and making of some improvements in evidence was not enough---Due to non-performance of Talbs, the superior right to pre-empt the suit-land, if any, stood extinguished in terms of S.13 of Punjab Pre-emption Act, 1991---Pre­emptor failed to lay proper foundation in pleadings about performance of Talbs, therefore, alleged superior right of pre-emption stood extinguished due to non-performance of Talbs in accordance with law---Judgment and decree passed by Appellate Court was set aside and suit was dismissed.

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 Said 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.

Rai Muhammad Panah Bhatti for Petitioner.

Amir Abdullah Khan Niazi for Respondent.

Date of hearing: 9th October, 2007.

P L D 2008 Lahore 10

Before Syed Zahid Hussain, J

AMIR FAYAZ ALI KHAN---Petitioner

Versus

MEMBER, BOARD OF REVENUE JUDICIAL-I---Respondent

Writ Petitions Nos.41-R, 51, 75, 82, 83, 84 and 85 of 2007, heard on 23rd October, 2007.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Constitution of Pakistan (1973), Arts. 189, 190 & 199---Constitutional petition---Maintainability---Judgment of Supreme Court---Finality---Allotment of evacuee property---Reopening of matter---Petitioner was not found entitled for allotment of house in question even by Supreme Court--Subsequently petitioner filed application under S.12(2), C.P.C. before Board of Revenue assailing allotment of the house in favour of respondent---Board of Revenue dismissed the application under S.12(2), C.P.C. on the ground that he was not eligible to file the same---Plea raised by petitioner was that fraud and misrepresentation was committed by respondent in getting allotment in his favour---Validity---Held, it was not possible even to assume for a moment that after dismissal of appeal and review. petition of petitioner by Supreme Court, any scope for re-agitation and reopening of the matter was left open---In the garb of application under S.12(2), C.P.C., petitioner once again launched another attack by abusing and misusing the process of law and of Courts---Import, object and purpose of Arts.189 and 190 of the Constitution could not be defeated by adopting such dubious means, nor it could be permitted to be done by High Court in Constitutional jurisdiction---Contention of petitioner as to alleged fraud/ misrepresentation by any other person had no legs to stand upon---Petitioner could not be allowed to drag others into litigation on flimsy allegations when he had lost his case repeatedly upto Supreme Court---On no discoverable principle or basis, any subordinate functionary could undo or stultify effect of judgment of a superior court---Remedy provided by S.12(2) C.P.C. operated within its own folds as interpreted by superior courts---Executive and State functionaries were duty bound to carry out honour and respect the judgments of Supreme Court and not to find faults with the same or act as a stumbling block in implementing the same---High Court declined to interfere with the order passed by Board of Revenue dismissing application under S.12(2) C.P.C. filed by petitioner---Petition was dismissed in circumstances.

Pir Bakhsh represented by his Legal Heirs and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145 and Abdul Ghafoor and thirty others v. The Rehabilitation Commissioner West Pakistan, Lahore PLD 1958 W.P. Lah. 48 ref.

Ahmed Waheed Khan for Petitioner (In Writ Petition No.41-R of 2007).

Mirza Hafeez-ur-Rehman for Petitioner (In Writ Petition No.51-R of 2007).

Malik Mubashir Khalid Saeed for Petitioner (In Writ Petitions Nos.82-R, 83-R, 84-Rand 85-R of 2007).

Syed Waseem-ul-Hassan Naqvi and Nazir Ahmed Ghazi (In Writ Petition No.75-R of 2007).

Ms. Sidra Sheikh and Mahmood A. Sheikh for Settlement Department.

Aamer Rehman, Additional Advocate-General, Punjab.

Date of hearing. 23rd October, 2007.

P L D 2008 Lahore 19

Before Sayed Asghar Haider, J

TEHSEEN MAZHAR and 24 others---Petitioners

Versus

VICE-CHANCELLOR, UNIVERSITY OF PUNJAB, LAHORE and 2 others---Respondents

Writ Petitions Nos.7248 and 7208 of 2007, decided on 1st October, 2007.

(a) University of the Punjab Act (IX of 1973)---

----S. 8(3)---Word "prescribed"----Courses and curricula---Examination---Students are required to be taught from course and curricula which is prescribed---By implication students can be subjected to examination only from within and not out of the curricula and syllabus prescribed.

University of the Health Sciences Lahore and others v. Sh. Nasir Subhani and others PLD 2006 SC 243 and Webster's Law Dictionary ref.

(b) Administration of justice---

----Each individual has a right to be dealt with in accordance with law---Access to law and justice is an unfettered fundamental right.

Aftab Shahban Mirani v. President of Pakistan 1998 SCMR 1863 rel.

(c) Words and phrases---

----"Advice"---Connotation---Advice is guidance by someone who has authority over the subject and is well conversant with its implications and can give proper guidance and counsel.

Black's Law Dictionary and Collins ref.

(d) University of the Punjab Act (IX of 1973)---

----Ss. 4(6)(a)(d), 15, 22 (v) & Sched.---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Educational institution---Out of course examination---Advice of Board of Studies---Effect---Compassionate' andgrace' marks---Distinction---Candidates alleged that examination was out of course and at the time of examination, authorities had committed to award compensatory marks but no such marks were awarded to them---Candidates further alleged that despite advice of Board of Studies, Vice Chancellor did not act upon the advice of the Board and declined to award compensatory marks---Validity---Vice Chancellor only had authority to refer the matter back to the Board of Studies for reconsideration, if he was not satisfied with the recommendations made---Vice-Chancellor having proceeded to ignore the advice completely and refused to implement the recommendations made, therefore, he acted beyond his authority and that too without assigning any reason---Students were required to be taught from curricula and courses which were prescribed---If students were subjected to examination beyond prescribed courses, University authorities had failed to perform their duty under University of the Punjab Act, 1973---Recommendations made by Board of Studies were required to be honoured and adhered to by Vice Chancellor and he had no discretion to override such advice---Compassionate and grace marks were two different things---Grace marks were always awarded to an individual while compassionate marks were awarded to a class of individuals---Petition was allowed accordingly.

University of the Health Sciences Lahore and others v. Sh. Nasir Subhani and others PLD 2006 SC 243 distinguished.

Sarfraz Ahmed Cheema and Shahzad Cheema for Petitioners.

Raja Muhammad Arif Legal Advisor, Punjab University and Shujat Ali Khan, A.A.-G. for Respondent.

Date of hearing: 7th September, 2007.

P L D 2008 Lahore 26

Before Tariq Shamim, J

ZAFAR IQBAL---Petitioner

Versus

EHSAN ALI and another---Respondents

Crl. Revision No.498 of 2007, decided on 18th October, 2007.

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

----S. 7---Determination of age of accused---Plea of being a juvenile to be taken at the earliest opportunity---Accused who claims to be a juvenile at the time of occurrence should take such plea at the earliest, as otherwise an adverse inference can be drawn against him.

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

---S. 7---Penal Code (XLV of 1860), Ss.302/324/109/34---Criminal Procedure Code (V of 1898), S.439---Determination of age of accused---Accused had taken the plea of being a juvenile at the time of occurrence at a belated stage after a lapse of one year and two months from the date of registration of the FIR., which had created doubt about the veracity of the same and could not be outrightly, accepted as true---No such plea had been taken by the accused before police during investigation---Trial Court, no doubt, had summoned the original record of birth certificate and school leaving certificate, but had failed to examine the record keeper and other persons acquainted with the facts---Much importance had been given by the trial Court to the birth certificate and school leaving certificate completely ignoring the opinion of the two Medical Boards---Complainant had seriously questioned the said two certificates produced by the accused in support of his claim of minority, but the trial Court without adverting to the opinion of Medical Board had determined the question of age of accused solely on the basis of the said documents---Contention that in the presence of an authentic birth certificate am a school leaving certificate medical examination of accused was not `a requirement of law, was totally devoid of force---Impression that an ossification test could be ordered as last resort was incorrect and not tenable---Documents like a birth certificate or a school leaving certificate were susceptible to interpolation and manipulation etc. and in order to adopt a safe course it was imperative to obtain opinion of Medical Experts---Conclusions drawn by trial Court while deciding the question of juvenility of the accused were based on surmises and conjectures and were not in consonance with the law---Impugned order declaring the accused a minor at the time of occurrence was consequently set aside with the direction to trial Court to decide the application of accused afresh after holding an inquiry as required under the law---Revision petition was accepted accordingly.

Sultan Ahmad v. Additional Sessions Judge-I, Mianwali and others PLD 2004 SC 758 ref.

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

----S.7--- Determination of age of accused---Prerequisites---For deciding the question of age of accused it is incumbent upon the Court to hold an inquiry, requisition the original record, summon and .examine the authors of such record and documents in order to determine the genuineness of the same and should obtain opinion of the Medical Experts which can lend valuable guidance to the Court in resolving the controversy.

Asghar Ali for Petitioner.

Malik Muhammad Amin Aura for Respondent No.1.

Ch. Amjad Hussain, Deputy Prosecutor General, Punjab.

P L D 2008 Lahore 32

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

MUHAMMAD AMJAD ---Petitioner

Versus

THE STATE---Respondent

Criminal Appeals Nos.63-J, 462 and Criminal Revision No.174 of 2001, heard on 22nd October, 2007.

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

----S. 302(c)-Confession, retraction from---General rule---Retraction from the confession is wholly immaterial once it is found that it was voluntary as well as true.

Muhammad Amin v. The State PLD 2006 SC 219 and Mst. Joygun Bibi v. The State PLD 1960 SC Pak 313 ref.

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

---S. 302(c)---Confession---Validity for basis of conviction---Confession, judicial or extra-judicial, whether retracted or not retracted, can, in law, validly form the sole basis of conviction against the maker himself, if the Court is satisfied that it was true and voluntary and was not obtained by torture, coercion or inducement.

State v. Minhun alias Gul Hassan PLD 1964 SC 813; Muhammad Yaqoob v. The State 1992 SCMR 1983; Mokha v. Zulfiqar PLD 1978 SC 10; Zakir Khan v. The State 1995 SCMR 1793; Roshan v. The State PLD 1977 SC 557; Umar Din v. Crown ILR 1921 Lah. 129; State v. Waqar Ahmad 1992 SCMR 950; Nadir Hussain v. The Crown 1969 SCMR 442; Habibullah v. The State 1971 SCMR 341 and State v. Minhun PLD 1964 SC 813 ref.

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

---S. 302---Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal---Accused had no intention to murder the deceased---Only allegation against acquitted accused was that she was busy in committing Zina with the deceased, but for the said act she was never charged by the trial Court---Even no charge was framed against the accused qua, destroying the evidence of dead body of the deceased---Articles belonging to the deceased allegedly recovered from the accused seemed to have been planted on her---Trial Court had advanced just and legal reasons for acquittal of accused which were in accordance with the principles of administration of natural justice---Appeal was dismissed in circumstances.

Iftikhar Hussain and others v. The State 2004 SCMR 1185 ref.

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

---S. 417---Appeal against acquittal---Administration of criminal justice---accused after his acquittal of the charge enjoys double presumption of innocence in his favour and Courts seized of acquittal appeal under S.417, Cr.P.C. are obliged to be very careful in dislodging such presumption--,Undoubtedly two views are always possible while appreciating the evidence available on record, therefore, for such reason and in order to avoid the multiplicity of litigation, Court should follow the recognized principles for interference in the acquittal judgment---Court is competent to interfere in such order provided it is established that the trial Court had disregarded the material evidence or misread the same or received such evidence illegally.

Iftikhar Hussain and others v. The State 2004 SCMR 1185 and Ghulam Sikandar and another v. Mamraiz Khan and others PLD 1985 SC 11 ref.

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

---S. 302(c)---Appreciation of evidence---Accused, immediately after his arrest had made a judicial confession without any pressure or coercion qua his guilt---Similarly in his extra-judicial confession and statement under S. 342, Cr. P. C., the accused had. admitted to have killed the deceased---In absence of any ocular evidence said confessions of accused had to be believed---Many incriminating recoveries including the weapon of offence had been effected at the instance of accused---Accused had caused six sharp-edged weapon injuries on the person of the deceased and deserved no further leniency---Conviction and sentence of twenty years' R.I. awarded to accused were legal, just and in accordance with the criminal administration of natural justice and the same were upheld in circumstances---Case being one of grave and sudden provocation, accused could not be directed to pay compensation to the legal heirs of the deceased and the said direction was set aside accordingly.

Muhammad Amin v. The State PLD 2006 SC 219 and Mst. Joygun Bibi v. The State PLD 1960 SC (Pak.) 313; State v. Minhun alias Gul Hassan PLD 1964 SC 813; Muhammad Yaqoob v. The State 1992 SCMR 1983; Mokha v. Zulfiqar PLD 1978 SC 10; Zakir Khan v. The State 1995 SCMR 1793; Roshan v. The State PLD 1977 SC 557; Umar Din v. Crown ILR 1921 Lah. 129; State v. Waqar Ahmad 1992 SCMR 950; Nadir Hussain v. The Crown 1969 SCMR 442; Habibullah v. The State 1971 SCMR 341; Iftikhar Hussain and others v. The State 2004 SCMR 1185; Ghulam Sikandar and another v. Mamraiz Khan and others PLD 1985 SC 11 and Maraj Begum's case PLD 1982 SC 294 ref.

Dr. Muhammad Irtiza Awan for Appellant, Defence Counsel at State expense.

M. Mazhar Sher Awan, A.P.G. for the State

Ch. Ashraf Ali Javed for Complainant.

Ch. Zaighamullah Sansi for Respondent.

Date of hearing 22nd October; 2007.

P L D 2008 Lahore 39

Before Syed Zahid Hussain, J

MUHAMMAD ISMAIL and others---Appellants

Versus

MUHAMMAD HANIF and others---Respondents

T.A. No.300 of 2007, decided on 29th November, 2007.

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

----S. 12(2)---Application under S.12(2), C.P.C. lies before the court whose judgment, decree or order is sought to be assailed---Principles.

The perusal of the provisions of subsection (2) of, section 12 of the Code of Civil Procedure, 1908 shows that the remedy in terms of the said provisions is in the form of an application "to the court which passed the final judgment, decree or order and not by a separate suit". The expression "the court which passed the judgment, decree or order" is indicative of the intention of the legislature that such an application lies before the court whose judgment, decree or order is sought to be assailed. It cannot be overlooked that the grounds on which the judgment, decree or order can, be challenged are fraud or misrepresentation also. In the context of such pleas the court which can appropriately consider such a plea is the one where fraud has been played. This appears to be the reason that phraseology like "the court which passed the final judgment, decree or order" is used. Depriving the said court of its jurisdiction to examine such a plea of fraud, etc. would defeat the intent and object of law. Undoubtedly, there can be situations such as when the 'presiding officer himself declines the hearing of a matter, and it becomes necessary to transfer the case to some other court. The transferee court in such an eventuality would as of necessity be competent to hear and decide the application. But a mere administrative convenience [equalizing of judicial work] cannot be regarded as a ground for the transfer of such an application from the court which, by law, is obliged to hear and decide the same. It also may not be necessary that the same Judge should decide the application. His successor i.e. the successor court, will equally be competent to decide the same as the word used is "the court" and not the Judge. In the present case, it was the court of Senior Civil Judge, who had passed the final judgment and decree, which was competent to hear the application under section 12(2) of the Code of Civil Procedure, 1908. Such an application was indeed being heard by the successor court, who had not, by any compelling reasons, declined to hear the same. Mere administrative convenience could not have deprived the said court of the jurisdiction and power to decide such an application.

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

----Ss. 24 & 12(2)---Transfer of application filed under section 12(2), C.P.C.---Such application was to be decided by the Court which had passed the final judgment---Mere administrative convenience (equalizing of judicial work) cannot be regarded as a ground for the transfer of such an application---Transfer of application from Court at "F" to "L" declined by High Court as the final judgment and decree were passed by the Court at "F".

High Court directed that further proceedings in the application shall be conducted by the court of Senior Civil Judge who had passed the final judgment and decree and decide the application in accordance with law.

Mst. Riaz Fatima and another v. Ch. Ijaz Ahmad and another 1999 YLR 2681 mentioned.

Syed Tasawar Hussain Bokhari for Appellants.

Aamir Rehman; Addl. A.-G., Punjab (on Court's call).

Nemo for Respondents.

P L D 2008 Lahore 42

Before Muhammad Muzammal Khan and Syed Shabbar Raza Rizvi, JJ

Mir MUHAMMAD ASLAM through L.Rs. and others---Appellants

Versus

BILQEES BEGUM through General-Attorney and others---Respondents

Regular First Appeal No167 of 2005, decided on 12th October, 2007.

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

----S.55---Time as essence of contract---Contract of immovable properties---Principles---Generally time is not essence of contract concerning immovable properties but in case parties thereto settle between them that time would be of the essence of the contract and they subsequently stuck to it, then it becomes operative even in the contract of immovable properties---Simple fixation of time in agreement for execution of sale-deed of immovable property could not make the time as of the essence of contract---If parties with a clear understanding make time as of the essence of contract and subsequently demonstrate same by their conduct, it could become essence of transaction.

Sandoz Limited and another v. Federation of Pakistan and another 1995 SCMR 1431; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344; Mst. Amina Bibi v. Mudassar Aziz PLD 2003 SC 430; Muhammad Yaqoob and others v. Hakim Ali and others 2004 SCMR 584; Fazal-ur-Rehman v. Ahmed Saeed Mughal and others 2004 SCMR 436 and Mst. Batul and others v. Mst. Razia Fazal and others 2005 SCMR 544 rel.

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

----S. 15---Indivisible joint property---Co-sharers not signatories to agreement---Two co-owners of suit property did not associate with the bargain and did not sign agreement to sell---Entire suit property was joint and share of both non-signatories was not identified and could not be separated without resort to partition proceedings by metes and bounds---Effect---Performance of such agreement to sell could not be enforced against non-signatory owners.

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

----Ss.15 & 22---Contract Act (IX of 1872), Ss.55 & 65---Agreement to sell---Specific performance---Indivisible joint property---Time as of the essence of contract, principle of---Applicability---Suit-land was owned by three persons and out of them only defendant entered into agreement to sell with plaintiff for the whole land---Earnest money was received by defendant and agreement was to be completed within a specified time---Plaintiff filed suit on the ground that defendant failed to perform his part of 'agreement and refused to transfer suit-land---Plea raised by defendant was that time was the essence of the agreement and plaintiff had failed to complete the same within the fixed time---Trial Court decreed the suit in favour of plaintiff only to the extent of land owned by defendant---Validity---Plaintiff remained unsuccessful in proving her entitlement to decree granted by Trial Court as she had not expressed her willingness to relinquish her claim to further performance or to compensation etc. of the part of suit-land not given to her---Parties contemplated only a single and indivisible transaction of sale with immediate delivery of possession and for effecting a conveyance time stipulated was expressly mentioned to be of the essence of contract---Part to be specifically enforced stood on a separate and independent footing from remaining part of the contract---Parties entered into agreement with clear intendment that agreement would be performed within six months and they had given a specific date for that purpose---Defendants had successfully proved that they were not obliged to perform their part of contract on account of lapse on the part of plaintiff to pay the balance sale price within the stipulated time---Plaintiff was not entitled to specific performance of agreement in terms of S.65 of Contract Act, 1872 but she was entitled to get back her money paid in advance with profit/interest at the bank rate---Judgment and decree passed by Trial Court for specific performance of agreement to sell was not maintainable and was reversed and decree was modified by High Court for recovery of earnest money.

Inam Naqshband v. Haji Shaikh Ijaz Ahmad PLD 1995 SC 314 distinguished.

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

----Art. 113---Specific performance of contract---Limitation---Computation---For determination of starting point of limitation, Art.113 of Limitation Act, 1908 has two parts, under first part, starting point of three years limitation for filing of suit, is the date given in agreement itself for its performance, whereas under its second part, suit for specific performance can be filed within a period of three years from the date when plaintiff gains notice that performance has been refused.

Mian Sarfrazul Hassan for Appellants.

Shahid Karim for Respondents.

Date of hearing: 24th September, 2007.

P L D 2008 Lahore 51

Before Sardar Muhammad Aslam, J

CITY EDUCATION BOARD (REGISTERED) SIALKOT through Director---Appellant

Versus

Mst. MAQBOOL NASREEN---Respondent

Regular Second Appeal No.36 of 2006, decided on 26th October, 2007.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 17(2)(a) & 79---.Suit for specific performance of sale agreement---Agreement alleged to be executed by defendant---Defendant being an illiterate woman, her plea was that she could affix only her signature; that her signatures were obtained by her husband on blank papers for using them in civil suit pending against her---Plaintiff examined in court Scribe and one marginal witness of agreement, while second marginal witness was stated to have died---Validity---Heavy onus lay on plaintiff to prove agreement entered with female not possessed with independent advice of a person of her confidence---Article 7 of Qanun-e-Shahadat, 1984 required proof of document by at least two attesting witnesses---Scribe of agreement could not be substituted for marginal witness thereof---Non-production of second marginal witness even on account of his death was fatal to plaintiff's case---Plaintiff could examine a person conversant with signatures of deceased marginal witness to prove his signature---According to plaintiff, stamp papers of agreement were purchased by his Clerk and Magistrate used to visit to his Chamber, but he did not enter witness box to prove his signature---Held, agreement was not proved in terms of Art.17 of Qanun-e-Shahadat, thus, specific performance thereof was not enforceable.

Qasim Ali v. Khadim Hussain through legal representatives and others PLD 2005 Lah. 654; Shah Muhammad through L.Rs and 4 others v. Nawab Din 2006 MLD 823; Shamas ud Din through L.Rs v. Abid Hussain through L.Rs 2006 CLC Lah. 571 and Mst. Sakina Bibi and another v. Muhammad Anwar alias Mujahid and others PLD 2007 Lah. 254 rel.

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

---Arts. 17(2)(a) & 79---Sale agreement execution of-Proof-Scribe of agreement could not be substituted for marginal witness thereof.

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

---Arts. 17(2)(a) & 79---Document, execution of----Proof---Requirement of production of two attesting witnesses was sine-quo non to prove document.

Qasim Ali v. Khadim Hussain through legal representatives and others PLD 2005 Lah. 654; Shah Muhammad through L.Rs and 4 others v. Nawab Din MLD 2006 Lah. 823; Shamas ud Din through L.Rs v. Abid Hussain through L.Rs CLC 2006 Lah. 571 and Mst. Sakina Bibi and another v. Muhammad Anwar alias Mujahid and others PLD 2007 Lah. 254 rel.

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

----S. 22---Specific performance of agreement---Grant of decree---Scope---Grant of such decree is discretionary in nature---Court is not legally bound to grant such decree even if same is lawful---Even if agreement is proved such decree can be refused on equitable ground.

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

----Ss. 12 & 22---Suit for specific performance of sale agreement---Transaction took place 21 years ago against consideration of Rs.14,00,000---Amount of Rs.2,00,000 was paid as earnest money to defendant at the time of agreement, while balance amount of Rs. 12,00,000 was yet to be paid---Value of suit property in the meantime had increased manifold, whereas value of rupee had been devalued to large extent---Had consideration amount been invested in profit earning scheme such as Defence Saving Certificates, such amount of 21 years would have been more than Rs.1,50,00,000---Plaintiff was not in favour of enhancement in price---Plaintiff failed 'to deposit balance amount in court on his own, who might have had some edge on such deposit---Plaintiff had utilized balance amount with him---In case of passing of decree in favour of plaintiff, he would secure property worth Rs.1,50,00,000---Plaintiff in such case would have unfair advantage over defendant, which was not approved in law---Even if such agreement was proved, decree could be refused to plaintiff on equitable ground---Suit was dismissed in circumstances.

Syed Arif Shah v. Abdul Hakeem Qureshi (PLD 1991 SC 905) and Muhammad Ghafoor v. Mst. Munawar Shahzadi and another (2007 MLD 264 rel.

Uzair Karamat Bhandari for Appellant.

Mahmood Ahmad Bhatti for Respondent.

Date of hearing: 9th October, 2007.

P L D 2008 Lahore 57

Before Muhammad Jehangir Arshad, J

HILBRO I.NSTRUMENTS (PVT.) LTD. through Chief Executive, Lahore---Applicant

Versus

Mst. SIKANDAR.BEGUM through Special Attorney---Respondent

C.M. No.475-C of 2007 in S.A.O. No.95 of 2006, decided on 31st October, 2007.

(a) West Pakistan Rent Restriction Ordinance (VI of 1959)---

----S. 15(6)---Civil Procedure Code (V of 1908), O.XLI, R.5(2)---Constitution of Pakistan (1973), Art.185(3)---Supreme Court Rules, 1980, O.XX, R.1---Dismissal of second appeal by High Court---Execution of ejectment order stayed by High Court for one month on appellant's application to enable him to avail. remedy before Supreme Court---Filing of petition for leave to appeal by appellant, but non-fixatin of matter of stay before Supreme Court due to heavy workload---Second application by appellant before High Court for staying execution of ejectment order till hearing of matter of stay by Supreme Court---Validity---Act of High , Court in allowing such prayer in second application would amount to sitting over jurisdiction of Supreme Court---High Court, after filing of such petition before Supreme Court, could not exercise jurisdiction under O.XLI, R.5(2), C.P.C.---Any order passed by High Court after filing of such petition before Supreme Court would not only be an order per incuriam but would be violative of O.XX, R.1 of Supreme Court Rules, 1980---Provisions of O.XLI, R.5(2); C.P.C. would cease to apply after filing of such petition---Once appeal before higher forum was filed, then no further indulgence by way of staying execution of decree-order appealed against could be shown---High Court dismissed such second application in circumstances.

C.P. No.48-L of 2005 fol.

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

----O. XLI, R.5(2)---Stay by Court which passed decree/order---Scope---Once appeal before higher forum was filed, then no further indulgence by staying execution of decree/order appealed against could be shown.

Taqi Ahmad Khan for Applicant.

Sajid Mehmood Sheikh for Respondent.

P L D 2008 Lahore 59

Before M. Bilal Khan, J

IFTIKHAR AHMAD---Petitioner

Versus

ZULFIQAR ALI and 3 others---Respondents

Writ Petition No.2920 of 2006, heard on 8th October, 2007.

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

----S. 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Scope of Illegal Dispossession Act, 2005---Complaint filed by the petitioner against the respondents for having been illegally dispossessed from his shops had been dismissed by the Sessions Court in limine on the ground that one respondent was the real brother of the petitioner and that the shop in question had been sold in favour of the petitioner by means of a registered sale-deed---Impugned order had given the impression that if a brother had illegally dispossessed his brother, the Illegal Dispossession Act, 2005, would not be attracted and further that the said Act would also not come into play if the property had been procured by any of the parties by means of a registered sale-deed---Validity---Such view expressed by the Sessions Court could not be accepted---Illegal Dispossession Act, 2005, covered all cases of illegal occupants without any distinction except those which were already pending before any other forum---Impugned order was consequently set aside, the complaint of the petitioner would be deemed to be pending before the trial Court and the same was directed to be decided strictly in accordance with law---Constitutional petition was accepted accordingly.

Rahim Tahir v. Ahmed Jan and 2 others PLD 2007 SC 423 ref.

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

----S. 3---Scope---Illegal Dispossession Act, 2005, covers all cases of illegal occupants without any distinction except those which were already pending before any other forum.

Rahim Tahir v. Ahmed Jan and 2 others PLD 2007 SC 423 ref.

Malik Amjad Pervaiz for Appellant.

Waheed Anwar for Respondents Nos. 1 to 3.

Tahir Mahmood Gondal, A.A.-G. for the State.

Date of hearing: 8th October, 2007.

P L D 2008 Lahore 63

Before Mian Muhammad Najam-uz-Zaman and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD AZAM---Petitioner

Versus

JUDGE, ANTI-TERRORISM COURT, FAISALABAD and 6 others---Respondents

Writ Petitions Nos. 616 and 1078 of 2007, heard on 24th October, 2007.

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

----S. 19(3)---Taking direct cognizance of a case by Anti-Terrorism Court---Purpose and procedure---Anti-Terrorism Court can directly take cognizance of a case triable by it without the case being sent to it by the Magistrate as required under S.190, Cr.P.C.---Purpose of S.19(3) of Anti-Terrorism Act, 1997, is to by-pass the said procedure according to which at the first instance challan/report under S.173, Cr.P.C. is submitted before the concerned Magistrate, who under S.190, Cr.P.C. after examining the facts of the case, refers the matter to the court of competent jurisdiction, if the same is not triable. by him---Special Courts constituted under the Anti-Terrorism Act, 1997, have been given the jurisdiction to take cognizance of the matter directly` when the same is placed before them either through police challan or by way of private complaint disclosing the commission of offence falling within the ambit of the said Act---Jurisdiction given to the Special Court by virtue of S.1.9(3) of the Anti-Terrorism Act, 1997, does not mean that it has the authority quo fishing out, the cases from different police stations and directing the agency to submit challan after incorporating scheduled offences as the facts of the case disclose the commission of said offences---Special Judges even cannot pass such type of orders on reading the news items in the newspapers, as suo motu authority or jurisdiction is not available to them.

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

----Ss. 365 & 365-A---Anti-Terrorism Act (XXVII of 1997), S.19(3)---Constitution of Pakistan (1973), Art.199---Constitutional petitions--Anti-Terrorism Court had directed the investigating agency to submit the challan before it under S.365-A, P.P.C. which was, prima facie, attracted from the circumstances of the case and was exclusively triable by it---Validity---If during investigation of the case police had formed the opinion that only S.365, P.P.C. was made out, then the procedure to be adopted by the police was to submit the challan before the Court of ordinary jurisdiction---Said Court after perusing the record and taking cognizance of the matter, if formed the opinion that the data available on the record was sufficient to attract the provisions of the scheduled offence, then that Court was competent to refer_ the matter to the Special Court through the District Attorney or Public Prosecutor---Manner in which the Special Court through the impugned order had directed the Investigating Officer to submit challan after inserting S.365-A., P.P.C. was not correct---Impugned order was set aside accordingly with the direction to investigating agency to submit report under S.173, Cr.P.C. before the Court of ordinary jurisdiction, which, after perusing the record, would proceed with the matter in the light of observations made by High Court in the judgment---Constitutional petitions were allowed accordingly.

Dost Muhammad Kahut for Petitioners.

Ijaz Anwar for Respondent.

Sarfraz Ali Khan, A.A.-G. with Faiz-ul-Hassan, S.I.

Date of hearing: 24th October, 2007.

P L D 2008 Lahore 66

Before Iqbal Hameed-ur-Rahman, J

Mst. RUQIA BATOOL and another---Petitioners

Versus

THE STATE and 2 others---Respondents

Writ Petition No.4675 of 2007, heard on 3rd October, 2008.

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

----Ss. 365-B/419/420/468/471---Constitution of. Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Both the accused and the complainant were disputing the Nikah of the lady accused with the opposite party---Lady accused had admitted her Nikah with her co-accused and had denied having entered into any other Nikah---Contents of the Nikahnama had been admitted by both the accused as husband and wife and the same was held to the valid---Nikah mentioned in the F.I.R. by the complainant had become doubtful---Where both the accused and the complainant had disputed their alleged Nikah, dispute could only be resolved by the Family Court after making a full-fledged inquiry as to the genuineness of marriage between the parties in the suits for jactitation of marriage and such a case should not have gone to Criminal Court, as Criminal Court was not competent to decide and declare about the legality of respective Nikahs---Question as to which Nikah was valid was a subject fit "for a Family Court to adjudicate upon---Impugned F.I.R. was based upon nothing but frustration and malice on the part of the complainant, who had tried to convert and transform a matrimonial issue into a criminal case in order to put the accused under pressure and break their nuptial ties---Allowing such an FIR. to continue would amount to an abuse of the process of law---Impugned F.I.R. was quashed in circumstances.

Mst. Dilshad Akhtar and another v. The State PLD 1996 Lah. 145; Mst. Zareena Bibi v. The State 2005 PCr.LJ 1119; Mst. Zeenat Bibi and another v. The State and 2 others 2005 PCr.LJ 1312; Mst. Afshan Perveen v. S.H.O. Police Station Qutabpur; Mutlan and 2 others 2004 PCr.LJ 208; Mst. Hajra Khatoon and another v. Station House Officer, Police Station Fateh hug District Attock and 2 others PLD 2005 Lah. 316; Arif Hussain and Azra Pazrveen v. The State PLD 1982 FSC 42; Iftikhar Ahmad alias Raju Soomro and 2 others v. Khan Muhammad and another 2005 YLR 2500; Dr. Ghulam Mustafa Solangi and 5 others v. The State 2005 PCr.LJ 1638 and Mst. Nighat Abbas and others v. Muhammad Yousaf and others 2004 PCr.LJ 620 ref.

(b) Islamic law---

----Marriage---Validity---Forum. for decision---Where Nikah is disputed by the parties, the dispute can only be resolved by the Family Court after entering into a full-fledged inquiry as to the genuineness of the marriage---Criminal Court is not competent to decide and declare about the legality of a disputed Nikah---Such a dispute cannot be made basis for criminal prosecution.

Iftikhar Ahmad alias Raju Soomro and 2 others v. Khan Muhammad and another 2005 YLR 2500; Dr. Ghulam Mustafa Solangi and 5 others v. The State 2005 PCr.LJ 1638 and Mst. Nighat Abbas and others v. Muhammad Yousaf and others 2004 PCr.LJ 620 ref.

Tahir Mahmood for Petitioner.

Muhammad Qasim Khan, A.A.-G. for Respondents.

Muhammad Tahir Ejaz for Respondent No.3.

Muhammad Sabir, A.S.-I. and Mst. Aisha LC/302 along with Mst. Ruqia Batool, Abdul Ghani A.S.-I. with record.

Date of hearing: 3rd October, 2007.

P L D 2008 Lahore 70

Before Fazal-e-Miran Chauhan and Hasnat Ahmad Khan, JJ

MUHAMMAD HASHIM and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 10 of 2007 in Criminal Appeal No.125 of 2006, decided on 19th September, 2007.

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

----S. 426---Penal Code (XLV of 1860), Ss.302(b)/149, 324/149 & 336/149---Suspension of sentence---Two injured prosecution witnesses who had received two simple injuries each in the shape of abrasions had involved five persons out of whom one accused had been acquitted on the basis of same evidence---Allegation against the accused was general in nature---Medical evidence, prima facie, did not commensurate with prosecution version---Case of accused was not distinguishable from that of acquitted co-accused and required re-consideration and reappraisal of evidence---Accused had already undergone the sentence of more than one and a half years and their appeal was not likely to be heard in near future---Two co-accused charged with the similar role had already been admitted to bail by High Court---Sentence of accused was suspended and they were granted bail in circumstances.

Liaqat and another v. The State 1995 SCMR 1819; Makhdoom Javed Hashmi v. The State 2007 SCMR 246; Babar Ali v. Bashir Ahmad and another 2007 SCMR 184 and Raja Shamshad Hussain v. Gulraiz Akhtar and others PLD 2007 SC 564 ref.

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

----Ss. 426(1) & 497---Suspension of sentence---Recording of reasons essential but no criterion provided for the same---Section 426(1), Cr.P.C. though had made recording of reasons essential in case of suspension of sentence, but has not prescribed any guidelines or the manner for exercising such a discretion as how and what would be the criterion for recording the reasons---Provisions under S.426(1), Cr.P.C. and S.497, Cr.P.C. are analogous to each other---Sentence or detention in both the cases is to be suspended pending hearing of the appeal or trial and the convict or the detenue is to be released on bail with the only difference that in the former case the person is a convict already found guilty, while in the latter case he has been charged only to face the trial and is still to be proved guilty.

Raja Shamshad Hussain v. Gulraiz Akhtar and others PLD 1007 SC 564 ref.

Malik Muhammad Salim for Petitioner.

Allah Bux Khan Kalachi for the Complainant.

Shabbir Ahmad Bhatti, D.P.G.

P L D 2008 Lahore 74

Before Mian Muhammad Najam-uz-Zaman and Ijaz Ahmad Chaudhry, JJ

ALLAH DIN and others---Petitioners

Versus

SPECIAL JUDGE, ANTI-TERRORISM COURT NO.1, LAHORE and others---Respondents

Writ Petitions Nos.12332 of 2006, 3076, 338, 3618 and 3947 of 2007, heard on 17th October, 2007.

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

----S. 25(8)---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction---Scope---Bail, grant of----Despite the bar under S.25(8) of the Anti-Terrorism Act, 1997, High Court can release a convict on bail during the pendency of his appeal---Jealously guarding its authority qua the grant of relief to an aggrieved/deserving person by the Court of competent jurisdiction is very natural---Spirit/Theme of Anti-Terrorism Act, 1997, is to provide speedy justice that is why under S.25(5) of the said Act the Appellate Tribunal is required to decide the appeal within seven days and thus debarring the Appellate Authority from releasing the convict on bail during the pendency of his appeal was understandable, but it seems that the Legislature while making the said provisions of law has ignored that if the appeal is not decided within the said period and remained pending for many years due to heavy workload of the Court, then what kind of relief is available to the convict if otherwise his ease is that of corum-non-judice, or short sentence or when the convict is suffering from ailment which could not be treated in the jail hospital---Inordinate delay in prosecution of a criminal case amounts to abuse of process of law/Court and in such like situation accused/convict earns the right for the grant of bail---In spite of the bar under' S.25(8) of the Anti-Terrorism Act, 1997, qua the release of a convict on bail daring the pendency of his appeal, High Court is not deprived of the authority/jurisdiction to grant said relief under extraordinary constitutional jurisdiction in view of Art.199 of the Constitution---High Court,. therefore, in exercise of its extraordinary constitutional jurisdiction in exceptional cases can suspend the sentence of convict during the pendency of his appeal when satisfied that it is a case of corum-non-judice or there is inordinate delay in disposal of appeal or the sentence is short and there is no possibility of hearing of appeal in near future and where the convict during the pendency of his appeal before the Appellate Bench develops an ailment of the nature that keeping him in detention/confinement may result into his death and that he cannot be provided requisite treatment under detention in the Government or other hospitals---Subsection (8) of 5.25 of the Anti-Terrorism Act; 1997, being harsh in nature and contrary to the principles of natural justice was recommended by the High Court to be suitably amended.

Allied Bank Ltd. v. Khalid Farooq 1991 SCMR 599; The State v. Syed Qaim Ali Shah 1992 SCMR 2192; Anwar Saifullah Khan Ex-Federal Minister v. State and 4 others PLD 2000 Lah. 564; Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division Islamabad and others PLD 2001 SC 607; Abdul Aziz Khan Niazi v. The State through Chairman, NAB, Islamabad PLD 2003 SC 668 and Amjad Hussain Gurchani v. Sajjad Haider Khan and another 2004 SCMR 12 ref.

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

---S. 7(h)---Constitution. of Pakistan (1973), Art.199---Constitutional petition---Suspension of sentence---Accused and his co-accused had allegedly quarrelled with their opposite party in the High Court premises and given kicks and fist blows to them was absolutely silent about use of fire arms during the occurrence, nor the occurrence had taken place at any place of worship---Provisions of S.7(h) of the Anti-Terrorism Act, 1997, therefore, were not attracted in the circumstances of the case, which called for reappraisal of evidence---Sentence of accused was suspended and he was admitted to bail accordingly.

Allied Bank Ltd. v. Khalid Farooq 1991 SCMR 599; The State v. Syed Qaim Ali Shah 1992 SCMR 2192; Anwar Saifullah Khan Ex-Federal Minister v. State and 4 others PLD 2000 Lah. 564; Khan Asfandyar Wall and others v. Federation of Pakistan through Cabinet Division Islamabad and others PLD 2001 SC 607, Abdul Aziz Khali Niazi v. The State through Chairman, NAB, Islamabad PLD 2003 SC 668 and Amjad Hussain Gurchani v. Sajjad Haider Khan and another 2004 SCMR 12 ref.

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

----S. 365-A---Constitution of Pakistan (1973), Art.199-Constitutional petition---Suspension of sentence, refusal of---Accused and his co-accused had allegedly kept the abductee in a Baithak and chained him with a cot---Accused was arrested by the raiding party at the spot when the abductee was recovered and his co-accused managed to escape---No ground for suspension of sentence was made out and the petition was dismissed accordingly.

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

----Ss. 386/34, 355/34 & 341---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suspension of sentence---Trial Court vide the impugned judgment had already acquitted the accused from the charge under S.365-A, P.P.C.---Accused had almost undergone the sentences of imprisonment for the offences under Ss.355, P.P.C. and 341, P.P.C.---Prima facie, evidence on record was not sufficient to attract the provisions of S.386, P.P.C.---Accused had already served out more than one and a half years of their sentence of imprisonment and possibility of hearing of their appeal in the near future was not within sight---Sentence of accused was suspended in circumstances and they were released on bail accordingly.

Allied Bank Ltd. v. Khalid Farooq 1991 SCMR 599; The State v. Syed Qaim Ali Shah 1992 SCMR 2192; Anwar Saifullah Khan Ex-Federal Minister v. State and 4 others PLD 2000 Lah. 564; Khan Asfandyar Wali and others v, Federation of Pakistan through Cabinet Division Islamabad and others PLD 2001 SC 607; Abdul Aziz Khan Niazi v. The State through Chairman, NAB, Islamabad PLD 2003 SC 668 and Amjad Hussain Gurchani v. Sajjad Haider. Khan and another 2004 SCMR 12 ref.

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

----Ss. 324/34 & 353/34---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suspension of sentence---Both the accused (brothers) were alleged to have made firing at the police party, but admittedly none of the police officials had secured any injury during the occurrence---Sentence of both the accused was short i.e., maximum three years major portion of which had already been undergone by them---Hearing of, appeals of the accused in near future was not possible---Sentences of accused were suspended in circumstances and they were allowed bail---Constitutional petitions were accepted accordingly.

Allied Bank Ltd. v. Khalid Farooq 1991 SCMR 599; The State v. Syed Qaim Ali Shah 1992 SCMR 2192; Anwar Saifullah Khan Ex-Federal Minister v. State and 4 others 'PLD 2000 Lah. 564; Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division Islamabad and others PLD 2001 SC 607; Abdul Aziz Khan Niazi v. The State through Chairman, NAB, Islamabad PLD 2003 SC 668 and Amjad Hussain Gurchani v. Sajjad Haider Khan and another 2004 SCMR 12 ref.

Muhammad Amjad Pervaiz for Appellant.

Sarfraz Ali Khan, A.A.-G. for Respondents.

Date of hearing: 17th October, 2007.

P L D 2008 Lahore 90

Before Syed Hamid Ali Shah, J

Al-Haj DIWAN BUKHTIAR SAID MUHAMMAD---Petitioner

Versus

DIWAN MAUDOOD MASOOD---Respondent

Civil Revision No.700-D of 1996, decided on 29th October, 2007.

(a) Islamic Jurisprudence---

----Soofi and Taasawaf---Concept.

"Soofi trace back their origin from Ashab-e-Saffa the group of educators, who devoted their lives for imparting education and relinquished worldly affairs.

The word "Taasawaf" is derived from "Saffa", which means cleanliness and the dress which Soofi wears is "Sof", which is ordinary woollen ware, a dress, which portrays humbleness and poverty. The way companions of Hazrat Issa (A.S.) were called "Havaari" because of the white wearing.

Soofi is a person who cleans himself in love of Allah is called "Saafi" and a person whom Allah Almighty cleans becomes "Soofi". One whose inner-self is clean is called the Saint. The signs and reference of "Wali" is that he possesses cleanliness of heart.

Soofi is one whose mind and steps are in unison. That is to say, his thinking, his heart, and the deeds are in one direction and go side by side.

Soofis are free from worldly desires and their spirits are far away from human vices.

"Tasawaf" partakes of eight (8) characteristics namely generosity, condescension/Will, patience, guidance, poverty/self-­negation, ordinary wearing, travel/drifting and abstention.

Sura Kahf, Ayat No.28; Kashf-ul-Majoob; Hazarat Abu Muhammad Murtaesh; Abdul Hassasn Noori and Hazarat Junaid Baghdadi ref.

(b) Sajjadanashin---

----Nomination of---Such appointment is not governed under Islamic law or on the principles of primogeniture and rests solely within the discretion of the incumbent Sajjadanashin.

Sayad Muhammad v. Fatteh Muhammad 22 ILR 24; Diwan Ghulam Rasul v.Ghulam Qutab-ud-Din AIR 1942 Lah. 142; Abid Arif Nomani and others v. Chief Administrator Auqaf, Punjab and others 2004 SCMR 1050; Nazeer Ahmad v. Haji Muhammad 1987 MLD 2278; Gahne Shah v. Maula Shah and others (AIR 1930 Lah. 723 and Mooleka Bibi and another v. Syed Zynul Abedin (1904) 6 BLR 1050 ref.

(c) Sajjadanashin---

----Nomination of---Auqaf Department has no authority to appoint a Sajjadanashin.

Mian Ahmed Ali and others v. Rehabilitation Authorities and others PLD 1964 SC 229; Ch. Altaf Hussain v. Chief Settlement Commissioner and others PLD 1965 SC 68 and Sheikh Inayat Ullah v. M.A. Khan and others PLD 1964 SC 126 ref.

(d) Sajjadanashin---

---Nomination of---Mere a solitary event does not entitle a person to claim succession, when his subsequent conduct contradicts his previous act.

(e) Sajjadanashin---

---Nomination of---Claim of a person for entitlement to the office of Sajjadanashin, on the plea that he had made improvements on Darbar/Shrine and had regularly been arranging meals, for the visitors of shrine was untenable and misconceived---Such act had never been considered relevant for appointment of Sajjadanashin mostly the Shrines are built and improvements/construction raised thereon were through donations of followers/Mureeds, but they (Mureeds) had no say in the appointment of Sajjadanashin.

(f) Sajjadanashin---

----Nomination of---"Sajjadanashin" and "Mutawalli"---Distinction---To succeed to a spiritual office of Sajjadanashin, one has to establish his fitness, at least in the eyes of incumbent.

Sajjadanashin is head of institution, the superior of endowment and the teacher of religious doctrine. He is spiritual preceptor and curator of shrine. Mutawali as against Sajjadanashin is incharge of secular office of a shrine/institution. He manages the worldly affairs of institution, its properties and superintends its beneficial interest. Sajjadanashin has privilege of imparting to his disciples knowledge, whereas the Mutawali is incharge of the institution' in temporal affairs. Sajjadanashin is spiritual while Mutawali is secular office. Term "Sajjadanashin" is derived from Turkish language, it comprises two words namely "Sadajjada" and "Nashin" means rug for prayer or carpet/rug on which a Mohammaden offers "Sajjda". "Nashin means seated thereon. To succeed to a spiritual office one has to establish his fitness, at least in the eyes of incumbent.

(g) Sajjadanashin---

----Nomination of---Late Sajjadanashin and claimant had strained relations in his life time and he had not considered the claimant to succeed to a spiritual office---Claimant had not announced/claimed his appointment, on the occasion of Qul or Chehlum of deceased, rather absented himself from these ceremonies for a simple reason that he had no valid claim to make---No justification existed in such strained relationship for nomination of the claimant as Sajjadanashin---One can be installed or nominated in a spiritual office only when appointer considers him to be pious, righteous and faithful.

(h) Sajjadanashin---

----Nomination of---Mode---Successor is nominated when incumbent Sajjadanashin is on the death bed---Appointment of Sajjadanashin on the basis of nomination, and appointment made in a ceremony which took place on third day of death of incumbent, attended by Head of State, Mureeds, respectables and Gaddinashin of various Shrines was valid and according to recognized mode.

Piran v. Abdool Karim 19 Cal.203 rel.

Ch. Mushtaq Ahmad Khan and Ashfaq Qayyum Cheema for Petitioner.

Syed Iftikhar Hussain Gillani for Respondent.

Date of hearing: 25th September, 2007.

P L D 2008 Lahore 103

Before Muhammad Muzammal Khan and Syed Shabbar Raza Rizvi, JJ

MUHAMMAD AZAM---Appellant

Versus

INSPECTOR-GENERAL OF POLICE, ISLAMABAD and 2 others---Respondents

Intra-Court Appeal No.122 of 2003, decided on 24th October, 2007.

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

----Ss. 302/324---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court Appeal---Single Bench of High Court in a constitutional petition had directed to entrust the investigation of the entire occurrence to a senior officer in FIA not below the rank of a Director FIA---Two persons had lost their lives and five persons were seriously injured in the said occurrence---Grievance of the appellant was that the existing FIR did not reflect the true account of the occurrence---FIA under the Federal Investigation Agency Act, 1974, was not competent to investigate the existing F.I.R., as offences mentioned in the F.I.R. were not included in the Schedule on the date when impugned order was passed i.e. 15-7-2003---Schedule was amended on 18-2-2004 and S.302, P.P.C. stood included therein---Likewise inquiry prior to registration of an F.I.R. was not contemplate under the provisions of the Code of Criminal Procedure---Similarly where a different, opposite or a cross version was put forth by the complainant which had disclosed commission of a cognizable offence, second F.I.R. was not barred-S.H.O. concerned was directed in circumstances to register second F.I.R. on the complaint of the appellant, investigation of which was further directed to be conducted by the local police instead of FIA as required under the Police Order, 2002, taking into account the mandate and provision of Rule 25.2 of the Police Rules, 1934---Appeal was allowed accordingly.

PLD 2005 Lah. 470; PLD 2007 SC 539; PLD 1978 Lah. 187 and Miss Ghanwa Bhuttoo and others v. Government of Sindh and others PLD 1997 Kar. 119 ref.

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

----Preamble---Inquiry before registration of F.I.R.---Inquiry prior to registration of an F.I.R. is not contemplated under the provisions of the Code of Criminal Procedure.

PLD 2005 Lah. 470 and PLD 2007 SC 539 ref.

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

----S. 154---Information in cognizable cases---Second F.I.R., recording of---Where a different, opposite or a cross version disclosing commission of a cognizable offence, is put forth by the complainant, second F.I.R. is not barred.

PLD 1978 Lah. 187 and Miss Ghanwa Bhuttoo and others v. Government of Sindh and others PLD 1997 Kar. 119 ref.

Shaukat Aziz Siddiqui for Appellant.

Sardar M. Ishaq Khans for Respondents.

Syed Hasnain Kazmi, A.A.-G. with Ishfar Warraich, A.S.-I.

P L D 2008 Lahore 105

Before Muhammad Muzammal Khan and Syed Shabbar Raza Rizvi, JJ

Syed NADEEM HASSAN KAZMI---Petitioner

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD and 3 others---Respondents

Writ Petition No.7880 of 2007, decided on 26th November, 2007.

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

----Ss. 16A(a), 4 & 9---Penal Code (XLV of 1860), Ss.406/420/4681 471/109---Prevention of Corruption Act (II of 1947), S.5(2)---Constitution of Pakistan (1973), Arts. 25 & 199---Constitutional petition---Jurisdiction of Accountability Court to try the accused, employee of a private bank, challenged---Case of accused had been transferred to the Accountability Court from the Banking Court on application/reference of Acting Chairman, NAB---Validity---Said officer was competent to do so under S.16A(a) of the National Accountability Ordinance, 1999---Accountability Court under S.16A(a) of the said Ordinance could also recall the witness already examined by the Special Court, if necessary---Since proceedings were pending before a competent Court, Art. 25 of the Constitution was not violated---Accused, no doubt, was an employee of a private bank and he was not holding a public office, but he was amenable to the jurisdiction of the Accountability Court---Under Ss.4 & 9 of the National Accountability Ordinance, 1999, a holder of public office as well as a private person and a citizen of Pakistan had to be tried by the Accountability Court under the said Ordinance, which was applicable even on the serving and retired persons in the service of Pakistan and all other persons---Impugned order was consequently upheld and the Constitutional petition was dismissed accordingly.

Black's Law Dictionary, 6th Edn. P1095 and Muhammad Nazim ud Din v. Chairman, NAB PLD 2007 Kar. 586 ref.

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

----S. 9(a)---Scope---Not only a holder of public office, but also any other person who is not a holder of public office is amenable to the jurisdiction of an Accountability Court under the National Accountability Ordinance, 1999.

Sh. Zia Ullah for Petitioner.

Ch. Abdus Sattar, Special Prosecutor for NAB.

P L D 2008 Lahore 110

Before Syed Shabbar Raza Rizvi, J

Rana GHULAM MUSTAFA---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION CIVIL LINE, LAHORE and 2 others---Respondents

Writ Petitions Nos.11127 and 11262 of 2007, heard on 30th November, 2007.

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

----S. 154---Penal Code (XLV of 1860), Ss.420/468/471/419/452/148---Police Rules, 1934, R.25.2---Constitution of Pakistan (1973), Art.199---Constitutional petition---Second F.I.R, registration of---Both the parties including the S.H.O. had not disclosed the true facts and had suppressed the truth---Even the Additional Sessions Judge had tried to hide something in the impugned order as the tenor of his two orders was inconsistent and different from each other---Dispute between the parties related to sale of a Dental Clinic---Versions put forth by the parties were distinct from each other and the version of the petitioner (purchaser) could not be treated as an amplification of the version of the complainant (seller) of the F.I.R. already registered---S.H.O. was consequently directed to implement the order of the Additional Sessions Judge, ex-officio Justice of Peace and register an F.I.R. on the complaint of the petitioner and to investigate the second F.I.R. adhering to the requirements and mandate of the provisions of R.25.2 of Police Rules, 1934---Constitutional petition was allowed accordingly.

PLD 1998 Lah. 772; PLD 1992 Lah. 167; Allah Ditta and 3 others v The S.H.O. P.S., Basirpur, District Okara and 3 others PLD 1967 Lah. 300; Mrs. Ghanwa Bhutto and another v. Government of Sindh and another PLD 1997 Kar. 119 and PLD 1975 SCMR 149 ref.

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

----S. 154---Information in cognizable cases---Second F.I.R.---Recording of--Information can be laid before the S.H.O. about an occurrence at any time, even if already an F.I.R. stands registered about the same occurrence---No bar exists in laying information one after the other to be recorded as F.I.R., if such information discloses commission of a separate cognizable offence---Second or latter information should not be merely an amplification of the first F.I.R., but it should be a disclosure of a different criminal activity---Recording of a second F.I.R. or a direction to that effect depends upon the facts and circumstances of each case---No hard and fast rules or principles can be laid down as to when a second F.I.R can or should be recorded---Matter has to be seen in the context of the totality of the circumstances and the allegations.

Allah Ditta and 3 others v The S.H.O. P.S., Basirpur, District Okara and 3 others PLD 1967 Lah. 300; Mrs. Ghanwa Bhutto and another v. Government of Sindh and another PLD 1997 Kar. 119 and PLD 1975 SCMR 149 ref.

Muhammad Bashir Malik for Petitioner.

Ch.Riasat Ali for Respondents.

Ch. Khursheed Anwar Bhinder, Addl. A.-G. along with Anwar Saeed, Inspector for the State.

Date of hearing: 30th November, 2007.

P L D 2008 Lahore 116

Before Syed Zahid Hussain and Syed Hamid Ali Shah, JJ

PROVINCE OF PUNJAB through Deputy Commissioner/Collector, Sialkot

and another---Appellants

Versus

MUHAMMAD SHAFI and 100 others---Respondents

R.F.A. No.40 of 2000, decided on 3rd December, 2007.

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

----S. 23---Land acquisition---Compensation, determination of---Factors requiring consideration stated.

Considerations and factors for determining the compensation of the land vary from time to time, location to location keeping in view the use, present and future, its vicinity and ambience. There cannot be any fixity of criteria. Assessment of fair compensation is to be made objectively'. Burden of proving the entitlement to higher rate of compensation is on the landowner.

Province of Punjab through Collector, Sheikhupura and others v. Akbar Ali and others 1990 SCMR 899; Market Committee, Kanganpur through Administrator v Rayyat Ali and others 1991 SCMR 572; Chimanlal Hargovinnddas v. Special Land Acquisition Officer, Poona and another AIR 1988 SC 1652; Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbotabad and others 1991 SCMR 2164; Maqbool Ahmed Fatehally and others v. The Collector, District Lasbella and others 1992 SCMR 2342; Land Acquisition Collector, Rawalpindi and others v. Dina and others 1999 SCMR 1615; Murad Khan through his widow and 13 others v Land Acquisition Collector and another 1999 SCMR 1647; Collector, Land Acquisition Mardan and others v. Nawabzada M. Ayub Khan and others 2000 SCMR 1322; Fazal Haq College through Vice-Chairman v. Said Rasan and others 'PLD 2003 SC 480 and Government of Sindh and 2 others v. Muhammad Usman and 2 others 1984 CLC 3406 ref.

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

----Ss. 18, 20, 22-A & 50(2)---Civil Procedure Code (V of 1908), O.I, R.10---Reference before Court---Non-issuance of notice to Local Authority for whom land was acquired---Application by Local Authority to be impleaded as party in reference---Dismissal of application by Reference Court on the ground that Local Authority was not necessary party, but could produce evidence for determination of value of land---Revision petition by Local Authority against dismissal of its application---Decision of reference by court during pendency of revision petition resulting in its dismissal for having become infructuous---Application by Local Authority to be impleaded as party in appeals filed by landowners and Collector against judgment of Reference Court---Validity---Compensation determined by Reference Court was alleged by landowners to be on lower side, while according to Collector, same was on higher side---Whatever compensation was ultimately determined to be adequate and reasonable, burden thereof would be on Local Authority---Local Authority was entitled to be impleaded as party and heard in such matter by Reference Court---Local Authority was not initially served with notice and had no opportunity of lodging cross-objections and was not allowed to appear and produce evidence before Reference Court---High Court set aside impugned judgment with directions to Reference Court to determine compensation afresh after affording full opportunity to parties.

Pir Khan through his Legal Heirs v. Military Estate Officer Abbotabad and others PLD 1987 SC 485; Behram Khan and 54 others v. Military Estate Officer and 2 others 1988 SCMR 1160; Iftikhar Hussain Shah and others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi and others 1991 SCMR 2193; Land Acquisition Collector, Abbotabad and others v. Muhammad Iqbal and others 1992 SCMR 1245; and Pakistan through Military Estate Officer, Kharian Cantt. and another v. Abdul Hayee Khan through Legal Heirs and 5 others PLD 1995 SC 418; U.P., Awaz Evam Vikas Parishad v. Ghan Devi (dead) by L.Rs. and others AIR 1995 SC 724; Messrs Neyvly Lignite Corpn. Ltd. v. Special Tahsildar (Land Acquisition) Neyvely and others AIR 1995 SC 1004; Abdul Rasak and others v. Kerala Water Authority and others PLJ 2004 SC (India) 185; Rajpipla Municipality v. Smt. Manekben and others AIR 1981 Gujarat 210; Indian Oil Corporation Ltd., Rajkot v. Amratlal Chimanlal and others AIR 1989 Gujarat 32; Victoria Xavier and others v. The Greater Cochin Development Authority and another AIR 1993 Kerala 95 and Hassan Imdad v. Deputy Commissioner/ Collector, Lasbella PLD 1985 Quetta 1 ref.

Rizwan Mushtaq, Asstt. A.-G. Punjab, Jari Ullah Khan and M.M. Alain Chaudhry for Appellant.

Malik Abdul Wahid for Respondent.

Dates of hearing: 29th November and 3rd December, 2007.

P L D 2008 Lahore 125

Before Tariq Shamim, J

GHULAM FAREED---Petitioner

Versus

MUHAMMAD MANSHA and 6 others---Respondents

Writ Petition No.2933 of 2006, heard on 6th December, 2007.

Penal Code (XLV of 1860)---

----Ss. 324, 336, 337(i)(v) & 285/34---Criminal Procedure Code (V of 1898), S.227---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application for addition of offence---Rejection of such application---Five witnesses including the medical officer were examined at trial and the offences under Ss.324 & 336, P.P.C. were fully made out from their-testimony---Petitioner submitted application seeking addition of offences and accordingly framing of the charge against accused---Application to the extent of addition of offence under S.336, P.P.C. was accepted, but it was declined to the extent of offence under S.324, P.P.C.---Both petitioners and one respondent being aggrieved of said order filed separate criminal revisions before Sessions Judge who accepted revision filed by the respondent, but dismissed revision filed by the petitioner who being aggrieved of said order had filed constitutional petition---Validity---Held, as a result of the injury there was Itlaf-i-Salahiyyat-i-Udw as the victim was not in a position to perform any physical work with his left arm, but the Court vide impugned order had failed to consider that aspect of the case and did not make any effort to refer the injured for examination by a Medical Board---Magistrate/Trial Court, in his well-reasoned order based on the evidence adduced by the prosecution at the trial, had rightly concluded that offence under S.336, P.P.C. was attracted---Impugned order passed in revision was set aside---Revision petition would be deemed to be pending which would be decided by the revisional Court in the light of the report of Medical Board.

Ch. Din Muhammad Mayo for Petitioner.

Arshd Ali Chohan and Malik Fawad, A.A.-G. for Respondents.

Date of hearing: 6th December, 2007.

P L D 2008 Lahore 128

Before Mian Muhammad Najam-uz-Zaman, Tariq Shamim and M. Bilal Khan, JJ

SAMI ULLAH CH.---Petitioner

Versus

RETURNING OFFICER, BAHAWALPUR and 2 others---Respondents

Writ Petition No.12015 of 2007, decided on 17th December, 2007.

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

----Ss. 99(1)(g) & 100---Conduct of General Elections Order (7 of 2002), Art.8-D(1)(h), (2)(h)---Constitution of Pakistan (1973), Arts.63(h) & 199---Contempt of Court Act (LXIV of 1976), S.4---Constitutional petition---Conviction of candidate for election of Provincial Assembly under S.4, Contempt of Court Act, 1976 and sentenced to suffer imprisonment till the rising of the Court-Effect-Held, provision regarding permission to contest election after a lapse of five years from incurring disqualification having been omitted, disqualification incurred by the candidate was permanent in nature in view of Art.63(h) of the Constitution, Arts.8-D(1)(h) and 8-D(2)(h) of the Conduct of General Elections Order, 2002 as well as S.99(1)(g) of the Representation of the People Act, 1976---Principles.

Amendment was made in Article 63(h) of the Constitution by the Legal Framework Order, 2002 whereby the period of disqualification was omitted. Protection was given to the Legal Framework Order, 2002 by virtue of Article 270-AA of the Constitution on account of 17th Amendment in the Constitution brought about on 31st December, 2003. Amendment was also made in section 99 of the Representation of the People Act, 1976 and according to subsection (1) clause (g), if a person is convicted for a crime involving moral turpitude, etc. he is not qualified to be elected or chosen as a member of an Assembly.

Although conviction under the Contempt of Courts Act, 1976 does not find mention as disqualification under Article 63 of the Constitution, however, the language couched in section 100 of the Representation of the People Act and Article 63 of the Constitution as well as Arts.8-D(1)(h). and 8-D(2)(h) of the Conduct of General Elections Order, 2002 as well as section 99(1)(g) of the Representation of the People Act, 1976 is unambiguous and clear in all respects and, therefore, legal effect must be given to it. Since the provision regarding permission to contest election after a lapse of 5 years from incurring disqualification has been omitted, therefore, the disqualification incurred by the candidate is permanent in nature in view of Article 63(h) of the Constitution, sections 8-D(1)(h) and 8-D(2)(h) of the Conduct of General Elections Order, 2002 as well as section 99(1)(g) of the Representation of the People Act, 1976.

Zahid Sultan Khan Minhas for Petitioner.

P L D 2008 Lahore 130

Before Mian Muhammad Najam-uz-Zaman, Tariq Shamim and M. Bilal Khan, JJ

Ch. QAMAR JAVED---Petitioner

Versus

INTISAR HUSSAIN and 3 others---Respondents

Writ Petitions Nos.11871, 11872, 11920 and 11984 of 2007, decided on 19th December, 2007.

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

----S. 99(1)(f)(cc)---Conduct of General Elections Order (7 of 2002), Art.8-A---Constitution of Pakistan (1973), Arts. 62-F & 199---Constitutional petition---Educational qualification of a candidate for election of Provincial Assembly/National Assembly---Candidate had been guilty of fraud by hoodwinking the University authorities in procuring a degree by hook or by crook and had not exhibited a very enviable conduct---University authorities had cancelled the degree so obtained--Candidate had not only tried to cheat and practise deception upon Election Authorities but had also tried to steal a march on the Court---Held, by no stretch, of imagination could the candidate be termed as sagacious, righteous non-profligate, honest and Ameen as provided by Art.62-F of the Constitution as well as S.99(1)(f) of the Representation of People Act, 1976 and consequently could not be allowed to contest elections---Constitutional petition against acceptance of his nomination papers was accepted by the High Court as there was hardly any dispute left to be inquired into or investigated upon---Order of the Election Tribunal was set aside and candidate was declared to be not qualified to contest election due to lack of educational qualification etc. as provided for in terms of S.99(1)(f)(cc), of the Representation of the People .Act, 1976.

Intisar Hussain v. Akhtar Hussain and 4 others 2003 SCMR 204 and Ch. Nazir Ahmad and others v. Chief Election Commissioner and 4 others PLD 2002 SC 184 ref.

Saif-ul-Malook, Abid Saqi and Ch. Fawad Hussain for Petitioner.

Muhammad Shan Gul and Nazir Ahmad Ghazi for Respondent No.1.

Muhammad Arif Raja, Advocate/Legal Advisor University of the Punjab, Lahore with Abdul Rehman, Administrative Officer.

P L D 2008 Lahore 134

Before Tariq Shamim, Hasnat Ahmad Khan and Zafar Iqbal Chaudhry, JJ

Ch. MUBASHAR HUSSAIN---Petitioner

Versus

RETURNING OFFICER, KHARIAN, DISTRICT GUJRAT and 3 others---Respondents

Writ Petition No.11976 of 2007, decided on 18th December, 2007.

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

----Ss. 5-A, 12, 13 & 14(3)(c)---Contract Act (IX of 1872), S.128---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election to National Assembly---Rejection of nomination papers---Candidate stood guarantor by entering into plea-bargain agreement executed by principal debtor in favour of Punjab Cooperative Board for Liquidation---Non-payment of agreed amount by principal debtor and candidate to the Board---Recovery proceedings against principal debtor and candidate initiated by National Accountability Bureau---Pendency of petitioner's constitutional petition in High Court challenging such recovery proceedings---Interim order of High Court directing such Bureau not to initiate further proceedings against candidate till further orders---Omission of candidate to make reference in nomination papers to such plea-bargain agreement and pendency of such constitutional petition---Nomination papers accepted by Returning Officer were rejected by Election Tribunal---Validity---Candidate had suppressed and concealed a material discloure as he was bound to make a solemn declaration in terms of S.12 of Representation of the People Act, 1976 and para.3 of his nomination papers---Such -interim order of High Court had no effect vis-a-vis claim or demand of National Accountability Bureau---Liability of candidate under such agreement was admitted one, which he had not fully satisfied---Liability of a guarantor under law was co-extensive with that of principal debtor---Act of non-fulfillment of obligation by candidate was not only in breach of such agreement, but was against the Injunctions of Islam, which required a person to fulfil all his obligations---Returning Officer while accepting nomination papers had acted in an erroneous manner and failed to perform his duty---High Court upheld order of Election Tribunal in circumstances.

Rafique Hazquel Masih v. Bank Alfalah Limited and others 2005 SCMR 72 rel.

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

----S. 128---Guarantor's liability would be co-extensive with that of principal debtor.

Rafique Hazquel Masih v. Bank Alfalah Limited and others 21195 SCMR 72 rel.

Imtiaz Rashid Siddiqui for Petitioner.

P L D 2008 Lahore 138

Before Tariq Shamim, J

Rana NISAR AHMAD---Petitioner

Versus

MADINA SUGAR MILLS through General Manager and another---Respondents

Criminal Miscellaneous No.16-H of 2008, decided on list January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus---Obstruction to bailiff---Registration of F.I.R. against detenus---Bailiff was deputed by High Court to search the mill where detenus were allegedly kept in illegal confinement---Report submitted by bailiff stated that General Manager and Administrative Officer of the mill not only failed to cooperate with him but displayed insolent conduct while causing obstruction in his attempt to carry out search of the mill premises in order to recover the detenus as ordered by High Court---Effect---Attitude and behaviour of two officers led to the conclusion that detenus were confined in the mill premises at the time raid was conducted by bailiff and F.I.R. had been lodged by mill management subsequent to the raid to cover up its illegal acts---High Court directed Station House Officer to forthwith register criminal case against both the officers of the mill under the 'relevant provisions of law---Detenus having been kept in illegal confinement by mill authorities, therefore, they were allowed provisional post-arrest bail in the F.I.R. registered against them---Petition was allowed accordingly.

Ch. Ali Muhammad for Petitioner.

Ijaz Ahmad Khan for Respondents.

Amjad Ali Chattha Asstt.A.-G. Punjab.

Ahmad Khan, Inspector/S. H.O., Police Station Sadar Chiniot with Dil Nawaz, A.S.I.

P L D 2008 Lahore 141

Before Tariq Shamim, J

MAJID ALI ABBASI -Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9411-B of 2007, decided on 21st January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)--Emigration Ordinance (XVIII of 1979), Ss.18 & 22---Penal Code (XLV of 1860), Ss.411 & 109---Bail, grant of---Further inquiry---Law officer had not been able to provide any plausible explanation as to why the Passports bearing disputed visa stickers were sent to the British High .Commission for verification after more than three months of the recovery---Passports in question remained in the custody of the FIA during the said period---No evidence was on record to even remotely suggest that accused had played any part or role in the theft of the visa stickers stolen en route from U.K. to the British Embassy in Moscow---No evidence was on record to suggest that accused had forged or fabricated said visa stickers---No instrument or article which could be used for the purpose of forgery was recovered from accused---Merely being in possession of documents purportedly forged, was no offence, unless it could be shown that same had been used as genuine---No evidence was available on record to show that Passports with forged or stolen visa stickers had been used---Investigation conducted by the FIA was lacking in many respects and prima facie not enough incriminating material was to directly or indirectly connect accused with the commission of theft of said stickers, forgery of fabrication thereof---Perusal of F.I.R. as well as the material collected by the FIA revealed that prima facie the provisions of S.18 of Emigration Ordinance, 1979 were not attracted to the case of accused---Evidence available on record was scant and not sufficient to connect accused with, commission of offence under S.22 of Emigration Ordinance, 1979---Case of accused being one of further inquiry calling for further probe into his guilt, accused was admitted to bail, in circumstances.

Muhammad Ghani for Petitioner.

Ch. Rizwan Amjad for the State: Muhammad Sarwar, Inspector, F.I.A.

P L D 2008 Lahore 146

Before Hasnat Ahmad Khan, J

BASHIR AHMAD and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Revision No.495 of 2007, decided on 14th December, 2007.

Penal Code (XLV of 1860)---

----Ss. 324, 337-A(iii), 34---Criminal Procedure Code (V of 1898), Ss.221, 342, 355 & 530---Remand of case---Proceedings which vitiated the trial---Statements of material prosecution witnesses were recorded during trial by some official of court, charge was not properly framed against accused persons in accordance with law and while recording statements of accused under S.342,Cr.P.C., incriminating evidence was not put to them---Appellate court set aside the conviction awarded to accused for such illegalities committed by Trial Court during trial and remanded the case for retrial---Plea raised by accused was that Appellate Court, instead of remanding the case for retrial, should have acquitted them---Validity---Illegalities committed by Trial Court during trial had vitiated the trial---Under the law Trial Court was bound to record evidence itself or on its dictation such violation of law was an illegality which had vitiated the trial---Accused failed to point out any illegality, irregularity or jurisdictional error committed by Lower Appellate Court---High Court declined to interfere with the judgment passed by Lower Appellate Court remanding the case for retrial---Revision was dismissed in circumstances.

Abid Hussain v. The State 2000 PCr.LJ 1300; Sohail Ahmad and 6 others v. The State and another 1995 PCr.LJ 2036; Ghulam Abbas v. Inayatullah and another PLD 1976 Lah. 1555; Muhammad Inayat and others v. Muhammad Aslam and another 1998 PCr.LJ 344; Muhammad Sarwar v. Khuda Bakhsh PLD 1950 Lah. 274; Abdur Rehman v. Allah Diwaya PLD 1950 BJ 96; Tahir Javed and others v. Abdul Razzaq and others PLD 1995 Lah. 261; Abdul Hakeem and another v. The State 2005 PCr.LJ 181 and Farrukh Sayyar and 2 others v. Chairman N.A.B., Islamabad and others 2004 SCMR 1 ref.

Ch. Abdul Razaq for Petitioners.

P L D 2008 Lahore 149

Before Hasnat Ahmad Khan, Zafar Iqbal Chaudhry and Khurshid Anwar Bhinder, JJ

NAGHMA MUSHTAQ---Petitioner

Versus

ELECTION TRIBUNAL, PUNJAB, LAHORE and 2 others---Respondents

Writ Petition No.12077 of 2007, decided on 4th January, 2008.

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

----S. 99(1)(cc)---Conduct of General Elections Order [7 of 2002], Art.8-A---Notifications No.D.2(11)/2002-Cord, dated 25-7-2002 and F.2(11)/2002/Cord, dated 29-7-2002---Constitution of Pakistan (1973), Art.199---Constitutional petition---Educational qualification of candidate---Equivalence---Nomination papers of candidate were concurrently rejected by Returning Officer as well as by Election Tribunal on the ground that candidate did not possess qualification equivalent to BA---Validity---Institution/seminary which statedly issued "Sanad" to candidate did not figure in the list of institutions recognized by University Graiits Commission for issuing Asnad equivalent to BA degrees---Neither the Sanad on the basis of which candidate was claiming herself to be a graduate was recognized nor the institution which had issued the "Sanad" in favour of candidate was an approved/recognized seminary---High Court did not find any illegality, irregularity or jurisdictional error in the orders passed by the forums below whereby nomination papers filed by candidate were rejected---Constitutional petition was dismissed in circumstances.

Moulana Abdullah v. Returning Officer and others 2003 SCMR 195 and Abdul Khaliq and another v. Maulvi Muhammad Noor and others PLD 2005 SC 962 rel.

(b) Conduct of General Elections Order [7 of 2002]---

----Art. 8-A---Notification No.F.2(11)/2002-Cord, dated 29-7-2002---Term "forthcoming general elections"---Applicability---As such the term used in Notification No.F.2(11)/2002-Cord, dated 29-7-2002, is relatable to general elections which were held in year, 2002---Benefit of direction/concession mentioned in the Notification cannot be stretched or extended for general elections to be held for all times to come.

IInd Edn. of Legal Thesaurus by William C. Burton; Chambers 21st Century Dictionary and Oxford Advanced Learner's Dictionary ref.

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

----S. 99---Qualified to contest election---Onus to prove---Candidate claiming himself/herself to be qualified to contest general election has to show that he/she is qualified to contest such elections---During-process of scrutiny if any objection is raised against any candidate on the basis of lack of required qualifications to contest election, burden to prove such qualification is heavier on the candidate than the objector.

(d) Precedents---

----Final judgment and leave granting order passed by Supreme Court---Preference---Leave granting order passed by Supreme Court cannot be given precedence over final judgment of the Supreme Court.

Ch. Fawad Hussian and Muhammad Asif Ismaeel for Petitioner.

Abdul Hameed Rana, Addl. A.-G. and Naeem Masood, A.A.-G. Irshad Ahmad Cheema for Respondent No. 1.

Muhammad Shan Gul for Malik Muhammad Akram Kanun, newly-impleaded respondent.

Syed Najaf Hussian Shah for Respondent No.3.

Bashir Ahmad, Deputy Director, HEC, Regional Office, Lahore.

P L D 2008 Lahore 159

Before Fazal-e-Miran Chauhan and Syed Shabbar Raza Rizvi, JJ

MUHAMMAD SABIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9291-B of 2007, decided on 22nd January, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(b) & 51---Bail, refusal of---Order sheet of the Trial Court had shown that after framing of charge, prosecution was directed to adduce its evidence, but on three occasions evidence of prosecution was not available--Subsequently two prosecution witnesses were present, but their statements could not be recorded in view of request for adjournment made by accused---On various dates prosecution witnesses were present, but their statements could not be recorded as for various reasons adjournments were sought by the accused---Said orders of the Trial Court had shown that blame of delay could not be attributed to the prosecution, whereas conduct of accused was also blameworthy and bail application could not be allowed on ground of delay---Even otherwise after framing of charge and at stage of recording of evidence, normally bail was not granted in narcotics cases---Section 497 Cr.P.C. required to be read in conjunction with S.51 of Control of Narcotic Substances Act, 1997---Bail application was dismissed in circumstances.

Farooq Amjad Mir for Petitioner.

Rana Bakhtiar Ali, D.P. General, Punjab.

Rana Muhammad Akhtar A.S.-I. with record.

Abrar Inspector with record.

P L D 2008 Lahore 161

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD SALEEM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.8965-B of 2007, decided on 17th January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.371-A & 371-B---Bail, refusal of---Provisions of S.371-A, P.P.C. were apparently attracted in view of the statements of facts in the F.I.R.---Accused were reported to be involved in the commission of cognizable offences; they were required to be arrested---Police Officers were empowered to conduct the raid---Guest house was a commercial organization and could not be equated with a private house which was also suspected or being used for commission of the offences---Offence alleged against accused was also covered by the prohibitory clause of S.497 Cr.P.C.---Reasonable grounds appeared for believing that accused had been guilty of an offence punishable with imprisonment for more than 10 years, covered by prohibitory clause of S.497 Cr.P.C.---Bail application of accused, was dismissed, in circumstances.

PLD 1999 Lah. 297 and PLD 1998 Lah. 35 ref.

Tariq Pervez Malik for Petitioner.

Asif Mahmood Chaeema, D.P.G. with Rehmat Ali S.I.

P L D 2008 Lahore 164

Before Sardar Muhammad Aslam and Tariq Shamim, JJ

MUHAMMAD SHAUKAT---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.2133 of 2003, heard on 16th January, 2008.

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

----S. 9(c)---Appreciation of evidence---Accused was caught red-handed and from his possession 4 kilograms of heroin, 9 kilograms and 30 grams of opium was recovered--:-Samples were sent to Chemical Examiner for analysis and his report was positive---Recovery witnesses were cross-examined at length, but their testimony was not shaken---No evidence was led in defence to prove the plea of false implication---Conviction could be recorded on the statement of one witness, if his statement was truthful---Law did not require that all the witnesses who witnessed the recovery were to be produced in court---Police Officer and Assistant Director in A.N.F. both witnessed the recovery and signed the recovery memo---Huge quantity having been recovered, hence question of false implication by planting the narcotics was ruled out---Senior Officer who conducted the investigation, had no ill-will or animosity against accused---Accused who' was in possession of quantity more than 10 kilograms was not entitled to reduction in sentence---Prosecution having fully proved its case beyond reasonable doubt, there was no ground for interference.

Mohsin Mehmood for Appellant.

Rana Sohail Maqsood for Respondent.

Date of hearing: 16th January, 2008.

P L D 2008 Lahore 167

Before Syed Asghar Haider, J

NAZAR MUHAMMAD---Petitioner

Versus

AYESHA BIBI and 3 others---Respondents

Civil Revision No.418 of 2007, decided on 15th January, 2008.

Islamic Law---

----Inheritance---Fiqa Jafria---Childless widow, rights of---Scope---Such widow would not take interest in landed property of deceased husband, but would get 1/4th share from his other movable assets only---Principles.

Mst. Sharif Bibi v. Munir Hussian shah and 7 others 2000 YLR 2580; Mst. Aisha Bibi (deceased) through Legal Heirs and others v. Muhammad Malik and others 2003 YLR 2949; Bhojraj v. Sita Ram and others AIR 1936 PC 60; Malik Khan Muhammad v. Haji Sikandar Khan 1989 CLC 2412; Mahmood ul Hassan deceased through Legal Heirs and others v. Yateem Bibi and others 2004 YLR 1133; Syed Lal Hussian Shah v. Mst. Robina Shaheen and another PLD 2000 SC(AJK) 25; Tayab Jis Mohammedan Law IIIrd Edn, p.98; Muhammadan Law Chap. VIII, by D.F. Mullah, Mahommedan Law Chap. VI, p.1112, by Syed Ameer Ali and Syed Muhammad Munir v. Abu Nasar, Member (Judicial) Board of revenue, Punjab, Lahore and 7 others PLD 1972 SC 346 ref.

Sheikh Naveed Shehryar for Petitioner.

Respondent: Ex parte.

Date of hearing: 5th December, 2007.

P L D 2008 Lahore 171

Before Hasnat Ahmad Khan, J

MEHMOOD-UL-HASSAN GILLANI---Petitioner

Versus

MAGISTRATE 1ST CLASS, KHUSHAB and 3 others---Respondents

Writ Petition No.11671 of 2007, decided on 6th December, 2007.

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

----Ss. 452 & 506---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioner seeking declaration of impugned order as illegal and quashing of F.I.R.---Magistrate had passed impugned order after going through the relevant record which showed that the prosecution case was supported by the statement of the complainant as well as by the evidence of witnesses recorded under S.161, Cr.P.C.---Petitioner could not assail impugned order of the Magistrate on the ground that same did not indicate that statements made by certain witnesses during the investigation were not considered by the Magistrate---Magistrate was not bound to follow the opinion of the Investigating Officer and was well within his right to disagree with him---Case of prosecution could not be throttled just on the basis of the opinion of Police---Impugned order not suffering from any illegality, irregularity or jurisdictional error could not be interfered with.

Nazar Muhammad v. Mushtaq Ahmad and others PLD 1996 Lah. 277 and Abdul Majeed v. The State 1995 PCr.LJ 1124 rel.

Bahadur and another v. The State and another PLD 1985 SC 62; Arif Ali Khan and another v. The State and 6 others 1993 SCMR 187; Muhammad Sharif and 8 others v. The State and another 1997 SCMR 304 and Hussain Ahmad v. Mst. Irshad Bibi and others 1997 SCMR 1503 ref.

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

----S.4(1)---Investigation---Investigation as defined in S.4(1) of Criminal Procedure Code, 1898 indicated that same would mean only collection of evidence and no more---Determination of the guilt or the innocence of accused was an obligation vested in the courts of law which task could never be delegated to the Police functionaries investigating a case.

Muhammad Bashir v. S.H.O. Okara Cantt. And others PLD 2007 SC 539 and Syed Muhammad Ahmed v. The State and others PLD 2006 SC 316 rel.

Muhammad Farooq Qureshi Chishti for Petitioner.

P L D 2008 Lahore 175

Before Sardar Muhammad Aslam, J

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman, WAPDA and 4 others---Petitioners

Versus

ABDUL SHAKOOR through Legal Heirs---Respondents

Civil Revisions Nos.2185 and 2186 of 2000, heard on 9th January, 2008.

(a) Jurisdiction---

----Conferring of jurisdiction---Principles---Non-raising of objection to jurisdiction before the Court of first instance does not confer jurisdiction upon the Court---Jurisdiction is conferred by law and not by consent of parties.

Haji Abdullah Khan and others v. Nasir Muhammad Khan and others PLD 1965 SC 690 fol.

(b) Electricity Act (IX of 1910)----

-----S. 26(6)---Specific Relief Act (I of 1877), S. 42---Detection bill---Jurisdiction of civil court---Disputed bill was issued by authorities on the ground that meter installed at the premises was slow---Suit filed by subscriber was concurrently decreed in his favour by Trial Court as well as by Lower Appellate Court---Plea raised by authorities was that jurisdiction of civil court in the matter was barred under Electricity Act, 1910---Validity--Case fell under the provisions of S.26(6) of Electricity Act, 1910 and civil court lacked jurisdiction in the matter---Judgments and decrees passed by both the courts below were set aside and suit was dismissed---Revision was allowed in circumstances.

Messrs Narowal Flour Mills through Managing Director v. WAPDA through Chairman and 3 others 2006 MLD 636 and Water and Power Development Authority and another v. Mian Muhammad Riaz and another PLD 1995 Lah. 56 ref.

Multan Electric Power Company Ltd. through Chief Executive and another v. Muhammad Ashiq and others PLD 2006 SC 328 distinguished.

Mian Khurshid Alam Ramay for Petitioners.

Ch. Hafeez Ahmad for Respondents.

Date of hearing: 9th Jnauary, 2008.

P L D 2008 Lahore 178

Before Syed Shabbar Raza Rizvi, J

QAISER HAMEED and another---Petitioners

Versus

IMTIAZ AHMAD KHAN and 8 others---Respondents

Writ Petition No.7100 of 2007, heard on 29th January, 2008.

Punjab Local Government Elections Rules, 2005---

--Rr. 35, 36, 75(d) & 78---Constitution of Pakistan (1973), Art.199---Constitutional petition---Expression "declaring election as a whole to be void"---Scope---Re-election at four polling stations---Jurisdiction of Election Tribunal--- Petitioners sought maximum votes but Election Tribunal declared re-polling at four polling stations out of total eight---Validity---Failure of any person to comply with provisions of Punjab Local Government Ordinance, 2001 and Rules thereto was sufficient under R.78 of Punjab Local Government Elections Rules, 2005, to declare election "as a whole to be void"---Rule 75(d) of Punjab Local Government Elections Rules, 2005 did not provide declaring such election void at one or two polling stations---To give power to Election Tribunal to declare election "as a whole to be void" meant election of whole constituency---Order passed by Election Tribunal was without lawful authority and of no legal effect hence set aside---Election as a whole to be void meant elections of the whole constituency to be void instead of one or two polling stations only---High Court directed the authorities to make arrangements for a fresh election of the whole constituency---Petition was allowed accordingly.

Tariq Moeez for Petitioner.

Shehram Samar Chaudhary for Respondents.

Date of hearing: 29th January, 2008.

P L D 2008 Lahore 184

Before Syed Hamid Ali Shah, J

IBRAHIM FLOUR AND GENERAL MILLS, DISTRICT SEIKHUPURA

through Chief Executive---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary to the Government of the Punjab, Food Department, Lahore and another--Respondents

Writ Petitions Nos. 10197, 11058, 10732, 11025, 10986, 10325, 10356, 11060, 11201, 11222, 11264, 11268, 11026, 10371, 11059, 11067 of 2007 and 220 and, 75 of 2008, decided on 18th January, 2008.

West Pakistan Foodstuff (Control) Act (XX of 1958)---

----S. 3---Foodgrains (Licensing Control) Order, 1957---Constitution of Pakistan (1973), Arts. 25 & 199---Constitutional petition---Equality before law---Reasonable classification, principle of---Applicability---Equal distribution of wheat quota---Petitioners were owners of flour mills and their grievance was that Government had not provided them quota of wheat according to their entitlement---Plea raised by authorities was that due to shortage in wheat production required quantity of wheat could not be supplied---Validity---Restriction of wheat quota imposed equally on flour mills without any discrimination could legitimize action of authorities on the plea of acute shortage of wheat---Issuance of quota almost during the same period, to other flour mills was unreasonable and arbitrary selection or differentiation---Government was not supposed to discriminate between citizens who were placed in similar circumstances---Functionaries of Government could not be allowed to exercise discretion at their whims, sweet will or in a manner as it pleased them---Issuance of quota to other flour mills was arbitrary and was perverse classification as against reasonable classification---Supply of wheat quota to one set of mill owners and its refusal to petitioners was discrimination, conceived and tainted with defect of naked and unbridled discretion---Act of .omission on the part of~ authorities in ignoring petitioners for grant of wheat was declared as unlawful, discriminatory and of no legal effect---Petitioners were entitled to equal treatment and discrimination in issuance of quota to petitioners called for interference and exercise of powers of judicial review---High Court directed the authorities-to reconsider applications of petitioners and issue them wheat quota according to prevalent policy without any discrimination or unequal treatment---Petition was allowed accordingly.

Al-Mutwakkal Flour Mills v. Province of Punjab and another 1991 YLR 42(sic); Messrs Asif Flour Mills v. Government of N.-W.F.P. PLD 1997 Pesh. 5 and Government of N.-W.F.P. through Secretary and 3 others v. Mejee Flour and General Mills (Pvt.) Ltd. PLD 1997 SC 1804 ref.

Muhammad Shehzad Shaukat for Petitioner.

Najeeb Faisal Chaudhry, Addl. A.-G.

P L D 2008 Lahore 191

Before Tariq Shamim, J

ASGHAR ALI alias KALOO---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.9142-B of 2007, decided on 24th January, 2008.

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

----S. 497---Penal Code (XLV of 1860), Ss.302 & 460---Bail, grant of---Principle of consistency---Delayed recovery---Supplementary statement of complainant---Accused was not named in F.I.R. and was implicated along with ten others in supplementary statement of complainant in which only suspicion was cast upon the accused and others for committing murder of his deceased sister---Witnesses on whose information complainant had recorded supplementary statement only stated to have seen the accused and others leaving house of deceased---Effect---As to how complainant formed suspicion about murder having been committed by accused and others was a mystery---Although some gold ornaments and a knife were recovered from accused during investigation, however, the same were effected after about one year and three months, therefore, such recovery was not of much significance and could not, prima facie, connect accused with commission of offence---Co-accused from whom two gold rings and another co-accused from whom blood-stained Chhurri was recovered, were allowed bail by High Court, keeping in view the principle of consistency, accused was also entitled to grant of bail-Bail was granted to accused in circumstances.

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

----S. 497---Bail, grant of---Abscondence of accused---Effect---Mere abscondence is no ground to decline bail if accused is otherwise entitled to same on merits.

Zia-ur-Rehman Chaudhry for Petitioner.

Ch. Amjad Hussain, Deputy Prosecutor-General for the State along with Abdul Rashid, S.I.

P L D 2008 Lahore 193

Before Maulvi Anwarul Haq, J

FIRST CAPITAL EQUITIES LIMITED---Appellant

Versus

Mrs. ISHRAT SALEEM---Respondent

S.A.O. No.75 of 2007, heard on 18th January, 2008.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Civil Procedure Code (V of 1908), O.XIX, Rr. 1 & 2---Bona fide personal need of landlady---Affidavit in evidence---Scope---No procedure is prescribed in the matter of ejectment petition under West Pakistan Rent Restriction Ordinance, 1959, while under O.XIX, Rr.1 and 2, C.P.C. evidence by affidavits is permissible subject to option of opposite party to cross-examine the witnesses.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13 & 15---Ejectment of tenant---Default in payment of monthly rent---Proof---Eviction order was passed by Appellate Court on the ground that before depositing rent in court, tenant should have tendered the same to landlady---Validity---Deposit of rent with Rent Controller was recognized under S.13 of West Pakistan Urban Rent Restriction Ordinance, 1959 and therefore there was no default in payment of rent--Eviction order was set aside and case was remanded to Appellate Court for deciding issue relating to bona fide personal need of landlady in the light of evidence available on record---Appeal was allowed accordingly.

Barkat Ali v. Muhammad Ehsan and another 2000 SCMR 556 ref.

Ali Asim Syed for Appellant.

Muhammad Iqbal Akhtar for Respondent.

Date of hearing: 18th January, 2008.

P L D 2008 Lahore 196

Before Maulvi Anwarul Haq, Fazal-a-Miran Chauhan and Hasnat Ahmad Khan, JJ

KHALIL TAHIR SINDHU---Petitioner

Versus

ELECTION COMMISSION PUNJAB, LAHORE/RETURNING OFFICER FOR MINORITY RESERVED SEATS and 3 others---Respondents

Writ Petition No.12113 of 2007, decided on 25th January, 2008.

Conduct of General Elections Order [7 of 2002]---

----Art. 8-F---Representation of the People Act (LXXXV of 1976), S.47-A---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Election to seat reserved for non-mulsim---Rejection of nomination papers of the candidate on the ground that his name did not appear in the party priority list---Election Tribunal allowed the inclusion of the name of the candidate in the list of validly nominated candidates by substituting his name in place of his father's name in priority list of the party---Validity---Held, Political party had to file the list within time fixed for filing of the nomination papers and there was no provision in the relevant law authorising a political party to amend the list at any time after filing the same---Constitutional Petition was allowed.

Abid Saqi for Petitioner.

Jamshaid Rehmat Ullah for Respondent No.3.

Nayyar Abbas Rizvi, Addl. A.-G. on Court's call.

Date of hearing: 25th January, 2008.

P L D 2008 Lahore 200

Before Mian Muhammad Najam-uz-Zaman, Abdul Shakoor Paracha and Hasnat Ahmad Khan, JJ

Chaudhry ABID RAZA---Petitioner

Versus

ELECTION TRIBUNAL PUNJAB/LAHORE HIGH COURT, LAHORE and 3 others---Respondents

Writ Petition No.12034 of 2007, heard on 30th January, 2008.

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

----Arts. 62, 63 & 199---Representation of the People Act (LXXXV of 1976), S.99---Constitutional petition---Objections to the candidature of the petitioner (aspirant to become member of the Provincial Assembly) was that he was convicted and sentenced to death on six counts in respect of offences under Ss.302/324/148/149, P.P.C. read with S.7, Anti-Terrorism Act, 1997 and though he was acquitted in the said case on the basis of a compromise yet it did not absolve him of the sin 'committed by him and that candidate remained involved in anti-social activities which barred him to be elected as a member of the Assembly under Arts. 62 & 63 of the Constitution read with S.99 of the Representation of the People Act, 1976---Validity---Held, after getting clean acquittal, though on the basis of a compromise, the petitioner did not carry any stigma, which might disqualify him from contesting elections and thus could not have been thrown out of election ring just on the ground that his acquittal in a murder case was not on merits rather it was result of compromise.

Blacks' Law Dictionary (6th Edn.); Ghulam Haider alias Gaami v. The State 2003 PCr.LJ 12 and Dr. Muhammad Islam v. Government of N.-W.F.P. through Secretary, Food, Agriculture, Livestock and Cooperative Department, Peshawar and 2 others 1998 SCMR 1993 ref.

Ch. Sabir Hussain v. Mirza Mushtaq Ahmad and 3 others 2001 YLR 2454 and Ahsanullah Prince and others v. District Returning Officer, Guji.at and others 2006. PSC 256 distinguished.

(b) Criminal trial---

----"Acquittal"---Connotation---Word ".acquittal" having not been defined in the Criminal Procedure Code, 1898, it would have its ordinary meaning.

Blacks Law Dictionary (6th Edn.) ref.

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

---S. 345(6)---Acquittal on the basis of compromise---Implication---Acquittal is acquittal, whether it is on the basis of a declaration by a court on the conclusion of the trial that some one is not guilty of the charge or on the basis of compromise under S.345(6), Cr.P.C.

In the absence of any other interpretation, the acquittal, is acquittal, whether it is on the basis of a declaration by a court on the conclusion of the trial that some one is not guilty of the charge or on the basis of compromise under section 345(6), Cr.P.C.

All acquittals even if these are based on benefit of doubt are honourable for the reason that the prosecution has not succeeded to prove their cases against the accused on the strength of evidence of unimpeachable character. There are cases in which the judgments are recorded on the basis of compromise between the parties and the accused are acquitted in consequence thereof. What shall be the nature of such acquittals? All acquittals are certainly honourable. There can be no acquittal, which may be said to be dishonourable. The law has not drawn any disfinction between these types of acquittals.

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

----Arts. 62, 63 & 199---Representation of the People Act (LXXXV of 1976), S.99---Anti-Terrorism Act (XXVII of 1997), S.11-EE(4)---Constitutional petition---Objection against the petitioner was that he was a members of a proscribed organization and was a terrorist, as per notification/order issued by Provincial Government under S.11-EE(4) of the Anti-Terrorism Act, 1997 and thus could not contest elections-Validity---Held, admittedly petitioner had filed an appeal against the order/notification of Provincial Government issued under S.11-EE(4) of -the Anti-Terrorism Act, 1997 which was not decided within the statutory time, however, that did not mean that the filing of said appeal, without getting operation of said order/notification suspended from any court of law, would automatically result in setting aside the order/notification under S.11-EE(4) of Anti-Terrorism Act, 1997 issued by the Provincial Government---Section 11-EE(4) did not provide any consequence for not deciding the appeal filed under the said provision of law within thirty days, therefore, S.11-EE(4) was not mandatory, rather it was directory in nature---Petitioner having not agitated against the delinquency/procrastination of the department in deciding his appeal by way of filing constitutional petition and remained dormant and did not bother to get himself cleared and record of the department which, prima, facie indicated that the action of the Provincial Government, taken against the petitioner, could not be regarded as baseless---No illegality, regularity, or jurisdictional error in the impugned orders having been found, constitutional petition against rejection of nomination papers for contesting elections by the petitioner was dismissed in circumstances.

Abdul Sattar and 2 others v. Additional Commissioner, Goraya District Gujranwala and 4 others PLD 1989 Lahore 384 ref.

Muhammad Shahzad Shaukat for Petitioner.

Munir Ahmad Bhatti, Syed Nayyar Abbas Rizvi, A.A.G. for Respondents with Ch. Muhammad Aslam, Section Officer, Home Department.

Date of hearing: 30th January, 2008.

P L D 2008 Lahore 208

Before Tariq Shamim, J

MOHIB ULLAH HANIF---Petitioner

Versus

THE STATE and 3 others---Respondents

Criminal Miscellaneous Nos.2192/CB and 4396-CB of 2007, decided on 21st January, 2008.

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

----S. 497(1) & (5)---Bail, cancellation of---Principles---Offences falling in prohibitory clause of S.497, Cr.P.C.---Effect---Considerations for cancellation of bail are different from considerations for grant of bail---Section 497(1), Cr.P.C., though prohibits grant of bail for offences punishable with death, imprisonment for life or imprisonment for ten years or more, yet S.497(5), Cr.P.C. does not make it obligatory on court to cancel bail even when such offence is punishable with death.

Miandad v. The State 1992 SCMR 1289 rel.

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

----S. 497(5)---Bail, cancellation of---Vicarious liability---Scope---Question of vicarious liability can be gone into by Trial Court at the time of trial as such question calls for further probe into the matter.

Ghulam Qadir alias Mama V. The State 2004 MLD 33 rel.

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

---S. 497(5)---Penal Code (XLV of 1860), Ss. 337-A(i), 337-A(iii), 337-L(ii), 353, 354, 186, 147 & 148---Bail, cancellation of---Filing. of challan---Pendency of trial---Accused were admitted to bail by Lower Appellate Court---Trial proceedings were in progress after finalization of investigation---Effect---Strong and exceptional grounds were needed to get bail cancelled which were not available in the present case---Trial proceedings were in progress, therefore, High Court declined to dilate upon the merits of the case and to cancel bail granted to accused by Lower Appellate Court---Petition was dismissed in circumstances.

Petitioner in person.

Tasawar Hussian Qureshi for Respondents Nos. 2 to 4 (in Criminal Misc. No.2192-CB of 2007 and for Respondent No.2 (in Criminal Misc. No.4396-CB of 2007).

Ahsan Rasool Chatha, Deputy Prosecutor-General for the State along with Ghulam Murtaza, S.-I.

P L D 2008 Lahore 211

Before Fazal-a-Miran Chauhan and Syed Shabbar Raza Rizvi, JJ

AMIR GUL---Petitioner

Versus

UNIVERSITY OF HEALTH SCIECNES, LAHORE through Vice-Chancellor and another---Respondents

Writ Petition No.7171 of 2007, decided on 21st January, 2008.

Educational institution---

----Legitimate expectation, principle of---Applicability---Prospectus, change into---Candidate failed for eight times in M.B.,B.S. third professional and was detained in Fourth professional---Plea raised by candidate was that he be allowed to take examination according to the subjects mentioned in prospectus issued to him at the time of his admission in medical college---Validity---Candidate had no vested right to claim that examination be taken and subject be taught exactly in the manner as it had been provided in prospectus of college at the time when he was given admission in a professional college---Prospectus was subject to change and alteration and legitimate expectation set up by candidate was neither reasonable nor had backing of any law---Candidate was to clear new subjects by appearing in Third Professional M.B.,B.S. Examination, scheduled to be held by authority as per rules and after clearing the same he would be eligible to promotion in final professional---Petition was disposed of accordingly---Constitution of Pakistan (1973), Art.199.

Muhammad Umar Wahid and others v. University of Health Sciences Lahore and others PLD 2006 SC 300; Rashid Nawaz and 7 others v. University of the Punjab through Vice-Chancellor, Lahore and 3 others PLD 2007 Lah. 78; Shafique Ahmed and others v. Government of Punjab and others PLD 2004 SC 168 and Adnan Tariq v. Vice-Chancellor of the University of Punjab PLD 1993 Lah. 341 ref.

Khawar Ikram Bhatti for Petitioner.

Rassal Hasan Syed for Respondent No.1.

Muhammad Fareed Chaudhry for Respondent No.2.

P L D 2008 Lahore 215

Before Tariq Shamim, J

MAZHAR SIDDIQUE CHEEMA---Petitioner

Versus

DISTRICT POLICE OFFICER, HAFIZABAD and 7 others---Respondents

Amended Writ Petition No.10480 of 2006, heard on 24th January, 2008.

Police Order (22 of 2002)---

----Art.18(6)--Penal Code (XLV of 1860), Ss.440, 148 & 149---Constitution of Pakistan (1973), Art.199---Constitutional petition---Investigation---Additional I.G. of Police directed the head of investigation to ensure investigation on merits under his close supervision and his office never issued any order for change of investigation in the case---Law officer had not denied that S.P. (Investigation) instead of complying with direction of Additional I.G. Police had, in fact, conducted the investigation in the case and after associating the parties with the investigation proceedings, had incorporated zimini---Validity---Entire exercise undertaken by Superintendent of Police (Investigation) in conducting reinvestigation of the case, was illegal and void ab initio being contrary to the provisions of Art.18(6) of Police Order, 2002---Record conclusively proved that S.P. (Investigation) had undertaken an exercise which was not warranted under the law as same had not been entrusted to him in accordance therewith.

Ch. Azhar Siddique Cheema for Petitioner.

Amjad Ali Chattha, Asstt. A.-G. for Respondents.

Date of hearing: 24th January, 2008.

P L D 2008 Lahore 218

Before Sardar Muhammad Aslam, J

MUHAMMAD ANSAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.22-B of 2008, decided on 30th January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Prevention and Control of Human Trafficking Ordinance (LIX of 2002), Ss. 2(h), 3 & 4---Emigration Ordinance (XVIII of 1979), S.22---Bail, refusal of---Application for grant of bail having been dismissed by the Judicial Magistrate, petitioner preferred appeal before appellate Court, which was dismissed with observation that jurisdiction in the matter rested with Special Judge (Central) as S.22 of Emigration Ordinance, 1979 Was squarely attracted in the matter---Essential ingredients for application of S.3 of Prevention and Control of Human Trafficking Ordinance, 2002, .were coercion, kidnapping, abduction etc.---F.I.R. did not indicate any coercion or use of force---Mere promise or taking a person outside Pakistan to provide him employment abroad, would not constitute `human trafficking' within the meaning of S.3 of Prevention and Control of Human Trafficking Ordinance, 2002---Appellate Court had rightly found that matter related to the jurisdiction of Special Judge (Central)---Petition was dismissed, with observation that petitioner, if so advised, could approach Special Judge for the relief sought for.

Muhammad Ashfaq Mughal for Petitioner.

P L D 2008 Lahore 220

Before Syed Hamid Ali Shah, J

TAUSEEF alias CAPTAIN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No.6 of 2008, heard 4th February, 2008.

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

----Ss. 4, 5 & 7---Determination of age of accused---Petitioner who claimed to be juvenile filed application for separation of his case to be tried by the Juvenile Court, which application having been dismissed by the trial Court, petitioner had filed revision against such dismissal---Scope---Trial Court, while passing the impugned order, had found that Medical Board which had conducted ossification test of petitioner, had not been properly constituted which had vitiated its report and it was obligatory upon the Court to refer back the matter to Medical Superintendent for reconstitution of the Medical Board according to the provisions of law---Medical report being an essential requirement for determination of age of the petitioner, the omission of such report, had rendered impugned order a nullity in law---Impugned order was set aside and case was remanded to the Trial Court for determination of the age of petitioner afresh.

Muhammad Akram v. Muhammad Saleem alias Hamayun and others 2004 SCMR 218 and Malik Sajjad Ahmad v. The State and another 2006 PCr. LJ 211 rel.

Rana Muhammad Asif Saeed Khan for Petitioner.

Qazi Iftikhar Ahmad for Respondent No.2.

Sh. Imtiaz Ahmad for the State.

Date of hearing: 4th February, 2008.

P L D 2008 Lahore 222

Before Fazal-e-Miran Chauhan, J

MUHAMMAD ASIF---Petitioner

Versus

THE STATE and 4 others---Respondents

Writ Petition No.2210 of 2007, decided on 14th January, 2008.

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

----Ss. 22-A & 22-B---Powers of Justice of the Peace---Scope and extent---Direction had been given in the present case, by Justice of the Peace to Investigating Officer to take into possession the original document and to obtain the thumb impression of accused and send same for comparison to the Forensic Science Laboratory---Validity---Justice of the Peace could direct the Police Officer to do the needful in accordance with law and not to suggest the procedure or to give a direction to do a certain act---Justice of the Peace, being not a judicial officer, while exercising his administrative powers could, at the most, direct S.H.O. concerned to proceed and conduct the investigation in accordance with law---Impugned order passed by Justice of the Peace, was set aside in circumstances.

Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470 ref.

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

---Ss. 22-A, 22-B & 156---Powers of Justice of the Peace---Scope---Investigation---Under provisions of S.156, Cr.P.C. an Officer Incharge of Investigation, had statutory right to investigate the circumstance of an alleged cognizable offence without requiring any permission from the Judicial authority and such statutory right could not be interfered with by Judiciary, what to talk about the powers of the Justice of the Peace under Ss.22-A & 22-B, Cr.P.C.---Investigation would include all proceedings under Criminal Procedure Code, 1898 for collection of evidence by the Police Officer or by any person other than a Magistrate, as it was not within the domain of the courts.

Azam Nazeer Tarar for Petitioner.

Faisal Ali Qazi, Asstt. A.-G. with Safdar Pervaiz, S.-I. for Respondents No. 1 and 2.

Muhammad Rafique Chaudhary-1, for Respondent No.3.

Shehram Sarwar Chaudhry for Respondent No.4.

P L D 2008 Lahore 228

Before Maulvi Anwarul Haq, J

MUHAMMAD NAZIM SHAHZAD---Petitioner

Versus

CHAIRMAN, PUNJAB PUBLIC SERVICE COMMISSION, LAHORE and another---Respondents

Writ Petition No.1521 of 2008, decided on 26th February, 2008.

Punjab Legal Practitioners and Bar Councils Rules, 1974---

----Rr. 7.10 & 7.12---Memorandum of Association/Rules of Business of Bar Association, Art.6---Constitution of Pakistan (1973), Art.199---Constitutional petition---Practising as advocate---Pre-condition---Petitioner was enrolled as advocate on 19-8-2005 and became member of Bar Association on 29-10-2005---Application of petitioner for the post of Civil Judge/Judicial Magistrate was rejected on the ground that he did not have requisite experience of two years as advocate---Plea raised by petitioner was that under Art.6 of Memorandum of Association/Rules of Business of Bar Association published vide notification dated 7-12-1981, he was deemed to be practising advocate with effect from the date of his enrolment---Validity---Membership of recognized Bar Association was condition precedent for a person to practice as an advocate---Provisions of Art.6 of Memorandum of Association/Rules of Business of Bar Association was only to make a fresh advocate eligible for membership of the Bar Association and it could not, in any manner, derogate from the mandatory provisions contained in. R.7.10 of Punjab Legal Practitioners and Bar Councils Rules, 1974---High Court declined to interfere in the order passed by the authorities whereby application of petitioner was rejected---Petition was dismissed in circumstances.

Muhammad Hanif Saleemi for Petitioner.

P L D 2008 Lahore 230

Before Maulvi Anwarul Haq, J

MUNICIPAL COMMITTEE, KASUR through Tehsil Nazim---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, KASUR and 3 others---Respondents

Writ Petition No.5492 of 2007, heard on 25th February, 2008.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 17---Civil Procedure Code (V of 1908), O.XXI, Rr.99, 100 & 101---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Executing Court, duties of---Title/possession---Determination---Ejectment application was allowed by Rent Controller against tenant---During pendency of execution proceedings against tenant petitioner filed objection petition claiming his title/possession over the shop in question---Executing Court dismissed the objection petition and Appellate Court dismissed revision application filed by petitioner mainly for the reason that parties had been made to embark upon a long litigation---Plea raised by petitioner was that claim of title/possession was to be decided by executing Court and not through civil suit---Validity---All provisions applicable to execution of decree of civil Court would be applicable including those under which objections were filed and under law the same had to be decided by executing Court---Order passed by Appellate Court refusing to decide matter was without lawful Authority, which was set aside and case was remanded to Appellate Court for decision afresh---Constitutional petition was allowed accordingly.

Mst. Khurshid Begum and others v. Mr. Ghulam Kurra, and others 1982 SCMR 90 ref.

Shehryar Kasuri for Petitioner.

Shamim Abbas Bokhari for Respondent No.3.

Nemo for Remaining Respondents.

Date of hearing: 25th February, 2008.

P L D 2008 Lahore 233

Before Maulvi Anwarul Haq, J

YAQOOB and 10 others---Petitioners

Versus

NAZIR AHMED KHAN and 2 others---Respondents

Civil Revision No.1869 of 2007, heard on 20th February, 2008.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.VII, R.11---Rejection of plaint---Continuous cause of action---Filing of fresh suit---Plaintiffs filed earlier suit in year 1995 which was rejected in year 2005 due to non-payment of court-fee---Fresh suit filed by plaintiffs was rejected by Trial Court being barred by limitation, which order was maintained by Appellate Court---Plea raised by plaintiffs in revision was that as they were in possession of the suit land, therefore, suit was not barred by limitation---Validity---Both the courts below had completely ignored categorical statement in plaint that plaintiffs had never given possession and remained in possession of their land alleged to have been given in exchange to defendant---For the purpose of O.VII, R.11, C.P.C. contents of plaint were assumed to be correct---If it was found at trial that plaintiffs continued in possession then date of exchange in question or even its knowledge would be of no relevance---Cause of action would thus be continuous and option was with plaintiffs to wait till such time that an actual threat to their possession became real---Orders passed by both the courts below were set aside and case was remanded to trial Court for deciding of suit on merits---Revision was allowed accordingly.

Mst. Izzat v. Allam Ditta PLD 1991 SC 165 fol.

Muhammad Yaqoob Pannu for Petitioners.

Respondents: Ex parte.

Date of hearing: 20th February, 2008.

P L D 2008 Lahore 235

Before Muhammad Muzammal Khan and Khurshid Anwar Bhinder, JJ

Syed ASIF AKHTAR HASHMI---Petitioner

Versus

Malik MUHAMMAD RIAZ and 3 others---Respondents

Writ Petition No.1643 of 2008, decided on 26th February, 2008.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court in exercise of jurisdiction vested under Art.199 of the Constitution can neither enter into factual controversies nor decide disputed questions of facts.

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

----Ss. 14 & 99(1)(cc)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Factual controversy---Degree of B.A.---Verification---Respondent was declared returned candidate and petitioner assailed his candidature on the ground of not possessing requisite educational qualification---Contention of petitioner was that B.A. degree of respondent was bogus---Validity---Objection on degree of respondent should have been raised at the time of scrutiny of nomination papers as enunciated by S.14 of Representation of the People Act, 1976 and such candidate might have preferred appeal under S.14(5) of Representation of the People Act, 1976, against decision of Returning Officer rejecting or accepting nomination papers of candidate to Election Tribunal constituted for the constituency to which nomination related---Petitioner having failed to raise objection on nomination of respondent at the time of scrutiny of nomination papers could not agitate the same in constitutional petition---Letter issued by the University concerned, on which the entire case of petitioner was based, had to be proved by petitioner by adducing evidence---Such exercise of proving the letter could not be undertaken in proceedings under constitutional jurisdiction---Petitioner might seek his remedy at the proper available forum---Petition was dismissed in circumstances.

Muhammad Haroon Mumtaz for Petitioner.

P L D 2008 Lahore 238

Before Sayed Zahid Hussain, C J.

Messrs ATLAS CABLES (PVT.) LIMITED through Director---Petitioner

Versus

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman and 2 others---Respondents

Writ Petition No.8045 of.2006, heard on 10th March, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Contract Act (IX of 1872), S. 126---Constitutional petition---Maintainability---Factual controversies---Contract of Guarantee---Petitioner sought restraining order against respondent from encashing of performance bond---Validity---Rights and liabilities of parties in case of a contract of guarantee were determined strictly with reference to terms and conditions of guarantee without recourse to any other instrument or document executed by parties for any different purpose---Terms of contract could only be altered or modified by parties with mutual consent and whenever there was a dispute arising out of contractual liabilities/obligations requiring extensive recording of evidence the forum competent to undertake such exercise was the civil court---Jurisdiction of High Court under Art.199 of the Constitution was not invokable and it was absolutely impermissible in constitutional jurisdiction to issue any restraint order in favour of petitioner--Constitutional petition was dismissed in circumstances.

Pakistan Engineering Consultants v. Pakistan International Airlines Corporation and another 1989 SCMR 379; Messrs Zenat Brothers (Pvt.) Ltd. v. Aiwane Iqbal Authority and 3 others PLD 1996 Kar. 183 and Messrs National Construction Ltd. v. Aiwan-e-Iqbal Authority PLD 1994 SC 311 ref.

Lahore Cantonment Cooperative Housing Society Limited, Lahore, Cantt. through Secretary v. Dr. Nusrat Ullah Chaudhry and others PLD 2002 SC 1068; Yousaf A. Haroon v. Custodian of the Karachi Hotel Project through Kamran Shehzad 2004 CLC 1967 and Heavy Mechanical Complex (Pvt.) Ltd. Taxila v. Attock Industrial Products Ltd., Rawalpindi PLD 2003 SC 295 rel.

Ashfaq Qayyum Cheema for Petitioner.

Muhammad Ilyas Khan for Respondents.

Date of hearing: 10th March, 2008.

P L D 2008 Lahore 243

Before Tariq Shamim and Muhammad Ahsan Bhoon, JJ

MANZOOR AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.2121 of 2005, heard on 20th February, 2008.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4---Appreciation of evidence---Eye-witnesses had made consistent statements regarding receipt of secret information, pointing of accused by the informer, place from where the accused was apprehended by the police with contraband "Charas" and the date and time of his arrest---Discrepancies pointed out in prosecution evidence were minor and of trivial nature which did not diminish its worth---Plea taken by accused regarding his false implication in the case had no ring of truth and appeared to be farfetched---Complainant and other police officials had no reason to plant a huge quantity of contraband on the person of the accused---Contention regarding non-compliance of section 103, Cr.P.C. was misconceived as the same had been specifically excluded by section 25 of the Control of Narcotic Substances Act, 1997, from its application in cases of narcotics---Even otherwise, in such like cases public was hesitant to participate in recovery proceedings in order to avoid serious repercussions and ramifications---Dispatch of samples to the office of Chemical Examiner for analysis after the period of 72 hours had not rendered the seizure invalid, because Rule 4 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 was directory in nature and not mandatory and the same, therefore, could not control the substantive provisions of the Control of Narcotic substances Act, 1997, nor frustrate the purpose of the Act for which the same had been framed---Further, failure to follow the Rules would not, in any manner, render the search, seizure or arrest under the Act a nullity and make the entire prosecution case doubtful---Uncontroverted testimony of two witnesses had established that the parcels were received by them properly sealed, were kept in safe custody, were not tampered with and deposited in the office of the Chemical Examiner in due course with seals intact---Prosecution had proved its case against accused beyond any doubt---Conviction and sentence of accused were upheld in circumstances.

Zulfiqar Ahmad v. The State 2006 SCMR 800 and Muhammad Mushtaq v. The State PLD 2001 SC 107 rel.

(b) Control of Narcotic Substances (Government Analysts) Rules, 2001---

----R. 4---Nature and scope of R. 4---Rule 4 of Control of Narcotic Substances (Government Analysts) Rules, 2001 is directory in nature and not mandatory and, therefore, it cannot control the substantive provision of the Control of Narcotic Substances Act, 1997, and cannot be applied to frustrate the purpose of the Act for which it has been framed---Failure to follow the Rules would not in any manner render the search, seizure or arrest under the said Act a nullity and make the entire prosecution case doubtful---In provisions which are directory in nature as Rule 4 substantial compliance is sufficient and even if there is no compliance at all Act cannot be invalidated due to non-compliance if otherwise the same is done in accordance with law.

Muhammad Iqbal Bhatti for Appellant.

Ch. Abdul Razzaq, D.P.G. for the State.

Date of hearing: 20th February, 2008.

P L D 2008 Lahore 250

Before Kh. Farooq Saeed, J

PAKISTAN BAIT-UL-MAL---Appellant

Versus

UMAR MAHMOOD KASURI and another---Respondents

S.A.O. No.76 of 2007, decided on 27th February, 2008.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13(6)---Ejectment proceedings---Order of Rent Controller directing tenant to produce evidence subject to payment of determined amount of rent---Striking off tenant's defence for non-payment of rent---Validity---Direction to strike off defence under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959 was not discretionary, but obligatory in its application---Rent Controller had given chance to tenant to adduce evidence in support of his defence---Tenant would be blamed for not availing such chance for failing to pay rent---Rent Controller in such circumstances had no option except to strike off tenant's defence---High Court dismissed tenant's appeal in circumstances.

PLD 1981 SC 94; PLD 1973 Lah. 95; 1983 CLC 2109; PLD 1966 Lah. 53; PLD 1972 Lah. 603; Haroon Akhtar and 5 others v. Mst. Khatoon Hadi 1981 CLC 1104 and Sheikh Atta Muhammad v. Mian Muhammad Abdullah and 10 others PLD 1971 Lah. 210 ref.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 5-A & 13(6)---Ejectment proceedings---Non-residential building--25% statutory enhancement in rent during pendency of ejectment petition---Right of landlord to pray for recovery of such enhanced rent from tenant---Scope---Provision of S.5-A of West Pakistan Urban Rent Restriction Ordinance 1959 dealing with automatic increase in rent was mandatory---Addition of 25% in rent after every three years would be automatic---Rent Controller would be bound to order for such increase at landlord's request---Landlord would be entitled to recover arrears of rent at enhanced" rate---Rent Controller had power to determine finally amount of rent.

Syed Akhlaque Hussain v. Habib Ismail Bajwa, Advocate 1974 SCMR 504; Shah Muhammad and 8 others v. Additional District Judge-I, Bahawalpur and 7 others PLD 1990 Lah. 64; Ghulam Rasool v. Said Rasool and others PLD 1990 Lah. 457; Malik Raheed-ur-Rehman v. Khyzar Hayat through L.Rs. 2005 CLC 1723 and Haji Khudai Nazar and another v. Haji Abdul Bari 1997 SCMR 1986 ref.

Mukhtar v. The State and another 2003 SCMR 1479 fol.

(c) Interpretation of statutes---

----Best method of interpretation would be to remain within the language of law and not to extend its meaning by way of interpretation.

(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Preamble---Proceedings before Rent Controller---Procedure to be followed stated.

The Rent Controller is governed by Rent Restriction Ordinance, 1959. He may follow the Code of Civil Procedure in conducting his proceedings or may remain within the West Pakistan Urban Rent Restriction Ordinance, 1959. However, he is not estopped to evolve his own procedure for disposal of the petition before him.

1995 CLC 1933; 2002 CLC 1206; 2001 SCMR 577; 1994 MLD 293 and Haji Khudai Nazar and another v. Haji Abdul Bari 1997 SCMR 1986 rel.

Mian Khalid Habib Elahi for Appellant.

Shahryar Bukhari for Respondents.

Date of hearing: 30th January, 2008.

P L D 2008 Lahore 257

Before Maulvi Anwarul Haq, J

MUHAMMAD AFZAL---Petitioner

Versus

ATTA MUHAMMAD and others---Respondents

Civil Revision No.75 of 2007, heard on 21st January, 2008.

Specific Relief Act (I of 1877)---

----S. 42---West Pakistan Land Revenue Act (XVII of 1967), S.42---Limitation Act (IX of 1908), S.18---Declaration of title---Mutation of sale---Fraud---Limitation---Concurrent finding of facts 'by the courts below---Brother of plaintiff was murdered in year 1964, and he gave up his residence in the revenue estate in question and returned only in year 1994---Plaintiff claimed to be the owner in possession of suit land and assailed the mutation of sale attested in favour of defendants as a result of fraud---Trial Court and Appellate Court concurrently dismissed the suit and appeal filed by plaintiff---Validity---Mere incorporation of mutation in question in revenue record would not derogate from title or interest of plaintiff in suit land and to exempt defendants from proving the sale as a fact---Parties were co-sharers and illegal change in revenue records would not make period of limitation running against plaintiff---Judgments and decrees passed by both the courts below were set aside and suit was decreed in favour of plaintiff---Revision was allowed in circumstances.

Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245 rel.

Omair Khan Niazi for Petitioner.

Zafar Iqbal Chauhan for Respondents.

Date of hearing: 21st January, 2008.

P L D 2008 Lahore 261

Before Muhammad Muzammal Khan, J

Lt.-Col. (R.) MUHAMMAD ASLAM---Petitioner

Versus

DEFENCE HOUSING AUTHORITY (DHA) through Administrator and 2 others---Respondents

Writ Petitions Nos.4760, 5221 and 5222 of 2007, decided on 8th February, 2008.

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

---Art. 199(3)-Constitutional petition---Laches---Cancellation of plots---Plots allotted to petitioners were cancelled by authorities in the year, 1996, which decision was communicated to them immediately---Petitioners had assailed the said cancellation order in year 2007---Validity---Cancellation order of plots communicated to petitioners were intact and indirect challenge to those orders after lapse of period of about 12 years was neither permissible nor lawful---Petition suffered from inordinate/unexplained Laches and orders of cancellation could not be adjudged because those had already attained finality and had been acted upon---Petitioners were also estopped by their conduct to put any challenge to the orders which were passed and conveyed to them a decade ago---Petition was also barred by Art.199(3) of the Constitution---Such bar though was not absolute yet petitioners had failed to make out a case for interference by High Court on lack of jurisdiction, excess of jurisdiction or malice on the part of competent authority nor same was made out from the record---High Court declined to interfere in the cancellation order passed 12 years ago---Constitutional petition was dismissed in circumstances.

Ex.Lt.-Col. Anwar Aziz (PA-7123) v. Federation of Pakistan PLD 2001 SC 549; Iftikhar Ahmad v. Federal Government Ministry of Defence 2001 YLR 2679 and Hawaldar Mian Ramzan v. Federal Government, Ministry of Defence 2005 PLC (C.S.) 64 rel.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Such jurisdiction is not meant for extending protection to ill-gotten gains, generated out of misuse of authority.

TAHMAS v. The Central Government of Pakistan PLD 1957 Lah. 871; Abdul Haq Indar v. Province of Sindh 2000 SCMR 907; Nawab Sayed Raunaq Ali and others v. Chief Settlement Commissioners and others PLD 1973 SC 236; Khiali Khan v. Haji Nazir and 4 others PLD 1997 SC 304; Sheikh Muhammad Hussain v. University of Sindh 2002 PLC (C.S.) 696; Air Home International v. Government of the Punjab 2002 CLC 780 and Muhammad Yaqoob v. Secretary Local Government 2002 PLC (C.S.) 1625 rel.

Iqbal Mehmood Awan for Petitioner.

Muhammad Ghani and Faisal Hanif for Respondents.

P L D 2008 Lahore 266

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD AKRAM---Petitioner

Versus

THE STATE and another---Respondents

Writ Petition No.9810 of 2007, decided on 6th March, 2008.

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

----S. 382-B---Penal Code (XLV of 1860), S.308---Constitution of Pakistan (1973), Art.199---Constitutional petition---Period of detention to be considered while awarding sentence of imprisonment---While awarding sentence of 14 years' R.I. to accused benefit of S.382-B Cr.P.C. was not given to him, nor any such request was made before any Court up to the level of Supreme Court---Provisions of S.382-B, Cr.P.C. being mandatory, Trial Court should have considered the same in favour of accused---Where provisions of law were not clearly defined, benefit of doubt had to be given to the accused---Likewise, where two interpretations of law were possible, interpretation favouring the accused had to be preferred---Period of accused spent as under-trial prisoner, therefore; was directed to be counted while calculating the whole period of 14 years' R.I. awarded to him by Trial Court---Benefit of S.382-B, Cr.P.C. was extended to accused and constitutional petition was allowed accordingly.

2000 SCMR 1655 and 2005 PCr.LJ 1776 ref.

(b) Criminal trail---

----Benefit of doubt---Principle---Where provisions of a law are not clearly defined, the benefit of doubt is given to the accused.

(c) Interpretation of statutes---

----Principle---Where two interpretations of law are possible, interpretation favouring the accused person is preferred.

Mian Makshoof Amjad for Petitioner.

Mian Ihsan ul Haq Sajid, Addl. A.-G. Punjab for the State.

P L D 2008 Lahore 268

Before Abdul Shakoor Paracha and Hasnat Ahmad Khan, JJ

MUHAMMAD RAFIQUE through Muhammad Anwar---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.672 of 2002 and Murder Reference No.297 of 2002, heard on 29th January, 2008.

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

----Ss.302(b)/34 & 392/34---Appreciation of evidence---Principle and tests---Want of interest or absence of enmity does not stamp the statement of a particular witness with presumption of truth and that much depends on the intrinsic value of the statement of the witness---Real tests are; (i) whether the statement of a witness is in consonance with the probabilities, (ii) whether the statement fits in with the other evidence and (iii) whether the statement inspires confidence in the mind.

Muhammad Iqbal v. The State 1984 SCMR 930; Muhammad Iqbal v. Abid Hussain alias Muthu and 6 others 1994 SCMR 928; Haroon alias Harooni v. The State and another 1995 SCMR 1627 and Muhammad Arshad alias Achhi v. The State 1995 SCMR 1639 ref.

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

----Ss.302/34 & 392/34---Appreciation of evidence---Numerous infirmities are note necessary to disbelieve a witness---If only one infirmity impeaches the credibility of the witness, the same may make his entire statement doubtful.

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

----Ss.302(b)/34 & 392/34---Appreciation of evidence---Despite the F.I.R. having been lodged with a delay of eleven hours names of eye-witnesses were not mentioned therein---Behaviour of eye-witnesses was quite unnatural because though they had seen the murder of the deceased, yet they did not bother to report the matter either to the police or to the family of the deceased and the explanation furnished by. them in this regard was not believable---Eye-witnesses had also made certain improvements in their statements while appearing in the witness box---Prosecution had failed to prove the alleged conspiracy hatched by the accused for the murder of the deceased by producing any witness from the concerned hotel, which even otherwise could not be hatched in the view and hearing of the public---Motive for the occurrence was not proved---Medical evidence could not corroborate the untrustworthy ocular testimony---No crime empty having been secured from the spot, recovery of pistol from the accused was not helpful to prosecution---Accused was acquitted in circumstances.

Muhammad Iqbal v. The State 1984 SCMR 930; Muhammad Iqbal v. Abid Hussain alias Muthu and 6 others 1994 SCMR 928; Haroon alias Harooni v. The State and another 1995 SCMR 1627 and Muhammad Arshad alias Achhi v. The State (1995 SCMR 1639 ref.

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

----Ss. 302(b)/34 & 392/34---Appreciation of evidence---One tainted piece of evidence cannot be corroborated with other tainted piece of evidence.

Barrister Salman Safdar for Appellant.

Malik Abdul Salam, DPG for the State.

Date of hearing: 29th January, 2008.

P L D 2008 Lahore 277

Before Fazal-e-Miran Chauhan and Hasnat Ahmad Khan, JJ

MUHAMMAD JAMIL and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1623, Murder Reference No.101 and Criminal Revision No.287 of 2002, heard on 25th February, 2008.

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

----Ss. 302(b)/34, 324 & 337-F(v)---Appreciation of evidence---Sentence, reduction in---Place and time of occurrence were not disputed---Receipt of a fire-arm wound by the complainant during the occurrence was not denied by the defence---Occurrence had been reported to the police very promptly---Ocular evidence was consistent and straightforward and was corroborated by medical evidence---Evidence regarding recovery of 7 mm rifle from the accused was unimpeachable and three crime empties secured from the spot had matched with the said rifle---Dispatch of crime empties to the Forensic Science Laboratory on the recovery of rifle from the accused was only on irregularity on which positive report of Forensic Science Laboratory could not be discarded---Relationship of eye-witnesses with the deceased was not enough to disbelieve or discard their testimony in the absence of serious enmity between the parties---Presence of injured eye-witness at the spot could not be disbelieved---Contradictions and improvements made by eye-witnesses being minor in nature had no adverse effect on their evidence---Both the parties, however, had suppressed the real cause of occurrence as well as the real story and the genesis of the fight was not clear as to what had transpired between them prior to the occurrence---Possibility of a chance encounter clash between the parties could not be ruled out---Mitigating circumstances, thus, were available for reducing the death sentence of condemned accused and the same was converted to imprisonment for life---Convictions and other sentences of accused were upheld in circumstances.

Sayyed Ali Bepare v. The Nibran Mollah and others PLD 1962 SC 502; Muhammad Iqbal v. The State PLD 1996 Lah. 402; Naubahar v. The State 1999 SCMR 637; Ahmad Khan v. Nazir Ahmad 1999 SCMR 803; Husnain Shah v. The State 1999 SCMR 1937; Shahid Raza v. The State 1992 SCMR 1647; Muhammad Yousaf v. The State 1994 SCMR 1733; Abbas v. State 1992 SCMR 320; Farman Ullah v. Qadeem Khan 2001 SCMR 1474;, Muhammad Afzal and 2 others v. State 2003 SCMR 1678; Muhammad Nisar v. The State 2006 SCMR 161; Muhammad Boota v. State 2003 SCMR 489 and Sheraz Asghar v. The State 1995 SCMR 1365 ref.

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

----Art. 59---Penal Code (XLV of 1860), Ss. 302(b)/34, 324 & 337-F(v)---Opinion of Expert---Forensic Science Laboratory report---Positive report of Forensic Science Laboratory cannot be discarded only due to the dispatch of the crime empties to the said Laboratory on the day of recovery of rifle from the accused, which is an irregularity.

Sheraz Asghar v. The State 1995 SCMR 1365 rel.

Nasir ud Din Khan Nayyar for Appellants.

Mazhar Iqbal Sidhu and Ijaz Ahmad Bajwa, DPG for the State.

Date of hearing: 25th February, 2008.

P L D 2008 Lahore 289

Before Syed Shabbar Raza Rizvi and Muhammad Akram Qureshi, JJ

NOOR AHMAD alias MALU and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.460 and Murder Reference No.245 of 1999, heard on 17th March, 2008.

Penal Code (XLV of 1860)---

----S.302(b)/34---Appreciation of evidence---Motive was not proved---Failure to prove motive though was not decisive factor in murder case, however a lot of emphasis of prosecution witnesses was that motive of causing death of deceased was his marriage with sister of accused without his consent---Failure to prove motive in circumstances, had created serious doubt in the prosecution story---Statement of complainant with regard to attack of accused persons on deceased, failed to get necessary corroboration---One of the prosecution witnesses who was Patwari and had prepared the site plan, had shown presence of two accused persons only at the scene of occurrence, but had omitted to show presence of other co-accused---Said witness was Patwari of one Halqa, whereas site plan related to the other one---Such fact had cast doubt whether actually said witness had visited the site or not---Statements of the complainant and that of another prosecution witness did not get necessary corroboration from the statements of other prosecution witnesses---Said prosecution witness claimed that he saw 4/5 empties at the spot, but none of the empties was recovered by Investigating Officer---In absence of report of Forensic Science Laboratory, recovery of weapon of offence, could not be given any credence---Record had indicated that disputes were going on about properties in the families of deceased and prosecution witnesses who were all close relatives and presence of enmity of deceased with some other people including relatives---Some notal3les of the village, appeared before Investigating Officer and stated that accused persons were innocent---Evidence of the prosecution, in circumstances could not be treated as trustworthy or confidence-inspiring---Acquittal of two cc-accused as well as finding of the Trial Court about motive, was never challenged by the complainant party---Prosecution, in circumstances did not succeed to prove its case beyond any shadow of doubt---Case being replete with doubts, impugned order of the Trial Court could not be sustained---Conviction and sentence of accused persons, were set aside, they were acquitted of the charge and were released.

Erum Sajjad Gul for Appellants.

Rana Bakhtiar Ali, DPG for the State.

Date of hearing: 17th March, 2008.

P L D 2008 Lahore 297

Before Sayed Zahid Hussain, C J

Mst. ZUBIA AJAZ---Petitioner

Versus

FEDERATION OF PAKISTAN through Central Secretary, Ministry of Law and 2 others---Respondents

Writ Petition No.1448 of 2008, decided on 28th March, 2008.

Conduct of General Elections Order (7 of 2002)---

----Arts. 5 & 8F---Constitution of Pakistan (1973), Arts. 34, 51 & 199---Constitutional petition---Reserved seats for women---Object and scope---Petitioner assailed seats reserved for women in National Assembly on the ground that those were un-constitutional, un-lawful and un-Islamic---Validity---Women are an important and vital segment of society, whose contribution in various spheres of life could not be undermined, as such the same might have been the rationale for reserving some seats in National and Provincial Assemblies so that women could contribute in legislative field as well---Challenge to reservation of seats for women and increase from time to time in their number, could not be regarded contrary to the scheme, spirit and rationale of the Constitution---Constitutional scheme itself has provided special provisions for safeguard of women enabling them to participate and make contribution in all walks of life---No embargo existed on participation of women and contesting election on general seats---Some lady members had adorned the Houses by winning election against general seats but it did not mean that the seats could not/be reserved for them in Assemblies to provide them better opportunities of representation to them---Once having become Members of Assembly, the women were entitled to certain perks and privileges and allowances under the law which could not be considered as mere wastage of resources---Constitutional petition was dismissed in circumstances.

Mst. Attiyya Bibi Khan and others v. Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others 2001 SCMR 1161; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341 and Abdul Baqi and others v. Muhammad Akram and others PLD 2003 SC 163 distinguished.

Mahmood Khan Achakazi v. Federation of Pakistan and others PLD 1997 SC 426; Syed Zafar Ali Shah and others v. General, Pervez Musharaf, Chief Executive of 'Pakistan and others PLD 2000 SC 869; Pakistan Lawyers Forum and others v. Federation of Pakistan and others PLD 2005 SC 719 and Tika Iqbal Muhammad Khan and others v. General Pervez Musharaf and others PLD 2008 SC 178 ref.

Tariq Aziz for Petitioner.

Qamar Zaman Qureshi, Dy. Attorney-General for Pakistan for Respondents.

Date of hearing: 28th March, 2008.

P L D 2008 Lahore 302

Before Ali Akbar Qureshi, J

MUHAMMAD ARSHAD---Petitioner

Versus

SUGHRAN BIBI and 2 others---Respondents

Writ Petition No.2379 of 2008, decided on 17th March, 2008.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Legitimacy of child---Presumption---Liyan, proceedings of---DNA test---Suit for recovery of maintenance was filed by mother and her minor son but petitioner (father) disowned minor as his son---Application was filed by petitioner in Family Court for DNA test of the child, which application was dismissed---Validity---Legitimacy of child entailed far reaching impact, therefore, determination of such crucial and vital issue should not be taken in cavalier manner---Accusation by petitioner or his act of disowning child born in wedlock were to be substantiated through tangible proof and credible evidence---Paternity of child born out of lawful wedlock invariably carried presumption of truth in his favour---Mere simple denial could never take away the status of legitimacy as "child follows the bed"---Every presumption was made in favour of legitimacy of the child and it was presumed to be an issue of his parent without acknowledgement or affirmation of parentage on the part of father---No evidence was available on record to substantiate the frivolous and scandalous version of petitioner with reference to accusation that child was illegitimate---Petitioner did not have recourse to the Court of competent jurisdiction for Liyan---Minor having born out the wedlock between the parties would inevitably be deemed to be a legitimate child and was lawfully entitled to be supported and maintained by petitioner (father).-Constitutional petition was dismissed in limine.

Majmooa-e-Qawaneen-e-Islam Edited by Dr. Tanzeel-ur-Rehman; Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624; Nazir Fatima v. Ghulam Fatima and others 1987 CLC 2073; Bashir Ahmed v. Ilam Din and others PLD 1988 SC 8; Rehmat Khan and 3 others v. Rehmat Khan and another PLD 1991 SC 275; Muhammad Tallat v. Mst. Yasmin Zohra and another PLD 1992 CLC 1180; Manzoor ul Haq and 3 others v. Mst. Kaneez Begum 1993 CLC 109; Muhammad Hussain alias Muhammad Yar v. Sardar Khan and 11 others PLD 1993 Lahore 575; Muhammad Pervez v. Additional District Judge and others 2000 CLC 1605; Mst. Ghulam Fatima v. Mst. Inayet Bibi and 4 others- 1987 MLD 172 and. Muhammad Hussain v. Abdur Rehman and others PLD 1995 Pesh. 124 rel.

Mian Bilal Bashir for Petitioner.

P L D 2008 Lahore 306

Before Hasnat Ahmad Khan, J

JAMSHED ALI and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1324 of 2007, decided on 13th March, 2008.

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

----S. 426---Penal Code (XLV of 1860), S.302(b)/34---Suspension of sentence---No overt act was attributed to accused in the F.I.R. and his presence on the spot at the time of occurrence was only shown---Although accused was allegedly armed with a gun, yet neither the same was used by him during the incident nor was it recovered during investigation---Deceased was done to death at the dead of the night and the F.I.R. was lodged with a delay of four and a half hours---No chance of early hearing of appeal of accused was in sight---Accused being an old man of 71 years was an infirm person and the principles enshrined under S.497, Cr.P.C. could be considered while deciding an application under S.426, Cr.P.C.---Sentence of accused was suspended in circumstances and he was released on bail accordingly.

Mustafa alias Mohsin alias Musi v. The State 2002 PCr.R. 1235; Bashir Ahmad v. Zulfiqar and another PLD 1992 SC 463; Peer Mukaram-ul-Haq v. National Accountability Bureau (NAB) through Chairman and others 2006 SCMR 1225 and Mumtaz Hussain v. The State 2006 YLR 2385 ref.

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

----Ss. 426, 496 & 497---Suspension of sentence---Principles under Ss.496 & 497, Cr.P.C. applicable---Powers conferred under S.426, Cr.P.C. are not controlled by the provisions of Ss.496 and 497, Cr.P.C., but the principles enshrined therein can be taken into consideration while deciding applications under S.426, Cr.P.C.

Bashir Ahmad v. Zulfiqar and another PLD 1992 SC 463; Peer Mukaram-ul-Haq v. National Accountability Bureau (NAB) through Chairman and others 2006 SCMR 1225 and Mumtaz Hussain v. The State 2006 YLR 2385 ref.

Mian Shah Abbas for Appellants.

Shahid Mehmood Khan, Dy. Prosecutor-General for the State.

P L D 2008 Lahore 308

Before Hasnat Ahmad Khan, J

KARAM DAD and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.910-M of 2007, decided on 3rd March, 2008.

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

----S. 354-A---Assault or use of criminal force to woman and stripping her of her clothes---Proof---Essentials---Two conditions must be fulfilled to attract the provisions of S.354-A, P.P.C., firstly there should be stripping of the clothes of the woman and secondly to expose her in that condition to public view, and both these conditions must co-exist.

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

----Ss. 354 & 354-A---Criminal Procedure Code (V of 1898), S.561-A---Quashing of order---Sessions Court in revision had set aside the order of the Magistrate with the direction to amend the charge framed against the accused from S.354, P.P.C. to S.354-A, P.P.C.---Validity---Complainant himself had stated that the clothes of the victim were just torn and not stripped off---Secondly the second pre-requisite for the application of S.354-A, P.P.C. regarding exposure of the victim to the public at large prima facie, was also missing---Revisional Court while passing the impugned order had failed to observe that the prosecuting agency, while registering the case and submitting the challan, itself had found that the case fell within the provisions of S.354, P.P.C.---Trial Court while taking cognizance and framing charge was also of the same view---Besides, prosecution evidence in the case was yet to be recorded---No material at present was available to safely indict the accused under S.354-A, P.P.C.---While interpreting a penal clause, the interpretation beneficial to the accused had to be preferred---Impugned order being illegal was set aside and the order of trial Court was restored---Petition was accepted accordingly.

(c) Interpretation of statutes---

----Penal clause---While interpreting a penal clause, the interpretation beneficial to the accused should be preferred.

Muhammad Ramzan Chaudhry for Petitioners.

Shahid Mehmood Khan, Deputy Prosecutor-General for the State.

Malik Shahid Iqbal Awan for Respondent No.2.

P L D 2008 Lahore 312

Before Syed Shabbar Raza Rizvi and Fazal-e-Miran Chauhan, JJ

M. ASHRAF KHAN, ADVOCATE SUPREME COURT OF PAKISTAN---Petitioner

Versus

SECRETARY LAW. PARLIEMENTARY AFFAIRS AND HUMAN RIGHTS, GOVERNMENT OF THE PUNJAB, LAHORE and 19 others---Respondents

Writ Petition No.8932 of 2007, decided on 3rd April, 2008.

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

----Arts. 100 & 140---Creation of office of Attorney-General and Advocate-General exists almost in all countries and Constitutions of the world irrespective of Presidential System or Parliamentary System of the Government concerned---Historical perspective of establishment of office of Advocate-General in the sub-Continent elaborated.

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

----Arts. 140(2) & 111---Establishment of the Office of Advocate-General for a Province---Purpose---Principal function and constitutional requirement of creation of office of the Advocate-General---Functions presently performed by the Advocate-General summarized taking into consideration provisions of Arts.111 and 140 of the Constitution.

Advocate-General is a First Law Officer and his principal function is to provide independent legal advice to the Government and to represent the Government in Courts. Another constitutional requirement to create the office of the Advocate General is to provide advice to the Provincial Assembly. Article 111 of the Constitution of Pakistan gives right to the Advocate-General to speak and otherwise take part in the proceedings of the Provincial Assembly or on Committee thereof in which he may be named as a Member.

The functions presently performed by the Advocate-General may be summarized taking into consideration provisions of Articles 111 and 140 of the Constitution and some other legal instruments as under:-

(i) the Advocate-General tenders his advice on issues and matters, which are referred to him by the Provincial Government or different departments of the Provincial Government.

(ii) the Advocate-General represents a Provincial Government in cases wherein Provincial Government is party, in the superior Courts of the country, including the Supreme Court of Pakistan;

(iii) the Advocate-General assists the Superior Courts as a Law Officer in all cases of Public Importance, particularly, where, interpretation of constitutional points is involved;

(iv) the Advocate-General also prosecutes contemners in cases of contempt of Court;

(v) the Advocate-General protects public rights in cases of public nuisance and also protects public charities; and

(vi) the Advocate-General also represents Provincial Government under Article 111 of the Constitution in the Provincial Assembly. He has right to sit in the Provincial Assembly to participate in the proceedings of the Provincial Assembly and to address the Provincial Assembly to explain a constitutional and legal point, he can also be appointed a member to any Committee of the Provincial Assembly. In fact, he has all the rights which an elected member may have except a right to vote.

Another very vital unwritten function of the Advocate-General is to work as a bridge between the Provincial Government and the High Court. The Chief Justice of High Court has to perform several administrative functions besides his judicial functions. In this regard, a regular communication is required to deal with several matters.

Access to Justice in Pakistan by Justice (R) Fazal Karim, p.14 and Constitution of India by BASU Vol. F ref.

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

----Arts. 140, 105 & 260---Punjab Law Department Manual, 1938, Paras. 1.5 & 1.18---Punjab Government Service (Conduct) Rules, 1966, Preamble---Punjab Government Notification No.8-19/93, dated 19-10-1993---Appointment of Advocate-General, Additional Advocates General and Assistant Advocates-General---Procedure, nature of appointment, qualifications, tenure and functions of their respective offices---High Court, while citing the example of retaining one jurist as Attorney-General and the other Advocate-General for 11 years and 17 years respectively by India, which has similar provisions of the Constitution as those of Pakistan Constitution, desired that Pakistan may also take a cue front said examples of tenure of Law officers from the Indian jurisdiction.

The office of the Advocate-General was established in the united Punjab Province, under paragraph 1.5 of the Punjab Law Department Manual, 1938. Under Government of India Act of 1935, the Governor of the Province was empowered to appoint the Advocate-General in its discretion, however, after the independence, the situation became different. Under Article 140 of the Constitution and earlier Constitutions, the Advocate-General is appointed by the Governor on the advice of the Chief Minister as contemplated under Article 105 of the Constitution.

Under paragraph 1.18 of the Punjab Law Department Manual, appointment of Assistant to the Advocate-General was provided. However, the nomenclature was changed and Assistant to the Advocate-General was substituted with Assistant Advocate-General. In addition to the above, vacancy for Additional Advocate-General was also created. Both are required to perform their functions under the control of the Advocate-General. The Punjab Government Service (Conduct) Rules, 1966 were also made applicable to them.

Notification dated 19th October, 1993 provided that the Government may in consultation with Lahore High Court, Lahore appoint an Additional Advocate-General or an Assistant Advocate-General. The said Notification also provided that a person shall not be appointed as an Additional Advocate General unless he is the citizen of Pakistan, and is not less than 40 years of age or he is enrolled as an Advocate of Supreme Court of Pakistan, and has for a period not less than 10 years be an Advocate of the High Court and Supreme Court. The above Notification further provided that a person shall not be appointed as an Assistant Advocate-General unless he is a citizen of Pakistan, and has not less than 35 years of age and for a period not less than 7 years be an Advocate of the High Court. In the subsequent Notifications to the above, the above conditions were never expressly amended.

Office of the Assistant Advocate-General is an office of profit and is included in the expression of `Service of Pakistan'. Office of the Advocate-General is different in the eyes of the law than the office of the Assistant Advocate-General. The appointment of the Advocate-General is a constitutional appointment, whereas, the appointment of an Assistant Advocate-General is made under the statute/rules. The same applies to the office of the Additional Advocate-General. Both are appointed under paragraph 1.18 of the Punjab Law Department Manual, 1938.

The post of Assistant Advocate General cannot be equated with Advocate-General which is a constitutional appointment under Article 140 of the Constitution. Besides, Article 260 of the Constitution specifically grants protection by excluding said office from service of Pakistan.

Additional Advocate-General and Assistant Advocate-General hold public offices and are paid from the public exchequer. Most of their functions are similar to the Advocate-General under whose command and leadership they work. One of their major functions is to represent the Provincial Government in the Courts as well as to assist the Courts including the Supreme Court and the High Court. Thus, the Government, Courts and the people expect certain degree of competence and integrity from them. The offices of the Advocate-General and the Assistant Advocate-General are extension of the Advocate-General office as it is evident from the reading of Paragraphs 1.5 and 1.18 of the Punjab Law Department Manual, 1938. The object of the Joint Parliamentary Committee deliberating on the Government of India Act, 1935 was to secure for the Provincial Government legal advice from an officer not merely well qualified to tender such advice but entirely free from the trammels of the political or party associations. For the above reasons, the Committee had also ensured a handsome non-viable salary and a tenure of recognized period of years irrespective of the political fortunes of the Government or Governments. Though the circumstances have changed and in the changed circumstances, the Advocate-General is not retained for a specified period. Normally when a government changes, an Advocate-General is also changed. In several cases, the Advocate-General is changed even during the tenure of the same government. However, in India there are examples where Advocate-General retains his office during many governments. For example one jurist remained Advocate-General for the Province continuously for 17 years and another served as Attorney-General of India continuously for 11 years. Since Pakistan has the similar constitutional provisions relating to the office of the Advocate-General and also follow the Parliamentary System prevailing in both countries; a cue may be taken from the above two examples of tenure of Law Officer from the India jurisdiction.

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

----Art. 140---Appointment of Advocate-General of a Province---Constitutional requirements of qualification of person to be appointed as Advocate-General---Article 140 of the Constitution requires that Chief Justice of the High Court be consulted prior to making an appointment of the Advocate General.

According to Article 140 of the Constitution, the Governor of each Province shall appoint person, being a person qualified to be appointed a Judge of the High Court, to be the Advocate General for the Province. Thus, it is a constitutional requirement that only such a person should be appointed as an Advocate-General who is qualified to be appointed a Judge of the High Court. The Chief Justice of Pakistan and the Chief Justice of the concerned High Court are the best persons to judge whether a particular person is qualified to be appointed a Judge of the High Court or not.

The spirit of Article 140 of the Constitution requires that Chief Justice of High Court be consulted prior to making an appointment of the Advocate-General.

Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 ref.

(e) Constitution of Pakistan (1973)---

----Arts. 140, 105 & 193---Punjab Law Department Manual, 1938, paras.1.5 & 1.18---Government of Punjab Notification No.8-19/93/3363, dated 19-10-1993---Appointment of Additional Advocates-General and Assistant Advocates-General---Considerations for---Nature and requirements of appointments---Provisions of Punjab Government Notification No.8-19/93/3363, dated 19-10-1993 being in line with Art.140 of the Constitution should be followed while making appointments of Additional Advocates-General and Assistant Advocates-General---All three offices are paid from the public exchequer and they are assigned very professional and sensitive assignments/functions which have implications/repercussions on the functioning of Court, Government as well as public at large---Appointment of Advocate-General, Additional Advocate-General and Assistant Advocate-General must be made in all seriousness and in public interest disregarding personal and political considerations-Principles.

Provisions of Notification No.8-19/93/ 3363, dated 19-10-1993 are in line with Article 140 of the Constitution and hence should be followed while making appointments of Additional Advocate-General and Assistant Advocate-General. All three offices are paid from the public exchequer and they are assigned very professional and sensitive assignments/functions which have implications/repercussions on the functioning of courts, government as well as public at large.

Assistant Advocate-General, etc. hold office of profit having monetory benefits from the public exchequer. The office of the Advocate-General is meant for providing sound professional advice to the Provincial Government. All these considerations and reasons lead to the conclusion that appointment of the Advocate-General, Additional Advocate-General and Assistant Advocate-General must be made in all seriousness and in public interest disregarding personal and political considerations. However, requirement of the consultation under Article 140 of the Constitution and Paragraphs 1.5 and 1.18 of Punjab Law Department Manual, 1938 cannot be construed in the same manner as it is required in terms of Article 193 of the Constitution. Likewise, Article 140 shall be read and construed in conjunction with Article 105 of the Constitution.

(f) Constitution of Pakistan (1973)---

----Arts. 140(3) & 105---Appointment of Advocate-General of a Province---Advocate-General to hold office during the pleasure of the Governor, the pleasure of the Governor shall be construed under the present circumstances as pleasure of the Chief Minister---Language of Art.140(3) needs to be interpreted under the present political circumstances and constitutional scheme, particularly Art.105 of the Constitution.

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

----Arts. 140, 131, 105 & 199---Punjab Law Department Manual, 1938, paras.1.5 & 1.18---Punjab Government Service (Conduct) Rules, 1966---Punjab Government Notification No.8-19/93, dated 19-10-1993---Constitutional petition---Petitioner called in question the appointment of Additional Advocates-General and Assistant Advocates-General in the office of Advocate-General on the ground that such appointments were made in derogation of the rules on the subject and further contended that Punjab Government Notification No.8-19/93 dated 19-10-1993 be read with Arts. 139 & 140 of the Constitution; that expression "determine" was significant and must be construed objectively taking into account purpose of establishment of constitutional office of the Advocate-General, Punjab; that Constitution and Rules required prior consultation with the High Court for appointment of Advocate-General, Additional Advocates-General and Assistant Advocates-General and that appointment must be made in public interest---Validity---High Court, after a detailed discussion and consideration on different aspects of the subject in issue, allowed the constitutional petition and issued specific directions to the concerned quarters accordingly.

Following are the directions issued by the High Court:--

(i) The Government of Punjab/Secretary Law, Parliamentary Affairs and Human Rights, will determine, in consultation with the Chief Justice/High Court, the posts of Additional Advocates-General and Assistant Advocates-General in the office of Advocate-General, Punjab taking into account the number of Judges of the Supreme Court, the number of Judges of the Lahore High Court; and other courts, Tribunal etc. The fact that the prosecution department has already been separately established shall also be considered while determining the required number of Law Officers in the Advocate-General Office. It is further directed that once the number of required posts is fixed, it shall not be changed save following the same procedure.

(ii) In future the Governor of Punjab shall appoint a person, being a person qualified to be appointed a Judge of the High Court, to be the Advocate-General, for the province with prior consultation with the Chief Justice/High Court. Likewise, Additional Advocate-General and Assistant Advocate-Generals shall also be appointed with prior consultation with the Chief Justice/High Court in addition to other qualifications/requirements provided in the Law Department Manual (1938). Reported cases, conducted by the aspirants of the above officers shall be an important requirement.

(iii) No adverse order is being passed against the respondents, however, the appointments of the respondents, for validity of their appointments shall be examined in the light of above findings enshrined in sub-paras.(i) and (ii) within 40 days from to-date.

Constitution of India by Basu Vol-F, p.5; Access to Justice in Pakistan by Justice (R) Fazal Karim, p.14; Muhammad Khurshid Khan v. Returning Officer 1998 SCMR 425 and Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 ref.

Petitioner in person.

Aftab Iqbal Chaudhry, A.G. Punjab for Respondents.

Dates of hearing: 31st March and 3rd April, 2008.

P L D 2008 Lahore 326

Before Kazim Ali Malik, J

Mst. RIFFAT SHAHEEN---Petitioner

Versus

DISTRICT PUBLIC SAFETY COMMISSION, RAWALPINDI through Chairman

and 4 others---Respondents

Writ Petition No.1342 of 2005, heard on 1st April, 2008.

Police Order (22 of 2002)---

----Art. 44(k) & (m)(ii)(iii)---Penal Code (XLV of 1860), Ss.337-F(v)/ 452/420/406/506/34---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Powers of District Public Safety Commission---Scope---During investigation of the case registered against them accused made an application under Article 44(i)(k) of Police Order, 2002, to the District Public Safety Commission calling in question the correctness of allegations set up in the F.I.R.---Fact-Finding Commission on having reached the conclusion that the F.I.R. was based on false information and the machinery of law had been moved against the accused dishonestly, directed the Investigating Agency to cancel the case vide impugned order---Provisions of Cl.(m)(ii)(iii) of Art. 44 of Police Order, 2002, relied upon by the accused, provided that District Public Safety Commission, after flaying received the fact-finding inquiry report, was required to forward the same to the Head of District Police with a direction to take legal action against the delinquent Police Officer and if no action was taken as proposed, then the matter was to be reported to the Provincial Government through the Provincial Public Safety and Police Complaints Commission for action under the appropriate law---Police Order, 2002, or the Code of Criminal Procedure, or any other law touching the subject to investigation of criminal cases, nowhere authorized or empowered the District Public Safety Commission to direct the Investigating Agency to cancel the case---Commission had assumed the role of Investigating Officer rather encroached upon the functions of the Investigator, D.S.P.O. and the Head of investigation---Commission had no authority to direct the Investigating Agency to cancel a criminal case under investigation---No forum had been provided under the Police Order, 2002 to challenge the order of the Commission and the complainant had no other appropriate, alternate and efficacious remedy except the constitutional petition to challenge the same---Commission had passed the impugned order beyond its sphere allotted by law and it was a fit case for exercise of constitutional jurisdiction in order to keep the functionaries of the Government within their limited scope---Constitutional petition was consequently accepted with the direction to Investigating Agency to conclude the investigation on facts in accordance with law without being influenced by the impugned direction.

Munir Ahmad Kiyani for Petitioner.

Syed Shahid Hussain Kazmi, A.A.-G.

Muhammad Saeed Akhtar Raja for Respondent No.4.

Date of hearing: 1st April, 2008.

P L D 2008 Lahore 329

Before Sayed Zahid Hussain, C.J. and Ali Akbar Qureshi, J

COMMISSIONER OF INCOME TAX, FAISALABAD ZONE, FAISALABAD

and another---Appellants

Versus

AKHLAQ CLOTH HOUSE, FAISALABAD and another---Respondents

I.C.A. No.296 of 2004 in Writ Petition No.17565 of 2003, heard on 20th February, 2008.

Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000)---

----S. 32---Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983), Art.32---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court Appeal---Personal hearing by the President---Scope---Representations against order of Federal Tax Ombudsman were accepted by the President---High Court set aside the order passed on representation on the ground that the same was decided and accepted by the President without affording opportunity of personal hearing to parties concerned---Validity---Where person/party concerned had notice/ opportunity of filing comments/reply to the representation, the decision of the President could not be annulled simply for the reason that personal/oral hearing was not afforded---Where, however, the person/party concerned had no notice/opportunity of filing comments or reply and decision was made without affording such opportunity, the representation needed to be reconsidered and decided after notice and affording opportunity of filing reply/comments to the same---Respondent having had the opportunity of filing reply to the representation which was decided through a speaking order, no interference was warranted with the order in exercise of constitutional jurisdiction---Division Bench of High Court set aside the order passed by Single Judge of High Court---Intra-Court appeal was allowed in circumstances.

Federation of Pakistan through Secretary, Establishment Division Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and 2 others 1999 SCMR 2744; Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and others 1999 SCMR 2189; H.W.R.WADE & C.F.FORSYTH in Administrative Law at page 537 Seventh Edition and the University of Dacca through its Vice-Chancellor and another v. Zakir Ahmed PLD 1965 SC 90 ref.'

Federation of Pakistan through Secretary Education, Islamabad v. Professor Dr. Anwar and 2 others 2006 SCMR 382 rel.

Qamar Zaman Qureshi, Deputy Attorney-General for Pakistan for Appellants.

Sirajuddin Khalid Khan for Respondent No.1.

Date of hearing: 20th February, 2008.

P L D 2008 Lahore 335

Before S. Ali Hassan Rizvi, J

MUHAMMAD SADIQ---Petitioner

Versus

REGIONAL POLICE OFFICER, MUZAFFARGARH and 3 others---Respondents

Writ Petitions .Nos.4509, 3581 to 3584, 3735 and 3294 of 2007, decided on 26th March, 2008.

Petroleum Act (XXX of 1934)---

----Ss.14, 26 & 44---Pakistan Petroleum (Refining, Blending and Marketing) Rules, 1971, Rr.2(b) & 43(a)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Police Official, in all cases, had directly conducted the raid without obtaining the permission from. the competent Authorities as laid down in Pakistan Petroleum (Refining, Blending and Marketing) Rules, 1971---Pakistan Petroleum (Refining, Blending and Marketing) Rules, 1971, had not mentioned that the Police Officer was competent, independent of the competent Authority to conduct raid and register the F.I.R.---Act of the Police Officer to conduct the raid or to register the case, was without any legal authority---F.I.Rs. stood quashed, in circumstances.

1993 MLD 577; 2003 YLR 239 and 2007 MLD 1675 ref.

Malik Muhammad Tariq Rajwana for Petitioner.

Mubashar Latif Gill, A.A.-G., with Tasaddaq Abbas, S.-I. Police Station.

Qureshi and Talib Hussain, S.-I. Police Station Sanawan with record.

P L D 2008 Lahore 337

Before Syed Asghar Haider, J

Malik AHMAD BAKHSH---Petitioner

Versus

TEHSIL MUNICIPAL ADMINISTRATION, ARIFWALA and 3 others---Respondent

Writ Petition No.1023 of 2008, decided on 17th March, 2008.

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

----Ss. 176 & 177---Registration Act (XVI of 1908), Ss.58, 59 & 60---Constitution of Pakistan (1973), Arts.2 (a) (b) (c), 4 & 199---Constitutional petition---Certified copies of Revenue Record---Registration of sale-deed---Grievance of petitioner was that Revenue Authorities declined to issue certified copy of Revenue Record pertaining to land under sale, resultantly Sub-Registrar refused to register sale-deeds to be executed---Plea raised by authorities was that certified copy of Revenue Record was denied in view of illegal construction being raised by ghost societies---Validity---No officer exercising powers under West Pakistan Land Revenue Act, 1967, was bestowed with authority to override provisions of Ss. 176 and 177 of West Pakistan Land Revenue Act, 1967 and any order otherwise was illegal---Letter issued by authorities directing Revenue Authorities not to issue copies was illegal and ultra vires the law and was set aside---Constitution being the supreme law mandated and commanded that all State functionaries were to act within the parameters set by law, thus any direction or command otherwise and in contravention of the enactment was illegal---High Court took note of the fact that it was a crying demand of general public that Revenue Officers were refusing issuance of certified copies of land record---High Court directed the authorities to initiate remedial measures and if any such complaint was brought to the notice of superior officers in Revenue hierarchy, they should ensure that delinquent persons were adequately dealt with and punished in accordance with law---Registration Officer was under bounden duty under Ss. 58, 59 and 60 of Registration Act, 1908, to register every document presented to him in accordance with the provisions of law except the documents which suffered from any legal impediment recognized by law---High Court directed Revenue Authorities to issue copies of required land record---Petition was allowed in circumstances.

Ghula Yasin v. District Officer (R.), Jhang and 2 others PLD 2007 Lah. 689 ref.

Kh. Saeed-us-Zafar for Petitioner.

Muhammad Ibrar Sheikh for Respondent No.1.

Shujaat Ali Khan, Asstt. A..-G. for Respondents Nos. 2 to 4.

P L D 2008 Lahore 341

Before Abdul Shakoor Paracha and S. Ali Hassan Rizvi, JJ

SOHAIL LATIF and 2 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior, Government of Pakistan, Islamabad and 2 others---Respondents

Writ Petition No.3058 of 2008, decided on 14th April, 2008.

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

----Ss. 2 & 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Placing names on Exit Control List---Petitioners had assailed order of authorities (Federation of Pakistan) at the behest of National Accountability Bureau of placing the names of the petitioners on the Exit Control List---Names of the petitioners had been conveyed to be placed on Exit Control List on 'ground that investigation/prosecution against the petitioners was in progress---No material was available before the authorities to deprive the petitioners from their right of free movement and curtail their liberty---Facts of the case had not been correctly narrated . in the impugned order---Exit from Pakistan (Control) Ordinance, 1981, no doubt had empowered Federal Government to prohibit any person or class of persons from proceeding from Pakistan to a destination outside Pakistan, notwithstanding the fact that such person was in possession of valid travel documents, but authorities had included the names of the petitioners in the Exit Control List on the instructions of National Accountability Bureau which had no lawful authority to do so---Right of a citizen to travel abroad, was a fundamental right guaranteed by Arts.2-A, 4, 9, 15 & 25 of the Constitution---Abridgment of said fundamental rights by the State through. the Legislature or an executive measure had to be tested on the touchstone of constitutional provisions---Life, liberty and property of a citizen could not be taken away or adversely affected except in accordance with law---Impugned action of authorities (Federation of Pakistan) regarding placing the names of petitioners in the Exit Control List, was declared to have been taken without lawful authority and of no legal effect.

Government of Pakistan and another v. Dada Amir Haider Khan PLD 1987 SC 504; Wajid Shamsul Hassan v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad PLD 1997 Lah. 617; Superintendent of Police v. Abubakar 1972 SCMR 154 and Malik Mushtaq Awan v. Government of Pakistan and others PLD 1999 Lah. 372 ref.

Mr. Mehmood Azam Awan for Petitioners.

Nadeem-ud-Din Khan, Deputy Attorney General. Zulfiqar Ahmed Bhutta, ADPGA for NAB, Rawalpindi. Khalid Tipu, Special Prosecutor for NAB.

P L D 2008 Lahore 347

Before M. Bilal Khan and Muhammad Ahsan Bhoon, JJ

THE STATE through Prosecutor-General Accountability, NAB, Islamabad---Appellant

Versus

BABAR ALI KHARAL---Respondent

Criminal Appeal No.1151 of 2007, heard on 14th April, 2008.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 12 & 32---Freezing of property---Procedure---Principles---Appeal to High Court against the judgment passed by Accountability Court vide which application for return of vehicles and jewellery etc. had been accepted---Maintainability---Provisions of S.12, National Accountability Ordinance, 1999 dealing with freezing of property, were self-sufficient and exhaustive provisions of law which had conferred powers on NAB Authorities for the purpose of freezing/seizing, attachment etc. of property of accused or any party thereof, whether in his possession; or possession of his relative, associate or person on his behalf---Said provision however had placed certain obligations on the Authorities to keep a check and balance to avoid misuse of the authority and it was mandatory that if any property was frozen/seized by the NAB Authorities, the order had to be passed by the Chairman NAB for freezing/seizure of the same, which was non-existent in the present case---Even if an order of seizure/frozen, attachment or prohibition was passed by the Chairman NAB, that would remain enforced for a period not exceeding 15 days unless confirmed by the court where the reference against accused was sent, but in the present case, there was no confirmation by the court concerned regarding the said claim/seizure by the NAB Authorities---Retaining property of respondent was in absolute violation of proviso to S.12(iv) of National Accountability Ordinance, 1999 as it could not be left at the discretion of NAB Authorities that they could choose according to their wishes any provision of law and apply same for their own benefit or to justify their illegal actions to deprive an individual of his property---Even otherwise the Legislature in its wisdom had prohibited right of appeal against an interlocutory order and impugned order was not final in nature as reference was still pending with NAB; appeal by NAB, was dismissed being incompetent in circumstances.

Ch. Abdus Sattar, Senior Special Prosecutor for NAB.

M.A. Malik and Sittar Sahil for respondent.

Date of hearing: 14th April, 2008.

P L D 2008 Lahore 352

Before Kazim Ali Malik, J

TASADDUQ HUSSAIN SHAH and others---Petitioners

Versus

MEMBER BOARD OF REVENUE and others---Respondents

Writ Petition No.1472 of 2008, heard on 15th April, 2008.

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

----S.7---Revenue Officer----Categories---Girdawar of circle and District Coordination Officer do not fall within any of the categories of Revenue Officers.

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

----Ss.11, 13 (2) (3), 14(1) (2)(4) & 17---Naib Tehsildar---Transfer and positing---Directive of Chief Minister---Scope---Chief Minister did not have powers to transfer any Naib Tehsildar from one station to another station nor he could authorize District Coordination Officer to post any Girdawar against any vacant post of Naib Tehsildar---Directive of Chief Minister and posting and transfer order of Qanugos and Naib Tehsildars by District Coordination Officer must be ignored being nullity in the eyes of law.

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

---Ss. 7, 13(2), 14(1) & 16(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Revenue Officers---Superintendence, control and delegation of powers---Scope---Qanugos were posted as Naib Tehsildars by District Coordination Officer against vacant posts on stop gap arrangement---Validity---District Coordination Officers could not post Qanugos as Naib Tehsildars as stop gap arrangement by assuming role of Senior Member Board of Revenue---Conferment of powers upon Revenue Officers was the prerogative of Board of Revenue---District Coordination Officer could not delegate such power of Revenue Officer to Qanugos with which he himself was not equipped---Qanugos were not Revenue Officers in terms of the provisions of West Pakistan Land Revenue Act, 1967---Qanugos performed duties of Revenue/Officer/ Assistant Collector Grade-II for years under illegal orders of District Coordination Officer, giving rise to many legal and factual complications---High Court left such conduct of District Coordination Officer to the judgment of Provincial Government under whose administrative control he had been placed---Order of appointment of Qanugos as Naib Tehsildar by District Coordination Officer was rightly declared null and void with no legal effect by Board of Revenue---Petition was dismissed in limine.

Naveeda Tufail's case 2003 PLC (C.S.) 69 ref.

Tahir Mahmood for Petitioners.

Nemo for Respondents.

Date of hearing: 15th April, 2008.

P L D 2008 Lahore 358

Before Muhammad Akram Qureshi, J

Malik MUHAMMAD NAEEM AWAN---Petitioner

Versus

Malik ALEEM MAJEED and 5 others---Respondents

Writ Petition No.12212 of 2007, decided on 8th April, 2008.

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

----S. 3---Complaint---Maintainability---Civil suit pending---Scope---In presence of civil, suit, complaint under S.3 of Illegal Dispossession Act, 2005 can continue side by side---No bar exists to decide the complaint even prior to the decision of civil suit.

Rehmatullah v. Abdul Aziz and another 1974 PCr.LJ 541; Sh. Ahmad v. Sh. Muhammad Yunus 1971 PCr.LJ 331 and Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz) Narowal and 5 others. PLD 1992 Lahore 178 ref.

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

----Ss. 3, 5 & 7---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Illegal dispossession---Member of Qabza group---Condition precedent---Scope---Complaint under S.3 of Illegal Dispossession Act, 2005, filed by petitioner was dismissed by Trial Court on the ground that accused persons were not members of Qabza group---Validity---Provisions of Illegal Dispossession Act, 2005, were not only applicable to land grabbers, Qabza groups or other persons habitually indulging in such activities but to all persons illegally occupying or in possession of any premises---Summary of evidence and documents filed by petitioner, in the contents of complaint, sufficient reasons existed to proceed with trial of the case---Petitioner had specifically levelled allegations of forcible dispossession of his land from the hands of accused and thus brought such evidence on record which if not rebutted would have been sufficient to convict the accused---Order passed by trial Court was set aside and case was remanded to Trial Court for decision afresh---Petition was allowed accordingly.

Rahim Tahir v. Ahmed Jan and 2 others PLD 2007 SC 423; Zahoor Ahmed and 5 others v. The State and 3 others PLD 2007 Lah. 231 and Zeeba Bakhitar v. Idnan Sami 1998 SCMR 922 ref.

Pir S.A. Rashid for Petitioner.

Muhammad Hussain Chotiya for Respondents Nos. 1 to 4.

P L D 2008 Lahore 364

Before Zafar Iqbal Chaudhry, J

KHURSHID AHMAD---Petitioner

Versus

MEMBER (JUDICIAL-IV), BOARD OF REVENUE PUNJAB, LAHORE and 4 others---Respondents

Writ Petition No.4006 of 2008, decided on 21st April, 2008.

Colonization of Government Lands (Punjab) Act (IV of 1912)---

----S. 10---West Pakistan Board of Revenue Act (XI of 1957), S.8---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Review petition---Maintainability---Proprietary rights, grant of---Scope---Revenue Courts clearly thrashed out the issues and came to conclusion that even Deputy Commissioner's order on which petitioner relied upon had been set aside---Petitioner was refused proprietary rights by Deputy Commissioner and appeal was also dismissed---Revision and review filed by petitioner before Board of Revenue were also dismissed---Validity---Review petition under S.8 of West Pakistan Board of Revenue Act, 1957, was only competent if any new and important matter or evidence was brought on record, which, despite exercise of due diligence, was earlier not within the knowledge of party at the time of passing of order or in case of any error or n is take apparent on the face of record---Petitioner failed to point out any illegality or jurisdictional defect in the orders passed by Revenue Authorities and he failed to establish his case by any iota of evidence---Mere oral' assertions could not be made basis for interference in constitutional jurisdiction---High Court declined to interfere in the order passed by the authorities---Petition was dismissed in limine.

Ch. Nazar Hussain for Petitioner.

P L D 2008 Lahore 368

Before Khurshid Anwar Bhinder, J

MUHAMMAD SIDDIQUE and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3444-B of 2008, decided on 7th May, 2008.

Criminal Procedure Code (V of1898)---

----Ss. 497, 103 & 105---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3, 4 & 22---Bail, grant of---Further inquiry---Both the, accused persons were nominated in the F.I.R. with specific role of manufacturing liquor at their residence; police had grossly violated the law by entering into their house without any search warrants; it was a mandatory requirement of law under Art.22 of Prohibition (Enforcement of Hadd) Order, 1979, to seek search warrants to enter into the private residence; search of place was permissible only if search warrants had been issued by Collector, Prohibition Officer or a Magistrate and that too by a person authorized by the search warrants; raiding party had also violated the mandatory provisions of S.103, Cr.P.C. for not associating independent witnesses of the locality in the recovery process to prove the manufacturing of liquor; which made the process illegal and vitiated the proceedings---Islam attaches much importance to the sanctity and maintenance of privacy of the house and nobody is allowed to violate the privacy of the house irrespective of the business being done in the house---Provisions of Art.14 of the Constitution which provide sanctity and privacy of the private house were also violated and raiding party had not complied with the mandatory provisions of S.105, Cr.P.C. by not taking permission from the Illaqa Magistrate before raiding a private residence; offence under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 which was bailable was also not made out against the accused as they were not transporting the said material to anywhere else---Articles recovered by the police through which the accused were manufacturing liquor seemed planted and fabricated because none of the articles recovered were useable for fermentation process, therefore Art.3 of the Prohibition (Enforcement of Hadd) Order, 1979 was not attracted and in order to hold the accused liable to be tried under Art.3, it was necessary to establish that the recovered material was useable for the fermentation process---Police had all the justification in the world to raid any place where reports of the commission of crime was received, but that did not necessarily mean that police should misuse its powers and raid any place without adopting proper legal course---In order to keep checks and balances on the atrocities and unfettered powers of police, the legislature had framed certain laws and rules to check its powers---Legislature had empowered the judicial officers and Magistrates to keep constant check on the illegal acts and deeds of the police and had incorporated necessary laws in the Criminal Procedure Code, 1898 and Prohibition (Enforcement of Hadd) Order, 1979; Section 105, Cr.P.C. and Art.22 of the Order empowered the Magistrate to issue search warrants before conducting raid at any private place---Case of the accused persons being that of further inquiry in their guilt, High Court, in circumstances, admitted both the accused to post arrest bail, subject to their furnishing bail bonds in the sum of Rs.50,000 each with two sureties in the like amount each to the satisfaction of the trial Court/Illaqa Magistrate.

Sabir Masih and another v. The State 1986 PCr.LJ 2027; Muhammad Hashim v. The State 1995 PCr.LJ 1594; Muhammad Malik alias Maloo v. The State 1989 PCr.LJ 599; Muhammad Bashir alias Doba v. The State PLD 1988 Lah. 574; Muhammad Shafi v. The State PLD 1987 FSC 16; Abdul Sattar v. The State 1985 PCr.LJ 1594; Muhammad Mansha v. The State 1995 SCMR 1414; Muhammad Bilal and another v. Superintendent of Police, Dera Ghazi Khan and another PLD 1999 Lah. 297; 1993 SCMR 2059 and Hadith number in Sahih Muslim (Arabic only) 4006 ref.

Khalid Mian for Petitioners.

Shafqat Ullah Butt, D.P.-G. for the State with Arshad S.-I.

P L D 2008 Lahore 373

Before Syed Hamid Ali Shah, J

MUHAMMAD ASLAM LONE---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, GUJRANWALA and 10 others---Respondents

Writ Petition No.21251 of 2001, decided on 6th May, 2008.

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

----S. 12---Civil Procedure Code (V of 1908), S.152, O.II, R.2 & O.XX, R.3---Decree for specific performance of sale agreement regarding Khasra numbers specified therein---Agreement containing a clause that any other land of vendor in village would be included in transaction of sale of vendee---Meaning---Judgment announced, scope and finality---Principles---Amendment of decree under S.152, C.P.C., adding therein disputed Khasra numbers not claimed in plaint, but covered by such clause of agreement---Validity---Decree holder had. omitted to claim additional disputed Khasra number on basis of such clause---Decree-­holder could not sue in respect of claim so omitted due to bar contained in O.II, R.2, C.P.C.---Provision of S.152, C.P.C. would be attracted in case of accidental slip, arithmetical or clerical mistake in judgment and decree---Decree-holder had invoked provision of S.152, C.P.C. to bring disputed Khasra numbers within ambit of suit and decree---Judgment once announced could not be altered---Omission or mistake of decree holder in suit could not be corrected by invoking provision of S.152, C.P.C.---Question involved was contentious, decision whereof would depend on answers to arguable questions of law, construction of documents, determination of right, thus, provision of S.152, Cr.P.C. would not be attracted thereto---High Court set aside impugned order and restored judgement and decree passed by civil court.

Baqar v. Muhammad Rafique and others 2003 SCMR 1401; Muslim Commercial Bank Ltd. v. Continental Engineers Ltd. and others PLD 1992 Lah. 261; Banque Indo-Suez v. Rehmani Brothers 1993 CLC 1257; Kedarnath Lal and another v. Sheonarain Ram and others AIR 1957 Patna. 408; Ganpat v. Dadda and others AIR 1920 Nag. 92; AIR 1925 Nagpur 274; Haider Ali and another v. Akbar Ali and another PLD 1973 Lah.546; Mian Tahir Shah and another v. Additional District Judge, Swabi and others 1998 SCMR 858; Industrial Development Bank of Pakistan through Deputy Chief Manager v. Saadi Asmatullah and others 1999 SCMR 2874; Muhammad Khan and another v. Muhammad Nawaz through Legal Heirs 2001 MLD 844; Muhammad Imtiaz v. Nasir Ali and others 2004 YLR 487;. Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; Qamar­-ud-Din v. Muhammad Din and others PLD 2001 SC 518 and Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131 ref.

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

----O. XX R. 33, O.XLVII, R.1, Ss.114 & 152---Judgment once pronounced could not be altered---Exceptions stated.

Principle of finality is attached to a judgment. A judgment once pronounced cannot be altered as envisaged in Order XX, Rule 3, C.P.C. The court is rendered functus officio after pronouncement of the decree. There are two exceptions to it namely review or correction of arithmetical and clerical mistakes in the judgment.

Ijaz Feroz for Petitioner.

Muhammad Shahzad Shaukat for Respondents.

Date of hearing: 19th March, 2008.

P L D 2008 Lahore 378

Before Kazim Ali Malik, J

Mst. MARYAM WAHEED and another---Petitioners

Versus

THE STATE and 3 others---Respondents

Writ Petition No.2544 of 2004, heard on 18th March, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Criminal Procedure Code (V of 1898), S.561-A---Penal Code (XLV of 1860), Ss.186, 506, 147 & 148---Constitutional petition---Quashing of F.I.R.---Respondents, who were plaintiffs in a civil suit, filed a contempt petition before the civil court with an allegation that stay order had been violated by the petitioners, who were defendants in the civil suit---Trial Court took cognizance of the contempt petition and appointed Local. Commission in order to ascertain correct position at the site---During pendency of contempt petition, respondents/plaintiffs filed another contempt petition before Tehsildar---Validity---Law Officer could not show any provision of law which could empower and authorize Tehsildar to take cognizance of contempt petition pertaining to civil court---Tehsildar not only. assumed the role of civil court, but also deputed and appointed his Naib Qasid as Bailiff of the court---Tehsildar had encroached upon the functions and powers of the civil court and he did not remain within the sphere allotted to him by law---Petitioners, were well within their right to disobey the direction of the Naib Qasid of the Tehsildar who claimed to be a Bailiff despite the fact that he did not hold the position of Bailiff---Tehsildar had involved himself in the dispute unnecessarily and he was not competent to take cognizance of the contempt of civil court---All orders passed and proceedings conducted by the Tehsildar, must be ignored being nullity in the eyes of law---Petitioners against whom controversy touching landed property had already been laid before the civil court for adjudication, were dragged in criminal litigation unnecessarily under the illegal orders of the Tehsildar---Present case was fit for exercise of constitutional as well as inherent jurisdiction of High Court, so that the government functionaries should not feel encouraged in passing orders without jurisdiction---Impugned F.I.R. was quashed accordingly.

Raja Muhammad Hameed for Petitioners.

Abid Raja, A.A.-G. with Mukhtar Ahmad SI. for the State.

Date of hearing: 18th March, 2008.

P L D 2008 Lahore 381

Before Mian Muhammad Najam-uz-Zaman and Rana Zahid Mahmood, JJ

RIZWAN AHMAD---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and 4 others---Respondents

Writ Petition No.1604 of 2008, decided on 8th April, 2008.

National Accountability Ordinance (XVII of 1999)---

----Preamble, Ss.9 & 18---Constitution of Pakistan (1973), Arts.199 & 25---Constitutional petition---Aims and objects of National Accountability Ordinance, 1999---Petitioner allegedly having demanded Rs.50,000 from complainant for restoration of electricity connection earlier disconnected by him, a raid was conducted on petitioner---Petitioner who allegedly was arrested red-handed with tainted amount, remained on physical remand and thereafter was sent to judicial lock-up by Administrative Judge of Accountability Court---Petitioner had submitted that NAB Authorities were not competent to get the raid conducted in the matter, which fell exclusively within the domain of Anti-Corruption Authorities and submitted that the aims and objects of National Accountability Ordinance, 1999 were to root out corruption in the public departments of high magnitude---Validity---Main purpose of the promulgation of National Accountability Ordinance, 1999 was to check large scale rampant corruption in the public offices in particular and in the country in general---NAB Authorities, in circumstances took cognizance of cases of high magnitude corruption and other laws on the subject of checking of corruption from the Public Offices, such as Anti-Corruption Laws and Criminal Law Amendment Act, 1958, were not repealed and remained as live statutes and the special courts under said statutes were very much functional along with the investigation staff etc.---Chairman NAB or any of his delegatees had no jurisdiction to pick and choose for filing reference against anybody under the provisions of National Accountability Ordinance, 1999 as discretion with NAB Authorities was not absolute or arbitrary---Discrimination in treatment to the citizens by public authorities could not be allowed to sustain in opposition to law on the subject as constitutional protection through Art.25 of Constitution of equality of all citizens before law had been guaranteed---Action by NAB Authorities, prima facie, was not warranted in the case under the law as other laws on the subject could cater the need in the shape of action against the petitioner on the application of the aggrieved person---High Court accepted the constitutional petition of the accused and granted him bail in circumstances.

Rauf Bukhsh Qadri v. The State 2003 MLD 777 ref.

Rai Bashir Ahmad for Petitioner.

Ali Tipu Khan Special Prosecutor General, NAB.

Babar Sher Yar for the Complainant.

P L D 2008 Lahore 384

Before Malik Saeed Ejaz, J

ZAHID YOUSAF---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Nos.14-B of 2008 and 2068-B of 2007, decided on 5th March, 2008.

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

----Ss. 497(2), 91, 204 & Sched. Cl. (2)---Penal Code (XLV of 1860), Ss.302, 452, 337-F(i), 148 & 149---Bail, grant of---Seeking bail in challan case---Accused persons had claimed that as they had already been granted bail in the complaint case, they should also be enlarged on bail in challan case as a matter of right applying S.91, Cr.P.C.---Validity---Section 91, Cr.P.C. was general in nature and it was applicable to a person whose appearance was required---Section 91, Cr.P.C. was applicable not only to accused persons, but it was also applicable to the witnesses---Section 204, Cr.P.C. also directly dealt with accused and essential ingredients to call accused---If accused was required to be proceeded against then to procure his attendance, the court should, have issued summons or warrant considering the nature of each case by following column No.4 of Schedule 2, Cr.P.C.---Bail could not be granted to accused in challan case as a matter of right merely on the ground that he had been admitted to bail in a private complaint regarding the same occurrence, because S.497, Cr.P.C. would be applicable for decision of the bail petition on merits available to accused in the challan case---In the present case neither S.91, Cr.P.C. nor S.204, Cr.P.C. was applicable as accused had been challaned by the police on the basis of F.I.R. registered against them and they were present in that case---Accused were not entitled to bail as a matter of right under S.91, Cr.P.C. as no process under S.204, Cr.P.C. was issued against them in the challan case---Bail in complaint case was allowed to accused persons merely on technical grounds without discussing the facts and merits of the case---Bail petition had to be decided under S.497, Cr.P.C. which was directly applicable in the case.

Mazhar Hussain Shah v. The State 1986 PCr.LJ 2359; Syed Muhammad Firdaus and others v. The State 2005 SCMR 784; Noor Nabi and 3 others v. The State 2005 PCr.LJ 505 and Zia ur Rehman Sajid v. Muhammad Aslam and another 2005 PCr.LJ 1706 rel.

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

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 452, 337-F(i), 148 & 149---Bail, grant of---Further inquiry---Civil litigation was' pending between the parties regarding a house in which alleged occurrence had taken place---Complainant had nominated 23 accused in the F.I.R. and all the male members were shown armed with fire-arms while female accused nominated in the F.I.R. were shown to be armed with Dandas---Deceased had sustained only one injury of fire-arm, which was specifically attributed to co-accused---Accused persons did not cause any injury to the deceased---Only one injury was attributed to one of accused persons caused to one prosecution witness which was found just an abrasion with blunt weapon---Was yet to be determined whether one of accused persons caught hold of deceased at the time when alleged fire was caused---Prima facie when a deadly weapon was being used no person would take risk of catching hold of the person intended to be victimized as there could be a possibility of that person becoming wounded---Number of nominated accused persons had been declared innocent by the police as they were not found present at the scene of occurrence---Five male members from the complainant side along with other female members were shown to be present in the house, but no one had sustained injury at the hands of anyone of the accused---Case of accused persons was one of further inquiry attracting provisions of S.497(2), Cr.P.C.---Accused persons were admitted to ' bail, in circumstances.?

Molvi M. Sultan Alam and Muhammad Rehman Khokhar for Petitioner (In Crl.Misc. No.14-B/2008).

Ch. Pervez Aftab for Petitioner (in Crl. Misc.No.2068-B of 2007).

Abdul Aziz Khan Niazi for the Complainant.

Nadir Manzoor Duggal, D.P.G. with Jabbar A.S.I.

P L D 2008 Lahore 392

Before Syed Shabbar Raza Rizvi, J

WALI MUHAMMAD---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, JARANWALA, DISTRICT FAISALABAD and 5 others---Respondents

Writ Petition No.350 of 2008, decided on 15th May, 2008.

Illegal Dispossession Act (XI of 2005)---

----S. 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Complaint under S.3 of Illegal Dispossession Act, 2005 of the petitioner was dismissed by the Additional Sessions Judge on the ground that the parties were related to each other and a civil suit was also pending in the civil court---Validity---Held, all cases of illegal occupants without any distinction would be covered by the Illegal Dispossession Act, 2005 except the cases which were already pending before any other forum---Object of the Act was to protect the property of the lawful occupants, from illegal and unauthorized occupants across the board---Even if a relative takes possession of a property through illegal and unauthorized means from a lawful owner, the provisions of Illegal Dispossession Act, 2005 would be attracted.

Rahim Tahir v. Ahmed Jan and 2 others PLD 20076 SC 423 fol.

Zahoor Ahmed and 5 others v. The State and 3 others PLD 2007 Lah. 231 ref.

Muhammad Hanif Saleemi for Petitioner.

Ch. Abdul Rasheed for Respondents Nos. 4 to 6.

P L D 2008 Lahore 394

Before Syed Shabbar Raza Rizvi, J

Malik ALLAH YAR KHAN---Petitioner

Versus

THE STATE and 17 others---Respondents

Criminal Miscellaneous No. 531-M of 2007, decided on 7th May, 2008.

(a) Criminal trial---

----Opinion of police---Scope---Opinion of police is not binding upon the court and court is empowered to accept or reject the same.

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

----Ss. 227 & 561-A---Amendment of charge---Reinvestigation of case---Principles---After submission of challan in Trial Court, case was reinvestigated without permission of the court and offence under S.324, P.P.C.. was included in supplementary investigation report---Trial Court as well as lower Appellate Court declined to amend the charge and refused to include the new offence in the charge sheet---Validity---Court was to decide guilt or innocence of accused person, once cognizance was taken by Trial Court---Finding of police officer was not binding on the court---When a competent court had already taken cognizance, an investigation officer could not be allowed to take upon himself to declare an accused person innocent or guilty---At the most, where trial was in progress, the court could be taken into confidence and if fresh investigation was unavoidable because a material piece of evidence had to be collected, which was omitted in earlier investigation or had surfaced after completion of first investigation---Investigation officer could have sought permission from Trial 'Court for re-investigation---High Court declined to interfere with the orders passed by two courts below---Petition was dismissed in circumstances.

PLD 2002 , SC 590; 2000 PSC (Cr1.) 803 and 2003 YLR 701 distinguished.

2003 PCr.LJ 1032; PLD 2007 SC 31 and Khizer Hayat and others v. Inspector-General of Police, (Punjab), Lahore and others PLD 2005 Lah. 470 rel.

Zafar Iqbal Chohan for Petitioner.

Rana Muzaffar Hussain for Respondents.

Ishaq Masih Naz, Deputy Prosecutor General, Punjab.

P L D 2008 Lahore 398

Before Zafar Iqbal Chaudhry, J

MASOOD SADIQ---Petitioner

Versus

Mst. SHAZIA and 3 others---Respondents

Writ Petition No.3331 of 2008, decided on 9th May, 2008.

Christian Divorce Act (IV of 1869)---

---Ss. 36 & 43--West Pakistan Family Courts Act (XXXV of 1964), S.5---Muslim Family Laws Ordinance (VIII of 1961)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintenance allowance (alimony)---Interim maintenance to children--During pendency of suit Family Court allowed interim maintenance (alimony) under S.36 of Christian Divorce Act, 1869, to wife and minor children---Order passed by Family Court was maintained by Appellate Court---Plea raised by husband was that maintenance (alimony) to wife was squarely covered under Christian Divorce Act, 1869, but as far as maintenance of minor children pending decision of proceedings was concerned no specific provision covered such aspect of the matter---Validity---In absence of any specific provision for grant of maintenance to minor, the provisions of West Pakistan Family Court Act, 1964, being not in conflict with the provisions of Christian Divorce Act, 1869, would be applicable---Nothing was available in West Pakistan Family Courts Act, 1964, by which it could be said to be inapplicable to Christians---Maintenance allowance of wife and minors as determined by Appellate Court was found to be in conformity with the provisions of Ss.36 and 43 of Christian Divorce Act, 1869, and of Muslim Family Laws Ordinance, 1961--No illegality or jurisdictional defect in the judgment of appellate Court, having been found same was not open to any interference by High Court, in exercise of constitutional jurisdiction---Petition was dismissed in circumstances.

Mrs. Daphne Joseph v.Malik Eric Roshan Khan PLD 1971 Kar. 887 fol.

Ch. Nemat Ali Nagra for Petitioner.

Ch. Barkat Ali for Respondents Nos. 1 and 2.

Date of hearing: 28th April, 2008.

P L D 2008 Lahore 402

Before Zafar Iqbal Chaudhry, J

ALI RAZA ZAMIR---Petitioner

Versus

UNIVERSITY OF THE PUNJAB through Vice-Chancellor and another---Respondents

Writ Petition No.8829 of 2007, decided on 13th May, 2008.

Calendar of the University of the Punjab, Lahore (2002)---

----Vol. I, Ch. VII, P.590, Regln. 3 & Ch. VI---University of Punjab Act (IX of 1973), S.26---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appearance of petitioner in two examinations i.e. LL.B., Part. III, First Annual Examination, 2006 and M.A. Political Science Part. I, First Annual Examination, 2006---Petitioner was issued show-cause notice who, in response to the said notice, appeared before the Disciplinary Committee and himself requested to quash the result of M.A. Political Science Part. I and retain the result of Part. III, First Examination, 2006---Contention of the petitioner that the University authorities had no power to cancel or quash the result of M.A. Political Science was not tenable in the light of Regulation 3 of Ch. VII, of Vol. I of Calendar of the University of the Punjab Lahore---Candidate who was permitted to take a degree examination of the University was not permitted to take another degree examination in the same year---Petitioner was afforded proper opportunity of being heard by the Disciplinary Committee and on his-request the result of M.A. Political Science Part.I, First Annual Examination, 2006 was quashed according to the Regulation---Constitutional petition of the petitioner against said action of the University was dismissed by High Court in circumstances.

Muhammad Amin Goraya for Petitioner.

Muhammad Arif Raja for Respondents.

Date of hearing: 7th May, 2008.

JUGDMENT

ZAFAR IQBAL CHAUDHRY, J.---Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, Ali Raza Zamir petitioner has challenged the impugned letter dated 2-4-2007 whereby respondent No.2 cancelled and quashed the result of M.A. Political Science Part-I, First Annual Examination, 2006 under Roll No.34873 and also retain the result of LLB Part-III, First Annual Examination, 2006 under Roll No.2051 of the petitioner.

1. The brief facts of the case are that the petitioner got admission in the Quaid-e-Azam Law College Lahore in the years 2002-03 and he appeared in the annual examination 2006 as a late student against Roll No.002051. He was declared as successful obtaining 315/700 marks vide Intimation Card dated 6-3-2007. The petitioner also appeared in M.A. ; Political Science Part-I, Annual Examination 2007 against Roll No.034873 in the same registered No.2K-KK-5 and was declared successful in the examination obtaining 243/500 marks vide Result Examination Card dated 27-12-2006. However, subsequently the petitioner was issued a letter dated 10-3-2007 by' respondent No.2 whereby he was charged as under:

"While checking the office record it has been detected that you appeared in L.L.B. Part-III, First Annual Examination, 2006 and in M.A. Political Science Part-I, First Annual Examination, 2006 under Roll Nos.2051 and 34873 respectively in the same Sessions (2006).' Thus you used unfair means in the examination violating the Regulation. 3 page 590 of the University Calendar ' Volume-I (2002)".

It is further stated in the said letter that the petitioner should submit explanation and to show cause as to why he may be 'not disqualified under regulation.

1. The petitioner was issued another letter dated 22-3-2007 by respondent No.2 directing him to appear before the Disciplinary Committee on 30-3-2007 at 9-00 a.m. to avail opportunity of being heard in person and he appeared and defended the case. Respondent No.2 through letter dated 2-4-2007 informed the petitioner that the result of M.A. Political Science Part-I, Annual Examination 2006 under Roll No.34873 was cancelled and quashed while the result of L.L.B. Part-III, Annual Examination 2006 under Roll No.2051 was retained under regulation No.3 page 590 of the University Calendar Vol. I (2002) in the context of unfair means case registered against the petitioner.

2. Learned counsel for the petitioner submits that the impugned letter dated 2-4-2007 passed by respondent No.2 is without lawful authority and the result of the petitioner could not be quashed as per rules and regulations of the Calendar of the University of the Punjab and no reasonable opportunity of showing cause was provided to the petitioner. It is further submitted that the case of the petitioner does not come within the purview of Disciplinary Committee dealing with the cases of alleged use of unfair means in connection with the examination and other matters affecting the discipline of the students as contained in section 26 of the University of Punjab Act, 1973 read with Regulation. As such the impugned order/letter is illegal, without lawful authority and erroneous in the eye of law which is liable to be set aside.

3. Learned counsel for the respondents has submitted that the petitioner appeared in two examinations in violation of Regulation 3 Chapter VII of the Calendar of the University of the Punjab, Lahore which was not denied by the petitioner. The petitioner was properly given show-cause notice dated 22-3-2007 (Annex.R/3) to appear before the Disciplinary Committee and in response to the said notice he appeared before the Committee on the said date. He was given proper hearing by the Committee and when confronted with the allegation he himself requested the Committee to cancel his result of M.A. Political Science and declare his result of L.L.B. Part-III, First Annual Examination 2006. In view of his request the Committee decided to cancel/quash his result of M.A. Political Science Part-I, First Annual Examination 2006 and the petitioner was informed by the decision of the Committee vide letter dated 2-4-2007. In support of his contention learned counsel for the respondents placed reliance on Chapter VI General Regulations Empowering the Syndicate to quash the result or withdraw the Degree, Diploma or Certificate of candidate and submits that the case of petitioner falls within clause 3 of the said Regulation and no illegality has been committee by the respondents in the case of quashing the result of the petitioner of M.A. Political Science.

4. I have heard the learned counsel for the parties at length and also perused the record as also the impugned letter. It is very much clear in the impugned letter dated 2-4-2007 that the appearance in two examinations i.e. L.L.B. Part-III, First Annual Examination, 2006 and M.A. Political Science Part-I, First Annual Examination, 2006 is not disputed which is in violation of the Calendar of the University of the Punjab. The petitioner was issued show-cause notice who in response to the said notice he appeared before the Disciplinary Committee and himself requested to quash the result of M.A. Political Science and retain the result of L.L.B. Part-III, First Examination, 2006. The arguments of the learned counsel for the petitioner that the respondent has no power to cancel or quash the result of M.A. Political Science is not tenable in the light of the Regulation (VI) of the Calendar of the University which is reproduced as under:

(1) All examinations shall be held at such centers as may be appointed by the Vice-Chancellor.

(2) No one, who has passed an examination of the University, shall be permitted to reappear at the same examination except as specifically provided in the Regulation for the examination concerned.

P L D 2008 Lahore 405

Before Abdul Shakoor Paracha and Hafiz Tariq Nasim, JJ

Ch. NAZIR AHMAD---Appellant

Versus

Moulvi MASOOD UR REHMAN KHAN and 6 others---Respondents

Intra-Court Appeal No.133 of 2008, in Writ Petition No.2514 of 2008, decided on 15th May, 2008.

Societies Registration Act (XXI of 1860)---

----S. 16-A---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court Appeal---Maintainability---High Court disposed of constitutional petition filed by appellants with direction to approach relevant forum---Validity---If a remedy in form of appeal, review or revision was available under the law and despite such fact remedy was not availed before filing of constitutional petition, the Intra-Court Appeal would not be competent/maintainable against order of Single Judge of High Court---Since remedy under S.16-A of Societies Registration Act, 1860, was available to the appellants, their Intra Court Appeal against order of Single Judge of High Court was not competent---Intra-Court appeal was dismissed in circumstances.

Allah Rakha Chaudhry v. President Officer Vth Sindh Labour Court, Karachi and 2 others 1999 PLC 128, Deputy Commissioner/Administrator, District Council Attock and another v. Lawrencepur Woollen Textile Mills Ltd. 1999 SCMR 1357 and Syed Arif Raza Rizvi v. Messrs Pakistan International Airlines through Chairman/MD PLD 2001 SC 182 ref.

M. AZIZ Qureshi for Appellant.

P L D 2008 Lahore 408

.Before Maulvi Anwarul Haq, J

RAJA MUHAMMAD---Petitioner

Versus

Mst. SHAMIM AKHTAR and 2 others---Respondents

Writ Petition No.2020 of 1999, heard on 7th May, 2008.

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

----S. 5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintenance allowance---Khidmat Committee---Jurisdiction---Maintenance allowance fixed by Family Court in favour of wife and minor children was enhanced by Chairman Khidmat Committee---Validity---Khidmat Committees were found to have been constituted in exercise of executive powers through a notification---Validity---Every executive action should have backing of some law and in absence of any such law, establishment of Khidmat Committee was wholly illegal---Family Court had the exclusive jurisdiction to decide question of maintenance---Order passed by Chairman Khidmat Committee was declared without lawful authority---High Court prohibited the authorities from enforcing order passed by the Chairman of Khidmat Committee---Petition was allowed in circumstances.

M. D. Tahir, Advocate v. Federal Government through Secretary, Cabinet Division, Pakistan Secretariat, Islamabad and 2 others PLD 2000 Lah. 251 and Ch. Muhammad Idrees, Advocate v. S.H.O., Police Station Pattoki, District Kasur and others 1999 CLC 570 ref.

Raja Muhammad Faraz for Petitioner.

Viqas Rauf, Federal Counsel (on Court call).

Date of hearing: 7th May, 2008.

P L D 2008 Lahore 410

Before Syed Hamid Ali Shah, J

SHAKEEL AHMAD-Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and another---Respondents

Writ Petition No.9940 of 2007, decided on 26th May, 2008.

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

---Ss. 5, 7(2) & Sched. [as amended by Family Courts (Amendment) Act (VII of 1997)]---Constitution of Pakistan (1973), Art.199---Constitutional petition---Territorial jurisdiction---Determining factor---Suit for recovery of dowry articles was filed by wife at place "L"---Husband resisted the suit on the ground that place of residence of wife was at place "G" therefore, suit at place "L" was not maintainable----Validity---It was wife's right to bring the suit within the local limits of Family Court, where she ordinarily resided---Ordinary residence could not be determined through hard and fast rules---Intention of wife to stay at a particular place was material and not length of stay---Neither Civil Procedure Code, 1908, nor Qanun-e-Shahadat, 1984, was applicable to the matters falling within the jurisdiction of Family Court---It was the ordinary residence which was determining factor for jurisdiction of Family Court---Wife had filed suit for recovery of dowry articles as far back as in year, 2001 and as yet she had not succeeded in getting her case/suit decided on merits---Parties had been fighting on technicalities for the past seven years and the case was yet to be decided on merits---High Court directed Family Court to decide pending suit of wife expeditiously---Petition was dismissed in circumstances.

Syed Zia ul Hassan Gilani v. Mian Khadim Hussain and 7 others PLD 2001 Lah. 1188; Muhammad Bashir and 2 others v. Muhammad Firdos and others PLD 1988 SC 232; Muhammad Akram v. Mst. Shahida Perveen and others PLD 2004 Lah. 249; Nazir Ahmad v. District Judge 1996 MLD 2017 and Mahboob Ahmad v. First Additional District Judge and another PLD 1976 Kar. 978 ref.

Muhammad Iqbal v. Perveen Iqbal PLD 2005 SC 22 rel.

(b) Interpretation of statutes---

----Rules---Provisions of statute and rules made thereunder are to be read in conjunction---Rules cannot be read in isolation.

Ch. Ali Muhammad for Petitioner.

Miss Alia Neelum for Respondent No.2.

P L D 2008 Lahore 414

Before Maulvi Anwarul Haq, J

MUHAMMAD, BASHARAT---Appellant

Versus

Mrs. UZMA BHATTI----Respondent

F.A.O. No.170 of 2007, heard on 19th May, 2008.

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

----S. 17(4)(b)(iii), proviso 3---Ejectment of tenant---Bona fide personal need of landlady---Landlady sought eviction of tenant from non-residential building on the ground of bona fide personal need---Rent Controller accepted the application and passed eviction order---Plea raised by tenant was that application was premature, landlady intended to increase rent and provisions of S.17(4)(b)(iii) proviso 3 of Cantonments Rent Restriction Act, 1963, were applicable---Validity---Building was let out to tenant for a period of three years with effect from 22-2-2002, which period was to expire on 21-3-2005 whereas ejectment application was filed on 24-7-2004---Period of agreement had expired during pendency of ejectment petition, which was decided on 15-5.2007 and as such objection of tenant had lost its efficacy---Proviso to S.17(4)(b)(iii) of Cantonments Rent Restriction Act, 1963, would apply only if building was let out expressly for such a purpose or which had been converted for such 'purpose with the' consent in writing of landlady---Agreement between the parties did not at all disclose that building was let out expressly for purpose of selling or printing books---Nothing was available on record to prove that the business was started with prior consent in writing of landlady---Landlady had established her bona fide personal requirement and allegation of mala fide with reference to desire for enhancement of rent was not proved---High Court declined to interfere with eviction order passed by Rent Controller---Appeal was dismissed in circumstances.

Kh. Khalid Butt for Appellant.

Waqar Arif Khan for Respondent.

Date of hearing: 19th May, 2008.

P L D 2008 Lahore 418

Before Syed Shabbar Raza Rizvi and Muhammad Akram Qureshi, JJ

MUHAMMAD ANWAR---Petitioner

Versus

THE STATE---Respondent

Criminal Appeal No.368-J and Murder Reference No.639 of 2005, heard on 21st May, 2008.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 309(2)---Qanun-e-Shahadat (10 of 1984), Art.124--Criminal Procedure Code (V of 1898), S.345---Compromise, acceptance of---All the legal heirs of deceased, except his missing daughter, had affirmed that they had effected compromise with the accused with their free consent waiving their right of Qisas and Diyat and had pardoned him in the name of Allah Almighty without getting any compensation and that they had no objection if the accused was acquitted of the charge---Regarding non-availability of the aforesaid one daughter of the deceased who was missing for the last 7/8 years, there was no witness or sign that she was alive and under Art. 124 of Qanun-e-Shahadat, 1984, the burden of proving that she was alive would be shifted to the person who would affirm that fact, therefore, if the said daughter of the deceased appeared subsequently and she did not waive her right of Qisas, she would be entitled to her share of Diyat as provided in proviso to subsection (2) of S.309, P.P.C.-Compromise was accepted and the accused was acquitted of the charge accordingly.

Rukhsana Bibi v. State PLD 2005 Lah. 175 ref.

Rai Muhammad Usman for Appellant.

Rana Bakhtiar Ali, D.P.G. for the State.

Date of hearing: 21st May, 2008.

P L D 2008 Lahore 421

Before Abdul Shakoor Paracha, M. Bilal Khan and Syed Shabbar Raza Rizvi, JJ

NOOR ELAHI---Petitioner

Versus

Mian MUHAMMAD NAWAZ SHARIF and others---Respondents

Writ Petition No.6468 of 2008, decided on 23rd June, 2008.

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

----S. 99(f)(g)-Objection as to lack of required qualification by candidate to . contest election---Burden of proof---If any objection is raised during the process of scrutiny against any candidate on the basis of lack of required qualifications to contest election, burden ,to prove such qualification is heavier on the candidate than the objector.

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

----Arts.62 & 63---Representation of the People Act (LXXXV of 1976), S.99(f)(g)---Disqualification of candidate to contest election---Candidate, in the present case, had been convicted under S.10 road with S.9(a)(v) of the National Accountability Ordinance, 1999 and sentenced to 14 years' R.I. and fine of Rs.20,00,000,000 in default of payment of fine he was further directed to undergo R.I. for a period of three years; he was also disqualified for 21 years for seeking or from being elected, chosen, appointed or nominated as member or representative of any public office or any statutory or local authority of Government of Pakistan and candidate had scandalized, abused, disobeyed and ridiculed the judiciary of Pakistan and sworn a false affidavit attached with the nomination papers---Presidential Order under Art.45 of the Constitution had not exonerated the candidate from the sentence and conviction recorded by the Court of competent jurisdiction, particularly, when the candidate had failed to produce the Presidential Order---Validity---Orders of the Returning Officer, Election Tribunal and that of Chief Election Commissioner of Pakistan declaring the candidate to be qualified were set aside by the High Court and were declared to be of no legal effect and candidate was declared as disqualified to contest the bye-election in view of express provisions of Arts.62 and 63 of the Constitution read with S.99(f)(g) of the Representation of the 2eople Act, 1976.

Syed Zafar Ali Shah v. General Pervez Musharraf and others PLD 2005 SC 869 and Naqhma Mushtaq v. Election Tribunal Punjab Lahore and 2 others PLD 2008 Lah. 149 ref.

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

----O. I, R.10---Applications under O. I., R.10, C.P.C. having been moved only with a view to delaying and procrastinating proceedings and no error apparent on the face of record having been identified, High Court dismissed such applications.

Dr. Mohay-ud-Din Qazi for Petitioner.

Abdul Rehman Raja Dy. Attorney with Nadeem-ud-Din, Deputy Attorney.

P L D 2008 Lahore 428

Before Sayed Zahid Hussain, C.J.

MUHAMMAD IBRAHIM MUGHAL---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary Local Government Punjab, Lahore

and 18 others---Respondents

Writ Petition No.1587 of 2008, decided on 9th June, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Lahore Development Authority Act (XXX of 1975), Preamble---Constitutional petition---Petitioners had sought direction to the Housing Development Authority to provide a plot for mosque in their residential area as people were offering prayers in a park within the said residential area which was without any regular and permanent arrangements---Validity---Held, all housing schemes prepared by the official agencies like the Development Authority in the present case, reserved sites for mosque at appropriate places as it was the responsibility of the Development Authority to provide piece of land for construction of mosque and such site had to be earmarked in the master plan---High Court observed that since concerned authorities having realized the importance and necessity of mosque had come out with the plan of making suitable arrangements for offering prayers by the people of the locality by reserving the site with necessary facilities, no further direction was called for---Constitutional petition was disposed of accordingly.

Haq Nawaz and others v. Province of the Punjab through Chief Secretary Civil Secretariat, Lahore and 2 others 1997 MLD 299 fol.

Rana Habib-ur-Rehman Khan.

Aamir Rehman, Addl. A.-G., Punjab.

Mian Muhammad Qamar-uz-Zaman.

Syed Mumtaz Hussain Bukhari.

Ms. Alia Neelum.

Irfan Ali, Director-General Lahore Development Authority and Irfan Elahi, Director-General Parks and Horticulture Authority.

P L D 2008 Lahore 432

Before Abdul Shakoor Paracha, M. Bilal Khan and Syed Shabbar Raza Rizvi, JJ

Syed KHURRAM SHAH---Petitioner

Versus

Mian MUHAMMAD SHAHBAZ SHARIF and 4 others---Respondents

Writ Petition No.6479 of 2008, decided on 23rd June, 2008.

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

---Ss. 14(5)(5A)(6) & 11A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Allegation by petitioner (not a candidate) against the respondent (returned candidate) was that he had sworn a false declaration that he was qualified in terms of Art.62 of the Constitution and suffered no disqualification in terms of Art.63 of the Constitution---Objection was raised by the petitioner to nomination papers which were rejected---Petitioner, in such background filed an application under S.14(5A) of the Representation of People Act, 1976 to prove that respondent was disqualified from being elected as a Member of the Provincial Assembly before Election Tribunal---Treating application under S.14(5) of the Representation of People Act, 1976 as appeal by Election Tribunal and Chief Election Commissioner---Validity---Held, Election Tribunal and the Chief Election Commissioner had fallen in error by treating the application' of the petitioner as anappeal' and to tag the same with another `appeal' and deciding same against the petitioner---Such orders of the Chief Election Commissioner/Election Commission of Pakistan and that of the Election Tribunal were set aside by the High Court and were declared to be unlawful and without any lawful authority---Application of the petitioner shall be deemed to be pending and Chief Election Commissioner was required to constitute another Election Tribunal consisting of three Judges of the High Court to decide the application of the petitioner including his disqualification; until then, the respondent may continue to perform his functions as Chief Minister of the Province and Member of the Provincial Assembly---Principles.

Contention of the petitioner was that respondent (returned candidate) had sworn a false declaration that he was qualified in terms of Article 62 of the Constitution and suffered no disqualification in terms of Article 63 of the Constitution. An objection was raised to the nomination papers which was rejected. Resultantly nomination papers of respondent were accepted. In the above background, the petitioner (not a candidate), filed an application under section 14(5A) of the Representation of People Act, 1976 to prove that respondent was disqualified from being elected as a Member of the Provincial Assembly, before the Tribunal. The application of the petitioner was decided along with another appeal by a single order.

Under section 14(5) of the Representation of the People Act, 1976, a candidate may prefer an appeal against the decision of the Returning Officer rejecting or, as the case may be, accepting the nomination papers of the candidate to the Tribunal constituted for the constituency to which the nomination papers relates and consisting of not less than two nor more than three Judges of the High Court nominated by the Commissioner with the approval of the President.

The difference between subsections (5) and (5A) is evident. Under subsection (5) an appeal may be preferred by a candidate, whereas, subsection (5A) deals with any information or material, brought to the knowledge of Tribunal by any source, it may be from a candidate or an elector/citizen.

The reading of subsection (6) manifestly shows that it relates to subsection (1) or an appeal filed by a candidate. It has no nexus with subsection (5A) of section 14 of the Act. Thus, it is noted with concern as to how could Election Tribunal and the Chief Election Commissioner/Election Commission of Pakistan decide the application of the petitioner along with an appeal filed by someone else. Likewise, how could the Chief Election Commissioner/Election Commission of Pakistan reject application of the petitioner on the basis of mandatory provision of section 14(6) of the Act.

Section 11A of the Representation of the People Act, 1976 was inserted in the Act to meet situations like the one as obtained in the facts and circumstances of the present case. The Election Commissioner could have taken advantage of provisions of section 11A of the Act in the interest of justice and fairplay. Present petitioner cannot file an election petition after the election, not being a candidate hence he will have no remedy before an Election Tribunal.

Election Tribunal and the Chief Election Commissioner/Election Commission of Pakistan had fallen in error by treating the application of the petitioner as an appeal and to tag the same with another appeal. Orders of the Chief Election Commissioner/Election Commission of Pakistan and of the Tribunal were set aside and were declared to be unlawful and without any lawful authority. The application of the petitioner shall be deemed to be pending. The Chief Election Commissioner was required to constitute another Tribunal consisting of three Judges of the High Court to decide the application of the petitioner including his disqualification. Until then, respondent may continue to perform his functions as Chief Minister of the Punjab and Member of the Provincial Assembly. Writ Petition was allowed in the above terms.

Raza Kazim along with M. Mohy-ud-Din Qazi for Petitioner.

Raja Abdul Rehman, Deputy Attorney-General.

P L D 2008 Lahore 437

Before Khurshid Anwar Bhinder, J

AHMAD ALI GOARAYA---Petitioner

Versus

AZHAR ALI BHATTI and 2 others-Respondents

Writ Petition No.3832 of 2008, decided on 18th June, 2008.

(a) Punjab Anti-Corruption Establishment Rules, 1985---

----R. 6---Preliminary enquiries and investigation against public servants---Meaning and scope---Rule 6 of the Punjab Anti-Corruption Establishment Rules, 1985, is very clear to hold enquiries of a public servant who commits an offence in his private capacity---Interpretation drawn on "or other reliable sources" means the complaint received by the Anti-Corruption Establishment from persons other than the Head of the Department, meaning thereby that a private person can also file a complaint against the public servant for the commission of offence in his private capacity.

(b) Prevention of Corruption Act (II of 1947)---

----S.5(1)(d)---Punjab Anti-Corruption Establishment Rules, 1985, R.6---Constitution of Pakistan (1973), Art.199---Constitutional petition---Summoning of petitioner to face enquiry proceedings---Validity---Petitioner had misused and abused his position as a public servant and had obtained pecuniary advantage by misappropriating Rs.16,00,000 from the complainant, as such his case was covered under S.5(1)(d) of the Prevention of Corruption Act, 1947---Petitioner, thus, was liable to face enquiry proceedings as enunciated in Rule 6 of the Punjab Anti-Corruption Establishment Rules, 1985---Impugned order issued by the Anti-Corruption Establishment to the petitioner to face the enquiry proceedings did not suffer from any illegality---Even otherwise, there was no foul play on the part of the Anti-Corruption Authorities in summoning the petitioner to join enquiry proceedings and if at all the petitioner was declared innocent in the enquiry proceedings he would be relieved of his liability---Constitutional petition was dismissed in limine in circumstances.

Imtiaz Ahmad Kaifi for Petitioner.

Mamoon Rashid Pirzada for Respondent No.1.

P L D 2008 Lahore 441

Before Fazal-e-Miran Chauhan, J

IMTIAZ RUBBANI alias BILLU---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.214/M of 2007, decided on 28th May, 2008.

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

----S. 204---Issue of process---Extent and scope---Requisite conditions listed under S.204, Cr.P.C. are the presence of sufficient grounds and satisfaction of Court to be ascertained from the facts placed before it---Availability of some evidence on the record is not essential before summoning the accused---Section 204, Cr.P.C. provides for formation of "opinion" by Court taking cognizance of offence and availability of "sufficient ground for proceeding"---For recording conviction there must be evidence in support thereof, but no such evidence is required for issuance of process sand summoning of accused person---Expression "sufficient grounds" used in S.204, Cr.P.C. means/requires the presence of facts or evidence prima facie constituting an offence to enable the Court to issue process---When material is placed before the Court in the shape of complaint accompanied by tentative evidence recorded and the Court is satisfied with such material, the Court is vested with discretion o issue process.

Nazir Ahmad and others v. The State 1990 MLD 2084; M. S. Khawaja v. The State PLD 1965 SC 287 and Ghulam Muhammad v. The 'fate PLD 1967 SC 317 ref.

(b) Words and phrases---

----"Prima facie case"---Connotation---"Prima facie case" does not mean a case proved to the hilt, but a case which can be said to be established if the evidence led in support of the same is believed.

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

----S. 203---Dismissal of complaint---Practice and procedure---Delay by itself in filing the complaint may not be fatal to reject the evidence in support thereof, which may otherwise be entitled to credence---No doubt, the longer a complaint is delayed the less becomes the chances of believing in its truth, more particularly when it is based entirely upon oral evidence, but the same has to be decided after recording the evidence of the parties and cannot be rejected straightaway---A complaint cannot be dismissed for the reason that it was filed because the police had delayed submission of challan and the complainant had made the improvements which are in conflict with the case registered earlier---Trial Court is not to comment upon the merits of the case till it has recorded entire evidence which the complainant wishes to produce---Dismissal of complainant in hasty manner is never approved.

Khurshid Anwar v. The State and 3 others 1996 MLD 111 rel.

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

----S. 204---Issue of process---Accused found innocent in successive investigations---Summoning of---Accused found to be innocent by the Investigating Agency in successive investigation can be summoned by Trial Court in a complaint case after recording cursory evidence.

Mushtaq Ahmad v. Muhammad Saleem and 2 others 1995 PCr.LJ 1900 ref.

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

----Ss. 204 & 561-A---Penal Code (XLV of 1860), Ss.302/324/148/149/337-F(iv)/34/109---Quashing of order---Issuance of process by Trial Court against the accused in the private complaint had been challenged on various grounds---Truth or falsehood of complaint in the preliminary inquiry was not to be adjudged at the initial stage and the same had to be adjudged on the basis of evidence subsequently led by the complainant in support of the complaint---Where complainant had approached the Court with a private complaint being dissatisfied with the conduct of the police, Trial Court was required to record the cursory evidence of the complainant and if satisfied it could issue process in the shape of summon or warrant requiring the accused to appear in the Court---Only prima facie case was required for taking cognizance under S.204, Cr.P.C. and Court was not expected to go into the details by conducting the preliminary trial---Impugned order had been passed by Trial Court after taking into account the statement of the complainant made by her in line with the complaint and the same did not warrant any interference---Petition was dismissed accordingly.

Nazir Ahmad and others v. The State 1990 MLD 2084; M.S. Khawaja v. The State PLD 1965 SC 287; Ghulam Muhammad v. The State PLD 1967 SC 317; Khurshid Anwar v. The State and 3 others 1996 MLD 111 and Mushtaq Ahmad v. Muhammad Saleem and 2 others 1995 PCr.LJ 1900 ref.

Saif-ul-Malook and Amir Masood for Petitioner.

Ch. Muhammad Nasrullah Warraich for the Complainant.

Rana Iqbal Hussain D.P.G. with Muhammad Riaz S.-I. Police Station Jhang Bazar, Faisalabad.

P L D 2008 Lahore 446

Before Syed Hamid Ali Shah, J

SHAH NAWAZ BHATTI and another---Petitioners

Versus

PROVINCE OF PUNJAB through Secretary, Health/Chairman, Provincial Quality Control Board, Government of Punjab, Lahore and 4 others---Respondents

Writ Petition No.6335 of 2008, decided on 9th June, 2008.

Drugs Act (XXXI of 1976)---

---Ss. 11(5)(b), 11(5)(e) & 31---Criminal Procedure Code (V of 1898), S.204---Constitution of Pakistan (1973), Art.199---Constitutional petition---Cognizance of case/offence---Scope---Petitioners were not named in complaint filed by authorities in Drug Court---During trial, Drug Court arrayed petitioners also as accused---Plea raised by petitioners was that only Provincial Quality Control Board was vested with power to ascertain names of persons responsible for offence under Drugs Act, 1976---Validity---Drug Court was a Court of Session, for the purpose of powers conferred while exercising original jurisdiction and for the purposes of procedure by Criminal Procedure Code, 1898, for trial of summons as a Court of Magistrate, as envisaged by S.31(4) and (6) of Drugs Act, 1976---If the Court was of the opinion that there were sufficient grounds for proceeding, it was empowered under S.204, Cr.P.C. to take cognizance of the offence---Powers of the court under S.204, Cr.P.C. were unrestricted and wide---Drug Court had the power of Court of Session and as such, after having received challan and becoming seized of the case such seisin extended not only to accused persons against whom challan was submitted but also to other persons who might be implicated therein---Drug Court was competent to pass order requiring petitioners, who had prima facie been found by the Court, connected with the case, to be joined as accused and there was no restraint on such powers of the Court---Petition was dismissed in circumstances.

Messrs Salimco Laboratories and others v. The Drug Inspector, Lahore Division (Industries), Director of Health, Lahore and others 1989 PCr.LJ 566 and Agha Nadim v. S.H.O. and others 1998 PCr.LJ 181 distinguished.

Muhammad Yaqoob v. The State PLD 1998 Lah. 523; Waqarul Haq alias Mithoo and another v. The State PLD 1988 Lah. 336; Sohno v. The State and another 1990 PCr.LJ 1190 and Sardar Ali and others v. The State PLD 1966 (W.P.) Lah. 790; Waqarul Haq and another v. The state 1988 SCMR 1428 and Nazir and 2 others v. The State and another 1990 MLD 2084 ref.

Hafiz Muhammad Saeed for Petitioners.

Najeeb Faisal Chaudhry, Addl. A.-G. (on Court's call).

P L D 2008 Lahore 450

Before Kazim Ali Malik, J

IMDAD HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.759 of 2006, heard on 27th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 345(2)--Penal Code (XLV of 1860), Ss.302 & 449---Offence of Qatl-e-Amd and house trespass---Compounding of offence of Qatl-e-Amd---Effect---Held, in given circumstances, the principle of merger would be applicable which was to the effect that in case of a compromise between the parties in a criminal case, the minor offence even if not compoundable merges into the compoundable major offence---Result would be that after acquittal of accused of the major offence of Qatl-e-Amd in terms of compromise the minor offence of house trespass would be deemed to have been compounded under the principle of merger.

Qadeer Ahmad Rana for Appellant.

Azra Israr, Dy. Prosecutor-General for the State.

Date of hearing: 27th June, 2008.

P L D 2008 Lahore 452

Before Fazal-e-Miran Chauhan, Hasnat Ahmad Khan and Muhammad Ahsan Bhoon, JJ

Raja ASHFAQ SARWAR---Petitioner

Versus

SHAHID ORAKZAI and 3 others---Respondents

Writ Petitions Nos.6597, 6598, 6599 and 6601 of 2008, decided on 19th June, 2008.

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

----Arts. 63(1)(h) & 204---Conduct of General Election Order (7 of 2002), Art.8-D(2)(h)---Contempt of Court---Moral turpitude---Conviction and sentence awarded to the candidate and undergone by him for contempt of Supreme Court, was covered by a disqualification provided under Art.63(1)(h) of the Constitution and Art.8-D(2)(h) of the Conduct of General Election Order, 2002---Nomination papers of such candidate were rightly rejected.

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

----Ss. 52, 62 & 60---Constitution of Pakistan (1973), Art.199---Constitutional petition--Order passed by the Election Tribunal, on the face of it, was not a speaking order---Election Tribunal without following the settled principles of law and procedure, as well as, without conceiving that valuable rights of the parties could not be decided in cursory manner proceeded to accept the appeal---Appeal of the candidate had been accepted by the Tribunal simply relying upon his oral statement, without documentary proof---Most important ingredient of an order/judgment was that, it should be a speaking one consisting of statement of grounds of decision, which was missing in the impugned order---Candidate (respondent) had admittedly not deposited the process fee as required by the office; resultantly, no notice was issued to the other party (petitioners) to appear before the Tribunal and to defend its case---Tribunal while violating the principles of natural justice, proceeded to pass the impugned order without issuing notice in the name of private contesting respondents or pro forma respondents or the Advocate General, as required under S.60, Representation of the People Act, 1976---Impugned order, by itself, showed that none of the respondents was proceeded against ex parte under law---Serious allegations had been levelled against respondent, who made a statement before the Tribunal that, his conviction for contempt of Court had been set aside by the Supreme Court, but that fact was not probed into by the Tribunal nor the respondent was asked to produce any such document---Tribunal, in circumstances, at the minimum should have called upon the Advocate General to assist on the subject.

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

----S. 99(1-A)(h)---Conduct of General Election Order [7 of 2002], Art.8-D(2)(h)---Constitution of Pakistan (1973), Art.204---`Moral turpitude'---Scope---Conviction awarded in contempt case attracts the mischief provided under S.99(1-A)(h) of the Representation of the People Act, 1976 and Art.8-D(2)(h) of the Conduct of General Election Order, 2002.

Akhtar Rasood Chaudhry's case 2003 MLD 939; Imtiaz Hussain Phulto v. Returning Officer 1987 SCMR 468; Muhammad Shabbir Abbasi v. Abdul Rasheed Mughal 1984 CLC 270; Pir Mazhar-ul-Haque v. Election Tribunal 2003 CLC 300; Sami Ullah Ch. v. Returning Officer, Bahawalpur and 2 others PLD 2008 Lah. 128 and Sikandar Hayat Khan Bosan v. Syed Yousaf Raza Gillani and another 2008 CLC 240 ref.

(d) Conduct of General Election Order [7 of 2002]---

----Art. 5(a)---Representation of the People Act (LXXXV of 1976), S.14(3)(a)---Constitution of Pakistan (1973), Arts.63(1)(g)(h), 204 & 199---Constitutional petition---Candidate, who had been convicted and sentenced for contempt of Supreme Court suffered from patent disqualification---Contention of the candidate (respondent) was that none of the petitioners could be termed as an `aggrieved person' as they had withdrawn their nomination papers, hence the constitutional petitions be dismissed---Validity---Meld, constitutional petitions could not be dismissed on such technical ground as candidate (respondent) suffered from patent disqualification especially considering Art.5(a) of the Conduct of General Election Order, 2002 and S.14(3)(a) of the Representation of the People Act, 1976 and had also incurred a disqualification within the meanings of Art.63(1)(g)(h) of the Constitution.

Civil Revision Petition Nos. 208 to 210 of 2000 and Suo Motu Revision Criminal Revision No.102 of 1999 ref.

Ashtar Ausaf Ali, Muzaffar Ahmed Mirza and Razaq A. Mirza for Petitioner.

Respondent No.1 in person.

P L D 2008 Lahore 461

Before Syed Hamid Ali Shah and Kawaja Farooq Saeed, JJ

STATE LIFE INSURANCE CORPORATION---Appellant

Versus

Mst. SADAQAT BANO---Respondent

R.F.A. No.5 of 2008, decided on 8th July, 2008.

Insurance Ordinance (XXXIX of 2000)---

----S. 80---Limitation Act (IX of 1908), Art.181--Scope of application of S.80, Insurance Ordinance, 2000---Repudiation of claim by Insurance Company on account of concealment of his ailment by policy-holder---Limitation---Policy cannot be called in question on the grounds of misrepresentation, false statement or suppression of material facts, after two years from the date when the policy was originally effected---Period of two years, even in cases where the policy was revived and renewed, would be counted from original date of the policy in question---Principles.

In the present case deceased was policy-holder, who insured himself under Policy against a yearly premium commencing from 15-10-1992. The premium was paid till October, 1994, whereafter, it was discontinued. The policy-holder revived the policy on 31-12-1998, after complying with requisite formalities, including a declaration of good health on a printed form. Insured breathed his last on 28-4-2000 and his widow being nominee, lodged the insurance claim of her husband before the appellant, which was repudiated by the Insurance company on account of concealment of his ailment at the time of revival of Policy.

A Policy cannot be called in question on the ground of misstatement, after two years of it's effectiveness, within the contemplation of section 80 of Insurance Ordinance, 2000.

According to section 80, Insurance Ordinance, 2000 an Insurance Policy, cannot be called in question on the grounds of misrepresentation, false statement or suppression of material facts, after two years from the date when the Policy was originally effected. The period of two years, even in cases where the Policy was revived and renewed, would be counted from original date of the Policy in question. The application of provisions of section 80 is contingent upon fulfilment of following conditions:

(i) The inaccurate statement pertains to a matter which is material, or the facts which are suppressed, the disclosure thereof was material.

(ii) The suppression must be fraudulent and made by Policy-holder.

(iii) The Policy-holder, at the time of making the statement had known that statement was false and it was material to disclose the facts suppressed.

Disclosure of material facts as to ones health, is ticklish issue. What is material again depends upon the circumstances of each case. Good health means reasonably good health. A warranty of good health can never mean that a person has not in him the seeds of disorder. One is born with seeds of mortality in it. A person can be ignorant about his health or about the deadly disease, which has its roots in him. A person has normally a general idea of his health. Then question arises as to when the contract of insurance becomes voidable at the option of insurer. Non-disclosure relates to the facts which are in the knowledge of the person making the statement. A person who is himself unaware of his ill health, can make an innocent statement that he is not suffering from disease/illness. This statement cannot be used against such a person. A statement is fatal only when person making the statement deliberately and wilfully suppresses the material facts, knowing that disclosure of such facts was material and facts were fraudulently suppressed. Three conditions, are essential and necessary for repudiation of insurance contract or to invoke provisions of section 80 of the Insurance Ordinance (XXXIX of 2000).

Deceased had not made false statement at the time of revival of the policy and failed to disclose the factum of his heart ailment. The policy-holder performed laborious duty on a heavy duty vehicle, in extreme weather conditions, in Bahrain. He, in the form pertaining to the history of patient had supplied information, which shows that deceased was confident of his good health. Insurance company on the other hand had failed to adduce any cogent evidence to the effect that policy-holder was aware of his ailment and had deliberately concealed and made fraudulent misrepresentation. An entry in "Pre Angio Information Form which had not been entered/incorporated by the deceased himself, does not establish or prove the factum of non-disclosure.

Admittedly the Article 181 of the Limitation Act, 1908 applies to the present case. The claimant/respondent approached Wafaqi Mohtasib and then contested the order of President before High Court in it's writ jurisdiction. The matter thereafter remained pending before apex Court and on remand during the pendency of writ petition, the Insurance Tribunal was constituted. The writ petition was withdrawn and matter was agitated before Insurance Tribunal. The application was moved before Insurance Tribunal, on its constitution. Held, the application was within limitation as rightly held so by the Tribunal.

Norwich Union Life Insurance Society v. Mst. Zainab Bibi 1981 CLC 1722; State Life Insurance Corporation v. Mst. Sarwar Kazmi 1979 SCMR 295; State Life Insurance Corporation v. Mamoor Khan 1993 CLC 790; M/s. Burjor Ardeshir Industries Ltd. Karachi v. The Employers' Liability Assurance Corporation Ltd., Karachi and another PLD 1970 Kar. 462; Mohsin A. Rehman v. Messrs Premier Insurance Company of Pakistan Ltd. PLD 1967 Kar. 204; Mithoolal Nayak v. Life Insurance Corporation of India AIR 1962 SC 814; Santosh Kumar Gupta v. Indian Life Insurance Corporation AIR 2000 Rajan. 327; Life Insurance Corporation of Indian v. Suit Sosamma Punnah AIR 1945 Ker. 230; Mst. Irshad Begum v. State Life Insurance Co. 2006 YLR 1186 and York v. Yorkshire Insurance 1918 1 KB 662 ref.

Ibrar Ahmad for Appellant.

Liaqat Ali Butt for Respondent.

Date of hearing: 21st May, 2008.

P L D 2008 Lahore 470

Before Muhammad Akram Qureshi, J

WALAYAT---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 4232-B of 2008, decided on 4th June, 2008.

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

----S. 497(2)---Qanun-e-Shahadat (10 of 1984), Art.22---Penal Code (XLV of 1860), Ss. 395/412---Bail, grant of---Further inquiry---Case property, identification of---Farmas (stolen property) were never placed before complainant to ascertain its ownership and establish that recovered Farmas were stolen property---No evidence was available showing participation of accused in the alleged dacoity and that recovered Farmas were stolen property and that the Farmas were owned by complainant---Effect---Investigating Officer was legally required to mix Farmas in some others and had got those identified from complainant but such exercise was never undertaken and thus there was no evidence to establish that recovered Farmas were stolen property---Such was gross negligence on the part of Investigating Officer---High Court noted it with great concern that cases of Qatl-e-Amd, robbery and dacoity were being spoiled by adopting such mode and habitual dacoits or robbers were being let off---High Court further observed that it was a serious affair and senior officers of police department were keeping their eyes shut over such serious matters---Prosecution branch was also silent on such serious matter---Absence of such necessary evidence had put the case against accused within the domain of further inquiry---No reasonable grounds existed to believe that accused had committed offence under Ss. 395/412, P.P.C.---Bail was granted in circumstances.

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

----Ss. 395 & 412---Qanun-e-Shahadat (10 of 1984), Art. 22---Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006), Ss.10 & 12---Dacoity and dishonestly receiving property stolen in the commission of dacoity---Identification parade---Procedure of arrangements---Guidelines by High Court---Procedure for making arrangements for identification parade easier was prescribed by High Court for circulation to Prosecutor General, Advocate-General, Additional Inspector General of Police (Investigation) and all the Sessions Judges of the Province, who shall pursue the same and circulate it to all concerned and subordinate courts and offices for appropriate legal action and observance.

Following are the guidelines prescribed by the High Court to make the arrangements of identification parade easier and to be sent to Prosecutor-General Punjab, Advocate-General Punjab, Addl. Inspector General of Police (Investigation) Punjab and all Sessions Judges of Punjab, who shall pursue the same and circulate it to all concerned and subordinate courts and offices for appropriate legal action and observe that:

(i) In case of unknown assailant the arrested accused must be put to identification parade.

(ii) Recovered articles must be got identified from the owners.

(iii) Recording of baseless statement mentioning the complainant and eye-witnesses have come to know the names of assailants through reliable source should be avoided.

(iv) The mature and well-versed Investigating Officers should be deputed to investigate the cases. In this respect the educated persons must be given preference.

(v) The process of holding the identification parade in jail should be made easier and in this respect unnecessary hurdles should not be created in the ways of the Investigating Officers.

(vi) The process of scrutinizing the challan should be reformed and cases of deficient evidence should not be forwarded to courts.

(vii) Illegalities and irregularities committed by the Police Officials should be brought to the notice of higher Police Officials and strict departmental as well as criminal action under the relevant provisions of law shall be taken against them.

(viii) The Prosecutor-General and Prosecutors are reminded their powers under sections 10/12 of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006. It is expected that in future they shall make use of these powers effectively to cure above mentioned illegalities/irregularities.

Rana Muhammad Khan for Petitioner.

Adeel Aqil Mirza, D.P.-G. along with M. Akram S.-I. for the State.

P L D 2008 Lahore 475

Before Maulvi Anwarul Haq and Khalil Ahmad, JJ

MUHAMMAD SIDDIQUE and 4 others---Petitioners

Versus

SECRETARY (COLONIES), BOARD OF REVENUE, PUNJAB, LAHORE and 2 others---Respondents

Writ Petition No.187 of 1983, heard on 10th June, 2008.

Punjab Court of Wards Act (II of 1903)---

----Ss. 13, 15, 17 & 18---Contract Act (IX of 1872), S.11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Exchange of minor's land by her mother through registered deed dated 8-11-1976---Cancellation of land from minor's name (i.e. original owner) by Secretary (Colonies)---Validity--Court of Wards had assumed superintendence of person and property of minor vide notification dated 2-10-1967---Minor's land upon publication of such notification vested in Court of Wards, which alone could transfer same by executing a document in its name, but not by minor herself in any case---Such land was being managed by Commissioner on behalf of Court of Wards---Such exchange was void ab initio in terms of Contract Act, 1872---Mother of minor was not a certified guardian and she could not be a legal guardian either under Islamic Law or any statute law---Transaction by mother of minor, even if minor's land had not vested in Court of Wards, was wholly void---High Court dismissed constitutional petition in circumstances.

Buland Khan and 6 others v. Muhammad Rafiq and 6 others PLD 1979 Lah. 237 not fol.

Ch. Inayatullah Khan for Petitioners.

Akhtar Ali Qureshi, A.A.-G.

Malik Noor Muhammad Awan for Respondent No.3.

Date of hearing: 10th June, 2008.

P L D 2008 Lahore 479

Before Kazim Ali Malik, J

MUHAMMAD AFZAAL---Petitioner

Versus

SESSIONS JUDGE, MULTAN and 3 others---Respondents

Criminal Miscellaneous No.9/Q of 2008, heard on 19th May, 2008.

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

----Ss. 491 & 491-A---Power to issue direction of the nature of habeas corpus---Nature and scope---Proceedings under Ss.491 & 491-A, Cr.P.C. are summary in character and are not intended to go beyond the summary consideration of the questions essentially relevant to the alleged detention i.e., whether a detenue is to be set at liberty and as a consequence thereof be permitted to go with the person of his or her own choice, or to drop the proceedings when the detention is found legal---Court, while deciding an application under Ss.491/491-A, Cr.P.C. is not required to go into the question of status or relationship of the parties by holding full-fledged trial of the counter-claims and it should concern itself only with free will of the detenue.

(b) Islamic law---

----Marriage---Validity---Consent of "Wali" is not required and a sui juris Muslim female can enter into a valid Nikah/marriage of her own free will.

Hafiz Abdul Waheed v. Mst. Asma Jehangir and another PLD 2004 SC 219; Muhammad Ramzan v. The State PLD 1984 FSC 93; Muhammad Imtiaz and another v. The State PLD 1981 FSC 308 and Mauj Ali v. Syed Safdar Hussain Shah 1970 SCMR 437 ref.

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

----Art. 203-GG---Judgments of Federal Shariat Court---Statement of law contained in the judgments of the Federal Shariat Court is binding on the High Court and the Courts subordinate to High Court.

Hafiz Abdul Waheed v. Mst. Asma Jehangir and another PLD. 2004 SC 219 ref.

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

----Art. 4---Criminal Procedure Code (V of 1898), Ss. 491 & 491-A---Right to liberty---Out of the legal rights, the right to liberty is placed on a higher pedestal, which is to be respected by all and sundry---Courts are the guardians of the liberties of the citizens---Even a worst criminal in the society is entitled to legal safe-guards and his legal rights cannot be taken away in a slipshod manner.

Muhammad Akram v. The State 1998 PCr.LJ 1558 ref.

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

---S. 561-A---Penal Code (XLV of 1860), S.365-B---Quashing of F.I.R.---Alleged abductee, a Muslim sui juris and pubert woman being 22/23 years old, had attained sufficient maturity and majority to decide the question touching her matrimonial life and future---Abductee wanted to accompany her husband, accused petitioner, but she had been confined in Darul Aman illegally against her wishes under the orders of Sessions Court, which amounted to her unlawful confinement---Sessions Court had also doubted genuineness of marriage of the alleged abductee with the accused petitioner despite Tasaduq-e-Zaujain was supported by Nikahnama---Order of detention of the said abductee in Darul Aman by the Sessions Court was declared as null and void and without jurisdiction---Investigating Officer had conducted investigation and arrested accused persons arbitrarily on whimsical grounds---No legal and factual justification was available to arrest the petitioner, his real brothers and mother particularly when the abductee had already dismissed the story set up in the F.I.R.---Excepting an allegation by the complainant that his daughter had been abducted, there was not an iota of legal evidence on the file---Allegation set up in the F.I.R. stood repudiated when the abductee made statements before, the investigating Officer and the Area Magistrate that she had not been abducted---Police had transgressed its authority by registering the case and by arresting the accused persons, obviously for some considerations extraneous to the record and it was a case of abuse of process of law on the part of the police---Further more, complainant himself had accepted the marriage of his daughter with the accused before High Court---Investigating Agency, in circumstances, could not be allowed to investigate the case---F.I.R. was consequently quashed and the petition was accepted accordingly.

Mukhtar Ahmad v. Ghafoor Ahmad PLD 1990 Lah. 484; Hafiz Abdul Waheed v. Mst. Asma Jehangir and another PLD 2004 SC 219; Muhammad Ramzan v. The State PLD 1984 FSC 93; Muhammad Imtiaz and another v. The State PLD 1981 FSC 308; Mauj Ali v. Syed Safdar Hussain Shah 1970 SCMR 437 and Mir Muhammad v. The State and 4 others 1995 PCr.LJ 2085 ref.

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

---S. 156---Investigation into cognizable case---Investigating Officer cannot be allowed to conduct investigation or to arrest accused persons on whimsical grounds arbitrarily.

Rashid Rehman Khan for Petitioner.

Ghulam Murtaza Malik for Respondent No.4.

Ch. Zulfiqar Ali Sidhu, Add. Prosecutor-General with Mushtaq Ahmad A.S.I.

Date of hearing: 19th May, 2008.

P L D 2008 Lahore 488

Before Hasnat Ahmad Khan, J

JAVAID IQBAL---Petitioner

Versus

ADDITIONAL INSPECTOR GENERAL OF POLICE, LAHORE and 4 others---Respondents

Writ Petition No.2793 of 2007, heard on 27th June, 2008.

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

----Ss. 4(1), 156 & 173---Investigation of criminal case---Purpose---Opinion of police officer---Worth---Re-investigation after submission of report under S.173, Cr.P.C.--Effect---There is no bar against re-investigation of case after submission of report under S.173, Cr.P.C., yet the fact remains that ultimately case has to be decided on the basis of evidence recorded before Trial Court---Purpose of investigation, as defined under S.4(1), Cr.P.C. is collection of evidence by police officer or by any other person who is authorized by Magistrate in this behalf---As such definition of investigation does not talk of opinion of police officer who is only authorized to collect evidence, therefore, opinion of police officer is neither relevant nor admissible in evidence---Frequent transfers of investigations deprecated.

Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373 and Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539 rel.

(b) Precedents---

----Judgment of larger Bench of Supreme Court would be preferred over the judgment of smaller Bench.

Azmatullah through L.Rs. v. Mst. Hameeda Bibi and others 2005 SCMR 1201 rel.

(c) Police Order (22 of 2002)---

----Art. 18(6)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Transfer of investigation---Power of review---Scope---On the application of complainant Standing Board recommended the case for first change of investigation but Additional Inspector General of Police did not agree with the recommendation and refused to first change the investigation---On second application of complainant for first change of investigation, the Standing Board did not recommend the case for change of investigation but the Additional Inspector-General of Police once again did not agree with the recommendation and after reviewing his earlier order changed the investigation---Validity---Additional Inspector-General of Police, though, under Art. 18(6) of Police Order, 2002, was bound to have due deliberations and recommendations by a Board constituted in terms of the said provision, but after considering pros and cons of the case, he could disagree with the recommendation, however, Additional Inspector General of Police had no power to review his earlier order---High Court noted it with great concern that if such practice was allowed, no finality would be attached to the orders of Additional Inspector-General of Police and the end to be achieved by finality i.e. minimization of wastage of time in the manner of transfer of investigations, would be frustrated---Even under the provisions of Police Order, 2002, Additional Inspector General of Police had no power to review his earlier order---Right of review was substantive right and was always the creation of relevant statute on the subject---Courts were not bound to agree to the opinion of police, therefore, accused would not be entitled to any relief on the basis of such opinion of police---After recording statement of complainant, accused, who were found innocent by police, had already been summoned to face the trial---Fate of the case would depend upon the evidence collected during trial---Order passed by Additional Inspector General of Police for changing investigation against accused was declared to be illegal, unlawful and without jurisdiction and the same was quashed---Petition was allowed in circumstances.

Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31; Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373; Muhammad Bashir v. Station House Officer, Okara Cantt. and others' PLD 2007 SC 539; Azmatullah through L.Rs. v. Mst. Hameeda Bibi and others 2005 SCMR 1201 and Imran Shaukat v. Incharge (Investigation), Police Station, Nawankot, Lahore and 2 others 2006 MLD 501 ref.

(d) Review---

----Power of review---Special enactment---Effect---exercise of powers under special enactment does not imply a power to review earlier orders in exercise of inherent powers, unless the power of review is specifically conferred by the statute.

Inayat Ullah Khan & Co v. Secretary Food, Government of the Punjab and 2 others 2006 YLR 656; Mian Ghulam Mustafa and another v. Chief Conservator of Forest Punjab and another 2004 PLC (C.S.) 527; Tanya Knitwear (Pvt.) Ltd. and others v. First Women Bank Ltd. PLD 2008 Kar. 29; Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94; Messrs Haji Abdul Ghafoor Haji Muhammad v. Central Board of Revenue and others 2004 PTD 2524; Dr. Shahnaz Nadir v. The Government of N.-W.F.P. through Chief Secretary Civil Secretariat, Peshawar and 3 others 2005 PLC (C.S) 88; National Development Finance Corporation v. Wafaqi Mohtasib, Islamabad and others 2004 CLD 260 and Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 rel.

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

----S. 21---Power of review---Scope---Authorities are not legally competent under S.21 of General Clauses Act, 1897, to' review their earlier order---Right of review is not conferred under S.21 of General Clauses Act, 1897.

Messrs New Shaheen Trading Company through Managing Director v. Government of Pakistan through Secretary, Ministry of Commerce and 2 others 2008 SCMR17 rel.

Hafiz Abdul Rehman Ansari for Petitioner.

Tahir Mehmood Gondal A.A.-G. with Masroor Khan and Muhammad Rafiq Inspector.

Ch. Zahoor-ul-Haq for Respondent No.3.

Date of hearing: 27th June, 2008.

P L D 2008 Lahore 497

Before Syed Shabbar Raza Rizvi and Kazim Ali Malik, JJ

SHAHEEN TAHIR---Appellant

Versus

SUPERINTENDENT, CENTRAL JAIL, FAISALABAD and another--Respondents

Intra-Court Appeal No.15 of 2008 in Writ Petition No.16188 of 2005, decided on 28th May, 2008.

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

----S. 65---Limit to imprisonment for non-payment of fine, when imprisonment and fine awardable---Scope---Section 65, P.P.C. does not provide discretionary power to Court to pass an order of running sentences concurrently in default of payment of fine---Section 65, P.P.C. only enjoins the Court that it will not pass the term of sentence in default of payment of a fine more than 1/4th of the term of imprisonment which is the maximum fixed for the offence---Question of a sentence whether to run consecutively or concurrently therefore, is not relevant as far as application of S.65, P.P.C. is concerned---No Court has power under S.65, P.P.C. to order that sentence in lieu of default of payment of fine shall run concurrently with substantive sentence or sentences---Section 65, P.P.C. refers to "sentence" and not "sentences". Mian Khan v. Government of the Punjab and others 2005 PCr.LJ 627 dissented from.

Mian Khan v. Government of the Punjab and others 2005 PCr.LJ 627 dissented from.

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

----S. 64---Sentence of imprisonment for non-payment of fine---Meaning expounded---Imprisonment in lieu of non-payment of fine is in excess of any other imprisonment i.e. substantive sentence and runs in addition to the substantive sentence after it is completed---Sentence in lieu of non-payment of fine cannot run concurrently with the substantive sentence.

Emperor v. Ibrahim AIR 1931 Rang. 51; Emperor v. Subrao Sesharao AIR 1926 Bom. 6 and Ali Abbas v. The State PLD 1959 (W.P.) Kar. 56 ref.

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

----S. 544-A---Compensation to the heirs of the person killed etc.---Sentence in lieu of non-payment of compensation, nature of---Sub­section (3) of S.544-A, Cr.P.C. provides that compensation shall be in addition to any sentence which the Court may impose for the offence of which the person directed to pay compensation has been convicted---Payment of compensation thus shall be treated separately from the substantive sentence or punishment of fine---Payment of compensation is a third separate liability on the accused---Sentence in lieu of non-payment of compensation under S.544-A, Cr.P.C. is separate and in addition to the substantive punishments and punishment in lieu of non-payment of fine.

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

---Ss. 64 & 65---Criminal Procedure Code (V of 1898), Ss. 35 & 544-A---Classification as to which sentences to run concurrently and which to run consecutively---Sentence of imprisonment in lieu of default of payment of fine is a separate and distinct punishment and is in addition to the main sentence or substantive sentence---Section 65, P.P.C. does not provide minimum but contemplates maximum i.e. not more than 1/4th of a sentence actually passed by Trial Court---Section 35, Cr.P.C. empowers Trial Court to allow substantive sentences to run concurrently, but this power is not conferred upon it in case of sentence or sentences provided in lieu of default of payment of fine---No Court has power to direct that sentence in default of payment of fine shall run concurrently with substantive sentences or even when sentences of fine are awarded for more than one offences---Section 65, P.P.C. only governs the question of sentence in lieu of default in payment of fine and S.35, Cr.P.C. only deals with the substantive punishments---Section 65, P.P.C. refers to 1/4th of a "sentence" and not of "sentences"-Similarly compensation awarded under S.644-A, Cr.P.C. shall be in addition to any sentence which the Court may impose for the offences of which the person directed to pay compensation has been convicted, which is a separate liability and has to be dealt separately---Sentence inflicted in lieu of non-payment of compensation, therefore, shall also not run concurrently and shall be counted separately and shall run consecutively---Mian Khan v. Government of the Punjab and others 2005 PCr.LJ 627 dissented from.

1991 PCr.LJ 257; Abdul Majeed v. The State and another 2005 YLR 1551; AIR 1940 Lah. 388; AIR 1941 Lah. 209;. AIR 1944 Mad. 448; Abdul Hakim Bhuiya v. Golabdi and others PLD 1956 Dacca 108; Emperor v. Ibrahim AIR 1931 Rang. 51; Emperor v. Subrao Sesharao AIR 1926 Born. 6; Ali Abbas v. The State PLD 1959 (W.P.) Kar. 56; Shafiq Ahmad v. The State PLD 1959 (W.P.) Lah. 851; Syed Ali Nawaz Shah Gardezi v. Lt.-Col. Muhammad Yusuf Khan, Commissioner Quetta Division PLD 1962 (W.P.) Lah. 558; AIR 1972 SC 1295; AIR 1958 Pat. 35 and P. Bala Raman v. The State 1991 Cr.LJ 166 ref.

Mian Khan v. Government of the Punjab and others 2005 PCr.LJ 627 dissented from.

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

----Ss. 302/149, 307/149, 64 & 65---Criminal Procedure Code (V of 1898), Ss.544-A & 35---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court Appeal---Sentence-.Contention was that since substantive sentences of imprisonment for life were ordered to run concurrently, the sentences awarded to accused in lieu of fine and compensation should also the treated as concurrent instead of consecutive---Total sentence counted with reference to punishment in default of payment of fine under Ss. 302 & 307, P.P.C. 'was nine years; 2 years' R.I. each on three counts and six months R.I. on six counts respectively---Sentence in default of payment of compensation was four and a half years; 18 months under S.302, P.P.C., 6 months on three counts; and under S.307, P.P.C. 36 months, 6 months R.I. each on six counts---Grand total of sentence, thus, was 13 years and 6 months---Mandatory provisions of Ss.64 & 65 P.P.C. and those of S.544-A, Cr.P.C. provided that sentences in default of payment of fine and in default of payment of compensation, had no nexus with substantive sentences of imprisonment awarded to accused, which had been ordered by the Trial Court to run concurrently under S.35, Cr.P.C.---Sentences in default of payment of fine and in default of Payment of compensation, therefore, were directed to run consecutively, one after the other---Intra-Court Appeal was dismissed accordingly---Mian Khan v. Government of the Punjab and others 2005 PCr.LJ 627 dissented from.

1991 PCr.LJ 257; Abdul Majeed v. The State and another 2005 YLR 1551; AIR 1940 Lah. 388; AIR 1941 Lah. 209; AIR 1944 Mad. 448; Abdul Hakim Bhuiya v. Golabdi and others PLD 1956 Dacca 108; Emperor v. Ibrahim AIR 1931 Rang. 51; Emperor v. Subrao Sesharao AIR 1926 Bom. 6; Ali Abbas v. The State PLD 1959 (W.P.) Kar. 56; Shafiq Ahmad v. The State PLD 1959 (W.P.) Lah. 851; Syed Ali Nawaz Shah Gardezi v. Lt.-Col. Muhammad Yusuf Khan, Commission Quetta Division PLD 1962 (W.P.) Lah. 558; AIR 1972 SC 1295; AIR 1958 Pat. 35 and P. Bala Raman v. The State 1991 Cr.LJ 166 ref.

Mian Khan v. Government of the Punjab and others 2005 PCr.LJ 627 dissented from.

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

----Ss. 302/149 & 307/149---Law Reforms Ordinance (XII of 1972), S.3---Constitution of Pakistan (1973), Art. 199---Constitutional jurisdiction of High Court---Scope---Sentences awarded by a competent Court can only be reversed by an Appellate Court or a Court of competent jurisdiction under S.561-A, Cr.P.C., but not under the constitutional jurisdiction---High Court in intra-court appeal in such a situation, can only interpret the relevant provisions of law and ensure that authorities act as required under the law.

Tariq Masood for Appellant.

Shehzad Ahmad Dhillon, Addl. A.-G. Punjab.

Ghulam Saghir Shahid, Deputy Secretary Home Department.

Mian Ansar Mehmood, Deputy Superintendent Central Jail, Faisalabad.

P L D 2008 Lahore 511

Before Maulvi Anwarul Haq, J

MUSHTAQ AHMED BHATTI and 3 others---Petitioners

Versus

Mst. GHULAM SUGHRA BHATTI through Legal Representatives---Respondents

Civil Revision No.179 of 2005, heard on 25th June, 2008.

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

----S. 111---Surrender Deed---Surrender deed executed between legal heirs of deceased during his lifetime regarding his property without making him party thereto---Validity---None of the parties to such deed had any right, title or interest in such property to enable them either to extinguish or create any title therein inter se or in favour of any other party during life time of their predecessor---Such deed had neither extinguished nor created any title in favour of either party thereto--Principles.

Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446; Nawab Ali and 2 others v. Muhammad Sharif and 5 others 2000 YLR 242 and Muhammad Yaqub and 2 others v. Rang Illahi and 16 others 2001 MLD 1479 ref.

Sadiq Ali and ten others v. Mst. Aisha and others 1989 Law Notes 857; Atta Hussain Khan v. Muhammad Siddque Khan and others 1979 SCMR 630; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 distinguished.

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

----Arts. 17(2)(a) & 79---Registered surrender deed/Deed of Family Arrangement---Denial by defendant-lady to have executed such deed in favour of plaintiff---Proof---Name of scribe was not mentioned on such deed---First marginal witness produced by plaintiff deposed that such deed was not prepared in his presence; that he never appeared before any authority for its execution; that none of the parties to such deed acknowledged its contents in his presence; that he was made to sign on blank stamp papers---Second marginal witness was not produced in evidence by plaintiff without showing any reasons therefor---Registration Clerk deposed that he was not Incharge Moharar during relevant period---Sub-Registrar in his deposition proved his certificate on such deed, but denied to know defendants-ladies---Held, execution of such deed had not been proved in manner prescribed in Qanun-e-Shahadat, 1984.

Ch. Mushtaq Ahmad Khan for Petitioner.

Muhammad Ilyas Sheikh for Respondents.

Date of hearing: 25th June, 2008.

P L D 2008 Lahore 516

Before Hasnat Ahmad Khan, J

MUHAMMAD BASHIR alias SHANI---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE (II), PATTOKI, DISTRICT KASUR and 3 others---Respondents

Criminal Revision No.193 of 2008, heard on 23rd June, 2008.

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

----S. 540---Power to summon material witness or examine persons present---Nature and scope---Section 540, Cr.P.C. is divided into two parts---First part is discretionary in nature, whereas the second part is mandatory---First part provides discretionary power to Court to summon any person as a witness suo motu or on an application of any party---According to second part the powers to summon, examine or recall and re-examine any person as a witness, are to be exercised with due care and caution---Court cannot use these powers to advance the case of prosecution or the defence, rather these powers are only meant to advance the cause of justice---Solitary purpose of judicial proceedings in criminal cases is to find out the truth and to arrive at a correct conclusion and to see that no innocent persons is punished merely because of certain technical omissions on his part or on the part of the Court, if it appears essential to the Court that the evidence is necessary for just decision of the case---Under second part of S.540, Cr.P.C. it becomes obligatory for the Court to examine such a witness ignoring technical and formal objections---Trial Court has been vested with the jurisdiction to re-examine any witness and the only requirement for re-examining the witness is that his examination should be essential for the just decision of the case, but at the same time it is also a settled principle of law that no witness should be summoned or re-examined merely to, fill in the lacuna by the prosecution or the defence.

Saifullah v. The State 1994 PCr.LJ 1499 and Syed Hassan Abbas Rizvi v. The State 1993 PCr.LJ 1630 rel.

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

----S. 540---Re-examination of witness---Purpose---Re-examination of a witness can be for the purpose of removing indistinctness in his testimony or to rectify an obvious mistake of omission or commission, or for any reasons which will be, ex facie, useful for arriving at a just decision in the matter---For this the party invoking the jurisdiction of the Court for exercising power in its favour shall satisfy the Court about the existence of lacuna or of the circumstances, which palpably justify such action---Mere quoting the words of S.540, Cr.P.C. in the application is not enough for exercising such powers.

Syed Hassan Abbas Rizvi v. The State 1993 PCr.LJ 1630 ref.

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

----S. 540---Examination of witness---Intent and import---Whole stress on power for examining any person as a Court witness, whether already examined or not, is that his evidence should appear to be essential for the just decision of the case---Exercise of power under S.540, Cr.P.C. is a matter of discretion which has to be exercised judicially and on sound material keeping in view all aspects of the case---Said discretion is not to be exercised to favour one or the other party---Power can be exercised to know about something which is not present on the record already due to the failure of either party or due to the reasons beyond the control of any of the parties, or on account of something which has come to light during the trial---While exercising the powers under S.540, Cr.P.C. court has to see as to how materially the bringing on record of such evidence will help for coming to a just decision---Said power cannot be exercised as a matter of rule and if used in a routine manner it would tantamount to opening floodgates where parties may start re-examining their witnesses to fill in lacunas in their evidence.

Rashid Ahmad v. Ibrahim and another 1996 PCr.LJ 143"9; Khalid Nawaz and another v. The State 1995 PCr.LJ 1932; Abbas and another v. The State 2003 PCr. Li 624 and Tanveer Shahzad v. The State 2003 PCr.LJ 751 rel.

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

---S. 540---Re-examination of witness---Principles---Witness can be recalled for re-examination in exceptional and special circumstances, where the interest of justice so demands.

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

---S. 540---Penal Code (XLV of 1860), S.302---Recalling of Doctor for further cross-examination---Application of complainant for resummoning the doctor for his cross-examination had been allowed by Trial Court vide impugned order---Validity---During his cross-examination Doctor did not give a conclusive statement that the five injuries on the person of the deceased were indeed, the result of one fire---Trial Court had watched the interest of the prosecution by putting a Court question to the doctor, who in reply had categorically stated that he had not mentioned the track of the bullet in the post-mortem report-Doctor who obviously was not an eye-witness of the occurrence just on the basis of his professional expertise had refused to rule out the possibility of receipt of all the injuries by the deceased with one bullet---Case, of course, would be decided by Trial Court after considering the whole evidence including ocular testimony, the post-mortem report, the pictorial diagram made thereon, the examination-in-chief of the Doctor, his cross-examination and his answer to the Court's question---Controversial opinion of the Doctor would not be considered by the Trial Court at the relevant time in isolation---Doctor had already made a detailed statement during his examination and cross-examination, and his re-examination would be nothing but an abuse of the process of law and wastage of time---Besides, if such practice was allowed,, no criminal trial would come to an end, because during criminal trials medical experts often make such like statements when cross-examined---Moreover, counsel for the complainant had failed to demonstrate that re-examination of the said witness was required to clarify any point---Trial Court had committed an illegality while accepting the application filed by the complainant---Impugned order was set aside and revision petition was accepted accordingly.

Zulfiqar Ali v. Fiaz Bhatti and 6 others 2001 MLD 307; Saifullah. v. The State 1994 PCr.LJ 1499; Syed Hassan Abbas Rizvi v. The State 1993 PCr.LJ 1630; Rashid Ahmad v. Ibrahim and another 1996 PCr.LJ 1439; Khalid Nawaz and another v. The State 1995 PCr.LJ 1932; Abbas and another v. The State 2003 PCr. LJ 624 and Tanveer Shahzad v. The State 2003 PCr.LJ 751 ref.

Syed Tayyab Mehmood Jaafri for Petitioner.

Shahid Mehmood Khan, D.P.G. and Ch. Imran Raza Chadhar, for Respondent No.3.

Date of hearing: 23rd June, 2008.

P L D 2008 Lahore 527

Before Syed Asghar Haider, J

UMAR FAROOQ---Petitioner

Versus

KHUSHBAKHAT MIRZA and 2 others---Respondents

Writ Petition No.8827 of 2008, decided on 6th August, 2008.

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

----S. 12-Constitution of Pakistan (1973),Art.199---Constitutional petition---Visitation rights---Meeting with minors---Arrangement---Guardian Judge, powers of---Scope---Petitioner was, father of two minor children and assailed interim arrangement made by Guardian Judge for his meeting with minors---Plea raised by petitioner was that he used to come from foreign country (Dubai) to meet his minor children and there were no proper arrangements of holding a meeting at court premises, therefore, he wanted to meet his children at a five star hotel---Validity---In guardianship matters, courts had to exercise quasi parental jurisdiction, the supreme consideration in such context was welfare of minor, to achieve such purpose, courts had unfettered powers---Application under S.12 of Guardians and Wards Act, 1890, was required to be decided on such principles---Contesting parents had inherent right to seek visitation to the minor, especially father, who was the natural guardian---Father was not only required to participate in up-bringing of minors but should develop love, bondage and affinity with them---To achieve such purpose, court should facilitate a congenial, homely and friendly environment and a reasonable visitation schedule---Court of Guardian Judge, for such purpose was neither conducive nor effective, it lacked proper facilities and arrangements and was not comparable to a homely environment---Meeting in court premises did not serve the purpose of meeting and was not in the welfare of minors to hold meetings there---Meetings of minors with parents should preferably be held at the premises of contesting parent to familiarize minors with environment there, to strengthen a healthy relationship and dispel fears of a future re-union---Only in extreme and exceptional cases, court of Guardian Judge could be chosen as a venue for which detailed reasons should be cited, thus mechanical order in such context was not tenable---Petitioner (father) having no residence at Lahore, therefore, the closest place to home was a hotel---High Court in exercise of constitutional jurisdiction amended the order passed by Guardian Judge and changed venue of meeting from court premises to a five star hotel---Constitutional petition was allowed accordingly.

Raja Qureshi v. Mrs. Yaseen Qureshi PLD 1981 Kar. 61 ref.

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

----S. 12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Visitation rights---Meeting with minors---Duration---Petitioner was father of two minor children and assailed interim arrangement made by Guardian Judge for his meeting with minors---Plea raised by petitioner was that he used to come from foreign country (Dubai) to meet his minor children and two hours time was too short for the purpose---Validity---Father being natural guardian had a right to meet minors for a reasonable time to familiarize with them, so that minors could recognize him and could develop love, bondage and affinity for him---High court, in exercise of constitutional jurisdiction, enhanced meeting time from 2 hours to 5-1/2 hours---Constitutional petition was allowed accordingly.

Muhammad Iqbal v. Mst. Tanveer Asmat and others 2001 CLC 133 distinguished.

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

----S. 12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Visitation rights---Meeting with minors---Arrangements---Apprehensions of parties---Petitioner was father of two minor children and assailed interim arrangement made by Guardian Judge for his meeting with minors---Petitioner sought permission to meet his children at a five star hotel and extension in meeting time---Plea raised by mother of minor was that she had apprehension of removing wards from territorial jurisdiction of the court and wards might be shifted to a foreign country---Validity---To rest the apprehension of mother of minors, High Court placed the minors on Exist Control List and directed the petitioner to execute a surety bond with one surety and an undertaking that minors would not be removed from jurisdiction of courts of Guardian Judge, Lahore---High Court appointed a bailiff of the court, to ensure safety of minors and ward off any altercation between spouses and adherence to time frame by both the parties---High Court directed the bailiff to collect and drop minors from the residence of their mother and to remain present during the meeting outside the room and retain passport of petitioner with him during the currency of the meeting---Constitutional petition was allowed accordingly.

Ch. Muhammad Saleem for Petitioner.

Noman Qureshi and Aamer Saeed Khan for Respondent No. 1.

P L D 2008 Lahore 533

Before Kazim Ali Malik, J

KAUSAR PARVEEN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.4443 of 2008, heard on 1st July, 2008.

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

----S. 363---Criminal Procedure Code (V of 1898), S.497, Second and Third provisos [as inserted by Criminal Law (Amendment) Ordinance (XIII of 2006)] & 561-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Woman accused---Bailable offences---Refusal of bail---Father of minor prosecuting mother of minor---Molding of relief---Converting bail petition into constitutional petition read with one under S.56-A, Cr.P.C.---Complainant was father of minor children and after divorce, custody of minors was handed over by their mother to the complainant in lieu of dowry articles and maintenance allowance---Later on the ex-wife of complainant along with her parents and other relatives rernoved minor children from custody of complainant, against which F.I.R. was registered---Lower Appellate Court dismissed bail of accused (ex-mother-in-law of complainant) on the ground that punishment for the offence was seven years and the minor children were removed in violation of the decree passed by Family Court---Validity---All offences against women excepting terrorism, financial corruption and murder punishable with death or imprisonment for life or imprisonment for ten years were bailable-On the day of promulgation of Criminal Law (Amendment) Ordinance, 2006, the Second and Third provisos to S.497, Cr.P.C. had overriding effect on all laws in force---Offence with which accused stood charged was punishable upto seven years rigorous imprisonment only and under Criminal Law (Amendment) Ordinance, 2006, all offences against women accused were bailable excepting murder, terrorism and financial corruption---Accused woman made a request for bail before Lower Appellate Court in bailable offence punishable with 7 years of imprisonment and was, therefore, entitled to bail as a right---Mere fact that at one time mother of minors herself passed on custody of her minor children to her ex-husband in lieu of dowry articles and maintenance allowance would not make her liable for the charge of kidnapping punishable under S.363 P..P.C.---High Court converted bail petition into petition under Art.199 of the Constitution, read with S.561-A, Cr.P.C.---Local police could not and should not be allowed to proceed with the investigation of the F.I.R. registered under S.363 P.P.C., as it would amount to abuse of process of law---High Court in exercise of its inherent powers under S.561-A, Cr.P.C. and under Art.199 of the Constitution, quashed the F.I.R.---High Court directed the authorities to release all the accused if in custody---Petition was allowed in circumstances.

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

----S.497, Second and Third provisos [as inserted by Criminal Law (Amendment) Ordinance (XIII of 2006)]---Bailable offences---Object---Legislature regarded liberty of the woman accused as a precious asset to be preserved by the court of law by rendering all offence against the woman as bailable excepting terrorism, murder and financial corruption.

(c) Islamic law---

----Custody of minor---Scope---Sunni law---Dual control of minor children by father and mother has been recognized under Islamic law---Father is a legal and natural guardian of minor, whereas right of Hizanat (custody of minor) vests in the mother of minor---Mother, under the Sunni law, is entitled to custody of male child until he has completed age of seven years and of her female child until she has attained puberty---Such right of Hizanat (custody of minor) of mother continues though she is divorced by the father of minor children.

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

----S. 361---"Lawful guardian"---Connotation---Prosecution against father or mother of minor---Words "lawful guardian" in S.361 P.P.C. are used in wider sense including any person lawfully interested with the care or custody of the minor---Principle of dual guardianship of minor is by itself not repugnant to Islamic law or law of the land---Under such conception, guardianship of father does not cease while minor is in custody of mother and there is nothing in law to prevent mother to agitate her right of Hizanant (custody of minor) when minor is with father---Father and mother cannot prosecute each other on the charge of kidnapping of their own minor children.

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

----S. 363---Kidnapping by mother of her own minor children---Family dispute---Role of police---Scope---Father of minor children alleged that his ex-wife had kidnapped their minor children---Police had registered F.I.R. under S. 363 P.P.C. against mother of minor children---Validity---Criminal court or police station were not the competent and proper forums for resolution of any dispute between parents of minor arising out of matrimonial life particularly touching Hizant and custody of minors---No offence whatever including that of kidnapping was made out---Local police unauthorizedly and without any legal or factual justification interfered into a pure family dispute touching custody of minors between their parents---Police official to whom complainant approached for registration of a case against mother of minors on the charge of kidnapping, was under legal obligation to refer him to Guardian Court for determination of dispute of custody---Local Police encroached upon the functions and powers of Guardian Court and such was misconduct which must be deprecated.

Bashir Ahmad v. The State 1971 PCr.LJ 252 and Ahmad Nawaz and 3 others v. The State PLD 1968 Lah. 97 ref.

Sultan Haider Ali Malik for Petitioner.

Mrs. Azra Israr, Dy. Prosecutor-General with Rana Liaqat Ali Khan for the Complainant.

Muhammad Ismail for S.-I.

P L D 2008 Lahore 544

Before Zubda-tul-Hussain and Zafar Iqbal Chaudhry, JJ

ABDUL RAZZAQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.27-J-ATA/BWP of 2006, 5-J-ATA/BWP of 2007 and Murder Reference No. 3 of 2006/BWP, heard on 3rd June, 2008.

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

----S. 164---Confession---Extra-judicial confession---Nature and scope---Extra-juridical confession is a weak type of evidence and in the absence of very strong corroborative circumstantial evidence conviction cannot be maintained merely on the basis of extra-judicial confession.

Zia-ur-Rehman v. The State 2001 SCMR 1405 and Wazir Muhammad and another v. The State 1005 SCMR 277 ref.

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

----S. 164-Confession-Appreciation of evidence---Where the evidence consists of extra-judicial confession as well as the confession recorded under S.164, Cr.P.C., one of them may be used for corroborating the other, but the statement to be used as corroboration must stand the test of judicial scrutiny.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Confession of accused already in police custody---Credibility---Judicial confession made by accused already in police custody for a number of days would by itself become doubtful and inadmissible under the law.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Appreciation of evidence---Retracted confession, corroboration of---Principles---Retracted confession all the more needs very strong corroborative evidence---Unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction on its strength alone.

Muhammad Hanif v. The State 1995 PCr.LJ 985 ref.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Criminal Procedure Code (V of 1898), S.164---Judicial confession---Corroboration of---Practice and procedure---Statements under S.164, Cr.P.C. have never been taken by the Courts as a gospel truth---Courts have to look into and have always been demanding for evidence before convicting the accused for a capital punishment, notwithstanding the accused having confessed the guilt.

Nadir Hussain v. The Crown 1969 SCMR 442 rel.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Confession---Corroborative evidence---Where the extra-judicial confession or even the confession under S.164, Cr.P.C. is inherently defective or incompetent the corroborative evidence of howsoever high quality, cannot inject vigour or life in such confession, for the obvious reasons that corroborative evidence is required to supplement the strength of the circumstantial evidence and to make a complete link between various events comprising the circumstantial evidence---Corroborative evidence is not and cannot be a substitute for the facts which are to be established by any direct or circumstantial evidence---Direct and circumstantial evidence has to stand on its own legs and the corroborative evidence shall only be supplementing or adding to its credibility---Where the evidence or the confession itself suffers from inherent infirmity, the same cannot be accepted or relied upon to bring home the guilt of an accused, because corroborative evidence is never a substitute of the primary evidence.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Appreciation of evidence---Benefit of doubt---Extra-judicial confession as well as the confession under S.164, Cr.P.C. made by the accused were not worthy of reliance and after excluding the same no evidence was available against him---Medical evidence did not speak of any sexual offence against the deceased lady---Incriminating recoveries were improbable, because the same could not have been retained or preserved in due course by the time of the alleged recoveries---Sole alleged motive and the basis of the whole prosecution version was that the accused used to trap the old ladies for Zinc' and then after commission ofZina-bil-Jabr' used to kill them, but during the trial the allegation of `Zina' was not established and the charge in this behalf was answered in the negative---When the basic charge had not been proved the alleged confession could not be relied upon without very strong evidence which could have a direct bearing on the charge of murder---Such evidence not being available the conviction could not be recorded against the accused in the case---Accused was acquitted on benefit of doubt in circumstances.

Zia-ur-Rehman v. The State 2001 SCMR 1405; Wazir Muhammad and another v. The State 2005 SCMR 277; Muhammad Hanif v. The State 1995 PCr.LJ 985; Nadir Hussain v. The Crown 1969 SCMR 442 and Muhammad Ahmad and Hakim Ali PLD 1995 SC 590 ref.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7(a)-Evidence-Motive-Weakness or insufficiency of motive or even absence of motive in murder cases, no doubt, ordinarily cannot be considered as a circumstance to justify the acquittal or mitigation of sentence, but where motive would be the only reason for committing the murder and in the absence of such motive there would have been no possibility of murder at all, the complexion of the proposition would be absolutely changed and the situation is so plain that the reasoning needs no illustration---Even otherwise, when motive is once set up, it is imperative for the prosecution to prove such motive, in failure whereof adverse inference is to be drawn and the prosecution has to suffer the consequences instead of the defence.

Muhammad Ahmad v. Hakim Ali PLD 1995 SC 590 rel.

Rana Rizwan for Appellant.

Aftab Ahmed Goraya, A.P.G. for the State.

Date of hearing: 23rd June, 2008.

P L D 2008 Lahore 554

Before Syed Shabbar Raza Rizvi and Khurshid Anwar Bhinder JJ

SHER KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.324-J of 2003, heard on 1st July, 2008.

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

----S. 9(c)---Appreciation of evidence---House in which accused was putting up was a rented house, meaning thereby that the police had conducted illegal raid at the house of accused without obtaining search warrant from the Magistrate 1st Class as enunciated in S.105, Cr.P.C. as well as Art.22 of Prohibition (Enforcement of Hadd) Order, 1979---Police had not fulfilled the requirement of S.103, Cr.P.C. by not associating any independent person of the locality as public witness with recovery process---Entire recovery process carried out by the police in circumstances was based on their mala fides---Recovery of Charas had not directly been effected from accused as sufficient evidence was on record which proved the fact that accused had already fled away from his place of residence before arrival of the police---Accused, in circumstances, could not be held liable to be in possession of the alleged narcotic---Conviction and sentence recorded against accused by the Trial Court, were set aside, he was acquitted from all charges and was directed to be released.

Arshad Zubair v. The State 1993 SCMR 2059; Shankar v. The State 1996 PCr.LJ 651; Aziz Ahmad v. The State 1995 MLD 1134; Ghulam Muhammad v. The State 1997 PCr.LJ 805 and Abdul Majeed v. State 1996 PCr.LJ 309 ref.

Allah Bukhsh Gondal for Appellant.

Muhammad Aslam Sindho, Addl. P.G. for the State.

Date of hearing: 1st July, 2008.

P L D 2008 Lahore 557

Before Muhammad Ahsan Bhoon, J

ABDUL SATTAR---Petitioner

Versus

ADDITIONAL INSPECTOR-GENERAL OF POLCIE (INVESTIGATION), PUNJAB, LAHORE and 2 others---Respondents

Writ Pakistan No. 5747 of 2008, decided on 4th July, 2008.

Police Order (22 of 2002)---

----Art. 18(6)---Penal Code (XLV of 1860), Ss.440/342/337-L(2)/148/149---General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Change of investigation---District Standing Board on the application of complainant had recommended for the change of investigation of the case, but Additional Inspector-General of Police (Investigation); instead of entrusting the investigation to any police officer of the Investigating Branch, filed the said recommendation on the ground that the District Standing Board had not given any solid or cogent reasons for change of investigation---Validity---No doubt, as envisaged by Article 18(6) of the Police Order, 2002, ultimate order was passed by the Additional Inspector-General of Police (Investigation) being the over all Head of the investigation, but the interpretation of Article 18(6) of the Police Order, 2002 assumed by him was alien to law---If the recommendation of the District Standing Board was of no worth or value, then there was no need to enact for the constitution of the said Board for change of investigation and the abovesaid interpretation was an effort to defeat the wisdom of Legislature, which had provided a mechanism to avoid the multiplicity of investigations---If the Board had not passed any speaking order or had not given any cogent or solid reasoning for change of investigation, then the police officer should have referred the matter to the District Standing Board for its reconsideration and passing a speaking order, as provided under S.24-A of the General Clauses Act, 1897 according to which each and every Authority was bound to pass speaking and well reasoned order---If the aforesaid interpretation of the police officer was accepted and ultimate change was left at his discretion and he was given authority to brush aside the recommendation of District Standing Board just on his wishes and whims, then the provisions of Article 18(6) of the Police Order, 2002, would become redundant--Legislature in its wisdom had bestowed upon the Additional Inspector-General of Police (Investigation) an office of postmaster---If the very recommendation for change of investigation was well-reasoned and speaking one, then the said police officer was bound to change the investigation, otherwise the District Standing Board could be asked for reconsideration of the matter---Impugned order passed by Additional Inspector-General of Police (Investigation) was consequently set aside and the application of the complainant for change of investigation was directed to be decided by the District Standing Board by a speaking or well-reasoned order---Constitutional petition was allowed accordingly.

Allah Rakha for Petitioner.

Malik Muhammad Mateen Khokhar, A.A-G. along with Salah ud Din, Addl. I.-G. Police.

P L D 2008 Lahore 560

Before Zubda-tul-Hussain, J

MUHAMMAD AKRAM---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.2113-F of 2008/BWP, decided on 19th August, 2008.

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

----S. 11---Res judicata, principle of---Applicability---Important ingredients---Cause of action---Scope---Provisions of S.11 C.P.C. in relation to cause of action of suit codifies doctrine of res judicata, which operates when there is a judgment between the same parties and it prevents fresh suit between them regarding the same matter---Application of principle inter se earlier and fresh litigation cannot be applied indiscriminately without regard to conditions precedent as laid down in S.11, C.P.C.---Matter is not hit by principle of res judicata only because of similarity of subject matter, commonality of parties and determination of dispute through judgment and decree---One of the most important ingredients of res judicata is commonality of cause of action as well---If in subsequent suit plaintiffs have fresh cause of action or cause of action different from the one tried earlier; the same does not bar as res judicata because of the judgment in an earlier suit on the same subject.

Mst. Azra Israr v. Inspector-General of Police Punjab and others PLD 12003 Lah. 1 rel.

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

----Ss. 5 & 17---Civil Procedure Code (V of 1908), S.11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintenance allowance, enhancement of---Second suit---Maintainability---Fresh cause of action---Proof---Earlier suit for maintenance was decreed in favour of minors which had attained finality---Subsequently minors filed fresh suit for enhancement of maintenance allowance on the ground of change in cost of living---Family Court dismissed the suit but Lower Appellate Court, allowed appeal filed by minors and enhanced the maintenance allowance---Validity---Growth of children, cost of living, change in status of parties, change in expenditures to be incurred on day to day needs of children etc. were the factors which had either introduced a change of cause of action or might make out even a fresh cause of action for the children to demand enhanced maintenance allowance---Application of rule of res judicata to the case of maintenance allowance had a peculiar complexion---Under the changed circumstances and needs of minor children, fresh proceedings for maintenance allowance were maintainable before Family Court having jurisdiction in the matter---Mere fact that mother of children admitted before Family Court that father of minors was carrying on 'the same profession by which he was earning livelihood at the time of earlier suit did not essentially mean that there had not been any change in his income as well---Even by carrying on the same occupation there occurred addition/increase in the income---Judgment and decree passed by Lower Appellate Court did not suffer from any illegality or material illegality warranting interference in exercise of constitutional jurisdiction of High Court---Petition was dismissed in circumstances.

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

----S. 5---Maintenance allowance-Quantum-Determination-Financial position of father---Quantum of maintenance should rationally correspond to the means of father but at the same time it is the moral and legal obligation of father to maintain his minor children---Father is supposed to maintain his minor children regardless of his financial position---Financial position of father can be generally taken into consideration by the courts while granting maintenance but simply on the excuse of limitation of resources of father, children cannot be left to starvation---Father must try to exploit the necessary means and resources to maintain relation of body and soul of minors.

Mirza Muhammad Nadeem Asif for Petitioner.

P L D 2008 Lahore 564

Before Hasnat Ahmad Khan, J

ALI ABBAS---Petitioner

Versus

S.H.O., POLICE STATION SHAH KOT, DISTRICT NANKANA SAHIB and another---Respondents

Criminal Miscellaneous No.797-H of 2008, decided on 5th August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas Corpus petition---Detainees produced in the Court were not only in the illegal custody of the, respondent police officials but they were also tortured by the police, which fact was, prima facie, supported by medical evidence---Detainees admittedly were not required by the police and they were set at liberty accordingly---Police officials had transgressed their powers and committed the offence of detaining all the detenus in their illegal detention, apart from inflicting brutal physical torture on them---Present case being the worst example of the transgression and misuse of powers by the police officials who had, prima facie, committed cognizable offences, their conduct could not be left unattended; it was high time to curb the excesses and illegalities committed by the police---Case was directed to be registered against the respondent police officials and other police officials connected with the alleged crime on the written application of the petitioner---Head of the Police Department in the provincial hierarchy was also directed to adopt appropriate measure to reform his Department, which needed major operation for eradicating such evils---Petition was disposed of accordingly.

Zafar Iqbal Chohan with Petitioner in person.

Pervaiz Alamgir, D.P.G. for the State with Respondents Muhammad Latif Baig Inspector/S.H.O. and Muzaffar Ali Bhatti A.S.I. along with Detenus Muhammad Sutlan, Muhammad Rafique and Mudassar Hussain.

Rana Idrees, Detenu in person.

P L D 2008 Lahore 568

Before Syed Hamid Ali Shah, J

Rana TASSAWAR HUSSAIN---Petitioner.

Versus

MUHAMMAD AHMAD and 3 others---Respondents

Writ Petition No.9073 .of 2008, decided on 25th August, 2008.

Punjab Local Government Elections Rules, 2005---

---Rr. 76 & 2(iv)(v), (xxi)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Declaring of election void---Essentials---Invalid nomination of a returned candidate is valid ground for declaring his election void---Phrase "the other contesting candidates" as referred to in R.76(2)(b), Punjab Local Government Election Rules, 2005 relates to those candidates who contested the election, but were not successful---Viewing the distinction between candidates',returned candidates' and contesting candidates' within the meaning of R.2(iv)(v) and (xxi) of Punjab Local Government Election Rules, 2005, the scope of other contesting candidates cannot be extended too far in its purview of thereturned candidates', more so when the election has been declared and the provisions of law pertain to a matter, subsequent to declaration of result---System of joint candidacy has to be examined in its own spirit---Rejection of nomination of either of Nazim or of Naib Nazim as joint candidates, the nomination as a whole for both the candidates, shall stand rejected, so is the case of disqualification of one of them by the Election Tribunal in election petition, against the returned candidates---Invalid nomination of a candidate on the, nomination day, would not be validated by a subsequent change of the status from candidate to returned candidate---Joint candidates have to sail and sink together---Disqualification would be individual only, when there is a casual vacancy---Casual vacancy would not include vacancy, which becomes vacant as a result of decision of the Election Tribunal, due to disqualification of a candidate.

Haji Alam Sher and another v. Malik Muhammad Nawaz and 6 others PLD 2003 Lah.12 and Mian Ahmad Saeed and others v. Election Tribunal for Kasur and 7 others 2003 SCMR 1611 fol.

Chaudhri Maqbool Ahmad and others v. Malik Falak Sher Farooqa Additional District Judge/Election Tribunal and others PLD 2003 Lah. 138; Naveed-ur-Rehman v. Election Tribunal and others 2004 CLC 626; Tahir Mahmood .and another v. Election Tribunal for Rawalpindi. and 6 others 2003 CLC 1381; Asim Butt and others v. Additional District Judge Ferozewala and others 2003 MLD 1168; Chaudhry Nazakat Ali and another v. Manzoor Hussain Malik and 10 others 2004 YLR 421 and Muhammad Hussain Haqqani and another v. Election Tribunal Gujranwala and 3 others 2007 YLR 1764 ref.

Muhammad Ramzan Chaudhry for Petitioner.

Ch. Muhammad Ashraf Wahla and Ch. Muhammad Jehanzeb Wahla for Respondents Nos. 1 and 2.

P L D 2008 Lahore 574

Before Hasnat Ahmad Khan, J

Mehr ZAMAN KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Revisions Nos.3 & 4 of 2004, heard on 6th August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 397---Surrender of Illicit. Arms Act (XXI of 1991), S. 7(b)---West Pakistan Arms Ordinance (XX of 1965), S.13---Running two sentences concurrently---Counsel for accused did not press petitions qua the sentence and conviction of petitioner/accused in both cases, but had prayed that sentence awarded to the petitioner/accused in both cases be ordered to run concurrently---Validity---Petitioner was tried in two cases in one and the same court---After completion of the trial of both the cases, petitioner was convicted and sentenced on the same day---Even appeals filed by petitioner in said cases were heard and decided by the Appellate Court on one and the same day---Under provisions of S.397, Cr.P.C., High Court was competent to order running of sentences concurrently, though the trial in both the cases, was conducted separately---Request of the counsel for the petitioner was acceded to---Conviction of accused in both the cases was maintained, but sentences awarded to him by the Trial Court in both the cases would run concurrently.

Zakir Ali v. Mate PLD 1977 Kar. 833 and Shamshad Hussain alias Shamla v. The State 2002 MLD 1979 ref.

Malik Matiullah Wallakhel for Petitioner.

Parvez Alamgir DPG for the State.

Date of hearing: 6th August, 2008.

P L D 2008 Lahore 578

Before Zubda-tul-Hussain, J

MUHAMMAD ASHRAF---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.78 of 2008, decided on 5th August, 2008.

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

----S. 173---Penal Code (XLV of 1860), S.302---Submission of challan---Trial Court had not yet framed the charge and simply the report under S.173, Cr.P.C. had been entertained---Mere entertaining of the report under S.173, Cr.P.C., could not lead to a conducive presumption that charge would be framed under the specific section, especially when material had not yet been examined by the court for the purpose of framing the charge---Report under S.173, Cr.P.C. was submitted by the police for providing the information and the material to the court enabling it to commence the trial of accused---Trial of the offence was permissible under the law an the basis of an interim report under S.173, Cr.P.C.---Trial Court was competent to frame the charge even on the basis of the interim report; but since at that point of time the opinion of the Medical Officer had not yet been added by the police in its report, then had the court framed charge under S.302, P.P.C., it could not have been lawfully disputed by petitioner/accused.

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

---Ss. 173, 265-D & 227---Submission of challan---Framing of the charge---Charge under the law had to be framed by the court on the basis of the material placed before it and in doing so, the court was not bound by the report submitted under S.173, Cr.P.C.---Court had to frame the charge under S.265-D, Cr.P.C. after perusing the police report or complaint and the material provided by the prosecution---Charge once framed, would not become rigid or irrevocable; it could be altered or changed under S.227, Cr.P.C., if it was so warranted by the circumstances.

Muhammad Saddique and others v. The State 1991 PCr.LJ 630 and Ali Ahmad v. The State and another 2001 MLD 1125 ref.

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

----Ss. 221 & 265-D---Qanun-e-Shahadat (10 of 1984), Art. 59---Opinion of Expert---Framing of charge---Opinion of an expert, at the pre-trial stage, would not be a sufficient reason to frame the charge disregarding the other overwhelming material available on record---Controversy could be looked into at the stage of evidence because if the opinion was subjected to the rules of evidence, it could lead the court to a proper conclusion and thus under the law the charge could be modified.

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

----S. 173---Penal Code (XLV of 1860), Ss. 302/337-F(ii), 337-L(ii) & 109---Submission of final challan---Submission of the final challan especially when the only lacking material was a formal report of the Histopathologist would not, by itself, change the perspective of the case, unless the material introduced by it would become part of the evidence---Impugned order did not suffer from any illegality or material irregularity warranting interference of High Court in exercise of revisional jurisdiction.

Mrs. Samina Qureshi for Petitioner.

Nemo for Respondent.

Date of hearing: 5th August, 2008.

P L D 2008 Peshawar 1

Before Talaat Qayum Qureshi, J

HALEEM and 3 others---Petitioners

Versus

THE STATE and 2 others---Respondents

Quashment Petition No.97 of 2007, heard on 26th.October, 2007.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 22-A(6)(iii), 156(3) & 173---Quashing of order---Petitioner had contended that Justice of Peace, had no lawful authority for passing the order for adding or deleting any section of law after the challan was put into the court---Validity---Provisions of S.22-A(6)(iii), Cr.P.C., put no embargo for passing such an order during the investigation, if any neglect, failure or excess committed by the Police Authority in relation to its functions and duties was brought to the notice of the Court; and proper direction to eradicate the failure of the Police officials was sought--Trial Court taking cognizance' after the challan was put in the court under S.173, Cr.P.C., could take cognizance of any offence disclosed by the material available on the record of the investigation, even though police had not applied the relevant penal provisions---Charge could also be framed is respect of an offence disclosed by the record---If any section of the relevant law was omitted from the charge, the court had the powers to rectify its mistake---While exercising his powers under S.22-A(6)(iii), Cr.P.C., the Justice of Peace had not committed any illegality---Impugned order could not be quashed in circumstances.

2005 YLR 3127 and PLD 2005 Lah. 470 ref.

Afridi Khan for Petitioners.

Ilyas Ahmad Qureshi for the State:

Adnan Saboor Rohaila for Respondent No.3.

Date of hearing: 26th October, 2007.

P L D 2008 Peshawar 3

Before Ijaz-ul-Hassan Khan, J

LAND ACQUISITION COLLECTOR, ISLAMABAD and another---Appellants

Versus

ALAUDDIN and others---Respondents

R.F.A. No.106 of 2006, decided on 29th October, 2007.

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

----Ss. 4, 11, 18, 23 & 54---Acquisition of land---Determination of compensation---Enhancement of amount of compensation---Reference to court---Appeal---Amount of compensation of acquired land as determined by Collector having been enhanced by Referee Court, Authority had filed appeal against said enhancement---Validity---Referee Court had appreciated the evidence on record in its true perspective and compensation had been increased for sound and cogent reasons, which were unexceptionable and could not be successfully challenged---Mere assertion of counsel for appellants than evidence on record had not been appreciated in its true perspective and it had been dealt with mechanically in the slipshod manner, without a positive attempt to substantiate the same, was of no consequence---Statement of Halqa Patwari revealed that acquired land was situated adjacent to "abadi" and fish farms and orchards were also around the suit land---Held, Land Acquisition Collector, without any justification, reason and evidence on record to the contrary, had failed to award compensation on the basis of one year average---Compensation determined by the Collector was not reasonable and the one determined by Referee Court was in consonance with the spirit of law---Findings of the Referee Court thus could not be interfered with in the appeal.

Muhammad Saeed and 78 others v. Collector Acquisition Land, Mansehra and 3 others PLD 1996 Pesh. 22 and Mir Alam Khan v. Chairman WAPDA and others 1999 MLD 2107 rel.

Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and another 1999 SCMR 1647 ref.

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

----Arts. 132 & 133---Cross-examination of a witness---If a witness was not cross-examined on a fact and his statement went un-rebutted and un questioned, such statement, as a matter of law and principle, could be taken to be correct.

Haji Din Muhammad through legal heirs v. Mst. Hajira Bibi and others PLD 2002 Pesh. 21 ref.

Sikandar Rashid for Appellants.

Muhammad Iqbal Mohmand for Respondents.

Date of hearing: 29th October, 2007.

P L D 2008 Peshawar 7

Before Hamid Farooq Durrani and Muhammad Alam Khan, JJ

KHURSHID AHMAD KHAN---Petitioner

Versus

RETURNING OFFICER, MARDAN and 4 others---Respondents

Writ Petitions Nos.2062, 2067, with C.M.No.720 of 2007, decided on 2nd January, 2008

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

----S.99(cc)---[Conduct of General Elections Order (7 of 2002)], Art.8(a)--Constitution of Pakistan (1973); Art.199---Constitutional petition---Eligibility to contest election---Returning Officer rejected nomination papers of petitioners on the ground that they were not educationally qualified to contest general elections---Rejection order was upheld by Election Tribunal---Validity---Right to vote or contest as candidate in elections was not a civil right, but was creature of statute or special law and must be subject to limitations imposed by it---Provisions of S.99(cc) of Representation of the People Act, 1976, demanded that a person would not be qualified to be elected or chosen as a member of an Assembly unless he was a graduate, possessing a Bachelor Degree in any discipline or any Degree recognized as equivalent thereto by the University Grants Commission under the University Grants Commission Act, 1974 or any other law for the time being in force---Both petitioners had not been awarded Degrees/titles acknowledging the completion of their respective courses of studies and also having graduated in the claimed disciplines---Impugned findings of Returning Officer and Election Tribunal, in circumstances, could not be interfered with in constitutional jurisdiction of High Court.

2003 SCMR 145 rel.

Ihsan Ali Khan for Petitioner.

Pir Liaqat Ali Shah, A.-G., N.-W.F.P. (on pre-admission notice).

Sharifullah, Asstt. Election Commissioner for Respondent No.2 (on pre-admission notice).

P L D 2008 Peshawar 10

Before Hamid Farooq Durrani and Muhammad Alam Khan, JJ

MUHAMMAD SIRAJ KHAN---Petitioner

Versus

RETURNING OFFICER and 2 others---Respondents

Writ Petition No.2057 of 2007, decided on 2nd January, 2008.

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

----S. 99(cc)---Conduct of General Elections Order (7 of 2002), Art.8(a)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Eligibility to contest election---Eligibility of candidate to contest election was questioned by the petitioner on the ground that educational qualification forming basis for nomination of candidate was not recognized by the Higher Education Commission for the purposes of equivalence to the Degree/Graduation requisite to contest the general elections---Sanad conferred upon candidate which had been made basis of educational qualification for his nomination for election to the Provincial Assembly had been issued by an institution which found mention in the relevant notification---Requirement of law also spoke of Bachelor Degree in any discipline or any degree recognized as equivalent thereto by the University. Grants Commission, would educationally qualify a candidate to contest the election for the Assembly---Returning Officer as well as Election Tribunal had rightly accepted nomination papers of the candidate---Concurrent findings of Authority below not suffering from legal infirmity or jurisdictional defect, could not be interfered with in constitutional petition by the High Court.

Sanaullah Khan's case PLD 2005 SC 858 rel.

Petitioner in person.

Respondent No.2 (in person on preadmission notice).

Pir Liaqat Ali Shah, A.-G., N.-W.F.P. on preadmission notice.

P L D 2008 Peshawar 12

Before Muhammad Qaim Jan Khan and Muhammad Raza Khan, JJ

ISLAM GUL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.820 of 2006, and Jail Criminal Appeal No.2 of 2007, decided on 1st November, 2007.

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

----S. 9---Appreciation of evidence---Prosecution witnesses in case of one of accused persons were put to lengthy and strenuous cross-examination, but nothing came out from their mouth which could favour said accused---Minor concession though had been given by the prosecution witnesses, but that would not mar the prosecution case---Accused admitted in their own statements their presence in the vehicle concerned---Recovery had been made in presence of accused and in the presence of the marginal witnesses---High quality of narcotics i.e. 450 Gms. Pukhta charas and 3 Kgs. opium had been recovered from the vehicle which was driven by the accused---Statement that a driver driving a vehicle would not have checked his diggi was not appealing to the common sense---Prosecution, in circumstances had proved its case beyond any doubt against the accused---Appeal of the accused against his conviction and sentence, was dismissed.

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

----S. 9(c)---Appreciation of evidence---Co-accused was a mere lift taker in the vehicle concerned as he was a "Gandamar" who used to bring small pieces of foreign cloth from Tribal Areas to settled areas and seeing him a friend got lift from him---Statement of defence witness produced by said co-accused had not been shattered by the prosecution---Said co-accused present in the vehicle though was known to the driver of the vehicle, but seemed not connected with the offence---Co-accused was exonerated of the charge and was ordered to be released.

Noor Alam for Appellant.

Muhammad Saeed Khan, Addl. A.-G. for the State.

Date of hearing: 25th July, 2007.

P L D 2008 Peshawar 16

Before Hamid Farooq Durrani and Muhammad Alam Khan, JJ

GULISTAN KHAN---Petitioner

Versus

REHMAT ULLAH and 2 others---Respondents

Writ Petition No.2061 of 2007, decided on 1stlanuary, 2008.

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

---S. 99(cc) [Conduct of General Elections Order (7 of 2002)], Art.8(a)--Constitution of Pakistan (1973), Art.199---Constitutional petition---Eligibility to contest election---Petitioner was declared ineligible by Election Tribunal for contesting general election to Provincial Assembly on the ground that he was not duly educated person---Petitioner had pleaded that Sanad held by the petitioner as issued by Darul Uloom was equivalent to M.A. Degree; that said Darul Uloom was affiliated with Wafaq-ul-Madris, a recognized institution and that petitioner was a competent person duly qualified to contest the election---Sanad relied upon by the petitioner was issued by Darul Uloon and not the Wafaq-ul-Madaris which was an institution recognized for the purpose of the Higher Education Commission---No document was evidencing the fact that said Darul Uloom was affiliated with Wafaqul Madaris in the year 1995 when petitioner claimed to have obtained the Sanad---Election Tribunal having decided the matter in accordance with relevant provisions of law, and validly exercising its jurisdiction and authority, its judgment could not be interfered with.

Chaudhry Fawad Hussain for Petitioner.

Pir Liaqat Ali Shah, A.-G., N.-W.F.P. on pre-admission notice.

Sarwar Khan, Special Attorney for Respondent No. 1.

P L D 2008 Peshawar 19

Before Tariq Pervez Khan, C. J. and Raj Muhammad Khan, J

IMTIAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.379 of 2005, decided on 14th November, 2006.

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

----S. 9(c)---Appreciation of evidence---Inferential evidence---Benefit of doubt---Case of prosecution was that when Police party on prior information went to the spot they found cartons and packets in question lying on foot-path; that man standing nearby started running who was allegedly chased caught and that man was accused---One of the prosecution witnesses had admitted that except for the fact that accused ran away from the spot, he could not make any connection of the cartons with accused during his entire investigation---Said witness could not produce any direct or indirect evidence against accused through which he could connect accused with the said cartons---Other prosecution witness had also stated that there was no evidence to connect accused with the offence---Where prosecution had failed to bring on record any nexus or link of the narcotics recovered from accused; and when his apprehension was from a distance of one furlong in a thickly populated area; and when no site-plan was prepared; whereas it was so required in the case, so that a court could determine as to under what circumstances accused was arrested, the mere fact that someone present close to the cartons had run away or tried to run away would be only inferential evidence whereas no conviction could be recorded on inferences---Benefit of doubt was extended to accused and conviction and sentence awarded to him by the Trial Court were set aside and he was acquitted.

Noor Alam Khan for Appellant.

Syed Muhammad Shakeel for the State.

Date of hearing: 14th November, 2006.

P L D 2008 Peshawar 21

Before Muhammad Alam Khan, J

JUMA GUL---Petitioner

Versus

YAQEEN KHAN---Respondent

Civil Revision No.393 of 2007, decided on 18th January, 2008.

Tort---

----Malacious prosecution---Suit for damages---F.I.R. under S.337-F, P.P.C. was lodged by defendant against plaintiff---Case was registered against plaintiff, challan was submitted to the court and court started recording of evidence, but said case was withdrawn by defendant---Defendant who sustained injuries from the hands of plaintiff was medically examined and prosecution started producing evidence, which in the meantime resulted in acquittal of plaintiff, based on the statement of defendant---Acquittal of plaintiff was based on the withdrawal of defendant from the prosecution launched against the plaintiff---Even otherwise, if the acquittal or discharge was on merits, that would not confer right on the plaintiff to sue for damages on the basis of malicious prosecution---Proof in civil cases and in criminal cases was different and while suing for malicious prosecution, the complainant had to prove independently the grudge, malice and ulterior motives on the part of the complainant, which was lacking in the present case---Plaintiff having been acquitted on the basis of compromise, it would not make plaintiff entitled to the damages claimed by him---Courts below had correctly appreciated evidence and the, data available on the record---Revision Petition was dismissed in circumstances.

Khawaja Muhammad Naseem v. Shafiqur Rehman 1996 CLC1460; Qurban Ali v. Sanjar Khan PLD 1963 (W.P) Kar. 155 and Sadaruzzaman v. The State 1990 SCMR 1277 ref.

Petitioner in person.

Nemo for Respondent on pre-admission notice.

P L D 2008 Peshawar 24

Before Muhammad Alam Khan, J

AHMAD DIN---Petitioner

Versus

Mst. GUL ZEBA and others---Respondents

Review Petition No.30 of 2007 in Civil Revision No.467 of 2006, decided on 18th January, 2008.

Civil Procedure Code (V of 1908)---

----S. 114 & O.XLVII, R.1---Review petition---Scope---Right of appeal and revision petition were fully exhausted by the petitioners and in support of the respective contentions of the parties arguments were advanced and case-law cited, which were duly incorporated in the judgment, were taken into consideration by the court while deciding revision petition filed by the petitioner---In support of review petition against judgment passed in revision, nothing was available on record that what new material emerged warranting the filing of review petition under S.114, C.P.C.---Review would be competent on discovery of new and important matter or evidence which, after the exercise of due efforts or diligence, was not in the knowledge of a party and that too, if the same was in existence at the time when the lis was sub judice before a court and at the time of its decision---Review jurisdiction would not be applicable to a case if the important material or evidence had come into existence after the matter was decided by a court---Party would also show to the court that he was never negligent and the new material discovered must have a direct nexus with the matter under review, which if taken into consideration, would directly affect the judgment or order under review---If there was some mistake or error apparent on the record of the case that could also be a ground for review---No such new material had been brought on record to warrant interference in review jurisdiction of the High Court---Review petition being without merit was dismissed, in circumstances.

Petitioner in person.

Said Wali for Respondents.

P L D 2008 Peshawar 28

Before Syed Yahya Zahid Gillani, J

BAHAR ALI and 2 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1295 of 2007, decided on 4th February, 2008.

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

----S. 497---Anti-Terrorism Act (XXVII of 1997), S.21-D(2)(3) & (4)--Penal Code (XLV of 1860), Ss. 365-A/342/171/148/149---Bail, grant of---Offences of highway robbery, kidnapping and abduction for ransom---Proof---Heinous nature of an alleged crime alone, can never be a hauler to expose an accused to adversities, because in all eventualities, presumption of innocence of accused is enormously paramount---Difficulties faced by investigators of such crimes that have emerged as menace, may be true and correct, but fundamental notions of justice cannot be disfigured on those grounds because innocent person, if involved, the only rescuer for him is the principle of innocence of accused and proof against him beyond shadow of doubt---Reasonable grounds for believing that the accused persons were guilty of non-bailable offence, as envisaged in proviso to S.21-D(2), Anti-Terrorism Act, 1997 were lacking in the present case---No other barring elements indicated in Cls.(3) & (4) of S.21-D of the Anti-Terrorism Act, 1997 had been pointed out by complainant nor argued by the counsel for the State---Bail application of accused persons was allowed by the High Court.

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

----S. 497---Anti-Terrorism Act (XXVII of 1997), S.21-D(2)(3) & (4)---Penal Code (XLV of 1860), Ss.365-A/342/171/148/149---Bail, grant of---Offences of highway robbery, kidnapping and abduction for ransom---Standard of proof---Complainant and investigator of the present case constantly and considerably remained involved in zealous and dynamic activity to expose the wrong doers in the case, but to bring on record tangible evidence to connect an accused with the alleged part of his crime is also an essential elementary duty of the investigator---Both complainant and the investigators though were not law experts and it may be true that they were not aware of required scale of proof, but it was equally true that lack of legal knowledge of complainant or scanty legal knowledge of investigating officer could not be a convincing excuse to hamper application of canons of safe administration of justice, in criminal cases---Prosecution, in such circumstances, sometime may be the sufferer, but the robe of justice could allow no Court to forget the principles relating to innocence of accused, till his guilt was proved beyond doubt, and only in the case of availability of such a standard of proof, the heinousness of crime may add more in his sentence, at the end of trial, if required in the interest of justice, keeping in view the facts and circumstances of a particular case--- Reasonable grounds for believing that the accused persons were guilty of non-bailable offence, as envisaged in proviso to S.21-D(2), Anti-Terrorism Act, 1997 were lacking in the case---No other barring elements indicated in Cls. (3) & (4) of S.21-D of the Anti-Terrorism Act, 1997 had been pointed out by complainant nor argued by the counsel for the State---Bail application of accused persons was allowed by the High Court.

(c) North-West Frontier Province Prosecution Service (Constitution, Functions and Powers) Act (I of 2005)---

----Preamble, Ss. 3 & 8---Establishment of Prosecution Institution for achieving speedy justice and matters ancillary or incidental thereto---Workable mechanism to improve investigation system as a whole, as well as investigation of individual cases at District level---Object of creation of the office of "Chief Prosecutor" in the Province---Duty of S.H.O. and District Public Prosecutor---Scope and extent.

N.-W.F.P. Prosecution Service (Constitution, Functions and Powers) Act, 2005 (Act I of 2005) has been promulgated on 29th January, 2005 to reorganize and establish a "Prosecution Institution" for achieving speedy justice and matters ancillary or incidental thereto. Its chapter II, pertains to establishment of Prosecution Institution and chapter III enunciates a workable mechanism to improve investigation system as a whole, as well as investigation of individual cases at district level.

The creation of the office of "Chief Prosecutor" in the Province, designated as "Director General of Prosecution", under section 3 of the North-West Frontier Province Prosecution Service (Constitution, Functions and Powers) Act, 2005 with his team of Deputy and Assistant Directors, is not a meaningless scheme. Public exchequer has been burdened to achieve far reaching public welfare aims and objects of improving investigation and removing difficulties of investigating officers through appropriate legal guidance at apt time, who are normally expected to be unaware of legal intricacies, interpretations, as well as guidelines given by the superior courts in various rulings about the standards and required strengths of proof, in order to resist defence attacks successfully. The Director General is now expected to prove worth of "Prosecution Institution" in the minimum possible time by attaining the target of improving standard of investigation in all cases, and especially in the cases like one in hand, by motivating, launching and promoting endeavors through District. Public Prosecutors, with a well oriented check and balance system, so that the cases may successfully face all kinds of scrutinies on the dissection table of qualified and experienced law experts, in courts of law.

S. 8(2) of the North-West Frontier Province Prosecution Service (Constitution, Functions and Powers) Act, 2005 makes a S.H.O. bound to send copy of each F.I.R. of his police station to District Public Prosecutor and it bestows an extraordinary responsibility on District Public Prosecutor to inspect F.I.Rs. and wherever necessary to Suo Motu issue necessary guideline to investigating officer and that would be in the shape of "Direction", to the Head of Investigation. He can also inspect, scrutinize and supervise the whole Investigation process of the cases. While reporting to Government under section 8(6) of the Act, the District Public Prosecutor can highlight lapses of the investigating officer in acute cases of negligence for appropriate departmental level punitive action to promote sense of responsibility and accountability in the investigating officers.

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

----S. 497---Anti-Terrorism Act (XXVII of 1997), S.21-D(2)(3)(4)---Penal Code (XLV of 1860), Ss. 365-A/342/171/148/149---Bail, grant of---Question as to whether the complainant, after seven weeks of the occurrence, correctly nominated the accused persons, was a curious query for the investigator but he had not arranged their identification parade---Proof about ownership of the house pointed out by the complainant where he and other abductees were confined in the basement, was also yet to be brought on record---No judicial or extra-judicial confession of the accused was available on record---Nothing incriminating had been recovered on pointing out by the accused persons nor were abductees recovered from their custody--- Reasonable grounds for believing that the accused persons were guilty of non-bailable offence, as envisaged in proviso to S.21-D(2), Anti-Terrorism Act, 1997, were lacking---No other barring elements indicated in Cls. (3) & (4) of S.21-D of the Anti-Terrorism Act, 1997 had been pointed out by complainant nor argued by the counsel for the State---Bail application of accused persons was allowed by the High Court.

Muhammad Qasim, brother of accused Petitioner.

Ubaidullah Anwar, A.A.-G. and Zahoor Abbas Complainant in person.

Date of hearing: 4th February, 2008.

P L D 2008 Peshawar 35

Before Muhammad Alam Khan, J

REGISTRAR, COOPERATIVE SOCIETIES, N.-W.F.P. PESHAWAR and 3 others---Petitioners

Versus

COOPERATIVE SOCIETY MUHAMMAD AMIN KALLAY through Finance Secretary---Respondent

C.R. No. 49 of 2007 with C.M. No.43 of 2007(M), decided on 28th January, 2008.

Co-operative Societies Act (VII of 1925)---

----Ss. 51 & 70-A---Civil Procedure Code (V of 1908), Ss.9, 115 & O.VII, R.10---Suit for rendition of accounts of loan obtained from co-operative department---Return of plaint---Jurisdiction of the Court---Revision petition---Plaintiff filed a suit for rendition of accounts of the loan obtained by plaintiff from the co-operative department---Civil Court before which suit was filed, after hearing the parties on the point of jurisdiction came to the conclusion that under Ss.51 & 70-A of the Co-operative Societies Act, 1925, Civil Court was bereft of jurisdiction---Civil Court ordered the return of plaint for presenting the same before the proper Court under provisions of O.VII, R.10 C.P.C.---On filing appeal against judgment of the Trial Court, Appellate Court set aside impugned order and remanded the case to the Trial Court with direction to decide the same on merits---Defendants had filed revision against such judgment of Appellate Court, contending that Civil Court lacked jurisdiction in the co-operative matter as the matter involved in the case was the recovery of loan advanced to plaintiff under Co-operative Societies Act, 1925---Validity of contention---Ouster of jurisdiction of the Civil Court had been provided in the sections 51 & 70-A of Co-operative Societies Act, 1925---When there was bar of jurisdiction, the barring statute should be interpreted so as to lean in favour of conferment of jurisdiction on the Civil Court, because the functionaries created under the statute must act within the four corners of their jurisdiction as conferred upon them by the statute---In present case, Co-operative Societies Act, 1925, itself had provided machinery for the redressal of such-like grievances as plaintiff had agitated in the suit before the Civil Court and the plaintiff did not at. all surrender to the jurisdiction of the functionaries created under the Co-operative Societies Act, 1925---In such situation the barring provisions will be attracted ousting the jurisdiction of the Civil Court---Resultantly order of Appellate Court was set aside and that of the Civil Court was restored, directing the return of plaint to plaintiff for presentation to the proper Court.

Abdul Hamid Khan v. Government of West Pakistan and others PLD 1969 Pesh. 324; Mian Muhammad Latif v. Province of West Pakistan PLD 1970 SC 180; Abbassia Cooperative Bank and others v. Hakim Hafiz Muhammad and others PLD 1997 SC 3 and Mst. Atia Khanum v. Messer Saadabad, Cooperative Housing Society Ltd. and others 2002 MLD 209 ref.

Muhammad Khalid, Regional Manager, Frontier Provincial Cooperative Bank Ltd. and Fazal Rahim, Assistant Registrar on behalf of the Petitioner.

Nemo for the respondents (placed ex parte).

Date of hearing: 28th January, 2008.

P L D 2008 Peshawar 40

Before Muhammad Alam Khan, J

RAFIQ-UR-REHMAN---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.185 of 2007, decided on 29th January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 517---Control of Narcotic Substances Act (XXV of 1997), S.9---Superdari of vehicle---Application for custody of car in question on superdari' was rejected---Case of petitioner was that he was owner of the car in ,question and he had given same to arent a car dealer'---Petitioner had placed on record agreement of said dealer, which was an unsigned document which was not signed either by said dealer or by the petitioner---Car in question was a case property in a criminal case, in which huge contraband items were recovered and case was registered under S.9 of Control of Narcotic Substances Act, 1997---Car being a case property which the local police had taken into possession, question of its return would be determined at the time of final hearing of the case and proper order for its custody, would be made under S.517, Cr.P.C.---Local police was directed to arrange for the safe custody of the car till then.

Petitioner in person.

P L D 2008 Peshawar 42

Before Muhammad Alam Khan, J

WAZIR KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No1.1189 of 2007, decided on 1st February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Bail, grant of---Evidence on record had established that at the time of commission of offence accused was 71 years old---Son of accused and certain other residents of Illaqa had produced affidavits to the effect that at time of occurrence, accused was present with them in the mosque offering Zohar prayer; in that they had tried to make out a case for alibi which could not be considered at bail stage, especially when accused had. not taken said plea of alibi before the lower courts or before High Court in the grounds of bail application---Accused had not been attributed any overt act except a role of Lalkara which under the circumstances had made out a case for his bail---Accused was admitted to bail, in circumstances.

Tariq Zia v. The State 2003 SCMR 958; Muhammad Amjad and others v. The State 2004 YLR 1732; Mazhar alias Mazhar Ali v. The State 2007 PCr.LJ 925 and Haji Manzoor Ahmad v. The State 2004 YLR 1409 ref.

Mumtaz Ali for Petitioner.

Muhammad Saeed Khan Shangla, A.A.-G. for Respondents.

Wasil Khan Complainant in person.

Date of hearing: 1st February, 2008.

P L D 2008 Peshawar 45

Before Muhammad Raza Khan, C J

MUHAMMAD KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.41 of 2008 and Criminal Miscellaneous No.1226 of 2007, decided on 3rd March, 2008.

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

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, refusal of---Role of commanding the commission of murder of deceased was assigned to the accused, whereas role of murder by using firearm was attributed to co-accused who was granted bail---Delay of about one hour in lodging F.I.R. was of no material significance because complainant was a lady of advanced age and her brother was killed in her presence---Shock and trauma of a dejected sister could be well imagined---Lady took the dead body of her brother to the Police Station and reported the matter within an hour or so; keeping in view the distance of three or four kilometers and non-availability of transport in such a far flung area, the time so spent, was fully justified---Plea of alibi of accused was not believable because affidavit in that respect was not supported by any other proof---Plea of alibi raised by co-accused, was also doubtful as no document was on record to prove that at the specific time of occurrence, he was on duty as claimed by him---Bail application of accused was dismissed, in circumstances.

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

----S. 497(5)-Penal Code (XLV of 1860), S.302/34---Cancellation of bail, application for---Trial Court while granting bail to co-accused had gone deep into the facts and the documentary evidence with regard to his plea of alibi, which was not free from doubt, but keeping in view the principle that once bail was granted, certain special circumstances would be required for its cancellation---Ingredients required to be established for recalling the concession of bail, having not been fulfilled in the case, mere assertion that co-accused was threatening the complainant and her family, was not enough as it had not been substantiated---Bail already granted to co-accused, could not be recalled despite the fact that strong reasons were available for his detention---Fact that role of mere command of murder was attributed to accused, who could otherwise be considered for the concession of bail, however, same could be refused for the reason that he, being in a commanding position, had no reason to order the killing of the deceased---Motive, being hidden in the mind of co-accused, would not justify the action of doing away with the life of an innocent person -No cause existed to interfere with impugned order, whereby co-accused was granted bail---Request of complainant for cancellation of bail of co-accused, particularly when the trial had commenced could not be granted as propriety demanded that present position should be maintained for expeditious conclusion of the trial---Trial Court was advised to conclude the trial within specified period.

Muhammad Qasim Khan Khattak for Petitioner.

Ubaidullah Anwar, A.A.-G. for the State.

Date of hearing: 3rd March, 2003.

P L D 2008 Peshawar 49

Before Syed Yahya Zahid Gilani, J

SAHIB KHAN---Petitioner

Versus

SAADULLAH KHAN and another---Respondents

Criminal Revision No.44 of 2007, decided on 15th February, 2008.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4, 5 & 9---Criminal Procedure Code (V of 1898), Ss.203 & 204---Illegal dispossession---Dismissal of complaint---Revision had been directed against the order of the Trial Court whereby complaint against dispossession from land in question by ploughing said land, was dismissed---Contention of petitioner was that once accused/respondents were summoned under S.204 of Cr.P.C., the Trial Court had no jurisdiction to dismiss the complaint under S.203 Cr.P.C.---Validity--- Provisions of S.9 of Illegal Dispossession Act, 2005 had clearly indicated that unless otherwise provided in the said Act, the provisions of the Code of Criminal Procedure, would apply to the proceedings under said Act---Provisions of Criminal Procedure Code though were applicable, but were subject to the general scheme of Illegal Dispossession Act, 2005, which was a special law had also introduced special modes of procedure---Procedure in S.5(1) of Illegal Dispossession Act, 2005 was special one which had empowered the court to get conducted the special investigation, within the stipulated period of fifteen days---Court, after receipt of the investigation report, would apply its mind whether to further proceed or not with the matter under S.5(2) of Illegal Dispossession Act, 2005---Consequential power of the court also would flow out whether to hold the complaint maintainable or not---Requirement of attendance of accused for hearing before proceeding with the Trial, would be more appropriate as it would be in line with the principle of 'Audi alteram partem'; in that manner the court would more safely_ and appropriately decide the important issue of proceeding further with the trial or not---Procurement of attendance of the accused, was not in violation of law---Investigation report had revealed that trees were on the land in dispute and if ploughing was done as alleged by the petitioner, that was done in another Khasra number---No offence as per allegations in the complaint thus appeared to have been committed to proceed further for trial in the complaint---Dismissal of complaint, would save precious court time and would also save the parties from unnecessary financial burden---Petition was dismissed.

Petitioner in person.

P L D 2008 Peshawar 53

Before Syed Yahya Zahid Gilani, J

SALAH-UD-DIN KHAN, S.H.O. and 2 others---Petitioners

Versus

NOOR JEHAN and another---Respondents

Criminal Miscellaneous Quashment Petitions Nos.52 and 53 of 2007, decided on 12th February, 2008.

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

---S. 22-A---Powers of Justice of Peace---Paramount question to be decided under S.22-A Cr.P.C., always was whether commission of a cognizable offence had been alleged or not.

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

----S. 154---Recording of First Information Report---Mandatory for the police to record first information report under S.154 Cr.P.C., if a cognizable offence was alleged---Superior Courts had time and again reiterated the requirement of strict compliance of S.154 Cr.P.C.---Refusal of registration of F.I.R. when commission of an cognizable offence was reported to the police, was a sheer neglect on the part of concerned police officer/official in performance of his duty, which must expose him to departmental disciplinary action by the concerned authorities.

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

----Ss. 22-A, 25 & 154---Powers of Justice of Peace and registration of F.I.R.---When Ss.22-A(6)(i) & 154 Cr.P.C. were read in juxtaposition, the only conclusion emerged that the Ex-officio Justice of Peace had been given supervisory administrative jurisdiction over Police Officers/Officials relating to registration of F.I.R. and in a case where Ex-officio Justice of Peace found that the incident of cognizable offence was reported to police, but no F.I.R. was registered, he was required by law to issue a direction for registration of case; and in case of non-compliance of his order, concerned Police Officer/Official would expose himself to the consequent legal action-Section 22-A(6) had provided authority to Justice of Peace to issue appropriate direction to police authorities on a complaint regarding non-registration of F.I.R.

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

----Ss.22-A(6), 25, 154, 169 & 173-Scope of Ss.22-A & 25, Cr.P.C.---Registration of F.I.R.---Registration of F.I.R. on the one hand was the compliance of mandatory provisions of S.154 Cr.P.C., but on the other hand it would not mean that the person nominated as accused therein was the actual offender and guilty; it only sets the law in motion for investigation---In the prevailing system, after registration of F.I.R., the investigation wing of the Police Station would investigate into the matter to collect pro and contra material to reach at conclusion necessary for preparation of final report under S.173 Cr.P.C., remaining in the four corner of law and justice and in that process the power under S.169 Cr.P.C., that accused could or could not be arrested immediately or that he could be placed in column No.2, if the facts of the case so demanded, could be exercised as a normal case---If the complainant was found to have lodged a false report, a case could be registered against him under S.182 P.P.C. or any other action could be initiated against him according to law---Despite that registration of F.I.R. regarding a cognizable offence could not be refused, because no one was exempted in the scheme of law codified under S.154 Cr.P.C. including the Police officers/officials---Section 154 Cr.P.C. secured the inherent right of hearing of a citizen and it bestowed a sacred duty upon State machinery established in every Police Station to register the cognizable grievance of citizen---Frequent violation of S.154 Cr.P.C. in the Police Station, forced the Legislature to introduce S.22-A(6) and S.25 Cr.P.C. in Criminal Procedure Code to provide a responsible forum at the doorstep of citizens for rescue against unlawful declines relating to registration of F.I.Rs. in cognizable cases.

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

----Ss. 561-A & 22-A---Quashing of order---Allegations of complainant in the application moved before Ex-officio Justice of Peace under S.22-A, Cr.P.C., contained allegations constituting cognizable offence which were rightly accepted through impugned order for registration of F.I.R.---Such order, in circumstances was unexceptionable and needed no interference in exercise of inherent powers of High Court under S.561-A, Cr.P.C.

Petitioners in person.

P L D 2008 Peshawar 57

Before Raj Muhammad Khan, J

SHAMSHAD IQBAL and another---Petitioners

Versus

SHEHZAD KHAN and another---Respondents

Criminal Miscellaneous Quashment Petition No.23 of 2007, decided on 17th March, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 512 & 366---Penal Code (XLV of 1860), Ss.365-A/347---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.20---Quashing of case---Joint. challan was submitted against two accused persons, and one of accused who was not charged by the complainant as well as by alleged abductee in their statements before the Trial Court, was acquitted---Other accused in the case, who had absconded was also exonerated and discharged from the case in absentia, despite the fact that alleged abductee had charged said absconding, accused for kidnapping him---Proceedings under S.512 Cr.P.C. which were being carried out were considered as abated---Unwarranted observations were made by the Trial Court in case of said absconding accused---Though, the law as contained in S.366 Cr.P.C., could not invalidate a judgment delivered by any criminal court by reason only of the absence of any party, but since an absconding accused was considered to be fugitive from the law, courts would lose some of their normal rights granted by procedural as well as by substantive law-If such policy of delivering judgments, particularly in criminal cases, was allowed to follow, it would not only sidetrack the Investigating Agency from interrogation of accused leaving culprits to go scot-free, but would also encourage culprits to abscond from the clutches of law and courts---Presumption from the text and tenor of impugned judgment was that neither the complainant nor the State Counsel were heard by the Trial Court in the case against absconding accused---Impugned judgment was set aside to the extent of absconding accused and case was remanded to the Trial Court with the direction to reconsider the case against absconding accused after hearing applicant and State Counsel and decide case afresh in accordance with law.

Petitioner in person.

Nemo for Respondent No. 1.

Tariq Aziz Khan Baloch, D.A.-G. for the State.

Date of hearing: 17th March, 2008.

P L D 2008 Peshawar 59

Before Muhammad Alam Khan, J

ASHFAQ AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1 of 2008, decided on 22nd February, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9---Bail, grant of---Further inquiry---Accused, who was given lift in the car in which some contraband Charas was allegedly being smuggled, was not in the know of the presence of the contraband Charas in the car---On seeing the police party co-accused who was driving the car first tried to flee away with the car, but seeing no chances of his escape, parked the car on the side of the road and fled away-If that confession of accused was . taken into consideration in its entirety which was exculpatory in nature, same would not tend to connect accused with the commission of offence---Co-accused having run away, but accused remained sitting in the car, co-accused could be presumed to have the conscious knowledge of the contraband lying in the car---Conscious possession of accused had to be thrashed out at the time of trial, whether it had made out a case of further inquiry---Prosecution had yet to prove that accused was in any way linked with absconding co-accused---Direct conscious possession had to be shown at the time of trial by the prosecution---Direct link of accused with said crime as well as with co-accused, had also to be established by the prosecution at the time of trial---Accused was admitted to bail, in' circumstances.

Akhtar Ali v. The State 2005 PCr.LJ 1947; State through Deputy Director Anti-Narcotics Force Karachi v. Syed Abdul Qayum 2001 SCMR 14 and Gul Zaman v. The State 1999 SCMR 1271 ref.

Petitioner in person through his father Arab Shah.

Alam Zaib Khan, Dy. A.-G. for the State.

Date of hearing: 22nd February, 2008.

P L D 2008 Peshawar 63

Before Syed Yahya Zahid Gilani, J

SHAH DARAZ KHAN---Petitioner

Versus

MUHAMMAD JABBAR KHAN and 2 others---Respondents

Criminal Miscellaneous Quashment Petition No.1 of 2006, decided on 15th February, 2008.

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

----S. 169---Penal Code (XLV of 1860), S.302/34---Release of accused when prosecution evidence deficient---Scope---Interpretation of S.169, Cr.P.C.---Provisions of S.169, Cr.P.C. simply empowered an Investigating Officer to release the person in custody, on his executing a bond, if the Investigating Officer, would reach the conclusion that sufficient evidence or reasonable ground was not available to justify forwarding of accused to a Magistrate---Words "there was not sufficient evidence" or "a reasonable ground of suspicion" in S.169, Cr.P.C., were not ambiguous at all---Investigating Officer could release an accused in his custody when sufficient evidence was lacking or there were no reasonable grounds of suspicion against accused---Said power was not identical to the power of preponderance of evidence to be exercised by Trial Court---When there was a set of prosecution evidence on one side and set of defence evidence on the others side trial Court was empowered to weigh both sets of evidence on judicial scale to rely on one and discard the other---Theme of S.169, Cr.P.C. did not admit any such power of Investigating Officer to evaluate defence evidence of an accused; and prefer it over the prosecution evidence to declare him innocent---Evidence available to prosecution in the case was altogether "sufficient evidence" in ordinary meaning of the words used in S.169, Cr.P.C.---Set of defence evidence, however did not possess such a cast iron strength to straightaway stultify the volume of prosecution evidence; it could safely be concluded that Investigating Officer had travelled beyond the scope of his jurisdiction under S.169, Cr.P.C. in declaring accused innocent because he could not brush aside the sufficient prosecution evidence available on record.

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

----Ss. 561-A & 169---Penal Code (XLV of 1860), S.302/34---Inherent power of High Court---Quashing of action of Investigating Officer---Scope---Inherent power of High Court under S.561-A, Cr.P.C., was wide enough and the limiting parameter was "the justice"---Basically S.561-A, Cr.P.C., did not create or bestow any new power on the High Court---Inherent power described in S.561-A, Cr.P.C. was the existing integral power that could never be segregated from it---Investigation carried out under provisions of Criminal Procedure Code, 1898 was the pre-requisite of the trial of criminal case in a Court; though it was a subservient process, but it was an integral inceptive part of the main judicial process that accomplished in court in shape of trial---Being immensely related to the process of the court, abusive exercise of jurisdiction under S.169, Cr.P.C. by the Investigating Officer, transgressing the norms of justice, was challengeable before the High Court under S.561-A, Cr.P.C. for exercise of corrective inherent jurisdiction, whenever it was necessary and justified---Action of Investigating Officer, declaring accused innocent, was extremely arbitrary and reeking mala fide, because he had ignored the prosecution case as if he was blindfolded towards it and microscopically focused on defence plea, to extend benefit to the accused---Plea of accused that in view of impugned action of Investigating Officer, complainant could be directed to file a private complaint, could not be accepted---If impugned action of Investigating Officer was, perverse, arbitrary and capricious, said plea of accused could have force, but in the prevailing circumstances, it would amount to unlawfully depriving the complainant of his legitimate right to avail State sponsored prosecution---High Court in exercise of its powers under S.561-A, Cr.P.C. set aside impugned action of Investigating Officer in circumstances.

Petitioner in person.

Respondent No.1 in person.

Tariq Aziz Baloch, D.A.G., for Respondent No.2 (the State).

Respondent No.3 (in person).

Date of hearing: 15th February, 2008.

P L D 2008 Peshawar 69

Before Syed Yahya Zahid Gilani, J

MEHBOOB---Petitioner

Versus

SAJJAD AHMAD and another---Respondents

Criminal Miscellaneous No.392 of 2007, decided on 26th February, 2008.

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

---S. 497---Penal Code (XLV of 1860), Ss.324/452/34---Bail, grant of---Assailants having not been identified by the complainant due to darkness at the time of occurrence, none was arraigned by name in the F.I.R.---Complainant and his brother had subsequently in their supplementary statements charged some persons including the present accused for the commission of the offence, who had left a woollen "Chaddar" in their house at the time of incident---Accused had been nominated in the F.I.R. on the basis of the services of a detective sniffer dog, which had pointed out the house of accused---If the sniffer dog had pointed out a house, it had raised only a suspicion that the culprit remained in that house---Such pointing out by the sniffer dog had only created a ground for the Investigating Officer to further investigate about the actual culprit and he would have to collect more evidentiary data for trial to prove the case against a particular person in the Court beyond shadow of doubt---Identification parade of the suspected persons through the sniffer dog under the supervision of a Judicial Magistrate could also be arranged in this behalf as a second step before further investigation---Investigating Officer had not collected more substantive, corroborative or circumstantial evidence against the accused and his involvement in the case, therefore, needed further inquiry---Accused was admitted to bail in circumstances.

Wikipedia; New Encyclopedia Britannica Vol. 4, p.149 and Encyclopedia Americana International Edition, Vol. IX, pp.234-235 ref.

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

----S. 156---Investigation into cognizable case---Use of sniffer dogs in investigation---Feasibility and guidelines---In the new millennium when the research in different areas of life has progressed to peaks, the oldest servant of human being created by God in the shape of dog, if can better serve in detection of criminals and eradication of crimes, there is no reasons to discard this facility---Some reservations about the modalities pertaining to its use existed which require necessary guidance---Status of evidentiary value of detection done by a sniffer dog is required to be determined---If the standard of proof for conviction of an accused in a Court of law is beyond shadow of doubt, the inception of investigation in criminal cases is always based on suspicion---Where the culprits are not known, Investigating Officer has to take start on the basis of presumptions and he has no other choice but to include suspects in the investigation---If a sniffer dog is used in a blind crime and the dog points out a particular house, it does not mean that each and every person or a person chosen by complainant residing in that house, is the actual culprit---When the sniffer dog points out a house its duty ends, but at the very moment the duty of Investigating Officer starts to further investigate the case and collect more evidence to inculpate a particular person, and further corroborative evidence is required to lay hands on a particular person as accused---Moreover, the process of detection by a sniffer dog, even if sponsored by the complainant, must be supervised and managed by the Investigating Officer, who must try to ensure compliance of S.103, Cr.P.C. in letter and spirit, calling upon two or more inhabitants of the locality to watch the process of search and detection by the sniffer dog, as far as it is possible---Such is highly essential to protect the rights of innocent persons, falling in the margin of error of the sniffer dog---Besides all that, Investigating Officer must also get it ascertained and bring on record that the sniffer dog has been properly trained by a recognized firm, as it is hyper-technical job and different breeds of dogs are trained for different jobs---Use of such recognized mode of detection all over the world, especially in the developed countries, cannot be denied to citizens of this country, but this activity should be streamlined in a way that neither innocent persons are forced to face ordeals, nor helpless victims are deprived of modern techniques of investigation; it would be more appropriate if the State sponsored Organization in Police Department is set up for this purpose to provide expert services to Investigating Officers, when and where needed.

Wikipedia; New Encyclopedia Britannica Vol. 4, p.149 and Encyclopedia Americana International, Edition, Vol. IX, pp.234-235 ref.

Nemo for Petitioner.

Muhammad Wajid Khan, D.A.-G. for the State.

Date of hearing: 26th February, 2008.

P L D 2008 Peshawar 76

Before Hamid Farooq Durrani and Syed Musaddiq Hussain Gilani, JJ

NIAZ MUHAMMAD---Petitioner

Versus

DISTRICT RETURNING OFFICER/DISTRICT AND SESSIONS JUDGE, PESHAWAR and 6 others---Respondents

Writ Petitions Nos.116 and 67 of 2008, decided on 7th February, 2008.

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

----S. 12---Representation of the People (Conduct of Elections) Rules, 1977, R.7(1)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Academic qualification of candidate---Nomination papers, acceptance of---Issuance of Form-V under R.7(1) of Representation of the People (Conduct of Elections) Rules, 1977 by Returning Officer showing petitioner's name as contesting candidate with election symbol---Non-filing of appeal by respondent before Election Tribunal against acceptance of petitioner's nomination papers---Enquiry into matter of petitioner's qualification conducted by Returning Officer on directive of Election Commission---Returning Officer in his report found petitioner's degree to be fake and dropped his name from original Form-V by issuing amended one---Validity---No objection qua genuineness of degree held by petitioner had been raised at relevant time of scrutiny of nomination papers---Enquiry proceedings, after issuance of original Form-V, had been taken without notice to petitioner, who had been condemned unheard---Returning Officer or District Returning Officer, could not interfere in nomination of a candidate after issuance of Form-V---Returning Officer or District Returning Officer had no jurisdiction to entertain any objection/application regarding disqualification of a candidate, whose nomination papers were scrutinized, accepted and not challenged before Election Tribunal---High Court declared impugned enquiry proceedings conducted after issuance of original Form-V as without lawful authority and of no legal effect upon rights of petitioner.

Ghulam Mustafa Jatoi's case 1994 SCMR 1299 rel.

Naveed Maqsood Sethi for Petitioner.

Sharifullah Assistant Election Commissioner and Muhammad Ayaz Afridi Respondent No.3 in person.

Date of hearing: 7th February, 2008.

P L D 2008 Peshawar 80

Before Muhammad Alam Khan, J

RASHID KHAN---Petitioner

Versus

GHULAM RASOOL---Respondent

Civil Revision No.119 of 2007, decided on 15th February, 2008.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 24 & 25---Civil Procedure Code (V of 1908), O.XX, R.14---Pre­emption suit, decree in---Deposit of sale price of property fixed in decree---Withdrawal of part of sale price by pre-emptor after acceptance of his appeal by Appellate Court reducing sale price fixed in decree---High Court in revision enhanced sale price to amount as decreed by trial Court---Non-deposit of balance sale price by pre-emptor within thirty days of passing of order by High Court---Effect---Such failure of pre-emptor had rendered the decree to be a nullity in eyes of law and there was no subsisting decree in field to be executed.

Petitioner in person.

P L D 2008 Peshawar 84

Before Hamid Farooq Durrani and Shahji Rehman Khan, JJ

MUHAMMD IBRAHIM QASMI---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary and 15 others---Respondents

Writ Petition No.217 of 2008, decided on 27th February, 2008.

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

----Ss. 38 & 39---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application for re-counting/re-examination of rejected votes---Rejection of such application by Returning Officer---Validity---Entire process of count of polls and consolidation of result had to be undertaken by Polling Staff and Returning Officer---Returning Officer was legally obliged to examine and count ballot papers excluded by Presiding Officers from count at close of polls---Ballot papers so examined would be credited to the lot of a candidate to whom those were polled, provided same were found to have been wrongly rejected---Such entire process had to be completed before preparation of statement of consolidated results---High Court struck down impugned order of Returning Officer while directing him to check/examine/re-count rejected votes in presence of candidates or their authorized polling agents.

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

----Preamble---Representation of the People Act, 1976 being a special statute would demand strict compliance of its provisions as right to cast vote or contest election is not a civil right, but is provided through a special statute.

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

----Arts. 199 & 225---Refusal of Returning Officer to do an act, which he was required by law to do---Constitutional petition---Maintainability---Jurisdiction of High Court in such case could be conveniently exercised.

Makhdoom Javed Hashmi's case PLD 2989 SC 396 ref.

Ghulam Mustafa Jatoi's case 1994 SCMR 1299 rel.

Abdul Latif Yousafzai and Muhammad Arif Khan for Petitioner.

Qazi Muhammad Anwar for Respondent No.5.

P L D 2008 Peshawar 88

Before Syed Yahya Zahid Gillani and Muhammad Alam Khan, JJ

Hafiz HAMAD ULLAH FAROOQ---Petitioner

Versus

ABDUL QAYYUM and 6 others---Respondents

Writ Petition No.115 of 2008, decided on 14th February, 2008.

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

----S. 14-Constitution of Pakistan (1973), Art.199---Constitutional petition---Disqualification of candidate--Petitioner had alleged that respondent was not qualified to be elected because he did not possess required qualification and that sanad on basis of which respondent was contesting election, having been issued by an unrecognized Deni Madrassa he was debarred from contesting election---Validity---Petitioner did not raise such objection on the nomination papers of respondent at the time of scrutiny by the Returning Officer and failed to file a petition before the Election Tribunal specially constituted for the hearing of objection petitions against acceptance and rejection of nomination papers---Very short time was left for the election campaign and the whole exercise of campaign had already taken place involving all kinds of expenditures and human efforts---Ballot papers had already been printed and delivered, it would, in circumstances be highly inappropriate at such belated stage to exercise constitutional powers and stop respondent from taking part in general elections as it would also amount to deprive his voters to exercise franchise in favour of a candidate of their choice--Constitutional petition was dismissed in circumstances.

Election Commission of Pakistan v. Javed Hashmi and others PLD 1989 SC 396 ref.

Petitioner No.1 in person.

Muhammad Tahir, Special Attorney for Respondent No.1.

P L D 2008 Peshawar 90

Before Said Maroof Khan and Muhammad Alam Khan, JJ

Maulana ATTA-UR-REHMAN---Petitioner

Versus

AL-Hajj SARDAR UMAR FAROOQ MIANKHEL and 11 others---Respondents

Writ Petitions Nos.236 and 254 of 2008, decided on 13th March, 2008.

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

----S. 39(6)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Re-counting of votes---Approbation and reprobation, principle of---Petitioner, a contesting candidate had challenged order passed by the returning Officer ordering re-counting of the entire votes polled in the constituency concerned---Contention of petitioner was that once the results were consolidated pursuance to the statements of counts submitted by the Presiding Officers to the Returning Officer, the returning Officer would become functus officio and he would have no jurisdiction to order the recounting/re-checking of votes---Validity---Under provisions of S.39(6) of Representation of the People Act, 1976, Returning Officer had the jurisdiction to order the re-counting, especially when there were allegations that the consolidation processes were not made in presence of the candidates or their agents---Once the Returning Officer, was satisfied about the genuine objections of the respondent, he could pass impugned order which was well within the jurisdiction of the Returning Officer---When the petitioner participated in the re-counting for four days and the recount of 181 polling stations were carried out, he could not say that process of recounting, was without jurisdiction by the Returning Officer on the principle of approbation and reprobation---Once the Returning Officer had passed an order of re-counting, he was under the law to have completed the process of re-counting and could not withhold/stop the process by a subsequent order passed by the Returning Officer.

Umer Hayat v. Azad Government of the State of Jammu and Kashmir through Chief Secretary and 3 others 1999 PLC (C.S) 93; Abdul Qadir v. Abdul Karim through Chief Secretary and 4 others 1999 PLC (C.S.) 947; Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139 and Said Ahmad Khan v. Akram Khan and 3 others PLD 1989 Pesh. 201 ref.

S. Masaud Kauser, Bat-at-Law for Petitioner.

Abdul Latif Yousafzai for Respondents.

Date of hearing: 22nd March, 2008.

P L D 2008 Peshawar 95

Before Raj Muhammad Khan and Zia-ud-Din Khattak, JJ

LIAQ ZAMAN and another---Petitioners

Versus

FAZAL RAHMAN and 2 others---Respondents

Writ Petition No.727 of 2005, decided on 30th April, 2008.

Civil Procedure Code (V of 1908)---

----O. VII, R. 2---Oaths Act (X of 1873), Ss.9 & 10---Qanun-e-Shahadat (10 of 1984), Art.163---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of amount---Deciding case on oath---Plaintiff during proceedings submitted application for deciding the case on oath---Defendant, however, declined said offer of plaintiff and requested that plaintiff should be asked to prove his case---Trial Court accepted application of plaintiff and vide order allowed plaintiff to take oath on the Holy Qur'an in support of his claim---Revision filed by defendant against said order of the Trial Court having been dismissed, defendant had filed constitutional petition---Validity---Oaths Act, 1873, provided that offer and its acceptance were must and were also the relevant ingredients for deciding the case on oath, while Art.163 of the Qanun-e-Shahadat, 1984 envisaged that when the plaintiff would take oath in support of his claim, the Court, on the application of plaintiff, would call upon the defendant to deny the claim on oath---Defendants having declined the offer of decision of the case on oath, court should have asked defendant to adduce evidence in support of his claim, but the court did not do so and instead allowed the plaintiff to take oath on the Holy Qur'an, which otherwise was not permissible under Shariah-Impugned order of the two courts below were set aside and case was remanded to the Trial Court for decision on merits.

Muhammad Safdar Khan for Petitioners.

Nemo for Respondents: Ex parte.

Date of hearing: 30th April, 2008.

P L D 2008 Peshawar 97

Before Muhammad Alam Khan, J

SHER AHMAD KHAN and 4 others---Petitioners

Versus

SARDAR KHAN, and 63 others---Respondents

Civil Revision No.49 of 2004, decided on 7th February, 2008.

Partition Act (IV of 1893)---

---S. 2---Specific Relief Act (I of 1877), Ss.42 & 54---West Pakistan Land Revenue Act (XVII of 1967), S.172---Suit for partition, declaration and perpetual injunction---Question of jurisdiction of the court--Determination of---If the land was agricultural, then the partition of the same was exclusively amenable to the jurisdiction of the Revenue Court and the jurisdiction of the civil court in view of S.172, West Pakistan Land Revenue Act, 1967 was barred which proposition, however, was subject to one exception that if the agricultural land would lose its character and would become building site or commercial area, then the civil court would have jurisdiction to entertain the suit with respect to its partition---In the present case, two suits, one for partition and the other for declaration, were pending in two different Courts Appellate Court was bound to entrust the same to one court for joint trial---Whether the land or its major portion was covered by abadi or the same was exclusively agricultural land, was a spot related question, which could be determined by the Trial Court after the appointment of a Local Commission who, after visiting the spot, would be in a position to determine the nature of the property---None of the courts below had taken into consideration such important aspect of the case and the parties traversed the court premises for their genuine rights for sufficiently long time---Impugned orders of the two courts below were set aside by the High Court and case was remanded to the Trial Court with the direction to appoint a Local Commissioner and to re-determine the question of jurisdiction.

Sher Adat Khan, Spl. Attorney for Petitioners.

Respondents: Ex parte.

Date of hearing: 7th February, 2008.

P L D 2008 Peshawar 100

Before Syed Yahya Zahid Gilani, J

SHAFIQ AHMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No.176 of 2007, decided on 24th March, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 493, 512 & 439---Qanun-e-Shahadat (10 of 1984), Arts. 150 & 151---Penal Code (XLV of 1860), S.302---Application for declaring witness as hostile---Qatl-i-Amd of deceased was reported by his widow complainant; her statement was also recorded under S.512, Cr.P.C. but complainant, allegedly narrated altogether a different story as a prosecution witness in the Court---Brother of deceased, who was prosecution witness, applied to the Trial Court for declaring complainant as won over/hostile witness and sought consent of the Court for her cross-examination by the prosecution---Said application having been dismissed by the trial Court, applicant had filed revision petition against the same---Scope--Public prosecutor was the incharge of prosecution in criminal trial--Public Prosecutor, in the present case, did not request the trial Court to declare complainant/prosecution witness hostile when she was examined and cross-examined--Statement of applicant/brother of deceased was recorded in the same Court next to complainant and applicant also did not move application on the same day to get complainant declared hostile and cross-examined, but he moved application in that respect after three months---Applicant/brother of deceased was a witness only and was not one of the legal heirs of the deceased, in presence of his widow and children according to Islamic Sharia---Applicant had no "Locus Standi" to apply for consent of the Trial Court to allow cross-examination of the complainant/widow of deceased in terms of Arts. 150 and 151 of Qanun-e-Shahadat, 1984---Grant of the permission prayed was in the discretion of the Trial Court, but discretion was to be exercised in a judicious manner---High Court declined to subscribe to the view that since there was no time limit prescribed for moving application to declare a witness hostile and to seek permission to cross-examine a witness, application in that respect could be moved even after three months---High Court observed that such practice, if allowed, would open numerous venues of legal complications and impediments towards fair trial---Revision petition was dismissed.

PLD 1991 AJK 76; Muhammad Sharif v. Durrivaman PLD 1993 Pesh. 151; Guru Singh v. State AIR 2001 SC 330; and The State of Bihar, v. Lalu Prasad alias Lalu Prashad Yadav AIR 2002 SC 2432 ref.

Alamzeb Khan for Petitioner.

Obaidullah Anwar, A.A.-G. for the State.

Javed A. Khan for Respondent No.2.

Date of hearing: 24th March, 2008.

P L D 2008 Peshawar 104

Before Ghulam Mohy-ud-Din Malik, J

AZIZ AHMAD---Petitioner

Versus

MUMREZ and 5 others---Respondents

Q.P. No.9 of 2008, decided on 9th May, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 417(2)---Illegal Dispossession Act (XI of 2005), Ss.3 & 9---Quashing of judgment and order---Competence---Scope of S.561-A, Cr.P.C.---Trial Court dismissed complaint under S.3 of Illegal Dispossession Act, 2005 and acquitted the accused persons from charge levelled against them---Criminal Procedure Code, 1898 was applicable to proceedings under Illegal Dispossession Act, 2005---Under Criminal Procedure Code, 1898, against order of acquittal and dismissal of private complaint, remedy lay by way of appeal under S.417(2), Cr.P.C.---Right of appeal having been conferred against order of acquittal to an aggrieved person, revision of order under S.561-A, Cr.P.C. against order of acquittal was not competent because provision of appeal against acquittal could not be circumvented under inherent jurisdiction of the High Court under S.561-A, Cr.P.C.---High Court in its inherent jurisdiction could interfere only when no other adequate legal remedy for redressal of grievance was available to the aggrieved party---Contention that if the revision of order under S.561-A, Cr.P.C. was not competent it could be treated as an appeal, was repelled because for filing appeal in case of private complaint, separate procedure was provided i.e.. the aggrieved person would submit an application for the grant of special leave to appeal and no such application would be entertainable after the expiry of sixty days from date of impugned order; and that a person aggrieved by the order of acquittal could, within thirty days, file an appeal against such order---Petition neither was well in time nor it could be straightaway converted into appeal---Petition under S.561-A, Cr.P.C. was dismissed in circumstances.

PLD 1976 SC 461 ref.

Muhammad Humayun Turangzai for Petitioner.

Ms. Hamshida Begum for the State.

P L D 2008 Peshawar 107

Before Raj Muhammad Khan and Zia-ud-Din Khattak, JJ

NASEER MUHAMMAD KHAN---Petitioner

Versus

HAMAYUN SAIFULLAH KHAN and 4 others---Respondents

Writ Petitions Nos.45 & 44 of 2008, decided on 14th February, 2008.

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

----Ss. 99(I-A)(o) & 52---North- West Frontier Province Local Government Ordinance (XIV of 2001), Ss.21 & 164---Constitution of Pakistan (1973), Art.199---Constitutional petition---Disqualification for contesting election---Respondent, who was Zila Nazim, intended to contest election for National Assembly, resigned from office of Zila Nazim by tendering resignation and thereafter filed his nomination papers as candidate for seat of National Assembly which were accepted by the Returning Officer---Petitioner had filed constitutional petition against acceptance of nomination papers of respondent contending that since resignation tendered by respondent was accepted by Chief Minister four days after tendering the same, respondent was enjoying his office of Zila Nazim during that period and he was disqualified from contesting the election---Validity---Tendering of resignation was not qualified by some other conditions for its acceptance---Act of relinquishment of office or its acceptance or otherwise, was dependant on the nature of the office/post held by an incumbent---Holder of office of Zila Nazim under Local Government Ordinance, 2001 would relinquish his office merely by tendering his resignation under S.21 of the said Ordinance and acceptance of the resignation was not a sine qua non for -it---Respondent had tendered his resignation on 24-11-2007 which was accepted by the competent Authority---Seat of Zila Nazim held by respondent had become vacant with effect from the date as was notified by Election Commission under S.164 of North-West Frontier Province Local Government Ordinance, 2001 vide Notification dated 7-12-2007---Respondent after tendering resignation from the office of Zila Nazim on 24-1-2007, was not hit by any clause of disqualification---Nomination papers filed by respondent had already been scrutinized and accepted which remained unquestioned either before the Returning Officer or before the Election Appellate Tribunal---Said acceptance had also been culminated in the issuance of final list of candidates showing their respective election symbols---Constitutional petition was dismissed.

PLD 2007 SC 52; Election Commission of Pakistan v. laved Hashmi and others PLD 1989 SC 396 and Ayatullah Dr. Imran Liaqat Hussain v. Election of Pakistan, Islamabad and others PLD 2005 SC 52 ref.

Petitioner in person (in W.P.No.45 of 2008).

Naeem Maqsood Seth for Petitioner (in W.P. No.44 of 2008).

Abdul Latif Yousafzai and Muhammad Arif Khan for Respondents.

Dates of hearing: 13th and 14th February, 2008.

P L D 2008 Peshawar 111

Before Shahji Rahman Khan and Muhammad Alam Khan, JJ

SIFAT AIZDI---Petitioner

Versus

Dr. SAIMA BASHIR and 2 others---Respondents

Writ Petition No.94 of 2008, decided on 28th May, 2008.

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

----S. 5, Sched. [as amended by Family Courts (Amendment) Ordinance, (LV of 2002)]---Constitution of Pakistan (1973). Art 199--Constitutional petition---Suit for recovery of dower---Jurisdiction of Family Court---Scope---Marriage of plaintiff took place and vide Kabin Nama cash dower of Rs.60,000 was fixed---Out of said amount dower Rs.50,000 which was prompt dower were paid to the plaintiff and in lieu of remaining amount of Rs.10,000 half share of house was transferred to the plaintiff---Plaintiff having been divorced, plaintiff filed suit for transfer of half share of house to her after partition of house which was given to her through Kabin Nama---Suit was resisted on ground that Family Court had no jurisdiction in the matter---Contention of the objector was that Family Court under S.5 of West Pakistan Family Courts Act, 1964 had the plenary jurisdiction to entertain all matrimonial disputes enumerated in the Schedule attached to said Act, which did not contain the suit for partition of the property given to the wife in lieu of dower---Validity---Once a property, whether movable or immovable, was given in dower by the husband to the wife, then under S.5 of West Pakistan Family Courts Act, 1964, exclusive jurisdiction would lie with the Family Court---Radical changes brought through amendment in the Family Courts Act by the amending Ordinance of 2002, had widened the scope of Schedule attached to the Family Courts Act; and even the suit for recovery of the personal belongings of wife could be agitated and relief sought from the Family Court---Contention that Family Court lacked the jurisdiction to pass a decree for partition of the suit house, was repelled, in circumstances.

Muhammad Akram v. Mst. Hajra Bibi and two others PLD 2007 Lah. 515; Asia. v. Abdur Rehman and another 1994 CLC 1388; Abdur Rashid and another. v. Mst. Shaheen Bibi and 2 others PLD 1980 Pesh. 37 and Muhammad Tariq v. Mst. Shaheen Bibi PLD 2006 Pesh. 189 ref.

Malik Muhammad Bashir for Petitioner.

P L D 2008 Peshawar 116

Before Syed Yahya Zahid Gillani, J

MUKHTIAR KHAN---Petitioner

Versus

KHUSHAL---Respondent

Civil Revision No.21 of 2004, decided on 12th June, 2008.

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

----O. XXXII---Terms "next friend" and "guardian for the suit" as used in O.XXXIII, C.P.C.---Scope.

Order XXXII speaks of "next friend", when matter is institution of suit on behalf of a minor, and it speaks of "guardian for the suit", when a minor has been sued by someone and he is in the panel of defendants.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss.3, 13 & 14---Civil Procedure Code (V of 1908), O. XXXII, Rr.1, 2 & 4---Pre-emption, suit for---Talb-i-Muwathibat; Talb-i-Ishhad and Talb-i-Khusumat---Performance of such Talbs for minor pre-emptor by a person other than his real father, though alive---Validity---Pre-emptor for being minor could not make such Talbs or appoint an agent for such purpose---Such Talbs could be made on behalf of minor pre-emptor by his guardian---Right of pre-emption being a property based right, legal guardian of minor's property could decide to exercise right of pre-emption on behalf of minor---Father, grandfather or other guardian, as indicated in Islamic Law, could best look after minor's interest in exercising his right of pre-emption, but not his next friend as defined in O.XXXII, C.P.C.---Qur'an and Sunnah was competent authority, which appointed and declared father as guardian of minor---Father of minor pre-emptor being still alive would be deemed to be "guardian appointed or declared by competent authority" for purposes of O. XXXII, R.4 (2), C.P.C.---For institution of pre-emption suit, no body could act as "next friend" of minor pre-emptor except his father as guardian under S.14 of the N.-W.F.P Pre-emption Act, 1987---Such Talbs has been performed for minor pre-emptor by a person not his guardian in terms of S.14 of the N.-W.F.P. Pre-emption Act, 1987---Right of pre-emption of minor pre-en4tor stood extinguished---Suit was dismissed in circumstances.

Mulla's Mahommedan Law (Pakistan Addition) by Mian Jamil Ahmed, Advocate ref.

Abdul Latif Khan for Petitioner.

Muhammad Younis Khan Tanoli for Respondent.

Date of hearing: 9th June, 2008.

P L D 2008 Peshawar 121

Before Syed Yahya Zahid Gillani, J

SHAMS-UR-REHMAN---Petitioner

Versus

TEHSIL MUNICIPAL ADMINISTRATION, OGHI through Tehsil Nazim Oghi and others---Respondents

Civil Revision No.297 with C.M. No.232 of 2007, decided on 11th June. 2008.

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

----S. 115---Revision--Concurrent findings of fact---Reasons for dismissing suit given by Trial Court not disagreed by Appellate Court, but upheld by adding thereto another reason---Effect---Such findings of Courts below were concurrent---Principles.

(b) Locus poenitentiae, principle of---

----Applicability---Such principle would be attracted to legal and valid order passed without any jurisdictional error---Authority having passed an illegal and without jurisdiction order with a view to rectify its fault could recall, withdraw or revoke same at any time without notice to affected person, who might seek his remedy by claiming damages---Principles.

PLD 1965 SC 83 and PLD 1997 SC 342 ref.

The Engineer-in-Chief Branch v. Jalal-ud-Din PLD 1972 SC 207; Abdul Haque Indhar v. Province of Sindh 2000 SCMR 907; Shah Nawaz v. Umar Daraz 1999 CLC 1883 and PLD 1965 SC 83 rel.

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

----O. XLI, R. 33---Dismissal of appeal by Judge of Appellate Court having once seized of case as Judge of Trial Court---Validity---Order­-sheet of Trial Court showed the judgment of appellate Court as Judge of Trial Court had set aside order of ex parte proceedings, added and deleted some parties and sent case thereafter to District Judge for its transfer to another Court---Judge of Appellant Court while working as Judge of Trial Court had not decided any issue touching substantial rights of parties and fundamental dispute pending for adjudication, thus no prejudice had been caused to the petitioner---High Court dismissed revision petition and upheld impugned judgment.

Abdul Latif Khan for Petitioner.

Abbas Khan, D.A.G. for Respondent Nos. 1 and 2.

Date of hearing: 9th June, 2008.

P L D 3008 Peshawar 129

Before Muhammad Alam Khan, J

Mst. ZAIB-UN-NISA---Petitioner

Versus

Mst. SAFINA BIBI and 3 others---Respondents

Criminal Revision Petition No.11 with Criminal Miscellaneous No.6 of 2008, decided on 3rd June, 2008.

Penal Code (XLV of 1860)---

----Ss. 302/34, 310, 120-B, 148 & 149---West Pakistan Arms Ordinance (XX of 1965), S.13---Summoning accused/legal heir of deceased for compromise proceedings---Petitioner/complainant effected compromise with accused and for finalization of the compromise proceedings, shares of the legal heirs of the deceased were to be determined according to their entitlement---Trial Court summoned widow of deceased from jail including the other legal heirs of deceased---Widow of deceased was alleged to have committed murder of her husband/deceased-Validity--Any person committing patricide or matricide or any homicide of his predecessor-in-interest would disentitle him to the inheritance under Islamic Law subject to the condition that charge of homicide was proved and accused was convicted of the murder of the propositus and the conviction was finally maintained by the courts of law---Till then, no heir could be deprived of the inheritance, merely because he was only charged for the offence---Accused widow of deceased might be involved in the killing of her own husband together with co-accused, but she could only be deprived of his legacy when it was finally determined that she was the real culprit---In the present scenario, when the complainant had compromised the case with accused party, widow of deceased could not be held disentitled to the inheritance of her deceased husband, which she would inherit in the Diyat amount of deceased---Summoning of widow of deceased from jail to participate in the compromise proceedings through the impugned order, could not be termed to be illegal---Impugned order of the Court below being strictly in accordance with law and established principles of justice, would call for no interference.

Sultan Sheheryar Khan Marwat for Petitioner.

Nemo for Respondents.

Date of hearing: 3rd June, 2008.

P L D 2008 Peshawar 132

Before Shah Jee Rehman Khan and Syed Yahya Zahid Gillani, JJ

HASEEB AHMAD---Petitioner

Versus

Mst. SHAISTA and another---Respondents

Writ Petition No.456 of 2008, decided on 25th June, 2008.

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

----S. 10(4), proviso---Constitution of Pakistan (1973), Art.199---Constitutional petition---Interpretation of proviso to S.10(4) of West Pakistan Family Courts Act, 1964---Held, word "Shall" used in S.10(4), proviso of the West Pakistan Family Courts Act, 1964 is directory in nature and not at all mandatory---Family Court can dissolve the marriage under proviso to S.10(4) of the Act, after failure of the pre-trial reconciliation proceedings, if the facts and circumstances of the case firstly demand such an order, keeping in view the principles of Khula---If, however, the Family Court concludes that evidence should be recorded to determine the right of wife to get the marriage dissolved on any other legally admissible ground, the Family Court can skip over the stage and frame issues to record evidence and decide the case according to law---Principles.

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

----S. 17-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Interim maintenance allowance to wife---Determination by Family Court---Scope---Family Court has lawful authority under S.17-A of the West Pakistan Family Courts Act, 1964 to determine the interim maintenance allowance---Such allowance, in the present case, was not determined in vacuum but in fact same was based on the commitment of the husband in Nikahnama that he shall pay that much amount to the wife in such like situation---Constitutional petition was dismissed in circumstances.

Fazal Mola Chattan for Petitioner.

P L D 2008 Peshawar 135

Before Muhammad Alam Khan, J

AURANGZEB KHAN---Petitioner

Versus

HAQ NAWAZ and another---Respondents

Civil Revision No.181 of 2007, decided on 3rd June, 2008.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---North West Frontier Province Pre-emption Act (X of 1987), Ss. 6 & 13---Suit for pre-emption---Rejection of plaint---Plaintiff filed suit for pre-emption on basis of oral sale---Defendant filed application for rejection of plaint under O. VII, R.11, C.P.C. on the main ground that the suit-land which was purchased by defendant, later on was cancelled and the vendor thereof then alienated suit-land to other vendees---Application stated that as no sale was in existence, plaint was liable to be rejected---Trial Court rejected plaint, but Appellate Court, setting aside order of the Trial Court remanded case back to the Trial Court for decision on merits---Validity---Alleged cancellation of sale-deed which had been admitted by defendant, was a matter which could be thrashed out by the Trial Court after recording pro and contra evidence-.Shortcut and summary procedure adopted by the Trial Court was not warranted under the law---Once averments were made in the plaint, those averments had to be taken into consideration while rejecting the plaint, especially, when in the case defendant had admitted the factum of sale in his application for rejection of the plaint who had alleged its cancellation---In-such situation serious disputed questions were involved which could only be thrashed out after recording of pro and contra evidence after. submitting the written statement and framing of issues---Order passed by the Appellate Court below was strictly just, legal and in accordance with the established principles of law, which called for no interference and same was maintained.

Ghulam Dastagir and others v. Mst. Mariam and others 1993 MLD 1005 and Messrs Hoechst Pakistan Ltd. v. Messrs Cooperative Insurance Societies and others 1993 MLD 2464 ref.

Abdul Qayyum Qureshi for Petitioner.

P L D 2008 Peshawar 137

Before Muhammad Alam Khan, J

Mst. AISHA BIBI---Petitioner

Versus

ABDUL RAUF---Respondent

Civil Revision No.108 of 2007, decided on 13th June, 2008.

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 concurrently dismissed suit filed by the plaintiff mainly for non-observation of making of Talbs in time as envisaged under provisions of North-West Frontier Province Pre-emption Act, 1987---Evidence on record had revealed that plaintiff had the knowledge of the transaction prior to the attestation of the mutation, but not a single word had been uttered by him regarding performance of4irst jumping demand and the subsequently information and knowledge as mentioned in the plaint and notice of `Talb-e-Ishhad' was a concocted story---Judgments and decrees of the two courts below, were strictly in accordance with law and in consonance with the established principles of appreciation of evidence, which called for no interference.

Nazu Khan v. Karam Hussain Khan through Legal Heirs 2002 SCMR 1053 rel.

Abdul Qayyum Qureshi for Petitioner.

Muhammad Younis Thaheem for respondent on pre-admission notice.

P L D 2008 Peshawar 140

Before Muhammad Alam Khan, J

ABDUL REHMAN KHAN---Appellant

Versus

YAQOOB---Respondent

R.F.A. No.15 of 2005, decided on 3rd June, 2008.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.2, 3 & S.96---Suit for recovery of amount on basis of pro note---Leave to defend suit---Trial Court after hearing the parties and evaluating the material on record, dismissed the suit through impugned judgment which was challenged in appeal---Validity---Record had indicated that the Trial Court had not properly appreciated the evidence on record and impugned judgment and decree needed to be set aside---Plaintiff had successfully proved his claim through cogent and reliable evidence by producing scribe of the pro note who had verified the contents of the pro note duly entered in the relevant register---Trial Court had not adverted to that important fact of proving the execution of pro note and had non-suited the plaintiff on the sole ground that payment before the marginal witnesses at the time of execution of pro note, was not proved---Once the execution of the pro note was proved, then the burden would shift to the defendant to prove that the pro note was without consideration---If, on the record, it was proved that the consideration was admitted to have been passed on to the' debtor before the marginal witnesses and scribe of the documents, that would be sufficient proof of payment of consideration---When the claim of the plaintiff was duly proved by the evidence of prosecution witnesses in support of the pro note with regard to the suit money, the Trial Court was required to have taken into consideration the same and should not have drawn the impugned conclusion---Adverse findings recorded by the Trial Court on various issues in the judgment impugned in the appeal were set aside---Impugned judgment and decree of the Trial Court was set aside and decree for recovery of amount in question, was passed in favour of the plaintiff against the defendant with simple interest at the rate of four per cent per annum.

Salar Abdur Rauf v. Mst. Barkht Bibi 1973 SCMR 332; Muhammad Boota v. Faiz Ahmad 1979 SCMR 465; Mst. Sajida Abbas Zaidi v. Syed A.rshad Ali Jaffri 1990 CLC 1018 and Muhammad Ashiq and others v. Niaz Muhammad and others PLD 2004 Lah. 95 ref.

S. Abid Hussain Bukhari for Appellant.

Muhammad Waheed Aujum for Respondent.

Date of hearing: 20th May, 2008.

P L D 2008 Peshawar 145

Before Muhammad Alam Khan, J

DERA CABLE NETWORK LTD. through Chief Executive and 3 others---Appellants

Versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY (PEMRA) through Chairman and 5 others---Respondents

R.F.A. No.48 of 2007, decided on 19th May, 2008.

Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002)---

----S. 30-A [as amended by Pakistan Electronic Media Regulatory Authority (Amendment) Act (II of 2007)]---Application for permission to install cable network---Dismissal of application---Appeal---Principles of natural justice, violation of---Appellants submitted application to the Authority supported by two demand drafts for the issuance of licence---Authority, by a short order through a letter communicated to appellants; informing them that there being already functioning four cable networks, no scope existed for the issuance of further licence---Impugned order had been passed at the back of appellants and no notice of hearing had been given to them---Effect---Appellants, who had a right of hearing had been deprived of their right which could not be denied to them, especially in the circumstances when no notice of hearing had been issued to them---Not only in judicial proceedings, but also in administrative actions, petitioner or appellant, as the case may be, was always entitled to a notice or a chance of hearing---Even, in a lis pending in Administrative Tribunals or Quasi-Judicial Tribunals, the right of hearing of a party was a must which was derived from natural justice as nobody could be condemned unheard---Impugned order had revealed that same was cursory, non-speaking and violative of law and was liable to be struck down---Impugned order was set aside and matter was remitted to the Tribunal constituted under Pakistan Electronic Media Regulatory Authority Ordinance, 2002 to re-decide the same afresh strictly in accordance with law after giving an opportunity of hearing to the appellants.

Baldvin and Francis Ltd. v. Patents Appeals Tribunal 1959 AC 663 and Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 ref.

Abdul Qayyum Qureshi for Appellants.

Irfan Khan Taju Khel for Respondents.

Date of hearing: 19th May, 2008.

P L D 2008 Peshawar 147

Before Muhammad Raza Khan, CJ

Haji MUHAMMAD HUSSAIN and another---Petitioners

Versus

D.C.O., DIR UPPER and another---Respondents

Civil Revision No.1075 of 2007, decided on 5th May, 2008.

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

----S. 21(9)---Specific Relief Act (I of 1877), Ss. 54 & 55---Civil Procedure Code (V of 1908), O.VII, R.11---Air and noise pollution---Suit for perpetual and mandatory injunction---Jurisdiction of civil court---Plaintiff sought a perpetual injunction against defendant with a purpose to restrain defendant from operating the stone crushing plant near the residential area of plaintiff-- Plaintiff also prayed for mandatory injunction to direct the defendant to remove the plant and for cancellation of licence of defendant---Court below concurrently returned plaint to the plaintiff for submission to the appropriate forum as civil court had no jurisdiction in the matter---Both courts below found that in view of the provisions of the Environmental Protection Act, 1997, civil court did not have the. jurisdiction to hear and decide the suit relating to pollution---Validity---Refusal to exercise jurisdiction by the courts below, indicated lack of appreciation of the nuisance created by a Stone Crushing Plant---Location of the disputed plant near the residential area at the road side was confirmed and it was explained that under the instruction of the concerned Authorities, defendant had taken various steps to comply with the legal provisions for minimizing the pollution, by developing water sprinkling filter system etc., whereby environment had been protected from the air pollution--Effect---Entire effort of local Authorities for the prevention of pollution, had focused on the dust, however, the fact of noise pollution had not been properly evaluated--Noise created by - unloading the stone at crushing site and process of crushing as well as granting thereof, would certainly create noise, in addition to dust which could be unbearable for the nearby residents---Deeper appreciation would lead to the conclusion that the Environmental Protection Act, 1997 would not satisfy the protection of all the civil rights of the citizens, which could be adversely affected by an irresponsible entrepreneur---Plaintiff had asked for the prohibitory and mandatory injunction, which was the exclusive jurisdiction of the civil court---Plaintiff had also prayed for cancellation of licence for the installation of 'Stone Crushing Plant issued by the District Co-ordination Officer---Such part of the prayer of the plaintiff did not fall within the competence of any of the Authorities, Magistrate or Tribunal under Environmental Protection Act, 1997---Additional prayer included in the plaint related to the recovery of damages, which certainly was the exclusive jurisdiction of the civil court---Even otherwise, determination of question, whether an act or omission by the defendant, whereby civil right of a person or the environment of an area was being adversely affected was a pure question of fact, which could be determined after recording evidence---Return of plaint through the impugned order, was not in conformity with the established practice---Impugned judgments of both the courts were set aside and matter was remanded to the Trial Court for adjudication of the suit on merit after recording evidence.

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

----Ss. 2(xxxiii) & 21-Purpose of Environmental Protection Act, 1997---Purpose of Environmental Protection Act, 1997 was to protect, conserve, rehabilitate and improve the environment for the prevention and control of pollution and promotion of sustainable development---Not only noise, but air pollution and other factors disturbing the ecology bio diversity or the health of the citizen, was the major aim of said law---Scheme of the statute, gave a look of an impressive and protective instrument which eliminated the possibility of exercise of jurisdiction by any other forum including the civil court; however, the deeper appreciation would lead to the conclusion that the law, did not satisfy the protection of all the civil rights of the citizen which, could be adversely affected by an irresponsible entrepreneur whereby nuisance could be caused to the citizens and in addition to the potential damage to health, inconvenience faced by such citizen would go unchecked.

Abdul Latif Afridi for Petitioners.

Asghar Khan for Respondents.

Date of hearing. 5th May, 2008.

P L D 2008 Peshawar 154

Before Syed Yahya Zahid Gillani, J

NOOR JAMAL---Petitioner

Versus

THE STATE through Advocate-General,} N.-W.F.P. and 4 others---Respondents

Criminal Miscellaneous Petition No.30 of 2007, decided on 2nd June, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 86-A & 561-A---Mechanism devised in S.86-A, Cr.P.C.---Scope---Quashing of orders--Petition for---Procedure for removal in custody to tribal area---Non-compliance of procedure---Effect-Magistrate had recorded the statement of complainant who charged the petitioner for abduction and detention of his son---Complainant produced two witnesses who were sent by him to the tribal territory where they had allegedly seen son of complainant detained by the petitioner---Petitioner, who got himself examined and testified his innocence on oath, prayed for summoning two officials with record for examination in the court as his defence witnesses, but application of petitioner in that respect was dismissed by the Magistrate---Magistrate observed that there was no need for accused/petitioner to produce any official witness at that stage because Magistrate was not conducting full trial of the case and only an inquiry in terms of S.86-A, Cr.P.C. was being carried out---Mechanism devised in S.86-A, Cr.P.C., for all practical purposes, postulated a mini trial to determine existence or non-existence of a prima facie case to answer the question as to whether the person against whom warrant had been issued by the Political Authorities for arrest in the settled area should be removed in custody for production before the Political Authorities or not---Since the petitioner was arrested from settled area and he was the permanent resident of settled area, the process under S.86-A, Cr.P.C. was compulsory---During hearing of case under S.86-A, Cr.P.C., the Magistrate was bound to satisfy himself about the alleged guilt of the arrested person on the basis of evidence to be recorded by him and it could not be concluded that evidence to be recorded by Magistrate would be one-sided evidence---Providing equal opportunity of producing evidence to both the parties. was the 'legal requirement under S.86-A, Cr.P.C., coupled with the earnest command of principles of natural justice---It would be in utter disregard of the established canons of justice, if one party was given full opportunity of producing evidence of its choice, but the opposite party was refused such opportunity without there being any valid reason---By refusing to summon official defence witnesses of petitioner, the Magistrate had denied the petitioner a vested right to defend himself and to be treated equally against the complainant party for which lapse he had been seriously prejudiced---Since removal of the petitioner in custody to tribal Authority was not based on strict compliance of provisions of S.86-A, Cr.P.C., the impugned orders of the two courts were found to be not in accordance with law and were liable to be set aside under S.561-A, Cr.P.C. to prevent the abuse of the process of court and to secure the ends of justice---Impugned orders were quashed.

Ghulam Qasim v. The State PLD 1992 Pesh. 83; Zarif Khan v. Sessions Judge Peshawar PLD 1995 Pesh. 118; Haji Muhammad Sharif Khan v. S.D.M. and 7 others 1997 MLD 152; Fazal Subhan v. The Stae PLD 2006 Pesh. 1 and Muhammad Abdullah v. Government of Punjab PLD 2007 Lah. 593 ref.

Abdus Samad Khan for Petitioner.

Miss Shabona Gul and Iqbal Ahmed Durrani for A.P.A.

Nemo for Private Respondents.

Date of hearing: 5th May, 2008.

P L D 2008 Peshawar 160

Before Zia-ud-Din Khattak, J

KHAN MUHAMMAD and 3 others---Petitioners

Versus

S.H.O. POLICE STATION WEST CANTT., PESHAWAR and another---Respondents

Criminal Miscellaneous (Q) No.109 of 2008, decided on 4th August, 2008.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), S.188---Quashing of F.I.R.---Powers of High Court---Scope---Nothing in the Criminal Procedure Code, 1898 would be deemed to limit or affect the inherent powers of the High Court to make such orders as were necessary to give effect to any order under the Criminal Procedure Code, 1898 or to prevent abuse of process of any court; or otherwise to secure the ends of justice---In the present case, however, neither any order had been made by any court nor any process was issued by any court---Question of making orders as could be necessary to give effect to any order under the Criminal Procedure Code, 1898 or to prevent abuse of process of any court, would note arise, in circumstances---High Court in exercise of its powers under S.561-A, Cr.P.C. was not competent to quash the F.I.R.

Sarfaraz Khan v. The State 1996 SCMR 186 ref.

Hussain Ali for Petitioners.

P L D 2008 Peshawar 162

Before Zia-ud-Din Khattak, J

MAZHAR ILLAHI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.213 of 2008, decided on 6th August, 2008.

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

----S. 409---Prevention of Corruption Act (II of 1947), S.5(2)---North-West Frontier Province Anti-Corruption Establishment Rules, 1999, Rr.3, 4, 7, 8 & 10---West Pakistan Anti-Corruption Establishment Ordinance (XX of 1961), S.8---Appreciation of evidence---Inquiry and investigation---Authority competent to conduct inquiry and investigation---Counsel for accused had contended that things were not processed according to the procedure laid down in North-West Frontier Province Anti-Corruption Establishment Rules, 1999---Validity---Provisions of the West Pakistan Anti-Corruption Establishment Ordinance, 1961, provided that an offence under S.409, P.P.C. when committed by a public servant becomes a Scheduled offence and any inquiry or investigation of the case under the Scheduled offences could be conducted by the Anti-Corruption Establishment and not by the Local Police---Local police, did not figure any where in the Anti-Corruption Establishment and the inquiry and investigation had to revolve around the fountain of Anti-Corruption Establishment in the matters of allegation of corruption against public servants---Cases with respect to the alleged corruption could be registered against public servants by the Establishment under written order of the officers mentioned in Rule 4 of North-West Frontier Province Anti-Corruption Establishment Rules, 1999 at the Anti-Corruption Establishment Circle Office and not by the inferior or superior police officers at the local police stations---F.I.R. in the case along with investigation followed by judicial proceedings in the case, could not remain in the field which was liable to be set aside for want of jurisdiction---Conviction and sentence recorded by the Senior Special Judge (Anti-Corruption) was set aside and accused was acquitted of the charge and was set at liberty.

(b) Administration of justice---

----When law prescribed a particular manner and procedure in which things were required to be done, the same must be done in that manner and not otherwise at all.

Muhammad Ismail Alizai for Appellant.

Zia-uddin Saddique for the State.

Date of hearing: 4th August, 2008.

P L D 2008 Quetta 1

Before Akhtar Zaman Malghani, J

SULTAN MUHAMMAD---Petitioner

Versus

Haji KHAIR MUHAMMAD and 2 others---Respondents

Civil Revision No.139 of 2003, decided on 31st August, 2007.

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

----Art. 59---Handwriting expert---Opinion---Necessary ingredients---Relevancy in evidence---Non-appearance of handwriting expert in witness box---Effect---In order to compare different handwritings or, signatures, handwriting expert is required to examine different characteristics of both handwritings or signatures such as pen hold; pen pressure; slant; speed; sizing; aligmnent; spacing; line quality; tremors; curves; connections; rhythm; momentum; pulse; position in all letters etc.---If handwriting expert finds similarity in such characteristics then he has to give a positive findings---Opinion of handwriting expert under Art.59 of Qanun-e-Shahahat, 1984, is relevant in evidence but it does not mean that report prepared by expert would be admissible without examination of the expert.

PLD 1994 SC 291 and PLD 1995 SC 381 ref.

PLD 1960 Dacca 897 rel.

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

----Arts. 59, 72, 117 & 120---Agreement to sell---Onus to prove---Handwriting expert, report of---Plaintiffs relied upon report of handwriting expert to prove signatures on disputed agreement to sell---Trial Court offered defendant' to bear expenses if he wanted to examine handwriting expert---Validity---Onus to prove execution of agreement was upon plaintiffs who relied upon it---Plaintiffs should have proved signatures of defendant and execution of agreement to sell---If plaintiffs wanted to take any benefit of expert's report, they should have examined him in court by summoning him.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 17(2), 79, 117 & 120---Agreement to sell---Onus to prove---Plaintiffs sought specific performance of agreement to sell executed by defendant but defendant had denied execution of any agreement in favour of plaintiffs---Trial Court decreed the suit in favour of plaintiffs and the judgment and decree passed by trial Court were maintained by Appellate Court---Validity---After denial by defendant about execution of sale agreement onus was upon plaintiffs to have produced two attesting witnesses but only one witness was produced---Second witness produced by plaintiffs being not attesting witness, he could not fulfil requirements of Arts.17(2) and 79 of Qanun-e-Shahadat, 1984---Stamp paper, on which agreement was written, was issued by vendor on 30-6-1994, in favour of unknown person whereas agreement was executed on 15-5-1999, which fact also had created doubts about genuineness of the agreement---Onus was upon plaintiffs to have proved execution of agreement on the basis whereof they were seeking performance but they failed to prove its execution in accordance with law---Both the Courts below erred in law by considering inadmissible document, therefore, judgments and decrees passed by both the courts on the basis of such inadmissible evidence could not be maintained---Judgments and decrees passed by both the courts were set aside and suit filed by plaintiffs was dismissed.

1974 SCMR 411; 1983 CLC 657; 2001 SCMR 1700 and 2007 SCMR 1076 ref.

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

----S. 115---Revision---Concurrent findings of facts by the courts below---Interference by High Court---Scope---Where it is found that concurrent findings are based on gross misreading, non-reading or misconception of evidence available on record, then High Court is competent to reverse such findings.

2004 SCMR 595 rel. Basharatullah for Petitioner.

W.N. Kohli for Respondents.

Date f hearing: 3rd August, 2007.

P L D 2008 Quetta 7

Before Akhtar Zaman Malghani, J

IKHTIAR MUHAMMAD and another---Petitioners

Versus

Haji ABDULLAH JAN and 4 others---Respondents

Civil Revision No.39 of 2002, decided on 14th September, 2007.

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

----S. 145-Specific Relief Act (I of 1877), S. 42---Findings regarding possession---Civil court,' jurisdiction of---Scope---Civil Court cannot question findings under S.145, Cr.P.C. as to possession but it can decide that person found in possession had no right or title and can put any person in possession, if his title is established.

AIR 1947 Lah. 173 rel.

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

---S. 45---Qanun-e-Shahadat (10 of 1984), Art.129(e)---Mutation---Presumption---Mutation incorporated in Jamabandi carries presumption of truth and cannot be lightly ignored until and unless strong evidence is produced by party challenging such mutation entries.

PLD 1979 SC 890 rel.

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

---Ss. 42 & 54---Limitation Act (IX of 1908), Art.120---Civil Procedure Code (V of 1908), S.115---Declaration of title---Limitation---Entries made in Jamabandi---Misreading and non-reading of evidence---Effect---Plaintiffs assailed mutation in favour of defendants and claimed to be owner of suit land---Trial Court decreed the suit in favour of plaintiffs but Appellate Court allowed appeal and dismissed the suit---Validity---Property in dispute was recorded in the name of predecessor of defendants in year, 1940, which entries were carried out in subsequent Jamabandis prepared periodically---Such entries in Jamabandis were not challenged by predecessors of plaintiffs during their life time---High Court did not find it to be justified to ask defendants to prove sale transaction having taken place as far back as in year, 1936, between predecessor of plaintiffs and defendants---Property in dispute was found to be in possession of defendants along with other property which they claimed to have been purchased by their predecessors from tribes of plaintiffs---Attorney of plaintiffs in his statement on oath admitted in lukewarm manner about sale of property by the tribes of plaintiffs but denied purchase of share of predecessors of plaintiffs by predecessors of defendants---No misreading, non-reading, illegality or jurisdictional defect in findings of fact arrived at by Appellate Court warranting interference by High Court in exercise of revisional jurisdiction having been found„ revision was dismissed.

1995 SCMR 284; PLD 1998 Quetta 12; 2003 YLR 67 and 1999 MLD 763 distinguished.

PLD 2007 SC 287; 1992 SCMR 1832; 1994 SCMR 1454 and 1994 SCMR 164 ref.

Ch. Muhammad Arshad for Petitioners.

Shakil Ahmed Mirza for Respondents Nos. 1, 4 and 7.

Gohar Yaqoob Khan Yousafzai for Respondents Nos.5 and 6.

Date of hearing: 24th August, 2007.

P L D 2008 Quetta 14

Before Akhtar Zaman Malghani, J

Sheikh ABDUL HAKEEM---Petitioner

Versus

SHAMSUDDIN---Respondent

Civil Revision No.126 of 2002, decided on 31st August, 2007.

(a) Interpretation of statutes--

----Heading of statute---Scope---Limited use of heading as an aid to construction can be made in order to clear up obscurities and to read mind of legislature.

(b) Interpretation of statutes---

----Proviso to a provision of law---Object and scope---Proper function of a proviso to a section is to except and deal with a case which would otherwise fall within general language of main enactment---Proviso is a limitation upon effect of principal enactment, where section deals with particular field and provisio excepts or takes out or carries out from the field a particular portion---Proviso is not independent of section, its object is to carve out from main section, a class or category, to which main section does not apply.

AIR 1965 SC 1296; AIR 1957 SC 281 and AIR 1955 Mad. 410 rel.

(c) Jurisdiction---

----Special tribunal---Scope--When special tribunal is constituted under a statute, its jurisdiction depends upon specific provisions of the statute and it may be limited by conditions as to its constitution, as to persons whom or to offences which it is competent to try and as to the order which it is empowered to make or by other conditions which law makes essential to validity of its proceedings and orders.

(d) Balochistan Civil Dispute (Shariat Application) Regulation, 1976---

----Arts. 2(1) & (4)---Qazi Courts and Majlis-e-Shoora---Jurisdiction---Scope---Combined effect of Arts.2(1) & 4 of Balochistan Civil Disputes (Shariat Application) Regulation, 1976, is that Qazi Courts and Majlis-e-Shoora have no jurisdiction to try suit wherein Federal or Provincial Government or Local Authority or a Public Corporation or a public servant in his official capacity is a party.

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

----Ss. 42 & 54---Balochistan Civil Dispute (Shariat Application) Regulation, 1976, Arts. 2(1) proviso & 4---General Clauses Act (X of 1897), S.3(28)---Civil Procedure Code (V of 1908), S.115 & O.XLI, R.27---Local authority---Qazi Courts and Majlis-e-Shoora---Jurisdiction---Scope---Additional evidence, production of---Plaintiff sought injunction against construction of road by local authority over his lands---Plaintiff only impleaded. contractor as party who was to construct the road but did not implead local authority directing construction of road---Suit was filed in the court of Qazi which suit was dismissed but Majlis-e-Shoora disposed of appeal by returning plaint to plaintiff for filing it before court of competent jurisdiction---Plea raised by plaintiff was that after promulgation of devolution plan, union councils created were not the local authority or public corporation so mentioned in Balochistan Civil Dispute (Shariat Application) Regulation, 1976 and he also intended to produce additional evidence---Validity-.--Even after devolution plan, local government including union councils having been entrusted by government with control and management of local funds were local authority within the meaning of proviso to Art.2(1) of Balochistan Civil Disputes (Shariat Application) Regulation, 1976, and no case by or against local authority could be instituted in the forums provided under the Regulation---Local authority was a necessary party in the case and courts set up under Balochistan Civil Disputes (Shaiarat Application) Regulation, 1976, had no jurisdiction in the matter---No useful purpose would be served for allowing plaintiff to produce additional evidence as such application for additional evidence was declined by High Court---Revision was dismissed in circumstances.

M. Aslam Chishti for Appellant.

Hayuman Tareen for Respondent.

Sadeed Ullah Khan Kakar, Advocate-General.

Date of hearing: 3rd August, 2007.

P L D 2008 Quetta 21

Before Mehta Kailash Nath Kohli and Akhtar Zaman Malghani, JJ

SAMANDAR KHAN and another---Appellants

Versus

Haji ABDUL REHMAN and 21 others---Respondents

Criminal Acquittal Appeal No.(s) 3 of 2008, decided on 17th March, 2008.

Illegal Dispossession Act (XI of 2005)---

---- S.3(2)---Criminal Procedure Code (V of 1898), S. 417(2)--- Appeal against acquittal---Trial Court had acquitted accused on appraisal of evidence and had come to the findings; that proceedings relating to the property were pending before the High Court and the Supreme Court, while the case with regard to partition of property was also sub judice before Member, Board of Revenue; that the order of Executive District Officer (Revenue) with regard to partition of property in question, was set aside and the case was remanded to the Member, Board of Revenue; that S.H.O. submitted his report, whereby, he had stated that 'Bazgars' were in possession of the property for the last 20 years that during the course of appraisal of evidence, it was found that property in question was in the name of Government and same was transferred pursuant to title deed issued by Land Revenue Officer that property was transferred in favour of wife of respondent and appellants; and that document/title deed produced on record had shown that at the time of filing of the complaint, appellants were not owners of the property in question---Validity---Held, complainants/appellants could not have invoked the provisions of Illegal Dispossession Act, 2005 as it was a dispute between legal heirs themselves and in order to settle their civil rights, present proceedings were initiated---Complainants had claimed that pursuant to partition made by the Executive District Officer (Revenue) they had come into possession and it had already been admitted by the appellants/complainants that said partition proceedings had already been set aside by the Supreme Court and presently the matter was sub judice before the Member, Board of Revenue---Counsel for complainants, had not been able to point out any specific material, omission or misreading or perversity appearing in the impugned judgment of the Trial Court, where the jurisdiction to intervene in the same could be exercised-Respondents/accused persons had earned double innocence and the findings of the Trial Court were based upon proper appraisal of evidence---In absence of any merit in the appeal against acquittal, same was dismissed.

Ghulam Sikandar and another v. Mamarez Khan and others PLD 1985 SC 11 ref.

Muhammad Aslam Chishti for Appellants.

Nemo for the State.

Date of hearing: 6th March, 2008.

PLD 2008 Quetta 27

Before Mehta Kailash Nath Kohli, J

ALIA HUSSAIN---Petitioner

Versus

Syed ZIAUDDIN---Respondent

Criminal Revision No.9 of 2008, decided on 7th April, 2008.

(a) Islamic jurisprudence---

----Administration of justice--Courts as well as the State have to protect the rights of widows and orphans and they should not be let alone.

Mst. Bor Bibi and others v. Abdul Qadir and others 1996 SCMR 877 ref.

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

----S. 7---Scope of S.7, Illegal Dispossession Act, 2005---Section 7 authorises the Court to conclude that the person, prima facie, is not in lawful possession.

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

----S. 2(d)---Owner---Definition---Owner recorded in the Revenue Record shall be deemed to be the owner for the purpose of Illegal Possession Act, 2005.

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

----Ss. 3 & 4---"Owner" and "Occupier" can approach the Court of competent jurisdiction for enforcement of rights under Illegal Dispossession Act, 2005--'Owner' must have been recorded as 'owner'-Lawful `occupier' is protected under the Act and not a trespasser.

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

----S. 7---Complaint under S.7, Illegal Dispossession Act, 2005--Contentions of the petitioner (owner) were that she was a widow and a house wife; that after the death of her husband, she had gone to another city along with her minor children and had closed the house; that respondent had forcibly opened the door and house was occupied---Respondent was confronted with the position who relied on the document (agreement to sell the property in question) which was allegedly executed by the lady and stated that a sum of Rs.10,00,000 was paid and that civil suits had been filed by both the parties and that petition under S.7, Illegal Dispossession Act, 2005 was not maintainable---Record showed that document in question was coined at a later stage and it was never put into investigation nor produced before the Investigating Police Officer, as such it appeared that the plea of agreement to sell was an afterthought---Signatures in the alleged document did not tally with the original signatures of the lady on record, some fraud thus had been played in the matter---Validity---Held, mere execution of agreement would not be sufficient for declining the eviction proceedings---Petitioner lady having made out a prima facie case entitling her to the interim possession under S.7 of Illegal Dispossession Act, 2005, Police was directed to put the lady into possession positively; parties being at litigation, which may continue and present decision shall be subject to final decision in the civil suits pending between the parties---Registrar of the High Court was directed to retain the original document i.e. agreement and original notice, which shall be transmitted to Sessions Judge for enquiry and sending onward the same to the Handwriting Expert.

Mst. Bor Bibi and others v. Abdul Qadir and others 1996 SCMR 877 ref.

Nizam-ud-Din Kakar for Petitioner.

Mujeeb Ahmed Hashmi for Respondent.

Aminuddin Bazai, Addl. A.-G. (on Court notice).

Syed Rafique Ahmed, Petition Writer, District Court Quetta.

P L D 2008 Quetta 33

Before Mehta Kailash Nath Kohli, J

NOOR AHMED and 2 others---Petitioners

Versus

Mst. HANIFA and another---Respondents

Civil Revision No.152 of 2006, decided on 2nd July, 2008.

Civil Procedure Code (V of 1908)---

----O.XXIII, Rr. 1, 4 & S.2(2)---Parties had filed a compromise that they had settled the dispute out of court and they were not interested in pursuing with the matter---Trial Court observed that the matter be consigned to record, but parties would be bound by the compromise and ordered to make the decree sheet---Held, final adjudication in the matter had been made as while consigning the file to record, Trial Court had decreed the suit by holding that parties should abide by the terms of compromise which was produced before the Trial Court---Execution application was filed thereafter which was requested to be withdrawn and the executing court, instead of dismissing the application, directed that the application be returned without there being any limitation---Provisions of O.XXIII, R.4, C.P.C., in circumstances, were not applicable to execution of decree--Principles.

Kishun Dutt and others v. Gulabchan Prassad and others AIR 1948 Pat. 113; Palaniandi Pillai and another v. Papathi Ammal and others AIR 1914 Mad. 1 and Bihar State Sunni Waqf Board v. Syed Bashiruddin Ashraf and others AIR 1985 Pat. 52 ref.

Syed Ayaz Zahoor for Petitioner.

Basharatullah and Muhammad Noor Miskanzai for Respondents.

Respondent No.2 (in person).

P L D 2008 Supreme Court 1

Present: Javed Iqbal, Abdul Hameed Dogar and Falak Sher, JJ

MUSHTAQ and 3 others---Petitioners

Versus

THE STATE---Respondent

Criminal Appeal No.372 of 2005, decided on 6th September, 2007.

(On appeal from the order dated 2-7-2003 of the Lahore High Court, Lahore, passed in Cr.A.No.1362 of 2002).

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

----S. 302---Anti-Terrorism Act (XXVII of 1997), S.7(a)(c)---Appreciation of evidence---Principle of consistency---Applicability---Sentence, reduction in---Case against four accused persons having fired at deceased---Death sentence awarded to all accused persons by Trial Court was converted into life imprisonment by High Court except appellant-accused, whose death sentence was maintained---Validity---Prosecution had proved accusation against all accused persons by producing trustworthy evidence---Eye-witnesses had assigned role of firing to all accused persons armed with different kinds of weapons and had not assigned exclusively any specific role to appellant-accused---All accused persons had participated in occurrence resulting in death of deceased---Crime empties and weapon had been sent together to Forensic Science Laboratory, thus, its positive report could not be taken into consideration---Case of appellant-accused, in the absence of any distinctive features, could not be separated from remaining accused persons, and thus would deserve similar treatment and sentence---Principle of consistency could be pressed into service in such case---Supreme Court accepted appeal and converted death sentence of appellant-accused to that of life imprisonment.

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

----S. 302---Appreciation of evidence---Crime empties and weapon sent together to Forensic Science Laboratory---Positive report of Laboratory---Validity---Such report would be liable to be rejected---Principles.

Muhammad Ikram Chaudhry, Senior Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioners.

Ch. Munir Sadiq, D.P.G. for the State.

Date of hearing: 6th June, 2007.

P L D 2008 Supreme Court 6

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan, Muhammad Qaim Jan Khan, Muhammad Moosa K. Leghari, Ch. Ejaz Yousaf, Muhammad Akhtar Shabbir and Zia Perwez, JJ

C.P. No.87 of 2007

TIKA IQBAL MUHAMMAD KHAN---Petitioner

Versus

GENERAL PERVEZ MUSHARAF and 2 others---Respondents

C.P. No.88 of 2007

WATTAN PARTY through Chairman and another---Petitioner

Versus

FEDERATION OF PAKISTAN through Cabinet Secretariat, Islamabad and 3 others---Respondents

Constitutional Petitions Nos. 87 and 88 of 2007, decided on 23rd November, 2007.

Proclamation of Emergency dated 3-11-2007---

----Provisional Constitution Order (1 of 2007), Preamble---Oath of Office (Judges) Order, 2007, Preamble---Constitution (Amendment) Order [5 of 2007], Preamble---Provisional Constitution (Amendment) Order, 2007, Preamble---Constitution of Pakistan (1973), Art.184(3)---Constitutional petition under Art. 184(3) of the Constitution---Vires of Proclamation of Emergency dated 3-11-2007; Provisional Constitution Order, 2007 and Oath of Office (Judges) Order, 2007---Held, sum total of the circumstances led to a situation where the running of the government in accordance with the provisions of the Constitution had become impossible for which the Constitution provided no remedy or satisfactory solution and there was a strong apprehension of disastrous consequences ensuing in case the action of 3-11-2007 had not been taken by the Chief of Army Staff/President---Sufficient corroborative material had been produced by the authorities, justifying the taking of the extra-constitutional measures by the Chief of Army Staff/President-Situation which led to the issuance of Proclamation of Emergency of 3-11-2007 as well as the other two Orders was similar to the situation which prevailed in the country on 5-7-1977 and 12-11-1999 warranting the extra-constitutional steps, which had been validated by the Supreme Court in Begum Nusrat Bhutto v. Chief of Army Staff PLD 1977 SC 657 and Syed Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869 in the interest of the State and for the welfare of the people, coupled with the fact that the Constitution was not abrogated, but merely held in abeyance---Supreme Court, after recording findings on the situation obtaining in the recent past in the country and pointing out the transgression of constitutional limits by some members of the superior judiciary by way of judicial activism ignoring the well entrenched principles of judicial restraint, disposed of the constitutional petitions and passed order and issued directions.

Following is the text of order passed and directions issued by the Supreme Court:

"We, therefore, hold that -

(i) the Constitution of the Islamic Republic of Pakistan; 1973 still remains to be the supreme law of the land albeit certain parts thereof have been held in abeyance in the larger interest of the country and the people of Pakistan;

(ii) The extra-constitutional steps of Proclamation of Emergency of the 3d day of November, 2007, the Provisional Constitution Order No.1 of 2007, the Provisional Constitution (Amendment) Order, 2007, the Oath of Office (Judges) Order, 2007 and the President's Order No. 5 of 2007 are hereby declared to have been validly made by the Chief of Army Staff/President subject to the condition that the country shall be governed, as nearly as may be, in accordance with the Constitution. All acts and actions taken for the orderly running of the State and for the advancement and good of the people are also validated. In absence of the Parliament, General Pervez Musharraf, Chief of Army Staff/President, in pursuance of the Proclamation of Emergency of the .3d day of November, 2007 may, in the larger public interest and the safety, security and integrity of Pakistan, under the principle of salus populi suprema lex, may perform -

(a) All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it;

(b) All acts which tend to advance or promote the good of the people; and

(c) All acts required to be done for the ordinary orderly running of the State."

"We further hold and direct as under: -

(i) The old Legal Order has not been completely suppressed or destroyed, but it is a case of constitutional deviation for a limited transitional period;

(ii) Constitutional amendments can be resorted to only if the Constitution fails to provide a solution for the attainment of the declared objectives of the Chief of Army Staff/President, but without affecting the salient features of the Constitution, i.e. independence of Judiciary, federalism, parliamentary form of Government blended with Islamic provisions;

(iii) The President, the Federal Government and the Election Commission of Pakistan shall ensure the holding of fair, free and transparent elections as required by the Constitution and the law;

(iv) The Superior Courts continue to have the power of judicial review, to judge the validity of any act or action of the Chief of Army Staff, or the President notwithstanding the ouster of their jurisdiction by the aforesaid extra-constitutional measures;

(v) The Chief Justices and Judges of the superior courts (Supreme Court of Pakistan, Federal Shariat Court and the High Courts) are subject to accountability only before the Supreme Judicial Council in accordance with the procedure laid down in Article 209 of the Constitution;

(vi) The learned Chief Justices and Judges of the superior courts, (Supreme Court of Pakistan, Federal Shariat Court and the High Courts), who have not been given, and who have not made, oath under the Oath of Office (Judges) Order, 2007 have ceased to hold their respective offices on the 3rd of November, 2007. Their cases cannot be re-opened being hit by the doctrine of past and closed transaction; and

(vii) The Proclamation of Emergency of the 3rd day of November, 2007 shall be revoked by the President and/or the Chief of Army Staff at the earliest so that the period of constitutional deviation is brought to an end. However, this Court may, at any stage, re-examine the continuation of the Proclamation of Emergency if the circumstances so warrant."?

Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657 and Syed Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869 ref.

Irfan Qadir, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Petitioner (in C.P. No.87 of 2007).

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, Raja M. Ibrahim Satti, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondent No.1 (in C.P. No.87 of 2007).

Malik Muhammad Qayyum, Attorney-General for Pakistan, Ms. Nahida Mehboob Elahi, D.A.G., Sardar Muhammad Ghazi, D.A.G., Raja Niaz Ahmed Rathore, D.A.G., Haji M. Rafi Siddiqui, Advacate Supreme Court, M. Aslam Nagi, Advocate Supreme Court and Ch. Naseer Ahmad, Advocate Supreme Court for Respondents Nos. 2 and 3 (in C.P. No.87 of 2007).

Barrister Zafar Ullah Khan, Advocate Supreme Court and G.N. Gohar, Advocate Supreme Court for Petitioner (in C.P. No.88 of 2007).

Malik Muhammad Qayyum, Attorney-General for Pakistan, Ms. Nahida Mehboob Elahi, D.A.G., Sardar Muhammad Ghazi, D.A.G., Raja Niaz Ahmed Rathore, D.A.G., Haji M. Rafi Siddiqui, Advocate Supreme Court, M. Aslam Nagi, Advocate Supreme Court and Ch. Naseer Ahmad, Advocate Supreme Court for Respondents Nos. 1 and 3 (in C.P. No.88 of 2007).

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, Raja M. Ibrahim Satti, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondents Nos.2 and 4 (in C.P. No.88 of 2007).

Dates of hearing: 19th, 20th, 21st, 22nd and 23rd November, 2007.

P L D 2008 Supreme Court 13

Present: Abdul Hameed Dogar, C. J., Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar, M. Javed Buttar, Ijaz-ul-Hassan Khan, Muhammad Qaim Jan Khan, Muhammad Moosa K. Leghari, Ch. Ejaz Yousaf, Muhammad Akhtar Shabbir and Zia Penvez, JJ

C.P. No.73 of 2007

WAJIHUDDIN AHMED---Petitioner

Versus

CHIEF ELECTION COMMISSIONER, ISLAMABAD and others---Respondents

Cr.O.P. No.51 of 2007

WAHHUDDIN AHMED---Petitioner

Versus

Justice (R.) QAZI MUHAMMAD FAROOQ, CHIEF ELECTION COMMISSIONER, ISLAMABAD---Respondent

Constitutional Petition No.73 of 2007 and Criminal Original Petition No.51 of 2007, decided on 19th November, 2007.

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

----Arts. 62, 63, 41, 43, 244, 260, Second Sched., Third Sched. & Art.184(3)---Constitutional petitions under Art.184(3) of the Constitution before Supreme Court impugning the qualifications and acceptance of nomination papers of the President of Pakistan, one of the candidates for Presidential Election, 2007, by the Chief Election Commissioner of Pakistan-Validity-Impugned order had been passed by the Chief Election Commissioner of Pakistan in the light of the well-reasoned judgments of the Supreme Court in cases of Qazi Hussain Ahmed v. General Pervaiz Musharraf PLD 2002 SC 857 and Pakistan Lawyers Forum v. Federation of Pakistan PLD 2005 SC 719---President of Pakistan, therefore, was qualified for and did not suffer from any disqualification, under the Constitution or/and the law, for Presidential Election, 2007 and the view taken by the Chief Election Commissioner was unexceptionable---Consequently, the interim stay order of withholding the issuance of final notification of the result of election of the returned candidate to the office of the President by the Supreme Court was vacated---Supreme Court directed the Chief Election Commissioner of Pakistan and Federal Government to take all necessary steps by 1st December, 2007 for final announcement of the result of the Presidential Election and issuance of public notice in accordance with Constitution and the law---As already undertaken in writing before the Supreme Court by the Attorney General for Pakistan and Senior Counsel of the President of Pakistan the President shall relinquish the office of the Chief of Army Staff before taking oath of office of the President of Pakistan for the second term.

Qazi Hussain Ahmed v. General Pervaiz Musharraf PLD 2002 SC 853 and Pakistan Lawyers Forum v. Federation of Pakistan PLD 2005 SC 719 fol.

Brig. (Retd.) F.B. Ali v. The State PLD 1975 SC 506; Qazi Hussain Ahmed v. General Perevez Musharraf PLD 2002 SC 853; Pakistan Lawyers Forum v. Federation of Pakistan PLD 2005 SC 719; Messrs Pearl Builders (Pvt.) Ltd. v.. Ardsher Gowasjee and others PLD 2003 SC 946; Dr. Saleem Javed and others v. Mst. Fauzia Nasim and others 2003 SCMR 965 and Habib-Al-Wahab Alkhairi and others v. Commissioner, Rawalpindi Division and others PLD 1992 SC 587 ref.

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

----Art. 184(3) & Part-II, Chap. 1 (Arts. 8 to 28)---Constitutional petitions under Art.184(3) of the Constitution before the Supreme Court---Maintainability---Scope---Question involved in the petition related to matter of election of the President which did not relate to any of the fundamental rights guaranteed in Part-II , Chapter 1 of the Constitution (Arts. 8 to 28), therefore, petitions under Art.184(3) of the Constitution were not maintainable.

Jamat-e-Islami v. Federation of Pakistan (Constitutional Petition No.59 of 2007), decided on 28-9-2007 (PLD 2008 SC 30) fol.

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

----Arts. 41(6) & 184(3)---Constitutional petition under Art.184(3) of the Constitution before the Supreme Court impugning the validity of the election of the President---Held, validity of election of the President cannot be called in question by or before any court in view of Art.41(6) of the Constitution.

M.S. Khattak, Advocate-on-Record (in both petitions) for Petitioners.

Nemo for Respondent No. 1.

Malik Muhammad Qayyum, Attorney General for Pakistan, Mst. Nahida Mehboob Ellahi, D.A.G., Raja Niaz Ahmed Rathore, D.A.G., Haji Muhammad Rafi Siddique, Advocate Supreme Court, Roy M. Nawaz Kharal, Advocate Supreme Court, M. Aslam Nagi, Advocate Supreme Court, Raja Abdur Rehman, Advocate Supreme Court and Arshad Ali, Ch. Advocate-on-Record for Respondent No.2.

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, Raja Muhammad Ibrahim Satti, Advocate. Supreme Court and Arshad Ali Ch. Advocate-on-Record for Respondent No.3.

Nemo for Respondents Nos. 4-7.

Date of hearing: 19th November, 2007.

P L D 2008 Supreme Court 22

Present: Abdul Hameed Dogar, C.J., Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar, M. Javed Buttar, Ijaz-ul-Hassan Khan, Muhammad Qaim Jan Khan, Muhammad Moosa K. Leghari, Ch. Ejaz Yousaf, Muhammad Akhtar Shabbir

and Zia Perwez, JJ

Dr. ZAHOOR MEHDI---Petitioner

Versus

CHIEF ELECTION COMMISSIONER, ISLMABAD and others---Respondents

Constitutional Petition No.83 of 2007, decided on 22nd November, 2007.

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

----Second Sched., para. 4 & Art.184(3)---Presidential Election Rules, 1988, R.5(3)(b)---Election of President---Requirement of proposer and seconder for a candidate for presidential election could not be dispensed with---Rejection of nomination papers of a candidate having no proposer and seconder by the Chief Election Commissioner of Pakistan was unexceptionable.

M.P. Khan v. Muhammad Rafiq Tarrar 1999 SCMR 90 fol.

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

----Art. 184(3) & Chapter 1, Part-II [Arts. 8-28]---Constitutional petition under Art.184(3) of the Constitution before the Supreme Court---Maintainability---Petitions challenging matters relating to the election of the President do not involve question of public importance with reference to the enforcement of fundamental rights conferred by Chapter 1 of Part-II of the Constitution and as such are not maintainable.

Qazi Hussain Ahmad v. General Pervaiz Muhammad, Constitution Petition No.58 of 2007 (PLD 2008 SC 30) fol.

Petitioner in person.

Nemo for Respondent No.1.

Malik Muhammad Qayyum, Attorney General for Pakistan, Mst. Nahida Mehboob Ellahi, D.A.G. Sardar M. Ghazi, D.A.G., Raja Niaz Ahmed Rathore, D.A.G., Haji Muhammad Rafi Siddique, Advocate Supreme Court, Roy M. Nawaz Kharal, Advocate Supreme Court, M. Aslam Nagi, Advocate Supreme Court, Raja Abdur Rehman, Advocate Supreme Court and Arshad Ali, Ch. Advocate-on-Record for Respondent No.2.

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court Wasim Sajjad, Senior Advocate Supreme Court, Raja Muhammad Ibrahim Satti, Advocate Supreme Court and Arshad Ali Ch. Advocate-­on-Record for Respondent No.3.

Nemo for Respondents Nos. 4-9.

Date of hearing: 22nd November, 2007.

P L D 2008 Supreme Court 25

Present: Abdul Hameed Dogar, C. J., Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar; M. Javed Buttar, Ijaz-ul-Hassan, Muhammad Qaim Jan Khan, Muhammad Moosa K. Leghari and Ch. Ejaz Yousaf, JJ

WAJIHUDDIN AHMED---Applicant

Versus

CHIEF ELECTION COMMISISONER and others---Respondents

C.M.A. No.2874 of 2007, in Constitution Petitioner No.73 of 2007, decided on 6th November, 2007.

(Application under Order XXXIII, Rule 6 of the Supreme Court Rules, 1980)

Provisional Constitution Order (1 of 2007)---

----Arts. 2 & 3---Proclamation of Emergency dated 3-11-2007, paras. 2 & 3---Oath of Office (Judges) Order, 2007, Preamble---Supreme Court Rules, 1980, O.XXXIII, R.6 & O.XXIX---Civil Procedure Code (V of 1908), O.XXVII-A---Application under O.XXXIII, R.6, Supreme Court Rules, 1980---Attorney General with reference to a news item published in some of the newspapers, had contended that after the Proclamation of Emergency of 3-11-2007, the Provisional Constitution Order, 2007 and Oath of Office (Judges) Order, 2007, seven former Judges of the Supreme Court, including former Chief Justice, gathered in the evening and purportedly passed an order (concerning Provisional Constitution Order, 2007, Proclamation of Emergency dated 3-11-2007 and Oath of Office (Judges) Order, 2007) when the Judges of the Superior Courts had already ceased to function and exercise judicial powers; that unless a law was finally declared as ultra vires for any reasons, the same would continue to have its normal operation, therefore, the action taken in pursuance of Proclamation of Emergency read with Provisional Constitution Order, 2007 and Oath of Office (Judges) Order, 2007 was valid and not questionable and that since the order in question was passed without giving any notice or providing any opportunity of hearing to the Federation of Pakistan in utter disregard to the principles of natural justice, therefore, the same was otherwise not a legal order---Validity---Held, said order was invalid as the same was passed after Proclamation of Emergency of 3-11-2007 read with Provisional Constitution Order, 2007, promulgated by the Chief of Army Staff and Oath of Office (Judges) Order, 2007 issued by the President of Pakistan---Constitution having been held in abeyance by virtue of paragraphs 2 & 3 of the Proclamation of Emergency dated 3-11-2007 therefore, without first taking oath under Oath of Office (Judges) Order, 2007, the Judges of the Supreme Court and other superior Courts could not perform their functions---Judges of the Supreme Court, the Federal Shariat Court and the High Courts including the Chief Justices of said Courts immediately on promulgation of Emergency read with Provisional Constitution Order, 2007 and Oath of Office (Judges) Order, 2007, ceased to hold their respective offices and could not have performed their functions or exercise the Judicial powers and consequently, the Chief Justice and Judges who had passed the order in question, could not have passed such an order as they had ceased to be the Judges---Order in question was even otherwise not a valid order as it was passed without notice to the parties or the Attorney-General for Pakistan under O.XXVII-A, C.P.C. read with O.XXIX, Supreme Court Rules, 1980---Impugned order, prima facie, showed that the question of validity or otherwise of Proclamation of Emergency as well as Provisional Constitution Order, 2007 and Oath of Office (Judges) Order, 2007 was not as such examined and their operation was also not suspended---In presence of Proclamation of Emergency and Provisional Constitution Order, 2007 read with Oath of Office (Judges) Order, 2007 same was nullity in law, which was declared to be illegal and without jurisdiction and shall be deemed to have never been passed.?

Federation of Pakistan v. Aitzaz Ahsan PLD 1989 SC 61 fol.

Arshad Ali Ch., Advocate Supreme Court/Advocate-on-Record for Applicant.

Malik Muhammad Qayyum, Attotrey General for Pakistan (On Court Call).

P L D 2008 Supreme Court 30

Present: Rana Bhagwandas, Javed Iqbal, Abdul Hameed Dogar, Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi; Faqir Muhammad Khokhar, Falak Sher, Mian Shakirullah Jan, and M. Javed Buttar, JJ

JAMAT-E-ISLAMI through AMIR and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others-Respondents

Constitutional Petitions Nos. 59, 58, 61, 62, 63 and 68 of 2007, decided on 28th September, 2007.

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

----Art. 184(3)---Invocation of original jurisdiction of Supreme Court under Art.184(3) of the Constitution---Object, scope and essential conditions.

There are two essential conditions for invoking the jurisdiction of Supreme Court of Pakistan under Article 184(3) of the Constitution. The first condition is that subject matter of the petition under this Article must be of public importance and second condition is that it must relate to the enforcement of any of the fundamental rights conferred by Part-II Chapter-1 of the Constitution.

Original jurisdiction of Supreme Court under Article 184 (3) of the Constitution cannot be exercised in a matter brought before it unless it is of public importance involving the enforcement of fundamental rights conferred by Part-II Chapter 1 of the Constitution (Articles 8 to 28) and in absence of any of the above conditions, Supreme Court is not supposed to entertain a petition under Article 184 (3) of the Constitution. The object of Article 184(3) of the Constitution is the enforcement of the fundamental rights referred therein and no question, other than relating to the enforcement of a fundamental right, can be brought before Supreme Court for determination in its original jurisdiction and an aggrieved person may avail other remedies open to him under the law. Supreme Court will not entertain a petition under Article 184(3) if infringement of any of the fundamental rights conferred by Part II Chapter 1 of the Constitution is not involved as the remedy under this Article is only for the enforcement of fundamental rights. The validity of any law or a provision of Statue if is challenged on the ground other than being in contravention of fundamental rights, the Supreme Court would not entertain such challenge in the proceedings under Article 184(3) of the Constitution, even if the law is found, in contravention of some provisions of the Constitution. The rule is that Supreme Court will not interfere under this Article unless it is satisfied that infringement of the right being complained is the fundamental right and there is a breach of such right. The constitutional jurisdiction of the Supreme Court under Article 184(3) of the Constitution also cannot be invoked for the correctness of a judgment of Supreme Court in which a question of law was decided unless it is established that in consequence to the judgment of Supreme Court, a fundamental right falling in Part II Chapter 1 of the Constitution has been violated. The Supreme Court indeed has power to rectify its own mistake but the provision of Article 184(3) of the Constitution is invocable only in the matter of public importance relating to the enforcement of fundamental rights. The question relating to the determination of the legislative competence or vires of a particular enactment can only be gone into in the jurisdiction under Article 184(3) of the Constitution if a case is made out for interference of Supreme Court by establishing that the law enacted was beyond the competence of the legislature which was not covered by the legislative list and also has invaded the fundamental rights guaranteed in Part-II, Chapter-1 of the Constitution. There is always presumption in favour of constitutionality of an enactment and Courts are not supposed to strike down a law merely on technical grounds, therefore, a question relating to the correctness or validity of an order and judgment of the Supreme Court which has otherwise attained finality, cannot be entertained in the proceedings under Article 184(3) of the Constitution but the Court may, in an appropriate case, in which a fundamental right is being infringed, can entertain an original petition as right to move the Supreme Court in a case of violation of fundamental right is itself a fundamental right. It is thus essential that existence of a fundamental right and its breach actual or threatened, must be established to entertain a petition under Article 184(3) of the Constitution. The .power of the Supreme Court under Article 184(3) of the Constitution for enforcement of fundamental right is not confined to the extent of issue of prerogative writs and also is not necessarily circumscribed by the conditions to limit the exercise of power, rather this Article is wide enough to consider the question of public importance relating to the violation of fundamental rights.

The scope of judicial review of the Supreme Court perhaps is most extensive known to the world of law as the Supreme Court, in exercise of this power, can examine the validity even of an amendment in the Constitution which is violative of the basic structure of the Constitution. However, the Supreme Court in its original jurisdiction under Article 184(3) of the Constitution is not supposed to give a declaration which has no useful purpose so far as the public interest is concerned and this power is also not invocable in absence of a direct and casual violation of fundamental right guaranteed under the Constitution. The right to vote or right to contest the election is a statutory right and is subject to the limitation imposed by the Statutes, therefore, the provision of law relating to such rights may not be challengeable with reference to the fundamental rights as the right to file a petition under Article 184(3) of the Constitution arises only in a case of infringement of the fundamental right or a serious threat to infringe such a right but mere apprehension of breach of fundamental right is not enough to invoke these extraordinary provisions. Under this provision the Court will not answer a hypothetical question even if such a question, in its substantial context, may be of public importance relating to the fundamental rights and similarly the Supreme Court may refuse to grant relief in exercise of its original jurisdiction in a case; filed with delay although delay does not take away the jurisdiction of the Court.

There can be no departure from the constitutional mandate that unless a matter of public importance concerning with the enforcement of fundamental rights conferred by Part II, Chapter-1 of the Constitution is involved in a petition under Article 184(3) of the Constitution, it is not entertainable.

Unless the matter is of public importance relating to the enforcement of any of the fundamental rights conferred by Part II Chapter 1 of the Constitution (Articles 8 to 28), the jurisdiction of the Supreme Court under Article 184 (3) of the Constitution, cannot be invoked. The mere importance of a matter, without enforcement of any fundamental right or reference to a fundamental right without any public importance, will not attract the jurisdiction of Supreme Court under Article 184(3) of the Constitution.

In the light of constitutional mandate as contemplated in Article 184(3) of the Constitution, Supreme Court may not entertain a direct petition under Article 184(3) in a matter not involving the enforcement of any of fundamental rights mentioned therein.

In matters which do not involve enforcement of the fundamental rights of the public at large as envisaged in Article 184 (3) of the Constitution, a direct petition in original jurisdiction is not entertainable.

The exercise of jurisdiction under Article 184 (3) of the Constitution is certainly subject to the condition that matter is of public importance and is also related to the enforcement of fundamental rights conferred by Part II Chapter 1 of the Constitution.

Shahida Zaheer Abbasi v. President of Pakistan PLD 1996 SC 632; Zulfiqar Mehdi v. Pakistan International Airlines Corporation 1998 SCMR 793; Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Syed Wasey Zafar v. Government of Pakistan PLD-1994 SC 621; Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Federation of Pakistan v. Muhammad Saifullah Khan PLD 1989 SC 166; Benazir Bhutto v. President of Pakistan PLD 1998 SC 388; Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869; Aftab Shahban Mirani v. President of Pakistan 1998 SCMR 1863; Muhammad Rafiq Tarrar v. Mukhtar Ahmed Junejo PLD 1998 Lah. 461; Malik Asad Ali and others v. Federation of Pakistan PLD 1998 SC 161; All Pakistan Newspapers Society v. Federation of Pakistan PLD 2004 SC 600; I. A. Sharwani v. Government of Pakistan 1991 SCMR 1041; Qazi Hussain Ahmad v. Pervez Musharraf, Chief Executive PLD 2002 SC 853; Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66; Wattan Party v. Federation of Pakistan PLD 2006 SC 697; Wasim Sajjad v. Federation of Pakistan PLD 2001 SC 233; Amanullah Khan v. Chairman Medical Research Council 1995 SCMR 202; State Life Insurance Employees Federation v. Federation Government of Pakistan 1994 SCMR 1341; Muhammad Shahbaz Sharif v. Federation of Pakistan PLD 2004 SC 583; Muhammad Siddique v. Government of Pakistan PLD 2005 SC 1 and Javed Jabbar and 14 others v. Federation of Pakistan and others PLD 2003 SC 955 ref.

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

----Art. 184(3) & Part II, Chap. 1 [Arts. 8 to 28]---Constitutional petition before Supreme Court under Art.184(3) of the Constitution---Maintainability---Matter of public importance and enforcement of fundamental rights---Principles---Petitioners, in the present case, had sought a declaration against a prospective candidate in the forthcoming Presidential election that under the Constitution he, while holding the office of Chief of Army Staff, was not eligible for participation in the election and had challenged his candidature before the start of election process---Validity---Matter to the extent of the Presidential election certainly had public importance but question raised therein did not relate to the enforcement of the fundamental rights conferred by Part II, Chap.1 of the Constitution [Arts. 8 to 28]---Expression "enforcement" has predominant significance with reference to fundamental rights---Petitioners had failed to satisfy that in what manner the candidature of the prospective candidate caused infringement of any fundamental rights guaranteed under the Constitution and how that related to the enforcement of such rights under Art.184(3) of the Constitution---Held, unless the matter was of public importance relating to the enforcement of any of the fundamental rights conferred by Part II, Chap. 1 of the Constitution, the jurisdiction of Supreme Court under Art.184(3) of the Constitution could not be invoked---Mere importance of a matter, without enforcement of any fundamental right or reference to a fundamental right without any public importance, would not attract the jurisdiction of Supreme Court under Art.184(3) of the Constitution---Questions raised in the present petitions did not, as such; relate to the fundamental rights conferred by Part II, Chap. 1 of the Constitution and most of them even otherwise were speculative and presumptive in nature and at the present stage, fell in the domain of Election Commission, a constitutional forum---Matters which do not involve enforcement of fundamental rights of the public at large, as envisaged in Art.184(3) of the Constitution, a direct petition in original jurisdiction was not maintainable---Petitions under Art.184(3) of the Constitution seeking declaration against the prospective candidate therefore were not maintainable and were dismissed by the Supreme Court.

Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Federation of Pakistan v. Muhammad Saifullah Khan PLD 1989 SC 166; Benazir Bhutto v. President of Pakistan PLD 1998 SC 388; Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869; Aftab Shahban Mirani v. President of Pakistan 1998 SCMR 1863; Muhammad Rafiq Tarar v. Mukhtar Ahmed Junejo PLD 1998 Lah. 461; Malik Asad Ali and others v. Federation of Pakistan PLD 1998 SC 161; All Pakistan Newspapers Society v. Federation of Pakistan PLD 2004 SC 600; I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041; Qazi Hussain Ahmad v. Pervez Musharraf, Chief Executive PLD 2002 SC 853; Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66; Wattan Party v. Federation of Pakistan PLD 2006 SC 697; Wasim Sajjad v. Federation of Pakistan PLD 2001 SC 233; Amanullah Khan v. Chairman Medical Research Council 1995 SCMR 202; Zulfiqar Mehdi v. Pakistan International Airlines Corporation 1998 SCMR 793; State Life Insurance Employees Federation v. Federation Government of Pakistan 1994 SCMR 1341; Muhammad Shahbaz Sharif v. Federation of Pakistan PLD 2004 SC 583; Muhammad Siddique v. Government of Pakistan PLD 2005 SC 1 and Javed Jabbar and 14 others v. Federation of Pakistan and others PLD,2003 SC 955 ref.

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

----Arts. 184(3) & 25---Constitutional petition before Supreme Court under Art.184(3) of the Constitution questioning the eligibility of the respondent to contest the election for the office of President on the plea that Arts. 17 & 25 of the Constitution were being violated---Validity---Matter having no nexus with the rights guaranteed under Arts. 17 & 25 of the Constitution, direct petition was not maintainable---Principles.

Government of Bafochistan v. Azizullah Memon PLD 1993 SC 341 ref.

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

---Art. 184(3) & Chap. 1, Part II, [Arts. 8 to 28]---Constitutional petition before Supreme Court under Art.184(3) of the Constitution questioning the eligibility of respondent to contest the election for the office of the President of Pakistan---Maintainability---Held, notwithstanding the public importance of the matter, the questions raised in the petitions did not, as such, relate to the enforcement of fundamental rights guaranteed in Part II, Chap. 1 of the Constitution, therefore such petitions under Art.184(3) of the Constitution were not maintainable.

(e) Constitution of Pakistan (1973)---

---Arts. 184(3) & 41(2)---Constitutional petitions before Supreme Court under Art.184(3) of the Constitution---Maintainability---Question raised in the petitions was that a person was not qualified to contest the election for the office of the President of Pakistan in terms of Art.41(2) read with other provisions of the Constitution---Held, such question did not relate to the enforcement of any of the fundamental rights of the petitioners or any other person, to maintain petitions under its original jurisdiction before Supreme Court under Art.184(3) of the Constitution.

(f) President to Hold Another Office Act (VII of 2004)---

---Preamble---Constitution of Pakistan (1973), Arts.184(3) & 63(1)(d)---Constitutional petition before Supreme Court under Art.184(3) of the Constitution questioning vires of President to Hold Another Office Act, 2004---Held, Parliament, pursuant to its legislative competence under the Constitution had enacted the President to Hold Another Office Act, 2004 and the said Act was not in conflict with any provision of the Constitution---President to Hold Another Office Act, 2004 was validated by Supreme Court in case Pakistan Lawyers Forums v. Federation of Pakistan PLD 2005 SC 719 and pending a review petition against said judgment, a fresh petition after lapse of a period more than two years on the same subject was not maintainable.

Pakistan Lawyers Forum v. Federation of Pakistan PLD 2005 SC 719 ref.

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

----Arts. 184(3), 63 & 62---Constitutional petition before Supreme Court under Art.184(3) of the Constitution seeking determination of the eligibility of a person to contest the election for the President of Pakistan with reference to application of Art.63 read with Art.62 of the Constitution---Held, such question could not be raised before the Supreme Court at the present stage as the matter squarely fell within the jurisdiction and domain of Election Commission, a constitutional forum of exclusive jurisdiction.

M. Akram Sheikh, Senior Advocate Supreme Court and M. A. Zaidi, Advocate-on-Record for Petitioners (in C.P. No.59 of 2007).

Malik Muhammad Qayyum, Attorney General for Pakistan, Ms. Nahida Mehboob Elahi, Deputy Attorney-General for Pakistan and Sardar Muhammad Ghazi, Dy. Attorney General for Pakistan for Respondent No.1 (in C.P. No.59 of 2007).

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, Ahmad Raza Khan Qasuri, Senior Advocate Supreme Court, Muhammad Ibrahim Satti, Advocate Supreme Court, Chaudhry Naseer Ahmad, Advocate Supreme Court and Chaudhry Arshad Ali, Advocate-on-Record for Respondent No.2 (in C.P. No.59 of 2007):

Hamid Khan, Senior Advocate Supreme Court, Shaukat Aziz Siddiqui, Advocate Supreme Court and M. S. Khattak, Advocate-on-Record for Petitioner (in C.P. No.58 of 2007).

Malik Muhammad Qayyum, Attorney General for Pakistan, Ms. Nahida Mehboob Elahi, Deputy Attorney General for Pakistan, Sardar Muhammad Ghazi, Deputy Attorney General for Pakistan, Abdul Sattar Chughtai, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate on-Record for Respondents.

Hamid Khan, Senior Advocate Supreme Court and M. S. Khattak, Advocate-on-Record for Petitioner (in C.P. No.61 of 2007).

Malik Muhammad Qayyum, Attorney-General for Pakistan, Ms. Nahida Mehboob Elahi, Deputy Attorney General for Pakistan, Sardar Muhammad Ghazi, Deputy Attorney General for Pakistan and Arshad Ali Chaudhry, Advocate-on-Record for Respondent No.1.

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, Raja Muhammad Ibrahim Satti, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondent No.2.

Petitioner in person (in C.P.No.62 of 2007).

Malik Muhammad Qayyum, Attorney General for Pakistan, Ms. Nahida Mehboob Elahi, Dy. Attorney General for Pakistan, Sardar Muhammad Ghazi, Dy. Attorney General for Pakistan and Arshad Ali Chaudhry, Advocate-on-Record for Respondents Nos. 1 and 2.

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, Raja Muhammad Ibrahim Satti, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondent No.3.

Mr. Abdul Rehman Siddiqui, Advocate Supreme Court and Chaudhry Muhammad Akram, Advocate-on-Record for Petitioners (in C.P. No. 63 of 2007).

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, Raja Muhammad Ibrahim Satti, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondent No.1.

Malik Muhammad Qayyum, Attorney General for Pakistan, Ms. Nahida Mehboob Elahi, Deputy Attorney General for Pakistan, Sardar Muhammad Ghazi, Deputy Attorney General for Pakistan and Arshad Ali Chaudhry, Advocate-on-Record for Respondent No.2.

A. K. Dogar, Advocate Supreme Court (in person) for the Petitioner (in C.P. No.68 of 2007).

Malik Muhammad Qayyum, Attorney General for Pakistan, Ms. Nahida Mehboob Elahi, Deputy Attorney General for Pakistan, Sardar Muhammad Ghazi, Deputy Attorney General for Pakistan, Muhammad Aslam Nagi, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondents.

S.M. Zafar, Senior Advocate Supreme Court, Abdul Hafeez Pirzada, Senior Advocate Supreme Court and Chaudhry Aitzaz Ahsan, Senior Advocate Supreme Court, Amici Curiae: (On Court Notice)

Dates of Hearing: 17th to 21st and 24th to 28th September, 2007.

P L D 2008 Supreme Court 71

Present: Iftikhar Muhammad Chaudhry, C.J., Nasir-ul-Mulk, Raja Fayyaz Ahmad and Syed Jamshed Ali, JJ

In the matter of: HUMAN RIGHTS CASE NO. 4115 OF 2007

Human Rights Case No.4115 of 2007, decided on 25th September, 2007.

Criminal Procedure Code (V of 1898)---

----S. 382-B---Prisons Act (IX of 1894), S.3---Constitution of Pakistan (1973), Art.45---Remission in sentence pronounced from time to time by Federal or Provincial Government---Under-trial prisoner getting benefit of S.382-B, Cr.P.C. from court after his conviction---Entitlement to such remission---Scope---Under-trial prisoner for not being a convict would not be entitled to such remission---Such remission pronounced after passing of conviction/sentence by competent court would be available to' prisoner except those specifically excluded from benefit of such remission by competent Authority---Principles.

Haji Abdul Ali v. Haji Bismillah and 3 others PLD 2005 SC 163 fol.

Sardar Shoukat Hayat, Addl. A.G., N.-W.F.P. (on Court's Notice).

Tipu Muhabbat Khan, Special Secretary Homes, N.-W.F.P. (On Court's Notice).

PLD 2008 Supreme Court 73

Present: Javed Iqbal, Actg. C.J. and Sardar Muhammad Raza Khan, J

ALLAH DIWAYA---Appellant

Versus

GHULAM FATIMA, Represented by Ahmad Sher and others---Respondents

Civil Appeal No.2399 of 2006, decided on 29th May, 2007.

(On appeal from the judgment dated 27-3-2003 of the Lahore 'High Court, Lahore passed in C.R.No.278 of 1992).

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

----Ss. 123 & 129---Registration Act (XVI of 1908), S. 177--Constitution of Pakistan (1973), Art.185(3)---Oral gift or gift through un-registered deed---Provision of S.123 of Transfer of Property Act, 1882---Applicability---Supreme Court granted leave to appeal to consider question as to whether S.123 of Transfer of Property Act, 1882 would apply to such gift satisfying all its essential ingredients.

Mst. Umar Bibi and 3 others v. Bashir Ahmad and 3 others 1977 SCMR 154 and Maulvi Abdullah and others v. Abdul Aziz and others 1987 SCMR 1403 ref.

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

----Ss. 123 & 129---Registration Act (XVI of 1908), S. 17---Gift deed, non-registration of---Validity---Gift deed was compulsory registerable under S.17 of Registration Act, 1908---Without getting gift deed registered, it would not confer title of property upon donee.

Allah Wasaya Mali, Advocate Supreme Court for Appellant.

Qazi Khurshid Alam, Advocate Supreme Court for Respondents Nos. 1 and 2.

Date of hearing: 29th May, 2007.

P L D 2008 Supreme Court 77

Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Ch. Ijaz Ahmed, JJ

SHAHID ORAKZAI and another---Petitioners

Versus

FEDERATION OF PAKISTAN---Respondent

Constitutional Petitions Nos. 9 and 17 of 2007, decided on 13th July, 2007.

(Under Article 184(3) of the Constitution of Islamic Republic of Pakistan).

Constitution of Pakistan (1973)---

----Arts. 2, 2-A, 41, 168, 177, 178, 180, 184(3), 196, 203, 255 & 260---Non-Muslim Judge or Chief Justice or Acting Chief Justice of Pakistan, appointment of---Constitutional petition under Arts. 184(3) of the Constitution challenging such appointment---Maintainability---Subject to the Constitution, principle of equality before law and equal treatment before law, legislature could make law barring appointment of a non-Muslim citizen against a particular post---Appointment of non-Muslim as Judge or Chief Justice of Superior Courts was not barred by the Constitution or any law---Senior most judge of Supreme Court, even if he be a non-Muslim, could be made as Acting Chief Justice in absence of Chief Justice---Petition in nature of quo warranto could be filed to question appointment of a person as Judge of Superior or Inferior Court, if his appointment was not made in accordance with law and Constitution---No such petition could be maintained against appointment of Acting Chief Justice of Pakistan under Art.180 of the Constitution or Chief Justice of Pakistan under Art.177 thereof on the ground that appointee was non-Muslim---Such petition had been filed with motive to cause damage to dignity of high constitutional office of Chief Justice of Pakistan or Acting Chief Justice---Such petition instead of advancing a noble cause had been filed with purpose to malign judiciary---Petitioner for having wasted public time and exchequer should have been burdened with heavy costs---Supreme Court dismissed the petition with normal costs for being non-maintainable.

Petitioner in person (in C.P.No.9 of 2007).

Petitioner in person (in C. P. No.17 of 2007).

Tariq Mehmood Khokhar, D.A.G. for Respondent.

Date of hearing: 13th July, 2007.

P L D 2008 Supreme Court 80

Present: Iftikhar Muhammad Chaudhry, C.J., Muhammad Nawaz Abbasi and Mian Shakirullah Jan, JJ

Dr. MUBASHIR HASSAN and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petitions Nos. 76 to 80 of 2007, decided on 12th October, 2007.

(Challenge to National Reconciliation Ordinance, 2007)

National Reconciliation Ordinance (LX of 2007)---

----Preamble & Ss.6 & 7---Constitution of Pakistan (1973), Art.184(3)---

Constitutional petition under Art.184(3) of the Constitution challenging the vires of National Reconciliation Ordinance, 2007 and praying for suspension of operation of Ss.6 & 7 of the impugned Ordinance as according to apprehension of the petitioners, both these sections contained self-executory powers therefore, if allowed to continue the very object of filing of petitions under Art.184(3) of the Constitution would be frustrated because of extension of benefit to a public office holder, who intended to drive such benefit---Validity---Held, ordinarily the provisions of law could not be suspended because Supreme Court could only suspend a particular order, judgment or action etc.---Supreme Court, however, observed that any benefit drawn or intended to be drawn by any of the public office holder shall' be subject to the decision of the listed petitions and the beneficiary would not be entitled to claim any protection of the concluded action under Ss.6 & 7 of the National Reconciliation Ordinance, 2007, under any principle of law, if Supreme Court concluded that the impugned Ordinance and particularly its said provisions were ultra vires the Constitution---Supreme Court directed to issue notice to the respondents as well as the Attorney General for Pakistan as required under O.XXVII-A, C.P.C. and O.XXIX, R.1, Supreme Court Rules, 1980---Important questions of public/National interest having been raised in the petitions a request was ordered to be sent to the three prominent lawyers to assist the Court as amicus curies and petitions were directed to be set for hearing after three weeks.

Salman Akram Raja, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner (in Constitutional Petition 76 of 2007).

Muhammad Ikram Ch. Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner (in Constitutional Petition No.77 of 2007).

Dr. Farooq Hassan, Senior Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for petitioner (in Constitutional Petition No.78 of 2007).

M. A. Zaidi, Advocate-on-Record for Petitioner (in Constitutional Petition No.79 of 2007).

Petitioner in person (in Constitutional Petition No.80 of 2007).

Nemo for Respondents.

Date of hearing: 12th October, 2007.

P L D 2008 Supreme Court 85

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan and Saiyed Saeed Ashhad, JJ

Rana MUHAMMAD HAYAT KHAN---Petitioner

Versus

Rana IMTIAZ AHMAD KHAN---Respondent

Civil Petitions No.2035-L and 2198 of 2005, decided on 8th October, 2007.

(On appeal from the judgment/order dated 5-10-2005 passed by Lahore High Court, Lahore in W.P.No.16605 of 2005).

(a) Punjab Local Government Ordinance (XIII of 2001)---

----S. 152(1)(j)---Sales Tax Act (VII of 1990), Ss.33(4)(a)(f), 34 & 37-A---Partnership Act (IX of 1932), Ss.25 & 58---District Nazim, election of---Disqualification of candidate---Rejection of nomination papers---Receipt of refund claim by candidate as partner of firm against fake invoices---Non-payment of evaded sales tax and penalty by firm---Initiation of civil and criminal proceedings against candidate for recovery of tax---Constitutional petition before High Court by candidate against his apprehended arrest as partner of firm---Acceptance of appeal by Returning Officer filed against rejection of nomination papers of candidate subject to final decision of constitutional petition---Subsequent withdrawal of constitutional petition---Appeal by firm against recovery proceedings before Appellate Tribunal---Order of Tribunal restraining department to effect recovery from candidate by adopting coercive measures till decision of pending appeal---Validity---Candidate was aware of such liabilities of his firm towards Sales Tax Department, which he had not denied---Liability of partner to pay tax dues of firm for the period when he was its partner, would not cease on account of having ceased to be its partner subsequently---Effect of withdrawal of constitutional petition was that such order of Returning Officer stood vacated, thus, disqualification of candidate revived, whereafter he had not obtained stay order---Tribunal had not prohibited recovery of such tax from candidate---Failure of candidate to obtain stay order against such recovery would constitute a sufficient ground to hold that he had been adjudged defaulter of tax and he had not satisfied such default---Candidate was disqualified to contest election---Supreme Court directed Election Tribunal to hold fresh elections for office of Nazim---Principles.

F.A. Khan v. Government of Pakistan PLD 1964 SC 520; Central Board of Revenue and others v. Chanda Motors 1993 SCMR 39; Farzand Ali v. Province of West Pakistan PLD 1970 SC 98; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge 1994 SCMR 1299 and Abdul Majeed Khan v. District Returning Officer 2006 SCMR 1713 ref.

Harchandral v. The Popular Metal works PLD 1971 Kar. 925; State of Kerala and others v. Saroja and others AIR 1987 Kerala 239; Third Income-Tax Officer v. Arunagri Chettiar 1997 PTD 544; Dena Bank v. Bhikhabhai Prabhudas Parekh and Co. 2001 PTD 2349; Pakistan International Airlines Corporation v. Khalid Waheed and others 1981 SCMR 573 and Ahad Sharif v. laved Tariq 2006 SCMR 1356 rel.

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

----Art. 199---Constitutional petition---Election of Nazim---Petition for writ of quo warranto by voter---Maintainability---Voter could ask in which capacity respondent was holding office of Nazim---Ordinarily aggrieved party in such matters, instead of filing constitutional petition, must avail remedy under election laws before Election Tribunal.

Election Commission of Pakistan v. Javed Hashmi PLD 1989 SC 396 rel.

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

----Arts. 185(3) & 199---Prayer not made in constitutional petition before High Court nor in petition for leave to appeal before Supreme Court---Effect---Supreme Court, in view of changed circumstances, could grant such relief in exercise of its inherent jurisdiction and to do complete justice between parties.

Amina Begum v. Ghulam Dastgir PLD 1978 SC 220 and Hamdullah v. Saifullah Khan PLD 2007 SC 52 rel.

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

----Arts. 185, 199 & 225---Pre-election or post-election dispute---Allegation of illegal practices or illegal acts---Interference with such dispute by High Court or Supreme Court in exercise of constitutional jurisdiction---Scope---Disputed questions of facts arising out of pre-election or post-election disputes should be determined by Election Tribunal---Such jurisdiction could be invoked if same involved undisputed facts and nothing was required to be proved---Principles.

Dispute relating to corrupt or illegal practices or illegal acts' alleged to have been committed during the polling cannot be adjudicated upon by High Court or Supreme in exercise of constitutional jurisdiction, because these questions require to be established on the basis of evidence and Supreme Court would never encourage the settlement of such dispute by invoking its constitutional jurisdiction, except in those cases where there is undisputed facts and nothing is required to be proved. Therefore, all those disputed questions of facts arising out of pre-election or post-election disputes should be determined by the Tribunal, and if there is no dispute of such-like nature, then jurisdiction of the High Court can be invoked.

Ahad Sharif v. Javed Tariq 2006 SCMR 1356 and Abdul Majeed Khan v. District Return Officer 2006 SCMR 1713 rel.

Malik Muhammad Qayyum, Advocate Supreme Court, Shaukat Ali Mehr, Advocate Supreme Court and Rana Muhammad Arif, Advocate Supreme Court for Petitioner (in Civil Petition No.2035-L of 2005).

A.K. Dogar, Advocate Supreme Court for Respondents (in Civil Petition No.2035-L of 2005).

Sh. Izhar-ul-Haq, Advocate Supreme Court, Ch. Akhtar Ali, Advocate-on-Record (on behalf of Collector, Sales Tax, Lahore) (on Court Notice).

P L D 2008 Supreme Court 104

Present: Rana Bhagwandas, Hamid Ali Mirza and Ghulam Rabbani, JJ

MUHAMMAD AZHAR and others---Petitioners

Versus

Messrs UNITED TEXTILE MILLS through Manager---Respondent

Constitutional Petitions Nos. 236-K to 289-K of 2007, decided on 4th September, 2007.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 2(viii)(a) & 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.11-A---Payment of Wages Act (IV of 1936), S.15---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.19---Closure of Mills by owners without permission of Authority---Workers' claim for dues, pendency of---Purchase of such Mills by respondent-Company in open auction in execution of decree passed by Banking Court in recovery suit against such Mills---Non-acceptance of claim of. workers of such Mills by respondent-company---Grievance petition by workers of such Mills against respondent-company---Validity---Managements of such Mills and that of respondent-company were entirely different---Respondent-company had purchased such Mills in open auction free from all liabilities, claims, encumbrances and charges---Respondent-company, by purchasing such Mills had in actual effect taken a new birth---Respondent-company, after purchase, had not taken upon itself obligation to pay dues to workers of such Mills---Respondent-company could not be assumed to be successor of such Mills, and thus, it was not legally obliged to pay dues to workers of such Mills---Grievance petition was dismissed in circumstances.

Rafique Ahmed, Advocate Supreme Court and Muhammad Mazher Ali B. Chohan, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing; 4th September, 2007.

P L D 2008 Supreme Court 107

Present: Abdul Hameed Dogar and Sardar Muhammad Raza Khan, JJ

IQBAL KHAN---Petitioner

Versus

THE STATE---Respondent

Jail Petition No.215 of 2006, decided on 18th July, 2007.

(On appeal from the judgment dated 27-1-2006 of the Peshawar High Court, Peshawar passed in Criminal Appeal No.533 of 2005).

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

----Ss. 9(c) & 19---Penal Code (XLV of 1860), S.75---Criminal Procedure Code (V of 1898), S.511---Constitution of Pakistan (1973), Art.185(3)---Court while convicting and sentencing the accused under S.75, P.P.C. was obliged to set out in its judgment the particulars of each previous conviction relied upon for awarding sentence---Prosecution, in the present case, had failed to prove that accused was a previous convict of an offence falling within the provisions of Chapters XII and XVII, P.P.C., and as such he could not be convicted under S.75, P.P.C.---Mode to prove previous convictions as required under S.511, Cr.P.C. also had not been applied property; whereunder it was mandatory to produce a certificate signed by the officer in charge of the jail in which the punishment or any part thereof was inflicted or to produce the warrant of commitment under which the punishment was suffered---For violation of the said mode, conviction and sentence of accused under S.75, P.P.C. was not sustainable in law and was set aside accordingly---Prosecution having failed to produce any cogent evidence regarding attainment of assets through trafficking in narcotic substances, sentence of forfeiture of assets of accused under S.19 of the Control of Narcotic Substances Act, 1997, was also set aside---Conviction and sentence of accused under S.9(c) of the said Act having not been challenged was maintained---Petition for leave to appeal after having been converted into appeal was partly allowed in circumstances.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Petitioner.

Sardar Shaukat Hayat, Addl. A.G., N-W.F.P. for the State.

Date of hearing: 18th July, 2007.

P L D 2008 Supreme Court 110

Present: Abdul Hameed Dogar, Muhammad Nawaz Abbasi and Saiyed Saeed Ashhad, JJ

AHMED HUSSAIN alias AMI and others---Petitioners

Versus

THE STATE and others---Respondents

Criminal Petitions Nos.63-K and 64-K to 66-K of 2007, Jail Petition No.91-K of 2007, decided on 1st August, 2007.

(On appeal from the judgment dated 7-4-2007 passed by High Court of Sindh, Karachi in Special Anti-Terrorism Appeals Nos. 58, 59 and 61 of 2003 and Confirmation Case No.14 of 2003).

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

----S. 365-A/34---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Constitution of Pakistan (1973), Art.185(3)---Abductee in his statement in Examination in Chief had categorically stated that two accused had abducted him in a Car whereas the third accused used to visit the place of his detention to provide him food and they all were active members of the gang of culprits---Said portion of the statement of the abductee was not challenged by the defence and so much so, that no suggestion was even put to him in cross-examination that the aforementioned third accused was not an active partner of the other accused persons---Person subsequently associating himself with the accused in the crime might have the same liability under law and defence had failed to show that the third accused was not privy to the crime---In view of the circumstances leading to the occurrence and the subsequent events the accused could safely be inferred to have participated in the crime and incurred equal responsibility of commission of the offence---Petitions were dismissed accordingly.

(b) Criminal trial---

----Liability of a person subsequently joining the accused in the crime---Any person who subsequently associates himself with the accused in the crime, may have the same liability being privy to the crime.

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

----S. 365-A/34---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Constitution of Pakistan (1973) Art.185(3)---Enhancement of sentence---Notwithstanding the difference in the quantum of punishment provided under S.365-A, P.P.C. and S.7(e) of the Anti-Terrorism Act, 1997, the nature of offence under both the provisions is substantially same and consequently in absence of very strong reason no interference could be made in the discretion exercised by the High Court in the matter of sentence---Petitions for leave to appeal filed by the State for enhancement of sentence were dismissed accordingly.

Muhammad Ashraf Kazi, Advocate Supreme Court and Raja Sher Muhammad Khan, Advocate-on-Record for Petitioner (In Cr.P. 63-K of 2007).

Nemo for Petitioners (in Jail Petition No.91-K of 2007).

M. Sarwar Khan, Addl. A.-G. Sindh and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner (in Cr.Ps.Nos.64-K to 66-K of 2007).

Nemo for Respondents.

Date of hearing: 1st August, 2007.

P L D 2008 Supreme Court 115

Present: Iftikhar Muhammad Chaudhry, C.J., Abdul Hameed Dogar and Saiyed Saeed Ashhad, JJ

MUHAMMAD TALHA HUSSAIN alias NOMAN and another---Petitioners

Versus

THE STATE---Respondent

Criminal Petitions Nos. 21-K and 22-K of 2006, decided on 17th May, 2006.

(On appeal from the judgment/order dated 9-3-2006 passed by High Court of Sindh, Karachi in ATAs. Nos.28 and 39 of 2002).

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

----S. 302(b)/34---Anti-Terrorism Act (XXVII of 1997), S.7(i)(a)---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Constitution of Pakistan (1973), Art.185(3)---Prosecution evidence was fully supported by medical evidence---Wife and son of the deceased had testified the truthfulness of the statement of the driver of the deceased, who had immediately disclosed the version to the inmates of the house that two persons had fired and their third companion came on the motorcycle, on which they had fled away---Presence of the driver of the deceased at the place of incident, thus, could not be discarded---Said driver of the deceased had identified the accused in the identification parade in the presence of Judicial Magistrate, describing the roles played by them at the time of commission of the offence---Ballistic Expert report had shown that the crime empties recovered from the place of occurrence had been fired from the pistol recovered from the possession of accused used by him in the commission of the offence---Recovery of incriminating crime weapon could, therefore, be used against the accused as one of the important piece of evidence to establish the guilt---Accused had undoubtedly retracted their confession, but the same could be relied upon, because the events disclosed by all of them for the purpose of commission of the crime in their confessional statements including the manner adopted by them to leave for the house of the deceased etc., was fully corroborated by prosecution evidence available on record-Accused had also disclosed the motive of killing the deceased for sectarian reason, which indicated that their confession was voluntary and true and the same could not be discarded for the sole reason of having been recorded after a delay of ten days in view of the facts and circumstances of the case---Impugned judgment being unexceptionable called for no interference---Leave to appeal was declined to accused in circumstances.

Hamid Javed v State 1988 SCMR 39 ref.

Muhammad Yaqoob v. State 1992 SCMR 1983, Muhammad Ismail v. State 1995 SCMR 1615; Khan Muhammad v. State 1999 SCMR 1818; Ahmed Hassan v. The State 2001 SCMR 505 and State v. Muhammad Shafique 2002 SCMR 620 rel.

(b) Criminal trial---

----Confession---Retracted confession---Retracted confession can be relied upon, provided it gets corroboration on material points.

Muhammad Ashraf Qazi, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Petitioners.

Muhammad Sarwar Khan, Addl. A.-G. Sindh for the State.

P L D 2008 Supreme Court 123

Present: Iftikhar Muhammad Chaudhry, C.J., Safdar Muhammad Raza Khan, Muhammad Nawaz Abbasi, and Mian Shakirullah Jan, JJ

DILAWAR HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.200 of 2003, decided on 9th October, 2007.

(On appeal from the judgment dated 26-3-2002 passed by Lahore High Court, Lahore in Criminal Appeal No.122-J of 2000).

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Contention were that the eye-witnesses were trumpeted-up and not natural witnesses and despite being closely related to the deceased their evidence had been accepted and relied upon without any satisfactory corroboration and that the proceedings with regard to abscondence of accused did not meet the requirements of the law on the subject---Leave to appeal was granted to accused to consider the said contentions and to ascertain whether the principles laid down by Supreme Court for the safe administration of criminal justice were correctly followed while appreciating the evidence on record.

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

----S. 302(b)---Appraisal of evidence---Report of the occurrence had been lodged within reasonable time---Eye-witnesses named in the F.I.R. had narrated the occurrence in its natural sequence quite consistent with the facts given therein---Medical evidence had strongly corroborated the ocular testimony in respect of the time of occurrence, the number and nature of injuries and the weapon of offence used by the accused---In absence of any enmity or ill-will, mere relationship was not a valid ground to discard the evidence of prosecution witnesses and similarly witnesses, non-residents of the locality, were not, as such, unnatural witnesses and their evidence could not be discarded for only such reasons---Accused had a strong motive to commit the crime---No material discrepancy or contradiction was available suggesting even a slight doubt qua the truthfulness of the prosecution evidence---Ocular account was amply supported by independent corroborative evidence---Occurrence could not be shown either not preplanned or a sudden episode----Accused also did not substantiate that he had no intention to kill the deceased or that the injury sustained by the deceased was not direct result of his death---Mere chance of survival could not reduce the liability of accused and death in hospital after sometime also could not be, as such, considered a mitigating circumstance for lesser punishment---Appeal was dismissed accordingly.

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

----S. 302(b)---Appreciation of evidence---Related and a non-resident witness---Principles---Where the parties as well as the witnesses are closely related inter se and also have good relations, then in absence of any enmity or ill-will mere relationship is not a valid ground to discard the evidence of a witness and similarly a witness, non-resident of the locality, is not as such an unnatural witness and his evidence cannot be excluded from consideration.

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

----S. 302(b)---Sentence---Mitigating circumstance---Chance of survival of deceased would not reduce the liability of the accused and similarly death of the deceased in hospital after some time cannot be, as such, considered a mitigating circumstance for lesser punishment.

Sardar M. Latif Khan Khosa, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Appellant.

Dr. Babar Awan, Advocate Supreme Court for the Complainant.

Ch. Munir Sadiq D.P.G. for A.-G. Punjab for the State.

Date of hearing: 9th October, 2007.

P L D 2008 Supreme Court 130

Present: Abdul Hameed Dogar and Ghulam Rabbani, JJ

Syed JUNAID AKHTAR and others---Petitioners

Versus

MANAGING DIRECTOR/CHAIRMAN and others---Respondents

Civil Petition No.581-K of 2006, decided on 5th January, 2007.

(On appeal from the judgment dated 15-11-2006 of the High Court of Sindh, Karachi, in C.M.A.No.1455 of 2005, in Appeal No.172 of 2006).

Civil Procedure Code (V of 1908)---

----O. XLI, R. 19---Application for re-admission of appeal dismissed for non-prosecution---Non-appearance of Attorney and two counsel of appellant at the time when case was called for hearing---Affidavit in support of such application only by first counsel to the effect that he, due to illness of his wife, could not reach court in time---Validity---Appellant's second counsel was equally responsible to explain his absence and file affidavit to explain his absence and support ground of first counsel---Appellant's attorney being equally responsible to pursue his case, his application was dismissed in circumstances.

Zulfiqar Ali v. Lal Din and another 1974 SCMR 162 fol.

Muhammad Sharif, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Petitioners.

Nemo for Respondents.

P L D 2008 Supreme Court 132

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

PROVINCE OF SINDH through Secretary, Home Department and others---Petitioners

Versus

ROSHAN DEEN and others---Respondents

Civil Petition No.246-K of 2006, decided on 16th October, 2006.

(On appeal from the judgment dated 20-4-2006 in C.P.No.D-421 of 2006 passed by the High Court of Sindh, Karachi).

Security of Pakistan Act (XXXV of 1952)---

----S. 3---Constitution of Pakistan (1973), Arts. 199, 14, 15 & 185(3)---Constitutional petition---Detention of petitioner for three months vide order dated 29-10-2005---Non-releasing of petitioner after expiry of said period---Federal and Provincial Governments expressed ignorance about unlawful detention of petitioner---Deputy Superintendent Central Prison produced before High Court copy of letter dated 18-3-2006 from Section Officer of Provincial Home Department addressed to Section Officer of Ministry of Interior seeking orders regarding a further detention of petitioner or, otherwise---Effect---Such letter showed that without any further order of detention having been passed or earlier order being extended or without petitioner being required in any other case, he had been kept in custody for more than two months to the knowledge of Superintendent Jail, who had consciously chosen to seek orders from government officials and defied mandate of the Constitution---According to the Constitution, a citizen could not be deprived of his liberty except in accordance with law---Superintendent Jails had not only violated law by confining petitioner in unlawful custody, but also thought proper to seek further instructions for his detention from relevant quarters, which was none of his business---Provincial Home Department had acted ill-advisedly by approaching Federal Government for extension of time and seeking instructions for further detention of petitioner, whose period of detention had already expired---Unauthorized and illegal confinement of petitioner could not be overlooked or ignored by superior courts for being custodian of the Constitution---Legal duty of courts was to defend and preserve constitutional guarantees and enforce same---Authorities concerned had acted contrary to the mandate of the Constitution---High Court had directed release of petitioner and awarded him compensation at Rs.5,000 per day for violation of his fundamental right and human dignity---High Court had further directed that sum of Rs.4,10,000 would be payable jointly and severally by Superintendent Jail, Section Officer (judicial-II) Home Department and Province of Sindh with liberty to Government to collect same from such officers for causing loss to it under relevant rules---Supreme Court, upheld the judgment of High Court and refused to grant leave to appeal to the Provincial Government.

Mazharuddin v: The State 1998 PCr.LJ 1035; Government of Sindh and others v. Raisa Farooq and others 1994 SCMR 1283 and Muhammad Siddique v. Province of Sindh PLD 1992 Karachi 358 fol.

Akhlaq Ahmad Siddiqui, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 16th October, 2006.

P L D 2008 Supreme Court 135

Present: Rana Bhagwandas and Abdul Hameed Dogar, JJ

MUSLIMABAD COOPERATIVE HOUSING SOCIETY LTD. through Secretary---Petitioner

Versus

Mrs. SIDDIQA FAIZ and others---Respondents

Civil Petition No.150-K of 2005, decided on 26th February, 2007.

(On appeal from the judgment dated 27th October, 2004 of the High Court of Sindh, Karachi, passed in C.P.No.D-308 of 1991).

Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Impugned act of statutory functionary being mala fide---Alternate remedy, availability of---Effect---Availability of alternate remedy would not bar jurisdiction of High Court to entertain constitutional petition---Principles.

High Court will not entertain a writ petition when other appropriate remedy is yet available to petitioner is not a rule of law barring jurisdiction but a rule by which the court regulates its jurisdiction. When a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, then the High Court, in exercise of its writ jurisdiction, has power to grant relief to the aggrieved party.

The Murree Brewery Col. Ltd. v. Pakistan through the Secretary to Government of Pakistan and others PLD 1972 SC 279 fol.

Suleman Habibullah, Advocate-on-Record for Petitioner.

Habibur Rehman, Advocate Supreme Court and A. Aziz Khan, Advocate-on-Record for Respondents No 1 and L.Rs. (a & b).

Nemo for Respondents Nos. 2 and 3.

Date of hearing: 26th December, 2006.

P L D 2008 Supreme Court 140

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

ABDUL HAMEED through L.Rs. and others---Petitioners

Versus

SHAMASUDDIN and others---Respondents

Civil Petition No.376-K of 2007, decided on 15th August, 2007.

(On Appeal from the judgment of High Court of Sindh Hyderabad Bench dated 16-3-2007 passed in IInd Appeal No.10 of 1987).

(a) Pardhanashin lady---

----Execution of document by---Burden of proof---Principles stated.

In the case in which the executant of the document is a pardanasheen or illiterate woman, notwithstanding the fact that she is known to the vendee or is a stranger to him, if she denies the execution of document, the party placing reliance on such document must prove its execution and the burden of proving the negative fact is shifted to such a woman, executant, if the initial burden of proving the genuineness of document is discharged. The identification of an illiterate or pardanasheen woman, vendor, must be established beyond doubt and Court must be vigilant in taking extra care to ascertain the genuineness of a registered document which is alleged to have been executed by an illiterate or ignorant woman or a pardanasheen lady.

Khawas Khan v. Sabir Hussain Shah 2004 SCMR 1259; Ghulam Muhammad v. Farooq Ahmed and others 2002 SCMR 1801 and Arshad Khan v. Mst. Reshman Jhan and others 2005 SCMR 1589 rel.

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

----Arts. 79,117, 118, 127 & 129(e)---Registration Act (XVI of 1908), S.60---Registered sale-deed executed by pardahnashin lady---Denial of execution by lady---Death of lady during proceedings before the appeared in witness box---Non-examination of two marginal witnesses by vendee---Sole statement of vendee on oath regarding sale by lady with her free-will and for valuable consideration---Validity---Such statement of vendee being, beneficiary of transaction, could not be considered sufficient to prove willingness of lady and genuineness of registered sale­-deed---Legal character of document must be established through independent evidence---Courts in such cases of doubtful character must be extra careful to ascertain genuineness of transaction---Presumption of correctness was attached to registered sale-deed, but same being of disputed character, would not be ipso facto considered a valid document of title---Genuineness of sale was, held, not proved in circumstances.

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

----S. 43---Transferee stepping into shoes of transferor, who was not lawful owner of property would not get a better title---Continuous possession of property by such transferor would not improve his title by efflux of time.

K.A. Wahab, Advocate-on-Record for Petitioners.

Neel Kashav, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Respondent No.1.

Date of hearing: 15th August, 2007.

P L D 2008 Supreme Court 146

Present: Muhammad Nawaz Abbasi, Nasir-ul-Mulk and Raja Fayyaz Ahmad, JJ

Ch. GHULAM RASOOL---Petitioner

Versus

Mrs. NUSRAT RASOOL and 4 others---Respondents

Civil Petitions Nos. 2256 and 2241 of 2005, decided on 19th March, 2007.

(On appeal from the judgment dated 18-5-2005 passed in R.F.A.No.51 of 1999 and Cross Objection No.4 of 1999).

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

----O. XXIII, R.1---Specific Relief Act (I of 1877), Ss.12 & 42---Second suit for declaration and specific performance of oral contract---Husband claimed to be owner of suit house and alleged his wife to be its benami owner---First suit between parties on same subject matter withdrawn by husband unconditionally on basis of oral undertaking of wife to transfer house in his name in official record---Refusal of wife to fulfil her part of such oral contract---Second suit by husband for declaring wife as benami owner of house and grant of relief of specific performance of alleged oral contract that wife having acknowledged ownership of house of husband, had agreed to transfer same in his name in official record--Maintainability-Real controversy between parties in both suits related to ownership of house---Cause of action and relief claimed in first and second suit were same---Cause of action in second suit was in continuation of cause of action in first suit and there was no fresh cause of action in favour of husband in second suit---Husband having withdrawn first suit without permission of court to file fresh suit had relinquished his claim, thus, was precluded from filing second suit on same subject-matter---Terms of alleged oral contract were not mentioned either in application for withdrawal of first suit or order of court passed on such application---Nothing on record to show that application for withdrawal of first suit was moved with consent and knowledge of wife---Mere oral assertion of husband, in absence of any independent evidence in proof of existence of valid agreement would not be sufficient to prove existence of alleged oral contract---Second suit to the extent of declaration in respect of benami character of transaction being barred under O.XXIII, R.1, C.P.C., was not maintainable---Relief regarding specific performance of alleged oral contract could not be granted for want of proof of existence of any valid contract between parties enforceable in law---Second suit was dismissed for being not maintainable---Principles.

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

----Ss. 2 &10---Transfer of Property Act (IV of 1882), Ss.54 & 122-'Contract' and a `promise'---Distinction between both such terms and their enforceability in law stated.

A promise ripens into an agreement only after an offer is accepted but every promise is not necessarily an agreement. There is difference between the contract and a promise as a valid contract creates obligation and is capable of enforcement in law whereas a mere promise to render service or to hand over certain property moveable or immoveable to a person without any consideration may not create a contractual obligation to be enforced in law. It is thus necessary for the party claiming the creation of a legal right in the moveable or immovable property under an agreement to prove the existence of such an agreement and its legal force. The transfer of the title of the immoveable property for love and affection or for such other reasons by way of gift or will may create right in the property but a promise for transfer of title without any consideration may not constitute a contract capable of enforcement in law. The promise to perform certain act without any consideration may have moral value but such promise neither creates a contractual obligation nor a legal right and thus a promise in absence of essential terms of consideration may have no binding force and legal effect. The acceptance of a proposal may bring into existence a promise but to have an agreement, it is essential that there should be consideration for promise without which the promise may not have the legal status of an agreement.

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

----Ss. 2 & 10---Agreement---Proof and enforceability---Intention of parties must be proved to constitute a binding agreement---Agreement by which parties did not intend to create any legal obligation, would not be enforceable in law.

(d) Benami transaction---

----Proof---Existence of two essential elements required to establish benami status of transaction stated.

Two essential elements must exist to establish the benami status of the transaction. The first element is that there must be an agreement, express or implied, between the ostensible owner and the purchaser for purchase of the property in the name of ostensible owner for the benefit of the person who has to make payment of the consideration and second element required to be proved is that transaction was actually entered between the real purchaser and seller to which ostensible owner was not party.

Gul Zarin Kiani, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner (in both cases).

Najam-ul-Hassan Kazmi, Advocate Supreme Court, Abdul Rashid Awan, Advocate Supreme Court and Arshad Ali Ch. Advocate-­on-Record for Respondents (in both cases).

Date of hearing: 19th March, 2007.

P L D 2008 Supreme Court 155

Present: Rana Bhagwandas, Actg. C.J., Javed Iqbal and Sardar Muhammad Raza Khan, JJ

ASMATULLAH---Appellant

Versus

AMANAT ULLAH through Legal Representatives-Respondents

Civil Appeal No.577 of 2005, decided on 14th June, 2007.

(On appeal from the judgment dated 31-3-2005 passed by Lahore High Court, Bahawalpur Bench, Bahawalpur in C.R.No.232-D-96-BWP).

Civil Procedure Code (V of 1908)---

----S. 115---Concurrent findings of fact of courts below---Interference with such findings by High Court in exercise of its revisional jurisdiction---Principles.

High Court while exercising its jurisdiction as conferred upon it under section 115 CPC can interfere when the concurrent findings of fact are based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of facts, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where unreasonable view has been taken which is not in consonance with the evidence.

Mian Allah Nawaz, Advocate Supreme Court and Arshad Ali Chaudhary, Advocate-on-Record for Appellant.

Muhammad Munir Paracha, Advocate Supreme Court for Respondent No.1.

G.N. Gohar, Advocate-on-Record for Respondent No.2.

Respondent No.3: Ex parte.

Date of hearing: 14th June, 2007.

P L D 2008 Supreme Court 160

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan and Muhammad Moosa K. Leghari, JJ

MUHAMMAD BASHIR---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 313 of 2007, decided on 14h November, 2007.

(On appeal from the judgment dated 4-12-2006 of the Lahore High Court, Rawalpindi Bench in Cr.A. 52 of 2001).

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

----S. 302(b)---High Court (Lahore) Rules and Orders, Vol. III, Chap.XXIV, Part-C---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to consider whether appeal involving death sentence could be decided in absence of counsel.

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

----S. 302(b)---High Court (Lahore) Rules and Orders, Vol. III, Chap.XXIV, Part-C---Appeal---Decision in absentia---Accused was convicted and sentenced to death penalty---High Court, without hearing counsel of accused, dismissed his appeal and maintained death sentence---Validity---High Court (Lahore) Rules and Orders, Vol. III, Chap. XXIV, Part-C provided that every person charged with committing offence with death should have legal assistance at his trial either in Court of Session or in High Court---Such was statutory right of accused to be represented by counsel in case where capital punishment was awarded---Judgment passed by High Court was set aside and case was remanded to High Court for decision afresh on appeal of accused.

Muhammad Sharif v. The State PLD 1973 Lah. 365; Major(R) Nadir Ali v. The State PLD 2003 Quetta 77 and Muhammad Bakhsh v. The State 1986 SCMR 59 rel.

Ch. M. Akram, Advocate Supreme Court for Appellant.

Ch. Munir Sadiq, DPG, Punjab for the State.

Date of hearing: 14th November, 2007.

P L D 2008 Supreme Court 164

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan and Muhammad Moosa K. Leghari, JJ

ACCOUNTANT GENERAL FOR PAKISTAN (REVENUE) through Auditor-General and another---Petitioners

Versus

ZIA MOHY-UD-DIN and 3 others---Respondents

Civil Petitions Nos. 1382-L to 1385-L of 2007, decided on 26th November, 2007.

(On appeal from the judgment dated 19-6-2007 of the Lahore High Court, Lahore passed in W.P. Nos. 19402 and 19643 of 2001, 19411 and 13600 of 2002)

Law Reforms Ordinance (XII of 1972)---

----S. 3---Constitution of Pakistan (1973), Arts. 185(3) &c 199---Intra-Court Appeal---Maintainability---Constitutional petitions filed by petitioners were-dismissed by High Court and such order of High Court was assailed before Supreme Court---Contention of petitioners was that in view of S.3(2) of Law Reforms Ordinance, 1972, Intra Court appeal was competent which remedy had not been availed by them---Petitioners further contended that High Court decided constitutional petitions in exercise of original jurisdiction as such the judgment should have been challenged by way of Intra Court Appeal---Effect---Provisions of law having not been complied with, therefore, petitions for leave to appeal were not competently filed---Supreme Court, in view of the request of petitioners, allowed them to file Intra Court Appeal---Supreme Court advised High court to consider question of condonation of delay, in case Intra Court Appeal was filed---Petition was disposed of accordingly.

Commissioner of Income Tax and others v. Mts. Media Network and others PLD 2006 SC 787 and Pakistan International Airlines Corporation through Chairman and others v. Samina Masood and others PLD 2005 SC 831 ref.

Syed Iftikhar Hussain Shah, D.A.-G. for Petitioners.

Kh. Saeed-uz-Zaffar, Advocate Supreme Court for Respondents.

Date of hearing: 26th November, 2007.

P L D 2008 Supreme Court 166

Present: Muhammad Nawaz Abbasi, Saiyed Saeed Ashhad and Raja Fayyaz Ahmad, JJ

Civil Review Petition No.80 of 2003 in Civil Petition No.1139-K of 2002

MANSUR-UL-HAQUE---Petitioner

Versus

GOVERNMENT OF PAKISTAN---Respondent

(On review from the judgment dated 1-4-2003 passed by Supreme Court of Pakistan in C.P. No.1139-K of 2002)

Criminal Petitions Nos. 164 & 165 of 2004

THE STATE through NAB, Islamabad---Petitioner

Versus

Commodore (R.) MIRZA ASHFAQ BAIG and another---Respondents

(On appeal from the judgment dated 4-3-2004 passed by High Court of Sindh at Karachi in Criminal Accountability Appeal No. 1 of 2004).

Civil Review Petition No.80 of 2003 in Civil Petition No.1139-K of 2002, and Criminal Petitions Nos.164 & 165 of 2004, decided on 2nd April, 2007.

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

----Ss. 9(a)(vi) & 14(a)---Constitution of Pakistan (1973), Art.185(3)---Corruption and corrupt practices---Misuse of authority---Mens rea---Initial burden of proof---Procedural irregularities and violation of substantial provisions of law---Effect---Conviction and sentence awarded to accused persons was set aside by High Court and they were acquitted---Validity---Essential elements of mens rea and intention to commit an offence under S.9(a)(vi) of National Accountability Ordinance, 1999, were not traceable in the transaction---Authorities also failed to prove that accused acted for their personal gain at the cost of' causing financial loss to the organization (Pakistan Naval Shipping Corporation) or ships in question were not of viable technology and were not that of international standard and specification---Mere procedural irregularities in transaction were not sufficient to constitute offence under S.9(a)(vi) of National Accountability Ordinance, 1999---Essential to draw distinction between procedural irregularities and violation of substantial provisions of law to determine question of criminal liability in transaction---Procedural irregularity might bring an act done in official capacity within the ambit of misconduct which was distinguishable from criminal misconduct---Act which might constitute an offence and unless it was established through evidence that such act or series of acts done in transaction constituted an offence, the criminal charge would be groundless---Accused might have committed certain procedural irregularities constituting act of misconduct in contemplation of law applicable to their service but the same might not have constituted a criminal offence under S.9(a)(vi) of National Accountability Ordinance, 1999, punishable under S.10 of the Ordinance or under any other law without proof of the existence of element of dishonest intention of personal gain---Prosecution failed to discharge initial burden of proving even a prima facie case constituting an offence under National Accountability Ordinance, 1999---Supreme Court declined to interfere with judgment passed by High Court---Leave to appeal was refused.

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

----S. 14---Presumption---Principle of shifting of onus---Applicability---Notwithstanding special provision of shifting of burden of proof, fundamental principle of law of criminal administration of justice that basic onus is always on prosecution to establish commission of offence is not changed---Prosecution having advantage of provisions of S.14(a) of National Accountability Ordinance, 1999, may not be under heavy burden to discharge onus of proving the charge as the court may, on discharge of initial burden of proving prima facie case by prosecution, raise a presumption of guilt---In the light of concept of criminal administration of justice, prosecution is not absolved of its duty to prove the charge beyond reasonable doubt under National Accountability Ordinance, 1999---Burden of proof is only shifted on person facing charge if prosecution succeeds in making out a reasonable case by discharging initial burden of proving the charge.

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

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Petitioner (in Civil Review Petition No.80 of 2003 in Civil Petition No.1139-K of 2002).

Raja Muhammad Ibrahim Satti, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent-(in Civil Review Petition No.80 of 2003 in Civil Petition No.1139-K of 2002).

Raja Muhammad Ibrahim Satti, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner (in Criminal Petitions Nos.164 & 165 of 2004).

Respondent No.1 (in person) (in Criminal Petition No.164 of 2004).

Iqtadar Hussain Hashmi, Advocate-Supreme Court for Respondent No.2 (in Criminal Petition No.165 of 2004).

Date of hearing: 2nd April, 2007.

P L D 2008 Supreme Court 178

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan, Muhammad Qaim Jan Khan, Muhammad Moosa K. Leghari, Ch. Ejaz Yousaf, Muhammad Akhtar Shabbir and Zia Perwez, JJ

TIKA IQBAL MUHAMMAD KHAN and others---Petitioners

Versus

General PERVEZ MUSHARAF and others---Respondents

Constitutional Petitions Nos.87 and 88 of 2007, decided on 23rd November, 2007.

(a) Proclamation of Emergency, dated 3-11-2007---

---Provisional Constitution Order (1 of 2007), Preamble---Oath of Office (Judges) Order, 2007, Preamble---Constitution of Pakistan (1973), Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution---Maintainability---Vires of Proclamation of Emergency, dated 3-11-2007; Provisional Constitution Order, 2007 and Oath of Office (Judges) Order, 2007---Held, Supreme Court is competent to examine the vires of the Proclamation of Emergency, dated 3-11-2007; Provisional Constitution Order, 2007 and Oath of Office (Judges) Order, 2007 until these measures are protected by making an amendment in the Constitution---Petitions under Art.184(3) of the Constitution are, therefore, maintainable.

Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869 reaffirmed.

(b) Proclamation of Emergency, dated 3-11-2007---

---Objects and reasons---Proclamation of Emergency, dated 3-11-2007 cannot be seen in isolation but has to be examined in the context of the historical process of the country.

The Proclamation of Emergency is essentially founded on two main grounds, viz., the security situation prevalent in the country and the erosion of trichotomy of powers in consequence of increased interference in the Government policies by some former Judges of the superior Courts, particularly the former Chief Justice of Pakistan, which adversely affected the economic growth and the law and order situation in the country. By letter of 3rd November, 2007, on the subject of "national security situation", the Prime Minister apprised the President of Pakistan as to the magnitude of extremism, militancy and terrorism, which were going on in the country and the widespread perception of overstepping the limits of judicial authority and taking over of executive functions. Along with the letter, the Prime Minister enclosed details of law and order incidents during the period from April to October, 2007 posing grave threat to internal security of the country.

The Proclamation of Emergency of 3rd November, 2007 cannot be seen in isolation, but has to be examined in the context of the historical process of the country.

Prime Minister of Pakistan's letter to the President on National Security situation; Presidential address, dated 3-11-2007 and Wasey Zafar v. Government of Pakistan PLD 1994 SC 621 quoted.

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

---Art. 209---Supreme Judicial Council---Reference to Supreme Judicial Council---Scope---Direction cannot be issued to the. Supreme Judicial Council to initiate proceedings of judicial misconduct against any Judge of a Superior Court at the instance of a lawyer or a citizen---Supreme Court as also a High Court is prohibited to take upon themselves the exercise to record even tentative finding that a particular Judge has committed misconduct warranting filing of a Reference against him under Art.209 of the Constitution---On the same analogy, no direction could be issued to the Supreme Judicial Council to stay its hands off the Reference filed against the (former) Chief Justice of Pakistan, what to speak of quashing the Reference altogether.

Muhammad Ikram Chaudhry v. Federation of Pakistan PLD 1998 SC 103 ref.

(d) Administration of justice---

---Judicial accountability is a cardinal principle of the system of Administration of Justice and is essential to its successful working and discussion on the subject.

Justice at Cross Roads by V.R. Krishna Iyer rel.

(e) Constitution of Pakistan (1973)---

----Art. 184(3)---Right of access to justice to all and the exercise of jurisdiction and power by the Supreme Court---Scope.

Government of Balochistan v. Azizullah Memon PLD 1993 SC 341 rel.

(f) Constitution of Pakistan (1973)---

----Art. 184(3)-Public interest litigation---Judicial activism---Scope.

Public Interest Litigation and Judicial Activism by M.N. Rao rel.

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

----Art. 184(3)---Original jurisdiction of Supreme Court under Art.184(3) of the Constitution---Scope---"Judicial" and "legislative act"---Distinction---Power and jurisdiction under Art.184(3) of the Constitution cannot be invoked for redress of individual grievances.

Judicial Review of Public Actions, 1st Edn. 2006; B.Z. Kaikaus v. President of Pakistan PLD 1980 SC 160; Treatise on Constitutional Law, Substance and Procedure by Ronald D. Rotunda & John E. Nowak, Second Edna 1992, Vol. 1, Chap. 2, 5.2.13; Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66 at pp.144, 145; Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Noor Jehan v. Federation of Pakistan 1997 SCMR 160; Zulfiqar Mehdi v. Pakistan International Airlines Corporation 1998 SCMR 793; WAPDA v. Saadullah Khan 1999 SCMR 319; Muhammad Shahbaz Sharif v. Federation of Pakistan PLD 2004 SC 583 and Pakistan Muslim League (N) v. Federation of Pakistan PLD 2007 SC 642 rel.

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

----Preamble---Pakistan has a parliamentary system and the Constitution is based on the principle of trichotomy of powers whereunder all the three organs of the State, namely the legislative, executive and the judiciary are required to perform their functions and exercise their powers within their allotted sphere---Theory of trichotomy of powers is the foundation of the Constitutional scheme---Each organ of the State is equally important and each has definite role to play---None is permitted to intrude into the domain of the other.

The State v. Zia-ur-Rehman PLD 1973 SC 49; Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445; American Jurisprudence, 2nd Edn., Vol. 16A (1998) and Divisional Manager v. Chander Dass Appeal (civil) No.5732 of 2007 rel.

(i) Proclamation of Emergency, dated 3-11-2007---

----Constitution of Pakistan (1973), Art.184(3)---Constitutional petition under Art.184(3) of the Constitution---Vires of Proclamation of Emergency, dated 3-11-2007---Chief of Army Staff, held, justifiably decided to take extra-Constitutional step by means of Proclamation of Emergency as in the past the Constitutional deviations by the Chief Army Staff/Armed Forces were validated by the Parliament in similar circumstances.

(j) Proclamation of Emergency, dated 3-11-2007---

----Provisional Constitution Order (1 of 2007), Preamble---Oath of Office (Judges) Order, 2007, Preamble---Constitution of Pakistan (1973), Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution---Vires of Proclamation of Emergency, dated 3-11-2007, Provisional Constitution Order, 2007 and Oath of Office (Judges) Order, 2007---Maxim: Salus popuh est suprema lex---Applicability---Held, if the actions of 3-11-2007 were not taken, there would have been chaos and anarchy in the country---Said actions were taken by the Chief of Army Staff in the larger interests of the State and for the welfare of the people in consonance with the maxim Salus populi est suprema lex---Principle of Salus populi est suprema lex and the principle of State necessity described.

Hastings Law Journal (USA, April, 1994; American Jurisprudence, 2nd Edn. (1998), Vol. 16A, S.322, p.259 and Re: Reference by, H.E. the Governor-General PLD 1955 FC 435 rel.

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

----Art. 232---Proclamation of Emergency---Principle of derogation or deviation, as the case may be, is accepted even in international charters on protection of human rights---Need to have extra powers during emergency---Principles.

European Commission on Human Rights, Art.15; Basu's Human Rights in Constitutional Law, 2nd Edn. 2003, p.537; Muhammad Umer Khan's case PLD 1953 Lah. 528; State v. Dosso. PLD 1958 SC 533; Asma Mani v. Government of Punjab PLD 1972 SC 139 and Begum Nusrat Bhutto v. Chief of Army Staff PLD 1977 SC 657 rel.

(l) Proclamation of Emergency, dated 3-11-2007---

----Constitution of Pakistan (1973), Art.184(3)---Constitutional petition under Art.184(3) of the Constitution---Vires of Proclamation of Emergency, dated 3-11-2007---Held, Proclamation of Emergency of 3-11-2007 cannot be seen in isolation, but has to be examined in the context of the historical process of the country.

(m) Oath of Office (Judges) Order, 2007---

----Constitution of Pakistan (1973), Art.184(3)---Constitutional petition under Art.184(3) of the Constitution---Vires of Oath of Office (Judges) Order, 2007---Past and closed transaction, doctrine of---Applicability---Held, Chief Justices and Judges of the Superior Courts (Supreme Court of Pakistan, Federal Shariat Court and the High Courts), who were not given, or who did not make, oath under the Oath of Office (Judges) Order, 2007 had ceased to hold their respective offices on 3-11-2007 and their cases cannot be re-opened being hit by the doctrine of past and closed transaction---Upon Proclamation of Emergency, dated 3-11-2007 the Provisional Constitution Order, 2007 and the Oath of Office (Judges) Order, 2007, the former Chief Justice of Pakistan and other former Judges of Superior Courts had ceased to hold office, thereafter any order passed or function performed by them was void, coram non judice and of no legal effect or consequence---Held further, that no particular course had been provided under the Constitution to meet a situation where any organ of the State, particularly when some former Judges of the Superior Courts transgressed their constitutional limits and took upon themselves the execution of the functions of the executive or legislative branches of the government, thereby bringing the functioning of the Government to a standstill---Instances of such transgressions recorded.

Begum Nusrat Bhutto v. Chief of Army Staff PLD 1977 SC 657 reaffirmed.

(n) Revocation of Proclamation of Emergency Order, 2007---

----Effect.

On 15th December, 2007, through the Revocation of Proclamation of Emergency Order, 2007, the emergency was revoked, the Provisional Constitution Order No.1 of 2007 was repealed, the Constitution as amended by the Constitution (Amendment) Order, 2007 (P.O. No.5 of 2007) and the Constitution (Second Amendment) Order, 2007 (P.O. No.6 of 2007) was revived and the Chief Justice of Pakistan and Judges of the Supreme Court, the Chief Justice and the Judges of the Federal Shariat Court and Chief Justice and the Judges of the High Courts holding office at the time of revival of the Constitution took oath under the Constitution in the form set out in the Third Schedule to the Constitution. The Revocation Order also provided that the said revocation or repeal shall not revive anything not in force or existing at the time of revocation or repeal or affect the previous operation of any law or anything done or purported to, or suffered to have been done under the Proclamation of Emergency, the Provisional Constitution Order and the Oath of Office (Judges) Order, 2007. The above revocation or repeal would also not affect any right, privilege, obligation or liability acquired, accrued or incurred under the Proclamation of Emergency, the Provisional Constitution Order and the Oath of Office (Judges) Order, 2007.

(o) Oath of Office (Judges) Order, 2007---

---Art. 3---High Court Judges (Pensionary Benefits) Order (8 of 2007), Preamble---Supreme Court Judges (Pensionary Benefits) Order (9 of 2007), Preamble---Constitution of Pakistan (1973), Art.207(3)---Permanent. Judges, who had ceased to hold office of a Judge of High Court in terms of Art.3, Oath of Office (Judges) Order, 2007 were entitled to full pension and other retirement benefits admissible to a permanent Judge of a High Court and the provisions of Art.207(3) of the Constitution would apply to such Judge---Likewise a Judge of the Supreme Court, who had ceased to hold office in pursuance of Art.3 of the Oath of Office (Judges) Order, 2007, would be entitled to full pension and other retirement benefits calculated on that basis---Former judges, thus, would be at liberty to avail the pensionary benefits in terms of the Presidential Orders 8 and 9 of 2007.

(p) Proclamation of Emergency, dated 3-11-2007---

---Suspension of Fundamental Rights---Restrictions on the media---Held, during the period of Emergency, Yellow Journalism touched heights and attempts to malign the institutions of the State were made, which was an unhealthy sign in this noble profession---Supreme Court observed that it should be hoped that some thought would be given to this aspect of the matter at the appropriate level and an effort made to draw a line somewhere.

(q) Constitution of Pakistan (1973)---

---Arts. 270AAA(3), 89(2) & 128(2)---Provisional Constitution Order (1 of 2007), Preamble---Proclamation of Emergency, dated 3-11-2007---Duration of Ordinances in force at the time of, or during the Proclamation of Emergency and the Provisional Constitution Order, 2007---Held, Ordinances promulgated and legislative measures taken by the President, or as the case may be, by the Governor, which were in force at the time of, or during the period for which the Proclamation of Emergency, dated 3-11-2007 held the field, would continue to be in force by virtue of the Provisional Constitution Order, 2007 read with Art.270AAA(3) of the Constitution, until altered, repealed or amended by the appropriate Legislature and there would be no question of expiry of these Ordinances in terms of Art.89(2), or as the case may be, under Art.128(2) of the Constitution.

Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426; Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869; Mrs. Keayus Byrne v. M. Obaidurllah Khan PLD 1961 [W.P.] Lah. 256; Badrul Haque Khan v. The Election Tribunal Dacca PLD 1963 SC 704; Abu Farida Khan v. East Pakistan PLD 1964 Dacca 473; Hashmat Ali v. Abdul Karim PLD 1968 Lah. 188; Sheikh Atta Muhammad v. Mian Muhammad Abdullah PLD 1971 Lah. 210 and Malik Muzaffar Khan v. Government of the Punjab 1980 SCMR 121 ref.

(r) Proclamation of Emergency dated 3-11-2007---

----Provisional Constitution Order (1 of 2007), Preamble---Oath of Office (Judges) Order, 2007, Preamble---Constitution (Amendment) Order (5 of 2007), Preamble---Provisional Constitution (Amendment) Order, 2007, Preamble---Constitution of Pakistan (1973), Art.184(3)--Constitutional petition under Art. 184(3) of the Constitution---Vires of Proclamation of Emergency dated 3-11-2007; Provisional Constitution Order, 2007 and Oath of Office (Judges) Order, 2007---Held, sum total of the circumstances led to a situation where the running of the government in accordance with the provisions of the Constitution had become impossible for which the Constitution provided no remedy or satisfactory solution and there was a strong apprehension of disastrous consequences ensuing in case the action of 3-11-2007 had not been taken by the Chief of Army Staff/President---Sufficient corroborative material had been produced by the authorities, justifying the taking of the extra-constitutional measures by the Chief of Army Staff/President---Situation which led to the issuance of Proclamation of Emergency of 3-11-2007 as well as the other two Orders was similar to the situation which prevailed in the country on 5-7-1977 and 12-11-1999 warranting the extra-constitutional steps, which had been validated by the. Supreme Court in Begum Nusrat Bhutto v. Chief of Army Staff PLD 1977 SC 657 and Syed Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869 in the interest of the State and for the welfare of the people, coupled with the fact that the Constitution was not abrogated, but merely held in abeyance---Supreme Court, after recording findings on the situation obtaining in the recent past in the country and, pointing out the transgression of constitutional limits by some members of the superior judiciary by way of judicial activism ignoring the well-entrenched principles of judicial restraint, disposed of the constitutional petitions and passed order and issued directions.

Following is the text of order passed and directions issued by the Supreme Court:--

"We, therefore, hold that-

(i) the Constitution of the Islamic Republic of Pakistan, 1973 still remains to be the supreme law of the land albeit certain parts thereof have been held in abeyance in the larger interest of the country and the people of Pakistan;

(ii) the extra-constitutional steps of Proclamation of Emergency of the 3rd day of November, 2007, the Provisional Constitution Order No.1 of 2007, the Provisional Constitution (Amendment) Order, 2007, the Oath of Office (Judges) Order, 2007 and the President's Order No. 5 of 2007 are hereby declared to have been validly made by the Chief of Army Staff/President subject to the condition that the country shall be governed, as nearly as may be, in accordance with the Constitution. All acts and actions taken for the orderly running of the State and for the advancement and good of the people are also validated. In absence of the Parliament, General Pervez Musharraf, Chief of Army Staff/President, in pursuance of the Proclamation of Emergency of the 3rd day of November, 2007 may, in the larger public interest and the safety, security and integrity of Pakistan, under the principle of salus populi est supremo lex, may perform-

(a) all acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it;

(b) all acts which tend to advance or promote the good of the people; and

(c) all acts required to be done for the ordinary orderly running of the State."

"We further hold and direct as under: -

(i) The old Legal Order has not been completely suppressed or destroyed, but it is a case of constitutional deviation for a limited transitional period;

(ii) constitutional amendments can be resorted to only if the Constitution fails to provide a solution for the attainment of the declared objectives of the Chief of Army Staff/President, but without affecting the salient features of the Constitution, i.e. independence of Judiciary, federalism, parliamentary form of Government blended with Islamic provisions;

(iii) the President, the Federal Government and the Election Commission of Pakistan shall ensure the holding of fair, free and transparent elections as required by the Constitution and the law;

(iv) the Superior Courts continue to have the power of judicial review, to judge the validity of any act or action of the Chief of Army Staff, or the President notwithstanding the ouster of their jurisdiction by the aforesaid extra-constitutional measures;

(v) the Chief Justices and Judges of the superior courts (Supreme Court of Pakistan, Federal Shariat Court and the High Courts) are subject to accountability only before the Supreme Judicial Council in accordance with the procedure laid down in Article 209 of the Constitution;

(vi) the learned Chief Justices and Judges of the superior courts, (Supreme Court of Pakistan, Federal Shariat Court and the High Courts), who have not been given, and who have not made, oath under the Oath of Office (Judges) Order, 2007 have ceased to hold their respective offices on the 3rd of November, 2007. Their cases cannot be re-opened being hit by the doctrine of past and closed transaction; and

(vii) the Proclamation of Emergency of the 3rd day of November, 2007 shall be revoked by the President and/or the Chief of Army Staff at the earliest so that the period of constitutional deviation is brought to an end. However, this Court may, at any stage, re-examine the continuation of the Proclamation of Emergency if the circumstances so warrant."

Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657 and Syed Zafar Ali Shah v. Pervez Musharaf, Chief Executive of Pakistan PLD 2000 SC 869 ref.

Irfan Qadir, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Petitioner (in Constitutional Petition No.87 of 2007).

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, Raja M. Ibrahim Satti, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondent No.1 (in Constitutional Petition No.87 of 2007).

Malik Muhammad Qayyum, Attorney-General for Pakistan, Ms. Nahida Mehboob Elahi, D.A.-G., Sardar Muhammad Ghazi, D.A.G., Raja Niaz Ahmed Rathore, D.A.G., M. Aslam Naqi, Advocate Supreme Court, Ch. Naseer Ahmad, Advocate Supreme Court and Haji M. Rafi Siddiqui, Advocate Supreme Court/Advocate-on-Record for Respondents Nos. 2 and 3 (in Constitutional Petition No.87 of 2007).

Barrister Zafar Ullah Khan, Advocate Supreme Court and G.N. Gohar, Advocate Supreme Court for Petitioner (in Constitutional Petition No.88 of 2007).

Malik Muhammad Qayyum, Attorney General for Pakistan, Ms. Nahida Mehboob Elahi, D.A.G., Sardar Muhammad Ghazi, D.A.G., Raja Niaz Ahmed Rathore, D.A.G., M. Aslam Naqi, Advocate Supreme Court, Ch. Naseer Ahmad, Advocate Supreme Court and Haji M. Rafi Siddiqui, Advocate Supreme Court/Advocate-on-Record for Respondents. Nos. 1 and 3 (in Constitutional Petition No.88 of 2007).

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, Raja M. Ibrahim Satti, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondents Nos. 2 and 4 (in Constitutional Petition No.88 of 2007).

Dates of hearing: 19th, 20th, 21st, 22nd and 23rd November, 2007.

P L D 2008 Supreme Court 298

Present: Faqir Muhammad Khokhar, Ijaz-ul-Hassan Khan and Zia Perwez, JJ

RAHIMULLAH JAN---Petitioner

Versus

KASHIF and another---Respondents

Criminal Petitions for Leave to Appeal Nos. 142-P, 143-P and 144-P of 2003, decided on 3rd January, 2008.

(Against the judgment dated 16-7-2'003 passed by the Peshawar High Court, Peshawar in Criminal Appeal No.205/2002, Criminal Revision No.80/2002, Criminal Appeal No.236/2000 and Criminal Appeal No.461 of 2000).

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

----S. 417---Constitution of Pakistan (1973), Art. 185(3)---Appeal against acquittal---Powers of superior courts---Scope.

When an accused person is acquitted from the charge by a court of competent jurisdiction, then double presumption of innocence is attached to its order, with which the superior courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record.

(b) Criminal trial---

----Absconcion of accused---Evidentiary value---Mere absconsion would rot be taken as conclusive proof of guilt of accused and same being a suspicious circumstance against him could not take the place of proof---Principles.

Mere absconsion is not conclusive proof of guilt of accusedperson. It is only a suspicious circumstance against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof. The value of abscondence, therefore, depends on the facts of each case. The absconsion of the accused may be consistent with the guilt or innocence of the accused, which is to be decided keeping in view overall facts of the case.

(c) Criminal trial---

----Medical evidence---Evidentiary value---Medical evidence would not connect accused with commission of offence---Principles.

Medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence, but it would not connect the accused with the commission of the crime.

(d) Criminal trial---

----Recovery of blood from spot---Evidentiary value---Such recovery would establish venue of occurrence, but would not connect accused in any manner with commission of offence.

Ch. Afrasiab Khan, Advocate Supreme Court for Petitioner.

Respondents (in person).

Date of hearing: 3rd January, 2008.

P L D 2008 Supreme Court 301

Present: Abdul Hameed Dogar, C.J., Muhammad Moosa K. Leghari and Mian Hamid Farooq, JJ

REHMAT ALI JOHAR---Appellant

Versus

ADDITIONAL CHIEF ENGINEER and others---Respondents

Civil Appeal No.1377 of 2006, decided on 1st January, 2008.

(On appeal from the judgment dated 7-4-2006 passed by High Court of Balochistan, Quetta in C.P. No.866 of 2005).

(a) Pakistan Army Act (XXXIX of 1952)---

----Ss. 7 & 8(1)---Constitution of Pakistan (1973), Arts. 185(3) & 199---Civilian Officer working in Engineer-in-Chief Branch of Army---Initiation of action against such civilian officer under Field General Court Martial---Constitutional petition filed against such action, dismissal of---Validity---Supreme Court granted leave to appeal to consider questions as to what was exact import and implication of provisions contained in S.2(1)(c) of Pakistan Army Act, 1952; what would "active service" mean as defined in S.8 of Pakistan Army Act, 1952 and whether petitioner would fall within ambit of active service or otherwise; what was significance and import of Notification dated 3-1-1975 issued under S.7 of Act, 1952; and whether impugned judgment of High Court was in consonance with dictum as laid down in cases reported as 1993 SCMR 1, 2005 SCMR 1767 and 1999 SCMR 664.

Fasihuddin v. Khawar Latif Butt 1993 SCMR 1; Secretary, Ministry of Defence v. Zahoor Ahmed Javed 2005 SCMR 1767, Federation of Pakistan v. Khurshid Ahmed 1999 SCMR 664 ref.

(b) Pakistan Army Act (XXXIX of 1952)---

----Ss. 2(1)(c), 7 & 8(1)---Civilian Officer working Engineer-in-Chief Branch of Army---Initiation of action against such officer under Field General Court Martial---Validity---Such officer was not a regular officer of Armed Forces, but was serving in Organization attached with such Force on active service engaged in military operation---Such officer was not covered by definition of "active service" as contained in S.8(1) of Pakistan Army Act, 1952, but was covered by Notification dated 3-1-1975 issued under S.7 thereof, thus, he was subject to provisions of Pakistan Army Act, 1952 for purpose of Field General Court Martial.

Secretary, Ministry of Defence v. Zahoor Ahmed Javed 2005 SCMR 1767 and Federation of Pakistan v: Khurshid Ahmed 1999 SCMR 664 rel.

Appellant in person.

Mujeeb-ur-Rehman, Advocate Supreme Court, Col. Hafeez Jehangiri, JAG Deptt. and M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 1st January, 2008.

P L D 2008 Supreme Court 306

Present: Abdul Hameed Dogar C.J., Ijaz-ul-Hassan Khan and Muhammad Moosa K. Leghari, JJ

Pir MAZHARUL HAQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.255 of 1998, decided on 10th December, 2007.

(On appeal from the judgment and order of the High Court of Sindh, Karachi, dated 8-10-1998 passed in Ehtesab Reference No.6 of 1997).

Ehtesab Act (IX of 1997)---

---Ss. 3 & 4---Corruption and corrupt practices, offence of---Charge against accused (Minister) was that he had allotted plot to co-accused at throw away price during imposition of ban on its allotment---Summary for allotment floated by Department concerned to Chief Minister was routed through accused Minister---Noting of the summary by accused Minister was that Chief Minister might relax ban as same was causing hardship to people---Order of Chief Minister for allotment of plot to co-accused at reserved price---Effect---Such noting was not tainted with malice, but was in general terms and was not specifically meant for plot in question---Chief Minister had allotted plot and fixed reserve price---Nothing was available on record to show that accused Minister had either obtained any material and pecuniary gain by such allotment or acted with intention to achieve wrongful gain for himself or with purpose of causing loss to exchequer---Co-accused had already been acquitted---No loss had been caused to exchequer as co-accused had surrendered plot---Accused Minister was acquitted of the charge in circumstances.

Pir Mazharul Haq and others v. The State through Chief Ehtesab Commissioner, Islamabad PLD 2005 SC 63; Mir Munawar Ali Talpur v. State through Chief Ehtesab Commissioner, Islamabad and 2 others PLD 2003 SC 46; Ramesh M. Udeshi v. The State 2005 SCMR 648; Shafi Muhammad Sehwani and another v. The State 2004 SCMR 1178 and Malik Mughal Khan Noor v. The State 1969 SCMR 457 rel.

Raja M. Ibrahim Satti, Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Appellant.

Ch. Naseer Ahmed Advocate Supreme Court with M. Asghar Rana, A.D.P.G. (NAB) for the State.

Sardar Muhammad Ghazi, Dy. A.-G. (On Court Notice).

Date of hearing: 10th December, 2007.

P L D 2008 Supreme Court 310

Present: Abdul Hameed Dogar, C.J., Ijaz ul Hassan Khan and Ch. Ejaz Yousaf, JJ

INTESAR HUSSAIN BHATTI---Appellant

Versus

VICE-CHANCELLOR, UNIVERSITY OF PUNJAB, LAHORE and others---Respondents

C.M.A. No.382 of 2008 in Civil Petitions Nos. 2 to 5 of 2008, decided on 12th February, 2008.

(On appeal from the judgment dated 19-12-2007 of the Lahore High Court, Lahore passed in W.Ps. Nos.11984, 11871, 11872, 11920 of 2007).

Constitution of Pakistan (1973)---

----Arts. 225 & 199---Election dispute---Constitutional jurisdiction of High Court---Scope---High Court, generally cannot interfere in the election process in exercise of its constitutional jurisdiction in view of bar of jurisdiction contained in Art.225 of the Constitution, however this is subject to an exception that where no legal remedy is available to an aggrieved party during the process of election or after its completion, against an order of an election functionary which is patently illegal/without jurisdiction and the effect of which is to disfranchise a candidate, he can invoke constitutional jurisdiction of the High Court.

Election Commission of Pakistan v. Javed Hashmi PLD 1989 SC 396; Ghulam Mustafa Jatoi v. Addl. District and Sessions Judge/Returning Officer and others 1994 SCMR 1299; Ayatullah Dr. Imran Liquat Hussain v. Election Commission of Pakistan PLD 2005 SC 52; Muhammad Safdar Abbasi v. Aamir Yar Malik 2004 SCMR 1602; University of the Punjab and 2 others v. Rehmatullah PLD 1982 Lah. 729; Muhammad Zargham Eshaq Khan v. University of Engineering and Technology, Lahore and others PLD 1988 Lain 191; Tanvir Ashraf v. Ch. Riasat Ali and others 2004 YLR 659; Najaf Abbas Sial v. Kh. Hassan Wali Khan, Additional District Judge/Returning Officer and others 2003 CLC 1068; Ch. Nasir Ali Khan v. Ghulam Sarwar Khan and others 2003 CLC 442; Arnim Bibi v. Muhammad Sharif 1987 MLD 3052; University of Dacca and another v. Zakir Ahmed PLD 1965 SC 90; Samar Pervaiz v. Board of Intermediate and Secondary Education, Lahore and another PLD 1971 SC 838 and Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer and others 1994 SCMR 1299 ref.

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, Nazir Ahmed Ghazi, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Appellant.

Saiful Malook, Advocate Supreme Court for Respondents.

P L D 2008 Supreme Court 313

Present: Abdul Hameed Dogar, C.J., Ijaz ul Hassan Khan and Ch. Ejaz Yousaf, JJ

INTESAR HUSSAIN BHATTI---Petitioner

Versus

VICE-CHANCELLOR, UNIVERSITY OF PUNJAB, LAHORE and others---Respondents

Civil Petitions Nos. 2 to 5 of 2008, decided on 12th February, 2008.

(On appeal from the judgment dated 19-12-2007 of the Lahore High Court, Lahore passed in W.Ps. No.11984, 11871, 11872, 11920 of 2007).

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

----Ss. 14 & 52---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election for Provincial Assembly---Academic qualification of candidate---Nomination papers, acceptance of---Validity---Petitioner claimed to have obtained Bachelor's Degree in year 1991 which in fact had been allotted to a girl student and not to petitioner---Petitioner had appeared in B.A. Annual Examination 2002, but a case of unfair means of impersonation was registered against him and he was disqualified to appear in any Examination till year 2005---Petitioner's plea that he appeared in 2003 Examination and qualified, but degree was issued to him in year 2005, seemed to be unfounded---Petitioner had been attempting through unfair means to obtain Bachelor's Degree, but all in vain---Supreme Court rejected nomination papers of petitioner in circumstances.

Ayatullah Dr. Imran Liaquat Hussain v. Election Commission of Pakistan, Islamabad and another PLD 2005 SC 52; Election Commission of Pakistan v. Javaid Hashmi and others PLD 1989 SC 396; Muhammad Safdar Abbasi v. Aamir Yar Malik and others 2004 SCMR 1602; Ch. Nazir Ahmed and others v. Election Commissioner and others PLD 2002 SC 184; Intisar Hussain v. Akhtar Hussain 2003 SCMR 204; Tariq Mahmood v. District Returning Officer, Faisalabad and others 2001 SCMR 1991 and Ghulam Mustafa Jatoi v. Additional District and Sessions Judge-Returning Officer and others 1994 SCMR 1299 ref.

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

----Arts. 225 & 199---Election dispute---Constitutional petition---Maintainability---Orders passed by election authorities, if outside ambit of law, would not be immune from challenge before High Court under Art.199 of the constitution---Principles.

Orders passed even by election authorities, which are outside the ambit of law, are not immune from challenge before and correction by the High Court under Article 199.

When validity of election is not challenged and the matter primarily relates to the competency and qualification or otherwise of a person to be a candidate in the election, the bar contained in Article 255 would not be attracted and it would also not apply when the Tribunal having jurisdiction has failed to exercise the same or it is improperly exercised and the person aggrieved is left without remedy at a latter stage of the proceedings because a Tribunal having jurisdiction cannot do it rightly or wrongly, but is bound to do it rightly.

Lt.-Col. Farzand Ali and others v. Province of West Pakistan PLD 1970 SC 98; Hafiz Hamidullah v. Saifullah Khan and others PLD 2007 SC 52; Ahad Sharif alias Muhammad Ahad v. Tariq Javed 2006 SCMR 1356; Naik Muhammad v. Mazhar Ali and others 2007 SCMR 112; Riaz Hussain and others v. Board of Revenue and others 1991 SCMR 2307; Utility Store Corporation of Pakistan v. Punjab Labour Appellate Tribunal PLD 1987 SC 447; Zulfiqar Khan Awan v. The Secretary Industries and Mineral Development Government of Punjab 1974 SCMR 530; Muhammad Hussain v. Sikandar PLD 1974 SC 139 and Bardul Haque Khan v. The Election Tribunal, Dacca PLD 1963 SC 704 fol.

(c) Jurisdiction---

----Tribunal having jurisdiction is bound to do rightly.

Naik Muhammad v. Maznr Ali and others 2007 SCMR 112; Riaz Hussain and others v. Board of Revenue and others 1991 SCMR 2307; Utility Store Corporation of Pakistan v. Punjab Labour Appellate Tribunal PLD 1987 SC 447; Zulfikar Khan Awan v. The Secretary Industries and Mineral Development Government of Punjab 1974 SCMR 530; Muhammad Hussain v. Sikandar PLD 1974 SC 139 and Bardul Haque Khan v. The Election Tribunal, Dacca PLD 1963 SC 704 fol.

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioner (in C.P.No.2 of 2008).

Malik Muhammad Qayyum, Advocate Supreme Court, Nazeer Ahmed Ghazi, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioner (in Civil Petitions Nos.3-5 of 2008).

Muhammad Arif Raja, Legal Advisor, along with Jalil Tariq, Deputy Controller/Secretary and M. Khalid Rauf, Dy. Controller (Certificate) for Respondent No. 1 (Punjab University).

Saiful Malook, Advocate Supreme Court and Abid Saqi, Advocate Supreme Court for Respondent No.3 (in Civil Petition No. 2 of 2008 and Respondent No.4 (in C.P.No.3 of 2008).

Date of hearing: 6th February, 2008.

P L D 2008 Supreme Court 320

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

CHAIRMAN, C.B.R. and others---Appellants

Versus

Haji SULTAN AHMAD and 138 others---Respondents

C.P.L.As. Nos. 48 to 186 of 2008, decided on 6th February, 2008.

(On appeal from the judgment dated 23-11-2007 passed by the Lahore High Court Lahore in W.Ps. Nos. 7781, 7823, 8155, 8176, 8397, 8563, 8790, 8791,to 8795, 8841 to 8844, 8876 to 8880, 8899 to 8901, 8917 to 8920, 8927, 8929, 8956, 8957, 8977, 8978, 8992 to 9000, 9002, 9032, 9068, 9069, 9101 to 9105, 9120 to 9153, 9210 to 9212, 9230, 9242, 10025, 10091 to 100903, 10137, 10145 to 10147, 10151 to 10159, 10173, 10174, 10179 to 10194, 102.04, 10209, 10210, 10309, 10363, 11125, 11135, 11136, 11214, 11215, 11228, 11229, 1'1254 to 11257 & 11296 of 2007).

Sales Tax Act (VII of 1990)---

----Ss. 71, 50 & 3---Sales Tax Special Procedures Rules, 2007, Preamble---S.R.O. 678(I)/2007, dated 6-7-2007---Constitution of Pakistan (1973), Art.185(3)---Vires of Sales Tax Special Procedures Rules, 2007 notified vide S.R.O. 678(I)/2007 issued by the Federal Government in exercise of powers under S.71, Sales Tax Act, 1990---Supreme Court while suspending the operation of judgment of the High Court, granted leave to appeal to consider, inter alia the questions as to whether in the impugned judgment, the High Court, while declaring the rules ultra vires, had followed the parameters laid down by Supreme Court in cases The Collector of Sales Tax and others v. Superior Textile Mills Ltd. and others PLD 2001 SC 600, Khawaja Ahmad Hassan v. Government of Punjab and others PLD 2004 SC 694 and Karachi Building Control Authority v. Hashwani Sales and Services Ltd. PLD 1993 SC 210; that. whether in the impugned judgment the High Court had failed to point out as to how the rules were ultra vires the Sales Tax Act, 1990 and whether the Court had properly considered the view taken by the Superior Court that before declaring delegated legislation ultra vires, the Court must reconcile it with the main statute and liberal construction has to be placed on such rules; that whether the High Court had failed to consider that the S.R.O. 678(I)/87 actually related to a transparent regime for the recovery of tax in which the tax collector and the tax payer did not even interact and the discretion to collect tax was completely eliminated and there was an absolute willingness to voluntarily pay the tax by the tax payer; that whether the High Court had disregarded that linking a tax liability with consumption of electricity unit was in effect creating objective criterion for calculation of tax liability and such method of calculation eliminated discretion, corruption and ensured transparency in the tax collection process; that whether the High Court had erred in not examining the conduct of the assessees who were estopped from challenging the S.R.O. 678(I)/2007, by their conduct as they had themselves persuaded the Government and Federal Board of Revenue to evolve the special tax/levy regime for the purpose of this section and that whether the High Court had given a restrictive interpretation to the language of S.R.O. 678(I) of 2007 as well as section 3 of the Sales Tax Act, 1990.

The Collector of Sales Tax and others v. Superior Textile Mills Ltd. and others PLD 2001 SC 600; Khawaja Ahmad Hassan v. Government of Punjab and others PLD 2004 SC 694 and Karachi Building Control Authority v. Hashwani Sales and Services Ltd. PLD 1993 SC 210 ref.

Ahmer Bilal, Advocate Supreme Court for Petitioners (in all cases).

Nemo for Respondents (in all cases).

PLD 2008 Supreme Court 324

Present: Abdul Hameed Dogar, C.J., Ijaz ul Hassan Khan, Ch. Ejaz Yousaf and Sh. Hakim Ali, JJ

MANZOOR HUSSAIN SHAHANT---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU and another---Respondents

Civil Petition No.4-K of 2008, decided on 8th February, 2008.

(On appeal from the judgment of High Court of Sindh at Karachi 11-12-2007 passed in C.P. No.2116 of 2007 and C.P. No.D-2141 of 2007).

Criminal Procedure Code (V of 1898)---

----S. 497---National Accountability Ordinance (XVIII of 1999), S.10---Bail, grant of---Manager (Operation) of National Bank---Charge of embezzlement---Payment of amount in excess of embezzled amount by accused to National Accountability Bureau under plea bargain---Validity---Finalization of proceedings under plea bargain would require some time, on finalization whereof accused would have to be released---Accused was granted bail in circumstances.

Farooq H. Naek, Advocate Supreme Court for Petitioner.

Dr. Danishwar Malik, Prosecutor General, Dr. Asghar Rana, Addl. Prosecutor General, NAB for the State.

Date of hearing: 8th February, 2008.

P L D 2008 Supreme Court 326

Present: Abdul Hameed Dogar, C.J. and Muhammad Nawaz Abbasi, J

KHAYAL AHMED---Petitioner

Versus

ELECTION TRIBUNAL PUNJAB, LAHORE and others---Respondents

C.M.A. No.3041 of 2007 and Civil Petition No.976 of 2007, decided on 19th December, 2007.

(On appeal from the order dated 13-12-2007 of the Lahore High Court, Lahore passed in W.P.No.11932 of 2007).

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

----Ss. 12(2)(c) & 14---Contract Act (IX of 1872), S.128---Election of Provincial Assembly---Filing of nomination papers---Non-disclosure in nomination papers by candidate passing of money decree against him as guarantor and principal debtor and pendency of execution proceedings against them---Effect---Liability of guarantor/surety would be co-extensive with that of principal debtor, unless same was otherwise provided by contract---Guarantor and principal debtor would be jointly and severally liable to pay outstanding amount to creditor---Guarantor could not shirk from liabilities incurred by him---Candidate having not complied with requirements of S.12(2) of Representation of the People Act, 1976, his nomination papers were rightly rejected.

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

----S. 128---Surety's liability---Scope.

The liability of guarantor/surety is coextensive with that of the principal debtor, unless it is otherwise provided by the contract as envisaged in section 128 of the Contract Act, 1872. They are jointly and severally liable to pay the outstanding amount to the creditor. A guarantor cannot shirk from the liabilities incurred by him.

Muhammad Munir Peracha, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioner.

Nemo for Respondents.

P L D 2008 Supreme Court 328

Present: Abdul Hameed Dogar, C. J., Muhammad Nawaz Abbasi and Mian Hamid Farooq, J J

JALAL-UR-REHMAN---Petitioner

Versus

Mrs. SALAL AKBAR BUGTI and others---Respondents

Constitutional Petition No.27 of 2006, decided on 18th December, 2007.

Constitution of Pakistan (1973)---

----Art. 186-A---Anti-Terrorism Act (XXVII of 1997), S.7---Penal Code (XLV of 1860), Ss.302/147/148/149/120-B/34---Transfer of case, application for---Conviction of accused in murder case by Anti-Terrorist Court at Quetta---Constitutional petition by widow of deceased for enhancement of sentence of accused pending in Balochistan High Court---Application by accused for transfer of such petition from Balochistan High Court to Lahore High Court---Plea of accused was that due to animosity between his tribe and that of complainant's tribe, there was eminent threat to his life at Quetta; that no Advocate at Quetta or any other station was ready to appear on his behalf and defend him; and that earlier an advocate from Lahore engaged by him had been attacked at Quetta---Validity---Government of Balochistan had not opposed such transfer application---Supreme Court transferred such petition from Balochistan High Court to Sinn High Court at Karachi for its decision in accordance with law.

Zahid Saleem, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioner.

Nemo for Respondents Nos. 1 to 7.

P L D 2008 Supreme Court 331

Present: Muhammad Nawaz Abbasi and Muhammad Qaim Jan Khan, JJ

MULTAN KHAN and others---Petitioners

Versus

MUSHTAQ ALI---Respondent

Civil Appeal No.130 of 2005, decided on 11th February, 2008.

(Against the judgment/order dated 10-2-2005, of the Lahore High Court, Lahore, passed in C.R.No.464 of 2000).

Punjab Pre-emption Act (IX of 1991)---

----Ss. 6, 13 & 35---Constitution of Pakistan (1973), Art.185(3)---Pre­emption suit---Limitation---Superior right of pre-emption claimed by plaintiff on basis of common source of irrigation from government water channel---Sale took place on 29-1-1989---Suit filed on 25-1-1990 (i.e. during 1-7-1986 and 28-3-1990, when first Pre-emption Ordinance, 1990 was promulgated stating to be in accord with judgment of Supreme Court reported as Government of N.-W.F.P. through Secretary Law Department v. Malik Said Kamal Shah PLD 1986 SC 360---Dismissal of suit by trial Court and Appellate Court to be filed beyond four months as provided under S.35 of Punjab Pre-emption Act, 1991---High Court in revision set aside judgments of courts below by observing that suit was filed before judgment of Supreme Court reported as Haji Rana Muhammad Shabbir Ahmed Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1 had taken effect---Validity---High Court had not correctly decided question of limitation with reference to S.35 of Punjab Pre-emption Act, 1991, requirements of zarar and zaroorat as well as effect of judgment reported as Haji Rana Muhammad Shabbir Ahmed Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1 and question regarding fulfillment of requirement of talbs in peculiar facts of present case---Supreme Court remanded case to High Court for decision afresh of all such questions including superior right of pre-emption.

Pir Ghulam v. Noor Zaman 1979 SCMR 360; Muhammad Nawaz v. Gul Sher PLD 2004 SC 493; Imam Bakhsh Shah v. Muhammad Ali Khan AIR (33) 1946 Sindh) 55; Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315; Chaudhry Javed Illahi v. Mrs. Shafaqat Malik and 2 others 2003 YLR 948; Sardar Khan and others v. Muhammad Siddiqui 2000 MLD 616; Fateh Din v. Muhammad Boota 2000 MLD 1329; Haji Rana Muhammad Shabbir Ahmed Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1; Mst. Razia Begum v. Fazal Hussain 2003 YLR 417; Muhammad Aslam and others v. Muhammad Shafi 1995 MLD 441 and Government of N.-W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 ref.

Gul Zarin Kiani, Advocate Supreme Court for Appellants.

Zafar Iqbal Chaudhry, Advocate Supreme Court for Respondent.

Date of hearing: 11th February, 2008.

P L D 2008 Supreme Court 335

Present: M. Javed Buttar, Muhammad Qaim Jan Khan and Sh. Hakim Ali, JJ

MUHAMMAD ASHIQ and another---Petitioners

Versus

WATER AND MANPOWER DEVELOPMENT AUTHORITY, LAHORE through Chairman, WAPOA House and another--Respondents

Civil Petition No.1634 of 2005, decided on 11th March, 2008.

(On appeal from the judgment dated 28-2-2005 and 2-3-2005 passed by the Lahore High Court, Lahore in ICA No.575 of 2003).

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

----Ss. 3, 4 & 6---Land acquisition by government at public expense for construction of government offices and its officers' residential colony---Plea of landowner was that such acquisition was based on mala fide and was not for public purpose as land belonging to an influential person and his relatives was not acquired, though same was situated within the area surrounded by the area to be acquired---Validity---Aim and purpose of acquisition of disputed land for such purpose as declared in notification under S.4 of Land Acquisition Act, 1894 had been reiterated again in notification published by government under S.6 thereof---Such declaration had got presumption of conclusive evidence of fact that disputed land was acquired for public purpose---After publication of such declaration, such presumption had to be rebutted by affected landowners through sound material and cogent evidence---Mere raising of such plea could not lead to conclusion that disputed land was not being acquired for public purpose or acquisition was based on mala fides---No mala fide could be attributed to government merely on such plea---Government had to decide as to which land was suitable for its purpose---Explicit words of acquisition of disputed land by government at public expense used in notification under S.4 of the Act would be sufficient to hold that same was being acquired for a public purpose---Such plea was overruled in circumstances.

NLR 1997 Rev. 8 (SC) 1997 CLC 812; AIR 1995 Pun. & Har. 62; AIR 1991 Allah. 330; AIR 1977 SC 183; AIR 1986 Mad. 309 and 1986 CLC 1841 ref.

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

----S. 17(4)---Constitution of Pakistan (1973), Art.185(3)---Land acquisition of government at public expense for construction of offices and residential colony for its officers---Emergent taking of possession of land by invoking provision of S.17(4) of Land Acquisition Act, 1894---Validity---Such act was not an objectionable act as same was taken on subjective satisfaction of competent authority to apply such provision or not under given circumstances---Objection to such act of authority could not be raised before Supreme Court---Principles.

The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279 ref.

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

----S. 4---Notification of land acquisition---Not a final decision of government to acquire land notified in such notification, but a preliminary step towards its acquisition---Principles.

Notification issued under section 4 of the Land Acquisition Act, 1894, in fact, empowers the Provincial Government and its officers specially or generally to enter upon the lands, to take its survey and to perform other acts as contained therein. In other words, the notification issued and published under section 4 of Land Acquisition Act, 1894 is a preliminary step which facilitates the Government and its officers not only to perform survey of the land but to decide and determine as to which piece of land was finally required to be acquired and the land to be left ultimately for the purpose of acquisition, keeping in view the aim and purpose for which the land was being acquired. Therefore, the notification which had been got, published under section 4 of the Land Acquisition Act, 1894, could not be termed as an ultimate and final decision of the government to acquire, the land notified in the aforementioned Notification.

Dr. Muhammad Aslam Khaki, Advocate Supreme Court for Petitioners.

Gul Zarin Kiayani, Advocate Supreme Court for Respondent No.1.

Qazi Muhammad Amin, Addl. A.-G. for Respondents Nos. 2 and 3.

Date of hearing: 11th March, 2008.

P L D 2008 Supreme Court 341

Present: Abdul Hameed Dogar, C. J., Faqir Muhammad Khokhar, Ijaz-ul-Hassan Khan, Muhammad Moosa K. Leghari, Ch. Ejaz Yousaf, Syed Sakhi Hussain Bokhari and Syed Zawwar Hussain Jaffery, JJ

MUHAMMAD NASIR MAHMOOD and another---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Law, Justice and Human Rights Division, Islamabad---Respondent

Constitutional Petition No.1 of 2008, decided on 21st April, 2008.

(Re: condition of graduation for contesting election of the Majlis-e-Shoora (Parliament) and the Provincial Assemblies)

Conduct of General Elections Order [Chief Executive's Order No.7 of 2002]---

----Art.8-A---Representation of the People Act (LXXXV of 1976), S.99(1)(cc)--Constitution of Pakistan (1973), Arts.17, 25 & 184(3)---Constitutional petition under Art.184(3) of the Constitution---Vires of Art.8-A, Conduct of General Elections Order, 2002 and S.99(1)(cc) of the Representation of the People Act, 1976---Held, Art. 8-A of the Conduct of General Elections Order, 2002 (Chief Executive's Order No.7 of 2002) and Cl. (cc) of subsection (1) of S.99 of the Representation of the People Act, 1976, which lay down that a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) or a Provincial Assembly unless he is at least a graduate possessing a bachelor degree in any discipline or any degree recognized as equivalent by the University Grants Commission under the University Grants Commission Act, 1974 or any other law for the time being in force, were declared to be void prospectively on account of their being inconsistent with Arts. 17 & 25 of the Constitution.

Kamran Murtaza, Advocate Supreme Court, Qari Abdul Rashid, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioners.

Raja Niaz Ahmed Rathore, D.A.-G., Ms. Nahida Mahboob Elahi, D.A.G., Raja Abdul Rehman, D.A.G., Haji M. Rah Siddiqui, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent.

Dr. M. Aslam Khaki, Advocate Supreme Court for Applicant (in C.M.A. No.996 of 2008).

Malik Muhammad Qayyum, Attorney General for Pakistan assisted by Ch. Naseer Ahmed, Advocate Supreme Court and Rai M. Nawaz Kharal, Advocate Supreme Court (On Court Notice).

P L D 2008 Supreme Court 343

Present: Muhammad Qaim Jan Khan, Muhammad Moosa K. Leghari

and Syed Sakhi Hussain Bokhari, JJ

NISAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.58 of 2005, decided on 24th March, 2008.

(On appeal from the judgment and order of the Peshawar High Court, Peshawar, dated 14-5-2003, passed in Jail Criminal Appeal No.174 of 2003 in Murder Reference No.4 of 2003).

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

----S. 10(4)---Anti-Terrorism Act (XXVII of 1997), S.6(b)---Constitution of Pakistan (1973), Art.185(3)---Zina-bil-Jabr, offence of---Conviction and sentence awarded to accused by Anti-Terrorism Court confirmed by High Court---Plea of accused was that F.I.R. was lodged with delay of five days with explanation that prosecutrix was waiting for her husband to come back from place but despite that husband was never shown to have accompanied her to Police Station for recording F.I.R; that accused was not known to prosecurtix prior to occurrence, while co-accused was known to her only to the extent of being a wagon driver, but F.I.R. found names of both accused mentioned along with their parentage, thus, possibility of lodging of F.I.R. after preliminary investigation could not be excluded; that no commission of "Zina" was alleged in F.I.R., where in prosecutrix stated that she succeeded in saving her honour; that nude photographs of prosecutrix were produced before Investigating Officer by daughter of accused without giving any explanation as to how same were allowed to be possessed by her and that occurrence was alleged to have taken place in a "Baithak", which was a part of a family house inhabited by women-folk of family also---Supreme Court granted leave to appeal as all such material questions emanating from record closely required reappraisal of evidence.

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

----S. 10(4)---Anti-Terrorism Act (XXVII of 1997), S.6(b)---Constitution of Pakistan (1973), Art.185(3)---Zina-bil-Jabr, offence of---Proof---Prosecutrix as prosecution witness deposed that both accused forcibly committed Zina with her turn by turn on gunpoint, but during her cross-examination, she admitted to have mentioned in F.I.R. that she had succeeded in saving her honour and chastity---Explanation for lodging F.I.R. with delay of five days was that prosecutrix was waiting for her husband to come back from place "R", but husband was neither tendered in evidence nor shown to have accompanied her to Police Station for recording F.I.R.---Accused was not known to prosecurtix prior to occurrence, but while recording F.I.R., she had given full name of accused along with parentage, which showed that necessary consultations and deliberations were made before lodging F.I.R. which rendered her statement unreliable---Accused was not medically examined to prove factum about his potency and capability to perform sexual intercourse---Prosecutrix was neither got medically examined to observe marks of violence on her body to prove element of force nor steps were taken to detect stains of semen anywhere by conducting chemical examination---Obvious reasons for lack of collecting such medical evidence could be that there was no allegation of rape in F.I.R.---No tangible evidence was brought on record to show that nude photographs of prosecutrix were actually taken and were genuine---Nude photographs of prosecutrix alleged to have been produced before Investigating Officer by daughter of accused would not appeal to common sense as a person being father having committed such an obnoxious act depicting himself in a disgraceful manner and position would, in no circumstance, hand over such photographs to his own daughter---Confessional statement of accused could neither be termed to be voluntary nor admissible in evidence---Nothing on record to show that "bhaitak" of accused, where offence was allegedly committed, was a secluded place---Accused was acquitted of the charge in circumstances.

Muhammad Shafique Ahmed's case PLD 1986 SC 471 and Ibrar Hussain's case 2007 SCMR 605 rel.

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

----S. 10(4)---Anti-Terrorism Act (XXVII of 1997), S.6(b)---Capital punishment, awarding of---Duty of Court stated.

The Courts of law are expected and required to decide the cases on the basis of evidence adduced, without being overawed by emotions and sentiments. Nevertheless, extraordinary care and caution is to be taken while dealing with the offences of grave nature, attracting capital punishment, which could not be awarded unless charge against the accused is proved by leading absolutely credible, trustworthy and unimpeachable evidence.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

Sh. Mehmood Ahmed, Advocate Supreme Court on behalf of A.-G., N.-W.F.P.

Date of hearing: 24th March, 2008.

P L D 2008 Supreme Court 349

Present: Muhammad Nawaz Abbasi, Mian Hamid Farooq and Muhammad Farrukh Mahmud, JJ

ALLAH BACHAYA and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.313 of 2001, decided on 11th March, 2008.

(On appeal from the judgment dated 17-12-1998 of the Lahore High Court, Multan Bench, Multan passed in Criminal Appeal No.81 of 1991).

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

----S. 302/34---Constitution of Pakistan (1973), Art.185(3)---Conviction and sentence awarded to accused by trial Court confirmed by High Court---Plea of accused was that according to prosecution, deceased at the time of attack was two acres ahead of complainant party; that accused before attacking deceased raised Lalkara and avowed to take revenge of death of his son; that deceased after Lalkara left his bicycle and started running, although he had better opportunity to escape from spot on bicycle; and that two eye-witnesses claimed that they witnessed entire incident and heard words uttered by accused in spite of being two acres away from deceased at relevant time---Validity---Supreme Court granted leave to appeal to consider as to whether under such circumstances two eye-witnesses being relatives of deceased could be relied upon for purpose of awarding capital punishment especially when motive was not established and recovery of crime weapons was not proved.

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

----S. 302/34---Reappraisal of evidence---Prosecution story was that deceased before attack was riding on bicycle and when accused raised Lalkara, then deceased left his bicycle and started running---Deceased, in ordinary circumstances while sensing danger would have preferred to escape by speeding upon bicycle rather than leaving same.

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

----S. 320/34---Reappraisal of evidence---Deceased and prosecution witnesses were four in number at relevant time---Prosecution witnesses were closely related to deceased, while one prosecution witness was son of deceased---Accused were two in number and were not armed with fire arm or hatchet, but were carrying ordinary dhangs---Had prosecution witnesses been present, then they would have certainly tried to save life of deceased, specially his son (prosecution witness), if present, must have intervened---Advantage of any genuine doubt arising from circumstances of case should be extended to accused as of right and not as concession---Accused was acquitted of charge by giving him benefit of doubt.

Arif Hussain and another v. The State 1983 SCMR 428 rel.

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

----S. 154---First Information report not recorded at Police Station---Effect---Such report would suffer inherent doubt that same was recorded at the spot after due deliberations.

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

----S. 302/34---Reappraisal of evidence---Benefit-of doubt---Any genuine doubt arising from circumstances of case should be extended to accused as of right and not as concession.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellants.

M. Siddique Khan Baloch, D.P.G. for the State.

P L D 2008 Supreme Court 355

Present: Abdul Hameed Dogar, C.J., Muhammad Nawaz Abbasi and Mian Hamid Farooq, JJ

IMTIAZ AHMED LALI---Petitioner

Versus

RETURNING OFFICER and 3 others---Respondents

Civil Petition No.957 of 2007, decided on 18th December, 2007.

(On appeal from the judgment dated 14-12-2007 passed by Lahore High Court, Lahore, passed in W.P. No.11985 of 2007).

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

----Arts. 184 & 185---Original and appellate jurisdiction of Supreme Court---Scope---Supreme Court could examine provisions of any law on , the touchstone of Fundamental Rights guaranteed in the Constitution.

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

----S. 99(1-A)(i)---Constitution of Pakistan (1973), Art. 63(1)(i)---Punjab Police (Efficiency and Discipline) Rules, 1975, Rr.2 (iii) & 4(2)(a)---Provincial Assembly, election of---Dismissal of petitioner-candidate from police service for his absence from duty---Nomination papers, rejection of---Petitioners' plea was that his such dismissal from service would not fall within ambit of misconduct or moral turpitude for purposes of disqualification under Art. 63(i) & (j) of the Constitution read with S.99(1-A)(i) of Representation of the People Act, 1976---Validity---Petitioner's case in respect of charge of wilful absence from duty might not, as such, involve element of moral turpitude or fall within extended meaning of misconduct in service laws---Wilful or habitual absence from duty in service law was misconduct for involving and element of indiscipline, which might some times constitute gross misconduct---Disqualification under Art. 63(i) & (j) of the Constitution read with S.99(1-A)(i) of Representation of the People Act, 1976 was of permanent nature---Such plea was devoid of any force.

Imtiaz Ahmed Lali v. Ghulam Muhammad Lali PLD 2007 SC 369; Secretary Education v. Mustamir Khan 2005 SCMR 17 and Badshah Hassan v. Interior Minister 2002 SCMR 967 fol.

(c) Words and Phrases---

---"Moral turpitude"---Meaning.

(d) Punjab Police (Efficiency and Discipline) Rules, 1975---

---Rr. 2(iii) & 4(2)(a)---Wilful absence from duty---Misconduct---Wilful or habitual absence from duty in service law was misconduct for involving an element of indiscipline which, might some times constitute gross misconduct.

Dr. Khalid Ranjha, Advocate Supreme Court and Muhammad Asif Ranjha, Advocate Supreme Court for Petitioner.

Zafar Iqbal Chauhan, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for respondents Nos. 3 and 4.

Date of hearing: 18th December, 2007.

P L D 2008 Supreme Court 360

Present: Abdul Hameed Dogar, C.J. Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

EHSANULLAH KHAN, EX-ASSISTANT DIRECTOR, F.I.A.---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Establishment and another---Respondents

Civil Review Petition No.25 of 2005 in Civil Petition for Leave to Appeal No.1902 of 2003, decided on 6th February, 2008.

(On review from the judgment dated 17-3-2005 passed by this Court in C.P.L.A No.1902 of 2003).

Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 4, 5(1) (iv) & 6-A (2) [as amended vide S.R.O.74 (I)/2001, dated 2-2-2001]---Inquiry procedure---Penalty, imposition of---Exoneration of Civil servant of charge by Authorized Officer---Non-service of fresh charge sheet on civil servant---Effect---Where pursuant to order for de novo enquiry, authorized officer recommended for imposition of penalty on civil servant within the ambit of R. 5(1)(iv) of Government Servants (Efficiency and Discipline) Rules, 1973, and proceedings were carried out thereunder, then service of amended charge sheet and statement of allegations upon civil servant could be taken in due compliance of R.6-A(2) thereof---Where authorized officer exonerated civil servant of charge, then charge sheet served on him earlier would lose its efficacy and could not satisfy requirement of R. 6-A(2) of the Rules---Where authority decided to proceed against civil servant under R.6-A(2) of the Rules, then authority would be legally bound to serve a fresh notice/charge sheet on civil servant, who should be given fair opportunity of showing cause against proposed action---No one could be condemned unheard in violation of maxim "audi alteram partem"---Principles.

Chief Director, Central Directorate of National Saving, Islamabad v. Rahat Ali Sherwani 1996 PLC (C.S.) 383 + 1996 SCMR 248; Maqsood Ahmed Sh. v. Islamic Republic of Pakistan through Secretary, Establishment 1987 SCMR 1562 and Muhammad Younas v. Secretary Ministry of Communications 1993 SCMR 122 ref.

Muhammad Munir Peracha, Advocate Supreme Court for Petitioner.

Ms. Nahida Mehboob Elahi, D.A.G. and Iftikahr Anjum, S.O. (Estt.) for Respondents

Date of hearing: 6th February, 2008.

P L D 2008 Supreme Court 368

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

Sqn. Ldr.(R) KHURRAM ZAMAN---Appellant

Versus

Mrs. AFIA ZAFAR and others---Respondents

Civil Appeal No.264 of 2008, decided on 10th March, 2008.

(On appeal from the judgment dated 24-9-2007 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in C.R.No:378 of 2007).

Civil Procedure Code (V of 1908)---

----O. XX, R.15---Arbitration Act (X of 1940), S.34---Partnership Act (IX of 1932), S.69---Suit for dissolution of unregistered partnership and rendition of accounts---Partnership deed providing mechanism to resolve dispute between partners through arbitration---Defendant's application for stay of suit before filing his written statement---Validity---Where a party to an arbitration agreement started legal proceedings with respect to subject matter of such agreement, then other party would have a right to get such proceedings stayed so as to enable arbitration to proceed in terms thereof---Application for stay of suit was accepted in circumstances.

Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners PLD 1981 SC 553 ref.)

Syed Wahid Hussain v. Maharajkumar Mahmud Hasan Khan and others AIR 1961 Allahabad 409; M/s. Para Ram Darshan Lal v. Union of India and another AIR 1979 Delhi 135; Usman v. Haji Omer and others PLD 1966 SC 328; Ali Muhammad v. Mirza Muhammad Hussain Beg PLD 1968 Lah. 712; Syed Naushab Ali v. Lt. Col. Mehmood Khan Durrani PLD 1972 Lah. 766 and Jagdish Chandra Gupta v. Kajaria Traders (India) Ltd. AIR 1964 SC 1882 distinguished.

Khawaja Muhammad Farooq, Advocate Supreme Court for Appellant.

Respondents in person.

Date of hearing: 10th March, 2008.

P L D 2008 Supreme Court 371

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

PAKISTAN AGRICULTURAL STORAGE AND SERVICES CORPORATION LTD.---Appellant

Versus

Mian ABDUL LATIF and others---Respondents

Civil Appeal No.903 of 2002, decided on 13th February, 2008.

(On appeal from the judgment dated 24-4-2002 in R.F.A. No.208 of 1994 passed by the Lahore High Court, Lahore.)

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

---O. VII, R.11(a)---Rejection of plaint---Suit of recovery of money for work done under contract---Plea of defendant was that plaintiff through arbitration settlement had received amount through final bill for work done, thus, he had no cause of action---Settlement of claim through arbitration and submission of final bill, not denied by plaintiff---Effect---Plaintiff was precluded to institute suit in respect of such claim and on basis of same cause of action---Plaint in suit was rejected in circumstances.

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

----O. VII, R.11 (a)---Term "cause of action" as used in O.VII, R.11(a), C.P.C.---Connotation---Such' term represents all requisites and facts, which are necessary for plaintiff to prove before he can succeed in a suit.

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

----O. VII, R.11---Rejection of plaint---Primary object stated.

The object of Order VII, Rule 11, C.P.C., is primarily to save the parties from rigours of frivolous litigation at the very inception of the proceedings and if the Court, on the basis of averments made in the plaint and documents available comes to the precise conclusion that even if all the allegations made in the plaint are proved; the plaintiff would not be entitled to the relief claimed, then the court would be justified to reject the plaint in exercise of powers available under Order VII, Rule 11, C.P.C.

S.M. Shafi Ahmad Zaidi through legal hiers v. Malik Hassan Ali Khan (Moin) through legal hiers 2002 SCMR 338 rel.

Muhammad Akram Khawaja, Advocate Supreme Court for Appellant.

Nemo for Respondent No. 1.

Ex parte: Respondents Nos. 2 and 3.

Date of hearing: 13th February, 2008.

P L D 2008 Supreme Court 306

Present: Abdul Hameed Dogar C.J., Ijaz-ul-Hassan Khan and Muhammad Moosa K. Leghari, JJ

Pir MAZHARUL HAQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.255 of 1998, decided on 10th December, 2007.

(On appeal from the judgment and order of the High Court of Sindh, Karachi, dated 8-10-1998 passed in Ehtesab Reference No.6 of 1997).

Ehtesab Act (IX of 1997)---

---Ss. 3 & 4---Corruption and corrupt practices, offence of---Charge against accused (Minister) was that he had allotted plot to co-accused at throw away price during imposition of ban on its allotment---Summary for allotment floated by Department concerned to Chief Minister was routed through accused Minister---Noting of the summary by accused Minister was that Chief Minister might relax ban as same was causing hardship to people---Order of Chief Minister for allotment of plot to co-accused at reserved price---Effect---Such noting was not tainted with malice, but was in general terms and was not specifically meant for plot in question---Chief Minister had allotted plot and fixed reserve price---Nothing was available on record to show that accused Minister had either obtained any material and pecuniary gain by such allotment or acted with intention to achieve wrongful gain for himself or with purpose of causing loss to exchequer---Co-accused had already been acquitted---No loss had been caused to exchequer as co-accused had surrendered plot---Accused Minister was acquitted of the charge in circumstances.

Pir Mazharul Haq and others v. The State through Chief Ehtesab Commissioner, Islamabad PLD 2005 SC 63; Mir Munawar Ali Talpur v. State through Chief Ehtesab Commissioner, Islamabad and 2 others PLD 2003 SC 46; Ramesh M. Udeshi v. The State 2005 SCMR 648; Shafi Muhammad Sehwani and another v. The State 2004 SCMR 1178 and Malik Mughal Khan Noor v. The State 1969 SCMR 457 rel.

Raja M. Ibrahim Satti, Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Appellant.

Ch. Naseer Ahmed Advocate Supreme Court with M. Asghar Rana, A.D.P.G. (NAB) for the State.

Sardar Muhammad Ghazi, Dy. A.-G. (On Court Notice).

Date of hearing: 10th December, 2007.

P L D 2008 Supreme Court 386

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

Malik HADI HUSSAIN and others---Appellants

Versus

LAND ACQUISITION COLLECTOR and another---Respondents

Civil Appeal No.2060 of 2006, decided on 13th March, 2008.

(On appeal from the judgment dated 11-9-2006 passed by Lahore High Court, Lahore in R.F.A. No.420 of 2000).

Land Acquisition Act (I of 1894)---

---Ss. 23, 24 & 25---Compensation, determination of---Considerations--Where the High Court while computing the sale price of acquired land, had made basis of a single sale in the concerned revenue record whereas the Referee Court had taken into consideration the average sale price of previous year pertaining to sale of commercial land, High Court had totally ignored the question of damages altogether although acquisition department itself admitted the damages suffered by the affectees but awarded meagre damages as compared to actual loss assessed and granted by the Referee Court---Impugned judgment of the High Court was the result of non-reading and misreading of evidence and all other relevant record and as such could not be allowed to remain intact---Supreme Court allowed appeal, set aside the judgment of the High Court and restored the decree passed by the Referee Court.

While determining the amount of compensation, Court is to consider evidence brought on the record by the parties and further Land Acquisition Collector while determining compensation of acquired land has also to consider the potential and future prospective features of land in addition to one year average. While determining the value of the land acquired by the Government and the price which willing purchaser would give to the willing seller, only the past sale should not be taken into account but the value of the land with all its potentiality may also be determined by examining other facts.

An assessment of the compensation payable for land acquired must take into account several factors, including the nature of the land, its present use and its capacity for a higher potential, its precise location in relation to adjoining land, the use to which neighbouring land has been put and the impact of such use on the land acquired, and so on having regard to all these factors.

In the present case in computing the sale price of the acquired land, High Court had made basis of a single sale in the concerned Revenue Record whereas the Referee Court had taken into consideration the average sale price of previous year pertaining to sale of commercial land. The High Court had totally ignored the question of damages altogether although acquisition department itself admitted the damages suffered by the affectees but awarded meagre damages as compared to actual loss assessed and granted by the Referee Court. The impugned judgment of the High Court was the result of non-reading and misreading of evidence and all other relevant record and as such could not be allowed to remain intact.

Sardar Abdul Majeed Dogar, Advocate Supreme Court and Khan Muhammad Vehniwal, Advocate Supreme Court for Appellants.

Jehanzaib Khan Bharwana, Advocate Supreme Court for Respondents.

Date of hearing: 13th March, 2008.

P L D 2008 Supreme Court 389

Present: Muhammad Nawaz Abbasi, Mian Hamid Farooq and Muhammad Farrukh Mahmud, JJ

MUHAMMAD ASHRAF and 2 others---Petitioners

Versus

MUHAMMAD MALIK and 2 others--Respondents

Civil Petition No.1240-L of 2007, decided on 13th March, 2008.

(On appeal from the judgment dated 18-6-2007 of the Lahore High Court Lahore passed in Civil Revision No.232 of 2006).

Contract Act (IX of 1872)---

---Ss. 188, 214 & 215---Specific Relief Act (I of 1877), S.42---Suit for declaration of ownership of property---Sale of land by attorney to his relative without consulting the principal---Effect---If an attorney intends to exercise right of sale/gift in his favour or in favour of next of his kin, he/she had to consult the principal before exercising that right---When an attorney on the basis of power of attorney even if "general", purchases the property for himself or for his own benefit, he should first obtain the consent and approval of principal after acquainting him with all material circumstances.

Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818; Fida Muhammad v. Pir Muhammad Khan (deceased) through legal heirs and others PLD 1985 SC 341; and Nisar Ahmad and others v. Naveed-ud-Din and others 2004 SCMR 619 fol.

Muhammad Khan v. Mst. Rasul Bibi PLD 2003 SC 676 distinguished.

Abdul Wahid Chaudhry, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 13th March, 2008.

P L D 2008 Supreme Court 392

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

SECRETARY KASHMIR AFFAIRS AND NORTHERN AREAS DIVISION, ISLAMABAD---Petitioner

Versus

SAEED AKHTAR and another---Respondents

Civil Petition No.305 of 2008, decided on 18th March, 2008.

(Against the judgment dated 2-1-2008 passed by the Federal Service Tribunal, Islamabad in A.No.862-(R)CS/2003).

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 3(1) & 5(4)---Fundamental Rules, R.29---Constitution of Pakistan (1973), Art. 212(3)---Misconduct---Civil servant was served with a charge sheet and a show-cause notice on the charge of misconduct on account of corrupt practices---Civil servant, in his reply repudiated the allegations and claimed to have been falsely implicated in the matter---Reply having been found unsatisfactory, the competent authority without resorting to full fledged inquiry, in exercise of powers under S.3(1) of the Removal from Service (Special Powers) Ordinance, 2000, imposed upon civil servant penalty of reduction to a lower pay scale with retrospective effect and without specifying the period of penalty imposed---Validity---Held, proceedings carried out in the case suffered from gross legal infirmities such as violation of Rule 29 of the Fundamental Rules as period for punishment was not specified and major penalty was imposed retrospectively---Enquiry Officer thus certainly went beyond the scope to examine the real controversy---Reduction in rank constituted major penalty and required full-fledged inquiry and inquiry could not have been dispensed with in terms of S.5(4) of the Removal from Service (Special Powers) Ordinance, 2000---Leave to appeal was declined to the employing department.

Pakistan Telecommunication Company Limited v. Messrs Muhammad Saeed Wazir 2005 SCMR 1225 fol.

Ch. Muhammad Ashraf, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 18th March, 2008.

P L D 2008 Supreme Court 395

Present: Muhammad Moosa K. Leghari and Syed Sakhi Hussain Bokhari, JJ

ABDUL HAMEED---Petitioner

Versus

MINISTRY OF HOUSING AND WORKS, GOVERNMENT OF PAKISTAN, ISLAMABAD through Secretary and others---Respondents

Civil Petition No.279 of 2008, decided on 17th March, 2008.

(On appeal from the judgment and order of the Federal Service Tribunal, Islamabad, dated 11-12-2007, passed in Appeal No.641(R) CS of 2004).

(a) Civil service---

----Promotion---Principles---Promotion is not a vested right of civil servant---Promotion in non-selection post, is made on the basis of seniority-cum-fitness and civil servant cannot ask for, or claim a promotion as a matter of right as it is within the exclusive domain of the government---Neither the promotion could take place automatically, nor the seniority alone is the deciding factor, as number of factors constitute fitness for promotion---Act of mere technical irregularity with regard to promotion of civil servant having been instantaneously ratified by the authorities after being pointed out, per se would not be sufficient to hold that such action had any dent of malice on the part of authorities in the matter of promotion.

1997 PLC (C.S.) 77; 1998 SCMR 736; PLD 1991 SC 1118; 1998 PLC (C.S) 980; 1991 PLC (C.S) 587; 1985 SCMR 1158; PLD 1997 SC 84; PLD 2003 SC 110; 2007 SCJ 41; 1997 PLC (C.S) 1210 and 2001 PLC (C.S) 654 ref.

(b) Civil service---

----Promotion---Civil servant, who, during pendency of his appeal, stood retired, could not be considered for promotion with retrospective effect.

Sh Iftikhar Ahmad, Advocate Supreme Court with Ejaz M. Khan, Advocate-on-Record for petitioner.

Nemo for Respondents.

Date of hearing: 17th March, 2008.

P L D 2008 Supreme Court 397

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

SECRETARY, MINSITRY OF FINANCE and another---Petitioners

Versus

KAZIM RAZA---Respondent

Civil Petition No.934 of 2007, decided on 30th January, 2008.

(On appeal from the judgment dated 4-10-2007 of the Federal Service Tribunal, Islamabad in Appeal No.601(R)CS/2004)

(a) Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----S. 3---Government Servants (Efficiency and Discipline) Rules, 1975, Rr.2 & 3---Constitution of Pakistan (1973), Art.212(3)---Compulsory retirement on the charge of inefficiency and misconduct---Allegation against civil servant was that he being an Officer/Inspector had failed to detect and pinpoint the irregularities due to which fraud/misappropriation took place and if he had been vigilant and had probed the record deeply, the fraud would have been unearthed---Held, civil servant, though was found negligent but in the circumstances of the case, the major penalty of punishment of compulsory retirement from service imposed upon him, was harsh and Service Tribunal rightly converted the same into reduction in the rank---Petition for leave to appeal was dismissed.

(b) Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----S. 3---Government Servants (Efficiency and Discipline) Rules, 1975, Rr.2 & 3---Misconduct---Negligence---Imposition of penalty---Philosophy of punishment---Carelessness is definitely an act of negligence which may not strictly fall within the ambit of misconduct as defined in R.2, Government Servants (Efficiency and Discipline) Rules, 1975 but it is definitely a valid ground on the basis of which a government servant can be awarded penalty as provided by R.3 of the said Rules---Element. of bad faith and wilfulness may bring an act of negligence within the purview of misconduct but lack of proper care and vigilance may not always be wilful to make it a case of grave negligence inviting severe punishment---Philosophy of punishment is based on the concept of retribution which may be either through the method of deterrence or reformation---Purpose of deterrent punishment is not only to maintain balance with the gravity of wrong done by a person but also to make an example for others as a preventive measure for reformation of the society, whereas the concept of minor punishment in the law is to make an attempt to reform individual wrongdoer---Extreme penalty for minor acts, depriving a person from right of earning would defeat the reformatory concept of punishment in administration of justice.

Auditor General of Pakistan and others v. Muhammad Ali and others 2006 SCMR 60 fol.

Sadaqat Ali Mirza, Advocate Supreme Court/Standing Counsel and Ch. Muhammad Akram, Advocate-on-Record for Petitioners.

Shoaib Shaheen, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent.

Date of hearing; 30th January, 2008.

P L D 2008 Supreme Court 400

Present: Abdul Hamid Dogar, C.J., Ch. Ejaz Yousaf and Mian Hamid Farooq, JJ

BP PAKISTAN EXPLORATION AND PRODUCTION, through Attorney---Petitioner

Versus

SHER ALI KHAWAJA and another---Respondents

Civil Petition No.2679 of 2005, decided on 26th March, 2008.

(On appeal from the judgment dated 8-8-2005 of the High Court of Sindh, Karachi passed in First Appeal No.21 of 2004).

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

----S.18---Right and locus standi to either file reference against the award of compensation or appeal against a judgment arising out of the reference under S.18, Land Acquisition Act, 1894---Scope---Beneficiary of the acquired land has no right and locus standi to either file reference against the award of compensation or appeal against a judgment arising out of the reference under S.18, Land Acquisition Act, 1894.

Pir Khan through his legal heirs v. Military Estate Officer, Abbottabad and others PLD 1987 SC 485; Pakistan Steel Mills Corporation Limited and others v. Deputy Commissioner (East) Karachi and others 1989 SCMR 812; Iftikhar Hussian Shah and others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi and others 1991 SCMR 2193; Land Acquisition Collector, Abbottabad and others v. Muhammad Iqbal and others 1992 SCMR 1245; Pakistan through Military Estate Officer Kharian Cantt. and another v. Hayee Khan through legal heirs and 5 others PLD 1995 SC 418; Federation of Pakistan and another v. Abdul Hayee Khan and others 1996 SCMR 1389; Defence Department of Pakistan through Secretary Ministry of Defence v. Province of Punjab and another 2006 SCMR 402 and Messrs Union Taxes Pakistan Inc. v. Ahmed and others 2007 CLC 1835 affirmed.

(b) Land Acquisition (Sindh Amendment) Ordinance (IV of 1992)---

----Preamble---Constitution of Pakistan (1973) Art.128---Land Acquisition (Sindh Amendment) Ordinance, 1992 having not been laid before the Provincial Assembly, could not attain status of an Act and stood repealed at the expiration of three months from its promulgation and thus lost its efficacy on 6-10-1992 as the life of an Ordinance under the Constitution was 90 days.

Assistant Commission and Land Acquisition Collector, Badin through Additional Secretary (Revenue), Board of Revenue, Sindh v. Haji Abdul Shakoor through legal heirs and another 1996 CLC 2002 distinguished.

Makhdoom Ali Khan, Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Petitioners.

Wasim Sajjad, Senior Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for L.Rs. of Respondent No.1.

Date of hearing: 25th February, 2008.

P L D 2008 Supreme Court 412

Present: Abdul Hameed Dogar, C.J. and Muhammad Nawaz Abbasi, J

Mir MUHAMMAD ALI RIND---Petitioner

Versus

ZAHOOR AHMED and another---Respondents

Civil Petitions Nos.965 and 966 of 2007, decided on 19th December, 2007.

(On appeal from the judgment dated 14-12-2007 passed by High Court of Balochistan, Quetta, in Election Appeal No.82 of 2007).

(a) Administration of justice---

----Natural justice, principles of---Opportunity of hearing---Scope---Order adverse to interest of a person cannot be passed without providing him an opportunity of hearing---Departure from such rule may render such order illegal.

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

----S. 14(7)---National Accountability Ordinance (XVIII of 1999), Ss.15 & 25(b)---Constitution of Pakistan (1973), Arts. 62, 63 & 184(3)---Disqualification of candidate for elections---Conviction under plea bargaining---Election Tribunal declared the petitioner disqualified due to his release under plea bargaining, as it was deemed to be conviction---Validity---Qualification and disqualification to contest election for membership of National and Provincial Assemblies were provided under Arts.62 and 63 of the Constitution read with Representation of the People Act, 1976---If any person was suffering from any disqualification mentioned in Art.63 of the Constitution, such person was disqualified to contest election and could not become member of National or Provincial Assembly---Earning of disqualification under S.15 read with S.25 of National Accountability Ordinance, 1999, was not denied and thus such disqualification mentioned therein if read in context to Art.63 of the Constitution, the petitioner was disqualified to contest election---Supreme Court declined to interfere with the order passed by Election Tribunal---Petition was dismissed.

M. Munir Peracha, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 19th December, 2007.

P L D 2008 Supreme Court 416

Present: M. Javed Buttar, Mian Hamid Farooq and Sheikh Hakim Ali, JJ

MUHAMMAD SAEED---Appellant

Versus

HAQ NAWAZ KHURRAM and 2 others---Respondents

Criminal Appeals Nos.459 and 460 of 2002, decided on 4th March, 2008.

(On appeal from the judgment dated 10-11-2001 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeals Nos. 300-T and 306 of 1999).

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

----Ss. 302 & 308---Constitution of Pakistan (1973), Art. 185(3)---Contentions of the petitioner's counsel were that the entire evidence had not been examined vigilantly and in its true perspective which resulted in serious miscarriage of justice; that the F.I.R. was got lodged with delay for which no plausible justification could be furnished and, therefore, the possibility of deliberation, dishonest exaggeration and consultation could not be ruled out but the High Court had failed to examine the factum of delay, benefit whereof should have been given to the petitioners; that accused being not adult could not have been convicted and sentenced under section 302, P.P.C. whose case squarely fell within the ambit of provisions as contained in section 308, P.P.C.; that the High Court had erred while relying entirely on the statements of interested witnesses and ignoring the defence version completely which was to be kept in juxtaposition; that in view of the conclusion of the High Court it being not a premeditated murder, the sentence of death could not have been awarded which aspect of the matter escaped notice causing serious prejudice; and that the plea of grave and sudden provocation should have been considered in the prevalent circumstances in view of the failure of the prosecution to prove the alleged motive---Leave to appeal was granted by the Supreme Court to consider the contentions and to reappraise the entire evidence on record.

Ashiq v. The State 1993 SCMR 417 and Allah Wadhaya v. The State 2001 SCMR 25 ref.

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

----S. 302---Constitution of Pakistan (1973), Art.185(3)---Contentions of the petitioner/complainant's counsel were that the death sentence could not have been altered to that of life imprisonment in the absence of mitigating circumstances; that the death sentence could not have been altered to that of life imprisonment as it was not a case of individual liability but vicarious liability which had been proved beyond the shadow of doubt; that the High Court had ignored the manner in which the occurrence had taken place as all the accused came from distant places duly armed with fire-arms and killed the deceased persons in merciless and brutal manner and in view of the prevalent circumstances of the case the question of individual liability would not arise and that the (co-accused) had played an active role and not only facilitated the commission of offence but also abetted which aspect of the matter escaped notice resulting in his acquittal which was not justified as prosecution had established its case by producing cogent and concrete evidence---Contentions of the counsel needed consideration which could not be made without reappraisal of the entire evidence, Supreme Court converted the petition for leave to appeal into appeal and ordered the same to be fixed at some early date.

Shaheb Ali v. State PLD 1970 SC 447; Sarfraz v. State 2000 SCMR 1758 and Nawaz Ali v. State 2001 SCMR 726 ref.

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

----S. 302---Constitution of Pakistan (1973), Art.185(3)---Trial Court and appellate Court had rendered the findings about the co-accused which were well-based and in accordance with settled norms of justice and did not call for any interference---Leave to appeal was refused in circumstances.

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

----Ss. 302 & 308---Constitution of Pakistan (1973), Art.185(3)---Appeal to Supreme Court---Reappraisal of evidence---Defence had not produced any witness in support of version of accused---One of the prosecution witnesses in his cross-examination had stated that it was correct that the accused made a statement before the first Investigating Officer to the effect that he alone killed both the deceased as they used to tease his daughters, but it was equally true that his defence plea stood falsified on number of grounds that the sustaining of injuries by the deceased in the occurrence with the fire-arms was admitted and supported by medical evidence; that although it had been stated by accused in his statement that prior to the occurrence another incident had taken place, but said incident was neither reported to the police nor to any other agency and the defence did not lead any evidence to prove the said incident; that fourteen empties were recovered from the place of occurrence, out of which ten empties matched with the pistols recovered from the accused and other two co-accused, however, rest of the four empties could not be matched with any of the pistols as no pistol was recovered from the third co-accused; that recovery of pistols from the accused and two co-accused was established from direct evidence; that according to the version of the accused, on the day of occurrence, both the deceased persons came together at the service station of accused and exhorted that they had come to teach a lesson, even according to accused's stance the deceased were not armed with any weapon and they were empty-handed---Had there been any grudge and intention of attacking the accused, they would have equipped themselves with deadly weapons; that the recovery and matching of empties with three pistols recovered from the accused and two co-accused, did not coincide with the later part of statement of the accused who stated that he singly fired at both the deceased; that number and dimensions of injuries were different which tended to show that they had been fired by more than one persons and with different weapons and not with the pistol of the accused and lastly that the reports of Forensic Science Laboratory was in positive---High Court, though had disbelieved the motive for the occurrence lodged by the prosecution i.e. the dispute of land and also defence version as projected by the accused in his statement under S.342, Cr. P. C. yet the findings of the High Court that the accused party, because of grudge against the deceased on any of the two motives attacked the deceased in presence of eye-witnesses were apt in the circumstances of the case and were supported by evidence on record---Judgment rendered by 'the High Court did not suffer from any legal infirmity and it was perfectly justified and sustainable in law in view of evidence on record and law on the subject-Supreme Court, in circumstances, maintained the impugned judgment subject to modification that sentence of two co-accused was to run concurrently.

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

----Ss. 302 & 308---Constitution of Pakistan (1973), Art.185---Appeal to Supreme Court---Reappraisal of evidence---Prosecution had produced sixteen witnesses including two eye-witnesses; that pistols were recovered during investigation at the pointation of the accused from his house in the presence of witnesses; that one of the prosecution witnesses recovered .30 bore pistol from katcha path at the instance of the accused, which was also taken into possession; that one of the two co-accused got recovered .30 bore pistol which was also taken into possession; that Doctor appeared and produced post-mortem reports of the deceased persons giving the description of external and internal injuries, which, in his opinion, were due to fire-arm, ante-mortem and were sufficient to cause death in ordinary course of nature; that X-Rays were also taken during postmortem; fourteen empties were recovered from the spot out of which, according to the report of Forensic Science Laboratory ten matched with the three pistols recovered from three accused; that the eye-witnesses were reliable, their presence at the service station of the accused at the alleged time of occurrence was not objectionable and they had sufficiently explained the purpose of their presence at the service station, they had supported the prosecution story and despite cross-examination their veracity could not be impeached---High Court, in circumstances, had rightly found that there was ample evidence in the form of ocular account, the medical evidence and the recoveries of the crime empties and the weapons of offence to connect the accused persons with the commission of offence---Prosecution therefore had proved its case beyond any shadow of doubt against the accused persons.

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

----Ss. 302 & 308---Reappraisal of evidence---Motive---Lack of motive or inability of prosecution to prove motive---Effect on award of sentence---Principles---Lack of motive or inability of prosecution to prove motive does not affect the imposition of normal penalty of death if the prosecution otherwise has been able to prove its case against the accused---Lenient view should not be taken merely on the ground that the motive had not been proved by the prosecution---Motive shrouded in mystery by itself is not a mitigating circumstance for awarding lesser sentence.

Nawaz Ali and another v. The State 2001 SCMR 726; Ashfaq Ahmad v. The State 2007 SCMR 641; Federal Government Ministry of Defence v. Sepoy Liaqat Ali 2004 SCMR 1676; Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427; Mst. Nazakat v. Hazrat Jamal and another PLD 2007 SC 453; Mukhtar Ahmad and others v. The State PLD 2004 SC 563 and Khurram Malik and others v. The State and others PLD 2006 SC 354 ref.

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

----S. 302---Constitution of Pakistan (1973), Art.185---Appeal to Supreme Court---Sentence, reduction in---Reappraisal of evidence---High Court had rightly distinguished the cases of two co-accused on the ground that the injuries attributed to them were not fatal individually and further they most probably being the son and nephew of the principal accused acted at his instance and under his influence---Sentences of co-accused, in circumstances, were rightly reduced from death sentences to life imprisonment---Supreme Court modified the sentences awarded to the co-accused to run concurrently.

Sardar Muhammad Ishaq Khan, Senior Advocate Supreme Court for Appellant (in Cr.A.No.459 of 2002).

Shabbir Hussian Lali, Addl. Prosecutor General, Punjab for the State (in Cr.A.No.459 of 2002).

Nemo for Respondents (in Cr.A.No.459 of 2002).

Mian Aftab Faruukh, Senior Advocate Supreme Court with Raja Abdul Ghafoor, Advocate-on-Record for Appellants ((in Cr.A.No.460 of 2002).

Shabbir Hussian Lali, Addl. Prosecutor General, Punjab for the State (in Cr.A.No.460 of 2002).

Date of hearing: 4th March, 2008.

P L D 2008 Supreme Court 429

Present: Muhammad Nawaz Abbasi, Muhammad Qaim Jan Khan and Syed Zawwar Hussian Jaffery, JJ

Ch. MUHAMMAD ARIF HUSSAIN---Petitioner

Versus

Rao SIKANDAR IQBAL and 10 others---Respondents

Civil Petition No.1 of 2008, decided on 10th January, 2008.

(On appeal from the judgment dated 26-12-2007 passed by Lahore High Court, Lahore in Writ Petition No.12011 of 2007).

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

----S. 99(cc)---Educational qualifications of candidate to contest election---Candidate having appeared in B.A. examination and having been declared successful, was issued graduate certificate but subsequently on revising the result he was declared not eligible, thus without being graduate, he was not eligible to contest the election.

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

----Arts. 199, 225, 185(3)---Representation of the People Act (LXXXV of 1976), S.99(cc)---Educational qualification of candidate to contest election---Disqualification of candidate floating on the surface of the record---Exercise of constitutional jurisdiction of High Court under Art.199 of the Constitution at an intermediate stage---Scope---Jurisdiction of High Court under Art.199 of the Constitution was not controlled by Art.225 of the Constitution---If a person was not qualified to contest the election, the interference of the High Court against the order of acceptance of his nomination papers would not be in conflict with the provisions of Art.225 of the Constitution---Power under Art.199 of the Constitution could be placed on higher footing than the power emanating from Art.225 of the Constitution, notwithstanding the fact that two Articles have independent scope---Power of the High Court under Art.199 was not curtailed by the mere fact that question of law brought before the Court directly or indirectly related to the election dispute rather the High Court has to determine the question of its jurisdiction in the light of facts of a case before it and' the point involved therein---Principles.

The Returning Officer in the scrutiny of nomination papers and Election Tribunal in appeal against the rejection of nomination papers can go into all questions of qualification and disqualification of a person relating to his candidature in the summary proceedings and in continuation thereto, the High Court also in its constitutional jurisdiction can entertain the question of rejection or acceptance of nomination papers in the cases in which the disqualification of a person to contest the election, is apparent and can be decided without any factual inquiry. In the present case, the candidate on the basis of his intermediate certificate allegedly issued to him by the Board of Intermediate and Secondary Education, appeared in B.A. examination of the University of Punjab and the University by virtue of its rules, having gone into the question of eligibility of the candidate to appear in B.A. examination at a subsequent stage, revised his result, therefore, the contention that Election Tribunal under Article 225 of the Constitution, has exclusive jurisdiction to adjudicate the dispute arising out of election process, has no substance. This is correct that in the normal circumstances, the election dispute is challengeable only by an election petition on completion of election process and filing of writ petition at an intermediate stage, may not be justified but there is distinction between Article 225 and Article 199 of the Constitution. The power of Election Tribunal constituted under Article 225 is confined to the extent of election disputes which may also include qualification and disqualification of a candidate whereas Article 199 of the Constitution is not, as such, controlled by Article 225 of the Constitution in all matters at all stages of election rather the High Court, in exercise of its constitutional jurisdiction, may, in suitable cases, exercise all powers to correct a legal error, defect or disability and has much wider power than that of the power of the Tribunal constituted under Article 225 of the Constitution. There is no cavil to the proposition that to avoid multiplicity of litigation and 'conflict of opinion, High Court may not interfere in the matters arising out of election dispute falling within the scope of Article 225 of the Constitution but nevertheless the jurisdiction of High Court under Article 199 is not ousted for the mere reason that the matter can be brought before the Election Tribunal at an appropriate stage. There is no departure from the rule that there is limited scope of interference of the High Court under Article 199 in an election matter at an intermediate stage, which can be decided by the Election Tribunal but this rule, as such, may not be applicable to be pressed into service to permit a person to enter in the process of election who does not fulfil requisite qualification, therefore, the interference of the High Court during the process of scrutiny of nomination paper in a case in which disqualification of a person is floating on the surface of record is not objectionable instead non-interference of High Court in such a case in its constitutional jurisdiction, would amount to allow a person, who is not qualified to be elected or become Member of the Parliament, to contest the election and disturb the whole process. Article 225 of the Constitution, provides that no election to the House of Parliament or Provincial Assembly can be called in question except through election petition before the Tribunal constituted thereunder but the rule envisages therein may not be invariably applicable to all situations at all stages, rather in exceptional case High Court may, under Article 199 of the Constitution, interfere to uphold the constitutional mandate.

A dispute concerning with the election, would definitely be subject-matter of election petition whereas the question relating to the qualification and disqualification of a person would essentially be a pre-requisite to enter into process of election and if a person is not qualified to contest the election, the interference of the High Court against the order of acceptance of his nomination papers would not be in conflict with the provision of Article 225 of the Constitution. The power under Article 199 of the Constitution, no doubt, can be placed on higher footing to that of power emanating from Article 225 of the Constitution and notwithstanding the fact that two Articles have independent scope, the power of the High Court under Article 199 is not curtailed by the mere fact that question of law brought before the Court directly or indirectly related to the election dispute rather the High Court has to determine the question of its jurisdiction in the light of facts of a case before it and the point involved therein.

The relief claimed in the constitutional .petition, in the present case, related to the candidature of the candidate and the precise objection was that he was not a graduate to contest the election. This is not desirable to interrupt the election process except in the manner provided under the law but one cannot agree to the proposition that in case of substantial question of law arising in the election process, the same cannot be at all interrupted by the High Court at the intermediate stage and a blanket ban of jurisdiction should be read into Article 225 of the Constitution to every legitimate challenge of every kind of illegal order passed by an election authority. The orders passed by the Election Authorities beyond the scope of law are not immune from challenge and correction by the High Court under Article 199 of the Constitution and High Court in doing so, must exercise jurisdiction subject to normal rules therefore no hard and fast rule can be made that what type of errors and actions of election authorities are immune from challenge before the High Court at an intermediate stage and in what type of error and action, the interference is possible rather it depends upon the facts of each case, as to what type of dispute is brought before the High Court at an intermediate stage and in the light thereof High Court has to decide the question of its jurisdiction.

In the present case, the only question involved was in respect of the qualification of the candidate who passed B.A. Examination from University of Punjab but subsequently the University declared him not eligible to appear in the examination for the reasons that his certificate of Board of Intermediate and Secondary Education was found fake and bogus in consequence to which his graduation result was cancelled by the University. The matter relating to the cancellation of B.A. result of the petitioner, is sub judice before the High Court in a constitutional petition, therefore, the question of eligibility of the petitioner to appear in the B.A. Examination cannot be gone into by Supreme Court in the present proceedings and consequently, this petition cannot succeed on the ground of bar of exercise of jurisdiction by the High Court under Article 199 of the Constitution by virtue of Article 225 of the Constitution as in the facts of the present case, the remedy of election petition provided under Article 225 of the Constitution, may not be adequate. The law does not permit a person suffering from a patent disqualification to become a candidate and disturb the process of election and in view thereof, remedy under Article 225 of the Constitution, cannot he considered adequate as the refusal of relief in such a case in the constitutional petition may frustrate the process of election. This is admitted position that the candidate presently is not holding graduation degree and in view thereof there is no legal flaw or defect in the judgment of the High Court calling for interference of Supreme Court.

Election Commission of Pakistan v. Javed Hashmi PLD 1989 SC 396 distinguished.

Ghulam Mustafa Jatoi v. Additional District and Sessions Judge 1994 SCMR 1299; Nazir Ahmed v. Chief Election Commissioner PLD 2002 SC 184 and Election Commissioner of Pakistan v. Javaid Hashmi PLD 1989 SC 396 ref.

Kh. Saeed-uz-Zafar, Advocate Supreme Court with Akhtar Ali Chaudhry, Advocate-on-Record for Petitioner.

Munir Peracha, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Respondents.

Date of hearing: 10th January, 2008.

P L D 2008 Supreme Court 438

Present: Muhammad Nawaz Abbasi, Muhammad Qaim Jan Khan and Zawwar Hussain Jaffery, JJ

MUHAMMAD NAWAZ---Petitioner

Versus

THE STATE through Chairman, NAB, Islamabad and another---Respondents

Civil Petitions Nos.870 to 874 of 2007, decided on 22nd January, 2008.

(On appeal from the judgment dated 28-8-2007 passed by the High Court of Sindh Karachi, in Constitutional Petitions Nos.D-1628 to 1632 to 2007).

Criminal Procedure Code (V of 1898)---

----S.497---Customs Act (IV of 1969), Ss.32(1) & 156(1)(14)(82)---Bail, grant of---Further inquiry---Charge against the accused was that he approved and sanctioned the payment of fake claims of rebate and in view of the facts of the cases, the question whether accused being privy to the crime had knowingly sanctioned the rebate claims in the fake transactions of export or he, while depending on his subordinate, approved the claims in good faith in accordance with the rules, required determination in the light of the documentary and oral evidence yet to he brought on record---No opinion thus could be expressed regarding the guilt of the accused without scrutiny of the entire record and question whether accused being in league with his co-accused in the transactions was also one of the beneficiaries, could not be answered at the present stage---Relevant record and the documentary evidence collected during the investigation was with the prosecution and there was no question of tampering with the evidence or to influence the official witnesses---Medical report also showed a strong case for grant of bail to the accused---Involvement of accused in the transaction being certainly a question of further inquiry, in view of the principles governing the grant of bail in non-bailable cases, accused would be entitled to the concession of bail on merits as well as on medical ground.

Muhammad Ilyas Siddiqui, Advocate Supreme Court for Petitioner.

Dr. Asghar Rana, D.P.G. for Respondents.

Date of hearing: 22nd January, 2008.

P L D 2008 Supreme Court 442

Present: Muhammad Qaim Jan Khan, Muhammad Musa K. Leghari, Syed Sakhi Hussain Bokhari and Sheikh Hakim Ali, JJ

AGRICULTURE DEVELOPMENT BANK OF PAKISTAN---Appellant

Versus

MUBARAK DAIRIES LIMITED and others---Respondents

Civil Appeal No.1214 of 2001, decided on 12th March, 2008.

(On appeal from the judgment dated 22-2-2001, passed by the Lahore High Court, Lahore in EFA No.316 of 2000).

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

----S. 171---Applicability of S.171, Contract Act, 1872---Preconditions.

The pre-condition for the applicability of section 171 of the Contract Act, 1872 is that there must not be an explicit or implied contract indicative of the intention of the depositors. If the customer has deposited the amount with specific instruction to adjust the amount in such and such account, in that event, when the bank accepts it as such, it cannot vary it or change and adjust it to any other account. Section 171 of the Contract Act would apply when no such specific, express or implied instructions at the time of deposit were conveyed or imparted to the Bank. Moreover, the provision of section 171 of the Contract Act is not applicable to the case on other counts also.

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

----S. 59---Phrase "whether a debtor in several distinct debts to one person makes a payment to him, either with express intimation or under circumstances implying that the payment is to be applied to the discharge of some particular debt, the payment, if accepted must be applied accordingly"---Connotation---Bank, in the present case, was made to know through letter, the specific instructions by the customer to adjust the specified amount---Bank having accepted that amount with specific directions to adjust the same into the indicated loan account was bound to adjust the same in that account---Bank, in pursuance of the indicated instructions, afterwards had no discretion/power/authority to vary that agreed adjustment for any other account on its own whim and will, without express consent of the customer---Where the Bank had adjusted such amount in another account of the customer on its own discretion, S.59 of the Contract Act, 1872 would apply to the case.

Munshi Emamuddin Ahmed through Muhammad Abdur Rehman and others v. Province of East Bengal and others PLD 1952 Dacca 279 ref.

Iftikhar Malik, Advocate Supreme Court for Appellant.

Rai Muhammad Nawaz Kharal, Advocate Supreme Court for Respondents Nos. 1-5.

Date of hearing: 12th March, 2008.

P L D 2008 Supreme Court 446

Present: Abdul Hameed Dogar, C.J. and Muhammad Nawaz Abbasi, J

COMMISSIONER OF INCOME TAX/WEALTH TAX COMPANIES ZONES, PESHAWAR---Petitioner

Versus

Messrs RIVER SIDE CHEMICALS (PVT.) LTD. GADOON---Respondents

Civil Petitions Nos.827-829 of 2007, decided on 19th December, 2007.

(On appeal from the judgment dated 12-6-2007 passed by Peshawar High Court, Peshawar in T.R.No.159 of 2003).

Income Tax Ordinance (XXXI of 1979)---

----Second Sched. Part I, Cls. (122-C) & (118-C)---Exemption, grant of---Conditions---Grant of concession in the nature of exemption from payment of duties must be given strict interpretation and the person getting such benefit must satisfy all conditions for such exemption but once the required conditions are complied with, the exemption available to a person under the law cannot be taken away by the concerned authorities in their discretion.

Federation of Pakistan v. Zaman Cotton Mills 2001 SCMR 563 distinguished.

Mumtaz A. Sheikh, Member F.B.R. for Petitioner.

Nemo for Respondents.

Date of hearing: 19th December, 2007.

P L D 2008 Supreme Court 451

Present: Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

TARIQ MEHMOOD---Appellant

Versus

DISTRICT POLICE OFFICER, TOBA TEK SINGH and another---Respondents

Civil Appeal No.23 of 2006, decided on 29th February, 2008.

(On appeal from the judgment dated 4-8-2004 in Appeal No.203 of 2004, passed by the Federal Service Tribunal, Lahore).

Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 6, 5 & 4---Imposition of major penalty---Procedure---If major penalty was required to be imposed on any Government employee, then procedure as laid down in R.6, Government Servants (Efficiency and Discipline) Rules, 1973 was required to be adhered to---No major penalty could be imposed on a government servants unless his guilt was properly inquired into by appointing an inquiry officer or an inquiry committee within the purview of R.5 of Government Servants (Efficiency and Discipline) Rules, 1973 and the accused was served with a proper show-cause notice or charge-sheet containing statement of allegations on which the penalty was proposed to be inflicted---Where major penalty of reduction in rank was imposed on the government employees without a proper inquiry and recording of evidence, the action of the department and the judgment of Service Tribunal affirming the departmental action, was set aside by the Supreme Court.

Jan Muhammad V. The General Manager, Karachi Telecommunication Region 1993 SCMR 1440; Ghulam Muhammad Khan v. Prime Minister of Pakistan and others PLD 1994 SC 222; Nawab Khan and another v. Government of Pakistan through Secretary, Ministry of Defence and others 1996 SCMR 802; Rashid Mehmood v. Additional Inspector-General of Police and 2 others 2002 SCMR 57 and Inspector-General of Police v. Shafqat Mehmood 2003 SCMR 207 rel.

Malik Saeed Hassan, Senior Advocate Supreme Court for Appellant.

Ex parte: Respondents.

Date of hearing: 29th February, 2008.

P L D 2008 Supreme Court 457

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

CHAIRMAN PAKISTAN ENGINEERING COUNCIL, ISLAMABAD and others---Petitioners

Versus

MUHAMMAD MAJID HANIF and others---Respondents

C.P.L.As. Nos. 42 and 224 to 227 of 2008, decided on 5th March, 2008.

(On appeal from the judgment dated 6-12-2007 in W.Ps. Nos.2615-2006/BWP, 1693-2007/BWP, 1716-2007/BWP, 1745-2007/BWP and 1948-2007/BWP passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur).

Pakistan Engineering Council Act (V of 1976)---

----Ss. 10 & 14(1)---Constitution of Pakistan (1973), Art.185(3)---Accreditation of College by Pakistan Engineering Council---College, in the present case, was granted accreditation by the Pakistan Engineering Council in the year 2007 but with the intake of batch 2003 only and nothing was mentioned with regard to the students who had joined the said college in the year, 1999 and thereafter---Matter remained under consideration, as correspondence was being made by the parties---College was granted accreditation in the year 2007 with the intake of batch of 2003 only, meaning thereby that accreditation was not prospective but it was with retrospective effect---Contention of the Pakistan Engineering Council in this behalf was that since the College was lacking in requisite qualifications/facilities prior to 2007, therefore, accreditation could not have been afforded but the argument had the germs of its own destruction for the simple reason that if the College was lacking in requisite qualifications, prior to 2007, how then accreditation could have been accorded retrospectively with the intake of the batch 2003---Decision made by the Pakistan Engineering Council, therefore, led to the clear inference that in the year 2003, too the College was not lacking in the requisite qualifications of teaching material and equipments---Inaction on the part of Pakistan Engineering Council was the main cause and future of those students (of batch 1999) who without any fault on their part had studied for full four years by toiling day and night to gain success, could not have been allowed to be marred or destroyed by the Council's refusal to accredit the College without any reason---Council had also failed to state as to how accreditation was accorded to the other colleges retrospectively---Petitions for leave to appeal by Pakistan Engineering Council having no merit, were dismissed in circumstances.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioners.

Muhammad Ozair Chughtai, Advocate Supreme Court/Advocate-on-Record for Respondents.

Date of hearing: 5th March, 2008.

P L D 2008 Supreme Court 462

Present: Saiyed Saeed Ashhad, Muhammad Qaim Jan Khan, Syed Zawwar Hussain Jaffery and Sheikh Hakim Ali, JJ

IMTIAZ ALI---Appellant

Versus

ATTA MUHAMMAD and another---Respondents

Civil Appeal No.2762 of 2001, decided on 19th March, 2008.

(On appeal from the judgment dated 17-8-2001, passed by the Lahore High Court, Multan Bench, Multan in R.S.A. No.164 of 1987).

Supreme Court Rules, 1980---

----O. XII, R. 2---Civil Procedure Code (V of 1908), O.XLV, R.1---Petition of appeal to Supreme Court---Preparation of copy of judgment and decree sheet---Limitation, computation of---Principles.

The appeal before Supreme Court had to be filed against the impugned judgment, decree or final order of the High Court within 30 days. The appellant had not been allowed by the above rule to wait for the preparation of decree sheet in the High Court because the words used in the rule are ………….." or the date of impugned judgment …………." which clearly display that the petition of appeal can be filed against the impugned judgment also. It is not necessary for an appellant to bide for the preparation of decree sheet for filing of any appeal. If a judgment has been delivered, that can easily be challenged through filing of appeal in Supreme Court according to the above indicated rule. As the law has not bound down the appellant to file appeal against a decree only the period spent waiting for the preparation of decree, therefore, cannot be exempted. A distinction has to be kept in view with regard to a case, wherein an appeal cannot be filed without decree and has mandatorily to be filed against a decree, and those cases in which appeal can be filed even against the judgment/order only. In the former case, period consumed in the preparation of decree would be allowed while in the latter case, the period of limitation would commence with the birth and announcement of the judgment/order to be appealed against.

Order XLV, Rule 1, of the C.P.C., for the definition of "decree" it has included in its compass, a judgment or final order also.

In other words, a copy of the impugned judgment, if has been appended with the appeal, while filing of appeal in Supreme Court, it would be competent as the impugned judgment has been treated a decree by fiction of law due to provision of Order XLV, Rule 1 of the C.P.C. Therefore, the argument that waiting period of appellant for the preparation of decree may be excluded, cannot be accepted, as this has not been found to be based upon any sound legal reason and justification.

Filing of appeal within limitation of 30 days from the delivery of judgment is mandatory, while insufficiency of documents filed with an appeal due to some reasons, have got a different concept and effect. Due to the non-availability of required but not mandatory document, one can obtain a period from the office/court, after filing of an appeal within the prescribed period of limitation because from the date of announcement of the judgment, limitation period having commenced, no interruption could stop the limitation running. The period spent for obtaining copy of impugned judgment could be exempted but the appellant cannot be allowed any more period spent for obtaining copy of decree, as it would have overlapping effect and would be a grant of period doubly.

The appeal having been filed after one day of period of limitation, has created valuable right in favour of respondents. No sufficient cause for fling of delayed appeal, in the present case, haying been found, Supreme Court declined condonation of delay.

Nakuleswar Sikdar v. Barun Chandra Chakravorty and another 1971 SCMR 54 ref.

Iftikhar Ullah Malik, Advocate Supreme Court for Appellant.

Sh. Zamir Hussain, Senior Advocate Supreme Court for Respondents.

Date of hearing: 19th March, 2008.

P L D 2008 Supreme Court 466

Present: Muhammad Qaim Jan Khan, Muhammad Moosa K. Leghari and Sheikh Hakim Ali, JJ

Dr. ALTAF HUSSIAN GARDEZI---Petitioner

Versus

CHIEF SECRETARY TO GOVERNMENT OF PUNJAB, LAHORE and another--Respondents

Civil Petition No.602 of 2006, decide on 7th April, 2008.

(On appeal from the judgment and order of the Punjab Service Tribunal, Lahore, dated 12-4-2006, passed in appeal No.2170 of 2001).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----Constitution of Pakistan (1973), Art.212(3)---Removal from service on the basis of findings of the departmental enquiry conducted under Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 on the charges of a large number of appointments made by the civil servant, without advertising the posts, without preparation of the merit list and also over and above the sanctioned strength---Civil servant was exonerated in two consecutive enquiries, inquiry in the present case, was held ex parte and record showed that there were procedural flaws in the said enquiry---Validity---Authorities were to prove the acts of alleged misconduct against a civil servant and a civil servant could not be held guilty of the charges merely because he failed to participate in the proceedings---Civil servant was exonerated by the NAB authorities from the charge---Appeals by incumbent civil servants who were alleged to have been appointed in violation of law by the civil servant were accepted and their cases were remanded to the authorities for deciding each case on its own merits---Penalty of removal from service inflicted upon the civil servant, in circumstances, appeared to be harsh, inappropriate and out of proportion and penalty of compulsory retirement from service would be sufficient to meet the ends of justice---Petition for leave to appeal was converted into appeal by the Supreme Court and allowed accordingly.

Mehmood A. Sheikh, Advocate Supreme Court for Petitioner.

Mrs. Afshan Ghazanfar, A.A.-G., Punjab for Respondents.

Date of hearing: 7th April, 2008.

P L D 2008 Supreme Court 470

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

Raja SOHAIL JAVED and others---Petitioners

Versus

Raja ATIQ-UR-REHMAN---Respondent

Civil Petitions Nos. 801 and 802 of 2007, decided on 2nd April, 2008.

(On appeal from the order dated 7-6-2007 of the Lahore. High Court, Lahore passed in SAO Nos.64 & 65 of 2007).

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13(6)---Constitution of Pakistan (1973), Art.185(3)---Directions to tenant to deposit all the rent due from him etc.---Non-compliance---Effect---Rent Controller, after the date and before the issues are framed, shall direct the tenant to deposit all the rent due from him, and also to deposit rent regularly till the final decision of the case, before the fifteenth day of each month---If there is dispute about the amount of rent due or the rate of rent, Rent Controller shall determine such amount approximately and direct that same be deposited by the tenant before a date to be fixed for the purpose---If the tenant makes default in the compliance of such order, then if he is the petitioner, his application shall be dismissed summarily and if he is respondent his defence shall be struck off and the landlord be put into possession of the property without taking any further proceedings in the case---Where such mandatory provisions of law had neither been complied with by the Rent Controller, nor attended to by the High Court, both the orders of the Rent Controller and High Court were not sustainable in law and were set aside by the Supreme Court---Supreme Court, by converting petitions for leave to appeal into appeals allowed the appeals accordingly and remitted the matter to the Rent Controller for decision afresh on merits and in accordance with law.

Nazir Ahmed Bhutta, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioners.

Raja Abdur Rehman, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents.

P L D 2008 Supreme Court 472

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

PETROSIN CORPORATION (PVT.) LTD. and others---Petitioners

Versus

MOL PAKISTAN OIL AND GAS CO. and others---Respondents

Civil Petition No.211 of 2008, decided on 11th February, 2008.

(On appeal from the order dated 23-1-2008 of the Lahore High Court, Rawalpindi Bench in C.R.No.530 of 2007).

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan (1973), Art.185(3)---Suit for declaration and application for grant of permanent injunction---Grant of license for processing of oil and gas on invitation of tenders---Pre-qualifications of parties---Submitting documents---Contentions of the petitioners were that process of awarding contract excluding the petitioners was not transparent; was without giving opportunity of hearing to them and malice had been shown by awarding contract to some picked persons at the cost of 'public exchequer and prayed that permanent injunction be granted and the process in question be declared as illegal, void, without authority or jurisdiction and based on mala fide---Validity---Petitioners' certificate of quality management system `ISO 9000' was valid for one year and had lapsed at the time of submission of their .pre-qualification documents; they got their certificate renewed after two months of the date fixed for submission of said documents---Effect---In absence of any valid/renewed certification, the documents of petitioners were rightly rejected by the Authorities---Contention of petitioners that they were not provided opportunity of hearing had no merit as a self-contained letter giving reasons for regret on behalf of the Authorities was sent to the petitioners---Tendering process for the project was completed and the contract was awarded to the party which was reduced in writing and was now under performance; petitioners had not claimed any relief against the said party which had invested a huge amount in that respect---Any injunction to 'bring back everything to standstill would be unlawful and prejudicial to party's vested rights under the contract lawfully executed, which was now in the process of implementation---Petitioners, who were ousted from the process of pre-qualification on the basis of lawful grounds would not suffer any irreparable loss as compared to the party getting contract in whose favour legitimate rights had been created under the contract; similarly balance of convenience also leaned in favour of the said party---Injunction could only be granted restraining the defendants from committing breach of some concluded contract or other injury of any kind but in the present case, there was no contract in favour of petitioners, as such the question of breach of contract did not arise---Concurrent findings of the courts below did not suffer from any illegality or infirmity warranting interference by Supreme Court---Petitioners had failed to point out that decision taken by the Authorities lacked transparency or was tainted with mala fide or was unfair or was based on favouritism---Grant of injunction was rightly refused to the petitioners in circumstances--Petition for leave to appeal was dismissed by Supreme Court.

Nazir Ahmed Bhutta, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Petitioners.

Makhdoom Ali Khan, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for respondents Nos. 1-5.

Raja M. Bashir, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.6.

P L D 2008 Supreme Court 476

Present: Abdul Harmed Dogar, C.J. Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

AZRA RIFFAT RANA---Petitioner

Versus

SECRETARY, MINSITRY OF HOUSING AND WORKS, ISLAMABAD and others---Respondents

C.P.L.A. No.9 of 2008, decided on 7th April, 2008.

(On appeal from the judgment dated 24-12-2007 in Appeal No.296(R)CS/2005 passed by the Federal Service Tribunal, Islamabad).

(a) Accommodation Allocation Rules, 2002---

----O.M. No.F.1(8)-RU/89, dated 4-12-1991---Office Memorandum---Effect---Office memorandum being inconsistent with any statutory rule on the point, though cannot be given effect to as it does not stand on a higher footing than the statutory rules, yet where an office memorandum is expressed in precise terms, capable of being applied with particularity to a great number and variety of cases then the terms of such memorandum should be deemed to amplify and adapt the statutory rules in the relevant aspect and be regarded as supplementing them.

Secretary to the Government of the Punjab v. Abdul Hamid Arif 1991 SCMR 628 and Pakistan v. Abdul Hamid PLD 1961 SC 105 ref.

(b) Interpretation of statutes---

----Office Memorandum---Where an office memorandum is expressed in precise terms, capable of being applied with particularity to a great number and variety of cases then the terms of such memorandum should be deemed to amplify and adapt the statutory rules in the relevant aspect and be regarded as supplementing them.

Secretary to the Government of the Punjab v. Abdul Hamid Arif 1991 SCMR 628 and Pakistan v. Abdul Hamid PLD 1961 SC 105 ref.

(c) Accommodation Allocation Rules, 2002---

----O.M. No.F.1(8)-R4/89, dated 4-12-1991---Promissory estoppel, doctrine of---Applicability---Issuance of Office Memorandum by Government whereby certain incentives including to retain accommodation till the age of superannuation and six months thereafter were provided and a large number of government employees, including the appellant availed the same, Government, by its conduct, was estopped to perform a somersault and say that since the policy introduced through the office Memorandum was contrary to the Accommodation Allocation Rules, 2002 it could not have been implemented---Government as per doctrine of promissory estoppel, was bound by the promise and the assurance contained in the Office Memorandum in question---Doctrine of promissory estoppel does not extend to legislative and sovereign functions, yet executive orders are not excluded from its operation---Appellant was entitled to retain official accommodation up to the age of superannuation and six months thereafter in terms of the Office Memorandum, and as per terms and conditions of allotment.

Pakistan through Ministry of Finance Economic Affairs and another v. Fecto Belarus Tractors Limited PLD 2002 SC 208; Robertson v. Ministry of Pensions (1948) 2 All ER 767; S.A.M. Wahidi v. Federation of Pakistan through Secretary Finance and another 1999 SCMR 1904; Bhim Singh and others v. State of Haryana and others 1983 PSC 42; Pakistan through Secretary, Ministry of Commerce and others v. Salahud Din and others PLD 1991 SC 546; Federation of Pakistan v. Ch. Muhammad Aslam 1986 SCMR 916; Union of India and others v. Godfrey Philips India Limited AIR 1986 SC 806; Messrs Iit Ram Shiv Kumar and others AIR 1980 SC 1285; M.P. Sugar Mills v. State of U.P. AIR 1979 SC 621; Ram Niwas Gupta and others v. State of Haryana through Secretary, Local Self-Government, Chandigarh and another AIR 1970 Punj. and. Har. 462 ref.

(d) Estoppel---

----Promissory estoppel---True concept.

Pakistan through Ministry of Finance Economic Affairs and another v. Fecto Belarus Tractors Limited PLD 2002 SC 208 quoted.

M. Shoaib Shaheen, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

Ms. Nahida Mehboob Elahi, D.A.G., M.S. Khattak, Advocate­-on-Record and Sher Afzal Khan, Estate Officer for Respondents.

Date of hearing: 31st January, 2008.

P L D 2008 Supreme Court 487

Present: Muhammad Nawaz Abbasi, Mian Hamid Farooq and Muhammad Farrukh Mahmud, JJ

Syed NAYYAR HUSSAIN BUKHARI---Petitioner

Versus

DISTRICT RETURNING OFFICER, NA-49, ISLAMABAD and others---Respondents

Civil Petition No.316 of 2008, decided on 13th March, 2008.

(On appeal from the order dated 29-2-2008 of the Islamabad High Court, Islamabad, passed in W.P.No.33 of 2008).

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

----Arts. 225, 103 & 199---Representation of the People Act (LXXXV of 1976), S.103-AA---Election dispute---Bar as contained in Art.225 of the Constitution on the jurisdiction of High Court under Art.199 of the Constitution and that of Election Commission of Pakistan---Scope and extent---Absolute bar of jurisdiction of the High Court in election matters is based on misconception of law---Power of judicial review of the High Court is certainly not available as an alternate remedy in the election matter but if the aggrieved person has no other remedy, the bar of jurisdiction contained in Art.225 of the Constitution, may not affect the jurisdiction of the High Court to entertain a petition involving question of law or interpretation of law in respect of an election dispute---In all election matters at all stages, the jurisdiction of the High Court under Art.199 of the Constitution or that of Election Commission of Pakistan, a constitutional forum is not completely ousted by virtue of Art.225 of the Constitution---Election Commission of Pakistan can conveniently take notice of any irregularity/illegality committed during the process of election in an appropriate case in exercise of its powers under S.103 read with S.103-AA of the Representation of the People Act, 1976---Similarly the High Court in a suitable case can interfere in the order passed by the Election authorities during the election process in its constitutional jurisdiction under Art.199 of the Constitution.

Election Commission of Pakistan v. Javaid Hashmi PLD 1989 SC 396; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge 1994 SCMR 1299; Ayatullah Dr. Imran Liaquat Hussain v. Election Commission of Pakistan PLD 2005 SC 52; Abdul Majeed Khan v. District Returning Officer 2006 SCMR 1713 and Ch. Muhammad Arif Hussain v. Rao Sikandar Iqbal and others Civil Petition No.1 of 2008 ref.

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

----Ss. 39, 52 & 103-AA---Constitution of Pakistan (1973), Arts.225, 199 & 185(3)---Recounting of ballot papers by the Returning Officer under S.39 of the Representation. of the People Act, 1976 and under S.103-AA of the said Act by the Election Commission of Pakistan---Application of petitioner for such recounting, in the present case, was not considered in proper exercise of jurisdiction and similarly the High Court dismissed the constitutional petition in a perfunctory manner---Supreme Court disposed of the petition for. leave to appeal with the observations that the petitioner may either approach the Election Commission of Pakistan afresh under S.103-AA of the Representation of the People Act, 1976, or avail the remedy of election petition under S.52 of the said Act---Notwithstanding the judgment of the High Court and the order passed by the Returning Officer as well as by Election Commission of Pakistan, Supreme Court directed that subject to all just exceptions, the concerned forum to be chosen by the petitioner, shall decide the matter quite independently on its own merits without being influenced by the orders assailed before the Supreme Court or by the present order and also at the first instance, will decide the matter relating to the recounting of the ballot papers as preliminary issue within the possible short time.

Syed Asghar Hussain Sabzwari, Advocate Supreme Court along with Petitioner in person and Ch. Muhammad Akram, Advocate-on-Record for Petitioners.

Waseem Sajjad, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents.

Date of hearing: 13th March, 2008.

P L D 2008 Supreme Court 495

Present: Muhammad Nawaz Abbasi, Mian Hamid Farooq and Muhammad Farrukh Mahmud, JJ

MUHAMMAD HUSSAIN BABAR---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN, through Secretary and others---Respondents

Civil Petition No.317 of 2008, decided on 12th March, 2008.

(On appeal from the judgment dated 6-3-2008 passed by Peshawar High Court, Peshawar in W.P.No.239 of 2008).

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

----S. 52---Constitution of Pakistan (1973), Arts.225 & 199---Constitutional jurisdiction' of High Court under Art.199 of the constitution---Bar of jurisdiction contained in Art.225 of the Constitution---Scope and extent---Dispute arising out of election, after issuance of notification of the result of election, should be brought before the Election Tribunal under S.52 of the Representation of the People Act, 1976, by way of an election petition and the remedy of constitutional petition under Art.199 of the Constitution is not a proper remedy---Bar of jurisdiction contained in Art.225 of the Constitution may not be absolute to oust the jurisdiction of the High Court under Art.199, in all matters directly or indirectly concerned with the election---Constitutional jurisdiction of High Court can surely be invoked in certain situations, particularly in cases, in which a pure question of law is raised in the constitutional petition and a question of fact or a mixed question of law and fact is not involved---Question relating to exercise of jurisdiction by the High Court under Art.199 of the Constitution in election matters due to bar contained in Art.225 of the Constitution, must be determined in the light of facts and circumstances of each case as concept of complete bar of jurisdiction of the High Court may not be in the wisdom of the Constitution---Election Commission as well as the High Court, in the present case, having undertaken the exercise of examination of record had observed that in the light of the nature of controversy, the petitioner, instead of invoking the constitutional jurisdiction of High Court, should avail the remedy of election petition---Supreme Court, in the light of facts of the present case and the propositions raised by the parties declined to differ with the High Court.

Abdul Majeed Khan v. District Returning Officer 2006 SCMR 1713; Election of Pakistan v. Javaid Hashmi PLD 1989 SC 396; Abdul Majeed Khan v. District Returning Officer 2006 SCMR 1713; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge 1994 SCMR 1299; Ayatullah Dr. Imran Liaquat Hussain v. Election Commission of Pakistan PLD 2005 SC 52 and Ch. Muhammad Arif Hussain v. Rao Sikandar Iqbal and others Civil Petition No.1 of 2008, decided on 10th January, 2008 ref.

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

----S. 52---Constitution of Pakistan (1973), Arts.225, 199 & 185(3)---Grievance of the petitioner was confined only to the extent of consolidation of result and the recount of the rejected votes---Supreme Court, notwithstanding the question of jurisdiction of the election authorities and the High Court, without commenting upon the merits of the case in either way, disposed of the petition for leave to appeal with direction that if the petitioner avails the remedy of election petition under S.52 of the Representation of the People Act, 1976, before the Election Tribunal established in terms of Art.225 of the Constitution, the Tribunal at the first instance will consider the question relating to the recount or count of rejected votes, as the case may be, as preliminary issue and without decision of the same in possible short time, will not proceed on merits---Petition for leave to appeal to Supreme Court was disposed of accordingly.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and Mehr Khan Mali, Advocate-on-Record for Petitioner.

Dr. Babar Awan, Advocate Supreme Court for Respondents.

Date of hearing: 12th March, 2008.

P L D 2008 Supreme Court 503

Present: M. Javed Buttar, Mian Hamid Farooq and Sheikh Hakim Ali, JJ

MUHAMMAD LATIF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.157 of 2003 out of J.P. No.39 of 2002, decided on 10th March, 2008.

(On appeal from the judgment dated 3-9-2001, passed by the Lahore High Court, Rawalpindi Bench, in Crl. A.No.255-T/1999).

(a) Criminal trial---

----Motive---Connotation---Motive is energetic source of mind which provides propelling force and gives impetus to perform any action or to do any act---Emotions are found concealed in the thoughts and mind of an accused, which remain secret and concealed till their exposure through spoken words or actions and can be adjudged from events occurred or to have taken place or going to happen at a relevant time---Motive is the cause, manner and method of thoughts in the mind of a person for performing action which is hidden in the mind of accused.

Black's Law Dictionary 6th Edn. ref.

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

----S. 302(b)---Reappraisal of evidence---Motive---Object and scope---Failure to prove motive---Awarding of capital punishment---Principles---Motive is primarily known to accused and not to complainant or to informant or any other witness of the occurrence unless it is impliedly or explicitly expressed---Informant or other witness of occurrence can explain and convey actions which were performed by accused in commission of offence and express their conclusions drawn from happenings and events occurring or narrations supplied to them at relevant moment, incidents or occurrences, which can be considered the causes and reasons for commission of an offence by accused---Real cause or force for commission of an offence is truly known to accused---Others actually adjudge it and given out the name to the cause or reason for doing an act or series of acts of accused person from happenings or reproduction of spoken words, if those became known to them from the accused or from any other source---Real motive is known to accused and not to other person, who ornaments those actions by their own opinions or from hearings---Old rule of failure of prosecution to prove motive has taken a change through judgments of superior courts with passage of time---Lack of, absence, inadequacy, weakness of the motive, if any, set up by prosecution and failure to prove it or the motive shrouded in mystery, are not the grounds to withhold penalty of death or to order sentence of life imprisonment, if prosecution has succeeded to prove its case beyond any doubt or suspicion with regard to commission of offence.

Nawaz Ali and another v. The State 2001 SCMR 726; Muhammad Ashraf v. The State 2001 SCMR 73; Federal Government Ministry of Defence v. Sepoy Liaqat Ali 2004 SCMR 1676; Mukhtar Ahmad and others v. The State PLD 2004 SC 563; Muhammad Akbar and another v. The State PLD 2004 SC 44; Khurram Malik and others v. The State and others PLD 2006 SC 354 and Mst. Nazakat v. Hazrat Jamal and another PLD 2007 SC 453 rel.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7-1(a)---Re­appraisal of evidence---Tripple murder---Circumstantial evidence---Extra-judicial confession---Death penalty awarded to accused by trial Court was affirmed by High Court---Plea raised by accused was that upon circumstantial evidence one could not be convicted and awarded penalty of death---Validity---Such plea was misconceived because there was no bar or hindrance to pass sentence upon a killer of three human beings when chain of guilt was found unbroken and irresistible conclusion of guilt was surfacing from evidence which was connecting accused with commission of offence without any doubt or suspicion---If circumstantial evidence brought on record was of such nature then conclusion would be in shape of conviction and no other conclusion would be drawn by any stretch of imagination in such a case---For guilt of accused, penalty of death or life imprisonment would be a normal event---Evidence of prosecution witnesses in the present case was found consistent and accused had not been able to shake their credence, therefore, extra-judicial confession made before prosecution witnesses, whom accused considered to be respectable persons for his assistance, could not be disbelieved when they deposed it on oath before trial Court---Disclosure of offence from mouth of accused had led to other corroborative and cogent evidence proving commission of offence by accused---Evidence available on file proved that it was act of accused, who had committed heinous crime of murder of innocent baby and two ladies---Such was tyrannous and callous actions of accused who had not only cut the throats of two ladies but also a four months baby---Events and circumstantial evidence proved that accused was the person who had committed cold-blooded offence of murder---Supreme Court declined to interfere with the conviction and sentence of death awarded to accused---Appeal was dismissed.

Khuda Bukhsh v. The State 2004 SCMR 331; Faisal v. The State 2007 SCMR 58; Sheraz Tufail v. The State 2007 SCMR 518; Israr Ali. v. The State 200.7 SCMR 525; Binyamin alias Khari and others v. The State 2007 SCMR 78; Ghulam Nabi v. The State 2007 SCMR 808 and Muhammad Akhtar v. The State 2007 SCMR 876 rel.

Javed Aziz Sindhu, Advocate Supreme Court for Appellant.

Muhammad Ilyas Siddiqui, Advocate Supreme Court for the Complainant.

Nemo for the State.

Date of hearing: 6th March, 2008.

P L D 2008 Supreme Court 513

Present: Ijaz-ul-Hassan Khan, Mian Hamid Farooq and Syed Zawwar Hussian Jaffery, JJ

MUHAMMAD ASGHAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.215 of 2007, decided on 7th April, 2008.

(On appeal from the judgment dated 23-2-2006 of the Lahore High Court, Lahore passed in Criminal Appeals Nos.1586, 1641, 1664 and Murder Reference No.99-T/2002).

(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 reappraise evidence for the purpose of ascertaining question of guilt or innocence of accused.

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

----S. 342---Statement of accused---Accepting or rejecting of---Principles---Statement of accused recorded under S.342, Cr.P.C. is to be read in its entirety, is to be accepted or rejected as a whole and reliance should not be placed on that portion of the statement which goes against the accused.

Shabbir Ahmad v. The State PLD 1995 SC 343 and The State v. Muhammad Hanif and 5 others 1992 SCMR 2047 rel.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art.22---Reappraisal of evidence---Identification parade---Out of three accused who were convicted and sentenced by Trial Court, two were acquitted by High Court and one was sentenced to imprisonment for life---Plea raised by accused was that neither he was known to prosecution witnesses nor he was named in F.I.R. and no identification parade was conducted---Validity---As the accused was not known to prosecution witnesses by face and his name was not mentioned in F.I.R., it was all the more necessary for prosecution to hold identification parade of the accused---Prosecution was under an obligation to prove its case against accused person beyond any shadow of doubt---No evidence was available on record to connect accused with commission of crime, inasmuch as, according to prosecution witnesses, he did not fire even a single shot---Case of accused was on much better footing and position as compared to two accused who were acquitted by High Court---High Court convicted the accused on the basis of no evidence and committed grave illegality, inasmuch as, the evidence was completely misread---Prosecution totally failed to prove charge against accused and findings of High Court that prosecution had succeeded in establishing its case against the accused were erroneous and not sustainable in law---Supreme Court reversed the findings and set aside the judgment of High Court regarding accused who was acquitted of the charge---Appeal was allowed.

Waqar Ahmad v. Shaukat Ali and others 2006 SCMR 1139 ref.

Dr. Babar Awan, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Appellant.

Siddique Khan Baloch, Deputy Prosecutor General, Punjab for the State.

Date of hearing: 7th April, 2008.

P L D 2008 Supreme Court 522

Present: Muhammad Nawaz Abbasi, Muhammad Qaim Jan Khan and Muhammad Farrukh Mahmud, JJ

ACCOUNTANT-GENERAL, SINDH and others---Appellants

Versus

AHMED ALI U. QURESHI and others---Respondents

Civil Appeal No.1021 of 1995 and C.M.A. 2454/2007 along with Constitutional Petitions Nos. 8/2000, 10/2000 and C.M.A. No.198/2003 and C.M.A. No.861/2003, Constitutional Petitions Nos.26/2003, 34/2003, 4/2004 and 26/2007, decided on 6th March, 2008.

(On appeal from the judgment dated 2-2-1995 passed by High Court of Sindh, Karachi in Constitutional Petition No.2308/1994 along with Constitution Petitions and C.M.As).

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

----Arts. 205, 203 C, 260, 195, 175(3), 25 & Fifth Schedule, Paras. 2 & 3---Pension of Judges of Superior Courts Order, 1993 [President's Order 2 of 1993], Art. 2---High Court Judges (Leave, Pension and Privileges) Order, 1997 [President's Order 3 of 1997], Art.14---High Court Judges (Pensionary Benefits) Order, 2007 [President's Order 8 of 2007], Art.4---Retirement of Judges of the High Courts and Chief Justice and Judges of the Federal Shariat Court---Grant of pension and other pensionary benefits---Entitlement---Scope---Held, all retired Judges of the High Courts who retired as such Judge in terms of Art.195 of the Constitution and the Chief Justices and Judges of the Federal Shariat Court, notwithstanding the tenure appointment, are entitled to the pension and pensionary benefits in terms of Art.205 read with Fifth Schedule of the Constitution, read with High Court Judges (Pensionary Benefits) Order, 2007 [Presidential Order No.8 of 2007] and Art.203 of the Constitution and all other enabling provisions of the Constitution as well as Pension of Judges of Superior Courts Order, 1993 [Presidential Order No.2 of 1993] and High Court Judges (Leave, Pension and Privileges) Order, 1997 [Presidential Order No.3 of 1997] irrespective of their date of retirement and length of service---All other retired Judges of the High Courts, who are not party in the present proceedings, are entitled to get pension and pensionary benefits with other privileges admissible to them in terms of Art.205 of the Constitution read with High Court Judges (Pensionary Benefits) Order, 2007 [Presidential Order No.8 of 2007] and Art.203-C of the Constitution read with paras.2 & 3 of Fifth Schedule and Pension of Judges of Superior Courts Order, 1993 [Presidential Order No.2 of 1993] and High Court Judges (Leave, Pension and Privileges) Order, 1997 [Presidential Order No.3 of 1997] from the date of their respective retirement, irrespective of their length of service as such Judges---Principles.

Tikka Iqbal Muhammad Khan and others v. General Pervez Musharraf PLD 2008 SC 178; I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Zafar Ali Shah v. Pcrvez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869; Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 and Asif Ali Zardari v. The State PLD 2001 SC 568 ref.

(b) Interpretation of Constitution---

----Redundancy cannot be attributed to any provision of the Constitution rather in case of any conflict in two provisions, the rule of harmonious interpretation is to be followed.

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

----Art. 175(3)---Independence of judiciary---Concept---Held, in broader sense, the concept of independence of judiciary is not confined to the extent of disposal of cases by the Judges and discharging of judicial functions rather in the extended meanings, the concept of independence of judiciary is complete separation from executive authorities of the State in all matters including pay and pension which is an essential component of independence of judiciary---Supreme Court observed that all financial matters concerning with the judiciary including the pay and pension as well as other privileges of Judges are under the direct control of Executive Authorities and Executive Authorities, without recognizing the independent status of judiciary as an important organ of the State, treat it as their subordinate department---In such matters; Executive is not supposed to interfere in the affairs of judiciary in any manner.

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

----Art. 209---Appointment/removal of Judges of the Superior Courts---Held, in the scheme of Constitution neither a Judge of Superior Court can be appointed except in accordance with the method prescribed in the Constitution nor he can be removed from his office except in accordance with the provisions of Art.209 of the Constitution---Consultative process for appointment of Judges of Superior Courts as provided in the Constitution must not be interfered with and interrupted by the Executive by ignoring the opinion of the Chief Justice concerned and Chief Justice of Pakistan---Judges of Superior Courts, cannot be removed from their offices except in accordance with the provisions of Art.209 of the Constitution but since they are not immune from accountability, therefore, if situation arises and the President of Pakistan also considers necessary, the proceedings can be initiated against a Judge with respect to his conduct in terms of Art.209 of the Constitution---Principles---Judicial history of Pakistan with regard to victimization of the Judges of the Superior Courts at the hands of executive traced.

Malik Muhammad Qayyum, Attorney General for Pakistan, Raja Abdur Rehman, DAG, Qasim Mir Jat, A.A.G., Sindh and Raja Abdul Ghafoor, Advocate-on-Record for Appellant (in C.M.A. No.2454/2007 in C.A. 1021/1995).

Waseem Sajjad, Senior Advocate Supreme Court and Saeed-ur-Rehman Faruukh, Advocate Supreme Court for Respondents (in C.M.A.. No.2454/2007 in C.A.1021/1995).

Nemo for Petitioner (in Const. P. No.8 of 2000).

N.R. for Respondent (in Const. P. No.8 of 2000).

Syed Sharif Hussain Bukhari, Senior Advocate Supreme Court and Saeed-ur-Rehman Farrukh, Advocate Supreme Court for Petitioner (in C.M.As Nos. 198 and 861 of 2003 in Const. P. No.10 of 2001).

Malik Muhammad Qayyum, Attorney-General for Pakistan and Raja Abdul Ghafoor, Advocate-on-Record for Respondents (in C.M.As Nos. 198 and 861 of 2003 in Const. P. No.10 of 2001).

Petitioner in person (in Const. P. No.26 of 2003).

Malik Muhammad Qayyum, Attorney-General for Pakistan for Respondent ((in Const. P. No.26 of 2003).

Nemo for Petitioner ((in Const. P. No.34 of 2003).

N.R. for Respondent ((in Const. P. No.34 of 2003).

Nemo for Petitioner ((in Const. P. No.4 of 2004).

N.R. for Respondent ((in Const. P. No.4 of 2004).

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Mehr Khan Malik Advocate-on-Record for Petitioner (in Const. P. No.26 of 2007).

N.R. for Respondent (in Const. P. No.26 of 2007).

Date of hearing: 6th March, 2008.

P L D 2008 Supreme Court 554

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

SAID REHMAN and others---Appellants

Versus

Mst. SARDAR BEGUM and others---Respondents

Civil Appeal No.1375 of 2002, decided on 13th March, 2008.

(On appeal from the judgment dated 8-5-2001 of the Peshawar High Court Peshawar passed in Writ Petition No.212 of 1998).

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 2(c) & 13---Ejectment proceedings---Proof of ownership of landlord not relevant---Principles.

In rent cases, only relationship of landlord and tenants is to be seen and not the title or ownership. When the relationship of landlord and tenant has been established then there is no need for placing on record ownership documents. The sanction of Municipal Corporation for the proposed reconstruction is also valid ground for maintaining the ownership of landlord as the same cannot be obtained by a stranger.

Ali Muhammad v. Muhammad Mansha and others 1991 MLD 1572 distinguished.

Waseemuddin Khattak, Advocate Supreme Court for Appellants.

M. Asif Advocate Supreme Court for Respondents.

Date of hearing: 13th March, 2008.

P L D 2008 Supreme Court 556

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

WATER AND POWER DEVELOPMENT AUTHORIYT and others---Appellant

Versus

NEK MUHAMMAD---Respondent

Civil Appeal No.873 of 2007, decided on 24th April, 2008.

(On appeal from the judgment dated 21-11-2006 passed by the Lahore High Court, Lahore in R.F.A.No.474 of 2002).

Land Acquisition Act (I of 1894)---

----Ss. 18 & 23---Reference to Court---Determination of compensation for acquired land---Matters essential to be considered by Referee Court stated.

While determining the price of compensation, the Referee Court should consider evidence on record and see whether the Land Acquisition Collector has considered the nature, location and future potential of the land acquired, in addition to the one year average price.

Fazal Haq College v. Said Rasan and others PLD 2003 SC 480 ref.

Aurangzeb Mirza, Advocate Supreme Court for Appellants.

Sheikh Masood Akhtar, Advocate-on-Record for Respondent.

Date of hearing: 22nd April, 2008.

P L D 2008 Supreme Court 559

Present: Muhammad Qaim Jan Khan and Sheikh Hakim Ali, JJ

Mst. BASHIRAN BEGUM---Appellant

Versus

NAZAR HUSSAIN and another---Respondents

Civil Appeal No.501 of 2006, decided on 18th April, 2008.

(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench dated 16-3-2006 passed in Civil Revision No.534 of 2001).

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Pre-emption, suit for---Details of performance of .Talb-i-Muwathibat and Talb-i-Ishhad---Mandatory to mention in plaint date, time and place of knowledge about sale and making of Talb-i-Muwathibat as in absence thereof it was not possible to calculate correctly 14 days' time for making Talb-i-Ishhad---Non-mentioning in plaint date, place and time of making Talb-i-Muwathibat and date of issuing notice of Talb-i-Ishhad, would be fatal to suit---Principles.

In a suit for pre-emption mentioning of date, place and time of making Talb-i-Muwathibat, in the plaint, is mandatory because in the absence of proper date, place and time, the time given in section 13(3) of the Punjab Pre-emption Act, 1991 (hereinafter referred as the Act) for making Talb-i-Ishhad which is 14 days, cannot be correctly calculated. It is necessary that as soon as the pre-emptor acquires knowledge of sale of pre-empted property, he would make immediate demand about his desire and intention to assert his right of pre-emption without slightest loss of time and after making Talb-i-Muwathibat in terms of section 13(2) of the Punjab Pre-emption Act, the pre-emptor has another legal obligation to perform i.e. Talb-i-Ishhad as soon as possible after making of Talb-i-Muwathibat, but not later than two weeks from the date of knowledge/performance of Talb-i-Muwathibat. The mentioning of date, place and time in the plaint in a suit for pre-emption is mandatory regarding Talb-i-Muwathibat because from such date the time provided by the statute for making of Talb-i-Ishhad i.e. 14 days, can be calculated. If there is no mention of date, place and time of knowledge about sale and making of Talb-i-Muwathibat, then it would be very difficult to give effect to section 13(3) of the Act and there is every possibility that instead of allowing letter of law to remain in force, the pre-emptor may 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, if any, occurring in the performance of Talb-i-Ishhad. Performance of both these Talbs is a sine qua non for getting a decree in a pre-emption suit. A plaint wherein date, place and time of making of Talb-i-Muwathibat and date of issuing notice of Talb-i-Ishhad in terms of section 13 of the Act, is not provided, it would be fatal for the pre-emption suit. The requirement of Talbs with requisite details in the plaint is also essential even in the pending cases.

Fazal Subhan and 11 others v. Mst. Sahib Jamala and others PLD 2005 SC 977; Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302 and Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 fol.

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 not approved.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Pre-emption, suit for---Performance of Talb-i-Muwathibat---Proof---Plaint disclosed only date of sale, but not other information regarding knowledge of sale and making of Talb-i-Muwathibat---Pre­emptor as witness had not deposed in court even a single word regarding date, place and time of making Talb-i-Muwathibat---Suit was dismissed in circumstances.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302 fol.

Mumtaz Mustafa, Advocate Supreme Court for Appellant.

Ejaz Ansari, Advocate Supreme Court for Respondents.

Date of hearing: 18th April, 2008.

P L D 2008 Supreme Court 564

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

Syed MUHAMMAD HASSAN SHAH and others---Appellants

Versus

Mst. BINAT-E-FATIMA and another---Respondents

Civil Appeal No.1407 of 2001, decided on 31st March, 2008.

(On appeal from the judgment dated 19-4-2001 in R.S.A. No.162 of 1989 by the Lahore High Court, Lahore).

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

----O. XLI, R. 27---Appeal, pendency of---Production of additional evidence---Scope---Where taking of additional evidence appeared to a court essential for just decision of case, then power under O.XLI,R. 27, C.P.C. could be exercised, but not otherwise to cater needs of a particular party---Principles.

The power available under Order XLI, Rule 27, C.P.C. though cannot be exercised in allowing a party to fill up lacunas or make up deficiency in a case as it has to be exercised cautiously and sparingly yet, where the evidence sought to be produced before the court has a direct bearing on an important issue in the case and the controversy is not likely to be resolved without taking further evidence, the court must take additional evidence in order to render a just decision in the case. Where decision on issue of maintainability of suit was rendered by the trial Court and the rest of the issues remained undecided, a duty is cast upon the Court to collect further evidence so as to decide the case effectively, as rules of procedure are not made for the purpose of hindrance in providing justice. Power available under Order XLI, Rule 27 of C.P.C. is, not meant to cater the needs of a particular party but is available for exercise by the Appellate Court in appropriate cases where need for taking additional evidence appears essential to the Court for just decision of the case.

Zar Wali Shah's case 1992 SCMR 1778; Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Ltd. PLD 1966 SC 684; Mehr Allah Ditta v. Muhammad Ali PLD 1972 SC 59; Fazal Jan v. Roshan Din PLD 1992 SC 811; Mst. Bakhshi v. Fazal Muhammad 1989 SCMR 2005; Muhammad Yousaf v. Mst. Maqsooda Anjuni 2004 SCMR 1049; Ghulam Muhammad v. Muhammad Aslam PLD 1993 SC 336; Haji Muhammad Zaman v. Zafar Ali Khan and others PLD 1986 SC 88; Mohabbat v. Asadullah Khan and others PLD 1989 SC 112 and Malik Mir Bashi and others v. Haji Allah Khan and others 1999 SCMR 2504 rel.

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

----O. XLI, R. 27---Qanun-e-Shahadat (10 of 1984), Art. 85---Application for production of additional evidence at first appeal stage---Dismissal of suit by Trial Court for being non-maintainable---Documents sought to be produced in evidence consisted of certified copies of public record and an envelope bearing postal stamp---Dismissal of appeal by Appellate Court without deciding application--Dismissal of second application made to High Court in second appeal for production of additional evidence---Plea of appellate was that during pendency of first appeal, he is consequence of thorough search of record left by his predecessor came to know about certain important facts and documents, which had great bearing on subject-matter of suit---Validity---Trial Court had rendered finding only on issue of maintainability of suit, while remaining issues were left undecided--Duty of First Appellate Court was to collect further evidence so as to decide case effectively---Documents sought to be produced in evidence were public documents and relevant to controversy involved in suit---High Court ought to have allowed such application---Supreme Court accepted appeal as well as application for production of additional evidence, set aside impugned judgments/decree sand remanded case to Trial Court for its decision afresh within specified time.

Abdul Hameed and 14 others v. Abdul Qayyum and 165 others 1998 SCMR 671 ref.

(c) Administration of justice----

----Rules of procedure are not made for purpose of hindrance in providing justice.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Appellants.

Zafar Iqbal, Advocate, Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 31st March, 2008.

P L D 2008 Supreme Court 571

Present: Faqir Muhammad Khokhar, Muhammad Moosa K. Leghari and Muhammad Akhtar Shabbir, JJ

MAZLOOM HUSSAIN---Appellant

Versus

ABID HUSSAIN and 4 others---Respondents

Civil Appeal No.1140 of 2007, decided on 22nd April, 2008.

(On appeal from the judgment of the Lahore High Court Rawalpindi Bench dated 15-4-2003, passed in C.R. No.455 of 1996).

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

----Ss. 39 & 52---Punjab Land Revenue Act (XV of 1887), S.44---Qanun-e-Shahadat (10 of 1984), Art.2(b)---Long-standing entries in record of rights not challenged earlier before Revenue functionaries or through a civil suit by party---Effect---Presumption of truth was attached to such entries, which could not be discarded unless proved otherwise by convincing and cogent evidence---Documentary evidence could not be rebutted by oral evidence---Mere bald verbal statement against such entries could not cut any ice---Burden of proof that such entries were wrong, would lie on a party alleging so.

Hakim Khan v. Aurangzeb and another 1979 SCMR 625; Mt. Wallan v. Fazla and others AIR 1939 PC 114; Sundar Singh v. Chhajju Khan AIR 1934 Lah. 309 and The Evacuee Trust Property Board and others v. Haji Ghulam Rasul Khokhar and others 1990 SCMR 725 rel.

Karim Bakhsh v. Zulfiqar 1977 SCMR 334 distinguished.

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

----Art. 2(b)---Documentary evidence could not be rebutted by oral evidence.

Mt. Wallan v. Fazla and others AIR 1939 PC 114 rel.

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

----Arts. 90 to 101---Document to which presumption of truth was attached---Effect---Such document could not be discarded unless proved otherwise by convincing and cogent evidence.

Sundar Singh v. Chhajju Khan AIR 1934 Lah. 309; The Evacuee Trust Property Board and others v. Haji Ghulam Rasul Khokhar and others 1990 SCMR 725 rel.

Muhammad Younis Bhatti, Advocate Supreme Court for Appellant.

Abdul Rehman Siddiqui, Advocate Supreme Court for Respondents Nos. 1 and 2.

Ch. Akhtar Ali, Advocate Supreme Court for Respondents Nos.3 to 5.

Date of hearing: 22nd April, 2008.

P L D 2008 Supreme Court 575

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

Barrister MASROOR SHAH---Petitioner

Versus

N.-W.F.P. BAR COUNCIL and another---Respondents

Civil Petition No.582 of 2007, decided on 24th April, 2008.

(On appeal from the judgment of the Peshawar High Court, Peshawar, dated 10-4-2007 passed in Writ Petition No.490 of 2007).

Legal Practitioners and Bar Councils Act (XXXV of 1973)---

----S. 27(c)---North-West Frontier Province Bar Council and Legal Practitioners Rules, 1996, R.57---Constitution of Pakistan (1973), Art.185(3)---Contention of the petitioner, a Barrister, was that, by reasons of inordinate delay caused by the Provincial Bar Council in adjudicating upon his application under S.27(c), Legal Practitioners and Bar Councils Act, 1973 within the statutory period of six months as enunciated by the law, rights of petitioner had been materially prejudiced---Validity---Held, by reason of an inordinate delay caused by the Bar Council in adjudicating upon the application of petitioner within the statutory period as provided by R.5.7 of N.-W.F.P. Bar Council and Legal Practitioners Rules, 1996, the petitioner's seniority had been adversely affected without any fault on his part when the delay was not attributable to the him---Supreme Court by converting petition for leave to appeal into appeal allowed the same and set aside impugned judgment of the High Court.

Petitioner in person.

Qari A. Rashid, Advocate Supreme Court, G.N. Gohar, Advocate-on-Record and Naeem Pervaiz, Secretary Bar Council, N.-W.F.P.

Date of hearing: 24th April, 2008.

P L D 2008 Supreme Court 577

Present: Ijaz-ul-Hassan Khan, Mian Hamid Farooq and Syed Zawwar Hussain Jaffery, JJ

Mian MUHAMMAD SABIR---Appellant

Versus

Malik MUHAMMAD SADIQ through Legal Heirs and others---Respondents

Civil Appeal No.689 of 2000, decide don 8th April, 2008.

(On appeal from the judgment dated 12-2-1998 passed by the Peshawar High Court, Peshawar in W.P.No.810 of 1995).

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

---Ss. 18 & 54---Limitation Act (IX of 1908), S.12(2)---Constitution of Pakistan (1973), Art.185(3)---Acquisition of land---Compensation---Leave to appeal was granted by Supreme Court to consider as to whether the Member, Board of Revenue, in revision was legally justified in cancelling the mutation in favour of the petitioner after it was found by the Commissioner and Deputy Commissioner that the land was acquired from the petitioner and compensation was paid to him, moreover in the grounds of appeal before the Member, Board of Revenue it was revealed that it was not the case of the respondent that the land being Shamlat, the proprietary body of the village and not the petitioner alone was entitled to compensation---Petition for leave to appeal being time-barred, Supreme Court observed that point of limitation would be considered at the time of hearing of the appeal.

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

----S. 12(2)(5)---Constitution of Pakistan (1973), Art.185---Appeal to Supreme Court---Limitation---Exclusion of time---Time requisite'---Meaning---Condonation of delay---Time requisite for obtaining copy of order within the contemplation of S.12 of the Limitation Act, 1908 means only the interval between the date of application for supply of copy and the date when it is ready for delivery---Time between the date on which the copy was ready for delivery, and the date on which the applicant chooses to take delivery thereof, is not a portion of timerequisite' for obtaining copy---Appellant, in the present case, had failed to produce the chit/receipt issued by the copying agency showing the date for preparation of certified copy, inasmuch as, no such date had been indicated in the application for condonation of delay---Had the appellant produced the said chit and the copy was not ready on the date indicated in the chit, appellant could have taken shelter under S.12(5), Limitation Act, 1908---Principles---Appellant having not been able to sufficiently explain the inordinate delay of 8 months and 9 days within the parameters of law, appeal was dismissed by Supreme Court and leave granting order was rescinded.

West Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi 1973 SCMR 555 ref.

Feteh Muhammad and others v. Malik Qadir Bakhsh 1975 SCMR 157 fol.

Zulfiqar Ali v. Superintendent of Police and others 2003 SCMR 1562 applicable

Maazullah Barkandi, Advocate Supreme Court for Appellant.

Abdul Samad Khan, Advocate Supreme Court for Respondents No.1 (i-vi & x-xi).

Sardar Shaukat Hayat, Addl. A.G., N.-W.F.P. for Respondents Nos. 2-8.

Respondent No.1 (vii to viii & 9-22):

Ex parte. Date of hearing: 8th April, 2008.

P L D 2008 Supreme Court 582

Present: Muhammad Nawaz Abbasi, Mian Hamid Farooq and Muhammad Farrukh Mahmud, JJ

SIKANDAR and 3 others---Appellants

Versus

FEDERAL LAND COMMISSION, ISLAMAMAD and 3 others---Respondents

Civil Appeal No.469 of 1999, decided on 1st April, 2008.

(On appeal from the judgment dated 8-10-1996 passed by Division Bench of the Lahore High Court, Lahore, in Writ Petition No.4430 of 1996).

(a) Land Reforms Regulation, 1972 [MLR 115]---

----Para. 18(3)---Constitution of Pakistan (1973), Art.185(3)---Eligibility for grant of resumed land---Leave to appeal was granted by Supreme Court to consider questions as to whether factually petitioners' entitlement to the disputed land had been determined, if so, whether the Member, Federal Land Commission was justified in remanding the case and whether High Court was justified to maintain the said order of Member, Federal Land Commission.

(b) Land Reforms Regulation, 1972 [MLR 115]---

----Para. 18(3)---Constitution of Pakistan (1973), Art.185(3)---Eligibility to grant of resumed land---Basic facts were admitted---Constitutional jurisdiction of High Court---Scope---Deputy Land Commissioner, in the present case, after remand of the case by the Federal Land Commission, having conducted a thorough inquiry, prepared the list of eligible persons and passed order accordingly, therefore, subject to all just exceptions apparently no further enquiry was required to be conducted---High Court, in its constitutional jurisdiction, in a case in which facts were not as such disputed, could pass appropriate order on merits in respect of legal rights of the parties involved therein and should not remand the case to a lower forum which may not serve any purpose except to prolong ' the litigation---Judgment rendered by the High Court in a slipshod manner without appreciating the legal and factual aspects of the case in the light of material available on record and determining the right of allotment of resumed land, was not correct exercise of the jurisdiction---High Court, in the light of the facts and circumstances of the case having such background, was required to determine the question of eligibility of the parties in letter and spirit and instead of remanding the case to the Land Commission it should have passed an. appropriate order on merits on the basis of available record---Supreme Court allowed the appeal against said judgment of the High Court and remanded the case to the High Court for decision of constitutional petition on merits afresh in accordance with law.

Mian Fazal-e-Mehmood, Senior Advocate Supreme Court for Appellants.

Khawaja Saeed-ur-Zafar, Advocate Supreme Court for Respondents Nos. 3-5.

Hafiz S.A. Rehman, Senior Advocate Supreme Court, M.S. Khattak, Advocate-on-Record and Qazi Muhammad Amin, Addl. A.G. Punjab for Respondents/Federal Land Commissioner.

Respondents Nos. 1 and 2: Ex parte.

Date of hearing: 1st April, 2008.

P L D 2008 Supreme Court 587

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

RIAZ HANIF RAHI and others---Petitioners

Versus

REGISTRAR, LAHORE HIGH COURT, LAHORE and others---Respondents

Civil Petitions Nos. 401, 402 and 403 of 2008, decided on 15th May, 2008.

(On appeal from the judgment dated 7-4-2008 of the Lahore High Court, Lahore passed in Writ Petition No.864 of 2008).

Punjab Judicial Service Rules, 1994---

----R. 7---Eligibility of persons appearing in examination for the posts of Additional District and Sessions Judges---To allow the District Attorney, Deputy District Attorney or Assistant District Attorney or Prosecutors to be eligible candidates for the post of Civil Judges and disallow them to become candidates for the post of Additional District and Sessions Judges was highly discriminatory---Research Assistant in the office of Attorney, General and Prosecutor Anti-Narcotics Force who had been allowed to practice privately and who had retained their licence to practice, were also not included in the persons disqualified to appear---Principles.

Petitioners in person.

Ms. Afshan Ghazanfar, Assistant Advocate-General, M. Akram D.R. (Conf.) L.H.C. and Zahoor Ahmad, JA, L.H.C. for Respondents.

Date of hearing: 15th May, 2008.

P L D 2008 Supreme Court 591

Present: Ijaz-ul-Hassan Khan, Mian Hamid Farooq and Syed Zawwar Hussain Jafferi, JJ

Subedar SARDAR KHAN through Legal Heirs and others---Appellants

Versus

MUHAMMAD IDREES through General Attorney and another---Respondents

Civil Appeals Nos. 1087 and 1775 of 2002, decided on 23rd April, 2008.

(On appeal from the judgment dated 6-6-2002 of the Lahore High Court, Lahore passed in R. F. A. No. 56 of 1988).

(a) Limitation---

----Delay, condonation of---Similar questions of law arising out of common judgment were involved in another appeal and Court had proposed to decide both the appeals through single judgment---Delay was condoned in filing the other appeal.

Mehreen Zaibun Nisa v. Land Commissioner, Multan and others PLD 1975 SC 397; Sheikh Muhammad Rashid v. Majid Nizami, Editor­in-Chief The Nation and Nawa-e-Waqt PLD 2002 SC 514 and Water and Power Development Authority through Chairman, WAPDA House, Lahore v. Abbas Ali Malano and another 2004 SCMR 630 ref.

(b) West Pakistan Border Area Regulation [MLR 9 of 1959]---

----Sched. III, Para.9---West Pakistan Border Area Settlement Scheme, 1962, Para.6(b)---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell land---All the material facts viz., that vendor had agreed to sell the questioned land for consideration in favour of vendee through a lawful agreement; the receipt of amount by vendor as earnest money and that the vendor was willing to perform his part of the agreement but for the bar contained in Para 6(b) of the Scheme stood admitted---Evidence available on record had not established that the vendee was not a "suitable person" for settlement in the border area or he was declared as an "undesirable person" by any competent forum having jurisdiction---No other Military personnel was willing to purchase the land in question at the time of execution of agreement to sell between the vendor and vendee---Effect---No cogent, realistic and reasonable cause, in circumstances, existed for refusal to award a "no objection certificate" to the vendee by the competent authority---Principles.

Ghulam Muhammad alias Ghulamoon v. Maula Dad and 6 others 1980 SCMR 314 and Rajab Ali v. Mst. Aisha and others 1989 SCMR 135 ref.

(c) West Pakistan Border Area Regulation [MLR 9 of 1959]---

----Sched. III Para. 9---West Pakistan Border Area Settlement Scheme, 1962, Para. 6(b)---Purpose of para 6(b) of the Scheme is to restrain undesirable persons to occupy or purchase the land situated in the border belt---If the vendee was neither adjudicated upon nor declared "undesirable" or "not a suitable person" to settle in border belt by any forum of competent jurisdiction, it could not be said that such vendee was either an "undesirable person" or "not a suitable person" and unfit to occupy the land in border belt.

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

----S. 12(2)---Scope of S.12.(2), C.P.C.---Decree could be set aside only on the ground stated in S.12(2), C.P.C.---Where no case of fraud or misrepresentation was made out and ground for setting aside the decree. was not at all a such ground as envisaged by S.12(2), C.P.C. but pertained to the merits of the case, application under S.12(2), C.P.C. was liable to be dismissed.

Ch. Muhammad Ashraf Wahlah, Advocate Supreme Court for Appellants (in Civil Appeal No.1087 of 2002).

Ch. Muhammad Ashraf, Advocate Supreme Court for Respondent No.1 (in Civil Appeal No.1087 of 2002).

Ch. Muhammad Abdullah, Advocate Supreme Court for Respondent No.2 (in Civil Appeal No.1087 of 2002).

Ch. Muhammad Abdullah, Advocate Supreme Court for Appellant (in Civil Appeal No.1775 of 200g).

Ch. Muhammad Ashraf, Advocate Supreme Court for Respondent No.1 (in Civil Appeal No.1775 of 2002).

Ch. Muhammad Ashraf Wahlah, Advocate Supreme Court for Respondent No.2 (in Civil Appeal No.1775 of 2002).

Date of hearing: 10th April, 2008.

P L D 2008 Supreme Court 599

Present: Muhammad Nawaz Abbasi, Ijaz-ul-Hassan Khan and Mian Hamid Farooq, JJ

Mst. SALEEMA BIBI---Appellant

Versus

ADDITIONAL COMMISSIONER (REVENUE)/SETTLEMENT COMMISSION (LANDS) and others---Respondents

Civil Appeal No.1858 of 2002, decided on 15th April, 2008.

(On appeal from the judgment dated 24-7-1998 passed by Lahore High Court, Lahore in Writ Petition No.154-R of 1985).

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

----S. 41---Constitution of Pakistan (1973), Art.185(3)---Transfer of property (land) by ostensible owner---Property transferred under Settlement laws---Leave to appeal was granted by Supreme Court to consider the contentions that petitioner having not been made party in the proceedings, she was condemned unheard and that petitioner had purchased the land from the allottee whose claim was never held to be non-genuine through sale-deed as far back as 30-4-1964 therefore, the said allottee could not have got his units transferred to some other village to deprive the petitioner of her valuable rights as owner thereof, though it could be possible in case of cancellation of the allotment of the allottee on the ground of fraud in obtaining the allotment in excess of verified claim or no claim, therefore, the petitioner could not have been deprived of the land purchased by her before the allotment after confirmation of the same in favour of some other person and he could not, in such a case, get the units transferred and even if those units were transferred to some other village, the allotment in that village should live been cancelled instead of depriving the petitioner of her valuable rights who had bona fide purchased the same with valuable consideration without notice---Supreme Court directed that till the disposal of the appeal, possession of the petitioner over the land in dispute shall not be disturbed or interfered with.

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

----S. 41---Transfer of property (land) by ostensible owner---Property transferred under Settlement laws---Contention of the petitioner was that she having not been made party in the proceedings, was condemned unheard and that petitioner had purchased the land from the allottee whose claim was never held to be non-genuine through sale-deed as far back as 30-4-1964 therefore, the said allottee could not have got his units transferred to some other village to deprive the petitioner of her valuable rights as owner thereof, though it was possible, may been case of cancellation of the allotment of the allottee on the ground of fraud in obtaining the allotment in excess of verified claim or no claim, therefore, the petitioner could not have been deprived of the land purchased by her before the allotment after confirmation of the same in favour of some other person and he could not, in such a case, get the units transferred and even if the units were transferred, to some other village, the allotment in that village should have been cancelled instead of depriving the petitioner of her valuable rights who had bona fide purchased the same with valuable consideration without notice---Held, notwithstanding the withdrawal or units from the district of original allotment, the right of ownership having already accrued in favour of the vendee, could not be disturbed through the device of transfer of Units and since the subsequent order of allotment passed by the Settlement authorities was without lawful authority to the extent of land owned by the vendee, therefore, would have no effect on her right, title and interest in the land viz. subject matter of the dispute---Principles.

Shahzad Shaukat, Advocate Supreme Court for Appellant.

Respondents: Ex parte.

Date of hearing: 15th April, 2008.

P L D 2008 Supreme Court 604

Present: Muhammad Qaim Jan Khan, Muhammad Moosa K. Leghari and Sheikh Hakim, Ali, JJ

SARTAJ KHAN and others---Appellants

Versus

ARSHAD ALI and others---Respondents

Civil Appeal No.1124 of 2006, decide don 15th April, 2008.

(On appeal from the order dated 26-5-2006, passed by the Peshawar High Court, Peshawar in C.Ms. 1271, 1272 of 2005 (N) with C.R. No.1451/5005 9M).

Civil Procedure Code (V of 1908)---

----Ss. 115 & 12(2)---Revision---Pecuniary jurisdiction---Petition under S.12(2), C.P.C.---Nature and scope---When suit contained the value of more than Rs.50,00,000 for the purpose of jurisdiction, revision cannot be filed before the District Court against a decision/order passed upon the petition under S.12(2), C.P.C. if passed during or after he pendency of the suit---Principles.

The original suit had contained the value of more than Rs.50,00,000 (fifty lac) for the purpose of jurisdiction. Question arises as to whether such revision petition can be filed before the District Court against a decision/order, if passed during or after the pendency of the suit, the answer would be in the negative. The reasons being that revision can be filed before the District Judge, if value of the original suit does not exceed its pecuniary limits. According to subsection (2) of section 115 of the C.P.C. the District Court has got the power of revision with regard to a case decided by a subordinate Court, when amount or value of the subject matter does not exceed the pecuniary limits of its appellate jurisdiction.

Originally and basically, revisional jurisdiction has been conferred upon the High Court, from whose power and jurisdiction, with pecuniary limits, District Court was also allowed to exercise the revisional power of the High Court. From the plain reading of S.115(2), C.P.C. the following ingredients have been found necessary to invoke the revisional jurisdiction of District Court:

(i) Case must have been decided by a Court subordinate to District Court.

(ii) Against that decision, appeal is not competent, and

(iii) Amount or value of subject-matter of the case should not exceed the limits of appellate jurisdiction of District Court.

Petition under section 12(2), C.P.C., although, apparently appears to be an independent petition, yet for the sake of determining the forum of revision to be filed against its decision, Court will have to advert to and rely upon the jurisdictional value as noted and entered in the plaint. This value has to be considered basic value for choice of forum, it may be for filing of appeal or revision. This is the correct principle to be followed in relation to all the proceedings, unless provided otherwise, during the suit or after the decision of a suit. The effect and consequence of a decision/order passed upon petition under section 12(2), C.P.C. is to maintain/affirm, cancel or set aside the impugned decree passed in the suit, which decree has jurisdictional value of more than Rs.50,00,000, therefore, against that decree, revision cannot be filed before the District Court.

Petition under section 12(2), C.P.C. cannot be presumed to be totally an independent proceeding having no nexus or relation with the disputed decree. In fact, provision under section 12(2) of the C.P.C. has granted an independent, alternate right to a person to challenge it before the same Court which passed the disputed decree, order of judgment so as to prohibit the institution of fresh suit to challenge that on the grounds mentioned in the section, yet it is an ensuing incidental and ancillary proceedings to the main suit and decree passed upon it shall be considered to have arisen from the original suit proceedings.

Abdul Sattar Khan, Advocate Supreme Court with M. Zahoor Qureshi, Advocate-on-Record for Appellants.

Haji M. Zahir Shah, Advocate Supreme Court for Respondents Nos. 1 to 4.

Date of hearing: 15th April, 2008.

P L D 2008 Supreme Court 609

Present: Saiyed Saeed Ashhad, Muhammad Akhtar Shabbir and Syed Sakhi Hussain Bokhari, JJ

AAMIR GILL---Petitioner

Versus

ELECTION COMMISISON, PUNJAB, LAHORE/RETURNING OFFICER FOR MINORITY RESERVED SEATS and others---Respondents

Civil Petition No.93-L of 2008, decided on 7th May, 2008.

(On appeal from the judgment dated 25-1-2008 passed by the Lahore High Court, Lahore in Writ Petition No.12113 of 2007).

Conduct of General Election Order [7 of 2002]---

----Art. 8-F---Representation of the People Act (LXXXV of 1976), S.47-A---Constitution of Pakistan (1973), Art.185(3)---Filing of separate list of candidates by Political Parties, in order of priority for seats reserved for women and non-Muslims---Name of the petitioner was sought to be included in the said list---Name of petitioner did not appear in the list of candidates till the date fixed for filing of nomination papers---Effect---Held, after expiry of said date no change/addition or alteration could have been made in the said list of candidates and therefore application of the petitioner, which he claimed to be an application for correction of the name as the name of his father was wrongly and inadvertently mentioned in the list instead of his name, in circumstances, was in effect an application for addition/substitution of his name in place of his father, was not maintainable and the Returning Officer rightly rejected the same.

Nazeer Ahmad Ghazi, Advocate Supreme Court for Petitioner.

Nemo for Respondents Nos. 1 to 3.

Abid Saqi, Advocate Supreme Court and Mehmudul Islam, Advocate-on-Record (absent) for Respondent No.4.

Date of hearing: 7th May, 2008.

P L D 2008 Supreme Court 612

Present: Saiyed Saeed Ashhad, Muhammad Akhtar Shabbir and Syed Sakhi Hussian Bukhari, JJ

MEHR KHAN and others---Appellants

Versus

Mst. BASAEE and others---Respondents

Civil Appeal No.545 of 2006, decided on 6th May, 2008.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 23-10-2001 passed in C.R.No.667-D of 1991).

Specific Relief Act (I of 1877)---

----S. 8---Qanun-e-Shahadat (10 of 1984), Art.49---Suit for possession---Allegation of encroachments against defendants---Documentary evidence containing the entries qua the plaintiffs had not been controverted by the defendants as they kept silent over their alleged right and remained in a state of dormancy for such a long time---Document when admitted in evidence without objection from the other side could be taken into consideration---Entries were incorporated, after demarcation proceedings, in the Register of Khasra Girdawari and the Register of Record of Rights showing the defendants as `Tajawaz Kunindgan' (illegal occupants)---Register of Record-of-Rights pertaining to the years 1981-1982, 1983-84 as well as Khasra Girdawari still contained such entries---Demarcation had been conducted on 1-8-1981 and the suit was instituted in the year. 1987 on the basis of such measurement of land---Defendants had not challenged the demarcation of the land made by the Revenue Officer before the next Revenue/Colonies hierarchy nor challenged the same through the civil suit, and up-till now, the entries showing the defendants as illegal occupants over the land in dispute were intact---Long-standing entries in the Revenue Record specially in the Register of Record-of-Rights carried presumption of truth and could not be controverted by mere oral evidence unless proved otherwise by sufficient and convincing evidence---Plaintiffs, in circumstances, had successfully proved their case---High Court, after appreciating the evidence of the parties, had based its findings on legitimate conclusion drawn from the evidence and correctly set aside the judgment passed by lower courts against the plaintiffs.

Abdullah v. Abdul Karim PLD 1968 SC 140; Mohd. Saleem v. Mohd. Akram PLD 1971 SC 516; Mst. Murrian v. Suleman PLD 1984 SC(AJ&K) 63; Hakim Khan. v. Aurangzeb and another 1979 SCMR 625; Sundar Singh v. Chhajju Khan AIR 1934 Lah. 309 and Evacuee Trust Property Board & others v. Haji Ghulam Rasool Khokhar and others 1990 SCMR 725 ref.

Altaf Elahi Sh. Advocate Supreme Court for Appellants.

Rana Muhammad Anwar Khan, Advocate Supreme Court for Respondents.

Date of hearing: 6th May, 2008.

P L D 2008 Supreme Court 615

Present: Justice Abdul Harmed Dogar, C. J., Saiyed Saeed Ashhad, Ijaz-ul-Hassan Khan, Muhammad Qaim Jan Khan, Muhammad Moosa K. Leghari, Ch. Ejaz Yousaf, Muhammad Akhtar Shabbir, Zia Perwez, Mian Hamid Farooq, Syed Sakhi Hussain Bokhari, Syed Zawwar Hussain Jaffery, Sheikh Hakim Ali and Muhammad Farrukh Mahmud, JJ

TIKA IQBAL MUHAMMAD KHAN---Petitioner

Versus

GENERAL PERVEZ MUSHARRAF, CHIEF OF ARMY STAFF, RAWALPINDI and 2 others---Respondents

Civil Review Petition No. 7 of 2008, decided on 15th February, 2008.

(On review from the judgment/order dated 23-11-2007 of this Court passed in Constitution Petition No.87 of 2007 reported at PLD 2008 SC 178).

(a) Oath of Office (Judges) Order, 2007---

----Judges of the superior Courts who were not given, or who had not taken oath in terms of Oath of Office (Judges) Order. 2007 ceased to hold their office on and with effect from 3rd November, 2007.

(b) Proclamation of Emergency, dated 3-11-2007---

----Oath of Office (Judges) Order, 2007---Both Proclamation of Emergency, dated 3-11-2007 and Oath of Office (Judges) Order, 2007 were primarily founded on two grounds viz., incidence of terrorism, militancy and extreamism beyond the control of civilian government, and the erosion of trichotomy of powers in consequence of increased interference in the other branches of the Government by some members of the superior judiciary, particularly the former Chief Justice of Pakistan.

(c) Proclamation of Emergency dated 3-11-2007---

----Provisional Constitution Order, 2007, Preamble---Oath of Office (Judges) Order, 2007, Preamble---Constitution (Amendment) Order (5 of 2007), Preamble---Provisional Constitution (Amendment) Order, (I of 2007), Preamble---High Court Judges (Pensionary Benefits) Order (8 of 2007), Preamble---Supreme Court Judges (Prensionary Benefits) Order (9 of 2007), Preamble---Constitution of Pakistan (1973), Arts.188 & 209---Review of Supreme Court Judgment---Supreme Court, after reproducing some excerpts from the judgment under review, reaffirmed that all the acts and legislative measures including the amendment made in the Constitution and all other actions taken had been taken or done in the. interest of State necessity to advance and promote the good of the people for the ordinary orderly running of the State---Chief Justice of Pakistan and the other Judges of the Superior Courts, after revival of the Constitution, having taken oath of office as provided by the Constitution and being holders of the constitutional office, all such Judges including the Chief Justices shall be governed by the Constitution---Rights, privileges or obligations so acquired, accrued or incurred, including their tenure of office were protected under the Constitution---Action in respect of the former Chief Justices and former Judges being a fait accompli and hit by the doctrine of past and closed transaction, could not be reopened and was irreversible and case of such Judges was fully covered by the law laid down in Zafar Ali Shah's case PLD 2000 SC 869---Said Judges had been retired and held entitled to draw pensionary benefits by virtue of High Court Judges (Pensionary Benefits), Order, 2007 and Supreme Court Judges (Pensionary Benefits) Order, 2007---No exception in circumstances, could be taken to the conclusion arrived at, the findings recorded and the directions given in the short order and the detailed judgment in the case under review---Petitioner could not be allowed to re-agitate the same points which had already been dealt with and determined by the Court---Review petition was dismissed.

General Pervez Musharraf, Chief of Army Staff/President, in the larger public interest and the safety, security and integrity of the country was entitled, during the interregnum, to perform -

(a) All acts or legislative measures which were in accordance with, or could have been made under the 1973 Constitution, including the power to amend it;

(b) All acts which tended to advance or promote the good of the people; and

(c) All acts required to be done for the ordinary orderly running of the State.

Consequently, all the President's Orders, Ordinances, Orders of the Chief of Army Staff, including the Order No.1 of 2007, the Oath of Office (Judges) Order, 2007, amendments in the Constitution made through the Constitution (Amendment) Order, 2007 (P.O. No.5 of 2007) and the Constitution (Second Amendment) Order, 2007 (P.O. No. 6 of 2007) and all other laws, orders made, proceedings taken, appointments made, actions taken or done on or after 3rd November 2007, notifications, rules, orders and byelaws, which were in force at the time of or, during the period of operation of Proclamation of Emergency have been validly made, taken or done and shall continue in force subject to their repeal, alteration or amendment as contemplated by Article 270AAA of the Constitution. The question of automatic repeal of the Ordinances, which were in force at the time of, or issued during the Proclamation of Emergency of 3rd November 2007, in terms of Article 89(2) or Article 128(2) of the Constitution, would not arise. All the acts and legislative measures including the amendments made in the 1973 Constitution and all other actions taken as aforesaid, have been taken or done in the interest of State necessity to advance and promote the good of the people for the ordinary orderly running of the State. The same are, therefore, reaffirmed.

As regards the reinstatement of the former Chief Justices and Judges of the Superior Courts, who were not given, or who had not taken, oath under the Oath of Office (Judges) Order, 2007, they had ceased to hold their office on 3rd November 2007. Later, by virtue of President's Orders No. 8 and 9 of 2007 dated 14.12.2007, they have been retired and held entitled to draw pensionary benefits accordingly. On 15th December 2007, the emergency has been revoked by the President by the Revocation of Proclamation of Emergency Order, 2007. The Order No. 1 of 2007 has been repealed. However, the aforesaid revocation or repeal would not revive anything not in force or existing at the time of the revocation or repeal, or affect the previous operation of any law or anything done or purported to, or suffered to have been done under the Proclamation of Emergency, the Order No. 1 of 2007 and the Oath of Office (Judges) Order, 2007. The action in respect of the former Chief Justices and former Judges, being a fait accompli and hit by the doctrine of past and closed transaction cannot be re-opened and is irreversible. Reference to Article 209 of the Constitution in the matter is inapt, as the said provision cannot be attracted where the Constitution is held in abeyance. Thus, the case of such Judges is fully covered by the law laid down in Zafar Ali Shah's case.

The Constitution of the Islamic Republic of Pakistan, '1973 has been revived. The Chief Justice of Pakistan and the other Judges of the Superior Courts have taken oath of office as provided by the Constitution. Being holders of constitutional office, all such Judges including the Chief Justices shall be governed by the Constitution. The rights, privileges or obligations so acquired, accrued or incurred, including their tenure of office are protected under the Constitution.

No exception can be taken to the conclusions arrived at, the findings recorded and the directions given in the Short Order and the detailed judgment. The petitioner cannot be allowed to re-agitate the same points, which have already been dealt with and determined by the Court.

Begum Nusrat Bhutto's case PLD 1977 SC 657; Syed Zafar Ali Shah's case PLD 2000 SC 869; Mian Rafiq Sehgal v. Bank of Credit and Commerce International (Overseas) Ltd. PLD 1997 SC 865; Abdul Ghaffar-Abdul Rehman v. Asghar Ali PLD 1998 SC 363 and Waseem Sajjad v. Federation of Pakistan PLD 2001 SC 233 ref.

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

----Art. 188---Review of Supreme Court Judgment---Principles.

Review proceedings cannot partake re-hearing of a decided case. Therefore, if the Court has taken a conscious and deliberate decision on a point of law or fact while disposing of a petition or an appeal, review of such judgment or order cannot be obtained on the grounds that the Court took an erroneous view or that another view on reconsideration is possible. Review also cannot be allowed on the ground of discovery of some new material, if such material was available at the time of hearing of appeal or petition but' not produced. A ground not urged or 'raised at the hearing of petition or appeal cannot be allowed to be raised in review proceedings. Only such errors in the judgment/order would justify review, which are self-evident, found floating on the surface, are discoverable without much deliberation, and have a material bearing on the final result of the case.

Mian Rafiq Saigol v. Bank of Credit and Commerce International (Overseas) Ltd. PLD 1997 SC 865 and Wasim Sajjad v. Federation of Pakistan PLD 2001 SC 233 rel.

Mr. Arshad Ali Ch. Advocate Supreme Court/Advocate-on-Record for Petitioner.

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court and Raja M. Ibrahim Satti, Advocate Supreme Court for Respondent No.1.

Malik Muhammad Qayyum, Attorney General for Pakistan and Ch. Naseer Ahmed, Advocate Supreme Court for Respondent No.2.

Date of hearing: 15th February, 2008.

P L D 2008 Supreme Court 645

Present: Abdul Hameed Dogar, C. J., Ch. Ejaz Yousaf and Mian Hamid Farooq, JJ

MUHAMMAD NADEEM ANWAR and another---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

Civil Petitions Nos.438 & 506 of 2007, decided on 25th February, 2008. (On appeal from the judgment dated 29-3-2007 of the Lahore High Court, Rawalpindi Bench in W. Ps. Nos.2841 and 2946 of 2005).

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

----Preamble---Object and scope of National Accountability Ordinance, 1999--Ordinance was promulgated in order to provide effective measures for detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse and abuse of power or authority, misappropriation of property, taking kick backs, commissions and for matters connected and ancillary or incidental thereto---Object of National Accountability Ordinance, 1999, in its preamble, is to provide expeditious trial of scheduled offences within the shortest possible time.

(b) Criminal trial---

----Presence of accused---Object---It is the object of criminal law to ensure availability of accused to face trial and not to punish him for offence allegedly pending final determination by competent Court of law.

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

----Ss.9(a)(iv) & 16(a)---Bail, grant of---Delay in trial-Despite direction for conclusion of trial within a period of ninety days, out of 54 prosecution witnesses, evidence of only 9 could be recorded---Effect---Grant of bail could not be withheld as punishment on accusation of non-bailable offence---Accused was Entitled to expeditious and inexpensive access to justice, which included a right to fair and speedy trial in transparent manner without any unreasonable delay---Such intention had been re-assured in S.16 of National Accountability Ordinance, 1999, laying down criteria for day to day trial and its conclusion within thirty days---Such object did not appear likely to be achieved anywhere in the near future and would not constitute a bar for grant of bail to accused--Truth or otherwise of charges levelled against accused could only be determined at the conclusion of trial after taking into consideration the evidence adduced by both the parties Supreme Court converted petition for leave to appeal into appeal as accused were entitled to grant of bail pending conclusion of trial---Bail was granted.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Muhammad Saeed Mehdi v. State 2002 SCMR 282 and Aga Jehanzeb v. NAB and others 2005 SCMR 1666 rel.

Wasim Sajjad, Senior Advocate Supreme Court for Petitioner (in C.P.No.438 of 2007).

Sardar Muhammad Ishaq Khan, Senior Advocate Supreme Court for Petitioner (in C.P.No.506 of 2007).

Malik Muhammad Qayyum, Attorney-General for Pakistan (in C.P.Nos.438 and 506 of 2007).

Muhammad Asghar Rana, Addl. P.G. NAB and M.S. Khattak, Advocate-on-Record for Respondents (in C.P. Nos.438 and 506 of 2007).

P L D 2008 Supreme Court 650

Present: Muhammad Nawaz Abbasi, Zia Perwez and Syed Zawwar Hussain Jaffery, JJ

SALEEM MALIK---Appellant

Versus

PAKISTAN CRICKET BOARD (PCB) and 2 others---Respondents

Civil Appeal No.505 of 2008, decided on 22nd May, 2008.

(On appeal from the judgment dated 20-5-2002 passed by Lahore High Court, Lahore in C.R.No.2350 of 2001).

(a) Pakistan Commissions of Inquiry Act (VI of 1956)---

----S. 9---Sports (Development and Control) Ordinance (XVI of 1962), Ss. 3 & 4---Specific Relief Act (I of 1877), Ss. 42 & 55---Constitution of Pakistan (1973), Arts. 185, 8 & 4---Protection of action taken in good faith---Scope---Professional Cricket having been found' involved in betting and match fixing was proposed to be proceeded against for appropriate action, consequently Government vide its notification appointed Judge of the High Court as one Member Commission of Inquiry under the Pakistan Commissions of Inquiry Act, 1956 to hold inquiry in the matter---Commission of Inquiry having found the Cricket guilty of the charge made recommendation for imposition of penalty of life ban on his playing cricket with a fine of Rs.10 lac---Cricket Board imposed only a penalty of fine as recommended by the Commission and no order in respect of life ban on playing cricket was passed---Cricket filed suit for declaration and permanent injunction against the action taken by the Cricket Board---Validity---Held, Commission had no power to propose a penalty, which was not provided under the law and consequently, Cricket Board or any person acting on its behalf also would have no authority to impose such penalty---Cricketer, in the absence of having been provided the right of appeal against order of the Board, could file suit against such order---Principles.

Section 9 of Pakistan Commissions of Inquiry Act, 1956 provides that no suit or proceeding lies against the Federal Government, Commission or any other person acting under the directions of Federal Government or the Commission in respect of anything done in good faith or to be done in pursuance of the provision of the Act or any Rule or order made there under. This is settled law that a penal action in consequence of which a person is deprived of his legitimate or a vested right, should have sanction if law and such action if taken in violation of the principle of natural justice, may have no protection of law. The principle of natural justice is read in every statute as a mandatory rule in the command of the Constitution, which is also recognized in Islam and a law or an action which is in conflict with this golden principle may have no legal effect or consequence. This principle will also be applicable to the proceedings before the Commission of Inquiry referred above which has all ancillary and accidental powers for the purpose of holding inquiry under Pakistan Commissions of Inquiry Act, 1956, but the Commission has no power to propose a penalty, which is not provided under the law and consequently, the Board or any person acting on its behalf also would have no authority to impose such penalty. The Commission can certainly recommend the punishment which is provided in the statute and similarly the Board after providing proper opportunity of hearing in the light of principle of natural justice, can pass an appropriate order within the scope of law. The Commission of Inquiry under the scheme of law is not the punishing authority rather it has to make recommendations and Pakistan Cricket Board or its Chairman, as the case may be, in the light thereof, pass an appropriate order in accordance with law and the parties have not been able to show any statutory law, authorizing the Board to award the punishment proposed by the Commission. Without prejudice to the rights of the parties, Supreme Court observed that the Board has not imposed penalty in to recommended by the Commission rather as it appears from the order of the Board only fine was imposed and the recommendations of the Commission to the extent of life ban on playing cricket was not followed and given effect. Consequently, the penalty, subject to any exception would confine to the extent of only fine.

Of course, Pakistan being Member of ICC, would be following its bye-laws and rules which provide different penalties including life ban on playing cricket but the essential question requiring determination would be whether without adopting these Rules in proper manner under the law, the Board, a statutory body established under Sports (Development and Control) Ordinance, 1962, can impose a penalty which is not prescribed in law of the land and whether the Commission or Board or any other person acting on their behalf can claim immunity for an action taken under these rules on the strength of section 9 of the Pakistan Commissions of Inquiry Act, 1956. The State is prohibited under Article 8 of the Constitution to make any law which abridges the right of people guaranteed under the Constitution and Article 4 of the Constitution provides protection to the right recognized in law. The expression "due process of law" involves both substantive and procedural-constitutional issues and principle of procedural due process requires that a person be given fair process for the deprivation of a right and may also limit the discretion of the authorities and Courts in determination of substantive rights whereas the concept of substantive due process is to examine a law and place limits on the size of punitive action. The courts in the light of Articles 4 and 8 of the Constitution can examine the question whether law on a subject rationally relates to the legitimate right of the people and subject to the reasonableness of law, the same text would be relevant for determination of rights under due process of law. This is the duty of the court to see whether a law is harsh or oppressive in respect of constitutional guarantees and rights of people and whether provides equal protection to all or not. In the present case, all the three courts, on the basis of section 9 of the Pakistan Commissions of Inquiry Act, 1956, non-suited the Cricket on the ground that action taken against him had immunity from challenge before the court of law. The subject-matter of the civil suit related to the violation of rules of game which are mostly of moral character and in case of breach of these rules, the punishment is also of moral character but if the breach is grave and is of serious nature calling a severe penal action, the concerned authorities may take such action, which is provided in the relevant statutes.

The plain reading of section 9 would show that a legal action for damages etc. possibly cannot be taken against the Commission or Government or against any other person for an action done in good faith but there can be no restriction on availing the legal remedy by a person for the protection of his rights.

In view thereof, in absence of right of appeal against an order of Board, the remedy of civil suit cannot be denied to an aggrieved person under the garb of section 9 of the Pakistan Commission of Inquiry Act, 1956.

Supreme Court set aside the judgment of the High Court and remanded the case to the trial Court for decision of the suit on merits in accordance with law. Notwithstanding the fact that there was no mention of life ban on playing cricket in the order passed by the Pakistan Cricket Board which was conveyed to the Crickter, the career of a cricket player, has been damaged, therefore, the interest of justice would require the decision of suit as early as possible and consequently, Supreme Court directed the trial Judge while proceedings with the case on day-to-day basis will make efforts to give final verdict within a period of two months. Counsel for the parties have undertaken that except for the compelling reasons, they will not ask for adjournment and in view thereof, the trial Judge will not ordinarily grant adjournment to either party. The counsel for the crickter has requested for suspension of the operation of order of Board pending final disposal of the suit as interim measure in the interest of justice. The cricketer may if so advised, move the trial Court- for appropriate relief and if such an application is moved, the same will be decided on its own merits.

Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue Islamabad and 2 others 1994 SCMR 826; Haji Mitha Khan v. Muhammad Younus and 2 others 1991 SCMR 2030; Mushtaq Ahmad Khan and another v. Mercantile Cooperative Finance Corporation Ltd and another PLD 1989 Lah. 320; Muhammad Zaman and others v. Shah Wazir Khan PLD 2002 Pesh. 45 and Pakistan v. General Public PLD 1989 SC 6 ref.

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

----O. VII, R. 11---Plaint, rejection of---Technical grounds---Rejection of plaint on technical grounds would amount to deprive a person from his legitimate right of availing the legal remedy for undoing the wrong done in respect of his such right therefore, the Court may, in exceptional cases, consider the legal objection in the light of averments of the written statement but the pleading as a whole cannot be taken into consideration for rejection of plaint--Principles.

Subject to the certain exception to the general principle, the plaint in the suit cannot be rejected on the basis of defence plea or material supplied by the opposite party with the written statement. This is settled law that in case of controversial questions of fact or law, the provision of Order VII, rule 11, C.P.C. cannot be invoked rather the proper course for the Court in such cases is to frame issue on such question and decide the same on merits in the light of evidence in accordance with law. The rejection of plaint on technical grounds would amount to deprive a person from his legitimate right of availing the legal remedy for undoing the wrong done in respect of his legitimate right, therefore, the Court may, in exceptional cases, consider the legal objection in the light of averment of the written statement but the pleading as a whole cannot be taken into consideration for rejection of plaint under Order VII, rule 11, C.P.C.

Raja Mahmood Akhtar, Advocate Supreme Court for Appellant.

Taffazal-H-Rizvi, Advocate Supreme Court for Respondent No.1.

Raja Abdur Rehman Dy. Attorney-General for Respondents Nos.2 and 3.

Date of hearing: 22nd May, 2008.

P L D 2008 Supreme Court 663

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

Moulana ATTA-UR-REHMAN---Petitioner

Versus

Al-Hajj SARDAR UMAR FAROOQ and others---Respondents

Civil Petitions Nos. 342 and 343 of 2008, heard on 15th May, 2008.

(On appeal from the judgment dated 13-3-2008 of the Peshawar High Court, Peshawar passed in Writ Petitions Nos.236 and 254 of 2008).

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

----S. 39(6)---Consolidation of results---Candidate was declared as returned candidate in the unofficial result announced by Election Commission, which was established from the applications filed by the aggrieved candidates before the Returning Officer and the order of re­checking/re-count passed thereon---Forms XIV prepared by the respective Presiding Officers on the basis of the counting of votes were in order and no one had raised any objection qua them---Form XVI (consolidation statement of the count of result) based on Form XIV prepared by Presiding Officers was duly signed by the Returning Officer---Returning Officer, after having signed the said Form had become functus officio and the withholding of consolidated statement of result by him was not justified on any ground, to say the least that other candidates had filed applications for re-count---Proceedings carried out subsequently were coram non judice and void ab initio---Petition for leave to appeal was converted into appeal by Supreme Court and order of Returning Officer for rechecking/recount of ballot papers, including the proceedings of re-checking/recount were set aside and Returning Officer was directed to transmit the consolidated statement of result (Form XVI) to the Election Commission of Pakistan for formal announcement of result of election.

Ghani-ur-Rehman v. Pir Haider Ali Shah 1997 CLC 1092; Pervaiz Akhtar v. District Returning Officer PLD 2006 Lah. 29; Emmanual Masih v. The Punjab Local Councils Election Authority and others 1985 SCMR 729; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Punjab Workers' Welfare Board, Government of Punjab and Human Resources Department, Lahore v. Mehr Din 2007 SCMR 13; Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami 2007 SCMR 818 and All Pakistan Newspapers Society v. Federation of Pakistan and others PLD 2004 SC 600 ref.

(b) Void order---

----When the basic order' is without lawful authority and void ab initio, then the entire superstructure raised thereon falls on the ground automatically.

Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104 ref.

Mehdi Abbas Khan v. Rana Muhammad Qasim Noon 2007 CLC 1830 distinguished.

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

----S. 39(6)---Consolidation of results---Order of re-count of votes was passed by Returning Officer in violation of the principle of audi alteram partem, in as much as he did not issue any notice to the candidate (unofficially) declared as elected nor provided him any opportunity of hearing before passing the order of re-count---Fact that said candidate had the knowledge of the process of recount as some of his supporters were present outside the Court room of the Returning Officer had no bearing on the issue, which was that he was not heard when the result was withheld when the re-checking/re-count was ordered---Effect---Order of the Returning Officer was not sustainable in law, in circumstances---No order could be passed at the back of a party, particularly against a person who may be affected by such an order or which deprived him of his vested right or interest---Ex parte proceedings of recounting the votes behind the back of a candidate whose success had been unofficially announced were not justified---Petition for leave to appeal was converted into appeal by Supreme Court and order of Returning Officer for rechecking/recount of ballot papers, including the proceedings of rechecking/recount were set aside and Returning Officer was directed to transmit the consolidated statement of result (Form XVI) to the Election Commission of Pakistan for formal announcement of result of election.

Nawab Khan v.Qamar-ud-Din 1999 SCMR 299 ref.

(d) Administration of justice---

----No order could be passed at L back of a party, particularly against a person who may be affected by such an order or which deprived him of his vested right or interest.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Kamran Murtaza, Advocate Supreme Court, Qari Abdul Rasheed, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioner.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate on-Record for Respondent No.1.

Sardar M. Latif Khan Khosa, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.2.

Wasim Sajjad, Senior Advocate Supreme Court, Abdul Latif Yousafzai, Advocate Supreme Court and Arshad Ali Ch. Advocate-on-Record for Respondent No.3.

Malik Muhammad Qayyum, Attorney General for Pakistan.

Date of hearing: 15th May, 2008.

P L D 2008 Supreme Court 673

Present: Muhammad Nawaz Abbasi, Actg. C.J., Muhammad Qaim Jan Khan and Mian Hamid Farooq, JJ

SUO MOTU CASE NO.10 OF 2007: In the matter of

Suo Motu Case No.10 of 2007, decided on 24th January, 2008.

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

----Art. 184(3)---Powers, scope and extent of jurisdiction of Supreme Court under Art.184(3) of the Constitution in the cases of breach of fundamental rights conferred on people---Judicial review---Immunity---administrative law---Concept---"Administrative action" and "policies for the purpose of exercise of judicial powers of the Court"---Distinction---Powers of Supreme Court under Art.184(3) of the Constitution and that of High Court under Art.199 of the constitution---Difference---Supreme Court, in exercise of its powers under Art.184(3) of the Constitution, was not supposed to interfere in policy decisions of administrative nature and to control the administrative affairs of the government but the interference of Supreme Court in the matter relating to the breach and enforcement of fundamental rights of people at large scale was always justified---Courts must not act in departure to the settled principles of judicial norms or in aid of administrative policy of executive authority or as social reformer rather must confine itself within the domain of law and mandate of the Constitution---Failure of government to have proper control on the prices particularly of articles of daily use and essential commodities related to enforcement of fundamental rights of the people and was of public importance-Responsibilities of government in that behalf identified.

Supreme Court may, in its exercise of power under Article 184(3) of the Constitution, issue appropriate directions in the public interest in the matters of public importance relating to the enforcement of their fundamental rights and government being bound by the direction of this Court has to give effect to such directions and ensure compliance thereof, for the safeguard of the right of the people. The failure of the government to have proper control on the prices particularly of articles of daily use and essential commodities, would lead to suggest that the government is least bothered to accept the responsibility of public duty as a legal and constitutional obligation. The issue relating to the high prices of items of common use in daily life, relating to the enforcement of fundamental rights of the people is certainly of public importance, therefore, government is under heavy responsibility to keep a close watch on the production, demand and supply to ensure availability of such items in the market on reasonable rates. The government must take effective steps and should be vigilant to keep balance in the prices in the market and poor performance of the Government functionaries in respect of this sensitive issue, may badly affect good governance and in a democratic set up, may create unrest in the public which may lead to a serious political problem to run the government. The concept of administrative law is that government must take certain measures in discharge of its functions under the law for the welfare of people and issue of prices certainly is linked with the 'welfare of people but due to the various factors in the private sector, government may not have effective control on the prices; therefore, the exclusive responsibility for high prices and shortage, cannot be shifted to the government and consequently, Supreme Court, in exercise of its powers under Article 184(3) of the Constitution, may not pass an order which cannot be given effect and implemented in letter and spirit. The administrative actions and policies of the government which relate to the enforcement of fundamental rights of the people and are of public importance, must be framed in consonance with the policy of law and mandate of the Constitution. The administrative policies having the force of law may not have complete immunity from the scope of judicial review of the superior courts, therefore, the distinction is to be drawn in administrative actions and policies for the purpose of exercise of judicial powers by the courts. The administrative policies to run the affairs of State in accordance with the law and Constitution if do not infringe the rights of people, may not call for interference of the courts and basic principle for exercise of judicial powers in respect of infringement of the legal rights, is that courts must jealously guard the rights of the people but must not pass an order which cannot be given effect in true spirit of law, therefore, the Court should not exercise judicial powers in a manner in which its authority becomes insignificant. The courts are thus required to exercise judicial powers with reasonable restraint and must not pass an order, in futility, therefore, Supreme Court, n exercise of its powers under Article 184(3) of the Constitution, s not supposed to interfere in policy decision of administrative nature and the issue relating to the control of the prices in the market is not, as such, a pure legal or constitutional problem rather due to the various reasons it has a mixed character of law and administrative policy. Be that as it may, the contention that policy matters are not as such adjudicable by the courts and Supreme Court may not exercise the powers under Article 184(3) of the Constitution in such matters, is not without force but in the cases of breach of fundamental rights of the people conferred under Articles 8 to 28 of the Constitution, Supreme Court must not hesitate in exercising the powers under Article 184(3) of the Constitution and issue appropriate directions to the public functionaries and government agencies to take necessary measures for the protection of the rights of people in the public interest.

The power under Article 184(3) of the Constitution is not at par with that of Article 199 of the Constitution for reasons firstly, that the provisions of Article 184(3) are invocable only in the matter of public importance and secondly, it must relate to the enforcement of fundamental rights and unless these two basic elements are there, the extraordinary jurisdiction of Supreme Court under Article 184(3) of the Constitution cannot be invoked whereas the individual grievance in respect of violation of any right, can be brought before the High Court under Article 199 of the Constitution. The issue relating to the high prices particularly of essential commodities is concerned with every person and having immense public importance has direct nexus with the fundamental rights of the people including the right of life which is not only a right to live but it also includes right of clean water, fresh air, right of earning in lawful manner and need of basic facilities and necessities of life. The government is responsible to provide the basic necessities of life to the people at a fair and reasonable price and is under legal duty to frame a fair policy regarding production and supply of different commodities in the market. This is essential to control the black marketing and hoarding etc, to maintain the prices at reasonable level and government without permitting monopoly, must ensure free competition so that the prices may not be out of the reach of a common person. Be that as it may, since the control of prices depends on the production and supply of different items in the market, therefore, it may not be merely an administrative matter to be dealt with through the machinery of law rather there are many other factors which play vital role to control the prices in the market and these factors are not in the exclusive control of government, therefore, the use of machinery of law to control the prices in the market without increase in production to keep balance in demand and supply, would be of no significance. The prices in the market also cannot be controlled through a judicial order as the courts are concerned only with the breach of legal rights either of an individual or collective right of the people, therefore, Supreme Court, in exercise of its powers under Article 184(3) of the Constitution, can only interfere and pass an appropriate order in a matter of public importance relating to the enforcement of fundamental right guaranteed under the Constitution. The judicial control in such matters is based on the fundamental principle inherent in the legal system that power of judicial review can validly be exercised within the limits of law and Constitution. In case of a breach of right of an individual; the provisions of Article 199 of the Constitution can be invoked for appropriate relief and if the breach is of the nature which has public importance and relates to the enforcement of a fundamental right, Supreme Court may, in exercise of its power under Article 184(3) of the Constitution, can take cognizance of the matter and pass appropriate orders. In view of the nature of issues raised in the present case and the circumstances in totality, it can easily be ascertained that the increase in prices in the market is not only on account of administrative policy regarding price control of the government rather there are number .of other reasons and factors in the public and private sectors which are major causes of the high prices, therefore, the real remedy to solve this problem lies in framing the short and long term policies by the concerned departments, agencies and institutions of the government, responsible to control the affairs relating to production and price control in the public and private sector with the association and cooperation of the persons engaged in production and supply of the essential commodities and consumer associations. The government should also take effective steps in short and long terms, to regulate the prices through the machinery of law.

Supreme Court being conscious of the area of its jurisdiction may not enlarge the scope of Article 184(3) of the Constitution to control the administrative affairs of the government and interfere in 'the policy decisions but the interference of Supreme Court in the matter relating to the breach and enforcement of the fundamental right of people at large scale is always justified. However, courts must not act in departure to the settled principle of judicial norms or in aid of administrative policy of executive authority or as social reformer rather must confine themselves within the domain of jaw and mandate of the Constitution.

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

----Art. 184(3)---Suo motu notice by Supreme Court of the Policy of Capital Development Authority regarding vegetable and orchard farms which had been leased out under the Agro-farm Scheme introduced by the Capital Development Authority in the specified area and in pursuance of the order of the Supreme Court, Capital Development Authority, instead of taking remedial measures to make the Scheme more beneficial to the purpose, issued notice to lease holders for cancellation of their leases and thereby caused unnecessary harassment---Supreme Court, in circumstances, declared that existing bye-laws and farming Scheme made applicable to the private land in the specified zone was unjust, unreasonable and being discriminatory, had no legal force and in consequence of such declaration, Supreme Court required the Capital Development Authority to take immediate action as per directions given by the Supreme Court in the present judgment.

Existing bye-laws and farming scheme made applicable to the private land in Zone 4 is unjust, unreasonable and being discriminatory, has no legal force and we declare accordingly. In consequence thereto, the C.D.A, in implementation of this order, shall take immediate action as under:--

(1) The Gazette of Pakistan Notification S.R.O. 670/(1)2007 shall be implemented in letter and spirit and landowners in Zone 4 Islamabad shall be facilitated in getting necessary approvals for development/construction on the private land falling within the purview of notification referred to above.

(2) The building bye-laws of C.D.A. shall be made applicable to Zone 4 with necessary and suitable amendment as per need of the area and shall be published in the Electronic and Print Media for information of public in general within one month.

(3) The existing abadies and construction in Zone. 4 either residential or commercial, raised in violation of bye-laws and rules referred to above shall be regulated in a proper manner by the C.D.A. with the consultation of Rural Development Department of ICT and representatives of union councils.

(4) Subject to the bye-laws and building regulations and approved site plan by the C.D.A., the private landowners in Zone 4 Islamabad shall be allowed to raise residential and commercial construction like other areas and Zones of Islamabad.

(5) The land which is surrounded by abadies or which-cannot be utilized for farming shall be allowed for, the construction of housing colonies and commercial buildings by preparing regular Scheme to avoid irregular construction of houses, plazas and shops in the area.

(6) The provision in respect of the size of farm houses of 20 kanals shall apply only to the C.D.A. owned land and shall have no application to private land. The private land-owners in Zone 4 shall be entitled to establish Agro Farm of minimum size of 4 kanal and can also utilize/develop their land for any lawful purpose including the construction of houses and commercial buildings subject to the byelaws and regulations as well as approved site plan from C.D.A.

(7) In the light of the above directions, the C.D.A. shall amend the rules accordingly to bring the same in consonance the purpose of C.D.A. Ordinance and to the spirit of law and Constitution.

Copy of the present order of the Supreme Court was directed to be sent to Chairman C.D.A. for necessary compliance and implementation.

?

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

----Art. 184(3)---Suo motu notice by Supreme Court under Art.184(3) of the Constitution on the basis of news item published in the newspaper in which comments were made on the increase of prices of different commodities in market, due to loose administration and weak policy of the government regarding price control---Supreme Court, with a view to control the prices, required the Ministry of Food, Government of Pakistan, and Provincial Food Department as well as Law Enforcing Agencies to take the measures, as directed, to achieve the goal.

With a view to control the prices, the following measures are required to be taken by the Ministry of Food, Government of Pakistan, and Provincial, Food Department as well as the Law Enforcing Agencies to achieve the goal:

(1) The price control system should be activated by the Ministry of Food and Agriculture, Government of Pakistan and Food Department in the Provinces through the machinery of law to ensure that the prices in the market are at reasonable level.

(2) The concerned authorities in the Federal and Provincial as well as Local Governments should take preventive measures to control hoarding black-marketing, overcharging, storage and artificial shortage of commodities and in case of any breach must take strict action in accordance with the law.

(3) The retailer's and whole salers in the market should be bound to affix the price list of essential commodities outside their shops and business places.

(4) The Government must establish maximum number of utility stores in each town and city to provide the items of food etc. at low prices.

(5) The Federal and Provincial Governments, through the Secretary Interior and Chief Secretaries in the Provinces, must arrange special teams to put proper check on the artificial increase in the prices and storage etc.

(6) The Federal and Provincial Governments shall establish regulatory system for the convenience of public in general and provide necessary facilities to the producers of essential commodities in the public and private sectors as incentive to encourage them to achieve the maximum target.

(7) The Federal and Provincial Governments will take necessary steps for enacting consumers laws and establish the consumer courts in the public interest with Local Governments, should encourage consumer associations to control the supply of essential commodities at local level on fair price and in case of any breach, must take appropriate action in accordance with law.

The copy of this order shall be sent to the Secretary Food and Agriculture, Secretary Cabinet and Secretary Interior, Government of Pakistan. The copy of this order shall also be sent to the Chief Secretaries of the Provincial Governments.

Malik Muhammad Qayyum, Attorney General.

Qazi Muhammad Amin, Addl.A.-G. Punjab.

Raja Saeed Akram, A.A.G. Punjab.

Ch.Mushtaq Ahmed Khan, Prosecutor-General, Punjab.

Ch.Munir Sadiq, DP-G, Punjab.

Dr. Muhammad Asghar Rana, A. DP-G.

Ifran Elahi, DCO, Rawalpindi.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court.

(In CMAs. Nos. 2744 to 2746/2007)

MahmoOd Raza Khan Addl. A.G., Balochistan.

Qasim Mir Jat, A.A.G. Sindh.

Anwar Subhani along with DCP Legal on behalf of I.G. Sindh.

Hafeez Ahmed Ch.Addl. Secy. M/O Industry.

Ali Sher, Section Officer (Finance Ministry).

M. Bilal, Senior Advocate Supreme Court for A.G. N.-W.F.P.

Brig. (R) Hafeez Ahmed, M.D. Utility Store Corporation.

Asif Rauf, Joint Secretary, M/O Industries.

Raja Ghafoor, Advocate-on-Record.

Date of hearing: 24th January, 1.008.

P L D 2008 Supreme Court 697

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

NATIONAL ACCOUNTABILITY BUREAU through Chairman---Appellant

Versus

AAMIR LODHI and another---Respondents

Civil Appeal No.114 of 2008, decided on 19th March, 2008.

(On appeal from the judgment dated 12-11-2007 in W.P.No.385 of 2003 passed by the Lahore High Court, Lahore.

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

----S. 10---Constitution of Pakistan (1973),Art.185---Reference pending against the accused respondent in the Accountability Court had been quashed by High Court vide impugned order---Validity--Allegations contained in the reference against the accused were that he was instrumental in obtaining. commission and kickbacks in Defence deals for and on his own behalf and on behalf of the principal accused and that on his instructions certain offshore companies, in whose accounts commission and kickbacks from Defence deals were received, which amounts later on were distributed amongst the accused persons, were established---Admittedly proceedings against the principal offender had come to an end as he has been released on the basis of plea bargain---Although National Accountability Ordinance, 1999 had provided that on termination of proceedings as a result of plea bargain the accused would be deemed to have been convicted, yet the fact remained that guilt of the principal offender was not substantiated through evidence at the trial, nor the case was decided on merits so as to establish as to how and in which manner the offence was committed and facilitated by the present accused respondent, as to whether he had abetted the main offence or his role was limited to the extent of just securing commission and kickbacks for the principal offender, a part whereof was allegedly paid to him--Was also not clear as to how and on what count the amount in question was deposited in the accounts of the aforesaid offshore companies which were statedly established for the purpose, because the person who had allegedly established the same was neither challaned by the NAB Authorities, nor summoned by the court---If an abettor or any other person could be charged, tried or convicted along with holder of a public office, then if the principal offender was acquitted or proceedings against him were dropped under the National Reconciliation Ordinance, 2007, then as to why benefit thereof would not be extended. to the ordinary person, because both sailed in the same boat---When principal offence was not established, abetment would fall through---Accused respondent had neither pleaded guilty to the charge nor made confession, nor the person who had allegedly paid him certain amounts, was arrayed as an accused, therefore; the reference against him had rightly been quashed---Considerations which weighed with the High Court in passing the impugned judgment fully conformed to the requirements of law and did not call for interference by Supreme Court---Appeal as dismissed accordingly.

Dr. Muhammad Anwar Kurd v. The State and another 2004 SCMR 1229; Amena Khatun and others v. Munshi Miah PLD 1960 Dacca 723; Shama alias Jinnat Ali v. The State PLD 1966 Dacca 269; Umadasi Dasi v. Emperor 1924 Calcutta 1031; Thakur Shah v. Emperor AIR 1943 PC 192; Raees Jumma v. The State and another 1991 SCMR 2018; Aijaz Ahmed v. The State 1999 SCMR 2760; Shamma alias Jinnat Ali v. The State PLD 1966 Dacca 269; Sohna v. The State 1968 PCr.LJ 50 and The State through Prosecutor-General National Accountability Bureau, Islamabad v. Nasim ur Rehman and others 2004 SCMR 1943 ref.

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

----S. 10(b)---Penal Code (XLV of 1860), S.109---Abetment not sustainable when principal offence not substantiated---When principal offence is not substantiated, abetment falls through.

Amena Khatun and others v. Munshi Miah PLD 1960 Dacca 723; Shama alias Jinnat Ali v. The State PLD 1966 Dacca 269; Umadasi Dasi v. Emperor 1924 Calcutta 1031 and Thakur Shah v. Emperor AIR 1943 PC 192 ref.

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

----S. 10(b)---Penal Code (XLV of 1860), S.109---Abetment--Liability of abettor--Sentence---Liability of an abettor is limited to the extent of the offence abetted and, therefore, the sentence inflicted on him cannot, as a propriety, be greater than that of the principal accused.

Raees Jumma v. The State and another 1991 SCMR 2018 and Aijaz Ahmed v.

The State 1999 SCMR 2760 ref.

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

---S. 10(b)---Penal Code (XLV of 1860), S.109---Abetment---Abettor not to be convicted when principal accused acquitted---When the principal accused is acquitted then it is not proper to make the abettor a scapegoat and convict him on the basis of same evidence.

Shamma alias Jinnat Ali v.

The State PLD 1966 Dacca 269 and Sohna v. The State 1968 PCr.LJ 50 ref.

Dr. Daniswar Malik, P.G. NAB, Zulfiqar Ahmad Bhutta, Dy. P.C., and M.S. Khattak, Advocate-on-Record for Appellant.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 19th March, 2008.

JUDGEMENT

CH. EJAZ YOUSAF, J.---This appeal by leave of the Court is directed against judgment dated 12-11-2007 passed by a learned Division Bench of the Lahore High Court, Lahore, whereby Reference pending against respondent No.1 before the Judge Accountability Court No.3, Rawalpindi, was quashed.

1. Facts of the case, in brief, are that Reference bearing No.43 of 200J, titled as "State v. Admiral Mansoor ul Haq and Aamir Lodhi" (respondent No.1), was filed before the Accountability Court No.1 in which principal accused Admiral Mansoor ul Haq was taken into custody on the charge that on account of purchase of defence material for Pakistan Navy, he had received commission, kickbacks and bribe from the suppliers/contractors. In the same case respondent No.1 was also charged for facilitating the crime. Principal accused Mansoor ul Haq was released on the basis of plea bargain whereas, according the prosecution, the respondent No.1 did not appear before the accountability Court despite issuance of process. Resultantly another Reference i.e. 69 of 2002 was also filed against him.

During the proceedings in absentia, respondent No.1 filed writ petition No.53 of 2003 praying that the proceedings in Reference No.69 of 2002 pending before the Accountability Court No.3, Rawalpindi may be declared as illegal and without lawful authority. Stay order was also sought against the proceedings which were pending adjudication before the accountability Court. Another writ petition i.e. No.385 of 2003 for quasi-anent of the proceedings in reference No.43 of 2001 was also filed. Since during pendency of both the above said writ petitions, National Reconciliation Ordinance, 2007, (hereinafter referred to as the "NRO") was promulgated, therefore respondent No.1 filed application before the High Court for quashment of the cases, thereunder. The application was allowed and the Lahore High Court vide the impugned judgment/order dated 12-11-2007, quashed reference No.43 of 2003, hence this petition.

1. Dr. Danishwar Malik, learned Prosecutor-General NAB, has contended; that the learned Court below has gravely erred in law by holding that since, as a result of plea-bargain, Admiral Mansoor-ul-Haq was 'acquitted. of the charge" therefore, continuation of proceedings against respondent No.1 is tantamount to abuse of the process of Court. He stated that under the law, since on acceptance of plea bargain, a person is deemed to have been convicted, therefore, the reference against respondent No.1 could not have been quashed. It is further his case that section 33F as amended by National 'Reconciliation Ordinance, 2007, was applicable only to holders of public office and effect thereof could not have been extended to a private individual. He maintained that since on the basis of evidence collected by the prosecution, a case-against respondent No.1 was made out for facilitating the principal offender in commission of the offence, therefore, the references could not have been quashed. Having been questioned as to what sort of evidence was available against the respondent No.1, the learned Prosecutor General NAB stated that one Jamil Ansari had in the course of investigation made a statement thereby admitting that he i.e. said Jamil Ansari had paid certain amounts to the respondent No.1 out of the kickbacks received by him i.e. Jamil Ansari. However, admitted that said Jamil Ansari was neither challaned in the case nor arrayed as an accused. In answer to the query, as to whether the loss was made good, the learned Prosecutor General NAB candidly conceded that the allegedly misappropriated amount was paid by co-accused Mansoor-ul-Haq.

2. Mr. Mushtaq Ahmad Khan, Senior Advocate Supreme Court, learned counsel for respondent No.1, on the other hand, while controverting the contentions raised by the learned Prosecutor General, NAB, submitted that since as a result of plea bargain proceedings against Mansoor-ul-Haq were dropped therefore, Reference against respondent No.1 too, was not maintainable. He added that the allegation contained in the Reference was that one Jamil Ansari had, on respondent No.1's instructions established offshore companies in whose accounts commission and kickbacks from defence deals were received and it were later on shared by the accused persons, but since said Jamil Ansari was not challaned therefore, the respondent No.1 too, could not have been prosecuted. He maintained that proceedings against respondent No.1 were therefore, rightly quashed as its continuation was an exercise in futility and abuse of the process of Court.

3. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record of the case with their assistance minutely.

4. As to the first contention of the learned counsel for the appellant that the reference was wrongly quashed, it may be mentioned here that the allegations contained in the reference against the respondent No.1 were that he was instrumental in obtaining commission and kickbacks in defence deals for and on his own behalf and on behalf of Admiral Mansoor ul Haq and that on his instructions certain offshore companies, in whose accounts commission and kickbacks from defence deals were received, which amounts, later on, were distributed amongst the accused persons, were established by one Jamil Ansari. Quashment of the reference and proceedings carried out in pursuance thereof was sought, primarily on the ground that respondent No. 1 was not beneficiary of the kickbacks received by co-accused Admiral Mansoor ul Haq and that in view of the NRO it was not maintainable.

5. The learned Judges in the High Court having found that the Reference in question i.e. bearing No.43 of 2001 relating to the period between 1st day of January, 1986 to 12th day of October, 1999, was squarely covered by the newly inserted section 33-A (vide the NRO), of the National Accountability Ordinance and therefore, was not maintainable against the respondent No.1. It was further observed that even if no plea bargain had taken place in the case, no proceedings, in view of the NRO, could have continued. against the principal accused, namely, Admiral Mansoor-ul-Haq and that since reference qua principal accused Admiral Mansoor ul Haq was withdrawn, therefore, there was hardly any logic in proceeding against the respondent No.1 irrespective of the fact as to whether he was holder of a public office or not and that continuation of the proceedings, in the above backdrop was nothing but an abuse of the process of the Court. It was further held that since the National Reconciliation Ordinance, 2007 was a remedial statute, therefore, provisions thereof had to be applied liberally.

6. Admittedly proceedings against Admiral Mansoor ul Haq, the principal offender, came to an end as he was released on the basis of plea bargain whereas Jamil Ansari was not indicted. Though it has been provided in the NAB Ordinance that on termination of proceedings as a result of plea bargain the 'accused shall be deemed to have been convicted yet, the fact remains that guilt of co-accused Mansoor ul Haq was., at the trial, not substantiated through evidence nor the case was decided on merits so as to establish as to how and in which manner the offence was committed and facilitated by the respondent No.1, as to whether he had abetted the main offence or his role was limited to the extent of just securing commission and kickbacks for the principal offender, a part whereof was allegedly paid to him by said Jamil Ansari. It is also not clear as to how and on what 'count the amount in question was deposited in the accounts of those offshore companies which were statedly established for the purpose, because the person who had allegedly established the same was neither challaned by the NAB authorities, nor summoned, by the Court.

7. It would be pertinent to mention here that leave to appeal has been granted by this Court in the case of Dr. Muhammad Anwar Kurd v. The State and another 2004 SCMR 1229 to consider, inter alia, as to what exactly the term "plea-bargaining" stands for and what should be its exact import and significance, does it amount to "plead guilty" for the alleged offences or whether it amounts to complete discharge of the persons entailing no consequential benefits and whether the concept "deeming conviction" was alien to the criminal administration of justice in Pakistan and is in violation of provisions as contained in Articles 4, 9, 12, 13, 14 and 25 of the Constitution of the Islamic Republic of Pakistan?

8. Though it cannot be laid as a general rule that in every case where an abettor and the principal are tried together, the abettor if charged with having abetted the principal in the commission of an offence, must be acquitted if the principal is acquitted because there may be certain exceptions to the proposition, for instance where the abettor on his own confession or plea of guilty to the charge is convicted though the principal accused is acquitted for insufficiency of evidence or where substantive offence at appellate stage is found to have been committed by an unknown person or persons in consequence of the abetment by the culprit. However, it goes without saying that when principal offence is not substantiated, abetment falls through. This view receives support from the following reported judgments (i) Amena Khatun and others v. Munshi Miah PLD 1960 Dacca 723, (ii) Shama alias Jinnat Ali v. The State PLD 1966 Dacca 269 (iii) Umadasi Dasi v. Emperor 1924 Calcutta 1031, and (iv) Thakur Shah v. Emperor AIR 1943 PC 192.

9. It is also well settled that liability of an abettor is limited to the extent of the offence abetted and therefore, the 'sentence inflicted on him cannot, as a propriety, be greater than that of the principal accused. In this connection the cases reported as (i) Raees Jumma v. The State and. another 1991 SCMR 2018, (ii) Aijaz Ahmed v. The State 1999 SCMR 2760 may be referred to. In a number of cases it has been held that when the principal accused is acquitted then it is not proper to make the abettor a scapegoat and convict him on the basis of same evidence. Reference in this regard may usefully be made to the following reported judgments: (i) Shamma alias Jinnat Ali v. The State PLD 1966 Dacca 269 and (ii) Sohna v. The State 1968 PCr.LJ 50. Since in the instant case neither the respondent pleaded guilty to the charge, nor made confession, nor Jamil Ansari,' who had allegedly paid him certain amounts, was arrayed as an accused, therefore, in our view, the reference was rightly quashed by the High Court. The contention therefore, is devoid of force.

10. As to the next contention raised by learned counsel for the appellant that since section 33F, as amended by' the NRO 2007, is applicable only to the holder of, a public office, therefore, effect thereof cannot be extended to a private individual, it may be pointed out here that the point raised, no doubt, is of general public importance and 'therefore leave has already been granted by this Court in the case of The State through Prosecutor-General National Accountability Bureau, Islamabad v. Nasim ur Rehman and others 2004 SCMR 1943 to consider as to "what is the scope of NAB Ordinance in respect of an accused who was not holder of public office but had indulged himself into corruption and corrupt practices, being the beneficiary from the accused who .was holder of public office and was facing trial with other accused for the same charge? And the proposition would be answered appropriately in the said case yet, to the extent of the case in hand, it may be observed here that if an abettor or any other person can be charged, tried or convicted along with holder of a public office then if the principal offender is acquitted or proceedings against him are dropped under the NRO then as to why benefit thereof shall not be extended to the ordinary person because both sail in the same boat. This contention too, therefore, is without force.

P L D 2008 Supreme Court 703

Present: Mian Hamid Farooq and Sheikh Hakim Ali, JJ

MUHAMMAD ASHFAQ---Petitioner

Versus

MEMBER (REVENUE) BOARD OF REVENUE, PUNJAB, LAHORE and another---Respondents

Civil Petition No.242-L of 2005, decided on 16th July, 2008.

(On appeal from the judgment dated 1-12-2004 of the Punjab Service Tribunal Lahore passed in C.M.No.600 of 2004 in Appeal No.56 of 1991).

(a) Service Tribunals Act (LXX of 1973)---

----S. 4---Civil Servants Act (LXXI of 1973), S.2(b)---Constitution of Pakistan (1973), Art.212(3)---Appeal to Service Tribunal---Right of appeal has been given to a civil servant and there is no provision in Service Tribunals Act, 1973 to provide any remedy to his successors-in-­interest.

Muhammad Nawaz, Special Secretary, Cabinet Division, through his Legal Heirs v. Ministry of Finance, Government of Pakistan, through its Secretary, Ilamabd 1991 SCMR 1192 ref.

(b) Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Appeal to Service Tribunal---Limitation---Delay of 13 years---Condonation of---Incumbent upon a litigant to explain the delay of each and every day for not approaching the court of law within the prescribed period of limitation---Application filed by the petitioner, which otherwise, was not maintainable, being barred by 13 years, there was no sufficient cause to condone such delay---Service Tribunal, in circumstances, was right to refuse to condone the delay.

(c) Service Tribunals Act (LXX of 1973)---

----S. 4---Appeal to Service Tribunal--Appellant civil servant, died during pendency of his appeal, which had been filed against the order of his removal/dismissal from service---Service Tribunal was justified in law in passing the order of abatement of appeal in circumstances.

Muhammad Nawaz, Special Secretary, Cabinet Division, through his Legal Heirs v. Ministry of Finance, Government of Pakistan, through its Secretary, Ilamabd 1991 SCMR 1192 ref.

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

----Art. 212(3)---Petition for leave to appeal---No substantial question of law of public importance within the parameters of law being involved in the case and no case for grant of leave having been made out, petition for leave to appeal was declined.

Dr. Akmal Saleemi, Advocate Supreme Court for Petitioner.

Mian Abbas Ahmad, Addl. A.-G. for Respondents

Date of hearing: 16th July, 2008.

P L D 2008 Supreme Court 707

Present. Muhammad Akhtar Shabbir and Syed Sakhi Hussain Bokhari, JJ

LAHORE RACE CLUB through Secretary and others---Appellants

Versus

Raja KHUSHBAKHT-UR-REHMAN---Respondent

Civil Appeal No.820 of 2004, decided on 30th May, 2008.

(On appeal from the judgment of the Lahore High Court, Lahore dated 7-4-2003 passed in C.R.No.2596 of 2002).

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

----Ss. 152 & 9(3)---Rectification of Register of members, application for---Civil suit---Maintainability--High Court being the Court of "original jurisdiction" under the Companies Ordinance, 1984, is empowered under S.152 of the Ordinance to entertain the application for "correction/rectification of the register of members" in the first instance, and thereafter if it reached to the conclusion, by taking into consideration the application, reply thereto and the documents produced before it, that the matter is out of the purview of the summary procedure as provided under S.9(3) of the Ordinance, it may refer/advise the party to approach the Civil Court for resolution of the controversy in issue---Principles.

Messrs Ammonia Supplies Corporation Private Ltd. Messrs Modern Plastic Containers (Pvt) Ltd and others AIR 1994 Delhi 51; Hamid Hussain v. Government of West Pakistan and others 1974 SCMR 356; Sh. Mushtaq Ahmad v. Shaukat Soap Factory and others 1987 CLC 2079; Khurshid Ahmad Khan and another v. Pak Cycle Manufacturing Company Ltd. Shandara and 4 others PLD 1987 Lah. 1; Zakir Latif Ansar and another v. Pakistan Industrial Promoters Ltd. and 2 others 1988 CLC 1541; Syed Shafqat Hussain v. Registrar, Joint Stock Companies Lahore and others PLD 2001 Lah. 523; Messrs Sunrise Textile Limited and others v. Mashreq Bank PSC and others PLD 1996 Lah. 1; Brother Steel Mills Ltd. and others v. Mian Ilyas Miraj and 14 others PLD 1996 SC 543; .Black's Law Dictionary; Manzoor Ahmad Bhatti and 4 others v. Haji Noval Khan and 5 others 1986 CLC 2560; Zakir Latif Ansari and others v. Pakistan Industrial Promoters Ltd. and others 1988 CLC .154; Muhammad Hussain v. Dawood Flour Mills and others 2003 CLD 1429 and Messrs Ammonia Supplies Corporation (P) Ltd. v. Messrs Modern Plastic Containers (Pvt.) Ltd. and others AIR 1998 Delhi 3153 ref.

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

----Art. 175(2)---"Original civil jurisdiction of High Court"---Concept and connotation.

The term "original jurisdiction" means "jurisdiction in the first instance", jurisdiction to take cognizance of a cause at its inception, try it, and pass judgment upon the law and facts. "Original Jurisdiction" is the authority of a court to hear a case in the first instance, i.e., to function as a trial Court and the "Appellate Jurisdiction" is the authority of a court to hear a case that has first been decided by a lower Court. Jurisdiction of a court is never established by the court itself but by some authority external to it either in a Statute or the Constitution. "Original Civil Jurisdiction of a Court is such jurisdiction where it is empowered to entertain suits and such proceedings of civil nature which are initiated before the said court and entertained by it as a court of first instance and are decided by it. Sub-Article (2) of Article 175 of the Constitution enshrines the principle that, "No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or under any law". The jurisdiction can be conferred on any court including a High Court by a statute which may be provided for initiating the proceedings in that court as a court of first instance having power to entertain and decide it. Such Court will thus be vested with original jurisdiction. If it relates to civil disputes, it will be termed as "Original Civil Jurisdiction." It is also a common proposition that Statutes are promulgated conferring jurisdiction on the High Court to initiate proceedings as a court of first instance for purposes of exercise of jurisdiction.

Black's Law Dictionary ref.

Dr. Khalid Ranjha, Advocate Supreme Court for Appellants.

Sh. Slalahuddin, Advocate Supreme Court for Respondent.

P L D 2008 Supreme Court 716

Present: Muhammad Nawaz Abbasi, Ijaz-ul-Hassan Khan and Mian Hamid Farooq, JJ

MUHAMMAD SHAFIQ and others---Petitioners

Versus

ARIF HAMEED MEHAR and others---Respondents

Civil Petitions Nos.40 and 246 of 2008, decided on 14th April, 2008.

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

----Preamble---Constitution of Pakistan (1973), Art.184(3)---Environmental pollution---Arrangement of supply of clean water to the residents of Islamabad and disposal of waste and rubbish---General complaint that drinking water in Islamabad was polluted which was not up to the required standard and similarly due to other civic problems and cleanliness of the Capital City, .there was also complaint of environmental pollution,.--Held, Supreme Court,, in exercise of powers under..Art.184(3) of the Constitution, could not make arrangement for removal of filth from public places but could certainly issue directions to the Municipal Committees, Corporations and other concerned agencies in the federal and provincial governments to take necessary steps and adopt measures to stop environmental pollution---Concerned Secretaries in the Federal as well as Provincial Governments shall issue necessary directions to all concerned including public representatives in the local bodies in urban and rural areas to keep proper check and control on the environment problem by deputing special teams to inspect the local areas and take remedial steps and in case of any breach also initiate appropriate action in accordance with law---Compliance reports regarding steps taken and measures adopted by the Secretaries in the Federal and Provincial Governments shall be submitted to the Registrar of Supreme Court within 'a month for the perusal of the Supreme Court.

Amir Alam Khan, Advocate Supreme Court for Petitioners (in C.P.No.40 of 2008).

Shahram Sarwar Ch., Advocate Supreme Court for Respondent No.1 (in C.P.No.40 of 2008).

Kh. Muhammad Afzal, Advocate Supreme Court for Respondents Nos.3 & 7 (in C.P.No.40 of 2008).

Ms. Afshan Ghazanfar, A.A.G. Punjab, Arif Hameed, G.M. SNGPL, Abdul Rashid Lone, MD, SNGPL, 'M.Younas D.O. (Environment) and Khalid Kiani, Supdt. Establishment Division for Respondents Nos. 15 and 16 (in C.P.No.40 of 2008).

Humayun Gohar and Khawar Shahzad owners of Factories in person (in C.P.No.40 of 2008).

Raja Abdul Ghafoor, Advocate Supreme Court from CDA (in C.P.No.40 of 2008).

M. Maqsood Ahmed, DIR (W&S) (in C.P.No.40 of 2008).

Shahram Sarwar Ch., Advocate Supreme Court for Petitioner (in C.P.No.246 of 2008).

Khawaja Muhammad Afzal, Advocate Supreme Court along with Respondent No. 1 (in person) '(in C. P. No.246 of 2008).

Date of hearing: 14th April, 2008.

P L D 2008 Supreme Court 725

Present: Sayed Saeed Ashhad, Muhammad Akhtar Shabbir and Syed Sakhi Hussain Bokhari, JJ

MUHAMMAD SHARIF---Petitioner

Versus

MUHAMMAD RAFIQ and others---Respondents

Civil Petition No.1205-L of 2007, decided on 8th May, 2008.

(Against the judgment of the Lahore High Court, Bahawalpur Bench dated 7-5-2007 passed in W.P. No.567 of 1996).

Punjab Pre-emption Act (IX of 1991)---

----S. 35(1)---Pre-emption suit---Section 35, Punjab Pre-emption Act, 1991 clearly provides that all those suits which were instituted or pending between 1-8-1986 and 28-3-1990, shall be revived on the application of the `aggrieved person' within 60 days of coming into force of the Punjab Pre emption Act, 1991, meaning thereby, the law required pendency of the suits between the integral period i.e. 1-8-1986 to 28-3-1990, including the appeal---Neither the suit nor the appeal or any other proceedings, in the present case, were pending till the target date i.e. 28-3-1990---Those suits were liable to be revived or decided if the pre-emptor had established that he had made Talb-i-Ishad in the presence of two truthful witnesses but in the present case, the plaintiff had not asserted any such point in the plaint nor any issue was framed by the Trial Court nor any such evidence was produced by the plaintiff---High Court, in circumstances, was right to hold that application for revival of the suit was not maintainable as the right of "pre-emption" by the plaintiff had not been claimed under the Punjab Pre-emption Act, 1991---Principles.

Government of N.-W.F.P. through Secretary Law Department v. Malik Said Kamal Shah PLD 1986 SC 360; Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287; Sher Muhammad and another v. Allah Ditta and 2 others PLD 1988 SC 412; Zafarullah Khan v.. Muhammad Khan and others 1993 SCMR 696; Pervaiz Anjum Ghauri and another v. Abdul Rahim and 3 others 1995 SCMR 299; Muhammad Salam and others v. Wali Muhammad and others 1997 SCMR 108 and Nazir Ahmad and 2 others v. Faqir Muhammad 1996 CLC 658 ref.

Mrs. Fakhar-un-Nisa Khokahr, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 8th May, 2008.

P L D 2008 Supreme Court 730

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

Syed FAKHAR IMAM---Petitioner

Versus

CHIEF ELECTION COMMISSION OF PAKISTAN and others---respondents

Civil Petition No.398 of 2008, decided on 25th April, 2008.

(On appeal from the order dated 6-3-2008 of the Lahore High Court, Lahore passed in W.P. No.1891 of 2008).

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

----Ss. 103-AA & 52---Constitution of Pakistan (1973), Art.185(3)---Power of Election Commission to declare a poll void---Application by the `defeated candidate before Election Commission alleging therein corruption and corrupt practices in the polling---Complaint received by the Commission was not corroborated by any reliable material; evidence produced by the applicant and his witnesses was vague, sketchy and devoid of any substance to inspire confidence; applicant had failed to furnish full particulars with names, places and the time of alleged corrupt or illegal practices or of any other illegal act as alleged by him to get a verdict in his favour---Effect---Held, after the publication of the name of returned candidate in the official gazette the only remedy available to the applicant was to file an election petition as provided under S.52, Representation of the People Act, 1976 before the Election Tribunal appointed under S.57 of the said Act---Provision of S.52 of the Act was expressed in the negative form to exclude the jurisdiction of all other forums, including the Election Commission to call in question the validity of an election, by a contesting candidate for the election, except by an election petition to be presented to the Commissioner within forty five days of the publication in the official gazette of the returned candidate---Supreme Court declined to interfere and dismissed the petition for leave to appeal against the returned candidate.

Mir Ghalib Domki v. Election Commission of Pakistan and others PLD 2006 Kar. 314; Syed Saeed Hassan v. Pyar Ali and others PLD 1976 SC 6 and Agha Ghulam Ali v. Election Commission and others PLD 1991 Kar. 396 distinguished.

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

----Arts. 25 & 199---Representation of the People Act (LXXXV of 1976), S.52---Election dispute---Constitutional jurisdiction of High Court---Scope---High Court, under Art.199 of the Constitution cannot grant relief in view of Art.225 of the Constitution and S.52, Representation of the People Act, 1976.

Election Commission of Pakistan v Javed Hashmi PLD 1989 SC 396 ref.

Maqbool Ellahi Malik, Senior Advocate Supreme Court and Arshad Ali Ch. Advocate-on-Record for Petitioners.

Respondents Nos.2, 5 and 6 (in person).

Date of hearing: 25th April, 2008.

P L D 2008 Supreme Court 735

Present: Muhammad Nawaz Abbasi, Zia Perwez, Mian Hamid Farooq, Syed Zawwar Hussain Jaffery and Muhammad Farrukh Mahmud, JJ

Let. -Gen. (R) SALAHUDDIN TIRMIZI---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN---Respondent

Civil Petition No.331 of 2008, decided on 30th April, 2008.

(On Appeal from the judgment dated 14-3-2008 passed by Peshawar High Court in W.P.No.218 of 2008).

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

----Arts. 232, 233, 234, 235, 184(3), 185 & 199---Proclamation of Emergency---Judicial review---Scope---Contention that Executive Authority has absolute power and authority to judge the need of emergency and court due to the bar contained in the Constitution, has no jurisdiction to interfere in the matter, is not correct interpretation of law---Principles.

The constitutional bar of jurisdiction certainly does not permit the courts to dilate upon matter of the nature in which the courts are precluded to exercise jurisdiction, including the proclamation of emergency in the country by virtue of Articles 223 to 235 of the Constitution but notwithstanding the ouster clause, the superior courts in exercise of their power of judicial review, may examine the circumstances calling for justification of such action of the executives affecting the fundamental rights of people. The superior courts, in case of proclamation of emergency in the country in consequence to which Constitution is held in abeyance and is made inoperative, can also exercise power of judicial review which is inherent in the superior courts to examine the question regarding the existence of circumstances for justification of such extra constitutional action and State necessity.

The question as to whether an action taken in deviation to the Constitution, except for the sake of integrity and solidarity of the country and protection of the Constitution itself is justified, cannot be answered in affirmative in the normal circumstances and such an action is certainly subject to the judicial review of the superior courts. There may be a situation leading to the imposition of emergency in the country through extra-constitutional measures in which the constitutional machinery of State becomes inoperative but there is no concept of proclamation of emergency while Constitution is operative except in the manner as provided under Articles 232 to 235 of the Constitution and an extra constitutional action by an executive authority while the Constitution is operative, may have no legal and moral justification. The courts in such situation, being custodian of the constitution, must protect the Constitution and must not condone extra-constitutional action and permit impairing of the constitutional mandate except for the integrity of country or in case of external aggression against the State. There is a difference between the emergency under the Constitution and beyond the scope of constitutional provisions and also has different purposes and consequences therefore, "contention that the Executive authorities have absolute power and authority to judge the need of emergency and Court due to the bar contained in the Constitution, have no jurisdiction to interfere in the matter, is not correct interpretation of law.

(b) Jurisdiction---

---Power of court to adjudicate upon the matter of jurisdiction---Scope and extent.

Question of jurisdiction which is always a fundamental question must be decided at the initial stage of proceedings as it is the right of court to proceed with the litigation and this right must be determined at the first instance. The power of court to adjudicate upon the matter is linked with the territorial jurisdiction otherwise the judgment is treated to have been rendered illegally, without lawful authority due to lack of jurisdiction. The court possesses jurisdiction which is directly or indirectly, expressly or impliedly conferred upon it by the law and the Constitution but jurisdiction of the court vested under the Constitution cannot be abridged or enlarged through an ordinary legislation. The jurisdiction conferred on High Court under Article 199 of the Constitution may be territorial as well as inherent which cannot be construed in a manner to curtail the concept of jurisdiction only to the territorial boundaries. This is settled principle that jurisdiction cannot be conferred by consent or waiver if the court otherwise lacked jurisdiction to adjudicate and render judgment in a matter and at the same time it is also settled law that if the objection relating to the jurisdiction which was required to be taken at initial stage, was not raised at appropriate stage, there may be waiver or estoppel to the question of jurisdiction of the court at a later stage.

(c) Islamabad High Court (Establishment) Order (P.O. 7 of 2007)---

----Preamble---Constitution of Pakistan (1973), Arts.175 [as amended by Constitution (Amendment) Order (5 of 2007), Art.2] & 225---Election dispute---Islamabad High Court---Territorial jurisdiction---Extent---Order passed by Election Commission of Pakistan which functions at Islamabad in respect of the constituency of Province of N.-W.F.P., would be challengeable both before the Islamabad High Court and Peshawar High Court---Such concurrent jurisdiction is however, subject to the rule of propriety according to which a High Court having jurisdiction in a matter if has exercised such jurisdiction, the other High Court, which has also jurisdiction in the matter may restrain itself from exercising its jurisdiction---In the present case, propriety demanded that subsequent order passed by Election Commission of Pakistan should have been challenged before the Islamabad High Court and the jurisdiction of Peshawar High Court should have not been involved and said High Court also should not without determining the question of propriety exercise the jurisdiction--.Initially the respondent invoked the jurisdiction of Islamabad High Court against the order of Election Commission of Pakistan and subsequently, the order passed by Election Commission of Pakistan in post remand proceedings was challenged by the petitioner before the Peshawar High Court and question of jurisdiction was neither raised before Islamabad High Court nor before Peshawar High Court and since both the Courts had jurisdiction, therefore, the orders of Islamabad High Court as well as Peshawar High Court had been passed in exercise of lawful authority and objection in this behalf may have no significance---Principles detailed.

In the Federal System, Federating Units are independent in their affairs and similarly the public functionaries and authorities as well as Courts or Tribunals of exclusive jurisdiction conferred on them and powers vested in them by law and can exercise such powers and jurisdiction within their respective territory. Islamabad Capital territory is not a Province but has independent status in the Constitution and in Article 175 of the Constitution, the words "Islamabad Capital Territory" have been inserted by virtue of amendment made in the Constitution. The Islamabad High Court has been established- with status equal to that of the High Courts of Provinces under (Establishment) Order, 2008 (P.O. No.5 of 2008) wherein its territorial limits have been described as Islamabad Capital Territory, therefore, this Court .has territorial as well as inherent jurisdiction in all matters within the area of capital territory (Islamabad District) and the authorities functioning at Islamabad in connection with the affairs of Federation are subject to the jurisdiction of Islamabad High Court. The principal seat of Election Commission of Pakistan is at Islamabad with its Branches at Provincial Headquarters and the function of Election Commission of Pakistan is to manage and regulate the elections of Parliament (National Assembly and Senate), prepare electoral rolls for such elections with all other duties relating to election, therefore, the order passed by Election Commission of Pakistan in respect of constituency situated in a Province can conveniently be challenged before the Islamabad High Court. The expression "discharges function with in the territorial" would sufficiently indicate that an order passed by an authority which exercises jurisdiction within the boundaries of Capital Territory, is subject to the jurisdiction of Islamabad High Court. In the present case, Election commission of Pakistan while discharging functions in connection with the affairs of Federation within the territorial jurisdiction of Islamabad High Court passed an order in respect of a constituency of Province of N.-W.F.P., therefore, the objection relating to the jurisdiction and maintainability of writ petition before the Islamabad High Court, would be of no significance. In such situation, the order passed by the Election Commission of Pakistan which functions at Islamabad in respect of the constituency of Province of N.-W.F.P., would be challengeable both before the Islamabad High Court and Peshawar High Court. This concurrent jurisdiction is, however, subject to the rule of propriety according to which a High Court having jurisdiction in a matter if has exercised such jurisdiction, the other High Court which has also jurisdiction in the mater may restrain from exercising its jurisdiction. In view thereof, in the present case, the propriety demanded that subsequent order passed by Election Commission of Pakistan should have been challenged before the Islamabad High Court and the jurisdiction of Peshawar High Court should have not been invoked and said High Court also should not, without determining the question of propriety exercise the jurisdiction. Be that as it may, initially the respondent invoked the jurisdiction of Islamabad High Court against the order of Election Commission of Pakistan and subsequently, the order passed by Election Commission of Pakistan in post remand proceedings was challenged by .the petitioner before the Peshawar High Court and question of jurisdiction was neither raised before Islamabad High Court nor before Peshawar High Court and since both the Courts have concurrent jurisdiction, therefore, the orders of Islamabad High Court as well as Peshawar High Court have been passed in exercise of lawful authority and objection in this behalf may have no significance.

Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue PLD 1997 SC 334 ref.

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

----Ss. 103, 103AA & 52---Constitution of Pakistan (1973), Arts. 218, 219 & 225---Scope of Ss.103 & 103AA of the Representation of the People Act, 1976 and the power of Election Commission. of Pakistan to interfere in an election dispute in its supervisory jurisdiction and declaring the election in a constituency as whole or partially void to ensure that election must be conducted in just, fair, honest and transparent manner---Election Commission of Pakistan has such constitutional duty in terms of Arts. 218 & 219 subject to Art. 225 of the Constitution read with S.52 of the Representation of the People Act, 1976---Principles.

Aftab Shahban Mirani v. Muhammad Ibrahim Jatoi and others C. P. No.369 of 2008 ref.

(e) Constitution of Pakistan (1973)---

----Arts. 225 & 199---Election dispute---Scope of power of judicial review of the High Court under Art.199 of the Constitution---Such power of the High Court is confined to the extent of an order passed by election authority without lawful authority or it is coram non judice or mala fide and judicial review of the High Court cannot be enlarged to the cases relating to factual inquiry or in cases in which another view of the matter was also possible and if such view would have been taken it would not be illegal or unconstitutional---High Court is also not supposed to substitute its opinion on the question of fact with the opinion formed by election authority or a Tribunal of competent jurisdiction---Principles.

Ghulam Mustafa Jatoi v. Additional District and Sessions Judge 1994 SCMR 1299; Election Commission of Pakistan v. Javed Hashmi PLD 1989 SC 396 and Rao Sikandar Iqbal's case C.P.No.1 of 2008 ref.

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

----S. 103-AA---Power of Election Commission to declare a poll void---Where there was no factual controversy which would require the Election Commission of Pakistan for recording of evidence rather on the basis of report of District Returning Officer and the material provided by the Presiding Officer, the Election Commission formed opinion that the polling at two specific Polling Stations, could not be held in accordance with the law and consequently while exercising power as Tribunal on mixed question of law and facts had passed order quite in accordance with law, case would clearly fall within the purview of S.103-AA, Representation of the People Act, 1976 and the Election Commission of Pakistan had committed no error in exercise of its power in giving direction for re-poll at the said two Polling Stations.

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

----S. 103-AA---Power of Election Commission to declare poll void---Complaints/applications under S.103-AA of the Representation of the People Act, 1976 that due to land slide and blockade of roads the voters could not be able to exercise their right of franchise---Contents of such applications were duly verified by the concerned Engineer and the same were also received in the Office of Election Commission of Pakistan at Islamabad before the order was passed on complaint in respect of two other Polling Stations and Election Commission undertook the proceedings only on the said complaint about two Polling Stations---Held, the complaints received by the Election Commission in respect of road block and land slides had to be decided by the Election Commission of Pakistan along with the other application who should have passed an appropriate order in the interest of just, fair, honest and transparent elections in accordance with law---Non disposal of said complaints would reflect upon transparency and fairness of the election at the Polling Stations referred in the said complaints which might have also material effect on the free and fair election and ultimate result---Supreme Court directed the Election Commission of Pakistan to also consider the applications/complaints in respect of said Polling Stations after holding necessary inquiry and decide the same in accordance with law in exercise of powers under S.103-AA, Representation of the People Act, 1976 after hearing the parties.

Election Commission of Pakistan v. Javed Hashmi PLD 1989 SC 396; Ghulam Mustafa Jatoi v. Additional District & Sessions Judge 1994 SCMR 1299; Ayatullah Dr. Imran Liaquat Hussain v. Election Commission of Pakistan PLD 2005 SC 52; Abdul Majeed Khan v. District Returning Officer 2006 SCMR 1713; Ch. Muhammad Arif Hussain v. 'Rao Sikandar Iqbal and others Civil Petition No.1 of 2008; Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423; Muhammad Miskeen v. Government of Pakistan PLD 1993 AJK 1; Abdul Rahim v. Home Secretary PLD 1974 SC 109; Abdul Ghaffar Lakhani v. Federal Government of Pakistan PLD 1986 Karachi 525; Abdul Hafeez Pirzada v. Ghulam Ali Buledi 1991 CLC 2093; Shah Jehan v. Abdul Subhan Khan 1988 CLC 750; Mir Ghalib Domki v. Election Commission of Pakistan, Islamabad and 6 others PLD 2006 Karachi 314; Kanwar Khalid Younis v. Federation of Pakistan and other PLD 2002 Kar. 209; Yousaf Muneer Sheikh v. Election Commission of Pakistan 2005 CLC 123; Khurshid Mehmood Kasuri v. Returning Officer 1994 CLC 296; Abdul Hamid Khan Achakzai v. Election Commission of Pakistan, Islamabad and 24 others 1989 CLC 1833; Dr. Zahoor Mehdi v. Chief Election Commissioner, Islamabad and others PLD 2008 SC 22; Muhammad Miskeen v. Govt. of Pakistan PLD 1993 AJK 1; Flying Kraft Paper Mills (Pvt.) Ltd. Charsadda v. Central Board of Revenue, Islamabad 1997 SCMR 1874; Capt. (R) Iqbal Tikka Khan's PLD 2007 SC 6; S.A. Latif v. Nadir Khan PLD 1968 Lah. 144; Mir Said Muhammad and another v. Mir Chakar and 6 others PLD 1973 Quetta 35; Federation of Pakistan through Secretary General, Ministry of Defence v. Sqn. Ldr. (R) Mushtaq Ali Tahirkheli and another PLD 2003 SC 930; Muhammad Sadiq v. Nazar Muhammad and 3 others 1995 SCMR 906; Ch. Ghulam Nabi v. Mirza Javid Iqbal 1994 SCMR 1893; Faqir Muhammad v. Pakistan through Secretary, Ministry of Interior and Kashmir Affairs. Division, Islamabad 2000 SCMR 1312; Tikka Muhammad Iqbal Khan v. Pervez Musharraf PLD 2008 SC 178; Election Commission of India v. Saka Venkata Rao AIR 1953 SC India 210; K.S. Rashid & Son v. Income Tax Investigating Commission and others AIR 1954 SC India 207; Lt. Col. Khajoor Singh v. Union of India AIR 1961 SC India 532; Shriram Jhujhunwala v. The State of Bombay and others AIR 1962 SC India 670; Hira Lal Patni v. Sri Kali Nath AIR 1962 SC 199; Collector of Customs v. East India Commercial Co. Ltd. AIR 1963 SC 1124; Bahrein Petroleum Co. Ltd. v. P.J. Pappu and another AIR 1966 SC 634; American Jurisprudence Volumes 20 & 77 and Corpus Juris Secundum Vol. 21; Union of India v. Association for Democratic Reforms and another AIR 2002 SC 2112; Malik Manzoor Hussain v. Election Commission 2004 SCMR 672; Malik Javed Akhtar alias Javed Awan v. Returning Officer and 2 others 2004 YLR 1459; Mahmood Khan Achakzai and others v. Election Commission of Pakistan and others 2003 YLR 1413; Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue PLD 1997 SC 334 and Aftab Shahban Mirani v. Muhammad Ibrahim Jatoi and others C. P. No.369 of 2008 ref.

Dr. Babar Awan, Advocate Supreme Court, Ch. AkhtarAli, Advocate-on-Record and Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Petitioner.

Malik Muhammad Qayyum, AGP with Hafiz S.A. Rehman, Senior Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondent

Dates of hearing: 16th, 17th, 22nd, 23rd, 24th, 28th, 29th, and 30th April, 2008.

P L D 2008 Supreme Court 769

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

FAZALI REHMANI---Appellant

Versus

CHIEF MINISTER, N.-W.F.P., Peshawar and others---Respondents

Civil Appeal No.1346 of 2007, decided on 19th June, 2008.

(On appeal from the judgment dated 19-4-2007 in Service Appeal No.831 of 2005 passed by the N.-W.F.P. Service Tribunal, Peshawar).

(a) North-West Frontier Province Service Tribunals Act (I of 1974)---

----S. 4(b)(i)---Promotion---Eligibility for promotion of a civil servant though can be subjected to judicial scrutiny by the Service Tribunal as it relates to terms and conditions of a civil servant yet, the question of fitness of a civil servant for promotion is barred from its jurisdiction under S.4(b)(i) of North-West Frontier Province Service Tribunals Act, 1974---When a civil servant was eligible for promotion but was ignored and other eligible person was promoted then his appeal before the Service Tribunal would be competent, while in the present case, appellant (aggrieved civil servant) had failed to show that the promoted civil servant was ineligible for promotion---Service Tribunal, in circumstances had rightly declined to interfere---Eligibility for promotion' andfitness for promotion'---Distinction.

Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Muhammad Iqbal v. Executive District Officer (Revenue) 2007 SCMR 682; Syed Abdul Qadir Shah v. Government of Punjab 1972 SCMR 323; Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and others 1991 SCMR 1129 and Muhammad Akram and others v. The State and others 1996 SCMR 324 fol.

Muhammad Rehman Khan v. Chief Secretary, N.-W.F.P. and others 2004 PLC (C.S ) 62; Abdul Ghafoor, Supervisor/Inspector, NHA v. National Highway Authority and others 2002 SCMR 574 and Zafarullah Balcoh v. Government of Balochistan and others 2002 SCMR 1056 distinguished.

(b) Civil service---

----Promotion---Eligibility for promotion' andfitness for promotion' are distinct and separate from each other---Eligibility relates to the terms and conditions of service, whereas fitness for promotion is a subjective evaluation on the basis of objective criteria, where substitution for opinion of the competent authority is not possible by that of a tribunal or a court hence, neither eligibility to promotion can be equated with promotion nor prospects of promotion can be included in terms and conditions of service.'

(c) Civil service---

---Promotion---Consideration for promotion is a right yet, the promotion itself cannot be claimed as of right.

(d) Civil service---

---Promotion to grade 20---Necessity of training course at the National Institute of Public Administration---Exemption---Officers, who had served for one year as Head of NIPA/Specialized Training Institutions imparting training to officers in BPS-17 and above, are exempted from the training requirement of NIPA in view of Government of Pakistan Office memorandum No.10(5)91-CP-1, dated 8-5-1991.

(e) Civil service---

----Promotion---Non-selection posts and selection posts---Requirements---Where posts carrying basic pay scale 18 or below are non-selection posts, promotion to those posts is to be processed by Departmental Promotion Committees on the basis of seniority-cum-fitness, as per clause (1) of Heading II of the Guidelines for Departmental Promotion Committee/Central Selection Board (at p.234), SI.No.154, contained in the ESTACODE, 2000 (Edition), the posts in basic pay scale 19 or higher are selection posts and promotion to those posts are to be processed through the Central Selection Board---In order to ensure that selection by these Boards does not amount to a mere elimination of the unfit, clause 2 of the said Guidelines further provided that the Establishment Division must place larger panel of eligible officers before the Boards depending on the availability of eligible officers in a cadre---Clause 3 of the Guidelines required that for selection posts "quality and output of work" and "integrity" in all Annual Confidential Reports recorded on the civil servant during his service as an officer will also be quantified in accordance with formula given in Addendum to the Guidelines and those marks shall be a crucial factor in determining comparative merit of officers for promotion to selection posts.

(f) Civil service---

----Promotion---Post of pay scale 21---Requirements---Posts carrying basic pay scale 21, fall in senior management involving important policy-making or extensive administrative jurisdiction and therefore, in addition to the circulation value and variety of experience the incumbents must possess proven analytical competence, breadth of vision, emotional maturity and such other qualities as are required to determine the potential of successfully holding posts in top management and since the potential cannot be adjudged by mathematical formula, therefore, Selection Board is required to apply its collective wisdom to determine the same.

ESTACODE, 2000 Edn. Guidelines for Departmental Promotion, Cl. 6, at p.238 ref.

(g) Civil service---

----Promotion---Posts carrying basic pay scale 18 or below---Such promotion is to be made on the basis of seniority-cum-fitness, promotion in case of selection posts i.e. BPS-19 and above is to be made on the basis of "Fitness cum seniority" meaning thereby that in the earlier case i.e. BPS-18 and below, seniority would be considered first and fitness of the employee would be adjudged later, whereas, contrary thereto, in the case of selection posts i.e. BPS-19 and above, fitness of an employee would be adjudged first and the seniority would be considered later, for instance, if two equally fit employees are selected by the Board then senior amongst them would be given preference.

Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Muhammad Iqbal v. Executive District Officer (Revenue) 2007 SCMR 682; Syed Abdul Qadir Shah v. Government of Punjab 1972 SCMR 323; Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and others 1991 SCMR 1129; Muhammad Akram and others v. The State and others 1996 SCMR 324; Muhammad Rehman Khan v. Chief Secretary, N.-W.F.P. and others 2004 PLC (C.S.) 62; Abdul Ghafoor, Supervisor/Inspector, NHA v. National Highway Authority and others 2002 SCMR 574 and Zafarullah Balcoh v. Government of Balochistan and others 2002 SCMR 1056 ref.

(h) Civil Servants Act (LXXI of 1973)---

----S. 25(2)---Instructions contained in ESTACODE have the force and effect of rules, by virtue of S.25(2), Civil Servants Act, 1973.

Secretary to the Govt. Of the Punjab v. Abdul Hamid Arif and others 1991 SCMR 628 and Muhammad Yousaf and others v. Abdul Rashid and others 1996 SCMR 1297 fol.

Maazullah Barkandi, Advocate Supreme Court for Appellant.

Qaiser Rashid, Addl. A.G., N.W.F.P. for Respondents Nos.1-4.

Qazi M. Anwar, Senior Advocate Supreme Court for Respondent No.5.

Date of hearing: 19th June, 2008.

P L D 2008 Supreme Court 779

Present: Muhammad Nawaz Abbasi, Zia Perwez, Mian Hamid Farooq, Syed Zawar Hussain Jaffery, and Muhammad Farrukh Mahmud, JJ

AFTAB SHAHBAN MIRANI and others---Petitioners

Versus

MUHAMMAD IBRAHIM and others---Respondents

Civil Petitions Nos. 369 and 370 of 2008, decided on 30th April, 2008.

(On appeal from the judgment dated 28th March, 2008 passed by High Court of Sindh in C.Ps.D-454 and 455of 2008).

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

----Ss. 103, 103-AA, 52 & 9(2)---Constitution of Pakistan (1973), Arts.218, 219 & 199---Election dispute---Scope and extent of judicial review by High Court under Art.199 of the Constitution---High Court, in exercise of its power of judicial review, is not justified to interfere in the orders passed by Election Commission in the process to ensure fair and transparent election and substitute its own opinion for the opinion of Election Commission about the matter---Interference of the High Court in the order passed by Election Commission of Pakistan in discharge of its duty in terms of Arts. 218 and 219 of the Constitution read with Ss.103 & 103-AA of the Representation of the People Act, 1976 in the normal circumstances, is not justified---Principles.

Unless there are special reasons, the High Court, in exercise of its constitutional jurisdiction, should not interfere and adjudicate in election dispute. The extraordinary remedy of writ petition can be availed in election matters in exceptional circumstances in a case of grave illegality in which an aggrieved person has no other statutory remedy for redressal of his grievance. The law requires every statutory authority to act within the limits of law and if such an authority exceeds the limits of law or fails to function as per requirement of law and proceeds to pass an order beyond the scope of law and his authority, the High Court, under Article 199 of the Constitution, can declare such an order as without lawful authority and of no legal effect.

The above rule is subject to the exception that if the statutory authority, in exercise of jurisdiction within the limits of law, passes an order in discharge of its duty then an aggrieved person can avail alternate remedy before a forum established under the law against such order. The invoking of writ jurisdiction of High Court in such matter for mere reasons that the alternate remedy before the forum concerned cannot be availed for the time being, is not proper.

In election matters, the High Court can entertain a writ petition and exercise jurisdiction in exceptional circumstances if no other remedy is available to an aggrieved person. Jurisdiction of the High Court under Article 199 of the Constitution can certainly be invoked in exceptional cases but mere reason that for the time being no alternate remedy can be availed, is not, as such, a sufficient and valid ground to invoke constitutional jurisdiction of the High Court in a matter in which a constitutional forum or a statutory authority, in exercise of its jurisdiction, has passed a just and proper order. Mere availability of an alternate remedy may not preclude institution of a constitutional petition as the sub-constitutional law cannot limit or control the jurisdiction of the High Court under Article 199 of the Constitution and the superior Courts, ,,in exercise of constitutional jurisdiction, may set aside the action taken or orders passed in illegal and unlawful manner. The High Court in an election matter, may, in exercise of its jurisdiction under Article 199 of the Constitution, grant an appropriate relief if an aggrieved person, after exhausting sub-constitutional remedies available under the law, has questioned the legality of the order passed by an election authority on a legal question of constitutional importance.

The conduct of elections is exclusive function of Election Commission of Pakistan, a constitutional forum and this function is performed by the Commission as its constitutional duty under Articles 218 and 219 of the Constitution read with sections 103 and 103-AA of the Representation of the People Act, 1976, therefore, the High Court, in exercise of its power of judicial review under Article 199 of the Constitution, is not justified to interfere in the orders passed by the Election Commission in the process to ensure fair and transparent election and substitute its own opinion for the opinion of Commission about the matter.

The scope of interference of the High Court in its jurisdiction under Article 199 of the Constitution in election cases is limited only to the extent of matters which do not exclusively fall within the ambit of jurisdiction of Election Tribunals or Election Commission of Pakistan or in respect of the orders which are coram non judice, without jurisdiction or mala fide. The interference of the High Court in the orders passed by Election Commission of Pakistan in discharge of its duty in terms of Articles 218 and 219 of the Constitution read with sections 103 and 103-AA of the Representation of the People Act, 1976, in the normal circumstances, is not justified.

The perusal of complaint in the present case, reveals that petitioner sought interference of Commission mainly on the basis of following three grounds:--

(a) A day before the Election, Returning Officer transferred polling officers of 17 polling stations without permission of Election Commission and

(b) The ratio of vote on polling stations of katcha areas including women polling stations was unnatural.

(c) The polling staff was not available at certain polling stations which resulted in bogus voting of women on these polling stations.

The Election Commission of Pakistan, in the light of facts supplied by the petitioner in the complaint and the subsequent application moved by him as well as the reports obtained from the Returning and District Returning Officer and keeping in view the ratio of votes secured by the petitioner at 171 polling stations with large difference of ratio at disputed polling stations of katcha areas and other relevant material in support of the allegation of unfair and unjust election, proceeded to pass the order of re-poll at 18 polling stations to ensure the fair, just and honest election in accordance with law. The Returning Officer and the District Returning Officer have not controverted the transfer of polling staff at 17 polling stations, therefore, notwithstanding the fact that in the complaint, the details of only one polling station was supplied, the large scale of transfer of polling officers by the Returning Officer without information and knowledge of District Returning Officer or intimation of the Election Commission, was grave illegality. This is mandatory under section 9(2) of Act, 1976, that Returning Officer at least 15 days prior to the day of poll cannot change the polling staff without permission of the Commission and departure thereto, has serious consequence reflecting upon the transparent, fair, just and honest conduct of election which may impair the result. This is also noticeable that women polling staff was not provided at women polling station but still women votes were polled with the same ratio of the votes which were polled at male polling stations. The excuse for non-availability of women polling staff was that it was not possible for female to discharge duty in the area due to security reasons but at the same time without any scrutiny, women voters polled their votes and consequently, this contradiction would sufficiently suggest that at the women polling station bogus votes were polled in absence of women polling staff. In view of the transfer of polling staff one day before the poll and difference of the ratio of votes secured by the parties at 171 polling stations and at the polling stations of kacha area, where re-poll had been ordered, coupled with the fact that women polling staff was not available, would be the strong evidence and circumstances to show unfair and unjust election at certain polling stations of the constituency and change of result in artificial manner. In these circumstances, the Commission was neither required to record evidence nor hold a regular inquiry rather could conveniently proceed to declare the election void at these polling stations and direct for partial re-roll in discharge of its constitutional duty of holding transparent elections. In the light of the above features of the case, the High Court, in exercise of its constitutional jurisdiction, was not supposed to substitute its opinion with the opinion formed by Election Commission on the basis of material available before it and order passed by the Election Commission of Pakistan was neither suffering from any jurisdictional defect nor was coram non judice or mala fide to be justifiably interfered by the High Court in its constitutional jurisdiction.

The order passed by the Election Commission, in exercise of its constitutional jurisdiction and statutory discretion being not suffering from any legal defect, was not questionable before the High Court in writ petition. The mere reason that in the circumstances of the case, the Election Commission could also take a different view of the matter and direct the petitioner to avail remedy of election petition under section 52 of the Act was not a valid and legal ground to interfere in the order of Commission in the writ jurisdiction.

Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer N.A. 158 Noshero Feroz and others 1994 SCMR 1299; Election Commisison of Pakistan v. Javed Hashmi PLD 1989 SC 396; Rao Sikandar Iqbal's case C.P. No.1 of 2008 and Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423 fol.

Ghulam Mustafa Jatoi v. Additional District and Sessions Judge 1994 SCMR 1299; Rao Sikandar Iqbal C.P.No. 1 of 2008; Faqir Abdul Majid Khan v. District Returning Officer and others 2006 SCMR. 1713; Mir Ghalib Domki v. Election Commission of Pakistan Islamabad and 6 others PLD 2006 Kar. 314; Attique Ahmed Kamal v. The State 2004 SCMR 313; Bhartha Ram v. Lala Meher Lal and another 1995 SCMR 684; In re: Ahad Yusuf 1986 CLC 1284; Yousuf Munir Sheikh v. Election Commission of Pakistan 2005 CLC 123; Syed Saeed Hussain v. Pyar Ali PLD 1976 SC 6; Messrs Gadoon Textile Milts and 814 others v. WAPDA and others 1997 SCMR 641; Watan Party through President v. Federation of Pakistan and others PLD 2006 SC 697; Council of Civil Service Unions and others v. Minister for the Civil Service [1984] 3 All ER 935; Muhammad Mubeen-ul-Islam v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; Election Commission of Pakistan v. Javed Hashmi PLD 1989 SC 396; Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 and Abdul Hamid Khan Achakzai v. Election Commission of Pakistan 1989 CLC 1833 ref.

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

----Ss. 103, 103-AA & 52---Constitution of Pakistan (1973), Arts. 225, 218(3) & 219---Power of Election Commission of Pakistan under Ss.103 and 103-AA of the Representation of the People Act, 1976 and interpretation of said provisions in the light of Art.225 read with Arts.218(3) and 219 of the Constitution and S.52 of the Representation of the People Act, 1976, Chapter X as well as Ss.103 and 103-AA of the Representation of the People Act, 1976 are entirely independent to S.52 of the said Act and Election Commission of Pakistan before or after issuance of notification of result of election, may exercise jurisdiction to entertain a complaint on the grounds mentioned therein and may continue to exercise the power within 60 days after official announcement of result of election whereas an election petition can be filed within 45 days of the publication of notification of result and election petitioner can take all these grounds which were taken in the application under S.103-AA of the Representation of the People Act, 1976 before the Election Commission and thus jurisdiction of Election Commission to some extent is concurrent with the Tribunal without any conflict---Principles.

The plain reading of section 103 read with section 103-AA of Representation of the People Act, 1976 would show that Election Commission of Pakistan on the complaint lodged by a candidate or his agent or polling staff or any other person, if finds that in the situation mentioned therein, it would not be possible to ensure fair, just and transparent election in a constituency as a whole or at a particular polling station, may, after holding summary inquiry, declare election in the constituency as a whole void and direct for re-poll in the constituency and if such a situation is confined only to the extent of some of the polling stations, may direct re-poll at these polling stations. The power of election Commission of Pakistan under section 103-AA is entirely independent to the power to be exercised in an election petition by the election tribunal established under section 52 of Act, 1976, in terms of Article 225 of the Constitution, therefore, the contention that power of the Commission under sections 103 and 103-AA of Representation of the People Act,. 1976 is subject to Chapter VII of the said Act as "the Commission by virtue of subsection (3) of section 103-AA of Act, 1976 has to perform its functions as Tribunal, has no substance. The Commission, despite having been declared as Tribunal under section 103-AA(3) of the Act, is empowered to adopt any procedure in the proceedings of summary inquiry before it and is not bound to follow the procedure of Tribunal or record the evidence and hold a ,regular inquiry. The additional power of Tribunal given to the Commission under subsection (3) of section 103-AA of the Act would not change the status, power and functions of the Commission.

Section 103-AA of the Representation of People Act, 1976 empowers the Commission to declare the election void if there is a grave violation of the provisions of Act or rules and if Commission comes to the conclusion that due to such violation election was materially affected and disturbed, may pass order of re-poll in whole of the constituency or at one or more polling stations as the case may be, in the interest of fair, honest and transparent election. The power of declaring the election partially void and re-polling at some polling stations, is included in the power of declaring election of a constituency as a whole void.

The careful examination of provisions of Ss.103 & 103-AA of the Representation of the People Act, 1976 in the light of Articles 218 and 219 of the Constitution would make it clear that the Commission with the view to discharge its constitutional duty to conduct the election honestly, fairly and justly in a transparent manner and in accordance with law has been empowered to declare the elections in the constituency as a whole void or at one or more polling stations if the circumstances so warrant. This power is exercisable by the Commission within 60 days from the date of publication of the name of returned candidate in the official notification whereas the limitation for filing election petition under section 52 of the Act is 45 days from the date of publication of the notification of result, therefore, there is no conflict between the two provisions. The Commission under section 103 can pass an appropriate order to ensure fair, just and transparent elections during the process of election and under section 103-AA if the Election Commission, after holding a summary, inquiry is satisfied that a grave illegality has been committed in the election which would be a source of impairing the result, may declare the election of the constituency as a whole void or of the specified polling stations as the case may be. The Commission while exercising the powers under section 103-AA(3) shall be deemed to be a Tribunal and may regulate its own procedure. The expression "shall be deemed to be Tribunal" authorizes the Commission to exercise power of a Tribunal with the choice of any procedure to be regulated by it but the procedure provided in Chapter VII of the Representation of the People Act, 1976, for the trial of election petition is not binding on the Commission. This may be noticed that the Commission has executory power under section 103-AA to discharge its functions under Articles 218(3) and 219 of the Constitution whereas in an election petition the election of a returned candidate, is challenged on the basis of ground of corrupt and illegal practice or illegal act alleged to have been committed. In election petition precise statement of facts, including the names of parties who allegedly were responsible for committing illegal acts and corrupt practice in the election with particulars of date, time and place and manner of commission of such illegal acts and corrupt practice, have to be essentially supplied and Election Tribunal on conclusion of trial, in exercise of its powers under section 67 of the Act, may dismiss the petition, declare the election of a return candidate void or declare any other candidate to have been elected or declare the election as a whole void whereas the Commission under section 103-AA of Representation of the People Act, 1976, without undertaking the exercise of adjudication of the complaint as an election petition or holding a regular inquiry, can declare election wholly or partially void in a constituency in case of grave illegality or violation of rules which is brought to its notice during the process of election. There is no bar for a defeated candidate to raise such a ground in the election petition but mere fact that the remedy of election petition' can be availed at a subsequent stage and ground of grave illegality and violation of rules which resulted in illegal and corrupt practices are also adjudicative before Election Tribunal in an election petition, may not debar the Election Commission to exercise powers under section 103-AA of the Representation of the People Act, 1976. The contention that if on the basis of ground mentioned in the application under section 103-AA, remedy of election petition can be availed, the Commission must not exercise the powers and interfere in the matter during the election, being beyond the wisdom of law, has no substance. The Election Commission of Pakistan in discharge of its constitutional duty has to make all arrangements for the elections of the National and Provincial Assemblies at all stages. The function of Election Commission before the start of election process is only of ministerial nature and after the start of process, it is the duty of Election Commission to ensure that the election is conducted honestly, justly, fairly and in accordance with law, therefore, the Commission has to take all necessary steps and measures to ensure that the election is transparent in all respects and if in the process of election any illegality is committed or violation of law or rules is brought to its notice which may have material effect on the result of the election, the Commission will certainly undo such illegal acts and violation of law or rules in the interest of fair election. The Commission may not necessarily entertain a complaint on the grounds which can be raised in the election petition but mere fact that the ground taken in an application under section 103-AA of Act, 1976, can be raised in the election petition, is not a valid reason to curtail or reduce the power of Commission to the extent of only issue instructions and guidance to the concerned authorities in the process of election. The narrow interpretation of the above provisions of law in respect of power of Election Commission would virtually render these provisions as redundant and defeat the very purpose of law. The power of the Commission is not confined only to the extent of ministerial and administrative job of election rather the Commission also has to ensure free, fair and transparent election in terms of Articles 218 and 219 of the Constitution and consequently, the provision of sections 103 and 103-AA have to be given effect in letter and spirit which empowers the Commission to supervise and ensure the conduct of election fairly, honestly, justly and in accordance with law. The different interpretation may render these provisions as redundant and such redundancy cannot be attributed to any provision of law rather in the wisdom of legislature in case of any conflict of two provisions, the rules of harmonious interpretation is followed.

The contention that the Election Commission, without holding proper inquiry, could not exercise powers under section 103-AA of the Act to declare the election of a constituency as a whole void and there is also no concept of partial declaration of election void, has no legal foundation. The Election Commission of Pakistan may exercise power under section 103-AA of the Act in the manner provided therein and not beyond that, but the plain reading of section 103-AA of the Act would show that meaning of expression "in the constituency void" is not only referable to the whole constituency rather its true import is election in the constituency as a whole or at one or more polling stations.

Chapter X as well as sections 103 and 103-AA of Representation of the People Act, 1976 are entirely independent to section 52 of the Act and the Commission before or after issue of notification of result of election, may exercise jurisdiction to entertain a complaint on the grounds mentioned therein and may continue to exercise the power within 60 days after official announcement of result of election whereas an election petition can be filed within 45 days of the publication of notification of result and election petitioner can take all these grounds which were taken in the application under section 103-AA of 1976 Act before the Election Commission and thus jurisdiction of Commission to some extent is concurrent with the Tribunal without any conflict.

The conclusive evidence and proof of facts regarding illegal and corrupt practices is not the requirement of law for exercise of powers by the Commission under section 103-AA of the Representation of the People Act, 1976 rather the Commission if on the basis of tentative assessment of the material available before it is satisfied regarding the correctness of the allegation, may pass such an order as is deemed proper in the circumstances of the case.

Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 and Abdul Hamid Khan Achakzai v. Election Commission of Pakistan 1989 CLC 1833 ref.

(c) Interpretation of Constitution---

----Conflict between the two provisions of the Constitution---Principle---Where there is conflict between the two provisions, the entire provisions of the Constitution are required to be red as a whole, and the basic features of the Constitution taken into consideration.

Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 ref.

(d) Interpretation of statutes---

----Conflict of two provisions---Principle--Redundancy cannot be attributed to any provision of law rather the wisdom of the legislature in case of 'any conflict of two provisions, the rule of harmonious interpretation is followed.

Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 ref.

(e) Constitution of Pakistan (1973)---

----Arts. 218, 219 & 199---Constitutional jurisdiction of High Court---Scope---Election Commission of Pakistan a high powered constitutional body exercises jurisdiction under the Constitution therefore, observation of the High Court in the judgment under its constitutional jurisdiction under Art.199 of the Constitution that "order passed by the Election Commission was capricious, mechanical and arbitrary", was uncalled for and not proper---High Court, no doubt can set aside the order passed by the Election Commission if it comes to the conclusion that order was illegal but care must be taken by using the language for such forum which exercises powers under the Constitution as judicial forum---Said expressions used in the judgment of the High Court are not used for such constitutional bodies and forums---Supreme Court, therefore, expunged the said observation made in the judgment of High Court.

Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in both cases).

Abdul Hafeez Pirzada, Senior Advocate Supreme Court assisted by Khawaja Shams-ul-Islam, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.1 (in both cases).

Malik Muhammad Qayyum, Attorney-General for Pakistan, Sardar M. Ghazi, D.A.G. and Haji Muhammad Rafi Siddiqui, Advocate -on-Record for the State (in both cases).

Dates of hearing: 16th, 17th, 22nd, 23rd, 24th, 28th, 29th and 30th April, 2008.

P L D 2008 Supreme Court (AJ&K) 6

Present: Muhammad Reaz Akhtar Chaudhary, C.J., and Khawaja Shahad Ahmed, J

MUHAMMAD YOUSAF and another---Appellants

Versus

TARIQ MAHMOOD and another---Respondents

Criminal Appeals Nos.7 and 8 of 2007, decided on 14th December, 2007.

(On appeals from the Judgment of the Shariat Court dated 22-2-2007 in Criminal Reference No.47 of 2004 and Criminal Appeal No.13 of 2005).

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

----S. 302---Reappraisal of evidence---Benefit of doubt---Counter­-version---Principles---Major contradictions existed among the eye-witnesses who were real brothers of deceased, regarding occurrence, which had created reasonable doubt---Story as narrated by all said eye-witnesses did not inspire confidence---Blood or bloodstained clay was not recovered from the place of occurrence and no inquest report or injury sheet was placed before the Court along with the challan---Such factor had created doubt regarding place of occurrence and the manner of occurrence---Important eye-witness in the case was not produced by the prosecution in support of the version, which clearly meant that prosecution was of the view that he would not support its version---On the very first day, a counter-version was pleaded by accused, and statement of Investigating Officer lent support to said counter-version---Investigating Officer was legally obliged to consider and probe into the said version, but that had not been done in the case, which had clearly revealed that the police had conducted investigation ex party---Police was bent upon to challan accused irrespective of the fact whether he committed the offence or not and the police was not going to consider any other version---Where a version had been adopted by accused; and it was not possible for the court to hold that the version given by accused was not absolutely false, then the benefit of doubt was to go to accused---Accused sustained injuries and was examined by the Doctor, which factors had created doubt regarding version of the prosecution---Even otherwise the version of prosecution was not proved by evidence of prosecution---Story narrated by the eye-witnesses did not find corroboration from the report of Fire-arms Expert---Story of prosecution was not free from doubt in circumstances---Prosecution having failed to prove case against accused beyond any doubt, sentence and conviction awarded to accused by the Trial Court and Shariat Court, were set aside and accused was set at liberty, in circumstances.

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

----S. 302---Reappraisal of evidence---Benefit of doubt---Counter­-version---Principles---Case was of two versions; one narrated by the prosecution, and other by defence/accused---Defence took the other version from the very beginning of the case---Court was obliged to put both the versions in juxtaposition and then ascertain which version was true, but nothing like such was done in the case---Version of defence was not declared false either by the police or by the lower courts, but same found support from the statements of the police officials---No reason was given as to why the defence version was not considered by the police or lower courts---Such fact had created doubt regarding version of the prosecution---When there were two conflicting versions before the court; one raised by the prosecution and other by the defence and both were probable, then one favouring the defence was to be preferred while appreciating the evidence---If the court found that there were two versions, then it would adjudge both the versions in juxtaposition to ensure which one was more plausible and nearer to truth on the basis of evidence on record, subject to qualification that onus of proof always retrained on the prosecution and benefit of doubt, if any, always would go to accused.

Noor Muhammad v. The State 1993 SCMR 208; Muhammad Sultan v. Muhammad Aslam and another 1988 SCMR 857; Ghulam Hussain v. The State PLD 1994 SC 31; The State v. Muhammad Abid and 4 others PLD 1997 Lah. 144; Muhammad Younas v. The State 1992 SCMR 1592; Furqan Hyder v. The State PLJ 1984 Cr.C. (Karachi) 316 and PLD 1959 SC 480 ref.

Abdul Majeed Mallick, Advocate for Appellants.

Muzaffar Ali Zaffar, Additional Advocate-General for the State.

Ch. Lal Hussain, Advocate for the Complainant.

Date of hearing: 30th October, 2007.

P L D 2008 Supreme Court (AJ&K) 22

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, Order dated 25th June, 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).

Islamic jurisprudence---

----Prophets---Muslims have firm belief that the Prophets cannot do any wrong or error.

P L D 2008 Supreme Court (AJ&K) 23

[Appellate Jurisdiction]

Present: Muhammad Reaz Akhtar Chaudhary; C. J. and Khawaja Shahad Ahmed, J

SHAMIM AKHTER---Petitioner

Versus

MAQBOOL HUSSAIN and others---Respondents

Criminal Revision Petition No.1 of 2007, decided on 23rd May, 2008.

(On appeal from the order of the Shariat Court dated 23-4-2007 in Criminal Revision Petitions Nos.58 and 59 of 2007).

Azad Jammu and Kashmir Shariat Court (Procedure) Rules, 1982---

----R. 22---Criminal Revision---Transfer of case from one place of sitting to another place of sitting by a Judge of Shariat Court---Validity---Rule 22 of the Azad Jammu and Kashmir Shariat Court (Procedure) Rules, 1982, had provided that ordinarily the case shall be heard at the principal seat of the Court unless otherwise directed by the Chief Justice, meaning thereby that the case could be heard at the other place of sitting only by the directive of the Chief Justice of the Shariat Court---Only Chief Justice of Shariat Court thus could transfer the case from one place of sitting to another place of sitting and a Judge of Shariat Court was not competent and authorized to do so, and he had wrongly transferred the case without any jurisdiction---Even otherwise, Judge of the Shariat Court after allowing the application of the petitioner for adjournment should have adjourned the case, but at the same time he accepted the application of the respondents for transfer of the case on the same day without providing an opportunity of hearing to the petitioner---Transfer application should have been disposed of after hearing both the parties and the petitioner could not be condemned unheard---Impugned order of Shariat Court was set aside in circumstances and revision petition was accepted accordingly.

Asghar Ali Malik for Petitioner.

Nemo for Respondents Nos. 1 to 3.

Raja Gul Majeed Khan, A.-G. for the State.

Date of hearing: 14th May, 2008.