PLJ 1970 Judgments

PLJ 2004 Cr PLJ 2004 Cr.C. ( Lahore ) 279 (DB) Present: raja muhammad sabir and muhammad sayeed akhtar, JJ. HAJI alias ZAFAR-Appellant versus STATE-Respondent Criminal Appeal No. 587 of 1998, heard on 8.12.2003. (i) Corroboration- —-Appreciation of evidence recovery-Validity-Occular account, medical evidence and motive set up by prosecution was further corroborated by recoveries of rifle which was sent to Forensic Science Laboratory and wedded with crime empties recovered from place of occurrence- Prosecution had proved its case beyond any shadow of doubt against accused-We were of considered view that trial Court had correctly assessed evidence while convicting accused. [P. 283] B (ii) Criminal Trial-- —- Pakistan Penal Code, 1860 (XLV of 1860), S. 302-Murder of wife-Accused having been convicted under Tazir he was awarded normal sentence of death sentence into life imprisonment for reason stated above has no force—Accused brutally killed his wife by firing twice in a broad day light near her house in presence of her mother and brother-No leniency could be shown to him so far as sentence was concerned-Appeal dismissed. [P. 285] C (iii) Pakistan Penal Code, 1860 (XLV of 1860)-- —-Ss. 302(b) -Appreciation of evidence-Related witness-No doubt PW had blood relation of deceased but their evidence could not be disbelieved on account of being closely related to deceased—They were natural witnesses of occurrence. [P. 283] A Sardar Muhammad Ramzan, Advocate for Appellant. Mr. A.H. Masood, Advocate for State. Date of hearing : 8.12.2003. judgment Raja Muhammad Sabir, J.--Haji alias Zafar was convicted by the learned Additional Sessions Judge, Toba Tek Singh under Section 302(b) PPC and sentenced to death and fine of Rs. 20,000/- in default whereof to undergo one year R.I.; which if recovered was directed to be paid to the legal heirs of the deceased Nawab Bibi under Section 544-A Cr.P.C. vide judgment dated 1.6.1998. He has challenged his conviction in this appeal whereas the learned trial Court has sent murder Reference No. 482/1998 for confirmation of death sentence. Both these matters are being disposed of through this judgment. 2. Brief facts of the case as gathered from the FIR Ex. PA are that husband of Mst. Bakhat Bhari complainant had died six months prior to the registration of the case. She was residing with her children in a house constructed in her land. On 12.5.1996 at about 4.00 P.m. Mst. Bakhat Bhari, her son Haqnawaz and son-in-law Noor Ahmad were sitting in the Courtyard of their house. Mst. Nawab Bibi deceased aged about 19/20 years was grazing the buffalos near the house. All of a sudden Haji alias Zafar accused armed with 7-MM rifle came there and fired at Nawab Bibi which hit her at her left humerus. The accused fired the second shot with 7-MM rifle which hit at the left side of back of her trunk whereupon she fell down Mst. Bakhat Bhari complainant, Haq Nawaz and Noor Ahmad, PWs witnessed the occurrence and rushed to attend Mst. Nawab Bibi who died at the spot. Haji alias Zafar brandishing the rifle fled away. The motive for the occurrence is stated to be that about 10 or 11 years prior to this incident, Sharai Nikah of Mst. Nawab Bibi deceased was performed with Haji alias Zafar accused and in lieu of watta sharai Nikah of brother of Mst. Nawab Bibi deceased was solemonized with Mst. Rajan Bibi sister of Haji alias Zafar accused. Due to some differences brother of Mst. Nawab Bibi deceased divorced sister of accused. However, accused did not divorce Mst. Nawab Bibi deceased and had been asserting that he would not divorce Mst. Nawab Bibi deceased and would make her to live as wife with him but this demand was not acceded to by the complainant party. Due to this grudge accused murdered Mst. Nawab Bibi. 3. After submission of the challan learned trial Court charge sheeted the accused to which he pleaded not guilty and claimed trial. The prosecution to prove its case examined as many as nine witnesses. Mst. Bakhat Bhari complainant appeared as PW-1 and reiterated the story of the FIR. Haq Nawab appeared as PW-2 and supported the complainant Mst Bakhat Bhari. Dr. Abdul Rauf Medical Officer THQ Hospital, Kamalia who conducted the post-mortem examination on the dead body of the deceased appeared as PW-3 and stated that Muhammad Tufail constable delivered to him injury statement Ex. PC and inquest report Ex. PD which bears his signatures alongwith endorsement Ex. PC/1. He found the following injuries on her person:-- 1. A lacerated wound 30 cm x 10 cm on the lateral side of left upper arm with all muscles clearly seen. 2. A contusion 7 cm x 2 cm on the right cheek. 3. Multiple contusion 4 cm x 4 cm on the right side of neck. 4. An abrasion 2 cm x 5 cm above the right shoulder. 5. A lacerated 1 cm x 1 cm entrance wound to the right of right breast. 6. A lacerated 1 cm x 1 cm entrance wound to the left of back of trunk. 7. Left index finger was anteriorly and laterally black. 8. A lacerated exit wound on the right side of trunk measuring 2 cmx 2.5 cm. In the opinion of the doctor death of the deceased occurred due to hemorrhage and shock. All the above mentioned injuries were sufficient to cause death in the ordinary course of nature. All the injuries were caused by fire-arm weapon and were ante mortem. Probable duration between the injuries and death was immediate and between death and post-mortem examination was about 12 to 18 hours. Ex. PE is the correct carbon copy of post-mortem report. Muhammad Tufail Constable No. 609 escorted the dead body of the deceased to the mortuary for autopsy appeared as PW-4. After post-mortem examination he produced before the Investigating Officer last worn clothes of the deceased qameez P-2, shalwar P-3, Dopatta P-4 and two sealed phials which he took into his possession vide memo Ex. PF. Muhammad Ishaque Revenue Patwari who prepared site-plan Ex. PG and its duplicate Ex. PG/1 appeared as PW-5. Muhammad Quresh MHC No. 603 who kept the parcels of blood stained earth, 7-MM rifle and live cartridges intact in the malkhana and delivered the same to Faqir Muhammad constable for their onward transmission to the office of Forensic Science Laboratory Lahore appeared as PW-6. Faqir Muhammad Constable No. 10 who delivered the aforesaid parcels to the offices of Chemical Examiner and Forensic Science Laboratory Lahore appeared as PW-7 khan Ameer SI who is a witness of recovery of 7-MM rifle and live cartridges P-6/1-4 taken into possession by the Investigating Officer vide memo Ex. PH appeared as PW-8. Mohri Khan Si/Investigating Officer appeared as PW-9. He stated that on 12.5.1996 he recorded FIR Ex. PA on the statement of Mst. Bakhat Bhari complainant. He proceeded to the place of occurrence, inspected the dead body of Mst. Nawab Bibi, prepared its injury statement Ex. PC and inquest report Ex. PD. He entrusted the dead body of the deceased to Muhammad Tufail Constable No. 606 for escorting the same to Civil Hospital Kamalia for autopsy. He took into possessed blood-stained earth and empty cartridges vide memo Ex. PB, prepared site-plan Ex. PI, recorded statements of Haq Nawaz and Noor PWs under Section 161 Cr.P.C. He collected last worn clothes of the deceased vide memo Ex.PF and completed the investigation. Learned APP after tendering in evidence reports of Chemical Examiner Ex. PJ, Serologist Ex. PK and that of Forensic Science Laboratory Ex PL closed the case for prosecution. 3. After the close of the prosecution evidence, statement of the accused under Section 342 Cr.P.C. was recorded and in answer to a question "why this case against you and why the PWs have deposed against you" he deposed that he wanted that Mst. Nawab Bibi deceased should perform conjugal rights with him. Similarly Mst. Nawab Bibi deceased was faithful to him and wanted to join him. In fact her mother and brothers coerced her to demand divorce from him but she refused to accede to their wishes. At the fateful time she was murdered by her brother Zafar as she insisted to join him and live with him as his wife. He neither opted to appear as his own witness under Section 340(2) Cr.P.C. nor produced any defence evidence. The learned trial Court after hearing the learned A.P.P. and the defence counsel convicted and sentenced the appellant in the terms stated above through impugned judgment. 4. Sardar Muhammad Ramzan learned counsel for the appellant contends that prosecution failed to prove case against him beyond reasonable doubt, prosecution evidence consists of interested witnesses and without corroboration is not sufficient to convict him on the capital charge. Deceased was faithful to him and wanted to appellant. Her mother and brothers pressed her to demand divorce from him but she refused to accede to their wishes. She was adamant to come in the house of the appellant and on her refusal to accept the demand of complainant, her brother killed her. He further argued that appellant is wall of the deceased, therefore, capital sentence could not be awarded to him in view of Section 308 PPC. He referred Khaliq-uz-Zaman v. Supreme Appellate Court Lahore and 4 others (PLD 1994 Supreme Court 885) in support of his contention. 5. Learned counsel for the State has supported the impugned judgment. 6. Heard. Record perused. We'have given our anxious consideration to the contentions raised by the learned counsel for the appellant and gone through the entire evidence with his assistance. The occurrence took place on 12.5.1998 at 4.00 p.m. in the presence of Mst. Bakht Bhari complainant PW-1. She was sitting with Haq Nawaz and Noor Ahmad in the Courtyard of her house, her daughter Mst. Nawab Bibi deceased was grazing buffaloes near the house. All of a sudden Zafar appellant emerged there, started firing with 7-MM rifle at the deceased which hit her on her left upper arm. His second shot hit her on the left back of her trunk. Haq Nawab ,PW-2 and Noor Ahmad (given up PW) witnessed the occurrence. Mst. Nawab Bibi after receiving fire-arm injuries fell on the ground and succumbed to the injuries. Accused brandishing rifle fled away from the place of occurrence. PW-1 has reiterated version set up in the FIR. She was cross-examined by the defence at length but nothing favourable could be achieved. Haq Nawaz PW-2 corroborated her testimony. The prosecution evidence is supported by the motive. Deceased was forced to live in the house of her parents. She was given in marriage in exchange and the sister of accused Mst. Rajan Bibi was divorced by son of the complainant. Accused did not divorce her and was insisting to take her back to his house. Complainant refused to accede to his desire and on account of said grudge the complainant's daughter was killed by the him. No doubt PW-1 is mother and PW-2 is brother of the deceased but their evidence cannot be disbelieved on account of being closely related to the deceased. They are natural witnesses of the occurrence. The place of occurrence is not disputed. Haq Nawaz and Mst. Bakht Bhari were in the house at the time of incident. Their evidence is corroborated by motive and medical evidence furnished by Dr. Abdul Rauf PW-3. The post-mortem of the deceased was conducted by PW-3 on 13.5.1998. He found lacerated wound of 30 cm x 10 cm on the lateral side of left upper arm with all muscles clearly seen. A contusion 7 cm x 2 cm on the right cheek. Multiple contusion 4 cm x 4 cm x 4 cm on right side of the neck. All the injuries were caused by fire-arm weapon and ante mortem. In his opinion the cause of death was due to hemorrhage and shock and the injuries suffered by her including fracture of L-l and L-2. Separation of liver and right lung was sufficient to cause death in the usual course of nature. 7. Ocular account, medical evidence and motive set up by the prosecution is further corroborated by the recoveries of rifle P-5 which was sent to Forensic Science Laboratory and wedded with the crime empties recovered from the place of occurrence. The prosecution has proved its case beyond any shadow of doubt against the accused. We are of the considered view that the trial Court has correctly assessed the evidence while convicting the accused. 8. Appellant is husband of deceased and has killed his wife. The Supreme Appellate Bench in the case of Khaliq-uz-Zaman (PLD 1994 Supreme Court 885) set aside the sentence of death and remanded the case holding that the deceased was the wife of offender and her daughter, namely, Ameena was horn out of the wedlock, she is alive and she is wall of the deceased and direct descendant of the offender. Offender could not be sentenced to death as Qisas under Section 302(a) PPC whereas the provisions of Section 306(c) PPC laid down that Qatal-e-amad committed by the husband of his wife leaving behind child/children is not liable to Qisas and the law has specifically provided punishment for Qatal-e-amad not liable to Qisas under Section 308 PPC which does not provide death penalty. By setting aside the conviction, the case was remanded. 9. The aforesaid judgment was reviewed by the Honourable Supreme Court in Faqir Ullah v. Khaliq-uz-Zaman and others (1999 SCMR 2203) on the petition of the complainant and the order was set aside restoring the death sentence awarded by the learned trial Court. The confusion of law has recently been removed by the Honourable Supreme Court in its judgment Muhammad Akram v. The State (2003 SCMR 855). The relevant observations at page 859 are as under:- "The next contention of the learned counsel for the petitioner related to the quantum of sentence. According to the learned counsel petitioner being Wall of the deceased would be entitled to the benefit of Section 308 PPC, therefore, the conviction and sentence of the petitioner under Section 302(b) PPC was illegal. In the alternative, learned counsel argued that in any case the immediate cause of occurrence being not known, it would not be a case of extreme penalty. The first contention of the learned counsel relating to the application of Section 308 PPC by virtue of Section 306 PPC is without any substance, Sections 306, 307 and 308 PPC would only attract in the cases of Qatl-i-Amd which are liable to Qisas under Section 302(a) PPC and not in the cases in which sentence for Qatl-i- Amd has been awarded as Tazir under Section 302(b) and (c) PPC. For the purpose of removing the confusion and misconception of law on the subject the above provision must be understood in the true spirit. Section 306 PPC provides that Qatl-i-Amd shall be liable to Qisas in certain cases mentioned therein and thus it is clear that in such cases the punishment of Qisas will remain inoperative but there is no such exception in a case of Qatl-i-Amd punishable as Tazir. Under Section 307 PPC the sentence of Qisas for Qatl-i-Amd cannot be enforced in the cases referred therein and therefore, the exceptions mentioned in Sections 306 and 307 PPC are confined only to the cases liable to Qisas and not Tazir. Under Section 308 PPC it is provided that where an offender .guilty of Qatl-i-Amd is not liable to Qisas in terms of Section 306 PPC, the sentence of Qisas will not be enforced against him as provided under Section 307 PPC, and he shall be liable to Diyat and may also be punished with imprisonment which may extend to a term of 14 years as Tazir. The above provision of law can be made applicable only if the essential conditions contained therein are available in a case which is liable to Qisas and not in the cases of Qatl-i-Amd as Tazir. The petitioner was tried for the charge of Qatl-i-Amd under Section 302(b) PPC and was convicted and sentenced to death as Tazir, therefore, he would not be entitled to the benefit 'of Section 308 PPC and was rightly punished under Section 302(b) PPC. It is not permissible to extend the benefit of provisions of Section 308 PPC in the cases of Qatl-i- Amd which are punishable under Sections 302(b) and (c) PPC as Tazir and therefore, the extension of such benefit to cases falling under Sections 302(a) and 302(b) PPC would amount to grant the licence of killing of innocent persons by their Walies. 10. The contention of the learned counsel for the appellant that he killed his own wife and being his Wali, the capital sentence could not be awarded per force of Section 307 read with Section 308 PPC has been answered by the Honorable Supreme Court in the afore-referred judgment. Appellant was convicted under Section 302(b) and not 302(a) PPC. Section 307 read with Section 308 PPC could only apply in a conviction recorded under Section 302(a) PPC. The accused having been convicted under Tazir he was awarded normal sentence of death for murder of his wife. Plea of appellant for conversion of his death sentence into life imprisonment for the reasons stated above has no force. He brutally killed his wife by firing twice in a broad day light near her house in presence of her mother and brother. No leniency can be shown to him so far as the sentence is concerned. The appeal has no merit and is dismissed.-The murder reference is answered in the affirmative. (A.A.K.) Appeal dismissed.

PLJ 2004 Cr PLJ 2004 Cr.C. ( Peshawar ) 345 [D.I. Khan Bench] Present: IJAZ-UL-HASSAN, J. MUHAMMAD RUSTAM-Petitioner versus STATE and another-Respondents Cr. Misc. Bail No. 529 of 2003, decided on 27.1.2004 (i) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497(1), Pakistan Penal Code, 1860 (XLV of 1860) read with S. 7 of Illicit Arms Act, 1991-Bail application-Prayer for-Reasonable ground-­ Accused was involved in a non-bailable offence-If reasonable ground for believing that accused was guilty of an offence punishable with death or imprisonment for life, accused would not be released on bail. [P. 347] A (ii) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497(2) Pakistan Penal Code, 1860 (XLV of 1860), S. 302 read with S. 7 of Illicit Arms Act, 1991-Bail-Prayer for-Case further inquiry-Court at any stage of investigation, inquiry or trial that there were no reasonable grounds but there were, sufficient grounds for further inquiry into his guilt-Accused would be released on bail. [P. 347] B (iii) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497(1), Pakistan Penal Code, 1860 (XLV of 1860) S. 302 read with S. 7 of Illicit Arms Act, 1991-Bail-Prayer for-Recovery of weapon and empties-Appreciation of evidence-Satisfaction of Court-Tentative assessment of Court-Evidentiary value of material-Court had only to see that accused was connected with commission of crime or not, only tentative assessment of evidence be was made and deeper appreciation was not called for-Court was to be satisfied that case was fit or not grant for bail with guide lines covering legal requirements-No doubt accused was not nominated in F.I.R. and unknown culprits were nominated for commission of offence that was true that complainant had sufficient material to connect accused with commission of crime-Pistol was recovered from accused-Report of microscopic examination revealed that empties recovered from site of offence were fired from recovered weapon- Bail dismissed. [Pp. 347 & 348] C, D & E Mr. Sanaullah Shamim Gandapur, Advocate for Petitioner. Mr. Muhammad Saleem Khan Gandapur, Advocate for State. Mr. Muhammad Karim Anjumn Qasuria, Advocate for Complainant. Date of hearing: 27.1.2004. ' . judgment By this order, I tend to dispose of bail application moved on behalf of Muhammad Rustam petitioner who stands involved in case FIR No. 31 dated 3.5.2003 registered under Section 302 PPC read with Section 7 of the Surrender of Illicit Arms Act, 1991 at Police Station, Kirri Khaisore, D.I. Khan, at the instance of complainant Abdul Manaf, brother of Ghulam Abbas deceased. 2. The prosecution story in brief is that on the night of 2.5.2003 complainant Abdul Manaf was asleep in his house. At about 2245 hours he heard the report of fire shots. The complainant and his brother Niaz Muhammad noticed that their brother Ghulam Abbas deceased was not present on the cot. They found that one of the doors of the adjoining shop was opened. They entered into the shop and found Ghulam Abbas lying there in injured condition, struggling for life. On inquiry as to who has attacked him, he could not make any reply. After some times the victim succumed to the injuries and expired. Two empties.of pistol were found inside the shop. An electric tube was flashing. Nobody was charged in the report and unknown culprit/culprits were nominated for the murder of Ghulam Abbas deceased. 3. During the investigation of the case, statements of Muhammad Yaqoob, brother of the petitioner and one Muhammad Arshad son of Juma Khan were got recorded under Section 164 Cr.P.C. on 3.5.2003. They charged the petitioner for the murder of Ghulam Abbas. 4. The petitioner was arrested from his house during raid on 4.5.2003. The petitioner moved applications before the forums below for the grant of bail which were declined vide orders dated 14.7.2003 and 30.7.2003 respectively, Hence, the instant application. 5. Mr. Sanaullah Shamim Gandapur, Advocate for the petitioner has pressed the plea of bail mainly on the ground that the petitioner is absolutely innocent and is a victim of a patently false charge, due to enmity with Muhammad Yaqoob, brother of the petitioner and Muhammad Arshad; that there is absolutely no evidence which could connect the petitioner with the commission of crime and that the Courts below had no valid reason to decline the concession of bail to the petitioner. He placed reliance on Ghulam Qadir. Vs. State PLD 1967 Peshawar 267 and Muhammad Hassan Vs. The State PLD 1982 Lahore 551. 6. As against this, Mr. Muhammad Salim Khan Gandapur,: Advocate for the State assisted by Mr. Muhammad Karim Anjum Qasuria, Advocate for the complainant opposed the bail application and maintained that sufficient material h«.G been collected by the prosecution which fully involve the petitioner in the commission of this crime and at bail granting stage, the material available on record is to be sifted through in order to establish whether prima facie the petitioner before the Court can be connected with the crime in question, and hence, no detailed inquiry is to be made by the Court. To substantiate the pleas, reliance was placed on Abdul Aziz petitioner Vs. Saleh Muhammad and another respondent 1990 SCMR 346 and Raza Mohsin Qazilbash and others Vs. Muhammad Usman Malik and another 1999 SCMR 1794. 7. I have heard the arguments and submissions of learned counsel for the parties at some length and have perused the record with their able, assistance. 8. To consider the bail matter of- an accused person involved in a non-bailable offence, if there appear reasonable grounds for believing that he is guilty of an offence punishable with death or imprisonment for life, he shall not bp released on bail unless case is covered by any of the provisions in sub-section (1) of Section 497 Cr.P.C. If it appears to the Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds but there are sufficient grounds for further inquiry into his guilt, the accused shall be released on bail under sub-section (2) of Section 497 Cr.P.C. The power conferred by Section 497 Cr.P.C. is not arbitrary power. It has to be exercised by reference to material placed before the Court and as to what that material should be. That material shall consist" of accusation made in the report to the police, nature and credential of evidence which the prosecution proposes to lead in the case and all other relevant circumstances surrounding the occurrence. The relevant circumstances including the evidence produced by the accused and bail has to be allowed or refused on the basis of this material. If follows that the Court has to make a tentative assessment in order to decide a bail application as the section does not in terms contain any restriction on the Court's power to assess the evidentiary value of the material produced before it. 9. It is a settled principle of law that at bail stage, the Court has only to see whether the accused was connected with the commission of crime or not. For that purpose, only tentative assessment of evidence is to be made and deeper appreciation is not called for. It is the mind of the Court which is to be satisfied r.hat the case under its consideration is fit case or not for grant to bail in line with guide lines covering legal requirements. 10. In the instant case, material on record tends to connect the petitioner with the offence. In my view to enlarge the petition in presence of this material would only be possible if I tentatively declare that this material is not enough to connect the petitioner with the offence. In my opinion, there is no such situation in the case. No doubt it is true that the petitioner is not named in the FIR and unknown culprit/culprits are nominated for the commission of offence but it is equally true that the prosecution in possession of sufficient material to connect the petitioner with the commission of crime. The petitioner was arrested on 4.5.2003 and a pistol was recovered from his possession. The empties recovered from the site of offence and the pistol were sent to Fire Arms Expert, Peshawar for opinion. The microscopic examination revealed that the empties were fired from the pistol in question. The case law cited by the learned counsel for the B D itioner has no relevance to the facts and circumstances of the case in ad. The same is distinguishable from the facts of the instant case. 11. Pursuant to above discussion, the bail application is dismissed ng devoid of merit and substance. 12. It may be observed that the findings arrived by this Court are itative in nature and would not influence the mind of the trial Court while :iding the guilt or innocence of the accused. .A.) Bail dismissed.

PLJ 2004 Cr PLJ 2004 Cr.C. ( Lahore ) 348 Present: SH. ABDUL RASHID, J. MANZOOR AHMAD-Petitioner versus STATE.-Respondent Crl. Misc. No. 4187/B of 2003, decided on 9.12.2003. ' . Criminal Procedure Code, 1898 (V of 1898)-- -S. 497-Pakistan Penal Code, 1860 (XLV of 1860), Ss. 302, 34, 109-Bail grant of-Prayer for-Further inquiry-Changed version of complainant- Petitioner found innocent in successive investigations and placed in Column No. 2 of challan-Principle-Opinion of the police is inadmissible but relevant for the purpose of bail and particularly, the report U/S. 173 Cr.P.C. on the basis of cognizance is assumed by the Court-Case is further inquiry-Bail granted. [P. 350] A & B Syed Afzal Haider, Advocate for Petitioner. Mr. Muhammad Mudassar Bodla, Advocate for State. Date of hearing : 9.12.2003. order This is bail after arrest application in case FIR No. 485/2002, dated 0.7.2002, under Sections 302/34/109 P.P.C. of Police Station Haveli Lakha, Ustrict Okara. 2. According to the prosecution allegations set up in the FIR lodged y Muhammad Iqbal complainant on 20.7.2002 Muhammad Ashraf brother f complainant alongwith Muhammad Khan had gone to the Dera of Riaz ihmad Bodla, where the complainant alongwith Imdad Hussain and Iftikhar ihamd P.Ws were present in connection with holding of a Punchayat At bout 11/12.00 noon Ibrahim co-accused armed rifle, Muhammad Ifrahim rmed with .12 bore gun and Manzoor Ahmad petitioner armed with rifle eached there on a motorcycle. Muhammad Ibrahim co-accused called out lalkara that Muhammad Ashraf and Muhammad Khan would not be spared and then he fired with his rifle hitting Muhammad Khan on his right arm, Muhammad Ifrahim co-accused fired with his gun hitting Muhammad Khan on his right thigh, upon which he fell down. Thereafter, Manzoor Ahmad petitioner fired at Muhammad^Ashraf hitting him on the margins of his belly and right thigh and thereafter Muhammad Ifrahim co-accused also fired at Muhammad Khan hitting him on face and neck. The complainant alongwith other P.Ws being scared kept standing at some distance. Muhammad Ashraf and Muhammad Khan expired at the spot and thereafter the petitioner and his co-accused made good their escape on the motorcycle raising lalkaras. The motive for the occurrence alleged in the FIR is that the complainant and Muhammad Khan deceased had land dispute with the petitioner, Muhammad Ibrahim and Muhammad Ifrahim co-accused and the litigation was pending before Civil Court, due to which grounds, the petitioner alongwith his two co-accused had committed the occurrence at the behest of the Binyamin, Zulfiqar and Muhammad Ahmad co-accused. 3. After registration of this case on 20.7.2002 the complainant then got recorded another statement on 22.7.2002 in which he implicated Riaz Ahmad and Muhammad Rafique as abettors of the offence on whose Dera this occurrence had been committed and thereafter, the complainant also got recorded another statement before DSP on 9.5.2003 in which he implicated Nazir, Ashraf and Zafar also for having instigated and abetted the occurrence. Imdad Hussain the brother of Muhammad Khan deceased had also filed a criminal complaint implicating 12 accused including the petitioner and thereafter the complainant has also filed a criminal complaint against 17 accused including the petitioner implicating them in the occurrence. 4. Learned counsel for the petitioner has argued that in this case the complainant has been changing his versions before the police at different stages and had been implicating and adding more accused and then subsequently in a complaint, had implicated as many as 17 accused, whereas, the brother of Muhammad Khan deceased had also filed a criminal complaint implicating 12 accused and all these facts reflect that the complainant's side has been changing versions and that the petitioner during successive police investigations carried out by Muhammad Zawar,' S.I, Muhammad Akram S.I./SHO, Muhammad Hanif,. DSP Headquarters, Mehmood Ahmad, S.I. CIA, Abdul Rahsid S.I. Investigations, Okara and Muhammad Younas Butt, DSP investigations, Okara, had been found innocent and in the report under Section 173 Cr.P.C. submitted by the State, the petitioner has been placed in Column No. 2 and thus, his case is a matter of further inquiry and he is entitled to the concession of bail. 5. Learned counsel for the complainant while opposing the petitioner's bail application has argued that the investigations carried out by the police officers merely constitute opinion and rather are in-admissible in evidence and that the complainant and other eye-witnesses have attributed positive role to the petitioners of firing with his rifle at Muhammad Ashraf deceased and the offence charged against him falls within the prohibitory clause and he is not entitled to the concession of bail. 6. The perusal of the record reveals that Muhammad Ashraf complainant in his FIR had implicated six accused and thereafter he got recorded his statement on 22.7.2002 in which he implicated Riaz Ahmad and Muhammad Rafique and again on 9.5.2003 he got recorded his third statement with DSP implicating Nazir, Ashraf and Zafar as accused as well. Subsequently, the complainant had also filed a criminal complaint regarding the same occurrence in which he implicated as many as 17 accused, while Imdad Hussain brother of Muhammad Khan deceased had filed a complaint regarding the same occurrence implicating 12 accused. All these facts show that the complainant has not been consistent in his allegations regarding the occurrence and the number of the accused. 7. The investigations in this case was first taken in hand by Muhammad Zawar, S.I. who vide his zimini dated 14.9.2002 had found that the petitioner was not present at the scene of occurrence and found him to be innocent. Secondly the investigations were taken in hand by Muhammad Akram, SI/SHO, who vide his zimini dated 19.9.2002 concurred with the findings of Muhammad Zawar SI and found the petitioner to be innocent. Thirdly, the investigations were taken up by Muhammad Hanif, DSP Headquarters, who vide his zimini dated 7.10.2002 also found the petitioner to be innocent. Fourthly, in the investigations conducted by Mehmood Ahmad, SI, CIA, Okara, the petitioner was also found to be innocent. Thereafter, Abdul Rashid, SI, Investigations, carried out investigations and vide his zimini dated 1.3.2003 he also found the petitioner to be innocent being not present at the scene of occurrence and finally Muhammad Younas Butt, DSP Investigations, Okara, vide his zimini dated 22.5.2003 also concurred with all the earlier findings and found the petitioner to be not present at the scene of occurrence and thereafter in the report under Section 173 Cr.P.C. the name of the petitioner had been placed in Column No. 2 of the Challan. No doubt, the. opinion of the police is in-admissible but it is relevant for the purpose of bail and particularly, the report under Section 173 Cr.P.C. on the basis of which cognizance is assumed by the Court, the placement of the accused in Column No. 2 is a relevant factor which as.held consistently by the superior Courts makes the case of the accused a matter of further inquiry. 8. The complainant successively changing his version implicating and adding number of accused and the petitioner found innocent in successive investigations and his name placed in Column No. 2 of the 5 challan, will make the case of the petitioner a matter of further inquiry, entitling him to the concession of bail. 9. In view of this circumstance, the petitioner is admitted to bail in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of the learned trial Court. (H.A.) Bail granted.

PLJ 2004 Cr PLJ 2004 Cr.Q. ( Lahore ) 351 (DB) Present: asif saeed khan khosa and C%. iftikhar hussain, JJ. RUSTAM ALI and another-Appellants versus STATE -Respondent Murder Reference No. 491 and Crl. Appeal No. 866 of 2000 of 2000 and Crl. Revision No. 608 of 2000, heard on 17.2.2004. (i) Administration of Justice-- —-Pakistan Penal Code, I860 (XLVpf 1860), S. 302/34--Murder--Benefit of doubt-Benefit of doubt howsoever slightly it may be, is to be given to the accused as the basic duty of the .prosecution to prove its case beyond any shadow of reasonable doubt and it is not for the defence to prove its innocence. [P. 358] I & 3 (ii) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 510-Pakistan Penal Code, 1860 (XLV of 1860) S. 302/34-Murder- Conviction and sentence of-Medical Evidence can at best be used to support the ocular testimony or any other incriminatory evidence of the type and for no other purpose-Ocular testimony is n'ot confidence inspiring or intrinsic worth, medical evidence could not be used to support the same. [P. 357] G (iii) Pakistan Penal Code, 1860 (XLV of 1860)-- —- S. 302/34 Criminal Procedure Code, 1898 (V of 1898) S. 544-A/4JO-- Murder-Conviction and sentence of-Appeal against-Occurrence was of midnight-Eye-witnesses were closely related to deceased and inter se were not residents of locality-No plausible justification for their presence on the spot-Delay of 5 days in lodging F.I.R.-No crime empty was found and no matching report of the expert is available on record-Accused acquitted-Appeal accepted. [Pp. 355, 356 & 357] A,- B, C, D, E, F & H Mr. Muhammad Saeed Ansari, Advocate for Appellants. Mr. Shehzad Saleem Khawaja, Advocate for State. Raja Altaf Hussain, Advocate for Complainant/Petitioner (in Crl. R. No. 608 of 2000). . Date of hearing : 17.2.2004. judgment Ch. Iftikhar Hussian, J.--Appellants Rustam Ali and Muhammad Akram were tried under Section 302 read with Section 34 PPC in case FIR No. 196 registered with Police Station Sambrial, District Sialkot on 28.06.1997 for on 23.06.1996 at 11:30 p.m. in the areas of Mauza Lopowali falling with the jurisdiction of the aforesaid police station, in furtherance of their common intention, committing the Qatal-e-Amd of deceased Shex Muhammad. 2. They on the conclusion of the trial were found guilty of that charge and so vide the judgment rendered on 31.05.2000 by Mr. Pervaiz Mehmood Mian, learned Additional Sessions Judge, Sialkot were convicted and sentenced as follows :-- (a) Rustam Ali. under Section 302 PPC read with Section 34 PPC to death subject to confirmation by this Court. (b) Muhammad Akram. Under Section 302(b) PPC to imprisonment for life as Ta'zir. They both were also directed to pay Rs. 50,000/- as compensation to the legal heirs of the deceased as under Section 544-A Cr.P.C. and in default thereof Rustam Ali to suffer six months RI and Muhammad Akram to further similar sentence. 3. They both feeling themselves aggrieved of their conviction and sentence have assailed the same by' way of the above-mentioned Criminal Appeal (No. 866 of 2000). 4. Complainant Khushi Muhammad has preferred Criminal Revision No. (608 of 2000) for enhancement in the sentence of appellant Muhammad Akram from imprisonment of life to death. 5. The Murder Reference mentioned above (No. 491 of 2000) was submitted to this Court under Section 374, Cr.P.C. by the learned trial Court for confirmation of sentence of death of appellant Rustam Ali. 6. As all these three matters essentially have arisen out of one and the same case and under common set of facts, hence are being disposed of by this single judgment. 7. The facts in detail stand incorporated in the impugned judgment recorded by the learned trial Court and also the paper book. Hence, we avoid to burden this judgment/record unnecessarily by repeating all those here. 8. However, the facts in brief and strictly relevant for the disposal of these matters are that on 28.6.1997 at about 12:00 noon at Chowk Masjid, More, Sambrial complainant Khushi Muhammad made application Ex. PA to the SHO of the said police station. The same is to the effect that he resides in Korowal and a cultivator. On 23.06.1997 at about 11:30 p.m. he, his nephew Falak Sher and relative Abdul Majeed, who is resident of Doulo- Bheelo went to Sher Muhammad from the house for an urgent work, who was sleeping in the field at Lopowali. As soon as they reached there, they saw two men standing near his cot. He was baseeching them not to kill him. Rustam Ali and Muhammad Akram accused, when saw them, Rustam Ali hurriedly fired with carbine at Sher Muhammad, which hit him at this mouth and he was wounded. They tried to apprehend them and there upon Muhammad Akram fired with .12 bore rifle at Sher Muhammad, which hit his right bicept, who then was seriously wounded. He and his companions fully identified the accused in the moonlight. The accused threatened them to kill in case they stepped forward and fled away. The motive behind the occurrence is that a day or two earlier to that the accused had fired two shots near his house and that of his brother, and his brother had asked them that as to why they had fired. The accused du'e the same were infuriated and have committed that act over the same. They carried his brother Sher Muhammad to Civil Hospital , Sialkot . The doctor gave them his Medical Legal Report and referred him to Mayo Hospital , Lahore due to his precarious condition. The Punchayat had been making efforts in the village for compromise and that is why they did not report the matter to the police.- 9. The appellants after the investigation were challaned to the Court. They were formally charged under Section 302 read with Section 34 PPC. They pleaded not guilty to the charge. 10. The prosecution at their trial produced it's 14 witnesses besides the report Ex. PO of the Chemical Examiner and that of the Serologist Ex PP and Forensic Science Laboratory Ex. PQ. 11. They in their examination under Section 342 Cr.P.C. denied the allegation appearing against them in the prosecution evidence and also the recover of crime weapon from them. Their plea is almost similar to each other. Appellant Rustam Ali, in reply to the question that as to why this case is against him and why the PWs have deposed against him has stated as follows: "Infact the present occurrence, took place unseen by anybody at odd hours of right and there were as many as four other persons present at the said Dera on the night of occurrence when the deceased was shot at by robbers/dacoits, when the deceased resisted, on the pilferage of water-melon. Tassadaq Hussain, Afzal Khan, Liaqat Ghumman, Jehan Khan and a number of others told the complainant at about 05:30 a.m. on the ensuring morning that the deceased was lying injured in the water-melon filed and on receipt of that information, the complainant attended to the deceased. The complainant did not lodge report for abour two weeks for the reason that no one knew the culprits, and he consumed all this time deliberating and discussing with his partymen, counseling then as to who implicate in this incident and thereafter the complainant lodged a false case implicating me and my co-accused falsely. After the occurrence, some of the aforesaid persons had visited the deceased in the hospital and on their inquiiy, the deceased had gestured them that he did not know in the darkness as to who were his assailants. One Bashir Ahmad son of Ahmad Din was also amongst the aforesaid persons at that time. The aforesaid persons also appeared before the Investigating Officer and made their statements. None of the eye-witness was present at the time of occurrence. I was present in my sister's house in village Muzaffarpur, Tehsil and District Sialkot at the night of occurrence. Even the motive as set out by the prosecution is false one and has been introduced just to create and evidence and to implicate us in this false case. The PWs have made false statement against us." 12. They have produced six witnesses in their defence. However, they themselves did not depose in disproof of the allegation appearing against them in the prosecution evidence as envisaged by Section 340(2) Cr.P.C. 13. The learned trial Court after hearing the parties came to the conclusion that the prosecution case against them stood proved to the hilt and it with the same has convicted and sentenced them as stated above. .14. It has been argued on their behalf that the eye-witnesses are related inter se and to the deceased; that they were chance witnesses; that they have not at all explained convincingly the cause of their presence at the spot at the relevant time while in the facts and circumstances of the case their presence at the place of occurrence at time was highly improbable and so they could not be relied upon; that such hypothesis is strengthened by the fact that there is at least five days in ordinate delay in lodging the FIR Ex. PA and the explanation furnished for the same is highly unsatisfactory or unreasonable and so the same was not acceptable that this great delay in lodging the FIR in such like matter is fatal to the prosecution and the same heavily suggests that the complainant party did not known the assailants and they had been making consultations and deliberations to rope in some one and unfortunately they have chosen them for the purpose due to suspicion; that recovery of crime weapons from them was inconsequential as no crime-empty was recovered from the spot and no matching report of the expert was available to the prosecution to authenticate the alleged recovery from them; that the stand of the complainant' as regards the motive at the trial is contradictory to one taken by him initially in the FIR EX. PA; that the same even otherwise is not convincing and the same has remained unproved on the record; that in such circumstances the medical evidence was of no avail to the prosecution; and that in any case the prosecution has failed to bring home the guilt to them beyond any shadow of reasonable doubt. 15. As against the same, the learned.State counsel assisted by the learned counsel for the complainant has supported the impugned judgment saying that the ocular account furnished by the prosecution supported by the medical evidence, that of the recovery of crime weapons from the appellants, the motive has fully brought home the guilt to them beyond any shadow of reasonable doubt and so they have rightly been convicted and sentenced. 16. However, the learned counsel for the complainant has submitted that the part played by appellant Muhammad Akram during the incident has equally contributed towards the death of the deceased and so he too deserved the capital punishment but he without any good reason has been awarded lesser penalty. He has requested that his sentence may be enhanced 'from imprisonment for life to death. 17. We have carefully considered the submissions made by both the sides with the help of available record. 18. The prosecution's ocular account has been rendered by the complainant Khushi Muhammad (PW-1) and Abdul Majeed (PW-2). The former is the real brother of the deceased and the latter his close relative. One sister of the latter is married to the complainant's another brother namely Aslam and the other to his nephew Falak Sher. So, they are closely related inter se arid to the deceased. 19. The incident allegedly had taken place in the field of watermelon at Lopowali. According to Khushi Muhammad, the deceased had purchased the said crop 15/16 days prior to the occurrence. It is their stance that the deceased was there at that time. 20. Khushi Muhammad as per his showing is the resident of Korowal. The said place according to him is at a distance of 2/ 2-1/2 Kilometers from the place of occurrence. So, he was not resident of that place and rather of another one. Similarly Abdul Majid PW is the resident of village Doulo-Bheelo. The same according to him is at a distance of abut 3- 1/2--4 kilometers. He too, thus was not the resident of the place of occurrence or close to it and rather to a distant place. So they both definitely were the chance witnesses. In the case of Nawaz etc. v. The State (NLR 1991 AC 248 Lahore (DB), chance witness has been described/defined as one, who has no plausible explanation for his presence near place of occurrence at time of commission of offence. B 21. Khushi Muhammad in FIR Ex. P-A has mentioned the cause of their visit to the deceased on the fateful night as an "urgent work".' The similar was his stance at the trial. He has not at all explained that what was that "urgent work" of their's with the deceased. 22. Abdul Majeed has not at all said anything in his statement about the cause of their visit to the deceased. The same, thus, has remained hidden in darkness. This has not at all become clear on the record. So, it appears that had they no "urgent work" at all with him at those late hours of the night. Had it been so, they then definitely could have disclosed it or made known but they had not been done so. • The cause of their presence at the spot at the relevant time, therefore, has remained unexplained satisfactorily or convincingly. They in the ordinary course of business had no occasion to visit him at those late hours of the night, if at all for the- sake of arguments, he was there. Their presence, therefore, at that place at the time of commission of the offence was highly improbable or doubtful. It, therefore, was not at all safe to place reliance upon their testimony. • 23. This view is further strengthened by the factum of the delay in lodging the FIR EX. P-A. The incident allegedly had taken place on 23.06.1997 at about 11:30 p.m.. The report regarding the same was made to the police on 28.06.1997 at about 12:00 noon as mentioned above. This, thus was about five days after the incident. This is great delay in lodging the J) report with the police in the incident of the type. This much delay definitely is fatal to the prosecution case. 24. Khushi Muhammad has stated that the deceased after the incident was taken to Civil Hospital , Sialkot , where the doctor referred him to Mayo Hospital , Lahore and they then took him to Lahore . He by saying so has tried to explain the delay in lodging the FIR but the same seems not reasonable or satisfactory. The deceased, if was firstly removed to the Civil Hospital, Sialkot, then the doctor, who had attended him there could have informed the police about the same as it was a police case. Not only the doctor but also the other staff, who had attend him there, could do so. It rather was their duty to have done so. It but was not done so. 25. It is also important to note that the complainant, if was busy in attending his deceased brother, then anybody £lse from his family or at least his nephew Falak Sher, who allegedly was with him at the time of incident, could inform the police about the same but this too was not done. This shows that it perhaps was because of the fact that the occurrence was of the night and that too in an open field and, hence un-witnessed. The witnesses belonged not to that place and rather to a distant place. They in ordinary the course of events had no business or occasion to be there at that time and so seemingly were not present there and had not seen the occurrence themselves. They on coming to know of the same appeared to had -been making deliberations to nominate .some one in the F.I.R. as accused and, hence this much time had been consumed by them in lodging the same..' 26. It is worth mentioning here that the complainant has also mentioned the story of the efforts of Punchayat in the village for compromise in the F.I.R. Ex. P-A. He but has not stated so at the trial. The story of Punchayat's efforts, thus seemingly is made up one. It is not at all confidence inspiring because as per his showing, the deceased was seriously wounded and the doctor at Civil Hospital , Sialkot had referred him to Mayo Hospital , ^ Lahore due to his such condition. In such situation, their withholding the report to the police to await the efforts of Punchayat rings not with truth. 27. Hence, the inordinate delay of five days in lodging the report to the police has remained unexplained satisfactorily on the record. The same is F fatal to the prosecution as said above. This shows that perhaps it was an unseen occurrence and the culprits were not known and the complainant party had been making deliberations to nominate someone in the case as said above. This delay in a heavy suspicious circumstance qua the truth in the story of the eye-witnesses regarding the culpability of the two appellants in the matter to much extent. This has left room to entertain doubt qua the question of their culpability in the matter. We,-therefore, are not prepared to believe the eye-witnesses. The learned trial Court, therefore, has wrongly placed reliance upon their testimony. The same, therefore, is discarded. 28. The medical evidence can at best be used to support the ocular testimony or any other incriminatory evidence of the type and for no other „ purpose. The ocular testimony in this case, when is not confidence inspiring or with intrinsic worth, the same, therefore, could not be used to support the same. Hence, no further discussion seems needed in respect of the same. 29. The recovery of crime weapon .12 bore carbine P-5 from appellant Rustam Ali and gun P-7 on the pointation . of appellant Muhammad is inconsequential in this case as admittedly no crime empty was found from the spot and no matching report of the expert is available to the prosecution to offer in this case. The same, therefore, was liable to be kept out of consideration. The learned trial Court has wrongly relied upon the same. 30. The motive set up by Khushi Muhammad complainant initially in Ex. P-A was that a day or two earlier to the incident, the appellants had fired at his house and that of the deceased and the appellants on the asking, of the deceased that as to why they have done so, were infuriated and over the same they had committed the act. There is inconsistently in his this stand as well mentioned by him at the trial than the one in the EX. P-A. In the Ex. P-A, he has mentioned that such incident had taken place one or two days prior to the occurrence. He but at the trial has mentioned that it was three days prior to the same. There is lot of difference in one or two days and three days in this context. So, this witness is not certain that when that H incident had taken place. There, thus arises doubt that if it had taken place or not. 31. Here it may be mentioned that benefit of every doubt, howsoever, slightly it may be is to be given to the accused. 32. Not only this, b - 4 it also interesting to note that he at the trial had also introduced another motive .and the same is that the deceased had purchased 04 Marias of land from one Muhammad Sharif in the village Abadi and the appellants had threatened him over the same. This motive was never mentioned by him in the FIR. Ex-PA. So, due to this variation in his stand in respect of the motive at the trial than the one mentioned by him in the F.I.R. Ex-PA. makes one to think that what was the actual and that which of the two has played as the actual motive. It if was the incident of firing at the house of the deceased and the witness or the purchase of land by the deceased and the annoyance of the appellants over the same. Anyhow, this question has remained unclear or not answered convincingly on the record. It has remained hidden or not, clearly brought on the record. The motive, therefore, has remained unproved on the record. The same, therefore, could not be used to corroborate the eye-witnesses. 33. We, therefore, have been persuaded to believe that the prosecution case against the appellants has remained unproved on the record beyond any shadow of reasonable doubt. We may mention here that it is the basic duty of the prosecution to prove it's case against the accused beyond any shadow of reasonable doubt and it is not for the defence to provide it's innocence. Hence, we do not feel the necessity of discussing the defence evidence on the record. 34. As a consequence of the above discussion, we are constrained to hold that the impugned judgment .of the conviction and sentence of the appellants is open to serious exception. The same, therefore, is not liable to be sustained. 35. We, therefore, accept their appeal (Criminal Appeal No. 866 of 2000) and set aside the impugned judgment of their conviction and sentence and acquit them of the charge giving them the benefit of doubt. They are in custody. They be set at liberty forthwith, if not required in any case. 36. The Criminal Revision (No. 608 of 2000) fails and the same is dismissed. The Murder Reference is answered in the negative. The death sentence of appellant Rustam Ali is not confirmed. (J.R.) Appeal accepted.

PLJ 2007 Lahore 131 PLJ 2007 Lahore 131 [ Multan Bench Multan ] Present: Tariq Shamim, J. YOUSUF JAMIL--Petitioner versus ADDL. DISTRICT JUDGE, DERA GHAZI KHAN and 2 others--Respondents W.P. No. 2542 of 2006, decided on 17.7.2006. Civil Procedure Code, 1908 (V of 1908)— ----O.XXI, R. 2--Constitution of Pakistan , 1973, Art. 199--Payment out of the Court--Validity--Conditions for payments of money out of the Court were not followed by the petitioner--It could not be proved that the amount had been paid through cheques as the same were bearer cheques which could be encashed by anyone--Purported signatures of the bearer cheques on the reverse side of the cheques did not match with the signatures of the respondent on the execution petition as well as the power of attorney submitted by him in executing Court--No receipts had been placed on the record in support of his claim to show that the amount in-question had been received by respondent--Petition dismissed. [P. 134] A Syed Muhammad Hussain Shah Qadri, Advocate for Petitioner. Mr. Bashir Ahmad Chaudhry, Advocate for Respondents. Date of hearing: 17.7.2006. Order Through this Constitutional petition the petitioner has challenged the orders of the learned executing Court dated 16.2.2006 and the learned revisional Court dated 12.5.2006. 2. The brief facts of the case are that Respondent No. 3 filed a suit for recovery of Rs. 1,20,000/- on the basis of a promissory note against the petitioner/defendant who on appearance before the trial Court conceded the claim of Respondent No. 3 and admitted the execution of pronote. Consequently the parties jointly filed a written compromise deed Ex. C1 on the basis of which the suit filed by Respondent No. 3 was decreed in his favour and against the petitioner. By virtue of the said compromise deed it was agreed between the parties that the decretal amount would be paid to the decree-holder i.e. Respondent No. 3 till 31.5.2005. and if he failed to discharge his liability in terms of the compromise Respondent No. 3/decree holder would be at liberty to file execution petition to recover the decretal amount from the petitioner/judgment-debtor. 3. Since the petitioner failed to abide by the compromise arrived at between the parties as such on 8.6.2005 Respondent No. 3 filed an execution petition before the learned trial Court on which process was issued to the petitioner who on appearing before the learned executing Court filed an application stating therein that an amount of Rs. 1,07,000/- had been paid by him to the decree-holder and the decree having been satisfied the execution proceedings were misconceived. In the said application the petitioner referred to two cheques issued by him and purportedly encashed by Respondent No. 3. The said application was resisted by Respondent No. 3/the decree-holder who denied the receipt of any amount from the petitioner through cheques whereupon, the learned executing Court framed issues and after recording evidence led by the parties in respect of their claims, dismissed the application filed by the petitioner. The said order was challenged by the petitioner in revision before the learned Addl. District Judge Dera Ghazi Khan which was also dismissed vide the impugned order dated 12.5.2006. 4. The learned counsel for the petitioner contended that the petitioner paid Rs. 40,000/- through a cheque dated 13.5.2005 drawn on National Bank of Pakistan in the name of Respondent No. 3 and another cheque in the sum of Rs. 67,000/- dated 21.5.2005 also issued in the name of Respondent No. 3 and the balance amount had been deposited in the Court. Since the decree stood satisfied, hence the execution proceedings were misconceived. Further submitted that before the learned executing Court the petitioner had proved the payment of Rs. 1,07,000/- out of Court to Respondent No. 3. Also maintained that the receipt of payment of the amount of Rs. 1,07,000/- by Respondent No. 3 was evident from Mark `C' a certificate issued by the Bank Manager which showed encashment of the cheques by Respondent No. 3/decree-holder. Lastly stated that the judgments of both the Courts below were based on surmises and conjectures as the evidence of the petitioner was not discussed by the learned Courts in the impugned orders. 5. On the other hand, the learned counsel appearing on behalf of Respondent No. 3 contended that the instant writ petition had been filed by the petitioner in order to delay the proceedings. The cheques in question were bearer cheques which had been encashed by the petitioner or some one on his behalf. Even otherwise if the claim of the petitioner was a genuine, he should have obtained a receipt from the respondent regarding payment of the amount in question in terms of the decree passed by the learned Civil Court and since no such receipt had been placed on the record as such the payment of the amount in question was not proved and the decretal amount was still outstanding against the petitioner. He further maintained that CW1 Karam Hussain Khosa the Manager National Bank Jampur in his examination-in-chief before the learned executing Court categorically stated that the signatures of Respondent No. 3 purportedly affixed on the back of the said cheques did not match with the signature of the respondent on the execution petition and the power of attorney submitted in the learned Court. 6. I have heard the learned counsel for the parties and perused the record. 7. It is not denied that agreement of compromise Ex. C/1 was executed by both the parties which specified the mode for the payment of the decretal amount. The petitioner did not adopt the mode of payment of decretal amount as settled between the parties by virtue of the said deed of agreement. Even otherwise Order XXI Rule 2 of CPC provides mode for payment of money under a decree out of Court. For easy reference Rule 2 ibid is reproduced hereunder:-- "R. 2 Payment out of Court to decree-holder.--(1) Where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly. (2) The judgment-debtor also may inform the Court of such payment of adjustment, and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if after service of such notice, the decree holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly. (3) [Any payment not made in the manner provided in rule 1 or any adjustment not made in writing shall not be recognized by the Court executing the decree.]" A perusal of Rule 2 ibid clearly reveals that the conditions laid down under the law for payment of money out of Court were not followed by the petitioner. The petitioner also could not prove before the Courts that the amount in question had been paid to Respondent No. 3 through the cheques aforementioned as the same were neither crossed cheques nor were the same exclusively issued in the name of Respondent No. 3 but in fact the same were bearer cheques which could be encashed by any one. The Manager National Bank of Pakistan while appearing as a Court witness categorically stated that the cheques referred to by the petitioner were bearer cheques and that the purported signatures on the reverse side of the cheques did not match with the signatures of the Respondent No. 3 on the execution petition as well as the power of attorney submitted by him in the learned executing Court. No receipt has been placed on the record by the petitioner in support of his claim to show that the amount in question had been received by Respondent No. 3. Further the learned counsel for the petitioner has not been able to refer to any portion of the statement of any of the witnesses to show non-reading or misreading of evidence by the learned Courts below. 8. The learned counsel when questioned as to the maintainability of the writ petition has not been able to satisfy the Court although he has referred to the case of Qamar-ud-Din vs. Muhammad Din and another (PLD 2001 S.C. 518) wherein it has been observed by the Hon'ble Supreme Court that exercise of jurisdiction under Article 199 of the Constitution depends solely on the merits of each case. The merits of the instant case do not call for interference in the exercise of Constitutional jurisdiction of this Court. A Court or a tribunal may decide a matter rightly or wrongly, and even if a decision given by such Court or tribunal is wrong it does not render the decision without jurisdiction. Further re-appraisal of evidence in writ petition is also not permissible. Reference is made to the case of Abdur Rehman Bajwa vs. Sultan and 9 others (PLJ 1981 S.C 895). Even otherwise, concurrent findings of fact cannot be interfered with in exercise of Constitutional jurisdiction by this Court. Reliance is placed on the case of Moazam Hanif vs. Settlement Commissioner/Collector and others (2006 SCMR 642). 9. For what has been discussed above the petition being without merit is dismissed. There shall be no order as to costs. (Fouzia Fazal) Petition dismissed.

PLJ 2000 Lahore 140 PLJ 2000 Lahore 140 [Multan Bench Multan] Present: SYED jamshed ALI, J. Mst. AZIZ FATIMA-Petitioner versus PROVINCE OF PUNJAB through its CHIEF SECRETARY and others-Respondents W.P. No. 7450 of 1996, heard on 8.4.1999. Punjab Education Department (School Education), Rules, 1997- —Sched-Column 7 (Method of Recruitment) to the post of Secondary School Teachers (S.S.T.)--Constitution of Pakistan (1973), Arts. 199,212- -Elementary School Teachers-Promotion of such teachers to the post of Secondary School Teachers was 50 per cent by initial recruitment while 50 per cent were reserved for in service school teachers—Grievance of teachers related to amendment under column 7 (Method of Recruitment) whereunder only those candidates would he eligible for Recruitment who were bonafide residents of District where vacancies existed—Other grievance of petitioners was that contrary to aforesaid rule, vacant posts of Secondary School Teachers in district were some time, fixed in through method of appointment by transfer instead of considering in service Elementary School Teachers to said vacant posts-Art 212(2) of the Constitution was attracted to the first relief claimed by petitioners- Petitioners however, stated that if they were allowed the other relief claimed they would not be pressing for the primary relief claimed by them i.e. that the rules do not permit appointment to the post of Secondary School Teachers by transfer and that such relief was not hit by Art. 212 of the Constitution-Respondent, counsel had conceded that in accordance with the method prescribed in Rules appointment by transfer to the post of Secondary School Teachers should not be made; he under took to ensure that in future all vacancies of Secondary School Teachers would be filled in strictly in accordance with the rules from Elementary School Teachers of the district in which such vacancies occurred-Such undertaking of respondents counsel satisfied petitioners-Constitutional petition was disposed of in accordance with such undertaking of respondents. [Pp. 141 & 142] A & B 1993 PLC (C.S.) 1322; 1995 SCMR1053 ref. Syed Ijaz Hus&ain Karbalai and Mr. Muhammad Amin Mcdik, Advocates for Petitioner. Mr. Tahir Haider Wasti, A.A.G. for Respondents Nos. 1 to 6. Syed Murtaza Mi Zaidi, Advocate for Respondents Nos. 7 to 10. Date of bearing: 8.4.1999. judgment This judgment will dispose of Writ Petition Nos. 3948 of 1992 and 9320 of 1997 as the grievance in all the petitions is common. 2. The petitioners are Elementary School Teachers and in the matter of their service are governed by the Punjab Education Department (School Education) Rules, 1987 amended from time to time. The next ladder from them is the post of Secondary School Teachers (S.S.T). The method of recruitment to the post is 50% by initial recruitment while 50% are reserved for the in service school teachers. The primary grievance in these petitions is against the amendment made in these rules by way of the notification dated 27.7.1991 whereby under column 7 (Method of Recruitment) to the post of Secondary School Teachers (S.S.T) the following note was added: - "Only these candidates will be eligible for recruitment who are bona fide residents of District where the vacancies exist" 2. Another grievance of the petitioners is that contrary to the aforesaid rule, the vacant posts of S.S.T's in district are some times filled in through the method of appointment by transfer instead of considering the in service E.S.Ts for appointment as S.S.Ts to the said vacant posts. 3. According to the learned counsel for the petitioners this note is ultra vires of Articles 25 and 27 of the Constitution. It is further contended that the cadre of E.S.Ts was a divisional cadre and appointment to the post of S.S.T. (against the quota of E.S.Ts) used to be made on divisional basis. It is complained that the effect of this note is that a person who may be far junior in District Khanewal may be appointed as S.S.T. earlier then a senior E.S.T. in Multan District Reliance is being placed on judgment dated 21.1.1996 rendered by this Court in Writ Petition No. 420 of 1994. It was observed in this judgment that there was no scope for filling in the vacancies of S.S.Ts by appointment by transfer from other districts. 4. As far as the first relief claimed by the petitioners is concerned, prima facie, bar of Article 212(2) is attracted and the learned counsel for the petitioners in all these cases state that in case they are allowed the other relief claimed, they will not be pressing for the primary relief claimed in these petitions. 5. The other grievance that the Rules do not permit appointment to the post of S.S.T. by transfer and the relief claimed is not hit by the bar of Article 212 of the Constitution. Reference may be made to Khaliq-uz-Zaman Chaudhry, Civil Judge, 1st Class, Lahore etc. vs. Govt. of Punjab (1993 P.L.C. (C.S) 1322), wherein it was held that the departmental authorities could be compelled to make appointments in accordance with the rules and bar of Article 212 of the Constitution will not apply. Reference may also be made to Federation of Pakistan through Secretary Government of Pakistan , Establishment Division Islamabad and 2 others versus Abdul Rashid (1995 S.C.M.R. 1053). In this precedent case, the Hon'ble Supreme Court held that appointment by transfer cannot be made against a post which is 100% promotion post 6. The learned Assistant Advocate-General conceeds that in accordance with the method prescribed in Rules appointment by transfer to the post of S.S.T should not be made. He undertakes to ensure that in future all vacancies of S.S.Ts will be filled in strictly in accordance with the rules from the E.S.Ts of the district in which the vacancies occure. This undertaking of the learned Assistant Advocate-General satisfies the learned counsel for the petitioners. 7. This writ petition is, accordingly, disposed of in the light of the undertaking of the learned Assistant Advocate-General. (AA.J.S.) Order accordingly.

PLJ 2000 Lahore 142 PLJ 2000 Lahore 142 [Multan Bench Multan] Present: ali nawaz chowhan, J. GHULAM HAIDER and 3 others-Appellants versus FAIZ MUHAMMAD and another-Respondents R.S.A. No. 26 of 1981, heard on 28.9.1999. Punjab Pre-emption Act, 1913 (1 of 1913)- —S. 15-Civil Procedure Code (V of 1908), S. 100--Plaintiffs suit for pre­ emption related to part of property to which their right of pre-emption extended and they had paid Zar-e-Panjam to the extent thereof plaintiffs however, prayed that if they were found entitled to any further relief same might also be granted to them-Trial Court decreed the whole suit-­Appellate Court, however modified judgment and decree of Trial Court and granted judgment and decree to the extent to which plaintiffs right of pre-emption extended--Validity--Plaintiffs had claimed right of pre­ emption to the extent to which their superior right extended-Plaintiff's prayer, that if they were entitled to any further relief, same may be granted to them was prayer of general nature which could not be given weight in suit for pre-emption-Trial Court was in error in decreeing entire suit in favour of plaintiffs while becoming oblivious of limited claim more specifically set up by plaintiff-Defendant, plea that plaintiffs suit was for artial pre-emption and, thus, unsustainable was replied in as much as, plaintiffs themselves had kept their entitlement to the extent of specified Khatas which gave presumption that they in their hearts, of heart were feeling that vendees (defendants) had better claim as compared to them in rest of Khata numbers—Judgment and decreed passed by First Appellate Court, whereby plaintiffs suit had been decreed to the extent to which their superior right extended and which in fact they had claimed, suffered from no illegality nor the same was suit for partial pre-emption, therefore, judgment and decree in question, do not call for interference by High Court. [Pp. 145 to 147] A, B & C PLD 1970 SC 299 ref. Mr. Mufhtaq Ahmad Hashnti, Advocate for Appellants. Ch. Ishan-Ullah, Advocate for Respondents. Date of hearing: 28.9.1999. judgment This is RSA against the judgment and decree in a pre-emption suit passed by the learned District Judge, Dem Ghazi Khan dated 15.2.1981. Previously, the suit of the present appellant was decreed on 9.2.1980 by the learned Civil Judge, Dera Ghazi Khan. The learned District Judge vide his judgment and decree had modified the judgment of the trial Court 2. Brief facts of the case are that the sale in question pertains to 258 Kanals 8 Marias of land comprised in Khata Numbers 384, 355, 356, 341, 357 and 366 situated in the revenue estate of village Gaddi Janoobi. Ostensible price was fixed at Rs. 64,084/-. The plaintiff/pre-emptor claimed that he was a co-sharer in Khata No. 355/356 and out of the sale property could pre-empt 46 Kanal 12 Maria having been sold out of these Khatas. He also claimed that the ostensible sale price was purposely shown excessive to defeat his superior right of pre-emption. He prayed that besides the property measuring 46 Kanals and 12 Marias located in 355/356 of which e was a co-sharer if he were found entitled to any other right that too should be given to him. 3. The vendees/respondents raised the preliminary objections pertaining to insufficiency of Court Fee, that the suit was for partial pre­ emption. However, it was maintained by the vendees that the consideration fixed at Rs. 64.084/- was actually paid. 4. Besides the present appellants, the rival pre-emptors also filed pre-emption suits which were dismissed and they have not come in appeal before this Court 5. The learned trial Court had formulated the following issues: (1) Whether any of the suits is insufficiently stamped? OPD (2) Whether any of the suits has been instituted for the benefit of the vendee and is benami? OPD (3) Whether any of the pre-emptors is estopped to suit? OPD (4) Whether the suit land has incorrectly been described in the plaint? OPD (5) Whether all the suits are bad for partial pre-emption, if no to what effect? OPD (6) Whether the pre-emptors have a superior pre-emptive right qua the vendees and whose right is superior inter se the preemptors? OP Pre-emptor. (7) Whether the sale price Us. 64,084/- was fixed in good faith and actually paid? OP Vendee (8) If not then what was the market value of the suit land at the time of sale in suit? OP parties. (9) Relief. 6. The learned trial Court had decided Issues 1 to 4 the negative and 5 against the defendant. 7. The matter was taken up in appeal before the learned District Judge, D.G. Khan by vendees who while deciding Issues 1 and 5 came to the conclusion that the pre-emptor was only entitled to claim the possession of 46 Kanals 12 Marias of land out of the transaction against the payment of Rs. 13,300/- and accepted the appeal to this extent. While modifying the judgment and decree of the trial Court which had decreed the whole suit One of the grounds which prevailed with the learned District Judge was the Court fee which had been paid by the appellant and which was only against land measuring 46 Kanals 12 Marias ultimately decreed by the learned District Judge in his favour. 8. Against the judgment and decree so modified by the learned District Judge dated 15.2.1981, this regular second appeal has been filed and the vendee has also filed a revision petition. These are being disposed of together through this judgment. 9. According to the learned counsel the first appellate Court while modifying the judgment and decree of the trial Court had placed reliance on an unproved mutation pertaining to another Muaza and which was appended not by the vendees as their document but by the rival pre-emptor and came to the conclusion that the vendees were owners in the Mauza under reference. Hence, there has been not only misreading of evidence but an unproved document had defeated the case of the plaintiff who was not given the chance of rebuttal. That even otherwise, a mutation document does not carry presumption of truth. That this document related to a period which was subsequent to the period of the sale in question. That besides there is a gap of 16 years between he date of sanctioning of the said mutation and the sale in question. Regarding the deficiency in the Court fee it is the case of the appellant that no opportunity has given for making up of the deficiency of the Court fee which was a legal right 10. The learned counsel appearing on behalf of the respondents/ vendees refers to paras 3 to 5 the plaint which reads as under: He contends that the plaintifis had pkced restriction on their rights to the extent of only 46 Kanals and 12 Marias of land and had spoken of their superior right of pre-emption gua Khata Nos. 355 and 356 only and had paid the 'Zar-e-Par\jam ' to the extent thereof. 11. The re-production of the relevant paragraphs of the plaint and the conduct of the plaintiff with respect to the Zar-e-Panjam and the court fee reflect that the plaintiff only claimed his right in the Khatas Nos. 355 and 356 measuring 46 Kanals, 12 Maras. His rayer that if he was found entitled to any further relief, it may also be given to him, is a prayer of a general nature and cannot be given weight is a suit of pre-emption. The learned trial Court was in error in decreeing the entire suit in favour of the plaintiff/ appellant while becoming oblivious of the limited claim more specifically set up by the plaintiff. 12. It was anyhow argued by the learned counsel for the appellant that if the plaintiffs were owners of two Khatas, the presumption was that they were also co-sharers in the village, whereas this was not the case of the vendees who were totally outsiders. 13. The vendees in this case have filed the revision petition on the basis of the argument that on account of the judgment and decree of the first appellate Court, it was patent that the suit of the plaintiffs/appellants was for partial partition and hence ought to have been dismissed. 14. This plea was raised before the first appellate Court and was not accepted. While disposing of Issue No. 5, the learned District Judge had made reference to a mutation of inheritance bearing No. 5450 dated 3.1.1957 in respect of the lands in Mauza/village under reference. This mutation was mentioned in another Mutation No. 354 (Ex.P-16) of another village. The inference drawn was that vide Mutation No. 5450 of 3.1.1957 reflected in Ex.P-16, the defendants/vendees were owners in the village and had qual rights with the pre-emptor in respect of the rest of the Khasra numbers. The learned first appellate Court justified making such a reference on the ground that an undisputed and authentic document from revenue record could be relied upon if found in the case file. 15. While the plaintiffs in this case had been focusing on the two Khatas i.e. 355 and 356. The vendees had not established through evidence their ownership in the village till the discovery made by the learned first appellate Court The observation, therefore, made in this connection by the learned first appellate Court were assailed here. But the learned counsel for the appellant forgot the fact that an most essential duly of a Court is the discovery of the truth and if there is something on record from which truth spells out and there is no dispute about it, the evidence can be used by the Court in arriving at a just conclusion. 16. The question, therefore, to be seen is whether this was a suit for partial pre-emption and hence un-sustainable or not The answer is in the negative. Because the plaintiffs themselves have kept their entitlement to the extent of Khatas Nos. 355 and 356 which gives a presumption that they in B their hearts of heart were feeling that the vendees had a better claim as compared to them in rest of the Khata numbers. However, this aspect of the case remained shrouded except for the discovery made by the first appellate Court. 17. The case of Malik Hussain and others vs. Lola Roam Chand and others, PLD 1970 SC 299, has been referred and the relevant portion of which is reproduced below in extenso:-- "It was held in that case that the answer to this question will depend upon whether the pre-emption has been claimed under statute. Dealing with the question of right of pre-emption under the statute law, it was observed as under.- "The right of pre-emption is one of substitution even in the case of pre-emption under statute law, unless the statute itself has made a departure in this regard to any extent As for instance, the Punjab Pre-emption Act, 1923, provides that the Court itself may, in certain circumstances, fix the price to be paid by the pre-emptor instead of the price entered in the deed of sale and purported to have been paid by the vendee as consideration for the transaction. From the doctrine that the right of pre-emption is one of substitution, it follows that, unless the statute conferring the right of pre­emption otherwise provides, the pre-emptor must take over the whole bargain, that is to say, the pre-emptor must seek pre-emption of the whole of the subject matter of the sale and pay the entire price paid by the vendee as consideration. This, however, is subject to certain limitation which, at any rate, do not include the vendors' defective or want of title. It is not necessary to detail here all those limitations. Suffice it to say by way of example that a re-emptor is not bound to seek pre-emption of the whole of the property sold and pay the full sale price if his right of pre-emption extends over only a portion of the property sold or if a portion of the property is capable of pre-emption and the other is not In case of any such limitation, partial pre-emption on payment of proportionate price may be permitted as of necessity and not because the pre-emptor wants it It is noticed that in the present case the pre-emptors' right of pre-emption is not subject to any kind of limitation: their right of pre-emption extends over the whole of the lands sold, and no part of the lands is incapable of pre-emption." From the above observation, it is clear that ordinarily the preemptor must take over the whole bargain and he must seek pre­ emption of the whole of the subject-matter of the sale and pay the entire price paid by the vendees as consideration. There are, however, certain exceptions wMch according to the view taken in this decision do not include the vendor of defective or want of title and it is not open to the pre-emptor to give up the claim as he likes. In the light of the above observations it is dear that the respondents' case does not fall within the limitation specified in this decision. The partial pre-emption can only be permitted if it is as of necessity and not because the pre-emptor wants it" 18. In this case as well the plaintiffs were not sure about their right in the land other than in Khatas Nos. 355 and 356 and understood their limitation which they did not highlight through evidence and this was also not highlighted by the other side except for the discovery made by the first appellate Court 19. Under the circumstances of this case, this Court is, therefore, of the view that the judgments and decrees passed by the first appellate Court suffer from no illegality nor this was a suit for partial pre-emption and hence the judgments and decrees impugned do not call for interference by this Court The appeal and revision are dismissed with no order as to costs. Order accordingly.

PLJ 2000 Lahore 148 PLJ 2000 Lahore 148 Present: tassaduq HUSSAIN jilani, J. M/s. VULCAN COMPANY (PVT.) LJMITED--Petitioner versus COLLECTOR OF CUSTOMS etc.-Respondents Writ Petition No. 1734 of 1973, decided on 6.12.1999. (i) Locus poenitentiae, Principle of- -—Constitution of Pakistan (1973), Art. 199~Principle of locus poenitentiae- Applicability-Principle of locus poenitentiae could not be stretched to protect orders and actions in derogation to law which had caused injustice on the face of record-Air-Conditioners having been imported by petitioner, he was liable to pay customs duty to the tune of specified amount, however, same having not been charged due to in-advertance, he could be burdened with fine in terms of S. 167 (8)(b) of Sea Customs Act 1878 and the same was well within ambit of law to which no exception could be taken in exercise of constitutional jurisdiction. [P. 155] E PLD 1973 S.C. 236; PLD 1991 SC 691; PLD 1992 SC 207 ref. Sea Customs Act, 1878-- — -Ss. 39 & 167-Imports and Exports (Control) Act (XXXIX of 1950), S. 3(1)-- Constitution of Pakistan (1973), Art 199--26 Air Conditioners imported by petitioner were deemed to be liable to Customs duty and Sales Tax but the same having been imported in January 1966, such duty and tax could not be recovered on account of period of limitation having been elapsed, however, petitioners were made liable to pay specified amount as penalty-- Validity--Provision of S. 39, Sea Customs Act 1878, mandates that in case Customs duty or charge payable was not paid or had been erroneously refunded, same had to be paid by person charged oh demand being made within three years of relevant date-Relevant provision for imposition of fine, however, is S. 167(8)(b) of Sea Customs Act 1878~No exception could be taken to imposition of fine in as much as facts alleged were not disputed by petitioner in 90 far as import of 26 Air-Conditioners and two compessors on basis of import licence of specified No : issued originally in favour of respondent Hospital was concerned-Such licence was meant for import of three Air-Conditioners for Hospital concerned-Attmept by petitioner to seek protection of S. 39, Sea Customs Act 1878 was not tenable, firstly, because said section was confined to customs duty and other charges and not to imposition of fine under S. 167, Sea Customs Act 1878; secondly, that expression used in the section "relevant date" would be the date when such fact came to notice of authorities that petitioner had evaded duties and taxes through misrepresentation and; thirdly, petitioner seeking equitable jurisdiction of Court must demonstrate equity before seeking any relief-Constitutional jurisdiction of High Court could not be used to perpetuate ill-gotten gain to which petitioner was not entitled at relevant date-Import licence issued in favour of respondent Hospital for three Air Conditioners was wrongfully used by petitioner for importing 26 Air Conditioners, therefore be was not entitled to claim exemption from fine. [Pp. 151,153 to 155] A, B, C & D Sh. Zia-Ullah, Advocate for Petitioner. Sh. Izhar-ul-Haq, Advocate for Respondents. Dates of hearing: 29.11.1999 & 1.12.1999. judgment Through this Constitutional petition, the petitioner has challenged the order dated llth of July, 1973 passed by Respondent No. 3 vide which petitioner's revision against the order dated 10th of February, 1973 was dismissed and it was held that 26 Air-conditioners imported by the petitioner were liable to custom duty and sales tax but since the goods were imported in January, 1966, those cannot be recovered on account of period of limita­ tion having been elapsed, but the petitioners are liable to pay Rs. 60,000.00 as penalty under Section 167 (8b) of the Sea Customs Act, 1878. 2. Facts in brief are that M.S. Sir Ganga Ram Hospital, obtained Licence No. 565810 dated 16.6.1965 for the import of three air-conditioners of the value of Rs. 29.000/- Before the air-conditioners could be imported, on account of urgency the M.S. Sir Gaoga Ram Hospital, obtained three air-conditioners from Messrs Vulcan and Company Ltd. and handed over the afore-referred licence to it so that it could import the 3 air-conditioners in lieu of the ones, the Hospital had obtained. On the basis of this import Ucence, Messrs Vulcan and Company imported 26 window type airconditioners and 2 compressors in the name of the Hospital. The Custom House Appraiser, released the air-conditioners without the customs duty and the sales tax on the misconception that the air-conditioners were imported for Hospital and exempt from levy of afore-referred taxes in view of SRO 997(K) dated 4th of August, 1960. On 3rd of September, 1970 the Collector Customs issued a notice to the petitioner to the effect that on queries it had been found that petitioner had obtained licence for import of three air-conditioners of 1\ tons, 5 tons and 3 tons capacities from M.S. Sir Ganga Ram Hospital whereas petitioners imported 26 air-conditioners of 1.5 H.P. 2 H.P. and 2.5 H.P. and two compressors which were not in accord with the import licence. It was further revealed that petitioner had finalized the transaction with the shipper before the issuance of licence to M.S. Sir Ganga Ram Hospital; that since the air-conditioners were not in accordance with the conditions of licence and were not imported for Ganga Ram Hospital, the importers had contravened the provisions of Section 19 of Sea Customs Act, 1878 read with Section 3(1) of I&E (Control) Act 1950. They were therefore, punishable undei of Sea Customs Act, 1878 read with Section 3(3) of " a t 1950. After due notice to the petitioner, the Collector Customs held i Hat r ^itioner evaded sales tax leviable on these air-conditioners amounting to Rs. 44,270.88 by hoodwinking the custom authorities. A fine of Rs, 60,000.00 was imposed on the petitioner. Petitioner filed appeal against the said order which was dismissed on 10.2.1973 and his revision also met the same fate vide the impugned order dated 11.7.1973. 3. Learned counsel for the petitioner has challenged the impugned orders of the custom authorities on the following grounds:- (i) That under Section 39 of the Sea Customs Act, 1878, time limitation for recovery of any amount under the Act is three years and it is not, denied that the recovery of custom duties and other taxes was time barred. If that be the position and principal amount cannot be recovered, no penalty could have been imposed for non-payment of the principal amount; (ii) that 26 air-conditioners and two compressors subject matter of this petition were imported on an import licence in the name of M.S. Sir Ganga Ram Hospital and the fine if any, has to be imposed on the Hospital and not the petitioner, (iii) that the custom authorities having once cleared the goods without custom duties are estopped to recover the same on the principle of locus ponetentiae. 4. Learned counsel for the Customs department, on the other hand, has opposed the petition by submitting that on the import licence in the name of Sir Ganga Ram Hospital, only three air-conditioners of the capacities specified therein were mentioned and the import of 26 airconditioners and two compressors was untenable in law and petitioner has rightly been proceeded against He contended that the imposition of penalty of Rs. 60,000.00 is not linked with the custom duties and sales taxes. Section 39 of the Sea Customs Act provides a period of limitation for the recovery of the afore-referred taxes whereas petitioner has been imposed a penalty under Section 167 of the Act to which no exception can be taken. 5. Heard. I have given anxious considerations to the arguments addressed at the bar and have also gone through the relevant law. 6. To better appreciate the points mooted in this petition, it is necessary to refer some of the provisions which have an important bearing on the case. Section 39 of the Sea Customs Act, reads as under: "Section 39(1),- -If any person, in connection with any matter of Customs,-- (a) makes or signs, or causes to be made or signed, or delivers or causes to be delivered to an officer of Customs any declaration, notice certificate or other document whatsoever, or (b) makes any statement in answer to any question put to him an officer of customs which he is required by or under this Act to answer. and such document or statement is untrue in any material particular, he shall be guilty of an offence under this Section. (2) Where, by reason of any such document or statement as aforesaid collusion, the full amount of customs duty or charge payable is not paid or where any such duly or charge, after having been levied, has owing to any such reason, been erroneously refunded, the person chargeable with duty or charge so short paid, or to whom such refund has erroneously been made, shall, on demand being made within three years from the relevant date, pay the deficiency or repay the amount paid to him in excess; and the Customs Collector may refuse to pass any goods belonging to such person until the said deficiency or excess be paid or repaid."

The afore-referred provision of law mandates that in case the custom duty or charge payable is not paid or has been erroneously refunded, the same has to be paid by the person charged on demand being made within three years of relevant date. However, it does not relate to the imposition of fine to which the relevant section is Section 167 sub-para 8(b) which is to the following effect- Section of this Act to Offences. which offence has Penalties. Reference. (b) If any goods, the importation and Such goods shall be liable exportation of which is for the time being to confiscation; and any prohibited or restricted under this Act, be person concerned in any imported into or exported from Pakistan such offence shall be liable country to such prohibition or restriction; to a penalty not exceeding or five times the value of the goods. 7. In the comments submitted by the M.S. Ganga Ram Hospital, it has been specifically denied that the petitioner-company was ever authorised to import air-conditioners on behalf of Hospital. The stand taken by the Hospital authorities in Para No. 6 of the comments is as under: "That the answering Institution purchased the three Air conditioners of the capacities as mentioned in para 5 above and in lieu of those Air-conditioners, the Answering Institution managed to provide for the import licence of the same value and of the same Units to M/s. Vulcan Co. Ltd. The licence was also transferred with the prior approval of Imports and Exports Authority to the petitioner company and as such the imports affected against that licence are the imports by the petitioner-company and not by the Answering Institution. The Answering Institution had no concern with the imports against the said import licence as it was the liability of the P. Company to import the goods specified in the Import Licence. It is further denied that the Answering Institution had ever ordered for the compressors and the air-conditioners as imported by the petitioner. Company against the said import licence. Only three air-conditioners as specified in para 5 above were agreed to be installed in the Hospital and in lieu of those air-conditioners the petitioner-company was granted import licence of the same description and not otherwise. It was further reiterated in para 16(xi) as under: "That the good covered under the Bill of Entry were never delivered to the Answering Institution as the Answering Institution had already obtained the three Air-conditioners of the above specification in lieu of the import licence issued to the petitioner-company in the account of Answering Institution and the authorization was for the import of Air-conditioners only in respect of those Air-conditioners which were supplied by the petitioner-company to the Answering- Institution." The afore-referred stand of the M.S. Sir Ganga Ram Hospital is borne out from record as well and Annexure-A to the comments is a letter dated 9th of July, 1966 from M.S. Sir Ganga Ram Hospital, Lahore to the Deputy Controller, Import and Exports, wherein the former had sought the advice of the latter as to whether it could have the three air-conditioners (costing Rs. 29,000/-) for which they had been granted permission to import through the petitioner-company installed from the read stock of the company as those were available with the petitioner-company and they were prepared to do the same on the same costs as quoted. Annexure-B is the reply of the Office of Controller of Imports and Exports dated 13th of August, 1965 which is to the effect that, "this office has no objection if Air-conditioners are obtained from Messrs. Vulcan Company Ltd. Lahore." Annexure-C (to the comments of respondent Hospital) is a letter dated 9th of June, 1965 from Vulcan and Company Limited to the M.S. Sir Ganga Ram Hospital, Lahore wherein the import licence issued in their favour in lieu of the three Air-conditioners has been acknowledged and even the price mentioned in this letter (Rs. 29,000/-> is the same as mentioned in letter of M.S. to the petitioner-company (Annexure-A) with the comments referred to above. This letter reads as under: "The Medical Superintendent, Sir Ganga Ram Hospital, Queens Road, Lahore. Dear Sir, We are pleased to advise you that, we have informed by the Chartered Bank, Lahore vide their letter dated 19.6.1965, that Import Licence No. 565810 for Rs. 29.000/- has been issued in our favour, in your account which is valid upto 18th December, 1965, towards the import of Air-conditioners for your Hospital. We shall therefore, request you to remit the payment of our Bill No. 5000 enclosed herewith in triplicate for Rs. 38.590/- and oblige, to enable us to notify the Letter of Credit in favour of our Principals. Thanking you we remain. Yours faithfully, for Vulcan Company Limited. The afore-referred resume of facts emanating from correspondence between the petitioner-company; the respondent-hospital and between the Deputy Controller Imports and Exports clearly shows that the import licence in question was transferred in the name of the petitioner-company to import the three Air-conditioners which it supplied to the respondent Hospital valuing Rs. 29,000.00. The import of 23 Air-conditioners and two compressors which were in excess of the authorization stipulated in the licence was unauthorised and petitioners were liable to be proceeded against under Section 167 sub-section 8(b) of the Sea Customs Act, 1878. 8. A notice was given by the Collector Customs to the petitioner to which he replied in writing and the contentions raised in reply were duly considered by the Collector whereafter he was imposed a penally of Rs. 60,000.00. The effect of Section 39 of the Sea Customs Act, referred to above was duly taken note of and that precisely is the reason that petitioner was not charged with the custom duly amounted to Rs. 44,270.88. So far as the penally amount which is impugned herein is concerned, no exception can be taken to it as the facts alleged are not disputed by the petitioner in so far as the import of 26 Air-conditioners and 2 compressors on the basis of 1 import Licence, No. 565810 issued originally in favour of respondent Hospital is concerned. That this licence was meant for import of only three Air-conditioners for Hospital as manifest from petitioner-company's own letter addressed to M.S. Sir Ganga Ram Hospital wherein it was held: "We are pleased to advise you that we have been informed by the Chartered Bank, Lahore vide their letter dated 19.6.1965 that import licence No. 565810 for Rs. 29,000/- has been issued in our favour, in your account, which is valid up to 18th December, 1965 towards the import of Air-conditioners for your Hospital." This has not been controverted by the petitioner by filing any rejoinder. The attempt by the petitioner to seek protection of Section 39 of the Sea Customs Act is not tenable firstly because the said section is confined to the custom duty and other charges and not to the imposition of fine under Section 167 of the said Act Secondly, the expression used in the Section "relevant date" would mean the date when it comes to the notice of the authorities that the petitioner had evaded the duties and taxes through misrepresentation. Thirdly, petitioner is in the equitable jurisdiction of the Court and he must demonstrate equity before he seeks any relief. The Constitutional jurisdiction of this Court cannot be used to perpetuate an ill gotten gain to which petitioner was not even entitled at the relevant time. This is in line with the law kid down by the Hon'ble Supreme Court in Nawab Syed Raunaq Mi etc. vs. Chief Settlement Commissioner and others (PLD 1973 Supreme Court 236) wherein at page 258 and 259, it was held as under:- "An order in the nature of a Writ of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order ought to be set aside had occasioned some injustice to the parties. If it does not wrong any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked." Acting on this principle, a writ of certiorari has been refused by the Courts in the following cases because to grant it would have had the effect of allowing the technicality of the law to cause unjust enrichment which it was the policy of the law to avoid or would have resulted in the confirmation of a certificate obtained wrongly by suppressing material facts or would have sustained an order of allotment which the petitioner had obtained by suppression of material facts within his knowledge or would have resulted in perpetuating an injustice which had been done to the respondents by an incorrect order passed against them or would result in perpetuating a manifestly illegal order or would debar the taxing authorities from initiating proceedings because the requisite time for such initiation had expired." This principle was reiterated in Muhammad Baron and others vs. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others (PLD 1991 Supreme Court 691) wherein at page 697, it was observed as under: "Where, therefore, the High Court, in its extraordinary jurisdiction under Article 98 of the Constitution 1962, had come to the conclusion, that the orders of the Deputy Claims Commissioners verifying the claims of certain persons were illegal and without jurisdiction, it was held that, "it could legitimately refuse to set aside the order of the Officer on Special Duty (Central Record Office), even though the letter was clearly without jurisdiction. "Putting this observation in justa-position to the present case; if the allotments relied upon by the appellants made by the settlement functionaries were illegal and without jurisdiction and indeed if they were also based on fraud and forgery, in that eventuality even if the Board of Revenue which exposed fraud and forgery and set aside illegal transfer of properties worth millions by its own order, the High Court would not in exercise of its discretionary (writ) jurisdiction annul the order of the Board of Revenue, even though, to borrow the language used in the case of Raunaq Ali the letter Vas clearly without jurisdiction"," 8. Coming to the point that petitioner was not importer and that the import licence being in the name of M.S. Sir Ganga Ram Hospital, the fine if any should be recovered from Hospital, I am afraid, the petitioner is estopped to raise this argument as admittedly, it was the petitioner who imported 26 Air-conditioners and two compressors. Mere use of the import D licence issued in favour of M.S. Sir Ganga Ram Hospital which was meant only for three air-conditioners cannot be taken as a defence by the petitioner in the face of his own admission and the facts emanating from record. The principle of locuspoenitentiae is a well recognized principle of Constitutional law and it has bees held by this Court as well as by the Hon'ble Supreme Court that an order once passed, cannot be recalled if certain rights have been created in favour of a person. This principle cannot be stretched to protect orders and actions indentation to law which have caused injustice on the face of record. In the instant case, in view of the value of the air-conditioners imported by the petitioner, it was liable to pay custom duty to „ the tune of Rs. 44,270.88. However, since by inadvertence, it was neither " charged nor the afore-referred amount was paid, they could be burdened with fine not exceeding five times of the value of the goods as mandated under Section 167 sub-para 8(b) of the Sea Customs Act, 1878. The imposition of fine, is therefore, well within the ambit of law. In The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another vs. Jalauddin (PLD 1992 Supreme Court 207), the Hon'ble Supreme Court at page 210 observed as under: "Locus poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order." 9. For what has been discussed above, there is no merit in this petition which is dismissed. (AJU Petition dismissed.

PLJ 2000 Lahore 156 PLJ 2000 Lahore 156 Present: BASHIH A. MUJAHID, J. ABDUL HAMEED-Petitioner versus MUHAMMAD TAMAR HAYAT GONDAL MAGISTRATE SECTION 30 BHALWAL DISTRICT SARGODHA aart anothers-Respondents Writ Petition No. 29778 of 1997, disposed of on 19.5.1999. Constitution of Pakistan, 1973- —Art. 199~Registration of FIR U/S. 382/452/148/149 PPC and S. 14 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 VI of 1979)—Cancellation of—Writ against—Accused persons named in FIR have not been impleaded as a party-They are necessary party as they are actual beneficiaries of impugned order-Order of discharge, being an administrate order, is not amenable in appeal or revision petition, yet there is no bar for filing of private complaint on same facts by complainant even before same Court, if it has jurisdiction to try matter, which is to be decided in judicial proceedings—Due to absence of necessary parties, petitioner was directed that he may file a private complaint in Court of competent jurisdiction if so advised-Orders accordingly, [P. 157] A & B 1997 SCMR 304,1993 SCMR187, PLD 1985 SC 62 rel Q.M. Saiim, Advocate for Petitioner. Mr. Bashir Ahmad Ch., AAG. for Respondents. Date of hearing: 19.5.1999. judgment Through this writ petition order dated 14.12.1996 passed by the Magistrate for cancellation of case registered vide FIR No. 288/96 under Section 382/452/148/149 PPC and Section 14 of Offences Against Property (Enforcement of Hudood) Ordinance No. VI of 1979, at Police Station Kot Momin, District Sargodha, on police report has been impugned on the ground that the learned Magistrate has passed this order in a mechanical manner without application of his independent judicial mind. Reliance has been placed on Mst. Amtul Mobin alias Mst. Mobin Karim vs. Magistrate Illaqa South Cantt. Lahore (1991 P.Cr.L.J. 1075), 2. I have considered the arguments of the learned counsel. It has been noticed that the accused persons named in the FIR have not been mpleaded as party in the present writ petition. They are necessary party and passing an effective order in their absence may adversely affect their interest as they are actual beneficiaries of the impugned order and valuable right has been accrued in their favour. Although the order of discharge, being an administrative order, is not amenable in appeal or revision petition, yet there is no bar for filing of private complaint on the same facts by the complainant ever before the same Court, if it has jurisdiction to ry the matter, which is to be decided in judicial proceedings. Reliance is placed upon Muhammad Sharif and 8 others vs. The State (1997 S.C.M.R. 304), ArifAli Khan and another vs. The State and 6 others (1993 S.C.M.R. 187) and Bahadur and another vs. The State and another (PLD 1985 8.C. 62). 3. I am not inclined to proceed any further in the matter in the absence of the necessary parties. The etitioner/complainant, if so advised, may file a private complaint in the Court of competent jurisdiction, which if filed shall be decided within a period of six months from the date of its receipt This petition stands disposed of accordingly. (MYFK) Orders accordingly.

PLJ 2000 Lahore 157 PLJ 2000 Lahore 157 Present: CH. LlAZ AHMAD, J. MUHAMMAD RAFIQUE-Petitioner versus AMIR SHAHZAD and others-Respondents Civil Revision No. 1169-D/98, dismissed on 5.4.1999. (i) Adverse Possession- —S. 115 of C.P.C.--Revision--Plea of adverse possession-Plea of adverse possession is not tenable and against Islamic Injunction-Mere entries in revenue record would not support plea of adverse possession. [P. ] C & D 1996 MLD 1263; 1991 SCMR 2063; NLR 1992 Civil 363; NLR 1994 Civil 695; NLR 1992 CivU Law Judgment 48 rel. (ii) Civil Procedure Code, 1908 (V of 1908)- —S. 115~Sale-deed~After proper appreciation of evidence of oral as well as documentary evidence that sale deed and mutation on basis of same goes unchallenged-It is well settled law where a land conveyed is described by boundaries as well as by areas same will be treated to have been conveyed. [Pp. 161 & 162] A AIR 1926 Patna 257; PLD 1958 Lah. 569; PLD 1965 S.C. 274, 1986 CLC 1267 and 1990 CLC 110 rel. (iii) Jurisdiction- —S. 115 of C.P.C.—Revision—Reversal of finding by Appellate Court-­ Appellate Court is possessed with jurisdiction to reverse findings of trial Court on question of fact—It is established law that findings on question of fact or of law how-so-ever erroneous the same may be recorded by a Court of competent jurisdiction-Revisional jurisdiction can only be invoked if findings suffer from jurisdictional defect, illegality or material irregularity-- [Pp. 162 & 163] E PLD 1949 PC 126 nl (iv) Mutation- —S. 115 of C.P.C.--Revision-Mutation-Entries in revenue record-Mere entry in revenue record would not support plea of adverse possession-­ Possession must open overt and hostile to knowledge of true owner. [P. 162] C 1973 SCMR 284. (v) P.T.L- —8. 115 of Civil Procedure Code, 1908~Revision~Entries in taxation department about possession-Entries were made without notice to parties concerned and no presumption of absolute genuineness could be raised. [P. 162] B 1982 CLC 1770 rel. Ch. Muhammad Din Ansari, Advocate for Petitioner. Syed Munir Hu&aain, Advocate for Respondents. Date of hearing: 5.4.1999. judgment The brief facts giving rise to this revision petition are that the respondents/plaintiffs filed a suit for possession regarding land in question measuring 12 Mario 112 »qft. Bearing Property No. B-V1-17-R-9-A/4 situated outside Kot Peeran within the limits of Municipal Committee Kasur. The title of the plaint reveals that the land in question was originally owned by the Lahore Prince of the Church of India. Respondent No. 5/Defendant No. 2 purchased this property from the said Church through its General Attorney namely father J.D. Aurthor vide sale-deed dated 9.9.1981; thereafter Mutation No. 4931 was also sanctioned and attested in the name of Respondent No. 5/Defendant No. 2 on 5.10.1981; Respondent No. 5 sold away the property in-question to Respondents Nos. 1 to 4 for consideration of Rs. 25,QOO/- vide sale-deed dated 5.8.1982. The • petitioner/Defendant No. 1 filed a suit for permanent injunction against Respondent No. 5/Defendant No. 2 which was disposed of by learned Civil Judge, Kasur on 19.7.1984 to this effect; that Respondent No. 5/Defendant No. 2 should not dispossess petitioner from the suit property illegally and in an unlawful manner. The petitioner took possession of the suit property illegally and Respondents Nos. 1 to 4/plaintiffs filed a suit for possession against the petitioner and Respondent No. 5/Defendant No. 2 on 6.3.1985. Petitioner/Defendant No. 1 controverted the allegations levelled in the plaint while Respondent No. 5/Defendant No. 2 was proceeded ex parte on 15.4.1985. Out of the pleadings of the parties the trial Court framed the following:- ISSUES: 1. Whether the plaintiff has no cause of action for the present suit? OPD 2' Whether the suit is barred by limitation? OPD 3. Whether the defendants are entitled for special costs U/S. 35-A ofCPC?OPD 4. Whether the plaintiffs are owner of the suit property, if so, whether they are entitled to have possession of the same? OPP 4A, Whether the Defendant No. 1 is in adverse possession of the disputed land since last 25 years? OPD-1 4B. Whether the Defendant No. 1 has become owner of the disputed land by having adverse possession over the disputed land? OPD-1. 5. Relief. The learned trial Court dismissed the suit vide judgment and decree dated 20.9.1989; Respondents Nos. 1 to 5 being aggrieved by the judgment and decreed of the trial Court filed an appeal before the learned District Judge, Kasur, who entrusted the same to learned A.D. J., who accepted the appeal vide judgment and decree dated 1.6.1998; hence the present revision petition. 2. The learned counsel for the petitioner contended; that judgments of both the Courts are at variance; he further stated that 1st Appellate Court reversed the findings of Issues Nos. 1 & 4 without adverting to the reasoning of the trial Court; that 1st Appellate Court reversed the findings on Issues Nos. 1 & 4 by misreading of evidence on record; that 1st Appellate Court misread the evidence on record; that 1st Appellate Court mis-construed the documentary evidence as well as the oral evidence; that the etitioner/defendant is in possession of the land in-question for more than twenty five years without any interruption, therefore, he has become owner of the property on the well known principle of adverse possession; that judgment of 1st Appellate Court is against the law and acts; that respondents/plaintiffs could not prove their ownership qua the land in question on the ground that the espondents/plaintiff have got registered sale-deed from Mutation No. 4931 dated 5.10.1981 in which only the share of Khasra number has been given qua the disputed property but the learned 1st Appellate Court did not advert to this aspect of the case at all; that Respondent No. 5 sold land in favour of Respondents Nos. 1 to 4/plaintiffs through registered sale-deed mentioned the property number which was not mentioned in the first sale-deed but the 1st Appellate Court did not advert to this aspect of the case; he summed up bis arguments that contents of plaint reveal that the petitioner/defendant occupied the suit land three years before challenging the suit; whereas Allah Din-PW. 3 admitted in his evidence that the petitioner is in possession of the suit property from twenty to twenty two years; that the petitioner produced sufficient oral as well as documentary evidence on record to prove the version of the petitioner whereas the respondents failed to bring on record sufficient evidence to prove their ownership; the suit is barred by time by virtue of Article 142 of the Limitation Act but the 1st Appellate Court wrongly relied upon Article 144 of the Limitation Act, therefore, findings of learned A.D.J. is not sustainable in the eyes of law. 3. Learned counsel for respondents contended that title of the property was specifically described in the head note of the plaint and paragraph 1 of the plaint; whereas the petitioner did not deny this fact. Subsequently in written statement; that descreption of the property inquestion was specifically mentioned in the 1st sale-deed executed by Respondent No. 5 by G.D. Aurthor and mutation was attested on 5.10.1981; that Respondent No. 5 sold the land to Respondents Nos. 1 to 4 with the same descreption of the property alongwith the property number and the mutation was also attested in favour of respondents; that the grounds mentioned in the memorandum of revision petition and the contentions of petitioner's counsel are beyond the pleadings of the parties, therefore, the contention of petitioner's counsel has no force on the well known principle that parlies cannot go beyond their pleadings. He relied upon (1985 CLC 373); (1989 CLC 651). He further stated that both the Courts below have given concurrent findings of fact against the petitioner qua the adverse possession; that grounds of adverse possession is not available to the petitioner's counsel as the same has been declared against the Injunction of Islam by the Hon'ble Federal Shariat Bench of Supreme Court; that grounds for adverse possession is not available to the petitioner on the ground which must be in the knowledge of the opposite party but the petitioner failed to bring on record sufficient evidence to show that it was in the knowledge of the respondents; that the petitioner is in possession of the disputed property as a owner. He further stated that on Court's question DW. 5 stated as follows :-- He further stated that learned trial Court wrongly relief upon Article 142 of the Limitation Act beyond the pleadings of the parties on the ground of tenancy; that petitioner has field suit against Respondent No. 5 mentioned the same property on 19.1.1982, therefore, petitioner is estopped to controvert the same on the basis of the well known principle of estoppel and waiver. The entries in the Excise and Taxation Department register are made without notice to the parties concerned and no presumption of absolutely genuiness can be raised in respect thereof. In rebuttal petitioner's counsel stated that learned 1st Appellate Court did not advert to the question of limitation and the 1st sale-deed executed by J.D. Aurthor mentioned above, reveals that he has sold share of the Khata without determination of specific part of properly; suit cannot be decreed in favour of Respondents Nos. 1 & 2. 4. 1 have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is admitted fact that property in- question was sold by G. Aurthor vide sale-deed dated 5.9.1981 in favour of Dilawar Masih/Respondent No. 5/Defendant No. 2, who specifically described the property in-question in the contents of saledeed with Specific Number of the property. Respondent No. 5/Defendant No. 2 sold the same to Respondents Nos. 1 to 4 with property number alongwith descreption to the following effect: - The petitioner also filed suit against Dilawar Mehmood/Respondent No. 5 with the specific number of property alongwith descreption on 19.1.1982. The title/head note of the plaint and para 1 of the plaint of present suit also described the property in question but the petitioner did not controvert this fact in reply of para 1 of the plaint. The learned 1st Appellate Court, after proper appreciation of evidence of both the parties oral as well as documentary evidence has given findings of fact in the following terms:- "It is proved that the appellants have become owners of the suit property by virtue of sale-deed dated 5.8.1982 Exh. P. 5 as well as mutation Exh. P. 6 attested on its basis. These documents remain unchallenged till today and hold the field. Findings of learned trial Court on this issue are set aside and the issue is decided in favour of the appellants." Respondents Nos. 1 & 4 described the property in-question in head note of the plaint which is valid by virtue of Order 7, Rule 11 CPC. It is settled proposition of law where a land conveyed is described by boundaries as well as by areas, if there is a difference between the boundaries and the area, it is settled law that the land actually comprised within the boundary will be treated to have been conveyed. I am fortified by (AIR 1926 Patna 257). The aforesaid proposition of law is also supported by the following judgments: "Sarwar'g case (PLD 1958 SLC. 569); U.B.L. India's case (PLD 1965 S.C. 274); Mst. NasimAkhtar's case (1986 CLC1267); and Muhammad Suleman'a cose (1990 CLC 110). The 1st Appellate Court after proper appreciation of evidence decided Issue No. 4-A; 4-B in favour of respondents. It is settled proposition of law that entries in Excise and Taxation Department's register are made without notice to the parties concerned and no presumption of absolutely genuineness can be raised in respect thereof. I am fortified by Mian Muhammad Amin's case (1982 CLC 1770). D.W. 5 on Court's .question has admitted in the following terms:The findings of the 1st Appellate Court is in accordance with the judgment of Hon'ble Supreme Court in Muhammad Hakim's case (1973 SCMR 284) and the relevant observation is as follows:-- "the mere entry in the revenue record would not, therefore, support the plea of adverse possession. It is well settled that adverse possession must open overt and hostile to the knowledge of the true owner, if the person alleging such possession is to perfect his title by prescription." I am also fortified by Abdul Ghafoor's case (1996 MLD 1263) Section 28 and Article 144 of the Limitation Act has already been declared against the Injunction of Islam by the Hon'ble Shariat Appellate Bench of the Hon'ble Supreme Court in Maqbool Ahmed's case (1991 SCMR 2063). The learned 1st Appellate Court also decided Issue No. 2 after proper appreciation of evidence in favour of respondents and in accordance with the principle laid down by the superior Courts; the findings of 1st Appellate Court is in accordance with the judgment of Hon'ble Supreme Court in Noora's case (NLR 1992 Civil 363); Afzal Khan's case (NLR 1994 Civil 695) and the relevant observation is as follows:-- "that the lawful owner of property cannot be non-suited on plea that opponent was in adverse possession for more than 12 years." Reference can also be made in Shah Muhammad's case (NLR 1992 Civil Law Judgments 48). 4. As regards the findings of learned A.D.J. on Issues No. 4; 4-A; 4-B; Issue No. 2; Issue No, 3 and Issue No. 1, it may be noticed that in his capacity as appellate Court, the learned A.D.J. possessed the jurisdiction to come to his own conclusion, on the basis of evidence adduced before the trial Court by the parties and resultantly he could competently reversed the findings of the trial Court on the question of facts involved in aforesaid issues. It is established proposition of law that findings on question of fact or of law, howsoever erroneous the same may be, recorded by a Court of competent jurisdiction, cannot be interfered with by the High Court, in exercise of its revisional jurisdiction, under Section 115 C.P.C. unless such findings suffer from jurisdictional defect, illegality or material irregularity. I am fortified by the judgment of Privy Council (PLD 1949 PC 126) and the relevant observations is as follows: "This section empowers the High Court to satisfy itself upon three matter-- (i) that the order of the subordinate Courts is within its jurisdiction; (ii) that the cage is one in which the Court ought to exercise jurisdiction; (iii) that in exercise jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error or procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusion of the subordinate Court upon questions of fact or law." In view of what has been discussed, no jurisdictional defect has, of-course, been pointed out in this case and similarly no legal infirmity in the impugned judgment has been alleged. The upshot of above discussion is that there is no merit in this present civil revision which is accordingly dismissed with no order as to costs. (SJV.) Petition dismissed.

PLJ 1998 Lahore 846 [Bahawalpur Bench] PLJ 1998 Lahore 846 [Bahawalpur Bench] Present: sharif hussain bukhari, J. CITIZEN COUNCIL FOR WELFARE AND ACCOUNTABILITY-Petitioner versus CENTRAL GOVERNMENT etc.-Respondent Writ Petition No. 4628 of 1996, accepted on 5-8-1997. Constitution of Pakistan, 1973-- —- Art. 199 read with Art. 9--Punjab Local Government Act, 1996, Chapter VIII-Gomplaint against broken and unserviceable sewerage system etc- No head paid to—Writ against—From provision of chapter VIII of Act,1996, it is clear that Municipal Corporation is under legal obligation to provide healthy environments and other facilities in the city-Respondent Corporation, failed in its duty to perform compulsory functions as enumerated in said chapter VIII-Article 199 confers powers on High Court to issue direction to any person performing functions in connection with affairs of Federation, a Province or a local authority to do any thing he is required by law to do but has not so far been done by such a person—Similarly, direction can also be issued to any authority andGovernment functionaries for enforcement of any of fundamental Rights conferred by Chapter I of Part II of constitution-Article 9 guarantees protection of life and liberty of citizens-Controlling Authority and other Government functionaries directed to make proper arrangements for providing required facilities to citizens immediately within current financial year-Petition accepted. [Pp. 853 & 854] A to C PLD ] 996 Lahore 595 ref. Riaz Hussain Rabi, Advocate for Petitioner. Mian Anwar Nabi, Advocate for Respondents No. 2, 3 and 6. Ch. Ashraf Akhtar, A.A.G. for Respondent No. 1. Date of hearing : 26-3-1997. order This Constitutional petition has been filed by the City Council for Accountability and Welfare which is a voluntary Organization formed by same of the residents of the city of Rahimyar Khan to voice the grievance of the residents of the city against the alleged apathetic attitude of the administration particularly, the Municipal Corporation. 2. The brief facts are that the members of the Organization and other residents of the city of Rahimyar Khan made complaints and lodged public protest against the broken and unserviceable sewerage system, supply of unhygienic drinking water and over all unwholesome sanitary conditions of the city, but no heed was paid to their complaints and protests by the respondents. Hence this petition wherein the following main relief is sought: - (1) The restoration of efficient sewerage system in the city; (2) city level be ordered to be formed so that in future road construction is made according to that level; (3) the localities in which sewerage problem is due to uneven roads, equal level of the roads be made; (4) respondents No. 2, 3 be ordered to make arrangement for removing garbage and filth from roads, streets and parks. 3. On 6.1.1997 the report was called from the Municipal Corporation, Rahimyar Khan which was accordingly submitted. Since it wasnot considered satisfactory, Ch. Muhammad Ashraf Mohanderas, Advocate, President of the Bar Association Rahimyar Khan was asked by the Court on 30.1.1997 to submit a detailed report with regard to the complaint made in the writ petition after visiting the area. Accordingly on 17.2.1997, Ch. Muhammad Ashraf Mohandera, Advocate appeared in Court and submitted his report which he had made after making the survey of the city in association with the petitioner and the representatives of respondents No. 2to 6. After going through this report and the parawise comments, I decided to treat this petition as public interest litigation and in view of the importance and urgency of the matter, I heard the arguments of the parties present before me, who were the necessary parties, without making formal order of admission. 4. The Local Commission has particularly made report in respect of the following localities of the city :-- 1. Jinnah Park. 2. Satellite Town. 3. Ghousia Colony. 4. Basti Manan Shah. 5. Qaddafi Colony. 6. Tareen Colony. 7. Dastgir Colony. 8. and area surrounding Railways Station and LevelBrothers Industry. 5. In all these localities the sewerage system appears to have almost completely collapsed due to which sewage and drainage water flows on the roads and in the streets/parks and vacant sites and even entertain to the dwelling houses of low-lying areas. According to the report of the Local Commission proper arrangements in the city are not provided for removing garbage and filth which is being dumped on the roads, in parks and vacant sites. Similarly there are broken roads and streets without proper pavementsand most of the gutters are over-flowing and mainholes are open, which has become dangerous to human life and has also become constant source of offensive smell, files, mosquitos and other insects and germs. It is stated in the report that from the factory of Lever Brothers, sewage filled with chemicals and other poisonous elements flows into a pond constructed for this purpose which then overflows on roads and spreads toxic and foul smell in the vicinity. 6. The report of the Local Commission also finds support from parawise comments submitted by respondents Nos. 2, 3 and 6, wherein it is admitted with regard to Comprehensive Sewerage Scheme Phase-I and Phase-II as under :-- -fllj 30", IS", 12", 9 18 Like the Punjab Local CTOvernment Ordinance, 1979. the provisions with regard to the "Compulsory Functions of Urban Local Councils" are made in Chapter VIII of the Punjab Local Government Act, 1996, (hereinafter referred to as "the Act). The provisions of Chapter VIII relevant for the present purpose are reproduced below Section 59. Responsibility for sanitation. An urban local shall be responsible for the sanitation of its local area Section 61. Removal collection ,7m/ disposal of refuse. (1) An urban local council shall make adequate arrangements for the removal of refuse from all public roads and streets, public latrines, urinals, drains and all buildings and lands vested in the urban local council and for the collection and proper disposal of such refuse. (2) The occupiers of all other buildings and lands within the local area of an urban local council shall be responsible for the removal of refuse from such buildings and land subject to the general control and supervision of the urban local council. (3) An urban local council shall cause public dustbine or other suitable receptacles to be provided at suitable places and in proper and convenient situations in streets or other public places and where such dustbin or receptacles are provided, the urban local council may, by public notice, require that all refuse accumulating in any premises or land shall be deposited by the owner or occupier of such premises or land in such dustbin or receptacles. (4) All refuse removed and collected by the staff of an urban local council or under their control and supervision and allrefuse deposited in the dustbins and other receptacles provided by the urban local council shall be property of the urban local council. Section 64. Infectious diseases. (1) An urban local council shall adopt measures to prevent infectious diseases and to restrain infection within its local areas. (2) An urban local council shall establish and maintain one or more hospitals for the reception and treatment of persons suffering from infectious diseases Section 65. Water Supply. (1) An Urban local council shall provide or cause to be provided to its local area supply of wholesome water sufficient for public and private purposes. (2) Where a piped water supply is provided, the urban local council shall supply water to private and public premises in such manner and on payment of such charges as the byelaws may provide Section 67. Drainage. (1) An urban local council shall provide an adequate system of public drains in its local area and all such drains shall be constructed, maintained, kept, cleared and emptied with due regard to the health and convenience of the public. (2) Every owner or occupier of any land or building within the local area of an urban local council may, with the previous permission of the urban local council, and subject to such terms and conditions, including the payment of fees, as the urban local council may impose, cause his drains to be emptied into public drains. (3) All private drains shall be subject to control, regulation and inspection by the urban local council. (4) Subject to the provisions of any other law for the time being in force, an urban local council may by notice, direct acommercial or industrial concern to provide for the disposalof its waste or effluent in the manner specified and failure on the part of owner, tenant or occupier thereof to comply with such directions shall be an offence under this Act. (5) An urban local council may, by notice, require the owner of any building, land or an industrial concern within its local areato construct such drains within the building or land or the street adjoining such building or land and to take such other measures for treatment and disposal of effluent as may be specified in the notice. to remove, alter or improve any such drains; to take such other steps for the effective drainage of the building or land as may be so specified. (6) In case of failure of the owner to comply with the requirements of notice under subsection (5), the urban localcouncil may itself cause of carry out such requirements and the cost so incurred shall be deemed to be a tax levied on the owner of the building or lan'l as the case may be, under this Act. Section 68. Drainage and Sewerage Schemes for commercial and industrial area. (1) An urban local council may through a notice, require the owners, tenants and occupiers of commercial and industrial concerns in any area or areas within its local area to have, at their own costs, prepared a scheme for the adequate and safe drainage and disposal of their wastes and effluent of the quality permitted under the rules or the bye-laws and submit it to the urban local council within the time specified in the notice.Provided that the time limit, may be extended by the urban local council for a maximum period of three months at the request of the owners, tenants or occupiers of the commercial and the industrial units concerned. (2) The drainage, sewerage and disposal schemes as approved by an urban local council with modification, if any, shall be executed and implemented by the owners, tenants or occupiers of the commercial or industrial units at their expense in such manner and within such time as may be specified by an urban local council. (3) In case of the failure of the owners, tenants or occupierof the commercial or industrial concern to comply with theprovisions of subsections (1) and (2) an urban local council may itself prepare the drainage sewerage and disposal scheme and execute and implement it after approval by Government, at its own expense and the cost so incurred shall, under this Act, be deemed to be a tax levied on the owners, tenants or occupier of the industrial and commercialunits concerned. Section 87. Public Streets. (1) An urban local council shall provide and maintain such public streets and other means of public .communications as maybe necessary (2) An urban local council shall, in the manner prescribed, prepare and execute a road maintenance and development programme which shall form part of the budget. Section 89. Street Lighting. (I) An urban local council shall take such measures as may be necessary for the proper lighting of the public streets and other public places vesting in the urban local council by oil, gas electricity or .) such other illuminant as the urban local council may determine. (2) An urban local council may frame and enforce a street light scheme. 90. Street Watering. An urban local council shall take such measures as may be necessary for the watering of public streets for the comfort and convenience of the public and may for this purpose, maintain such vehicles, staff and other apparatus as may be necessary 8. Under Section 59 of the Act all Urban Local Councils, which according to Section 2(56) of the Act includes the Municipal Corporation of Rahimyar Khan, are 'responsible for the sanitation of its local area.' 'Sanitation' includes maintenance and improving of sanitary conditions and disposal of sewage and refuse. Section 61 of the Act deals with the removal, collection and disposal of refuse and obliges the respondent Corporation to 'make adequate arrangements for the removal of refuse from all public roadsand streets, public latrines, urinals, drains and all buildings and lands vested in the urban local council and for the collection and proper disposal of such refuse." Subjection (3) of Section 61 ibid again obliges the respondent Corporation to provide dustbin and receptacles in streets and other places for dumping the refuse and filth. 9. From the aforesaid provisions of Chapter VIII of the Act it is clear that the Municipal Corporation, Rahimyar Khan is under legal obligation to provide and maintain proper sewerage and drainage system, to erect and maintain roads and public streets in good condition, to provide dustbin and receptacles for temporary dumping of refuse and garbage and to make arrangements for its removal out of the residential area, to provide hygienically clean drinking water to the people and also to provide healthy environments in the city. If the Local Council, in the present case the respondent Corporation, fails in its duty to perform compulsory functions as enumerated in Chapter VIII of the Act, all the officers linked with the management, control and administration of the Local Council can be heldresponsible for any untoward event or accident resulting from such negligence or failure to provide such necessary civic amenities or if propermeasures are not adopted to prevent infection diseases and if consequently danger to life be caused to the residents of the it would be in violation of their fundamental rights as contained in Article 9 of the Constitution of theIslamic Republic of Pakistan, 1993 which guarantees protection of life and liberty and declares as nder "Security of person. No person shall be deprived of life or liberty save in accordance with law". 10. In the present case as observed above in the performance of the compulsory functions enumerated in Chapter VIII of the Act the Municipal Corporation, Rahim Yar Khan, its officers and Managers and also those Government functionaries who directly or indirectly control its affairs, have failed to provide such civic facilities and amenities to the citizens of this city. Article 199 of the Constitution of Pakistan confers powers on this Court to issue direction to any person performing functions in connection with the affairs of the Federation, a Province or a local authority to do anything he is required by law to do but has not so far been done by such a person. Similarly, under Clause (c) of Sub-Article (i) of Article 199 of the Constitution, direction can also be issued to any authority and the Government functionaries for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution. As already observed, Article 9 of the Constitution guarantees the protection of life and liberty of the citizens of the city of Rahim Yar Khan. In almost in similar situation my learned brother Muhammad Aqil Mirza, J. (as he then was) accepted the writ petition of the citizens of Bahawalpur and issued necessary direction to the Municipal Corporation in the case "Mst. Ameer Bano versus S.E. Highways" (PLD 1996 Lahore 595). 11. Accordingly, this petition is accepted and the Administrator and the Controlling Authority of the Municipal Corporation, Rahim Yar Khan, the Chief Engineer, Public Health Department, the Secretary, Local Government and Rural Development Department, Govt. of Punjab are directed to make proper arrangements for; (i) providing hygienically clean drinking water; (ii) constructing/reconstructing roads and public streets; (iii) the drainage of sullage and draining out the sewage water from the localities which stagnates on the roads, streets and in the parks and open sites, and (iv) covering open man-holes and (v) providing dust bins and receptacles for dumping of refuse and garbage and for its removal outside the residential area. This shall be done immediately and in any case within the current financial year. The Municipal Corporation may recruit on temporary /ad hoc or permanent basis necessary staff notwithstanding any ban if imposed by the Government for such recruitment. The office shall send copy of this order to the aforesaid officers for compliance. (AAJS) Petition accepted.